Summary of "Lawfare Archive: War Powers and the Latest U.S. Intervention in Yemen"

Podcast: The Lawfare Podcast
Episode: Lawfare Archive: War Powers and the Latest U.S. Intervention in Yemen
Release Date: March 30, 2025
Guests: Brian Finucan, Jack Goldsmith, and Matt Gluck

Introduction

In this archived episode originally aired on January 30, 2024, Scott R. Anderson hosts a critical discussion with experts Brian Finucan, Jack Goldsmith, and Matt Gluck. The conversation centers on the United States' recent military actions in Yemen, the legal justifications surrounding these interventions, and the implications of the War Powers Resolution on executive decision-making.

Background: U.S. Intervention in Yemen

The United States initiated large-scale airstrikes against Houthi rebels in Yemen on January 11, 2024, marking a significant escalation in the ongoing conflict. This military action was a response to the Houthis' increased attacks on commercial shipping and U.S. and allied forces in the Red Sea. Brian Finucan provides a detailed timeline of escalating hostilities:

Brian Finucan [04:57]: "Since November 19th, the Houthis have launched about 35 attacks on merchant ships and US and partner forces... On January 11, the US and Britain... launched a large scale attack on the Houthis in Yemen."

War Powers Resolution: Legal Framework

A central theme of the discussion is the War Powers Resolution (WPR) of 1973, which was enacted to check the President's power to commit U.S. forces to armed conflict without congressional consent. The resolution requires the President to notify Congress within 48 hours of deploying armed forces into hostilities and limits sustained military engagement to 60 days without explicit authorization.

Brian Finucan [09:09]: "The War Powers Resolution... was an attempt to ensure that future military actions undertaken by US Presidents were both notified to Congress and also to impose certain substantive restrictions on the ability of US Presidents to take the country to war unilaterally."

Application to the Yemen Conflict

The Biden administration's recent military actions in Yemen have prompted scrutiny regarding compliance with the WPR. Key points discussed include:

• 43:11: Initiation of Operation Prosperity Guardian in December 2023 to secure the Red Sea and protect shipping lanes.
• 48:03: The administration's consistent stance to continue military operations until Houthi attacks cease.

Interpretations and Debates

The guests delve into the complexities of the WPR's application, particularly the interpretation of "hostilities" and the executive branch's strategies to circumvent the resolution's constraints:

• Brian Finucan [09:09]: Highlights the ambiguity in defining "hostilities" and how past administrations have navigated these legal waters.

• Jack Goldsmith [16:03]: Discusses the role of the Office of Legal Counsel in shaping executive interpretations and the recurring tensions between the executive and legislative branches.

• Matt Gluck [20:49]: Introduces the concept of "unit self-defense," where military units act in immediate defense without triggering the WPR's 60-day clock.

Jack Goldsmith [13:18]: "The executive branch basically sees the War Powers Resolution as a problem to be circumvented, and it's developed plenty of tools to do so."

Salami Slicing and the 60- to 90-Day Clock

A significant portion of the discussion focuses on the Biden administration's alleged strategy of "salami slicing" military actions to reset the WPR's 60-day clock, thereby avoiding the necessity of seeking congressional approval:

Matt Gluck [52:01]: "It appears to be taking this approach that each of these larger scale attacks... are separate operations which restarts the clock so that the termination provision... doesn't kick in."

Statutory and Constitutional Arguments

The panelists explore potential legal justifications the administration might employ to continue military actions without formal congressional authorization:

• Brian Finucan [57:37]: Skeptical about the administration's ability to invoke existing Authorizations for Use of Military Force (AUMFs) to legitimize ongoing operations.

• Jack Goldsmith [59:07]: Discusses the "self-defense override" argument, positing that the President's Article II powers may supersede statutory constraints in certain scenarios.

Predictions and Implications

Looking forward, the experts predict that the Biden administration will likely continue employing interpretative maneuvers to navigate the WPR's limitations, emphasizing the resolution's ineffectiveness in constraining executive military actions:

Matt Gluck [63:08]: "It affirms what we thought, that the constraining power of the War Powers Resolution is pretty weak."

Jack Goldsmith [67:17]: "It's a game that the executive branch always wins, and it's a game that it's going to continue to win until Congress... imposes pain for the President."

Conclusion

The episode concludes with a consensus that the War Powers Resolution remains a largely ineffective tool for Congress to control unilateral military actions by the executive branch. The discussion underscores the need for legislative reforms to better balance war-making powers between Congress and the President.

Notable Quotes:

• Jack Goldsmith [13:18]: "But in my experience, when push comes to shove, they tend to find ways... to make the statute's clock go away."

• Brian Finucan [27:21]: "But even setting aside the relevance for the law, I definitely think it's the situation where the likelihood or possibility of escalation is very different from Libya."

• Matt Gluck [52:01]: "It appears to be taking this approach that each of these larger scale attacks... are separate operations which restarts the clock."

• Scott R. Anderson [67:17]: "What a game the War Powers Resolution has become... it's a game that the executive branch always wins."

This comprehensive discussion provides an in-depth analysis of the legal and political challenges surrounding U.S. military interventions, exemplified by the recent actions in Yemen. It highlights the persistent struggle between maintaining executive flexibility in national security matters and ensuring legislative oversight, as envisioned by the War Powers Resolution.