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Biden’s War Powers Called Into Question
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Biden’s War Powers Called Into Question

Analyzing the legal authority underpinning the Biden administration’s recent strikes in the Middle East.

Happy Thursday! We’ve come a long way since the Boston Tea Party. After an American study claimed the perfect cup of tea included a pinch of salt, the U.S. embassy in London quickly clarified it would never be U.S. policy to put salt in the sacred British cuppa. “The U.S. Embassy will continue to make tea in the proper way,” the embassy spokesperson wrote. “By microwaving it.” God bless America. 🇺🇲

Quick Hits: Today’s Top Stories

  • An explosive projectile struck a United Nations training facility housing refugees in southern Gaza on Wednesday, U.N. officials reported, killing at least nine people and injuring 75 others. “We deplore today’s attack on the U.N.’s Khan Younis training center,” said U.S. State Department spokesperson Vedant Patel. “Civilians must be protected, and the protected nature of U.N. facilities must be respected, and humanitarian workers must be protected so that they can continue providing civilians with the life-saving humanitarian assistance that they need.” The U.N. pinned blame on tanks—which are deployed only by Israel—but the Israeli Defense Forces (IDF) claimed an early examination showed that its forces had not struck the center. The IDF is investigating whether the blast was instead caused by Hamas fire.
  • Yemen’s Houthi rebels attacked two U.S.-flagged ships carrying cargo for the U.S. departments of Defense and State in the Red Sea on Wednesday. The U.S. Navy was accompanying the two Maersk vessels and intercepted some of the incoming fire from the Iranian-backed group, and Maersk said in a statement that the ships, cargo, and crew were unharmed in the attacks.
  • A Russian military transport plane crashed in Belgorod, Russia, near the Ukrainian border on Wednesday, reportedly killing everyone on board and prompting conflicting reports of the crash’s cause and the plane’s manifest. Moscow claimed Ukraine shot down the cargo plane, which was said to be carrying Ukrainian prisoners of war to the site of a prisoner exchange. Ukrainian officials have confirmed that a prisoner exchange was set to take place, but Ukrainian outlets have reported that the plane was carrying missiles, not the prisoners. 
  • The United Auto Workers (UAW) union on Wednesday endorsed President Joe Biden, who last year became the first sitting president to appear on a picket line when he joined striking UAW members in Michigan. UAW initially delayed endorsing Biden last year over concerns about what his support for electric vehicles could mean for union jobs in the industry. “Our endorsement must be earned and Joe Biden has earned it,” Shawn Fain, UAW president, said during a joint appearance with the president. Fain went on to label former President Donald Trump a “scab.” 
  • Ohio legislators banned gender-transition treatment for minors on Wednesday, overriding a December veto by Republican Gov. Mike DeWine. The bill also ends treatments like puberty blockers and hormone replacement therapy, and bars transgender athletes from competing in girls’ sports in the state. Young people already undergoing such treatments in the state will be allowed to continue, but that grandfather clause does not apply to those coming from other states to receive treatment. DeWine signed an executive order earlier this month to ban gender-transition surgeries for children under 18.
  • The chair of the Arizona Republican Party, Jeff DeWit, resigned Wednesday after audio was released in which he seemingly attempted to bribe former Arizona gubernatorial candidate Kari Lake not to run for U.S. Senate. In a statement released yesterday, DeWit claimed he was “set up” by Lake, who, he says, knew she was being recorded, adding that he was given “an ultimatum from Lake’s team: resign today or face the release of a new, more damaging recording.” Senior advisors to Lake denied those claims

Where the War Powers Are

n this handout image provided by the UK Ministry of Defence, a Royal Air Force Typhoon FGR4 is prepared for take off to carry out air strikes against Houthi military targets in Yemen at RAF Akrotiri on January 22, 2024 in Akrotiri, Cyprus. (Photo by MoD Crown Copyright via Getty Images)
n this handout image provided by the UK Ministry of Defence, a Royal Air Force Typhoon FGR4 is prepared for take off to carry out air strikes against Houthi military targets in Yemen at RAF Akrotiri on January 22, 2024 in Akrotiri, Cyprus. (Photo by MoD Crown Copyright via Getty Images)

What do former Secretary of State Hillary Clinton’s 2016 running mate and one of former President Donald Trump’s biggest cheerleaders in the Senate have in common? No, this isn’t the set-up of a bad joke—Sen. Tim Kaine of Virginia and Sen. Mike Lee of Utah sent a letter to President Joe Biden on Tuesday expressing their shared concerns over the limits of presidential power.

The bipartisan letter—signed by Democrats Kaine and Sen. Chris Murphy of Connecticut and Republicans Lee and Sen. Todd Young of Indiana—called for a clarification regarding Biden’s authority to strike the Iranian-backed Houthis in Yemen without congressional approval. As commander in chief, a president is constitutionally charged with defending the security of the U.S., and this power may be expanded through separate authorizations for use of military force (AUMF). The legal definitions and timelines are tight, however, and Biden’s recent actions against Iranian-sponsored terror in the Middle East have sparked much debate.

