The Lawfare Podcast: War Powers and the Latest U.S. Intervention in Yemen with Brian Finucane, Jack Goldsmith, and Matt Gluck

[Audio Excerpt]

Brian Finucane: I think the clash on the 31st of December is pretty closely paralleled by some incidents the U. S. government has reported in the past. Particularly there were a few incidents during the Tanker War that the Reagan administration reported, citing the hostilities prong pretty clearly because they were hostilities.

And so, it raises the question, why that incident, at a minimum, wasn't reported and why the clock didn't start then. I will just say that I have heard, based on my conversations in D. C., that the Biden administration may be leaning into an argument, at least in its explanations to Congress, that incidents involving what might be termed "unit self-defense" or "on-the-spot actions" authorized by CENTCOM or subordinate commanders don't constitute hostilities for war powers purposes. Such a theory might also explain their reporting practices even with respect to the air strikes in Yemen itself.

[Main Podcast]

Scott R. Anderson: I'm Scott R. Anderson. This is the Lawfare Podcast for January 30th, 2024.

U. S. military operations against Houthi rebels in Yemen have escalated rapidly in recent weeks, culminating in a number of major strikes aimed at degrading their ability to threaten Red Sea shipping traffic.

But, the war powers reports the Biden administration has provided to Congress are raising questions about how it is legally justifying this latest military campaign. To discuss the burgeoning conflict in Yemen and what it might mean for war powers, I sat down with Brian Finucane, Senior Advisor at the Crisis Group; Lawfare Co-Founder and Harvard Law School professor Jack Goldsmith, and Lawfare's own Research Fellow Matt Gluck. We talked about their recent pieces on the topic, what we know and don't know about the administration's legal theory, and what the law might mean for how the conflict evolves moving forward.

It's the Lawfare Podcast for January 30th: War Powers and the Latest U. S. Intervention in Yemen.

So we have seen over the past several weeks, several months really at this point, a pretty rapid and significant escalation of hostilities--and we'll get, in a second, to what extent this constitutes hostilities--but, what some might call hostilities in the Red Sea, specifically involving the Houthis, a kind of Iran-backed movement of some note in the past few years that controls a substantial portion of Yemen and is backed by the state of Iran and has a pretty substantial military capability, more so than conventional pirate risks that we may be familiar with from conversations 10 to 20 years ago in the Red Sea around other parts of the region.

Matt, let me turn it over to you first, just to give us a little bit of a level set on the facts. Tell us a little bit about what we've seen happen these past few months with a particular focus on what we're focusing on in our conversation today, which is the U.S. and ally--but particularly U.S.--military action that's been in response to that.

Matt Gluck: So, in the middle of October, the Houthis began lobbing missiles toward Israel. I believe it was October 19th. And those missiles fell short or were shot down by the U. S. and Israel. And so, that state continued for a little while throughout the rest of October and hadn't escalated too much. And I should add that when the Houthis were sending these missiles, they claimed that it was in the name of Gaza in Hamas's fight against Israel. In the name of Gaza, not necessarily in the name of Hamas. I may be fudging the details a little bit on that.

And then in the middle of November, the Houthis escalated their attacks significantly and began to send missiles into the Red Sea, targeting commercial shipping and eventually U.S. and partner ships. And that resulted in significant disruptions in global supply chains. And it led the U. S. in the middle of December to form an operation called Operation Prosperity Guardian with several allies. And partners and the purpose of that was to bolster security in the Red Sea and prevent these disruptions to international shipping. Unfortunately, and, perhaps, predictably, that did not deter the Houthis, and they continued to attack ships in the Red Sea. So, since November 19th, the Houthis have launched about 35 attacks on merchant ships and U. S. and partner forces. That situation continued for about a month and a half.

 And then, on January 9th, the Houthis conducted their biggest attack yet, including on American and British ships. Then two days later, on January 11th, the U. S. and Britain, with the support of Australia, Bahrain, Canada, and the Netherlands, launched a large-scale attack on the Houthis in Yemen, which targeted 28 locations with more than 150 munitions. And following that operation was the first War Powers Resolution 48-hour report that we saw.

 Since that,January 11th attack, the U. S. has conducted nine additional attacks, including another joint attack with the British on January 24th, which triggered another War Powers Resolution report. And during that time between the January 11th attack and the January 24th attack, the Houthis have continued to attack U. S. and partner ships and also commercial shipping, and they have vowed to continue to retaliate in the name of Gaza. And throughout that time, the Biden administration has been remarkably consistent in its message that it will continue fighting until the Houthis stop their attacks.

Scott R. Anderson: Matt, you've introduced this concept of the 48-hour report, which is really the focus of what we're talking about today. It's worth noting you and I and Greg Johnson did a podcast, I think about two weeks ago, that gets into a lot of the political dynamics, particularly around Yemen, around the Houthis, some of the strategic logic. But, here, in this podcast, we're really focusing on this question of the War Powers Resolution, which, in a lot of ways, comes down to what the Biden administration is and isn't saying through these 48-hour reports, of which we now have two on the books.

Brian, I want to come to you on this next question, because I know from firsthand experience, in fact, from our time together in government, that you used to be one of the people responsible for shepherding these reports and drafting them and shepherding through the interagency process. Tell us a little bit about the War Powers Resolution, how it applies and what is relevant here, and the role these 48-hour reports play, both in terms of how perhaps what they're intended to play in the War Powers Resolution, and how the Executive Branch, at least in your experience, actually approaches them and crafts them and what it can tell us about their legal positions.

Brian Finucane: Sure, thanks Scott. I'll tackle this at fairly a high level of generality and then we can dig further into the details as necessary. As your audience may be aware, the War Powers Resolution was enacted in 1973 over President Nixon's veto, and one of the things that prompted Congress to enact the resolution was the perception that various actions taken during the course of the wars in Indochina were taken without Congress's awareness or authorization. And so, the War Powers Resolution was an attempt to ensure that future military actions undertaken by U. S. presidents were both notified to Congress and also to impose certain substantive restrictions on the ability of U. S. presidents to take the country to war unilaterally. And so, to that end, the resolution establishes certain reporting requirements, and the most relevant one here is that within 48 hours of U. S. Armed Forces being introduced into hostilities or situations where imminent involvement in hostilities is clearly imminent by the circumstances, Congress needs a report, a notification, from the White House regarding that incident.

