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[House Report 116-7]
[From the U.S. Government Publishing Office]

116th Congress    }                                     {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {       116-7

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DIRECTING THE REMOVAL OF UNITED STATES ARMED FORCES FROM HOSTILITIES IN 
    THE REPUBLIC OF YEMEN THAT HAVE NOT BEEN AUTHORIZED BY CONGRESS

                                _______
                                

February 8, 2019.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

           Mr. Engel, from the Committee on Foreign Affairs, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 37]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Foreign Affairs, to whom was referred the 
joint resolution (H.J. Res. 37) directing the removal of United 
States Armed Forces from hostilities in the Republic of Yemen 
that have not been authorized by Congress, having considered 
the same, report favorably thereon without amendment and 
recommend that the joint resolution do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Oversight Findings.....................................     5
New Budget Authority, Tax Expenditures, and Federal Mandates.....     5
Congressional Budget Office Cost Estimate........................     5
Non-Duplication of Federal Programs..............................     6
Performance Goals and Objectives.................................     6
Congressional Accountability Act.................................     7
New Advisory Committees..........................................     7
Earmark Identification...........................................     7
Section-by-Section Analysis......................................     7
Dissenting Views.................................................     8

                          PURPOSE AND SUMMARY

    H.J. Res. 37 directs the removal of United States armed 
forces from hostilities in the Republic of Yemen that have not 
been authorized by Congress.

