Is Congress ready (and willing) to fix the president's Yemen policy?

The Biden administration has come full circle on Yemen. It now claims the Houthis are to blame for the enduring conflict, and rather than obtaining pariah status, recent Geneva Convention-violating Saudi-led (and U.S. backed) coalition airstrikes received only “deep concern.” 

As I’ve noted elsewhere, Biden’s team has brought us back to the worst of the U.S. regional playbook over the last 20 years, “going back to basics” in Yemen and other places. Apparently it thinks a show of force by deploying fighter jets and the USS Cole to the UAE will deescalate the Houthi-UAE tit for tat, ignoring that continued escalation plays to the Houthis benefit. It may even go so far as condemning potentially millions to preventable deaths by redesignating the Houthis a Foreign Terrorist Organization at the request of the UAE — a Trump action that Biden reversed just a year ago.

Yet again, another executive branch has shown that it believes the U.S. partnership with murderous Gulf monarchies is more important than preventing millions from starving in Yemen. As it has before, Congress needs to step up and shut down the outsourcing of U.S. regional policy to the Gulf. 

By and large, there are no good armed actors in Yemen. It has become a self-perpetuating conflict to some degree, thanks to a massive war economy that incentivizes all sides to keep fighting, the millions of Yemenis facing an unprecedented hunger, cholera, and COVID-19 crises be damned. The few who are vested in a peaceful future Yemen — civil society, Yemen’s vibrant civil service and small businesses, its young entrepreneurs, thought-leaders, tribal leaders, and activists — are largely left out of international negotiations and strategizing about ending the conflict and the future of the country, sidelining those with the power to build a new future.

The fact that there are no good sides in the war in Yemen is not an excuse for the United States to refuse to end its blank check of support for the Saudi and Emirati governments’ actions, however. Continuing to arm and back one side of the conflict does little to make the United States a credible actor for peace. If Congress was not just gaslighting in its desires to take back its constitutional powers of matters of war and peace from the Imperial Presidency, it has several tools at its disposal should it choose to use them.

Of course, there’s the tried and true tactic of using the War Powers Resolution of 1973 to force a debate on ongoing U.S. backing of Saudi Arabia and to register dissent with the administration’s approach. The trick will be identifying the specific forms of ongoing U.S. military support to the coalition that still need to be cut off (advocates have slowly gotten Congress to chip away at this support, ultimately ending aerial refueling and pushing even the previous war-only administration to call for an end to the war).

Additionally, the recent U.S missile launches in defense of the UAE against the Houthis may cross the line into engaging in active hostilities. Under the WPR, the president is required to send Congress a war powers notification within 48 hours of such military engagement. The current circumstances no doubt mirror those in 2016 when the Obama administration sent Congress a war powers notification when it launched "defensive" strikes against Houthi installations in 2016 in response to a Houthi drone boat attack. Congress should have received a notification in this latest instance based on the Obama precedent, and if it did, it should be made public.

Alternatively, the House of Representatives has now passed Reps. Ro Khanna, Adam Schiff, and Adam Smith’s NDAA amendment ending all contracted maintenance support, including the delivery of spare parts to the coalition, with bipartisan majorities twice already. If fully ending U.S. support for the coalition is still the full Democratic Party line, what’s stopping Speaker Pelosi and Leader Schumer from bringing it up as stand alone legislation or attaching it to the next must-pass piece of legislation?

A better option may be a little used mechanism in the Foreign Assistance Act, which governs the provision of U.S. foreign assistance to other governments, militaries, and other entities. Known at Section 502(b) of the FAA, this provision of law gives Congress another “privileged” process to pursue, meaning that a floor vote in the Senate is guaranteed. 502(b) sets up a two step process: First, either the Foreign Affairs Committees in the House and Senate, including the individual chairs of these committees can make a formal request or if the Senate or House passes a resolution of inquiry, Congress can require the State Department to review any foreign country’s human rights record and whether providing additional U.S. assistance would violate a provision of the FAA. 

Congress could ask for a review as to whether the Saudi and Emirati de facto blockade is violating 620i of the FAA that prohibits U.S. assistance to countries blocking the delivery of humanitarian assistance. It can ask for a review of internal human rights practices in Yemen or inside Saudi Arabia and the UAE. It can ask for anything it deems pertinent — truly Congress gets to decide what information State must credibly assess and the public needs to know. If the State Department fails to reply in full within 30 days or Congress is dissatisfied with its answer, the Senate can force a vote on a privileged resolution either ending or amending U.S. assistance to the country — as it sees fit. 

The implications are massive, mostly due to the expansive definition of assistance provided by the FAA; arguably the law defines “assistance” to include everything — from weapons sales and training and equip programs to military training. Should Congress trigger this process and the State Department fails to comply, any U.S. assistance to the subject country is automatically cut off by law. If the administration does comply, Congress is still in the driver’s seat of a privileged process in the Senate requiring a simple majority of support to take the second step and cut off (or at minimum, control what kinds of) assistance to Saudi Arabia and the UAE. 

Congress can take these actions at any point in time, and it seems an appropriate response to multiple coalition airstrikes killing hundreds of civilians. Congress has spoken multiple times but never finished its job U.S.-Yemen policy. The question is: will Democrats have the guts to rebuke their own president like the others before him, as the third U.S. president to have gotten the conflict in Yemen woefully wrong?