And then, connected with those 48-hour reports, which are the sort of subject of our discussion today, there is--Section 5b of the Resolution also introduces this 60-day clock we refer to, a requirement that if Congress has not enacted legislation, enacted authorization, for the use of force, a declaration of war or an AUMF, and authorization of the use of military force, U. S. armed forces have to be removed from hostilities or the situation of imminent hostilities after 60 days. And that can be extended out a further 30 days for the purposes of U.S. force protection, in order to extricate U.S. forces from the situation. And so that's sort of the legal background here.

In practice, one of the biggest issues with Warwar powers reporting, and hence the implementation of the 60-day clock, is the interpretation of the term "hostilities" and introduction of U. S. armed forces into hostilities. That term is not defined in the statute. There is a committee report that provides--the House Foreign Affairs Committee's interpretation of it--that provides background in legislative history. There is a sort of touchstone in terms of Executive Branch interpretation from a 1975 letter of the State Department sent to Congress. And that letter defined hostilities as "a situation in which units of U. S. Armed Forces are actively engaged in exchanges of fire with opposing units of hostile forces."

But, that's sort of the touchstone Executive Branch interpretation. It's by far the only one. And over the years, there've been disputes between the White House and Congress over how the whWhite Houses parsing hostilities and assessing whether or not specific actions amount to hostilities. This, for example, is cropped up during the deployment of U.S. Marines to Lebanon in the 1980s by the Reagan administration, where the Reagan administration tried to maintain that certain actions didn't constitute hostilities because they might be defensive in nature. Similar arguments were advanced by the Reagan administration in connection with the Tanker War in 1987, 1988. And then more recently, your listeners may be familiar with the arguments put forward by the Obama administration in 2011 with respect to the U. S. air campaign along with coalition partners against the government of Qaddafi, in which it ran up against the 60 day-clock and then came forth a novel interpretation of the term "hostilities," argued that actually U. S. Armed Forces were no longer in hostilities and so the clock wasn't operative.

And so this is a real issue in how we make sense of what's going on right now in the Red Sea, in Yemen, and whether and to what extent the administration is facing a serious problem with the 60-day clock and when that 60-day clock started ticking in the first place.

Scott R. Anderson: And Brian, I want to drill down a little bit here on a process question about how these letters are generated and who has the pen on them--or who has the multiple pens on them as it's definitely not one voice on this. Because I know, at least personally, when I look at these, I think a lot of people who follow this issue closely, possibly the majority of whom are on this podcast right now, because it's a small community who really looks at these things really closely. People really tend to parse the language and there's often a strong element of inference about saying what is and isn't said or framed certain ways. And that's in part because of the assumption of the process behind the letters. Tell us a little bit about that in your experience, although recognizing things change across administrations, it may not be entirely current.

Brian Finucane: Well, it's a good question. And it's one that Congress posed to then-Secretary of State Kissinger back in 1974: "So, okay, we've established these reporting requirements over the President's veto. Now, how are you going to operationalize them?" And so, Kissinger responded with a letter, sort of explaining the process that State and the Department of Defense had worked out at the time, which is that the Chairman's Legal would coordinate with the Department of Defense Office of General Counsel, OGC, on troop deployments and actions. And then they would, in turn, notify the Office of Legal Advisor, where you and I both used to work at the State Department, to provide this information and then consult about whether notifications to Congress were required. And so, there was this scheme worked out where there would be internal coordination at the Pentagon and then interagency coordination involving the State Department and then notifications to Congress.

 In my experience, when reports are filed or there's a situation raising questions about whether a report needs to be filed, DOD will typically notify the State Department because they are much closer to the action--they are in direct contact with the combatant commands, they're aware if there's going to be an imminent deployment of U.S. forces or introduction of forces into certain situations, or if it's actually occurred, it's already happened. And so, they're the ones who are in possession of the facts, and they will reach out, often to the State Department, to the Legal Advisor of the National Security Council, and to Office of Legal Counsel at the Department of Justice to flag these issues, to raise the concern that, "okay, we might need to do a notification, " and then discuss whether or not it falls within the reporting requirements of the War Powers Resolution. And then typically, the Department of Defense will take the first cut on the draft of any notification, because again, they are the ones that are closest to the facts. They know what U. S. Armed Forces are actually up to. That's sort of the general process in my experience by how these things work.

Scott R. Anderson: And one of the offices you mentioned in there is the Office of Legal Counsel, which I think plays a particularly prominent, although, not necessarily dominant, role in how a lot of people who look at these things think about the Executive Branch's views, because some of the best data points we have that spell out in some detail--although, never crisp and 100 percent clear detail--what the Executive Branch is thinking legally are Office of Legal Counsel opinions.

Jack, of course, you headed up that office during a stint in the George W. Bush administration. At least one public OLC opinion that relates to war powers has your name on it. This is the 2004 Haiti opinion, if I recall correctly. Although, if I recall correctly, I don't think you actually get into it because you hadn't hit the 60- to 90-day mark quite yet. But, I'd be curious about your experience from that office, and from your other experience in government and watching it since then. How, in your sense, does the Executive Branch think about this War Powers Resolution constraint? We know the Nixon administration early on said that particularly this particular requirement was unconstitutional, but we've seen subsequent administrations frankly waffle back and forth in that a little bit. I think the most recent footnote at last Clinton administration said, "This is a complicated issue of which administrations have expressed kind of conflicting views." And since then, at least the Obama and Biden administrations have seemed to suggest that they more or less buy into it to some extent. But, have you seen pushback around interpretive modes? How does the Executive Branch approach this fundamental question about what the War Powers Resolution means for the President's authority?

