Joe Biden continues to bomb Yemen without even seeking congressional authorization. His justifications for doing so don’t stand up to scrutiny — and they mask the dangers of this operation becoming another open-ended US war.

President Joe Biden is pictured at the White House in Washington, DC, the United States, January 22, 2024. (Aaron Schwartz / Xinhua via Getty Images)

One of the stranger developments in US political discourse these past few years is that even as the “rule of law” and the urgency of defending it from unscrupulous presidents has taken center stage, the ability of presidents to use and abuse what was once called the “imperial presidency” has drawn a collective yawn. But with President Joe Biden’s bombing campaign in Yemen, that might be changing.

The Constitution doesn’t really mince words when it comes to making war, making it clear that “The Congress shall have the Power . . . to declare War.” So it’s hardly surprising that some members of Congress across ideological lines — from progressives and centrist Democrats, to establishment and MAGA Republicans — are now questioning the legal basis for Biden’s bombing of Yemen, which two-plus weeks in is at growing risk of turning into something much bigger, and much worse.

What started as seventy-three airstrikes on the country on January 11 soon morphed into six more rounds of (less extensive) bombing by the US and British militaries. It’s now set to become, according to the Washington Post, a “sustained military campaign,” with US officials telling the paper that while it probably won’t go on for years like earlier US wars in the region, they also have no idea when it will actually end. According to Politico, the Biden administration’s vision of an endgame is based on some fairly generous assumptions: that US bombings and sanctions will choke off the ruling Houthis’ ability to keep attacking, and that Israel will eventually stop killing as many people in Gaza, while other countries will eventually demand an end to the shipping crisis.

So far, that is not proving true, with the Houthis stepping up their attacks on shipping and broadening their targets to include US ships, while reportedly receiving a steady stream of arms from former factional enemies within Yemen, who have now increasingly aligned with the Houthis in response to US airstrikes. Biden himself admitted when asked about his airstrikes: “Are they stopping the Houthis? No. Are they going to continue? Yes.”

In other words, what’s happening in the Red Sea has all the makings of another dumb, open-ended US war in the Middle East based on magical thinking, and a refusal to address the root cause of what’s driving it — all done on the president’s whim and without a semblance of congressional authorization.

No Good Reason

President Biden’s defenders have found various ways to justify his actions. Biden’s bombing is “limited,” for example, hitting purely military targets while avoiding committing ground troops or trying to carry out regime change — so it hardly constitutes a “war” that Congress needs to busy itself with. Paired with this is the argument that a host of other presidents, including Biden’s three immediate predecessors, have done the same or similar without getting Congress’s okay, so why should he? Besides, the Houthis “aren’t a sovereign entity,” and it may not even be strictly possible to go to war with “a non-state actor” like them.

We can deal with these one by one. The idea that “merely” bombing a country doesn’t count as war is a peculiar view held only within the Washington establishment, and not held consistently. If, say, Iran or China fired more than a hundred precision-guided munitions at more than sixty targets on US soil like bases and other military infrastructure, killing five people — all of which Biden did to Yemen on January 11 — would anyone in the United States, let alone on Capitol Hill, shrug it off as simply a “limited” bombing? Of course not. It would be treated as what it is: an act of war.

And it would make no difference if the strikes were limited to US military targets; it was, after all, the Japanese attack on a US naval base in Hawaii that led the United States to enter World War II. This line of thinking carries still less weight now, when Biden’s strikes have, as many predicted, proven far from a “one-off.”

That so many politicians and commentators, including those who think of themselves as liberals and defenders of the rule of law, take this absurd position is due to two things. One is the long-standing militaristic culture in Washington, which has gone into overdrive since the “war on terror” and since Barack Obama’s presidency turned Bush’s lawless policies into bipartisan consensus. The other is the overwhelming military supremacy of the United States, which means US officials can happily carry out acts of war against weaker states and assume they’ll stay “limited,” because the targets wouldn’t dare tit-for-tat retaliate and risk all-out warfare with the United States — an assumption currently being tested by the Houthis.

The second point can be dealt with much quicker: just because a bunch of US presidents have acted in the same way that Biden is doing now, doesn’t somehow make it okay or legal. After all, it was the long history of elite and presidential impunity — from Nixon’s pardon to the failure to hold anyone in the Bush administration accountable for their lawbreaking — that paved the road for Donald Trump’s antics.

Finally, while it’s true that the Houthis aren’t internationally recognized as the legitimate government of Yemen, they’re about as close as you can get in the current circumstances — a “state-level actor,” as one regional expert wrote for West Point’s Combating Terrorism Center. Geographic control of Yemen might be divided in three, but the Houthis govern the areas that hold 70 to 80 percent of the population, including the capital, where critical state institutions, international aid organizations, the country’s telecommunications sector, and crucial parts of industry are all located.

