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Congress Signals Concern Over U.S. Role in Aiding Saudi Arabia's Activities in Yemen

Published online by Cambridge University Press:  14 January 2019

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As the conflict in Yemen continues, congressional concern over U.S. support for the Saudi-led coalition fighting in the region has grown. The objects of these concerns include thousands of civilian casualties, a cholera epidemic, and a country on the brink of famine. In October 2018, relations between the United States and Saudi Arabia became further complicated by the brutal death of Jamal Khashoggi, a prominent journalist and outspoken critic of the Saudi government.

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Type
International Human Rights and Humanitarian Law
Information
American Journal of International Law , Volume 113 , Issue 1 , January 2019 , pp. 159 - 169
Copyright
Copyright © 2019 by The American Society of International Law 

As the conflict in Yemen continues, congressional concern over U.S. support for the Saudi-led coalition fighting in the region has grown.Footnote 1 The objects of these concerns include thousands of civilian casualties, a cholera epidemic, and a country on the brink of famine.Footnote 2 In October 2018, relations between the United States and Saudi Arabia became further complicated by the brutal death of Jamal Khashoggi, a prominent journalist and outspoken critic of the Saudi government.Footnote 3

Since 2011, the United States has carried out counterterrorism operations in Yemen aimed at Al Qaeda in the Arabian Peninsula (AQAP) and later also at the Islamic State of Iraq and the Levant (ISIL).Footnote 4 As grounds under domestic law for these military actions, the United States continues to rely upon Congress's 2001 Authorization for the Use of Military Force against groups responsible for the terrorist attacks on September 11, 2001.Footnote 5 At the international level, the internationally recognized government of Yemen has consented to these operations.Footnote 6 In December 2017, U.S. Central Command acknowledged that “U.S. forces have conducted multiple ground operations and more than 120 strikes in 2017” against AQAP and ISIL in Yemen.Footnote 7 As of November 6, 2018, it reported thirty-six air strikes for the year to date.Footnote 8

Separate from its own military operations, the United States has supported the Saudi-led campaign against the Houthi movement in Yemen.Footnote 9 In March 2015, President Obama “authorized the provision of logistical and intelligence support” and established a planning mechanism “with Saudi Arabia to coordinate U.S. military and intelligence support.”Footnote 10 This assistance included refueling for warplanes and targeting information, but not direct military involvement in the conflict.Footnote 11 The following year, the Obama administration began to review and scale back U.S. assistance to the coalition due to concern over the high rate of civilian casualties.Footnote 12 It also began emphasizing the need for a political settlement to the conflict.Footnote 13 By December 2016, the Obama administration had decreased the number of personnel working with the coalition in Riyadh and deferred the planned sale of about $350 million dollars’ worth of precision guided munitions.Footnote 14 Refueling assistance remained in effect, however, and some arms sales continued.Footnote 15

After taking office, President Trump continued and enhanced the Obama administration's facilitation of the Saudi-led campaign. During his trip to Riyadh in May 2017, he approvingly described the “strong action against Houthi militants in Yemen” as a “significant contribution[] to regional security” on the part of Saudi Arabia and its coalition.Footnote 16 He announced an arms deal with the kingdom worth $110 billion, saying it would “help the Saudi military to take a greater role in security operations.”Footnote 17 This deal included the sale of precision-guided munitions.Footnote 18

In June 2017, the Senate rejected a proposal to block the sale of $500 million in precision-guided munitions, by a vote of 53–47.Footnote 19 Senators Rand Paul, Chris Murphy, and Al Franken, the resolution's sponsors, sought to prohibit the transaction because they believe the coalition to be using these weapons to target civilians.Footnote 20 After the vote, Senator Murphy tweeted: “My resolution halting $500m of Saudi arms sale failed 47–53. But twenty more votes than similar resolution last fall. Strong message to Saudis.”Footnote 21 This narrowing margin signaled growing concern over the Saudi-led coalition's actions in Yemen and the rising number of civilian casualties. The Trump administration, however, stated that providing the coalition with such munitions was necessary to help it avoid hitting civilians and noted that the sale would be accompanied by training aimed at reducing civilian casualties.Footnote 22

In August 2018, Congress took action with the passage of the National Defense Authorization Act for Fiscal Year 2019 (NDAA).Footnote 23 The act contains multiple provisions that bear on the humanitarian crisis in Yemen and on civilian casualties more generally. Most notably, the Senate Armed Services committee incorporated an earlier proposed joint resolution into the NDAA, which passed with little modification as Section 1290 of the act.Footnote 24 Senator Todd Young commented: “The legislation—which would represent one of the more substantive actions by Congress in years related to Yemen—seeks to end the civil war in Yemen, protect civilians, and address the world's largest humanitarian disaster where approximately eight million people are at risk of famine.”Footnote 25

