[House Report 116-7]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-7
======================================================================
DIRECTING THE REMOVAL OF UNITED STATES ARMED FORCES FROM HOSTILITIES IN
THE REPUBLIC OF YEMEN THAT HAVE NOT BEEN AUTHORIZED BY CONGRESS
_______
February 8, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Engel, from the Committee on Foreign Affairs,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 37]
[Including cost estimate of the Congressional Budget Office]
The Committee on Foreign Affairs, to whom was referred the
joint resolution (H.J. Res. 37) directing the removal of United
States Armed Forces from hostilities in the Republic of Yemen
that have not been authorized by Congress, having considered
the same, report favorably thereon without amendment and
recommend that the joint resolution do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Oversight Findings..................................... 5
New Budget Authority, Tax Expenditures, and Federal Mandates..... 5
Congressional Budget Office Cost Estimate........................ 5
Non-Duplication of Federal Programs.............................. 6
Performance Goals and Objectives................................. 6
Congressional Accountability Act................................. 7
New Advisory Committees.......................................... 7
Earmark Identification........................................... 7
Section-by-Section Analysis...................................... 7
Dissenting Views................................................. 8
PURPOSE AND SUMMARY
H.J. Res. 37 directs the removal of United States armed
forces from hostilities in the Republic of Yemen that have not
been authorized by Congress.
BACKGROUND AND NEED FOR LEGISLATION
The United States has longstanding strategic interests in
promoting security and stability in the Arabian Peninsula and
has worked with partners there for decades to help them defend
their borders and encourage burden sharing.
In 2014, after years of violence and insurgency, Ansar
Allah/ Houthi rebels seized the Yemeni capital city of Sana'a,
deposing the legitimate, internationally recognized Government
of Yemen and further destabilizing Yemen and the region. In
2015, Houthi forces advanced from the capital to Aden. In March
2015, Yemeni President Hadi, who had fled to Saudi Arabia,
appealed for international intervention. Saudi Arabia
established a coalition of nations to engage in military
operations in Yemen against the Ansar Allah/Houthi movement.
Since March 2015, at the behest of President Hadi, a Saudi-led
coalition intervention in Yemen has used airstrikes and
partnered with local Yemeni forces to reclaim territory from
the Houthis. Iran has trained and equipped Houthi fighters with
weapons, reportedly including ballistic missiles and armed
drones. These have been used against Saudi civilians and a U.S.
navy ship and personnel.
The war has exacerbated a humanitarian crisis in Yemen that
began in 2011. According to the Director of National
Intelligence, ``The humanitarian impacts of the conflict in
Yemen--including, famine, disease, and internal displacement--
will be acute in 2019 and could easily worsen if the coalition
cuts key supply lines to Sana'a. The fighting has left more
than 22 million people, or approximately 75 percent of the
population, in need of assistance, with millions of people at
severe risk of famine by the UN definition--numbers that are
likely to rise quickly if disruptions to aid access continue.''
According to Mr. David Harden, the former Assistant
Administrator of USAID, ``Last year Yemen faced the world's
largest cholera epidemic in recorded history; one million
people suffered from an outbreak driven by the deterioration of
the wastewater management systems primarily in Houthi-
controlled territory.'' Food commodities are too expensive for
the average Yemeni. As a result, people cannot afford to feed
their families. Limited access to certain areas of Yemen has
made it difficult for governments and aid agencies to count the
war's casualties. Experts estimate that 16,000 Yemenis have
been killed by airstrikes and many more from malnutrition and
disease.
Though fighting continues along several fronts, on December
13, 2018, the Special Envoy of the United Nations Secretary-
General for Yemen, Martin Griffiths, brokered a cease-fire
centered on the besieged Red Sea port city of Hodeidah, Yemen's
largest port. As part of the deal, known as the Stockholm
Agreement, the coalition and the Houthis agreed to redeploy
their forces outside Hodeidah city and port. As of the date of
this report, the agreement was fragile, but holding.