They also control the port that receives most of the country’s imports and foreign aid, and their government features several non-Houthi ministers who are veterans of Yemen’s previous governments. That includes from Yemen’s “official,” internationally recognized government — a government that lost its own nominal capital five years ago to secessionists, and whose former president, who had no power base in the country and spent most of his time in Saudi Arabia, was deposed and arrested by the Saudi government, his chief patron, in 2022.

In other words, claiming Biden can bomb Yemen willy-nilly because the Houthis aren’t a “real” government is extremely dubious.

Self-Defense Like No Other

The strongest arguments justifying what Biden’s doing are the principle that the president can order the military to rapidly respond to attacks on Americans. The White House is clearly gesturing at this reasoning when it calls its strikes on Yemen actions “defensive” or a matter of “self-defense,” pointing out that the Houthis had threatened US ships in the Red Sea.

But Biden has, to much criticism, not so much as bothered trying to deal with the issue by diplomatic means. His administration simply issued public warnings for the Houthis to stop, and asked Iran, which has limited influence over the Houthis, to pressure the group to end the attacks, while refusing to do the one thing the Houthis have made explicitly clear they want: cutting off support for Israel’s war on Gaza and supporting a cease-fire. Nor has Biden shown any indication that he’ll seek congressional authorization for what his own officials say is going to be a long-term, open-ended military operation.

And what does “self-defense” mean here? The Biden administration admitted days after the initial US strikes on Yemen that it didn’t “have a list of casualties from these merchant ships,” suggesting that there were no Americans killed by the Houthi attacks by the time Biden ordered the bombing. (Since then, two Navy SEALs have likely drowned, but not at the hands of the Houthis — they ended up in the water while seizing Iranian weapons bound for Yemen.)

How did US ships come under threat from Houthi attacks in the Red Sea in the first place? Because they were deployed there, also unilaterally, by the US president as part of a preexisting military operation, one whose aims were protecting “the free flow of international commerce,” or at best, the trade and economy of a foreign country (Israel) that is not a US treaty ally. Vice Admiral Brad Cooper, the commander of the US Naval Forces Central Command, has said that before this operation was launched, “naval presence in the southern Red Sea was episodic at best,” while now it’s “the largest surface and air presence in the southern Red Sea in years,” meaning US ships were hardly under threat before December.

The thing that reportedly prompted Biden to seriously consider strikes on Yemen was a December 31 incident where US helicopters responded to a distress call from a merchant ship the Houthis were trying to board, and came under fire from the Houthi boats (the US helicopters then killed ten members of their crew). The container ship the US military was defending wasn’t an American one, by the way — it was the Maersk Hangzhou, which sails under the Singaporean flag. Nonetheless, the administration soon issued its final warning that “consequences” would follow if the Houthi attacks continued.

The only other incident that could be said to have directly threatened US personnel came a few days later, on January 3, when the Houthis detonated what was effectively a suicide boat packed with explosives within a couple miles of US Navy ships in Red Sea shipping lanes — an act the Institute for the Study of War, for instance, believes was an attempt by the Houthis not to do damage, but to “demonstrate their capabilities” in response to Biden’s “final warning.” When explicitly asked by a reporter in the wake of the incident, Vice Admiral Cooper admitted that “there’s no specific information that any US ship has been directly targeted” by the Houthis up until then, but that they were simply in danger a result of “the location and proximity.”

“In the course of us patrolling and defending ships, either anti-ship ballistic missiles get fired at some of these merchant platforms, or a one-way attack [drone] is fired at them,” he explained. “And we’re either in the vicinity, because we are out actively patrolling and from a ship war perspective it’s very difficult to discern whether or not a missile is coming right at you or the merchant vessel adjacent to you.”

In other words, US officials themselves admit that the Houthis hadn’t killed any Americans nor directly targeted them, and that US ships are only under threat here by virtue of the fact that they’re “in the vicinity” as they carry out a separate military operation — a military operation that’s expressly about protecting international shipping and another country’s trade. Does the US president really have the right to unilaterally send military resources into harm’s way, wait for them to come under fire, then use that as a reason to start a war in “self-defense”?

About Damn Time

Members of Congress are right to challenge the legality of what the administration is doing in Yemen — and not just because the operation is unconstitutional.

It’s because once something like this hinges on a vote in Congress, it becomes a matter of national debate and forces both officials and the entire country to confront whether starting a war with Yemen’s Houthis actually makes sense. That process might lead cooler heads to prevail and prevent the president from doing something that carries the potential for disastrous blowback.

Biden’s bombing of Yemen shows the dangers of allowing one man kinglike powers to declare a war. It’s taken far too long for Congress to reassert its warmaking authority against presidents who couldn’t care less. Let’s hope it does so here.

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