On Wednesday, the Senate voted to advance a resolution invoking the War Power Act and giving President Trump 90 days to end American involvement in Yemen. Mark Weisbrot at The Guardian and Alex Ward at Vox both provide good explanations of the significance of the vote and the very strong chance that the resolution is set to win strong backing in its upcoming floor vote.
The war in Yemen is, of course, a humanitarian crisis of catastrophic proportions. Tens of thousands of children have died of starvation, and the breakdown of the public health system has produced dire consequences. The sooner that the United States ends its involvement in Yemen, the better.
The vote represents the first time that the US Senate has invoked the 1973 War Powers Resolution in an effort to end unauthorized US military participation in a war.
The War Powers Resolution states explicitly that the president can only introduce US armed forces into a situation of hostilities or imminent hostilities if there is congressional authorization (with an exception for some responses to attacks on the United States, which no one is claiming would apply in this war).
This reiterates what is provided by article I of the US constitution, as a number of senators pointed out in Wednesday’s debate. The law also spells out the means by which Congress can assert its constitutional authority to end unauthorized US military participation in a foreign conflict, which is precisely what the Congress is doing.
The historic significance of restoring the constitutional power of Congress on matters of war and peace was not lost on the Trump administration, its allies, and all who believe that war is a presidential prerogative. They lobbied hard to defeat this resolution. US secretary of state Mike Pompeo and defense secretary James Mattis held a classified briefing with senators before the vote, and the White House threatened to veto any such legislation if it passed. But 14 Republicans joined all 47 Democrats to rebuke them.
(You can watch long-time LGM friend and Sanders foreign-policy aide Matt Duss explain the innovative, but entirely correct, reasoning behind invoking the War Powers Resolution here.)
Of course, what happens next is, as Ward puts it, “murky.” Even if, during the 116th Congress the House approves the resolution and the Senate still goes along, it remains unclear if anything will actually happen. Many dispute the constitutionality of the so-called “legislative veto” triggered by a concurrent resolution. I’m sure that Scott and Paul can say more about this, but my own sense is that this aspect of the War Powers Act is clearly constitutional; it enforces the black-letter power of Congress to declare (or not) war. But what the Supreme Court would do, including dodging the issue as a “political question,” remains uncertain.
There’s a certain resonance to the timing of these developments. The War Powers Resolution was passed over President Nixon’s veto—that is, during an administration whose echoes reverberate in the current one. Moreover, if Congress does finally claw back some real control over American involvement in Yemen then it will—to the best of my knowledge—prove the first significant successful legislative rebuke of a president’s freedom to materially back a party in a foreign conflict since the second Boland amendment, which prohibited the Reagan administration from supporting the Contras.
After the Iran-Contra scandal broke (which revealed covert funding for the Contras), Congress investigated the Reagan administration’s defiance of the Boland Amendment and learned that between 1984 and 1986 Reagan and the NSC staff had raised $34 million for aid to the Contras from third countries such as Saudi Arabia. Millions more were raised from donors at conservative fund-raisers.
Initially, these funds were deposited in a Swiss bank account controlled by the Contras, but in July 1985 Lieut. Col. Oliver North, a member of the NSC staff, took control of the money. For 19 months after Congress banned funding to the Nicaraguan Contras, the Reagan administration continued to conduct a covert war in the Central American country.
In July 1989 New York Democratic Sen.Daniel Patrick Moynihan introduced a bill designed to permanently keep a president from subverting the wishes of Congress by making it a felony to do so. Reagan’s vice president and successor, Pres. George H.W. Bush, promised to veto the bill if it passed, arguing that it was an intrusion into a president’s constitutional right to conduct foreign policy. The bill passed both houses of Congress, and Bush vetoed it as promised.
In truth, this whole sordid mess should’ve made it clear that the era of Nixon was not over, and that the cancer of executive-branch lawlessness remained within the sinews of the Republican party.
George H.W. Bush, of course, was deeply complicit in all of this. The next time you hear a Republican commentator claim that Trump would cross a line if he uses the power of the pardon to protect himself, as Scott notes, keep in mind how Bush likely did precisely that in 1992:
On December 24, 1992, President George H.W. Bush granted pardons to six defendants in the Iran-Contra Affairs. The defendants were Elliott Abrams, a former assistant secretary of state for Central America; former National Security Adviser Robert McFarlane; former CIA officials Duane Clarridge, Alan Fiers, and Clair George; and former Secretary of Defense Caspar Weinberger.
Prior to these pardons, Abrams had pleaded guilty to two misdemeanor charges leading to two years of probation and 100 hours of community service; McFarlane pleaded guilty to one felony charge and received two years of probation; Fiers pleaded guilty to two misdemeanors and was given one year of probation and 100 hours community service; and George had been found guilty of two felony charges but had not yet been sentenced.
However, Bush issued the pardons of Clarridge and Weinberger preemptively, a move reminiscent of President Gerald Ford’s pardon of his predecessor, Richard Nixon, following the Watergate scandal. According to the Independent Counsel, the pardon of an official as high-ranking as Weinberger, whose trial was scheduled to begin on January 5, 1993, raised questions as to what Bush might have hoped to conceal. Walsh had intended to call Bush as a witness in the trial, although Weinberger denied that any of his notes from meetings dealing with Iran-Contra contradicted past statements by Bush and former President Ronald Reagan.
In defense of these six pardons, Bush stated, “[The] common denominator of their motivation—whether their actions were right or wrong—was patriotism.” He criticized the years-long investigation run by Walsh as reflective of “what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences.”
Walsh released a response saying, in part, “[The] pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office—deliberately abusing the public trust without consequence. Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens.” He concluded, “The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger.”
As we settle in for the hagiography—and I want to stress that the Bush 41 showed significant political courage in signing necessary tax increases, as well as remarkably good foreign-policy judgment in his handling of the end of the Cold War and the Iraq War—let’s not forget the common threads that run through every Republican presidency from Nixon to Trump.