Constraining U.S. foreign policy by enforcing current law: a series on Congress’s options to limit arms sales and aid to Saudi Arabia, part 3

Jacques Singer-Emery
Jacques is a second year JD candidate at Harvard Law School and the Deputy Executive Editor of the National Security Law Journal. He has worked as a researcher and policy advisor on violent extremist recruitment, first as a policy advisor NYPD Police Commissioner Bratton, and subsequently as a Case Analyst at the NYPD Intelligence Bureau.

This is the third of a three-part essay series on the different paths the U.S. Congress might take to limit Washington’s support for the Saudi-led coalition in Yemen. Part 1, Part 2


Credible allegations of Saudi war crimes and human rights abuses in Yemen should trigger the FAA and Leahy Laws to prevent U.S. aid from reaching the Saudi-led coalition, as discussed in part 2 of this series. However, the U.S. Constitution forbids Congress from unilaterally issuing orders to any executive agency, including the Defense and State Departments. Accordingly, both the Foreign Assistance Control Act (FAA) and the Leahy laws place the onus on the executive to identify and respond to gross violations of human rights. Thus far, the executive has turned a blind eye to the Saudi coalition’s actions. Congress could independently find that Saudi Arabia has engaged in a “consistent pattern of gross violations of internationally recognized human rights” by commissioning its own investigations. But if the executive remains unconvinced, Congress only has two options to enforce the FAA and the Leahy laws: impeach the President, or obtain a court order requiring the executive withhold aid and arms pursuant to these laws. The first action is unlikely to occur here, but the second is a viable option. To secure a court order, Congress must show that the executive’s refusal to follow the FAA and the Leahy laws uniquely injures the legislative branch in a way that only the courts can remedy.

 

Seeing no evil

Section (b) of the FAA requires that the Secretary of State send an annual report to Congress on the status of internationally recognized human rights in each country proposed as a recipient of U.S. security assistance. This mandated report ensures that the executive and Congress know if any proposed aid recipient is violating human rights. Once this information is presented, section (a)(4) of the FAA makes the President responsible for determining whether a country qualifies as a “gross violator of human rights.” Similarly, Section (a)(1) of the Leahy laws activates the proscription on military aid only “if the Secretary of Defense has credible information that the [receiving] unit has committed a gross violation of human rights.”

Thus far, the Trump administration has largely refused to acknowledge independent reports that have documented Saudi violations of international human rights law. The most recent FAA-mandated State Department report on Saudi Arabia focused on the Kingdom’s domestic human rights record, with only a brief acknowledgement of Riyadh’s Yemen air campaign. Additionally, a recent declassified Defense Department (D0D) report to Congress on U.S. involvement in detention operations in Yemen stated: “DoD has not developed any independent, credible information indicating that U.S. allies or partners have abused detainees in Yemen. . . . [The] Leahy laws would apply, and would be enforced, if the unit[s] responsible for the detainees were receiving U.S. assistance. . . . [H]owever, the foreign partners conducting detention operations in Yemen do not receive U.S. assistance that would be subject to Leahy laws [sic].”

These conclusions directly contradict or ignore the findings of independent monitors like Amnesty International, which might otherwise prompt a presidential determination under the FAA or trigger a Leahy laws proscription. To rebut the Defense and State Departments’ assessments, Congress would need to state on the official Congressional record that it recognizes U.N. and other NGO research as accurately depicting the war in Yemen. After taking this action, Congress could then argue that the President, Secretary of State, and Secretary of Defense have been presented with “credible information,” as defined by the FAA, linking the Saudi coalition to gross violations of human rights.

 

Injunction junction: the process behind the authority of the courts 

After presenting this “credible information,” Congress could try to enforce the FAA and Leahy laws by obtaining a court order, in the form of an injunction or writ of mandamus. However, obtaining either of these court orders is difficult. Generally, the American judiciary prefers to recuse itself from political confrontations between the executive and legislative branches—especially in the realm of foreign affairs.