Section 1290 prohibits appropriations for in-flight refueling of coalition aircrafts if the secretary of state cannot certify that the governments of Saudi Arabia and the United Arab Emirates are undertaking:

  1. (A) an urgent and good faith effort to support diplomatic efforts to end the civil war in Yemen;

  2. (B) appropriate measures to alleviate the humanitarian crisis in Yemen by increasing access for Yemenis to food, fuel, medicine, and medical evacuation, including through the appropriate use of Yemen's Red Sea ports, including the port of Hudaydah, the airport in Sana'a, and external border crossings with Saudi Arabia; and

  3. (C) demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure resulting from military operations of the Government of Saudi Arabia and the Government of the United Arab Emirates in Yemen, including by —

    1. (i) complying with applicable agreements and laws regulating defense articles purchased or transferred from the United States; and

    2. (ii) taking appropriate steps to avoid disproportionate harm to civilians and civilian infrastructure … .Footnote 26

The provision allows the secretary of state to waive these restrictions if he or she specifies that doing so is in the national security interest of the United States, explains why the certification cannot be made, and describes the actions the administration is taking to bring the governments of Saudi Arabia and the United Arab Emirates into compliance.Footnote 27 The provision also includes a detailed reporting obligation that requires the administration to provide Congress with briefings about the situation in Yemen and a strategy to accomplish the objectives of the provision.Footnote 28

In Trump's signing statement for the NDAA, he observed that Section 1290 “purport[s]” to require the president to notify Congress before taking certain military or diplomatic actions.Footnote 29 He deemed this provision to “encompass only actions for which such advance certification or notification is feasible and consistent with the President's exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs.”Footnote 30

Two other provisions of the NDAA signal concern over civilian casualties in conjunction with U.S. military operations in general.Footnote 31 Section 936 calls for the designation of a senior civilian official in the Department of Defense “to develop, coordinate, and oversee compliance with the policy of the Department relating to civilian casualties resulting from United States military operations.”Footnote 32 The statutory provision sets out specific responsibilities for this official, including the development of “uniform processes and standards across combatant commands for accurately recording kinetic strikes by the United States military” and “the development and dissemination of best practices for reducing the likelihood of civilian casualties from United States military operations.”Footnote 33 The other provision—Section 1062—modifies and expands the civilian casualty reporting requirement included in the National Defense Authorization Act For Fiscal Year 2018.Footnote 34 Among other things, it makes clear that Congress wants reporting on “each specific mission, strike, engagement, raid, or incident” that is suspected to have caused civilian casualties and that this reporting should include “a differentiation between those killed and those injured.”Footnote 35 While Trump raised issues about both provisions in his signing statement,Footnote 36 the Department of Defense later designated an official pursuant to Section 936.Footnote 37

In September 2018, Secretary of State Mike Pompeo provided an initial certification under Section 1290,Footnote 38 thereby enabling continued U.S. in-flight refueling of coalition aircrafts. He announced: “[T]he governments of Saudi Arabia and United Arab Emirates are undertaking demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure resulting from military operations of these governments.”Footnote 39 Reporting suggests that Pompeo rejected concerns from State Department specialists worried about the rising death toll in the region and instead aligned himself with his legislative affairs team, which expressed concern that non-certification could undermine arm sales.Footnote 40

Pompeo's certification came amid heightened concern about civilian casualties caused by the Saudi-led coalition. On August 9, the coalition bombed a bus carrying about sixty students, ages eight to fourteen, to a mosque for an end of summer celebration, killing more than forty of these children.Footnote 41 Saudi Arabia initially characterized the action as a “legitimate military action”Footnote 42 but later issued a rare apology, concluding “that there were mistakes made in abiding by the rules of engagement.”Footnote 43 Later in August, the UN Office of the High Commissioner for Human Rights issued a report based on an earlier and extensive fact-finding mission which sharply criticized the coalition. It identified 6,475 civilian deaths from attacks in Yemen between March 2015 and June 2018, with most of these attacks carried out by coalition air strikes.Footnote 44 Among the conclusions of the independent experts who generated the report were that individuals in the coalition “may have conducted attacks in violation of the principles of distinction, proportionality and precaution that may amount to war crimes.”Footnote 45 The report also noted that since “April 2017, a cholera epidemic has swept through Yemen at an unprecedented scale” and that, as of May 2018, 8.4 million people “were on the brink of famine.”Footnote 46

Within a month of Pompeo's decision to issue the Section 1290 certification, a bipartisan group of senators wrote a letter stating that “we find it difficult to reconcile known facts” with Pompeo's decision.Footnote 47 The letter continued:

[Y]ou certified that the Governments of Saudi Arabia and the United Arab Emirates (UAE) are undertaking “demonstrable actions to reduce the risk of harm to civilians and civilian infrastructure resulting from military operations” in Yemen.

