The Lawfare Podcast: Greg Johnsen and Scott Anderson on the Fight Against the Houthis

Greg Johnsen: The administration knew it couldn't do nothing, but it was also very, very wary of getting caught up in a broader war. And I think we're sort of on that path right now, in that the Houthis are going to respond and then the U.S. Will respond again. And where do you draw the line or how do you degrade the Houthis sufficiently so that either they no longer have the desire or they no longer have the capacity to carry out these attacks? And I think we're a long, long way from that right now.

Matt Gluck: I'm Matt Gluck, Research Fellow at Lawfare, and this is the Lawfare Podcast, January 16th, 2024. Over the last two months, Houthi militants have waged more than 27 attacks against merchant shipping and U.S. And partner forces in the Red Sea, the Gulf of Aden, and the Bab al-Mandab Strait, purportedly in response to the war in Gaza.

These attacks have significantly disrupted global shipping and surged the Middle East into an even more precarious security situation. Following a large scale Houthi attack on U.S. And British ships, the U.S. And U. K., on January 11, launched over 150 munitions targeting almost 30 Houthi sites in Yemen.

The U.S., on January 12th, carried out another strike on a Houthi radar facility. The Houthis have since retaliated with multiple strikes targeting U.S. Forces. Yesterday, the Houthis, for the first time, successfully struck a cargo ship owned and operated by the United States. I sat down with Gregory Johnson, the Associate Director of the Institute for Future Conflict at the U.S. Air Force Academy, and Lawfare Senior Editor, Scott Anderson, to discuss the spate of Houthi attacks, the U.S. Response, and the associated domestic and international law questions, and where the fighting is likely to go from here. What can history tell us about the possible paths forward? Why did the U.S. Act when it did? What's in it for the Houthis? We chewed over these questions and more. It's the Lawfare Podcast, January 16th: Greg Johnson and Scott Anderson on the fight against the Houthis.

Greg, to get us started, could you set the scene for listeners? We are recording this on Friday afternoon, January 12th, an important time for this conversation. What is the current situation in the fight with the Houthis and what has happened over the last 24 hours or so?

Greg Johnsen: Yeah, thanks for that, Matt. So, last night, I think as most of our listeners will know, the U.S. And the U.K., with the support of a number of other countries, carried out airstrikes in Yemen against the Houthis in retaliation for Houthi attacks in recent months on commercial shipping through the Red Sea.

The U.S. And the U. K. carried out attacks on 16 different locations and somewhere between about 60 to 72 strikes. And, so, the Houthis today, being Friday, the day of communal prayers in the Middle East, there have been large scale demonstrations in Sana'a, the capital city in northern Yemen that the Houthis hold, as well as other cities under Houthi control. Houthi leadership has vowed retaliation. There have been some early reports that the Houthis may have fired a couple of missles, still waiting for confirmation on that.

But, I think that's the situation: U.S. and U. K. airstrikes last night, Thursday night, U.S. Time; and demonstrations today; and waiting on a Houthi, what, if any, Houthi response there will be.

Matt Gluck: Thank you. That's very helpful scene-setting. Scott, I'd like to discuss the legal justification for yesterday's strikes, and we'll start with U.S. Domestic law. So could you walk us through the domestic law justification for these attacks? Is it just pure Article II authority?

Scott Anderson: That's the most likely argument. We haven't actually gotten-- at least that I've seen as of yet, and I just checked the White House's website five minutes ago--the sort of report or statement from the Executive Branch clearly laying out and kind of officially declaring, "Here's what our legal basis was." We had a statement by President Biden laying out, essentially articulating this was a self-defense action. I don't believe it's specifically attributes or states, "Here's the legal base for what we're doing." But Article II is the clearest answer here, probably the only clear answer or highly, relatively uncontroversial one.

 In other contexts, like airstrikes against Iran-backed militias in Iraq and Syria, there is a nexus with actually two separate authorizations for use of military forces statutes from 2001 and 2002 enacted that are used to authorize various U.S. military activities, sometimes controversially in other theaters. The nexus here in regards to the Houthis, in regards to Yemen-- far, far weaker, if there is one. I don't think there is very colorably one in regards to these groups. A little different if you're talking about al-Qaeda in the Arabian Peninsula and other groups where the 2001 AUMF has been used.

That's not the case here. Instead, it's almost most likely what the president is relying on, and what I expect to see, is that this is the president's constitutional authority, inherent constitutional authority, meaning it's not authorized by Congress. The president is allowed to pursue this sort of action at least where Congress has not said he's not allowed to pursue it, and so long as it's in pursuit of U.S. national interests, and the level of force used, the anticipated hostilities arising from it, does not rise to the level of a war in a constitutional sense. That is one of these kind of convoluted phrases lawyers in the Executive Branch should settle on. But, it basically means that the anticipated hostilities to rise from this don't rise to the level of a major armed conflict, which seems unlikely here, although, that doesn't mean the situation might not escalate in some ways.

We'll know for sure once 48 hours have fully wound down, plus some, because it takes a little extra time for information to leak to the press. Under the War Powers Resolution, the Executive Branch is supposed to file a report if the president takes action without statutory authorization, such as under his authority, under Article II of the Constitution. When that happens, he's supposed to send a report to Congress within 48 hours. And then tradition says, although it's not technically legally required, tradition has been that the White House posts that on the White House's website within a day or so of it being transferred to members of Congress.