The U.S. military, in partnership with the U.K. and several other allied nations, has thus far launched eight retaliatory airstrikes targeting Houthi infrastructure in Yemen since January 11, with the ultimate goal of ending the group’s attacks on international shipping in the Red Sea. These efforts have not succeeded to date—as evidenced by yesterday’s attack on two U.S.-flagged ships carrying cargo for the U.S. departments of Defense and State—but Biden has insisted the U.S. campaign will continue. 

Biden did not seek Congress’ permission before launching the first round of airstrikes, though he did inform the legislative branch of his action pursuant to the War Powers Act of 1973, which was passed in order to clarify the separation of war powers between the executive and legislative branches. Several progressive Democrats and populist Republicans voiced concern over the strikes, arguing they violated the constitution by going over the heads of lawmakers—but while Section 1 of the Constitution does grant Congress the power to declare war, Section 2 of the Constitution gives the president the authority to call the military to act defensively. 

By responding to the Houthi attacks on U.S. ships, some experts say Biden is acting squarely within his rights as commander in chief. “Ships that fly the American flag are U.S. territory, so the president can defend American shipping,” said Stephen Rademaker, who worked on national security issues in the White House and the U.S. Senate and House of Representatives, and served as an assistant secretary of state from 2002 through 2006. “It’s like the Barbary pirates in the early 1800s. Congress didn’t authorize the defense of American shipping when it was attacked by the Barbary pirates in 1801, but the Marine Corps Hymn describes how the U.S. Navy went off to suppress piracy in the Mediterranean to defend American shipping when that happened.”

Tuesday’s bipartisan letter does not question the president’s right to use the military defensively. “Directing military action to defend U.S. personnel and military assets from attacks and imminent attacks is clearly within the boundaries of this presidential power,” the senators wrote. They do, however, have concerns over just how far this power goes, noting that “most vessels transiting through the Red Sea are not U.S. ships, which raises questions about the extent to which these authorities can be exercised.” Referencing Biden’s own admission that these strikes seem to be a part of a long-term campaign, the senators stated that there was “no current congressional authorization for offensive U.S. military action against the Houthis.”

Section 2 of the Constitution—and the War Powers Act of 1973—place a 60-day timeline on a president’s defensive actions. U.S. strikes in Yemen began on January 11, but this does not mark the first instance of conflict between American and Houthi forces in the Red Sea. “There’s this longer course of conduct, this course of hostilities, that goes beyond just attacks on U.S. vessels and the Navy responding to those attacks to defend U.S. forces,” said Brian Finucane, who studies American use of military force and war power reforms as a senior advisor at the International Crisis Group. Finucane pointed to the USS Carney’s interception of missiles launched from Yemen toward Israel over the Red Sea in October as a more appropriate start date. “Essentially, the [USS Carney] was acting in collective self defense of Israel, which may be legitimate, laudable—but presents different constitutional war powers issues than if it were just defending itself.”

Kevin Carroll, a Dispatch contributor who served as senior counsel to Homeland Security Secretary John Kelly and House Homeland Security Committee Chair Peter King, argued that this collective defense makes for a stronger case for the Biden administration. “If they insisted upon finding some statutory basis beyond the president’s inherent constitutional powers for the strikes, what I would have done was cite the 1952 [Mutual Defense Assistance Agreement] between the United States and Israel,” he told TMD. “The Houthis have been launching missiles towards Israel. They’ve stated that they’re attacking U.S. and allied shipping because of our support for Israel. They could have cited that mutual defense treaty with Israel if they thought they needed some additional legal basis.”

Innate constitutional powers aside, the president does have other legal methods of deploying military power—as have been on display this past week. The Biden administration carried out an airstrike in Somalia on Sunday that killed three militants associated with al-Shabaab, an al-Qaeda affiliate, and on Tuesday targeted Iranian-backed militias in Iraq. In both instances, the Biden administration acted under existing AUMFs: a standing AUMF from 2001 allowing the U.S. to target al-Qaeda and its affiliates, and an AUMF from 2002 against Iraq. Defense Secretary Lloyd Austin described the most recent strikes in Iraq as a “direct response to a series of escalatory attacks against U.S. and coalition personnel in Iraq and Syria.” 

That these AUMFs have continued to be used 20 years after their original passage is not without critics—chief among them Sen. Kaine, who has tried multiple times over the last few years to repeal what he calls “outdated” AUMFs. Though both efforts have passed at least one chamber with bipartisan majorities, each remains stuck in Congress. 

Rademaker believes that there is an inherent uncertainty in relying on an old AUMF to justify modern military operations. “We were attacked by al-Qaeda, and now we’ve got all these groups that call themselves al-Qaeda. … Is that the same organization that Congress authorized the use of force against?” he told TMD. “Certainly some of them are going by the same name, so I guess that tends to support the executive branch’s argument that the 2001 authorization can extend to Somalia, if they’re attacking al-Qaeda or a group that’s aligned with al-Qaeda. But I don’t know that there would be worldwide authority to attack any group that can be labeled terrorist pursuant to the 2001 AUMF.”

