Jose Luis Magana/AP Photo
With the U.S Capitol in the background, demonstrators rally during the March on Washington for Gaza at Freedom Plaza in Washington, Jan. 13, 2024.
This evening, the U.S. Senate rejected a resolution from Sen. Bernie Sanders (I-VT) to require the State Department to write a report detailing any human rights violations stemming from the use of U.S. equipment and military funding in conjunction with Israel’s bombardment of Gaza since the October 7 attacks. The vote to table the resolution was 72-11.
If that report had found human rights violations in Gaza—and we have enough reports of unguided bombs dropped on civilians, denial of humanitarian assistance, and reports of mass starvation that would have to be part of that report—any senator would have to file a separate resolution to alter the level of military support for Israel, and that would need to pass Congress and receive a presidential signature. All tonight’s resolution would have done is provide senators with the tools to make a decision.
“This is a simple request for information,” Sanders explained in a Senate floor speech before the vote. “It does not alter aid to Israel in any way. It simply requests a report on how U.S. aid is being used… It’s frankly hard for me to understand why anyone would oppose it.”
Turns out 72 Senators did.
“There’s a war going on,” complained Sen. Ben Cardin (D-MD), chair of the Senate Foreign Relations Committee. Passing the resolution would be “a gift to Hamas” that “makes it more likely that we would see additional attacks in that region.” He also said that a report from the State Department on Israel’s activities in Gaza was already required, which is odd, considering how Cardin suggested that a Senate vote asking for such a report would set off a parade of horribles.
Sens. Laphonza Butler (D-CA), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Ben Ray Lujan (D-NM), Ed Markey (D-MA), Jeff Merkley (D-OR), Rand Paul (R-KY), Chris Van Hollen (D-MD), Elizabeth Warren (D-MA), and Peter Welch (D-VT) voted against the motion to table, along with Sanders.
The resolution was offered under Section 502B(c) of the Foreign Assistance Act of 1961, a law that belongs in a graveyard with several other congressional powers in matters of foreign policy that too often go resolutely ignored in the face of presidential actions. For example, the Foreign Assistance Act is supposed to ensure that any country receiving arms or assistance from the United States doesn’t violate international human rights laws. But that would require Congress to actually find out about such violations and act on the information.
This is a bridge too far for Congress, which has spent close to half a century now preferring to bluster about presidential foreign-policy decisions instead of doing anything about it. Members of Congress either want to protect the president of their own party, or have something to yell about the president of the opposing party. Actually voting to take control of war policy, and shouldering the responsibility for the aftermath, is way down the priority list. So we get nothing but occasional bluster; really what we get is an abdication of the enumerated foreign-policy laws of the United States.
This drama is playing out without Congress’s input, a consequence of congressional reluctance to speak up.
Congress has not requested a Section 502B(c) report from the State Department since 1976. America has delivered hundreds of billions of dollars in foreign military assistance to hundreds of countries around the world in that time, including many that have been credibly accused of human rights violations, from Egypt to Saudi Arabia to Turkey to Pakistan to the UAE.
Giving these countries military aid violates U.S. law. Yet all of them are geopolitical partners in one way or another, and in the analysis of whether to follow that law and condition aid based on human rights violations, countries we like (or at least need as partners) get a lot less scrutiny and finger-wagging. Legislators who under the statute are supposed to enforce this provision mostly play along.
“The reality is that the Senate has a strong muscle memory around not asserting themselves in foreign policy. Even when it means enabling harmful foreign policy,” said Andrew O’Neill, legislative director for Indivisible, in a statement after the vote. He hoped that using 502B(c), even in a losing effort, “can be the start of something bigger.”
But Congress wincing in the face of making decisions on foreign policy matters does not end with Section 502B(c). There’s even a second provision, known as the Leahy Law because Sanders’s former Vermont colleague in the Senate, Patrick Leahy, first introduced it. That law also bans the U.S. from offering military assistance to countries that violate human rights. At best, the Leahy Law has been invoked sparingly and with much grumbling by the national-security establishment; at worst, like in the case of Israel, there’s something of an exception, as managing editor of Lawfare Tyler McBrien explained to The Intercept. The State Department is supposed to vet for human rights violations before sending aid; with respect to Israel, that aid goes out and the reports (if any) come later.
And so we have laws of the United States in foreign-policy matters that in practice work like vestigial organs, technically operative but serving little of an actual function. It’s no less true in foreign assistance than it is in war powers, a delegated constitutional responsibility of the legislative branch.
Since passage of the War Powers Act in 1973, Congress has only successfully passed one resolution to end support for a war initiated by a president, in 2019. That resolution, to end support for Saudi intervention in Yemen, was vetoed by President Trump, and another resolution passed in the wake of a U.S. drone strike on Iranian General Qassem Soleimani was also vetoed.
Last week, the Biden administration conducted airstrikes against Houthi forces in Yemen, which had been firing on cargo ships in the Red Sea in protest of Israel’s Gaza campaign and U.S. support for it. This was described as a “defensive” action to protect naval personnel who often safeguard commercial trade through the Red Sea, a key commercial shipping lane.
Many members of Congress were having none of it, speaking across party lines that the attacks were unconstitutional without congressional approval. There are reporting requirements in the War Powers Act that often are confused with the idea that a president can carry out military strikes as long as Congress is informed after the fact. This is incorrect. Section 2C of the act states that the president can only enter into hostilities if there’s “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Biden’s invocation of “defensive” measures was an attempt to frame the strikes as legal, either under the national emergency clause (an attack on the U.S. armed forces) or as a means of defending against further attacks. That was good enough for many members of Congress, including the House and Senate leadership.
But it’s a bit of a leap. Most of the drones and missiles have been shot down. The biggest impact has been to push some commercial vessels away from the Suez Canal, extending their journeys slightly. (For what it’s worth, this will likely move cargo toward the Ports of Los Angeles and Long Beach.)
“From an economic perspective, we’re not seeing huge increase in oil and gas prices” thus far, said one macroeconomist to The New York Times; in fact, gas prices have fallen below $3 a gallon in most of the country, which stands to reason given the domestically. Even National Economic Council director Lael Brainard has said there has been “very little” impact. Are we really calling the temporary suspension of some European Tesla and Volvo production a national emergency worthy of military action?
The War Powers notification that Biden sent to Congress framed the attacks as an effort “to deter the Houthi militants from conducting or supporting further attacks.” But as the International Crisis Group’s Brian Finucane explained, the U.S.-led strikes have not stopped daily Houthi missile launches, one of which hit a U.S. container ship on Monday.
What will stop the attacks is a cease-fire in Gaza, but the president has so far been unwilling to take that step, despite leaks to the press every couple of days about “losing patience” with Prime Minister Benjamin Netanyahu. In practice, the White House continues to block every effort at ending the attacks on Gaza.
Unfortunately, this drama is playing out without Congress’s input, a consequence of congressional reluctance to speak up. While public calls for a cease-fire can raise pressure on the White House, Congress actually has more tools than that, but they refuse to use them consistently. If there were more resistance using the actual checks and balances in the law, maybe the Biden administration wouldn’t feel unconstrained from initiating attacks on Yemen or avoiding congressional oversight in sending Israel more munitions. And maybe Netanyahu wouldn’t feel emboldened to reject any overtures for winding down attacks.
In other words, there’s a through line between Netanyahu’s defiance and Congress’s failure to make foreign-policy choices under their statutory authority.