So, hopefully in 24 hours or so, we'll have a clear answer. If we don't see that report and there are no reports of it having been sent to Congress and perhaps just not released to the public for some reason,that means the president, most likely, or the Executive Branch, most likely, does have some sort of statutory argument. And I'd be very curious to see what that is, but I'd be surprised. I think it's almost certainly the president's Article II authority.

Matt Gluck: Thank you. And I saw a U.S. Statement about the justification under international law. Is it the same international law justification for all the countries that participated in the strikes? Or does it depend on that country's particular circumstances? Just, please walk us through the international law analysis and angle here.

So, what

Scott Anderson: we've seen referenced is the idea that this is an act of self-defense under international law. International law generally prohibits the use of force between states against a state's territorial integrity and political independence, which any use of force kind of is, certainly in another state without its consent, which was the case here in regards to Yemen. Although, it's worth noting, the Houthis are not the recognized government of Yemen, so this is against a non-state actor armed group, the Houthis within Yemen. Although, they control a good chunk of the territory, as Greg mentioned. In this sort of situation, at least the way the United States views international law, we can get into how maybe some other countries view it, is that they view there being a right of exercising military self-defense when faced by an armed attack or the imminent threat of an armed attack by a hostile actor. Whether it's a non-state armed group or a hostile state, they can take military action against that group.

 In defense of itself, the United States takes a pretty broad concept of self-defense, both in terms of what actions it can act in self-defense in response to, and what actions it can take in response to that. So, the United States has argued that if it is attacked by a foreign group or foreign state, it can take a wide range of actions, which it deems as necessary, where it doesn't have a reasonable alternative to disable its ability to pursue similar future attacks in the future. That is something other states say can lead to somewhat disproportional military responses. But, the United States has used that as a basis, perhaps most famously in the 1980s, to pursue kind of wide range attacks against Iranian naval assets in response to the mining of the Persian Gulf. In other circumstances, we've seen broader military action to disable the abilities of a foreign rival or adversary.

And that's likely what we're going to see here. We're going to see a justification saying, "Well, look, the Houthis took these actions and--meaning attacking shipping and U.S. Ships, in particular in this most recent January 9th incident--and, therefore ,we responded in a way that countermanded their ability and degraded their ability to pursue future attacks. And that's what we're allowed to do in our international law.

Notably, a lot of the press statements, and particularly a kind of briefing by a senior administration official and senior military official that the White House gave yesterday, earlier today, actually, I believe, that the transcript for is available on the White House website. They really hit on the point that this was, at least for the United States in response to attacks on an American ship in January 9th, that occurred in January 9th. January 9th is the largest Houthi attack so far with kind of a number of rockets and drone attacks against a number of ships, including an American flag ship and American naval ships, some of which have kind of come under attack before, but it's been a little bit unclear whether they were actually the targets or not of certain drone attacks. Here, they seem to very unequivocally think it was an attack and that gives the United States the ability to argue this is in individual self-defense, meaning it's in the United States own self-defense. But even if attacks were against a ship flagged or owned by another country, that country would have self-defense rights arguably against the Houthi, and they could ask the United States to exercise those self-defense rights for them effectively in what is called collective self-defense.

So we're seeing some combination of that here. I don't know if the U.K. And the U.S. are only relying on inherent self-defense because they .Did not seek permission from any of these other countries whose vessels may have been attacked to respond because those other countries may have then asked, well, what sort of response are you planning and wanted to play a role in, in seeing what they were going to authorize. Or, whether they're going to lean on a collective self-defense argument. I suspect we'll know more when the United States and U.K. file Article 51 letters. These are letters that when a country acts in self-defense, they provide them to the United Nations and the U.N. Security Council under Article 51 of the U.N. Charter. I suspect we're going to see that in the coming week from both countries or from each country individually. There's a possibility that it'll be kind of lumped under prior letters that they have sent in regards to this conflict, but I'm not sure.

I think this is enough of a kind of independent, enough of a different sort of action that they're likely to treat it separately and give it its own Article 51 letter. We'll have to wait and see. That'll give us a lot more detail on the details of the international law argument, but, the essence of it is pretty clearly self-defense.

Matt Gluck: So just to drill down on one point you mentioned, how is the international law analysis affected by the fact that the Houthis are a non-state actor? And in that context, does it matter that Iran heavily arms the Houthis?

Scott Anderson: That's a great question. It certainly matters in the-- to address the first part of your question first, the fact that they're non-state actors certainly matters in the legal analysis.

Traditionally, if you have a non-state actor that's acting independent of the state, as is the case here, you are going to have-- and independent of the state's recognized government, as is the case here. The Houthis are not the U.S., right, at least the U.S. Recognized government of Yemen. You will have either one of two legal arguments. Either the United States and the U.K. in this case will seek the consent of the host government to pursue this sort of military action, which the host government really can only give the sort of consent for actions it itself could take. So, in this case, it would have to be, in a state of armed conflict with the Houthis itself, or see a basis of those countries as having a basis for an armed conflict that would allow them to respond. It can give it consent. They would then be able to respond in that action with the consent of the host government. That is notably, if I recall correctly, actually what the United States relied on, at least in part in 2016, when it hit Houthi targets under the Obama administration, in response to a rocket attack on a U.S. naval vessel, if I recall correctly. There was a consent-based argument based off the recognized government of Yemen at the time, which was in this kind of power struggle with the Houthis.