                  BACKGROUND AND NEED FOR LEGISLATION

    The United States has longstanding strategic interests in 
promoting security and stability in the Arabian Peninsula and 
has worked with partners there for decades to help them defend 
their borders and encourage burden sharing.
    In 2014, after years of violence and insurgency, Ansar 
Allah/ Houthi rebels seized the Yemeni capital city of Sana'a, 
deposing the legitimate, internationally recognized Government 
of Yemen and further destabilizing Yemen and the region. In 
2015, Houthi forces advanced from the capital to Aden. In March 
2015, Yemeni President Hadi, who had fled to Saudi Arabia, 
appealed for international intervention. Saudi Arabia 
established a coalition of nations to engage in military 
operations in Yemen against the Ansar Allah/Houthi movement. 
Since March 2015, at the behest of President Hadi, a Saudi-led 
coalition intervention in Yemen has used airstrikes and 
partnered with local Yemeni forces to reclaim territory from 
the Houthis. Iran has trained and equipped Houthi fighters with 
weapons, reportedly including ballistic missiles and armed 
drones. These have been used against Saudi civilians and a U.S. 
navy ship and personnel.
    The war has exacerbated a humanitarian crisis in Yemen that 
began in 2011. According to the Director of National 
Intelligence, ``The humanitarian impacts of the conflict in 
Yemen--including, famine, disease, and internal displacement--
will be acute in 2019 and could easily worsen if the coalition 
cuts key supply lines to Sana'a. The fighting has left more 
than 22 million people, or approximately 75 percent of the 
population, in need of assistance, with millions of people at 
severe risk of famine by the UN definition--numbers that are 
likely to rise quickly if disruptions to aid access continue.'' 
According to Mr. David Harden, the former Assistant 
Administrator of USAID, ``Last year Yemen faced the world's 
largest cholera epidemic in recorded history; one million 
people suffered from an outbreak driven by the deterioration of 
the wastewater management systems primarily in Houthi-
controlled territory.'' Food commodities are too expensive for 
the average Yemeni. As a result, people cannot afford to feed 
their families. Limited access to certain areas of Yemen has 
made it difficult for governments and aid agencies to count the 
war's casualties. Experts estimate that 16,000 Yemenis have 
been killed by airstrikes and many more from malnutrition and 
disease.
    Though fighting continues along several fronts, on December 
13, 2018, the Special Envoy of the United Nations Secretary-
General for Yemen, Martin Griffiths, brokered a cease-fire 
centered on the besieged Red Sea port city of Hodeidah, Yemen's 
largest port. As part of the deal, known as the Stockholm 
Agreement, the coalition and the Houthis agreed to redeploy 
their forces outside Hodeidah city and port. As of the date of 
this report, the agreement was fragile, but holding.
    Since 2015, the United States has provided military support 
to the Saudi-led coalition in the war against the Ansar Allah/
Houthi movement. This support includes intelligence sharing and 
support, logistics, military advice, and, until recently, 
aerial refueling of Saudi-led coalition aircraft on combat 
missions against the Ansar Allah/Houthi movement. The United 
States and Saudi Arabia announced on November 9, 2018 that 
American armed forces would suspend this refueling. However, 
the Administration maintains that the President has the legal 
authority to resume refueling coalition aircraft on combat 
missions at any time, despite having no specific statutory 
authority for American participation in this war.
    In recent years, the House of Representatives has 
considered various measures to address the situation in Yemen. 
On November 13, 2017, the House passed H. Res. 599, a 
bipartisan resolution expressing the urgent need for a 
political solution in Yemen and calling on all parties to the 
conflict to increase efforts to prevent civilian casualties and 
to broaden humanitarian access.
    In August 2018, Congress passed the John S. McCain National 
Defense Authorization Act for Fiscal Year 2019. Section 1290 of 
this law created new conditions on funding for refueling of 
non-United States aircraft for certain missions in Yemen. Under 
this requirement refueling is only permitted if the Secretary 
of State certifies that the Government of Saudi Arabia and the 
Government of the United Arab Emirates are undertaking an 
urgent and good faith effort to support diplomatic efforts to 
end the civil war in Yemen, taking appropriate measures to 
alleviate the humanitarian crisis in Yemen, and taking 
demonstrable actions to reduce the risk of harm to civilians 
and civilian infrastructure resulting from military operations.
    In September 2018, the Secretary of State certified that 
these conditions had been met despite significant evidence to 
the contrary. For example, in the period of time before the 
certification was due, attacks against civilians rose sharply, 
according to the Office of the UN High Commissioner for Human 
Rights. In a statement expressing opposition to a recent attack 
on a school bus that killed 40 civilians, the Office stated 
that, ``These latest deaths come amid a recent spike in 
civilian casualties over the last week that tragically 
demonstrates how the conflict continues to blight the lives of 
Yemenis.'' The certification reporting period also coincided 
with escalation of violence in and around the Port of Hodeidah, 
as coalition and Yemeni forces sought to overtake Houthi 
positions in that area. According to the International 
Committee of the Red Cross, August was the most violent month 
in 2018 in Yemen with nearly 500 people killed in just nine 
days. Since 2015, the coalition has undertaken 18,000 
airstrikes. One third of those have hit nonmilitary targets. 
The Secretary of State's suspect certification flies in the 
face of congressional intent and is the latest action in a 
growing trend of the executive branch ignoring congressional 
prerogatives on American military activity.
    Across multiple administrations, the executive branch has 
asserted increasingly broad authority to use military force 
without congressional authorization. The executive branch has 
limited its definition of hostilities to situations in which 
units of American armed forces are actively engaged in 
exchanges of fire with opposing units of hostile forces. The 
legislative branch is not bound by, and should not accept, this 
exceedingly narrow definition. War powers are within Congress' 
constitutional authority. Congress must examine how the 
President is using the United States military, especially when 
the President is using America's armed forces to intervene in a 
foreign war. This view was echoed by witnesses at a recent 
Foreign Affairs Committee Hearing at which Mr. Jake Sullivan, a 
former senior State Department and White House Official, said, 
``Congress has an important, bipartisan role to play in the 
participation of the U.S. in military activities across the 
Middle East and across the world. That is relevant to a series 
of questions that have not been visited by the Congress since 
the passage of the 2001 and 2002 Authorizations for Use of 
Military Force. It would be a big step forward in terms of the 
assertion of this body that is going to be a fundamental part 
of the conversation about the balance of U.S. interests in the 
region and where military force is appropriate and where it is 
not.''
    The Senate has already considered this issue and reached 
the same conclusions as the House Foreign Affairs Committee. On 
December 13, 2018, a bipartisan majority in the Senate passed 
S.J. Res. 54, which included the same operative text and 
definition of hostilities as H.J. Res. 37. These resolutions 
define hostilities to include ``in-flight refueling of non-
United States aircraft conducting missions as part of the 
ongoing civil war in Yemen.'' This definition would not bind 
other refueling operations, but it would make clear that the 
President does not have the legal authority to resume in- 
flight refueling of non-United States aircraft in the ongoing 
civil war in Yemen without specific statutory authorization. 
The Administration expressed opposition to this definition with 
respect to S.J. Res. 54. It is not surprising that the 
executive branch would prefer a definition that affords greater 
unilateral power to the President. However, Article I of the 
Constitution assigns war powers to the legislative branch, and 
that is exactly why Congress must make clear its views on the 
laws and policies that affect United States participation in 
the Yemeni civil war.