Jack Goldsmith: Thank you, Scott. As a general matter, I think it's fair to say that basically what you just said is accurate in terms of the constitutional issues. President Nixon declared in his veto statement that it was the termination provisions, and I think maybe, I can't remember, the reporting provisions of the statute were unconstitutional. I believe that the Office of Legal Counsel opinion in the Carter administration raised some constitutional concerns. Various administrations, especially the Reagan and first Bush administration, took pretty aggressive views on the unconstitutionality of the statute. Later administrations, especially Democratic ones, took a softer view and a more ambiguous view about the constitutionality of the statute.

But, stepping back from the constitutional issues, I would say -- and subsuming those--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. Some of them are constitutional arguments. Some of them, I suppose we'll get into later today, are statutory arguments. Brian went through the statute and all the various elements of the statute: what is a hostility, what counts as the introduction of forces, in what situations is the statute even triggered beyond the hostilities question. There are a whole bunch of--the statute is poorly drafted, or at least it's drafted in a very difficult context. And it doesn't--it gives the President plenty of statutory loopholes to avoid the clock problem and the running of the clock problem. And presidents and their advisors have found, independent of the constitutional issue, various statutory ways around it.

But, in terms of the general attitude, different administrations take different public attitudes towards the War Powers Resolution. But, in my experience, when push comes to shove, they tend to find ways, whether Democrat or Republican administration, to make the statute's clock go away. And in response, Congress frankly hasn't done very much about that. So the President, as the first mover and the last mover, usually wins those debates.

Scott R. Anderson: So, I want to get into those debates, because you both, or you three, collectively through two pieces, Brian, yours in Just Security a few days before the first war powers report on January 11th; Matt and Jack, your piece, most recently on Lawfare that kind of came out just after the second war powers report that just came out this week. You lay out a number of arguments that have a lot of overlap. I think you hit on a lot of the same issues I want to run through, but, you actually have a fundamentally slightly different tack about the clock. And that's particularly when might the clock have started. You, Matt and Jack, in your piece in Lawfare, you make the point that the Biden administration will have a War Powers Resolution problem at least as of April 11th, which is 90 days after the first War Powers Resolution notification.

Brian, let me turn to you first. Tell us why, in your view, there's at least a credible argument--even if it's maybe one the Executive Branch contests--that the 60- to 90-day clock, that window in which the president's supposed to get congressional authorization, has already run.

Brian Finucane: So as Matt, so ably ran through at the outset, there has been a longer course of fires, clashes, military activity in the Red Sea prior to the first U. S. airstrikes on the Houthis in Yemen on the 11th of January. And the start of this military action, we can frame it different , it was on the 19th of October when the USS Kearny started shooting projectiles down, missiles and drones, that are apparently launched at Israel. This is followed by the Houthis shooting down a U. S. Reaper drone over the Red Sea. And then the Houthis, after they pivoted from trying to target Israel directly to targeting what they alleged were Israel-linked commercial vessels in the Red Sea, the U. S. Navy was repeatedly engaged in shooting down drones and missiles, intervening to stop hijackings that were underway. And then there were several occasions when the U.S. vessels themselves were targeted and they shot down incoming projectiles. And then on the 31st of December, there was an incident in which there was a distress call. U.S. Navy helicopters went to check out the distress call from a commercial vessel. They came under fire from Houthi small boats, returned fire, sinking several of the vessels and killing 10 Houthi sailors.

And so there's this longer course of back and forth between the Houthis and the U. S. Navy raising questions about do any of these incidents rise to the level of hostilities that should have been reported by the White House and should have started the 60-day/90-day clock-ticking. I think one of the problems here is that we don't have a lot of comparative practice to judge from. The closest would be during the Tanker War of 1987 to '88. But, the situation in which U.S. forces are shooting down missiles and drones without underlying statutory authorization is fairly rare. And so, the Executive Branch hasn't really fleshed out what it's arguments are for shooting down a cruise missile or a drone. Does that constitute hostilities? I will say that the somewhat different context, different legal context at least, the Trump administration took the position that the downing of a drone constitutes not just a use of force, but an armed attack for the purposes of the UN Charter. But again, it's a different term of art, different legal context.

I think the clash on the 31st of December is pretty closely paralleled by some incidents the U. S. government has reported in the past, particularly, a few incidents during the Tanker Wars that the Reagan administration reported, citing the hostilities prong pretty clearly because they were hostilities. And so, it raises the question, why that incident at a minimum wasn't reported and why the clock didn't start then? I will just say that I have heard, based on my conversations in D.C., that the Biden administration may be leaning into an argument, at least in its explanations to Congress, that incidents involving what might be termed "unit self-defense" or on-the-spot actions authorized by CENTCOM or subordinate commanders don't constitute hostilities for war powers purposes. We can get into that further, but, such a theory might also explain their reporting practices even with respect to, the airstrikes in Yemen itself.

Scott R. Anderson: So, I do want to come back to that, but before we get there, let me turn to Matt and Jack. Jack, I'll start with you on this, if that's okay. You all peg your timeline saying April 11th is the hard problem for the Biden administration. Why do you have that slightly different perspective? I think it's maybe, perhaps, an issue of how you frame the problem. But, what leads you to say that's really the date that you're focused on in your analysis?

Jack Goldsmith: So, I think the simple answer is--Brian might be right, that the, the earlier, much lower level skirmishes were the events that really should have triggered, but, they weren't reported, the Congress didn't complain, and if, if that was when the clock started, then the Biden administration is in violation of the statute, and we don't have much to talk about. Brian might be right. There is this question, and we can probably come back to this, but, I'll just mention it here, about whether U. S. forces were introduced into hostilities there. And as Brian knows, he's written about it, there's an OLC opinion and some practice that says when you're acting in pure self-defense, kind of in a passive posture--not clear that's what it was--that that doesn't count for hostilities.

In any event, it seems to us that whatever the date was, whatever happened before, that certainly no later than the strikes, the joint operations with the United Kingdom using 150 munitions to target 28 locations in Yemen on January 12th, at that point, there seems to us little doubt that hostilities had definitely begun. And one piece of evidence for this, and it's not clenching evidence, is that that's when the Biden administration filed its war powers report the next day, I think it was. And so, we just start there on the theory that certainly, no later than that date, the clock started ticking in our view, or at least arguably ver seriously started ticking. And that's why we use that date instead of the earlier date. I think Brian would acknowledge that it's a more contested case about the earlier lesser skirmishes. It's very hard to say because there's so many different views on this, whether that counted. But, certainly the Biden administration didn't feel the need to file a letter then. And I don't know if there's been any activity and activity in Congress in the fall complaining or pushing back on that. I wasn't following it, but there certainly have been concerns since this month about the use of force without congressional authorization.