Scott Anderson: The alternative is what's called the unable or unwilling theory. This is what we see at play in Syria, along with a select few other places. This is a more recently articulated theory, where the United States and select allies, including the U.K., have in the past argued that where an armed group engages in hostilities and attacks, an outside third state from the territory of a particular state. If the host government of that state in which the armed group is located is either unable to address the threat presented by that armed group or unwilling to address the threat presented by that armed group, then the party that is attacked can exercise its self-defense rights against that armed group, without intruding upon the sovereignty of that state, but still within that state's territory. It's kind of an exception to the idea that you need to consent to pursue military action on a state's territory.

It's a controversial rule. The United States has signed off on it. U.K. has. A number of European allies and kind of Western allies of the United States have signed off on this theory or different stripes of it, things that come close to it. Not all of them have. Other parts of the world are much more skeptical of it, and have viewed it as kind of a back door way to escape kind of arguments about sovereignty and the preservation of sovereignty.

 So, it could be controversial, but the United States, I think, is comfortable deploying it. And so we might see that in play here as well. Again, that Article 51 letter is likely to be a best clue yet as to what exactly the legal basis is in regards to Yemen's government and, the sovereignty of Yemen in regards to the arguments being advanced here. I don't believe I've seen a statement clarifying which of those two arguments is being advanced.

Matt Gluck: That's helpful. Thanks, Scott. Now, Greg, looking backwards, how did we get here? Let's start with the attacks on U.S. military personnel over the last several weeks and a couple months. What has been the nature of those attacks?

Greg Johnsen: Yeah, thanks, and I should just say as well, given in my position, that everything that I say here is just my own personal opinions, and I'm not speaking on behalf of the Air Force Academy or Air Force or the broader DoD.

What has happened recently in Yemen is that very shortly after the October 7th Hamas attacks on Israel, Israel responds, goes into Gaza. The Houthis, rhetorically have always been very interested in the Palestinian cause. In fact, their slogan is, "Death to America, death to Israel, curse upon the Jews, victory for Islam." The Houthis, very shortly after Israel went in, started firing rockets toward Israel. Many of these were very ineffective. Some were shot down by the U.S. Some were shot down by Israel. Then the Houthis moved to targeting cargo ships in the Red Sea. Initially they targeted and they took, in fact, one hostage, one cargo ship and its crew of about 25 members hostage. They tied these to Israel, but their targeting aperture continued to expand.

So, we saw them go after more and more cargo ships. They haven't, interestingly, at least to date, to the best of my knowledge, targeted any oil tankers, but they have targeted a lot of cargo ships. And what we saw is as the U.S. began forming what it called "Prosperity Guardian" and this coalition to protect commercial shipping in the Red Sea, then U.S. naval vessels became involved in conflicts with the Houthis. And, in fact, in December, toward the end of the month, there was an incident in which the U.S. sank three fast boats that the Houthis had and killed about ten Houthi members. The U.S. and thirteen other countries on January 3rd then issued what a U.S. official classified as the final warning to the Houthis. And the Houthis followed that up with a drone boat and then with an attack that Scott referenced earlier, the one on January 9th, and then there was an attack again on January 11th. And the U.S. had finally had enough. And, along with the U.K., then went with these airstrikes last night.

Matt Gluck: And I wanted to ask you about this statement. So Greg, what was the purpose of that January 3rd statement? It seems that things had already escalated pretty significantly before that, and many in the U.S. were pushing for the U.S. military to take the sort of action that they did last night at that point. But, instead, the U.S. decided to go with this statement. So, what was the thinking at that time? Or, what do you think the thinking was surrounding that statement?

Greg Johnsen: Yeah, that's a good question. And I think this is--the U.S. has a pretty weak hand, I think, when it comes to pushing back against the Houthis in the Red Sea.

So, the Houthis have carried out 27, 28 attacks now over the last two or three months. This is the first time last night that the U.S. has responded. So, quite clearly, if the U.S. continued to do nothing, the Houthis would continue to attack commercial shipping. U.S. national security interests say that open shipping lanes, free trade: these are all incredibly important to the United States. The U.S. had to do something. But, I think the Biden administration was very, hesitant after the last two decades of war in the Middle East, about getting drawn into another conflict, particularly a conflict in which I don't think the U.S. Particularly knows what sort of end result it wants to bring about in Yemen. The U.S. wants the Houthis to stop attacking commercial ships in the Red Sea, but the U.S. doesn't have a lot of great options in its toolbox to bring that about.

So, doing nothing is not going to work because the Houthis will keep escalating. The airstrikes that we saw last night, I don't think this is the end of the story. I think that the Houthis will likely respond militarily either against U.S. shipping, U. K. ships, or Oregon's commercial shipping in the Red Sea. So that means that the U.S. and the U. K. will probably have to carry out more strikes. But if more strikes don't work and the Houthis retaliate again, then we get into this sort of cycle.