Whether Biden will need to seek additional authorization to continue striking Houthi targets in Yemen will, in great measure, depend on just how long the campaign takes. “Even if you accept that the president has authority to conduct a one-off strike to defend U.S. forces, and I think most people would, that’s not actually the scenario we’re confronted with here,” Finucane told TMD. “We’re confronted with a scenario where U.S. naval forces have been engaged in military skirmishes with the Houthis for over two months, and it sounds like the administration intends for this to be a sustained campaign.”

If Iranian-backed terrorist organizations—in Yemen, Iraq, or elsewhere—continue to threaten U.S. territory and personnel, however, the pressure on the Biden administration to act will remain. “If they wait for Congress to take action, you’ll have a ship full of U.S. sailors at the bottom of the Gulf,” said Carroll. “When you’re in a shooting war, which is what this is, and you’ve got American warships and American service members under fire, the commander in chief needs to execute his responsibilities.”

Worth Your Time

  • The Foreign Sovereign Immunities Act of 1976 allows countries to act with impunity in the U.S. in many cases as a way to keep foreign policy from getting litigious. But after Hazim Nada, an American who had a profitable oil-trading business, found himself the target of a scheme by the United Arab Emirates to spread false information about his business, he wondered if he could sue. “About six years ago, Nada was puzzled to see a blizzard of bogus articles on blogs and in publications that linked him to terrorism or political Islam,” David D. Kirkpatrick reported for the New Yorker. “As the scurrilous allegations multiplied, reputation-conscious banks cut off his company, Lord Energy. It quickly collapsed into bankruptcy, and only after its demise did Hazim learn the true story. An anonymous group who said that they were hackers showed him thousands of pages of emails and other files stolen from the computer systems of a Swiss private investigator, Mario Brero of Alp Services. The documents revealed that the U.A.E. had paid Alp millions of dollars for a successful multiyear disinformation campaign to put Nada out of business.” Nada filed a lawsuit against the Emirates yesterday and, despite facing long odds, there is hope for his case. “The Foreign Sovereign Immunities Act specifically carved out an exception for commercial activity by a foreign state that either occurs in the U.S. or has a direct effect there. Alleging a conspiracy to commit fraud, to spread false and derogatory information about Lord Energy, and to manipulate markets, the suit seeks more than $2.7 billion in damages and compensation.” 

Presented Without Comment

President Joe Biden, at a campaign stop in Virginia on Tuesday night: “Hello, Virginia! And the real governor, Terry McAuliffe!”

Also Presented Without Comment

White House Press Briefing, January 24, 2024:

Q: Different topic. Is election denying a joke now?

KARINE JEAN-PIERRE: What do you mean? You have to say more than just make a random statement (inaudible). (Laughter.)

Q: Why did the President say, “Hello, Virginia! And the real governor, Terry McAuliffe”?

MS. JEAN-PIERRE: He was making a joke about Terry M—he was making a joke— 

Q: What’s the joke?

MS. JEAN-PIERRE: He was—I mean, if you play it back, it’s clearly that the President was making a joke. 

Q: What’s the joke?

MS. JEAN-PIERRE: He was making a joke about McAuliffe’s previous term as governor.

Also Also Presented Without Comment

Mediaite: [Rep.] Marjorie Taylor Greene Puts Anti-Trump Republicans on Notice: ‘We Are Completely Eradicating Them from the Party’

Toeing the Company Line

  • In the newsletters: The Dispatch Politics crew covered the New Hampshire results and Nikki Haley’s path forward, Scott argued the ongoing safety concerns with Boeing aircraft signal the dangers of the government picking winners and losers, Jonah reflected (🔒) on the GOP’s demand of blind loyalty to Trump, and Nick wondered if (🔒) Nikki Haley could use the results in New Hampshire to help accelerate the crack-up of the Republican Party.
  • On the podcasts: Sarah and David discussed the emergency docket ruling on razor wire at the border on Advisory Opinions, while Brian Riedl joined Jonah on The Remnant to discuss the national debt and what has to be done about it.
  • On the site: Megan Stewart checks in on recent efforts to lower prescription drug prices.

Let Us Know

Do you think Congress should repeal long-standing authorizations for use of military force?

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James Scimecca

James Scimecca works on editorial partnerships for The Dispatch, and is based in Washington, D.C. Prior to joining the company in 2023, he served as the director of communications at the Empire Center for Public Policy. When James is not promoting the work of his Dispatch colleagues, he can usually be found running along the Potomac River, cooking up a new recipe, or rooting for a beleaguered New York sports team.

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Mary Trimble

Mary Trimble is the editor of The Morning Dispatch and is based in Washington, D.C. Prior to joining the company in 2023, she interned at The Dispatch, in the political archives at the Paris Institute of Political Studies (Sciences Po), and at Voice of America, where she produced content for their French-language service to Africa. When not helping write The Morning Dispatch, she is probably watching classic movies, going on weekend road trips, or enjoying live music with friends.