Since 2015, the United States has provided military support
to the Saudi-led coalition in the war against the Ansar Allah/
Houthi movement. This support includes intelligence sharing and
support, logistics, military advice, and, until recently,
aerial refueling of Saudi-led coalition aircraft on combat
missions against the Ansar Allah/Houthi movement. The United
States and Saudi Arabia announced on November 9, 2018 that
American armed forces would suspend this refueling. However,
the Administration maintains that the President has the legal
authority to resume refueling coalition aircraft on combat
missions at any time, despite having no specific statutory
authority for American participation in this war.
In recent years, the House of Representatives has
considered various measures to address the situation in Yemen.
On November 13, 2017, the House passed H. Res. 599, a
bipartisan resolution expressing the urgent need for a
political solution in Yemen and calling on all parties to the
conflict to increase efforts to prevent civilian casualties and
to broaden humanitarian access.
In August 2018, Congress passed the John S. McCain National
Defense Authorization Act for Fiscal Year 2019. Section 1290 of
this law created new conditions on funding for refueling of
non-United States aircraft for certain missions in Yemen. Under
this requirement refueling is only permitted if the Secretary
of State certifies that the Government of Saudi Arabia and the
Government of the United Arab Emirates are undertaking an
urgent and good faith effort to support diplomatic efforts to
end the civil war in Yemen, taking appropriate measures to
alleviate the humanitarian crisis in Yemen, and taking
demonstrable actions to reduce the risk of harm to civilians
and civilian infrastructure resulting from military operations.
In September 2018, the Secretary of State certified that
these conditions had been met despite significant evidence to
the contrary. For example, in the period of time before the
certification was due, attacks against civilians rose sharply,
according to the Office of the UN High Commissioner for Human
Rights. In a statement expressing opposition to a recent attack
on a school bus that killed 40 civilians, the Office stated
that, ``These latest deaths come amid a recent spike in
civilian casualties over the last week that tragically
demonstrates how the conflict continues to blight the lives of
Yemenis.'' The certification reporting period also coincided
with escalation of violence in and around the Port of Hodeidah,
as coalition and Yemeni forces sought to overtake Houthi
positions in that area. According to the International
Committee of the Red Cross, August was the most violent month
in 2018 in Yemen with nearly 500 people killed in just nine
days. Since 2015, the coalition has undertaken 18,000
airstrikes. One third of those have hit nonmilitary targets.
The Secretary of State's suspect certification flies in the
face of congressional intent and is the latest action in a
growing trend of the executive branch ignoring congressional
prerogatives on American military activity.
Across multiple administrations, the executive branch has
asserted increasingly broad authority to use military force
without congressional authorization. The executive branch has
limited its definition of hostilities to situations in which
units of American armed forces are actively engaged in
exchanges of fire with opposing units of hostile forces. The
legislative branch is not bound by, and should not accept, this
exceedingly narrow definition. War powers are within Congress'
constitutional authority. Congress must examine how the
President is using the United States military, especially when
the President is using America's armed forces to intervene in a
foreign war. This view was echoed by witnesses at a recent
Foreign Affairs Committee Hearing at which Mr. Jake Sullivan, a
former senior State Department and White House Official, said,
``Congress has an important, bipartisan role to play in the
participation of the U.S. in military activities across the
Middle East and across the world. That is relevant to a series
of questions that have not been visited by the Congress since
the passage of the 2001 and 2002 Authorizations for Use of
Military Force. It would be a big step forward in terms of the
assertion of this body that is going to be a fundamental part
of the conversation about the balance of U.S. interests in the
region and where military force is appropriate and where it is
not.''
The Senate has already considered this issue and reached
the same conclusions as the House Foreign Affairs Committee. On
December 13, 2018, a bipartisan majority in the Senate passed
S.J. Res. 54, which included the same operative text and
definition of hostilities as H.J. Res. 37. These resolutions
define hostilities to include ``in-flight refueling of non-
United States aircraft conducting missions as part of the
ongoing civil war in Yemen.'' This definition would not bind
other refueling operations, but it would make clear that the
President does not have the legal authority to resume in-
flight refueling of non-United States aircraft in the ongoing
civil war in Yemen without specific statutory authorization.