The U.S., I don't think, is in a good position to support, say, the anti-Houthi coalition on the ground in Yemen. So, the Houthis and these local Yemeni forces, as well as Saudi Arabia and the UAE, have been involved in this complex and complicated war that's lasted about a decade and, is, in fact, still ongoing. But the partners on the ground that are fighting the Houthis a) are not particularly effective, b) they're not united. In fact, some of the members of what's called the Presidential Leadership Council, which is this rickety anti-Houthi coalition in Yemen, hate one another more than they hate the Houthis. So they're not united. They don't have a great track record. In fact, many of these groups, I think, would be guilty of human rights violations. And so the U.S. should be hesitant about getting back in bed with them.

So, I think all of this was factoring into the Biden administration's calculation. That is, the administration knew it couldn't do nothing, but it was also very, very wary of getting caught up in a broader war. And I think we're sort of on that path right now, in that the Houthis are going to respond, and then the U.S. will respond again. And where do you draw the line, or how do you degrade the Houthis sufficiently, so that either they no longer have the desire or they no longer have the capacity to carry out these attacks? And I think we're a long, long way from that right now.

Matt Gluck: And Scott, what do you think of the U.S. calculus? Why was there this almost two-week period, or approximately 10-day period, where the U.S. made this statement, escalation continued, and then they attacked yesterday?

Scott Anderson: It's a good question. I think that the administration is wrestling with a lot of the difficult variables Greg just laid out. There's a lot of reasons to think there are along certain metrics. Attacks like this might even be counterproductive in terms of bolstering the Houthis domestic support, encouraging in some ways, justifying additional support from Iran or engaging from Iran. On the flip side, there's still also a clear signaled intent--and made doubly clear over the past few weeks when the United States and its allies have clearly signaled that they were willing to do something like this, and the Houthis have continued to ratchet up attacks on international shipping, throughout the Red Sea--to say, "Well, how do we put a lid on their ability to engage in these activities, even in ways that might limit them, the negative downsides of those military action, if that's the route we end up pursuing here?"

,One really interesting exchange that was in the White House press briefing I mentioned earlier that really stuck out to me, is that you saw a senior administration official really make the point that the purpose of these strikes really was to degrade the operational capability of the Houthis to pursue attacks like this. They're also very clear they're still evaluating how successful they were at doing that. And this isn't the complete picture. Some attacks may be forthcoming, but the goal was to to degrade the Houthis ability and not just to deter them. There's this kind of very, frankly, in my view, extremely annoying phrase that always gets brought up in these circumstances about restoring deterrence and that we're restoring deterrence based on the idea that if you just slapped these groups hands, that somehow they're going to stop doing things like this.

And the senior administration official actually, I think to their credit, kind of said, "No, that's not what we're doing. I mean, we're signaling clearly. We may pursue future action, along similar lines, and maybe that will hopefully deter someone from doing something like this. But the goal of this was really to degrade their ability to take actions like this."

They were not saying, like, "We were hitting them hard enough that they're not going to try this stuff again." So, they seem to be well aware that this is probably the beginning of a bit of a dance. And even President Biden himself was clear, like, "I will take continuing actions to advance these interests," to paraphrase his words and his remarks, that future military action may be forthcoming.

The trick is to time it and space it and use military force strategically and frankly, judiciously enough, that you can degrade the ability of the Houthis to do the most damaging activities, which is threatening international shipping in the Red Sea, at least from the most of the international community's perspective. Perhaps, limit their interest in escalating in major ways, even if in small ways, they may escalate their rhetoric or continue to pursue some sort of token attacks, but perhaps they'll be able to deter the sorts of large scale attacks, like we saw on January 9th in particular, which has been, really seems to be, the turning point for the administration.

And strike that sort of balancing act. But it's a dance. It's an ongoing conversation in which these exchanges of military force are one toolkit and one line of signaling and communication. And at least to their credit, I think the senior administration official on the line seemed to understand this was not a complete solution, and that frankly, military force itself probably is not going to be a complete solution to this particular conundrum.

Matt Gluck: Greg, do you have a sense of the degree to which these attacks will disrupt the Houthis activities in the Red Sea, or their operational capacity more broadly, with the caveat that it's, less than 24 hours after the attacks occurred?

Greg Johnsen: Yeah, so, there's a couple of things on that. So, first, I think you can degrade probably the amount that--it's certainly possible, I don't know how probable it is that that's what happened with the strikes on the 16 locations last night. And I think one of the reasons for that is some of the attacks the Houthis are using, although they may be complex, often the weapons that they're using are not particularly sophisticated.

So they're using some drones, some off-the-shelf technology, some technology, some components that have been, smuggled in from Iran. We have to remember the Houthis have been living under airstrikes, under the threat of airstrikes, for most of the past decade. Saudi Arabia and the UAE have been trying to destroy Houthi targets in Yemen for quite a long time. And the Houthis themselves as a movement have essentially been at war for the past two decades.