                                HEARINGS

    February 6, 2019 Full Committee hearing on ``U.S. Policy in 
the Arabian Peninsula'' (Witnesses: Mr. David Harden, Managing 
Director, Georgetown Strategy Group; Dr. Mara Karlin, Director 
of Strategic Studies, Johns Hopkins University; Jake Sullivan, 
Nonresident Senior Fellow, Carnegie Endowment for International 
Peace; Michael Singh, Senior Fellow and Managing Director, 
Washington Institute for Near East Policy)

                        COMMITTEE CONSIDERATION

    On February 6, 2019, the committee marked up H.J. Res. 37 
pursuant to notice, in open session. The committee agreed to 
report H.J. Res. 37 to the House, with the recommendation that 
the bill do pass by a record vote of 25 ayes and 17 noes.
    On the vote to report H.J. Res. 37, with the recommendation 
that the bill do pass:
    Voting aye: Engel, Sherman, Sires, Connolly, Deutch, Bass, 
Keating, Cicilline, Bera, Castro, Titus, Espaillat, Lieu, Wild, 
Phil lips, Omar, Allred, Levin, Spanberger, Houlahan, 
Malinowski, Trone, Costa, Vargas, and Gonzalez.
    Voting no: McCaul, Smith, Wilson, Perry, Yoho, Kinzinger, 
Zeldin, Wagner, Mast, Fitzpatrick, Curtis, Wright, 
Reschenthaler, Burchett, Pence, Watkins, and Guest.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) of rule XIII of Rules of 
the House of Representatives, the committee reports that 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of House rule X, are 
incorporated in the descriptive portions of this report, 
particularly in the ``Background'' section.

      NEW BUDGET AUTHORITY, TAX EXPENDITURES, AND FEDERAL MANDATES

    In compliance with clause 3(c)(2) of House rule XIII and 
the Unfunded Mandates Reform Act (P.L. 104-4), the committee 
adopts as its own the estimate of new budget authority, 
entitlement authority, tax expenditure or revenues, and Federal 
mandates contained in the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, February 8, 2019.
Hon. Eliot Engel,
Chairman, Committee on Foreign Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 37, a Joint 
Resolution directing the removal of United States Armed Forces 
from hostilities in the Republic of Yemen that have not been 
authorized by Congress.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sunita 
D'Monte.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

  H.J. RES. 37, A JOINT RESOLUTION DIRECTING THE REMOVAL OF UNITED STATES ARMED FORCES FROM HOSTILITIES IN THE
                           REPUBLIC OF YEMEN THAT HAVE NOT BEEN AUTHORIZED BY CONGRESS
    (As ordered reported by the House Committee on Foreign Affairs on February 6, 2019--Millions of Dollars)
----------------------------------------------------------------------------------------------------------------
                                                                                                     Spending
                                                      Direct         Revenues       Net Deficit     Subject to
                                                     Spending                         Effect       Appropriation
----------------------------------------------------------------------------------------------------------------
2019............................................               0               0               0               *
2019-2024.......................................               0               0               0               *
2019-2029.......................................               0               0               0            n.a.
----------------------------------------------------------------------------------------------------------------
Pay-as-you-go procedures apply? No
Increases on-budget deficits in any of the four consecutive 10-year periods beginning in 2030? No
*= between $0 and $500,000; n,a, = not applicable.
Mandate Effects
Contains intergovernmental mandate? No
Contains private-sector mandate? No