Scott R. Anderson: I think that that's right. That's really useful. Thank you, Jack. And I'll flag just one more thing of note here while we're getting into this contested territory of the beginning of any 60-, 90-day clock. It's worth noting, and correct me if I'm wrong, I don't believe either of the war powers reports we have actually concede that--certainly described situations as hostilities. I don't think, and nor do they concede, they're being filed under Section 4A1 of the War Powers Resolution, is what actually kicks.

Jack Goldsmith: Yeah, Brian, you correct me if I'm wrong, but I don't think that they ever do.

Brian Finucane: No, they seriously avoid either of those, references to hostilities explicitly or the section of the War Powers Resolution under which they're being filed.

Scott R. Anderson: Exactly. And I think that's worth flagging here. There's still arguments that tend to be retained. If you're doing that deliberately, presumably it's to keep an argument potentially open that even these war powers notices may not kick off the start of that class.

Jack Goldsmith: Yeah, they always do that. And again, as everybody on this call knows, and many of our audience knows, whenever the President sends one of these letters, the President claims that he's not even necessarily under a duty to follow the reports. It's always consistent with the War Powers Resolution. So every one of these letters has bui-t in defenses and leaves a whole bunch of arguments open for later. So you're right. They certainly weren't committed in the January 12th letter. And I didn't mean to suggest otherwise that they were--they didn't acknowledge or concede that they were engaged in hostilities at that point.

Matt Gluck: And just to jump in here quickly, I do think it's worth noting that, I believe, the only report that has ever stated that it was notifying Congress under section 4A1, was the first war powers report ever filed. So, while it's true that the Biden administration did not concede that they were entering into hostilities now, I do think it's important to give context that that's pretty standard practice in the War Powers Resolution letter. So, that in itself is not necessarily a significant or a notable departure. And so, I guess what I'm saying is I'm not sure we can read so much into that itself.

Scott R. Anderson: Totally fair. So, I think we've established that there's already a fair amount of ambiguity in the parameters of this debate. Some intentional by virtue of how the Executive Branch approaches these letters, some unintentional or, perhaps, incidental because it's just the nature of these attacks and how they fit with Executive Branch precedent in various ways.

But, let's now run through the different arguments we have out there about how, if the Executive Branch is past, or will at some point pass, the 60- to 90-day clock, past practice suggests they may argue that they do not have to cease these military operations, without, assuming they don't get congressional authorization in that window.

Because each of you in your pieces do, I think, a pretty exceptionally interesting job breaking down these different arguments--and I kind of want to start with like the smallest bore argument to the larger bore arguments. Brian, I'll come back to you on the first smaller boring, because I think you already introduced the concept and that's this unit self-defense concept, which is a bit of a term of art. Tell us what unit self-defense means, I guess, in the first place, and how exactly that fits and elaborate for us a little bit on what you said before about how that might justify the Executive Branch's position on some, or all of these attacks, not triggering the 60- to 90-day clock or not requiring a 48-hours report.

Brian Finucane: Right. So unit self-defense is a DOD concept. And what it's referring to is a provision typical in the rules of engagement under which if U.S. forces are deployed somewhere and they come under attack, that they can defend themselves. And that's sort of distinct from national self-defense, the defense of the United States itself. And so, as Jack referred to, there's language in a 1980 OLC opinion that states if U. S. Armed Forces are in a country lawfully and they're fired upon to defend themselves, the OLC doubts that would constitute a the introduction of armed forces in hostilities because they read "introduction" as requiring an active decision to place U. S. forces in a hostile situation, rather than be there passively and then having to respond. And so, that could be a distinction that the administration is relying upon in its reporting practice. Recently, I will note, that it's not a distinction that has been consistently relied upon, across time by all administrations. So, there are reports, including by the Reagan administration for the Gulf of Sidra, for Lebanon, and then for actions during the Tanker War in the Persian Gulf that were pretty clearly responses in unit self-defense where U. S. forces came under attack. They mounted an immediate response. In some cases, reports actually refer to the rules of engagement to defend themselves, but they weren't actions that were directed by the President himself.

And I will say that in response to one of the incidents in Lebanon in the 80s, the Reagan administration reported it, but then made certain arguments that, "Well, it's not really hostilities because the Marines were defending themselves.' And I think Jack has written about the Lebanon resolution and Congress's response here that the Senate Foreign Relations Committee issued a report pushing back against limited interpretations of hostilities and indicated that they regarded hostilities to include actions of self-defense or returning fire if fired upon.

And then the Resolution itself, it was a time-limited use of force authorization that Congress passed. The Resolution itself includes a provision saying that, "Look, Congress determined that section 4A1 of the War Powers Resolution was triggered on this date, and that date corresponds to a defensive action by U. S. forces in Lebanon." So, even if the Executive Branch in the past may have at times espoused this view that the term "introduction" sort of precludes on-the-spot defensive actions, then it's not necessarily a view that Congress has endorsed in the past. And it's not completely consistent, at least, with past reporting practices.

 But, I do think that this sort of interpretive move could explain not only some of the things we're seeing in terms of reporting for the [inaudible] in the Red Sea, but also reporting with respect to fighting in Iraq and Syria over the last several months as well.

Jack Goldsmith: But is it right, so I know about the past practice, but isn't it true that the more recent Executive Branch practice, especially as unit self-defense itself, has come to be relied on more in various contexts that-- am I right to think that the Trump administration and, perhaps, the Biden administration, at least, as a general matter, did not report on unit self-defense? Is that right?