Another thing, I think, to keep in mind here is that the Houthis need, and, I think, in many ways, want this confrontation with the United States and they want it both for regional as well as for domestic reasons. So, I think they're utilizing the situation in Gaza rhetorically to advance their own local and regional goals. And what I mean by that is the Houthis have a very close relationship with Iran. In fact, I think there's a good argument to make that the Houthis would not have survived the past decade of war with Saudi Arabia, the UAE, and the local Yemeni forces without the support of Iran. It was Iran smuggling ballistic missile components into Yemen, that gave the Houthis the range to reach Riyadh, to reach Dubai, to reach the UAE. And over time, over the past decade or so, we've seen that relationship with the Houthis in Iran grow closer and closer. So, the Houthis attacks on shipping in the Red Sea has basically allowed Iran some sort of plausible deniability.

That is, Iran can escalate with the United States through the Houthis, while Iran can say, "Well, the Houthis are a ruling authority, they're an independent country, they're in Yemen even though the international community doesn't recognize them. We don't have command and control authority over the Houthis. So that's on the regional side. On the domestic side, war is good for the Houthis. The Houthis, right now as this, sort of local, regional and civil war with Saudi Arabia and the UAE is sort of winding down and there's been sort of this loose ceasefire, sort of tacit ceasefire over the past couple of years, not a lot of airstrikes. This is bad for the Houthis. They're a repressive, autocratic movement. They're not particularly good at governance in the areas they hold in the Northern Highlands. So this is bad for them politically, because as the airstrikes have dissipated, so has some of the Houthis popular support. And, in fact, the Houthis are probably most vulnerable within Yemen from their domestic rivals, in particular tribal sheikhs, so the Houthis have had a very heavy hand with the tribes. There's a longstanding, you know, centuries-old rivalry between the Sayyids, which is what the top of the Houthi leaders are, the descendants of the Prophet Muhammad. Sayyids versus sheikhs in Yemen. So the tribal sheikhs are not particularly happy with the Houthis, as well as the political party, the General People's Congress. And both of these groups over the past couple of years have been increasingly sharp in their critiques and criticisms of the Houthis. So if the Houthis are under attack from the United States, and particularly if they're under attack from the United States and they can paint this as some sort of defense of the Palestinians in Gaza, then the Houthis think they'll basically be able to mute their domestic criticism and gain more popular support.

Which is important for their second reason that they need this confrontation, and that's economic. So the Houthis control a large amount of territory in the northern Yemeni highlands, and a lot of people, but they don't have a very strong economic base. The Houthis are not able to support the bureaucracy, they need to run the state there in Yemen, they're not able to pay salaries. People over the past decade--the value of the Yemeni rial has dropped significantly, while people's salaries have stagnated and stayed the same even when they do get paid, which is not that frequently. So, the Houthis need some sort of an economic base in order to survive long term. They know this. And Yemen really only has two exports, and that's oil and gas. And the oil and gas in Yemen is really centered in three governorates. So this is Marib, Shabwah, and Hadhramut. The Houthis don't control any of these governorates. The Houthis' bet is that by expanding this war, by entering into a confrontation with the United States, they'll get enough domestic support that they'll be able to move on Marib, which is in eastern Yemen, or at least east of where it is the Houthis currently are. And the Houthis have tried to take Marib a number of times and have been stopped each time, usually by Saudi airstrikes. So the Houthis would be able--they're betting that they can take Marib and or Shabwah. This would give them the sort of economic base that would allow them to survive long term. And so for both political as well as economic reasons, that's why I think we've seen the Houthis really baiting the United States over the past couple of months. And that's why I think to get to Scott's point, with what the U.S. is trying to do, you have to keep in mind why it is that the Houthis need, and, in many ways, want this military confrontation with the United States.

Matt Gluck: Greg, could you describe the concrete disruptions to global trade that have been caused by the Houthi attacks on merchant shipping? As a colleague put it to me, are some people not getting their Amazon packages, or are we dealing with something much larger on the merchant side? Obviously, it's a very different conversation with respect to attacks on military personnel, but just dealing with the merchant shipping side of things.

Greg Johnsen: Yeah. So, what we've seen, I think, about 12 to 18 percent of global shipping goes through the Red Sea. Many of, I think, the top three or four global shipping--particularly cargo shipping-- is no longer going through the Red Sea or they've sort of been going and then pulling back, and making the much longer track around Africa, as opposed to going through the Suez Canal.

 The Houthis, I think, as we mentioned earlier, haven't attacked oil ships yet, at least to the best of my knowledge. That could be something that is forthcoming, although, that would create, I think, more disruptions. And, so, I think there's been some delays. I think even in the White House statement, yesterday, they said there's been delays, but they've been very, very minimal to date.

But the idea of a group, a non-state group, being able to hold international shipping lanes hostage, being able to cause insurance rates for ships that that travel these to go up, or forcing ships to take much longer routes, this is not something that the U.S. can or obviously will tolerate.

Matt Gluck: And turning to U.S. domestic politics now, with respect to some war powers questions, so Scott, have been the range of reactions on the Hill to these strikes over the last day or so? I know there have been some arguments that Biden is acting beyond his powers, so what are people saying?