The Administration expressed opposition to this definition with
respect to S.J. Res. 54. It is not surprising that the
executive branch would prefer a definition that affords greater
unilateral power to the President. However, Article I of the
Constitution assigns war powers to the legislative branch, and
that is exactly why Congress must make clear its views on the
laws and policies that affect United States participation in
the Yemeni civil war.
HEARINGS
February 6, 2019 Full Committee hearing on ``U.S. Policy in
the Arabian Peninsula'' (Witnesses: Mr. David Harden, Managing
Director, Georgetown Strategy Group; Dr. Mara Karlin, Director
of Strategic Studies, Johns Hopkins University; Jake Sullivan,
Nonresident Senior Fellow, Carnegie Endowment for International
Peace; Michael Singh, Senior Fellow and Managing Director,
Washington Institute for Near East Policy)
COMMITTEE CONSIDERATION
On February 6, 2019, the committee marked up H.J. Res. 37
pursuant to notice, in open session. The committee agreed to
report H.J. Res. 37 to the House, with the recommendation that
the bill do pass by a record vote of 25 ayes and 17 noes.
On the vote to report H.J. Res. 37, with the recommendation
that the bill do pass:
Voting aye: Engel, Sherman, Sires, Connolly, Deutch, Bass,
Keating, Cicilline, Bera, Castro, Titus, Espaillat, Lieu, Wild,
Phil lips, Omar, Allred, Levin, Spanberger, Houlahan,
Malinowski, Trone, Costa, Vargas, and Gonzalez.
Voting no: McCaul, Smith, Wilson, Perry, Yoho, Kinzinger,
Zeldin, Wagner, Mast, Fitzpatrick, Curtis, Wright,
Reschenthaler, Burchett, Pence, Watkins, and Guest.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII of Rules of
the House of Representatives, the committee reports that
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of House rule X, are
incorporated in the descriptive portions of this report,
particularly in the ``Background'' section.
NEW BUDGET AUTHORITY, TAX EXPENDITURES, AND FEDERAL MANDATES
In compliance with clause 3(c)(2) of House rule XIII and
the Unfunded Mandates Reform Act (P.L. 104-4), the committee
adopts as its own the estimate of new budget authority,
entitlement authority, tax expenditure or revenues, and Federal
mandates contained in the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 8, 2019.
Hon. Eliot Engel,
Chairman, Committee on Foreign Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.J. Res. 37, a Joint
Resolution directing the removal of United States Armed Forces
from hostilities in the Republic of Yemen that have not been
authorized by Congress.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.J. RES. 37, A JOINT RESOLUTION DIRECTING THE REMOVAL OF UNITED STATES ARMED FORCES FROM HOSTILITIES IN THE
REPUBLIC OF YEMEN THAT HAVE NOT BEEN AUTHORIZED BY CONGRESS
(As ordered reported by the House Committee on Foreign Affairs on February 6, 2019--Millions of Dollars)
----------------------------------------------------------------------------------------------------------------
Spending
Direct Revenues Net Deficit Subject to
Spending Effect Appropriation
----------------------------------------------------------------------------------------------------------------
2019............................................ 0 0 0 *
2019-2024....................................... 0 0 0 *
2019-2029....................................... 0 0 0 n.a.
----------------------------------------------------------------------------------------------------------------
Pay-as-you-go procedures apply? No
Increases on-budget deficits in any of the four consecutive 10-year periods beginning in 2030? No
*= between $0 and $500,000; n,a, = not applicable.
Mandate Effects
Contains intergovernmental mandate? No
Contains private-sector mandate? No
H.J. Res. 37 would direct the President to remove U.S.
armed forces from hostilities in or affecting Yemen, except for
those engaged in operations against al-Qaeda or associated
forces. It also would require the Administration to provide two
reports to the Congress. One report would detail the risks to
U.S. citizens and Saudi civilians and the danger of regional
humanitarian crises if the United States stopped supporting the
Saudi-led coalition fighting in Yemen. The other report would
assess the increase in the risk of terrorist attacks if the
Kingdom of Saudi Arabia stopped sharing Yemen-related
intelligence with the United States.