Brian Finucane: It's hard to always say in part because you have these various AUMFs at play and to what extent the administration's relying on those. So in Iraq and Syria, when during the Trump administration, when U. S. forces were skirmishing with Iran-backed groups, the Trump administration relied on the '01 AUMF, and then for the Soleimani strike, also the 2002 AUMF. In other cases, it's hard to know what the legal theory is, in terms of the non-reporting. And that's one of the challenges in general, is what lessons do you draw from silence that's not explained? And if Congress doesn't push back on it.

Scott R. Anderson: Brian, I want to dig slightly deeper just on one aspect of this, because you flagged interesting aspects of these strikes, I think it was on Twitter. Which is some of the actions that were not correlated with War Powers Resolution report. So these are the between January 11th and January 22nd, and perhaps some strikes before January 11th, were, you noted, authorized by CENTCOM. And that a lot of these were described--some were shooting down drones and missiles in midair. Although it's worth noting, not all of those were going towards U.S. ships, or at least aren't described that way, in some of the accounts we've gotten from DOD. And a number of them were targeting, more recently and particularly in the last few weeks, facilities that are described as kind of being primed to launch --drone launch or rocket launch sites, presumably in Yemen. I think they have to be for the Houthis be operating these things. That were about to launch some sort of attack. Do one or both or all of these characteristics fit better with this particular excuse than others? Is the CENTCOM delegation part of it? Does it have to be headed towards a U.S. ship? So if you're shooting down a drone headed towards a non U.S. ship, this argument's harder to make. Which one of those fit best within this argument?

Brian Finucane: So, as Matt and Jack point out in their great piece in Lawfare [that] just came out today, the Biden administration's only reported two of the nine rounds of airstrikes on Yemen itself. And these were both the sort of large scale strikes undertaken jointly with the U.K., on the 11th and the 22nd. But, they did not report the intervening strikes on Houthi radar sites or missiles that CENTCOM has characterized as sort of like being prepared for launch. And so, there's a couple of noteworthy features. The two strikes that were reported on were clearly directed by the President because the letters say that "I directed this action." But, we also know that CENTCOM has been delegated authority to take strikes in self-defense. And that seems to have been the basis for these other strikes that weren't reported, that CENTCOM ordered these strikes on the basis of self-defense.

And there's a question about how broadly is it scoping self-defense. I think this is one of the questions that Senator Kaine and others posed to the administration in their recent letter. Because if you have a missile on a launcher, you don't necessarily know if this is headed towards, directed towards, a U. S. vessel, directed towards a commercial vessel, directed out into the Red Sea or the Gulf of Aden, or even towards Israel. DOD really hasn't gotten down, drilled down, into those details and its explanations. So I think it's both a question for War Powers reporting purposes of is the delegation to CENTCOM a relevant distinction in terms of hostilities? And then there's a factual question, are these actions actually by CENTCOM defending against attacks directed towards U. S. vessels?

Scott R. Anderson: Brian, there's one other aspect of this I want to drill down on before we get out that you captured in your piece. And that's, we've seen some unique practice around cases in the recent past, targeting what is kind of a new sort of military phenomenon, which is unmanned vehicles, like drones. That might also extend to other sorts of military equipment that don't have people on board, don't have, involve killing individuals.

And you notice that reporting around that has been a little different than some might expect, or at least a little more restrained. And that's maybe relevant here because some of these smaller incidents that aren't subject to war powers report on the 11th or the 22nd, some of them were targeting drones or missiles as opposed to individuals. Tell us what the practice is around these incidents and how it might apply here.

Brian Finucane: Well, this is sort of an emerging area, as you allude to. In the past when the U. S. has been shooting down missiles or aircraft, it's usually been in conjunction with a use of force authorization. I think the classic example would be the first Gulf War when the Patriot missile batteries were shooting at Scud missiles. And so, the emerging reality, where you have non-state actors, that have sophisticated missile capabilities or drone capabilities and the U. S. is confronting them without a use of force authorization is fairly unusual, and we don't have a good understanding of how the Executive Branch approaches the application of the hostilities prong or the War Powers Resolution to these situations.

That said, we've got a few incidents from the last few years to look at. The Trump administration had a couple of shoot downs of drones in 2019: one by the Houthis in Yemen; one by Iran, over the Persian Gulf in 2019 as well, which almost sparked retaliatory U. S. strikes, which the Trump administration also later cited in its Art. 51 letter regarding the Soleimani strike as constituting an armed attack that provided one of the predicates for the strike on Soleimani. So, at least as far as that goes, a fairly serious incident. And more recently the Biden administration shot down a Houthi missile over the UAE with a Patriot battery in 2022, which was the first U.S. usage of a Patriot battery since the invasion of Iraq in 2003. And that incident was not reported either.

So, based on these three incidents, shooting down drones or missiles, the administration has not treated in practice as hostilities. We don't have any sort of reasoned analysis from them, and maybe this will be forced out by some of the congressional inquiries that have been made about how the administration's parsing hostilities in this context.

Scott R. Anderson: Now Matt and Jack, you get into another aspect of this definition of hostility that has been with us that's particularly relevant to air campaigns like this. And that dates back to the 2011 Libya Office of Legal Council opinion and kind of broader case study that came out of the Obama administration.

Jack, you've written about this at some length in other pieces, as well as in this piece. Tell us a little bit about the understanding of hostilities that came out of that incident and how that may play into, explain, some of the conduct we're seeing here as well.

Jack Goldsmith: Sure. As Brian said earlier, the term "hostilities" and whether U. S. armed forces are in hostilities or in a situation where they're imminent, the term "hostilities" is crucial to the applicability of the War Powers Resolution and the clock, and yet it's not defined. And so, it's been an area where the Executive Branch has, from the beginning, staked out a definition that tried to narrow the circumstances in which a military engagement of sorts is a hostility.