Several facts on the ground in Yemen, however, cast serious doubt on this certification. There has been a dramatic increase in civilian casualties and deaths from Saudi-led coalition airstrikes over the last few months. The death of dozens of children in successive Saudi airstrikes in August tragically and definitively underscored this trend and the failure of the Saudi-led coalition to undertake demonstrable actions to reduce the risk of harm to civilians.

…

In short, we are skeptical a certification that the two Governments have undertaken demonstrable actions to reduce the harm to civilians is warranted when the Saudi coalition has failed to adopt some U.S. recommendations while civilian deaths and casualties due to coalition airstrikes have increased dramatically in recent months.Footnote 48

In addition to concern about the Section 1290 certification, individual members of Congress have expressed more general alarm over U.S. support for the Saudi-led coalition. Senator Murphy accused the Trump administration of “turning a blind eye to likely war crimes.”Footnote 49 In a letter to the Department of Defense's inspector general, Representative Ted Lieu stated: “I am deeply concerned that continued U.S. refueling, operational support functions and weapons transfers could qualify as aiding and abetting these potential war crimes.”Footnote 50 Members of Congress have also introduced legislation to end U.S. support for the coalition.Footnote 51

U.S.-Saudi relations have become further complicated by the brutal death of Jamal Khashoggi. Once a top journalist in Saudi Arabia, he had moved to Washington D.C. in 2017,Footnote 52 where he published columns in the Washington Post criticizing Saudi policy and Mohammed bin Salman, the Saudi crown prince.Footnote 53 On the afternoon of October 2, 2018, Khashoggi entered the Saudi consulate in Istanbul to obtain paperwork that he needed to marry his fiancée.Footnote 54 Instead, he was met by a team of operatives that had flown in from Saudi Arabia that morning to wait for him at the embassy. He was killed. According to reporting sourced to a Turkish official, Khashoggi “was dead within minutes, beheaded, dismembered, his fingers severed, and within two hours the killers were gone.”Footnote 55 Around the time of his death, a Saudi forensic expert flew in from Riyadh, arrived at the consulate, remained there for hours, and then returned again to Riyadh that evening.Footnote 56 The forensic expert was apparently brought in to dismember Khashoggi's body for concealment.Footnote 57

Faced with international outrage over the weeks that followed, Saudi Arabia cycled through conflicting narratives, including that Khashoggi had left the embassy without harm; that he had accidentally died in a fistfight in the embassy; that he was strangled by a team that had been sent to kidnap rather than kill him; and that he was killed by a lethal tranquilizer on the order of one intelligence agent at the embassy.Footnote 58 Although an affiliate of Mohammed bin Salman was present at Khashoggi's killing, the Saudi government has claimed that the crown prince did not authorize the murder or know about it in advance.Footnote 59

On October 23, Pompeo announced that “[w]e have identified at least some of the individuals responsible, including those in the intelligence services, the Royal Court, the foreign ministry, and other Saudi ministries who we suspect to have been involved in Mr. Khashoggi's death” and that “[w]e are taking appropriate actions, which include revoking visas, entering visa lookouts, and other measures.”Footnote 60 He added that “[w]e continue to maintain a strong partnership with the Kingdom of Saudi Arabia.”Footnote 61 On November 15, the State Department further announced sanctions pursuant to the Global Magnitsky Human Rights Accountability Act on seventeen Saudi government officials that it deemed implicated in Khashoggi's killing.Footnote 62 That same day, the Saudi public prosecutor announced the filing of criminal charges against eleven alleged perpetrators and expressed the intention of seeking the death penalty against five of them.Footnote 63

The Saudi officials sanctioned by the State Department did not include Mohammed bin Salman, although news reporting has suggested that the Central Intelligence Agency (CIA) has concluded with “high confidence” that the crown prince ordered Khashoggi's murder.Footnote 64 On November 20, Trump issued a statement indicating reluctance to hold the crown prince accountable.Footnote 65 The statement included the following:

The world is a very dangerous place!