Scott Anderson: Sure. You've seen a number of folks that, really on both sides of the aisle, many of whom has voiced support for these actions, some of whom have essentially criticized the Biden administration for not taking actions like this sooner, particularly in regards to Iran, because Iran being a backer of the Houthis is being implicated by this. And you always have a very strong and vocal anti-Iran contingent in Congress, primarily located in the Republican party, that often is always very frequently pushing for stronger, particularly military action against Iran, sometimes economic sanctions, other measures like that as well.

But on the legal front, you've also seen a few voices criticizing the administration for taking this action without consulting Congress, or without seeking authorization from Congress, on the basis that doing so is illegal and unconstitutional. And they have a basis for asserting both views, although there are also ones, views, that haven't really been operationalized. On the one hand, you see the War Powers Resolution says that the president really is supposed to consult with Congress to the fullest extent possible before pursuing military action of any sort like this.

In practice, however, since the War Powers Resolution was enacted in 1973, that's usually been pretty minimal. Usually it, it takes the form of advanced notification as opposed to consultation. Or, that advanced notification can be limited in scope to the Gang of Eight or just congressional leadership, or just the chairman of Armed Services and Foreign Relations committees. It kind of varies across time and varies across context. In this case, I've not seen clear reporting on who, if anyone in Congress got advanced notice of this. But, also it's worth noting, while this particular strike may not have been noticed, the fact that the administration and allies were very much considering something, they were pretty open about to the public, including the Houthis, in the days in advance of the strike so it's not entirely a surprise, but the idea that they consulted with Congress doesn't appear to have been true, at least from the reporting I've seen, although, maybe more will come out on that, or, maybe there's some aspect of this I've missed.

So there's that critique there, and it's worth noting the Biden administration isn't unusual in that the Executive Branch just doesn't pursue this sort of consultation. The War Powers Resolution, while it directs it, doesn't really say what form it's supposed to take or give very enforceable definitions or contours about what the Executive Branch is supposed to be doing. And so, it's hard to say that they're clearly in violation of it, although, they do seem contrary to the spirit of that provision.

There's also a constitutional question as to what extent Congress could even require the president to do that, given that the president's Commander in Chief. And that kind of feeds back into part of why the Executive Branch is often pushing back against that and hasn't fully complied with it in a way that the people who wrote it in Congress in the '70s might have intended.

The more fundamental question is, can the president take military action like this at all on his own authority, without Congress? The view I articulated earlier, saying that the president can pursue this sort of military action under Article II of the Constitution, as long as it's below-- the nature of scope and duration is below a certain threshold of a kind of major armed conflict and it's pursuant to U.S. interests. That is the Executive Branch's view of this authority. Congress isn't really in a position to articulate a clear contrary view because Congress is, of course, many individual legislators who don't always agree on things. But there are many members of Congress and people outside of Congress, academics and others, who argue that really the president isn't supposed to be taking military action at all except perhaps in self-defense, and much more proximate self-defense than is arguably the case here, without getting authorization from Congress because Congress is the body to whom the Constitution gives the authority to declare war. There are colorable arguments there and I think there are compelling arguments that Congress certainly plays a role in this process, in part because the courts have been very resistant to kind of second guessing military action and it's very hard for people to get standing to challenge military action in the courts.

In practice, the Executive Branch's view has kind of more or less steered the boat in this area thus far. So at least for small- to medium-sized military actions, the Executive Branch has been willing to pursue that on the president's own authority, has done so pretty openly, articulated legal opinions doing this across administrations from both political parties for the last 40 years, 50 years since the War Powers Resolution was enacted, if not earlier. So it's a pretty clear pattern of conduct. And, while members of Congress object to it frequently, they've only taken very limited steps to actually kind of constrain it. And those constraints function much more in terms of timeframe over an extended period of time, not the scale or type of military action like this, if particularly this ends up proving to be a more isolated event.

Matt Gluck: So I want to get into that timeframe piece a bit. Obviously the war powers question changes if this conflict goes on for an extended period of time. So could you just lay out how the war powers dynamic shifts if this conflict extends for a certain period of time?

Scott Anderson: Yeah, so the War Powers Resolution, the statute Congress enacted in 1973, says essentially when the president pursues military action, pursuant on his own legal authority--or really, actually, it says when he does it without congressional authorization, but usually that means on his own constitutional authority--he can do so for 60 days. But within 60 days, he has to go out and get congressional authorization. And then it has a provision saying, well, if he needs 30 more days to safely withdraw troops and wind down whatever the United States is doing, he can have 30 more days. So there's the 60- to 90-day time cutoff. After which, Congress says, "You have to get authorization or you're supposed to withdraw troops from hostilities for whatever situation is ongoing."

That has traditionally been understood to be a pretty, actually, serious, legal constraint. The Nixon administration initially objected that that was unconstitutional, that Congress couldn't impose these limits. They tried to lump it in with a legislative veto, a critique of another part of the law that was involved here, that was ultimately vindicated in another context.