I'll talk about the Libya episode in just one second, but it really goes back to 1975. I think Brian may have mentioned a letter in which the State Department in '75--and this has been, I think, this is the origins or at least one origin of this idea--said hostilities means a situation in which units of U. S. Armed Forces are actively engaged in exchanges of with opposing units. So, that very idea suggests that there's been a bilateral engagement of sorts and hostilities. And you'll recall in the Libya example, the United States with air sorties was engaged in significant strikes on Libya. But it was a rather one-sided affair. And when the ostensible 90-day clock approached the Obama administration, there was lots of internal dissension. And I think the President ended up deciding this issue, determined that that massive air campaign against Libya did not constitute hostilities within the meaning of the War Powers Resolution. And thus, that the clock wasn't even running. Basically because, as State Department Legal Advisor Harold Koh testified, he said that the mission was unusually limited, and I think by that he meant it was an air campaign, no troops on the ground. And then also he said that it involved limited exposure for U. S. troops and limited risk of escalation. And that definition is kind of consonant with the 1975 definition I gave. It suggests that, unless U. S. troops are on the firing line and unless there's a serious risk of escalation or something like that idea, we're not even in hostilities. Even if we're bombing the hell out of a country that doesn't count as hostilities.

So that's the background to the question now. But as Matt and I argue, this situation seems different. There's an exchange of hostilities, clearly. The Houthis have been firing and we've been firing back and they've been aiming at U.S. Forces and we've been aiming at them-- and private U.S. commercial ships as well. And it seems like here, as opposed to Libya, that there's a very serious chance of escalation. The matter has, in fact, been . Both sides have been threatening escalation. So, there's a very serious question whether this gambit--I'm not saying it's an airtight argument, the one I'm making--but this situation, if they're going to argue that this is not hostilities, it's a significant step beyond what happened in Libya in my judgment.

Scott R. Anderson: So that's really interesting. I want to push on that a little bit or just drill down on a little bit, because it's an interesting assumption about what the variables are. In the Libya case, I think it was a more extended, and in terms of sheer material, like substantially larger campaign than this has been so far, although we might yet get there. And part of the U. S. mission there was, as I recall, establishing air superiority, meaning taking out anti-aircraft capabilities. Here, I don't know. My sense is that there isn't a huge anti-aircraft capability concern. The troops involved, to the extent there are any, launching these rockets--to the extent they're not being launched from drones or from missiles far away, because we know a variety of platforms have been launching these things. It's not clear to me they're closer in reach. So, I guess, what are the big variables that's different here? Is it escalation? And then what is it escalation to? Is the assumption that this will escalate into something with Iran or with another major military power? Because the Houthis, I think even on a regional basis, I'm not sure we would say is the equivalent of a military power of the Libyan state in 2010 prior to the revolution. So I'm curious what you see as the relevant variables to differentiate in that way.

Jack Goldsmith: Well, again, none of this is clear. And all of this is subject to judgment, and it's usually the unilateral judgment of the Executive Branch. But, I just think this situation--first of all, the back and forth with the Houthis has escalated. It's gone through several rounds now. The rounds have, on some dimensions, been growing. And both parties have suggested, both sides have suggested, they're willing to continue to up the stakes until they prevail. So, that by itself suggests a threat of escalation. So that's the first point.

The second point is, I don't believe, someone correct me if I'm wrong, that there was any fire from Libya that was directed at U. S. forces that plausibly could have hit U. S. forces. And I don't believe that that's the case in the skirmishes in the Red Sea. So, this situation seems closer, much closer, to the idea of exchanges of fire with opposing units of hostile forces, to go back to the 1975 letter. And on those two dimensions, the threat to U. S. troops and the risk of escalation does seem different to me than Libya. But you're right. Libya was a much larger and more, at least over time, it was a more persistent and intense engagement. But it was unilateral, so to speak, and that's, I think, what the key point was. And I'm pretty sure that's what Koh emphasized, although, really, the testimony had four or five different factors, and this is a typical Executive Branch move. They say, "This situation is not like that situation for five reasons, and therefore, we don't have to abide. We can distinguish this case from that case." In any event, those are my two answers. Does that make sense?

Scott R. Anderson: They do. Brian, I'll let you hop in here. What do you take of on this?

Brian Finucane: So, 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 for a few reasons.

One: the proximity of large numbers of U.S. Military personnel. And I'm not talking about just on naval vessels. I'm talking about places like Djibouti, UAE. I mentioned a moment ago that back in 2022, U.S. shot down a Houthis missile incoming at a U.S. military base in the UAE. So, the U.S. has military forces in the region. And it's notable that the strikes conducted thus far, the way they've been conducted--the U.S. strikes conducted thus far--based on public, it appears all of them have been launched by the U.S. Navy. So either F-18s or Tomahawks. F-18s, it seems to be the case they're using standoff munitions, so cruise missiles, JASSMs, they're not actually dropping bombs of them from overhead.

And so, there's a few things that are notable about this. One: The use of exclusively naval assets means that they don't have to launch from bases in the region. And I think that may be a function of the sensitivity of the host countries for those strikes. They don't want to become targets for potential Houthi retaliation. And two: The nature of the munitions being used may signal a certain level of concern on the part of the U. S. military about the Houthis' ability to shoot down. U. S. warplanes. As I mentioned earlier, there was a downing of a Reaper--very different obviously than F-18--but downing of a Reaper back in November, and the Houthis had previously shot down drones over Yemen. So, they have some anti-aircraft capability, which may may be a cause for caution on the part of the U. S. military. And I think that, again, the more important part is the Houthis, based on their missile arsenal and the proximity of U. S. personnel in the region, they have an ability to escalate this conflict, even if that's not the intention or desire of the White House.

In terms of the strained interpretation of hostilities adopted in 2011 with respect to Libya, I'll just note that that seems to have been dropped even later on by the Obama administration. There was reporting, you and I remember this well during the counter-ISIS campaign regularly on the airstrikes there. There was a report filed in 2016 with respect to Tomahawk missile strikes on the Houthi radar facility. And then the Trump administration also seems to have not utilized the Libya theory because they reported strikes, for example, in 2017 and 2018 in response to the chemical weapons usage in Syria.

So the sort of even one-off airstrikes without any sort of bilateral exchange of fire seem to be reported by both the last two administrations. And so, even looking at the 1975 letter to Congress and the "exchanges of fire" language, in practice, it seems to be that administrations often report airstrikes with standoff munitions where there's no real likelihood that U. S. forces are actually going to be fired upon.