Nevertheless, the case of U.S. involvement in Yemen represents a rare instance in which the executive’s actions directly conflict with established law. The Supreme Court has recognized that the courts can intervene in a legislative-executive dispute when the executive’s action “amounts to [a] nullification of a particular vote and [the legislative branch’s] votes would have been sufficient to pass or defeat a particular bill.” This means that Congress can sue the executive to demand the President adhere to a law that it has already passed. Willfully ignoring the FAA or the Leahy laws is functionally equivalent to refusing to accept Congress’s ability to write and pass laws.

 

The toothlessness of the FAA

The FAA is a poor candidate for constraining presidential behavior. Even if Congress presents the Trump administration with credible information linking Riyadh to atrocities in Yemen, the the White House retains substantial latitude in determining if those atrocities meet the FAA’s threshold of “a consistent pattern” of gross violations of human rights. Suing the Trump administration using the FAA only allows Congress to seek a court-issued writ of mandamus ordering the White House to publicly determine whether the Saudi coalition’s actions reach the FAA threshold. Because the Trump administration supports Saudi Arabia, such an order would likely lead to a White House determination that the Saudi coalition’s actions do not amount to a pattern of gross violations of human rights. Thus, a “successful” lawsuit under the FAA is unlikely to bar the administration from selling arms and providing military aid to Riyadh.

 

The Leahy Laws: a narrow red line

Unlike the FAA, there is no discretionary component to the Leahy laws. The Secretary of Defense must restrict aid to specific foreign units if he “has credible information that those units have committed a gross violation of human rights.” Consequently, if a court concludes that Congress’s findings about specific Saudi units amount to “credible information,” the Secretary of Defense would be required to halt all U.S. aid, intelligence resources, and training to those units. If the Secretary refused or aid continued to flow despite congressional admonishment, the court could then issue an injunction halting all U.S. assistance to those units.

Such an outcome would nominally achieve all three of Congress’s goals: it would publicly penalize Riyadh in a manner the President cannot soften, signal that the U.S. does not unconditionally support allies that flagrantly violate human rights, and limit the Saudi-led coalition’s air war by reducing the coalition’s access to the weapons and support systems that enable it. The major shortcoming of broadly applying the Leahy laws in the Yemen context lies in their narrow scope. Even if the court sides with Congress, the ruling would only prevent aid from flowing to specific units the court and Congress deem responsible for the human rights violations in question. Therefore, the executive could still supply aid to Saudi Arabia as long as Riyadh did not allow that aid to reach the individual units found to have committed the abuses. Thus, successfully suing the executive using the Leahy laws might achieve the same public relations effect as a bill censuring and sanctioning the Kingdom, but the resulting sanctions would be far more lenient than the further-reaching Saudi Arabia Accountability and Yemen Act.

 

Conclusion

While the executive branch is primarily responsible for U.S. foreign affairs, the Constitution still gives Congress significant oversight in this space. Congress’s break with the President on U.S. foreign policy is neither gratuitous nor new.

Passing the Saudi Arabia Accountability and Yemen Act of 2019 or similar legislation is the most comprehensive way Congress can ban both U.S. arms and military aid to the Kingdom of Saudi Arabia. If any of these bills become law, the Trump administration would be explicitly bound to obey them regardless of the President’s personal stance on Saudi Arabia. Furthermore, if the President tries to veto any of these bills, Congress retains the ability to override a veto by obtaining a two-thirds majority. While the Saudi Arabia Accountability and Yemen Act of 2019 is a bipartisan bill, the House and Senate’s votes on H.J. Res. 37 and S.J. Res. 7 indicate that a two-thirds majority on any issue related to Saudi Arabia and Yemen is unlikely.

However, if two-thirds of Congress will not support the bill, Congress still has options in the form of the FAA and Leahy laws, discussed in post 2, because these laws are written to prevent U.S. support for states that violate human rights. As discussed above in this post, the FAA and the Leahy laws place a great deal of discretion in the President’s purview and Congress may, therefore, only receive a limited amount of relief from the courts. But for Congress, some public tempering of a petulant executive’s stalwart support for Saudi Arabia’s recent actions may be better than none.

 

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