But subsequent administrations have kind of gone back and forth and always wrestled with, well, do we think this is legally binding? And actually, I would argue the weight of opinion that we've seen coming even from within the Executive Branch, particularly for internal opinions that were originally for internal consumption and have since become public for reasons like the Freedom of Information Act, they suggest the Executive Branch thinks that that's actually a pretty compelling limit. Congress can impose those sorts of time limits, at least in the majority of circumstances. Where something is really necessary for direct self-defense of U.S. nationals or the U.S. homeland, maybe the president has constitutional authority to go further that Congress can't restrict.

But when you're talking about military action pursuant to U.S. interests, as opposed to U.S. self-defense, Congress can take steps to restrict that. It's not a full consensus. People have pushed back on it to various stripes and various degrees. But, even in the Executive Branch, a lot of people have said, "Oh, there's a colorable argument." Congress has the authority to do things like this, or at least it puts us in a much more precarious constitutional position. And, the Supreme Court has said, as recently as a Supreme Court decision in 2012, that where Congress, or where the Executive Branch acts in direct contradiction of a statute, that's a situation where the Supreme Court feels much more obligation to step in, intervene, and weigh in a matter, even where otherwise it might prefer not to. That might be taken as kind of a shot across the bow to say, look, if you violate a clear statutory prohibition, the Supreme Court might actually begin to take up this particular war powers matter, even though in most cases it resists taking up war powers questions.

So for that reason I think the best way to look at practice here for the Executive Branch is that they've taken that limitation seriously. What they've often done if they've encountered military action that is going to last past that threshold, but they are not confident they're going to get congressional authorization for it, is sometimes they have wound it down or ended it. Sometimes they have attached it to another statutory authorization, in an effort to say, "Well, this has already been authorized by Congress," even though they didn't make that argument earlier. That's what happened in 2014 when the military campaign against ISIS in Iraq and Syria ran up against the 60- to 90-day timeline. That's when the Obama administration brought in the 2001 and 200 AUMFs as justification. Prior to that, it had just been relying on the president's Article II authority.

The third thing that the Executive Branch often does is it interprets the definition of hostilities fairly narrowly to exclude certain types of conduct, whether it's self-defense conduct or whether it is action that just entails airstrikes, for example, where there's limited risk or, arguably, zero risk to U. S. personnel, different from putting in ground troops. Here, this is a situation that, at least so long as military action is limited to , airstrikes and that sort of activity that we've seen thus far, the latter interpretation is one that maybe the Executive Branch would turn to if it continued close to the 60- to 90-day mark, and they had to say, "Hey, we think this is going to be a longer-term thing that we're going to keep pursuing. And we don't think we're going to get, or we don't want to get, congressional authorization for it." But, we're really just talking about airstrikes. And just like we did with Libya in 2011, here, we can pursue that past the 60- to 90-day timeframe, because there's no real threat to U.S. troops. And that's what the War Powers Resolution is really worried about.

Alternatively, the other thing they can do that the Executive Branch has done at times, and it's done recently in this region and under this administration, they can say, "No, this isn't part of a continuous military campaign. We are pursuing isolated strikes and we hope and don't intend to pursue any strikes after this. We hope our exchange with this group is over. But later, if they attack us again, we may have to respond and that's going to be a whole new conflict or a whole new exchange of hostilities that restarts the 60- to 90-day clock." War Powers Resolution doesn't clarify how these sort of sequence timing issues should really work. The Executive Branch has leaned into that ambiguity as it has done with other ambiguities to say, "No, we don't have to treat these as one contiguous military campaign. Instead, it's lots of mini campaigns and each one gets its own 60- to 90-day clock and we never run out of it."

That's what the administration has actually done so far. Remember, some military action involving Houthis and involving shooting down the rockets and drones has been ongoing since november. It's also, this is the strategy that both the Trump administration, the Biden administration have pursued in relation to exchanges with Iran-backed militias in Iraq and Syria, which has been ongoing now for many years, well past any 60- to 90-day framework. But, that both administrations have basically said, these are independent actions. And, particularly I should say the Biden administration, because the Trump administration also relied on the two AUMFs. The Biden administration has declined to do that thus far, although, it's begun to wink at the AUMFs a little bit in the last month or two. But, thus far, it's still relied just on the president's Article II authority, but it has said, "Look, each of these is its own freestanding action and it gets its own 60- to 90-day clock. We don't need to add them up."

That argument gets harder to make as the tempo of operations increases, as there's more clear, ongoing fluid targeting, clear ongoing continuous military operations with an intent to pursue it more in the future in Iraq and Syria. The idea has always been maybe if the tempo operations against Iran-backed militias increases, the Biden administration will have to go back to the AUMFs like the Trump administration did, like the Obama administration, to some, extent did before it in a slightly different context.

Here, it is a harder case for the Biden administration because those AUMFs just don't have application. It's not clear what statutory authorization would have application here. And so, if you do concede, "Oh no, we can't slice the salami on this." And even though these are just airstrikes, the War Powers Resolution does apply. Then it's not... you don't have any existing statutory authorization. You really have to turn to Congress. But, I kind of suspect if push comes to shove, the Biden administration won't have trouble making the salami-slicing argument and the airstrikes argument and not seeking congressional authorization, unless it thinks that it can acquire it relatively painlessly.