    H.J. Res. 37 would direct the President to remove U.S. 
armed forces from hostilities in or affecting Yemen, except for 
those engaged in operations against al-Qaeda or associated 
forces. It also would require the Administration to provide two 
reports to the Congress. One report would detail the risks to 
U.S. citizens and Saudi civilians and the danger of regional 
humanitarian crises if the United States stopped supporting the 
Saudi-led coalition fighting in Yemen. The other report would 
assess the increase in the risk of terrorist attacks if the 
Kingdom of Saudi Arabia stopped sharing Yemen-related 
intelligence with the United States.
    In a letter to Senator McConnell in February 2018, the 
Department of Defense (DoD) stated that U.S. support for the 
Saudi-led coalition fighting in Yemen does not constitute 
hostilities. It further stated that U.S. armed forces are 
engaged in hostilities against terrorist organizations 
operating in Yemen, including al-Qaeda and the Islamic State of 
Iraq and Syria. To the extent U.S. armed forces are currently 
engaged in hostilities against terrorist organizations other 
than al-Qaeda or its associates, those operations would be 
precluded under the resolution. However, CBO expects that the 
number of DoD personnel and the amount of resources in the 
region would be unaffected.
    CBO estimates that implementing the reporting requirements 
under H.J. Res. 37 would cost less than $500,000 over the 2019-
2024 period; such spending would be subject to the availability 
of appropriated funds.
    The CBO staff contact for this estimate is Sunita D'Monte. 
The estimate was reviewed by Leo Lex, Deputy Assistant Director 
for Budget Analysis.

                  NON-DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to clause 3(c)(5) of House rule XIII, the 
committee states that no provision of this resolution 
establishes or reauthorizes a program of the Federal Government 
known to be duplicative of another Federal program, a program 
that was included in any report from the Government 
Accountability Office to Congress pursuant to section 21 of 
Public Law 111-139, or a program related to a program 
identified in the most recent Catalog of Federal Domestic 
Assistance.

                    PERFORMANCE GOALS AND OBJECTIVES

    The objective of H.J. Res. 37 is to direct the President to 
remove U.S. Armed Forces from hostilities affecting Yemen that 
have not been authorized by Congress. It directs the President 
to remove forces within 30 days, unless Congress authorizes a 
later withdrawal date or specifically authorizes the use of the 
Armed Forces.
    For purposes of this resolution, the term ``hostilities'' 
includes in-flight refueling of non-United States aircraft 
conducting missions as part of the civil war in Yemen. It also 
requires the President to report to Congress on the risks that 
would be posed if the United States were to cease supporting 
counter-Houthi operations in Yemen, and if Saudi Arabia were to 
cease sharing Yemen-related intelligence with the United 
States.

                    CONGRESSIONAL ACCOUNTABILITY ACT

    H.J. Res. 37 does not apply to terms and conditions of 
employment or to access to public services or accommodations 
within the legislative branch.

                        NEW ADVISORY COMMITTEES

    H.J. Res. 37 does not establish or authorize any new 
advisory committees.

                         EARMARK IDENTIFICATION

    H.J. Res. 37 contains no congressional earmarks, limited 
tax benefits, or limited tariff benefits as described in 
clauses 9(e), 9(f), and 9(g) of House rule XXI.

                      SECTION-BY-SECTION ANALYSIS

    Section 1. Findings. This section establishes that, under 
Article I of the Constitution, Congress has the sole authority 
to declare war; highlights the duration and extent of U.S. 
support for the Saudi-led coalition's military campaign against 
Houthi rebels in Yemen; reaffirms the definition of hostilities 
in the War Powers Resolution and applies it to the U.S. role in 
the Saudi-led coalition's campaign; and emphasizes that there 
is no statutory authorization for the use of force in the 
conflict between the Saudi-led coalition and Houthis and no 
provision of law explicitly authorizing targeting assistance or 
midair refueling of Saudi or UAE warplanes in such conflict.
    Section 2. Removal of United States Armed Forces from 
Hostilities in the Republic of Yemen That Have Not Been 
Authorized by Congress. This section directs the President to 
remove U.S. Armed Forces from hostilities affecting Yemen, 
except those engaged in operations directed at al-Qaeda or its 
associated forces. It directs the President to remove forces 
within 30 days, unless Congress authorizes a later withdrawal 
date or specifically authorizes the forces. For purposes of 
this resolution, the term ``hostilities'' includes in-flight 
refueling of non-United States aircraft conducting missions as 
part of the civil war in Yemen.
    Section 3. Rule of Construction Regarding Continued 
Military Operations and Cooperation with Israel. This section 
specifies that nothing in the resolution may be construed to 
influence or disrupt any military operations and cooperation 
with Israel.
    Section 4. Report on Risks Posed by Ceasing Saudi Arabia 
Support Operations. This section requires the President to 
report to Congress on the risks that would be posed if the 
United States were to cease supporting counter-Houthi 
operations in Yemen.
    Section 5. Report on Increased Risk of Terrorist Attacks to 
United States Armed Forces Abroad, Allies, and the Continental 
United States if Saudi Arabia Ceases Yemen-Related Intelligence 
Sharing with the United States. This section requires the 
President to report to Congress on the risks that would be 
posed if Saudi Arabia were to cease sharing Yemen-related 
intelligence with the United States.