In a letter to Senator McConnell in February 2018, the
Department of Defense (DoD) stated that U.S. support for the
Saudi-led coalition fighting in Yemen does not constitute
hostilities. It further stated that U.S. armed forces are
engaged in hostilities against terrorist organizations
operating in Yemen, including al-Qaeda and the Islamic State of
Iraq and Syria. To the extent U.S. armed forces are currently
engaged in hostilities against terrorist organizations other
than al-Qaeda or its associates, those operations would be
precluded under the resolution. However, CBO expects that the
number of DoD personnel and the amount of resources in the
region would be unaffected.
CBO estimates that implementing the reporting requirements
under H.J. Res. 37 would cost less than $500,000 over the 2019-
2024 period; such spending would be subject to the availability
of appropriated funds.
The CBO staff contact for this estimate is Sunita D'Monte.
The estimate was reviewed by Leo Lex, Deputy Assistant Director
for Budget Analysis.
NON-DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of House rule XIII, the
committee states that no provision of this resolution
establishes or reauthorizes a program of the Federal Government
known to be duplicative of another Federal program, a program
that was included in any report from the Government
Accountability Office to Congress pursuant to section 21 of
Public Law 111-139, or a program related to a program
identified in the most recent Catalog of Federal Domestic
Assistance.
PERFORMANCE GOALS AND OBJECTIVES
The objective of H.J. Res. 37 is to direct the President to
remove U.S. Armed Forces from hostilities affecting Yemen that
have not been authorized by Congress. It directs the President
to remove forces within 30 days, unless Congress authorizes a
later withdrawal date or specifically authorizes the use of the
Armed Forces.
For purposes of this resolution, the term ``hostilities''
includes in-flight refueling of non-United States aircraft
conducting missions as part of the civil war in Yemen. It also
requires the President to report to Congress on the risks that
would be posed if the United States were to cease supporting
counter-Houthi operations in Yemen, and if Saudi Arabia were to
cease sharing Yemen-related intelligence with the United
States.
CONGRESSIONAL ACCOUNTABILITY ACT
H.J. Res. 37 does not apply to terms and conditions of
employment or to access to public services or accommodations
within the legislative branch.
NEW ADVISORY COMMITTEES
H.J. Res. 37 does not establish or authorize any new
advisory committees.
EARMARK IDENTIFICATION
H.J. Res. 37 contains no congressional earmarks, limited
tax benefits, or limited tariff benefits as described in
clauses 9(e), 9(f), and 9(g) of House rule XXI.
SECTION-BY-SECTION ANALYSIS
Section 1. Findings. This section establishes that, under
Article I of the Constitution, Congress has the sole authority
to declare war; highlights the duration and extent of U.S.
support for the Saudi-led coalition's military campaign against
Houthi rebels in Yemen; reaffirms the definition of hostilities
in the War Powers Resolution and applies it to the U.S. role in
the Saudi-led coalition's campaign; and emphasizes that there
is no statutory authorization for the use of force in the
conflict between the Saudi-led coalition and Houthis and no
provision of law explicitly authorizing targeting assistance or
midair refueling of Saudi or UAE warplanes in such conflict.
Section 2. Removal of United States Armed Forces from
Hostilities in the Republic of Yemen That Have Not Been
Authorized by Congress. This section directs the President to
remove U.S. Armed Forces from hostilities affecting Yemen,
except those engaged in operations directed at al-Qaeda or its
associated forces. It directs the President to remove forces
within 30 days, unless Congress authorizes a later withdrawal
date or specifically authorizes the forces. For purposes of
this resolution, the term ``hostilities'' includes in-flight
refueling of non-United States aircraft conducting missions as
part of the civil war in Yemen.
Section 3. Rule of Construction Regarding Continued
Military Operations and Cooperation with Israel. This section
specifies that nothing in the resolution may be construed to
influence or disrupt any military operations and cooperation
with Israel.