Scott R. Anderson: So there's another aspect of this concept or definition of hostilities you both get into your pieces. Matt, I'll turn to you on this. For what you call, somewhat politely, 'the renewed clock," Brian calls it, somewhat more evocatively, "salami-slicing." But because I'm a vegetarian, I'm going to go with renewed clock argument here. Tell us about this, Matt. How does this fit into this argument? Might it help explain this somewhat strange pattern we see of these two war powers reports amidst all these incidents?

Matt Gluck: Yeah, sure. So, I'll actually go back to 1987 and 1988 and the Tanker War, and Brian has a very instructive article on this in Just Security, so check that out. So, the Reagan administration during that war appeared to take this approach where it reported several different strikes that appeared to be part of the same individual set of hostilities separately in its War Powers Resolution reports. And one thing that's very interesting about the way it did that is it said explicitly in I believe three, three or four of those reports that the incident it was reporting was closed. So, it didn't just report them separately, but it said that, that the military action it was taking was finished. And so, then that would stop the clock. So that was pretty interesting that it said that expressly.

We may have seen this approach in the '90s in Bosnia during the Clinton administration. But then we see it most centrally--and Jack has a piece on this in Lawfare from 2014--that the Obama administration was reporting it's operations, it's airstrikes, against ISIS. In the summer of 2014, it sent many different letters, although, again, it seemed to be reporting on the same set of. But, it seemed to be sending these different letters. And the purpose of this is to, as Brian mentioned earlier, is to restart the 60- or 90-day clock that's kicked in, by the introduction of U. S. forces into hostilities and the reporting on those hostilities under Section 4, and then the termination provision is under Section 5B.

So we have that. We have those three precedents. And then it seems that the Biden administration is taking that approach again here. So we have the first report that's sent after the first large-scale attack with the U.K. on January 12th. And then, we have the Biden administration sending another report on January 24th after the second large-scale attack with the British and with the support of allies. And so, even though the Biden administration did not report on the smaller strikes that it conducted between January 12th and January 24th, it appears to be taking this approach that each of these larger-scale attacks, each of them is a separate operation, which restarts the clock so that the termination provision--Congress's power under Section 5B--doesn't kick in.

Just one more thing on that. So, one problem about this approach, in the current context specifically, is that if you read--so, I've gone through the press briefings that the White House and the Pentagon has given since the initial January 12th attacks, and they consistently describe the--really remarkably consistently, if you have time, take a look at some of the statements-- the description of the strikes. They have the singular goal of deterring Houthi attacks in the Red Sea, and that goal remains completely constant. And the Biden administration expresses a commitment to continuing this operation as long as the Houthis continue to attack. In fact, multiple times, the Deputy Press Secretary of the Pentagon, Sabrina Singh, has said, "It's up to the Houthis how long this will go on." so, even though the Biden administration is taking this splicing approach, it doesn't seem to actually reflect what's happening in Yemen.

Scott R. Anderson: But it's safe to say that the fact they filed the second report on January 22nd is probably good evidence that they are doing the salami-slicing approach because if it were seen as one continuing stint of hostilities, they would only have had to file the first report. Is that fair?

Matt Gluck: Yes, absolutely. What I'm saying is that seems to be what they are doing. I don't think that it's a legitimate representation of the hostilities themselves. Although it appears that they're taking that approach. As Jack said at the top, the War Powers Resolution has largely become a problem for the Executive Branch to deal with. Although it does have some important effects, as you've written about, it doesn't seem to be a constraining mechanism. And I think we're seeing that play out here.

Scott R. Anderson: So let's put ourselves in the universe that Brian already thinks we're in and that you all think happens on April 12th, where we have exhausted the 60- to 90-day clock. And we are now at the point where--unless it's possible that they are reserving the right to say, "Our war powers letters had nothing to do with hostilities. We were just happening to submit them under other sections of parts of Section 4, not A1. Let's say the Biden administration concedes, "Oh no, those were about hostilities." And now we are in a situation where we're past the 60- to 90-day clock. We're supposed to get congressional authorization and they haven't, or they haven't tried.

There's two arguments left that you all flag in your respective pieces, and particularly Matt and Jack, you emphasize in yours, that say, "Here are other ways that the administration could go with this." I think the first one is the statutory argument, because I think we can do away with this relatively succinctly.

Brian, actually, I'll turn to you on this. I think you're maybe a little more skeptical of this, and we can see if Matt or Jack, who are also quite skeptical, but maybe give it a little more credence, want to weigh in on this. Do you see a statutory argument here that might be deployed in any sort of reasonable or even colorable way to pull this in, as we saw happen in the cases you mentioned before, like in Iraq in 2014?

Brian Finucane: I don't see a semi-plausible argument, but I can imagine one might be advanced if the administration were sufficiently desperate. You and I both lived through the 2014 experience. I think there were arguments being teed up the end of the Trump administration that the 2001 AUMF might apply to Iran on the basis that al-Qaeda leadership is essentially under house arrest in Iran, and therefore Iran is harboring al-Qaeda. That was critiqued by commentators outside at the time. But people might try to bootstrap one move further from that and say, "Well, based on connections between Iran and al-Qaeda, and then based on Iran's backing for the Houthis, ergo that somehow magically the 2001 AUMF now applies to the Houthis.

I don't think, as I said, that's a semi-plausible argument. But, as we saw with 2014 and ISIS, it didn't seem to be a great argument that the 2001 AUMF applied to ISIS at the time either, but now people sort of live to deal with it.

Jack Goldsmith: We suggest that the least bad argument is that the 2001 AUMF authorizes force against the Houthis, but, as we explained, it barely passes the laugh test.

Scott R. Anderson: I will say from my perspective, I'm not sure it does, but, I take your point there.

Jack Goldsmith: You think it does pass the laugh test?

Scott R. Anderson: I think it does not. I think that's a far harder to make argument, that I think would be a last resort.

Jack Goldsmith: No, I agree with that. I completely agree with that. They have many less weak arguments before they get to that one.

Scott R. Anderson: And so, the last issue here that you all, particularly in your piece, Matt and Jack, is what you describe as an Article II self-defense override argument. An argument that the Constitution empowers the president in certain relevant circumstances to ignore statutory constraints.