Matt Gluck: Thanks for laying that out. Greg, you wrote on Twitter before the strikes that the current conflict with the Houthis reminds you of the Saudis going into Yemen to fight the Houthis in 2015. What did you mean by that analogy and how can that previous conflict shed light on what we may see in the coming weeks and months?

Greg Johnsen: Yeah, thanks. So the site formerly known as Twitter. Yeah, and then a couple of different things by that. So, I remember watching the buildup in 2015 when Saudi Arabia was preparing to go into Yemen. And this was several months after the Houthis had moved in, taken control over the capital of Sana'a. They did that in September of 2014. And Saudi Arabia, at the time, was privately telling U.S. officials that they could expel the Houthis from Sana'a, bring back the internationally recognized government of Yemen, which at the time was an individual named President Hadi, and they could do all of this in about six weeks. So airstrikes, get rid of the Houthis, or at least push them out of Sana'a, and do it in six weeks. That seemed to me wildly over optimistic. That has, in fact, turned out to be the case because now we're in 2024. So nine years later, and that war between Saudi Arabia and the Houthis is still ongoing.

 It also seemed to me at the time that the Saudis didn't have a very good strategy for what it is that they wanted in Yemen, other than they didn't really want the Houthis to be there, to be in Sana'a, but they didn't seem to have any real plan to defeat them other than bombing. I'm a little concerned that the U.S. is finding itself in a similar situation, that it thinks that airstrikes can both deter and degrade the Houthis. And, I don't think that's a very-- it's not a winning proposition. It's not one that I would bet on. The Houthis have been on the brink of disaster before.

And the Houthi thinking--and this is a group that their first war was against the Yemeni government in 2004. They fought a succession of six wars against the Yemeni government under then President Ali Abdullah Saleh from 2004 to 2010. They were involved in the Arab Spring protests, took control of territory in 2012 to 2014, and then took control of the North in 2014, and have been involved in a war with Saudi Arabia since then.

So, in Houthi thinking, they defeated the Yemeni government. They have now defeated Saudi Arabia, so a regional power. And now today, the third stage, they're involved in an international conflict against the United States. And so they believe that they won the first local war, that they've won the regional war, and now they're in an international war against the world's leading superpower.

And so, I'm not sure what the U.S. wants other than for the Houthis to stop attacking ships. But, now that the Houthis have seen that this is such a successful strategy, that it drives the U.S. crazy, that the U.S. has to respond, and as we said earlier, war is good for, for the Houthis. I think the U.S. is finding itself in a situation where the Houthis are prepared to absorb more pain and more airstrikes than I think that the U.S. will be comfortable doing. And, once the U.S. gets to the point where airstrikes aren't bringing about the results that the U.S. wants to see on the ground in Yemen, that is, it's not sufficiently degrading and it's not deterring the Houthis from some of these attacks, then what other options will the U.S. have at that point? This is the dilemma that Saudi Arabia faced: that they could do nothing, the Houthis would remain in Sana'a; they could insert ground troops for a long and bloody war in some really rough topography and geography, with no guarantee of of success; or they could bomb the Houthis and hope that eventually those bombings would sort of tip the scale. They eventually decided on door number three that didn't work for them. They got involved in a long, costly war that they eventually have, for all intents and purposes, lost.

And I think the U.S. might find itself in a similar situation that airstrikes, missile strikes, are just not going to bring about the results that the U.S. wants to see in Yemen. And what the U.S. wants to see in Yemen is mostly the Houthis not doing this. But, the Houthis--the U.S. has no goal, or, at least, no strategy, for removing the Houthis from power, getting rid of them. That would involve the U.S. in a long and costly war, after we just got out of several decades of war in the Middle East. So, I think the U.S. is in a really, really difficult position, but, the buildup to the bombing strikes yesterday had some, eerie echoes for me of what was happening in March of 2015.

Matt Gluck: And when you say war is good for the Houthis, could you unpack that a little bit? What do you think the Houthis see as their longer term vision in this conflict with the United States?

Greg Johnsen: Yeah, so some of it's what we laid out earlier, sort of the political and economic reasons. That is, the Houthis--by coming under attack, there will be sort of a rall-around-the-flag effect, in which everybody sort of bands together with the Houthis, the Houthis gain a number of supporters. When bombs are falling on you, you're less likely to criticize sort of the local warlord than you are the outside power that's bombing you.

So, there's that aspect and there's the aspect that the Houthis are hoping that this wave, this confrontation with the United States, will allow them to sort of take more territory in their local conflict with the Presidential Leadership Council, the anti-Houthi coalition, there in Yemen.

So, the Houthis are weakest when they're not in conflict, ironically enough. The Houthis are strongest when they're being bombed and being attacked, because this is something that, as we've said, they basically lived with for two decades. The Houthis have calculated U.S. Airstrikes. They've calculated--they know what it is that Saudi airstrikes, Emirati airstrikes, and now American and U.K. airstrikes are going to do. And they think that they can bear that cost and still be able to achieve their goals. In fact, they think bearing that cost will actually help them towards some of their domestic goals.

Matt Gluck: That puts the US and international partners in quite the predicament. We will have to leave it there. Greg, Scott, thank you so much for joining us on the Lawfare Podcast.

Scott Anderson: Thank you, Matt.

Greg Johnsen: Thanks so much.

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