Section 4. Report on Risks Posed by Ceasing Saudi Arabia
Support Operations. This section requires the President to
report to Congress on the risks that would be posed if the
United States were to cease supporting counter-Houthi
operations in Yemen.
Section 5. Report on Increased Risk of Terrorist Attacks to
United States Armed Forces Abroad, Allies, and the Continental
United States if Saudi Arabia Ceases Yemen-Related Intelligence
Sharing with the United States. This section requires the
President to report to Congress on the risks that would be
posed if Saudi Arabia were to cease sharing Yemen-related
intelligence with the United States.
DISSENTING VIEWS
As Ranking Member of the Committee on Foreign Affairs, I am
disappointed that the first committee business of the 116th
Congress is such a marked departure from our typical bipartisan
cooperation on productive legislation. House Joint Resolution
37 misuses a privileged statutory mechanism that applies only
when U.S. troops are directly engaged in hostilities, in order
to create the appearance of action. However it provides no
clear decisions on which forms of assistance to Gulf states are
implicated, and no guidance on how best to mitigate the
humanitarian catastrophe inside Yemen. Alarmingly, it also
completely ignores the destabilizing role that Iran is playing,
both in the Yemen conflict and in the region. This is an
irresponsible approach to United States foreign policy.
As Republican Members stated during our markup, it is
problematic that the Committee is rushing to pass a measure
affecting complex and vital security and humanitarian interests
before Members--especially the 12 brand new Committee Members--
have had the opportunity to be fully briefed in a classified
setting on the situation in Yemen, and on the actual nature,
extent, and purpose of U.S. engagement on the Arabian
Peninsula.
The Committee has no more solemn responsibility than its
exercise of Congressional war powers under Article I of the
Constitution. The privileged statutory mechanism to force
withdrawal of U.S. forces under the War Powers Resolution
(pursuant to sections 1546 and 1546a of Title 50 of the U.S.
Code) applies only when U.S. troops are engaged in unauthorized
live-fire hostilities. As the Department of Defense has
repeatedly confirmed, as recently as this week, U.S. Armed
Forces are not engaged in hostilities against Houthi forces in
Yemen. Even the aerial refueling of coalition jets--which does
not constitute hostilities as traditionally understood--ended
last November.
This resolution is trying to hammer a square peg into a
round hole. It misuses an extraordinary War Powers tool to try
to get at the issue of security cooperation to third countries.
It would set a dangerous precedent. It stretches the definition
of ``hostilities'' to cover non-U.S. military operations by
other countries. It reinterprets U.S. support to those
countries as ``engage[ment] in hostilities.'' This has
implications far beyond Saudi Arabia.
This approach will allow any single Member to use a
privileged mechanism to second-guess security cooperation
relationships that the United States maintains with more than
100 countries throughout the world. Under this model, if any
Member of Congress doesn't like something that any of our
security partners does overseas, that Member can force quick
consideration of a resolution directing the removal of U.S.
forces from hostilities ``in or affecting'' that situation. It
no longer matters that U.S. forces are not actually conducting
those hostilities. This interpretation could impact our
assistance to Israel. It could affect our cooperation with NATO
allies. It could impact our counterterrorism cooperation with
African nations in the Sahel. We could recklessly undo critical
security relationships we have spent decades building.
This is not what the War Powers Resolution has ever meant,
and it should not be misused this way now.
No one is saying that U.S. security assistance--to Saudi
Arabia or anyone else--is beyond Congressional scrutiny.
Congress has many tools at its disposal, including this
Committee's arms sales notifications, targeted legislation, and
the annual appropriations process, among others.
But House Joint Resolution 37 is not a serious piece of
targeted legislation. It is a vague and irresponsible political
stunt that will create new doubts for our partners and allies
around the world. It will trouble the many Americans who
believe that burden-sharing with capable allies is vital for
U.S. national security.
For these reasons, I strongly oppose this measure.
Michael T. McCaul,
Ranking Member.
[all]