Jack, let me come to you on that. Tell us a little bit about what this theory is, which I think it's fair to say is something that is-- to my knowledge, the Executive Branch has never quite expressly articulated, although they've gotten close recently, including in the Soleimani OLC opinion of kind of hinting at it. But has long been talked about and people kind of see as a likely or strongly suggested Executive Branch argument. Tell us how that fits in here and might apply to these facts as we have them.

Jack Goldsmith: Sure. So I don't think that this will be the standalone argument that they rely on. It could conceivably be used as a background argument to support other statutory arguments. The argument begins from the premise that the President's Article II self-defense powers are his most robust military powers. And this goes back to the founding in a quite different context where, but where--but it's been recognized from the beginning, that the President has a core of self-defense powers directly under Article II. And presidents have, through persistent practice, expanded that notion of self-defense. And the unit self-defense idea that we were relying on earlier, ultimately, in my view, derives from this Article II idea.

So, the argument here would be that maybe the War Powers Resolution can limit the President's offensive uses of force, and maybe the clock can apply there, but that it would violate Article II if Congress basically--if the War Powers Resolution was [inaudible], and the clock limitations were applied to prevent the President from defending the troops out in the field, so to speak that that would be the height of Article II, where Congress's powers to trump Article II were at its weakest, and that the President could argue that his self-defense powers to protect the troops to the extent that all of these actions can be derived from self-defense. We'd have to make that argument, but certainly many of them can, and we'd have to talk about how broadly the self-defense conception would be.

But that the President could disregard this restriction because it would violate his ability to protect the troops. Now, at some level, that seems right in the sense that it doesn't seem--if the President is in the field, leading the troops in an authorized fashion, either under Article II or a statute, and the troops are under attack, the President could plausibly assert a self-defense power.

It has super broad implications as we discussed because we have so many troops in so many places that are under attack in so many different ways. But in any event, that's the basic argument. And I just think it's extremely unlikely that OLC will rely on that argument. I think it will be the hostilities argument or the salami-slicing argument or some combination that they rely on. But they could emphasize the self-defense posture and the President's special and robust powers in the self-defense context as a basis either through constitutional avoidance or through contextual argument for supporting the statutory argument. I wouldn't be shocked to see it used in that context.

Scott R. Anderson: So we're almost at the end of our time together, but I want to take a moment to step back and both make a prediction and then an assessment about what this all means. How is it that each of you think the Biden administration is likely to proceed here? Let's assume that the current status quo that we're seeing, which is a series of these smaller incidents with occasional needs to take larger comprehensive coordinated airstrikes against the Houthis; basically what we've seen over the last few months continues for the next six months.

How do you think the Biden administration will approach that? And then what are the stakes of that? What are the pros and downsides that we're dealing with that people should take into account when they're thinking about this war powers question? Matt, let me start with you.

Matt Gluck: Yeah, I think the administration--obviously it depends on what happens tactically--but I think the administration is most likely too take this renewed clock or salami-slicing argument.

And that's what's suggested by their reporting so far. It could be that, and I could see this happening, that they start to, as Jack said, use some of these background statutory or constitutional arguments. But I see them, I think there will be more joint attacks with the U.K. and backed by these partner forces. And I think the administration will continue to report on those and argue that they each represent discrete uses of force.

What does it say about the War Powers Resolution? I think it affirms what we thought, that the constraining power of the War Powers Resolution is pretty weak. There've been some members of Congress who have already made arguments that the Biden administration has been acting beyond the scope of its authority, but, I think there will be some noise. I think ultimately it represents the weakness of the War Powers Resolution in this context. I don't think that necessarily--I think the War Powers Resolution does some really important things for larger conflicts, but for these types of conflicts, I think it's pretty weak.

Scott R. Anderson: Brian, how about you?

Brian Finucane: Legal prediction, I agree that the administration is likely to continue relying on creative statutory interpretations and creative readings of hostilities when the clock starts and stops. I don't think they're going to go to Congress and seek an AUMF for a number of reasons, including because I don't think the President wants that in an election year, doesn't want to formally own a new war in the Middle East in quite that way.

In terms of policy, I think the administration recognizes that the sort of steps that have been taken so far--use of military force, this terrorism designation for the Houthis--are not going to have much of an effect. You heard the President's admission last week that the strikes were not working to stop Houthi attacks.

And so, there may come a time where they eventually have to grapple with the underlying reason for the Houthi attacks in the Red Sea, which is the Houthi response to the war in Gaza and try to address the conflict there and deescalate things regionally. I think that their outreach to the Chinese, to get the Chinese to lean on the Iranians, to lean on the Houthis is not going to be super successful.

So I think after they exhaust other options, I think they will come back to try to--hopefully they'll come back to addressing the underlying cause again, which is the conflict in Gaza.

Scott R. Anderson: And Jack, I'll give you the last word.

Jack Goldsmith: I agree that the administration is likely to justify not violating the clock through some combination of interpreting hostilities and the so-called salami-slicing argument.

I also agree that President Biden is extremely unlikely to seek authorization, not just in addition to the reason Brian stated, the domestic reason. I don't think he wants to elevate the stakes in the Middle East, which would happen if there was an official authorization of force against the Houthis.

And the last thing I'll say is, this whole discussion and this whole dance that we go through every time there's a war like this about where the lawyers sit around and look at the precedents and see which way the administration lawyers are going to come up with to get out from underneath the clock. And we all know that it's going to get out from underneath the clock if it wants to. It really is just revealing of, as I said a second ago, what a game the War Powers Resolution has become. 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, using force as the President sees fit. And I don't think that's ever going to happen. I don't think that, except in extreme circumstances that we've seen intermittently over many decades, that Congress has the wherewithal to impose any pain on the President. So this is all an internal game with the lawyers, as far as I can tell.

Scott R. Anderson: We will have to leave the conversation there for now. But Brian, Matt, Jack, thank you for joining us here today on the Lawfare Podcast.

Matt Gluck: Thanks for having me.

Jack Goldsmith: Thank you.

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