                            DISSENTING VIEWS

    As Ranking Member of the Committee on Foreign Affairs, I am 
disappointed that the first committee business of the 116th 
Congress is such a marked departure from our typical bipartisan 
cooperation on productive legislation. House Joint Resolution 
37 misuses a privileged statutory mechanism that applies only 
when U.S. troops are directly engaged in hostilities, in order 
to create the appearance of action. However it provides no 
clear decisions on which forms of assistance to Gulf states are 
implicated, and no guidance on how best to mitigate the 
humanitarian catastrophe inside Yemen. Alarmingly, it also 
completely ignores the destabilizing role that Iran is playing, 
both in the Yemen conflict and in the region. This is an 
irresponsible approach to United States foreign policy.
    As Republican Members stated during our markup, it is 
problematic that the Committee is rushing to pass a measure 
affecting complex and vital security and humanitarian interests 
before Members--especially the 12 brand new Committee Members--
have had the opportunity to be fully briefed in a classified 
setting on the situation in Yemen, and on the actual nature, 
extent, and purpose of U.S. engagement on the Arabian 
Peninsula.
    The Committee has no more solemn responsibility than its 
exercise of Congressional war powers under Article I of the 
Constitution. The privileged statutory mechanism to force 
withdrawal of U.S. forces under the War Powers Resolution 
(pursuant to sections 1546 and 1546a of Title 50 of the U.S. 
Code) applies only when U.S. troops are engaged in unauthorized 
live-fire hostilities. As the Department of Defense has 
repeatedly confirmed, as recently as this week, U.S. Armed 
Forces are not engaged in hostilities against Houthi forces in 
Yemen. Even the aerial refueling of coalition jets--which does 
not constitute hostilities as traditionally understood--ended 
last November.
    This resolution is trying to hammer a square peg into a 
round hole. It misuses an extraordinary War Powers tool to try 
to get at the issue of security cooperation to third countries. 
It would set a dangerous precedent. It stretches the definition 
of ``hostilities'' to cover non-U.S. military operations by 
other countries. It reinterprets U.S. support to those 
countries as ``engage[ment] in hostilities.'' This has 
implications far beyond Saudi Arabia.
    This approach will allow any single Member to use a 
privileged mechanism to second-guess security cooperation 
relationships that the United States maintains with more than 
100 countries throughout the world. Under this model, if any 
Member of Congress doesn't like something that any of our 
security partners does overseas, that Member can force quick 
consideration of a resolution directing the removal of U.S. 
forces from hostilities ``in or affecting'' that situation. It 
no longer matters that U.S. forces are not actually conducting 
those hostilities. This interpretation could impact our 
assistance to Israel. It could affect our cooperation with NATO 
allies. It could impact our counterterrorism cooperation with 
African nations in the Sahel. We could recklessly undo critical 
security relationships we have spent decades building.
    This is not what the War Powers Resolution has ever meant, 
and it should not be misused this way now.
    No one is saying that U.S. security assistance--to Saudi 
Arabia or anyone else--is beyond Congressional scrutiny. 
Congress has many tools at its disposal, including this 
Committee's arms sales notifications, targeted legislation, and 
the annual appropriations process, among others.
    But House Joint Resolution 37 is not a serious piece of 
targeted legislation. It is a vague and irresponsible political 
stunt that will create new doubts for our partners and allies 
around the world. It will trouble the many Americans who 
believe that burden-sharing with capable allies is vital for 
U.S. national security.
    For these reasons, I strongly oppose this measure.

                                   Michael T. McCaul,
                                           Ranking Member.

                                  [all]
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