…

… Saudi Arabia would gladly withdraw from Yemen if the Iranians would agree to leave. They would immediately provide desperately needed humanitarian assistance. …

After my heavily negotiated trip to Saudi Arabia last year, the Kingdom agreed to spend and invest $450 billion in the United States. … Of the $450 billion, $110 billion will be spent on the purchase of military equipment from Boeing, Lockheed Martin, Raytheon and many other great U.S. defense contractors. If we foolishly cancel these contracts, Russia and China would be the enormous beneficiaries—and very happy to acquire all of this newfound business. …

The crime against Jamal Khashoggi was a terrible one, and one that our country does not condone. Indeed, we have taken strong action against those already known to have participated in the murder. …

… King Salman and Crown Prince Mohammad bin Salman vigorously deny any knowledge of the planning or execution of the murder of Mr. Khashoggi. Our intelligence agencies continue to assess all information, but it could very well be that the Crown Prince had knowledge of this tragic event—maybe he did and maybe he didn't!

That being said, we may never know all of the facts surrounding the murder of Mr. Jamal Khashoggi. In any case, our relationship is with the Kingdom of Saudi Arabia. They have been a great ally in our very important fight against Iran. The United States intends to remain a steadfast partner of Saudi Arabia to ensure the interests of our country, Israel, and all our other partners in the region.Footnote 66

Trump's statement triggered outrage from members of Congress of both parties. Senator Chuck Schumer tweeted that this is “not how a U.S. President responds to the murder of a journalist and American resident.”Footnote 67 As another even more pointed example, Senator Bob Corker tweeted that “I never thought I'd see the day a White House would moonlight as a public relations firm for the Crown Prince of Saudi Arabia.”Footnote 68

Khashoggi's death has also drawn additional attention to U.S. involvement in the Saudi coalition's campaign in Yemen. Not long after the killing, Senator Paul promised to force a floor vote over future arms sales to Saudi Arabia,Footnote 69 and several other senators introduced a bill that would impose sanctions and other measures on those responsible for the crisis in Yemen and for the death of Khashoggi.Footnote 70 In a notable signal, the Senate also voted 63–37 to advance a resolution aimed at ending U.S. military support for the Saudi-led coalition.Footnote 71 “The Senate then approved this resolution, 56–41, and also unanimously approved a resolution expressing its view that Mohammed bin Salman was involved in Khashoggi's death.”Footnote 72 In the executive branch as well, several policy developments occurred in the months that followed Khashoggi's death. Pressure mounted to stop refueling of the Saudi-led coalition, leading Saudi Arabia to preemptively announce that it would no longer seek U.S. assistance with refueling.Footnote 73 In another development, Pompeo urged a ceasefire, saying that “[t]he United States calls on all parties to support UN Special Envoy Martin Griffiths in finding a peaceful solution to the conflict in Yemen … . The time is now for the cessation of hostilities.”Footnote 74

References

1 See Christopher M. Blanchard & Jeremy M. Sharp, Cong. Research Serv., R45046, The War in Yemen: A Compilation of Legislation in the 115th Congress 5–7 (2018), available at https://fas.org/sgp/crs/mideast/R45046.pdf [https://perma.cc/9BFH-Y2QD].

2 See generally Situation of Human Rights in Yemen, Including Violations and Abuses Since September 2014, Rep. of the H.R.C., UN Doc. A/HRC/39/43 (2018) [hereinafter Situation of Human Rights in Yemen].

3 See Mark Landler & Edward Wong, Trump Says Saudi Account of Khashoggi Killing Is “Worst Cover-Up” in History, N.Y. Times (Oct. 23, 2018), at https://www.nytimes.com/2018/10/23/us/politics/khashoggi-cover-up-trump.html (discussing how the killing of Khashoggi is causing tension between Saudi Arabia and the United States, including with respect to arms sales).

4 Oona Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy & Alyssa Yamamoto, The Yemen Crisis and the Law: The Saudi-Led Campaign and U.S. Involvement, Just Security (Feb. 20, 2018), at https://www.justsecurity.org/52718/js-yemen-crisis-forum-saudi-campaign-us-involvement.

5 Id.; see also Letter from Charles Faulkner, U.S. Dep't of State Bureau of Legis. Aff. to Senator Bob Corker, Chairman, Senate Committee on Foreign Rel. (Aug. 2, 2017), available at https://www.politico.com/f/?id=0000015d-a3bf-d43a-a3dd-b3bf14170000 [https://perma.cc/UB3A-ZSCH].

6 Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 523, 526 & n. 30 (2017)Google Scholar (discussing the “complicated” nature of this consent in light of the fact that Yemen's internationally recognized government is effectively in exile); see also Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations 6 (Mar. 2018), available at https://assets.documentcloud.org/documents/4411804/3-18-War-Powers-Transparency-Report.pdf (stating that “[a]s a matter of international law, we note that the airstrikes against ISI[L] have been conducted with the consent of the Government of Yemen in the context of its armed conflict against ISI[L] and also in furtherance of U.S. national self-defense”); Cf. David E. Sanger & Eric Schmitt, Yemen Withdraws Permission for U.S. Antiterror Ground Missions, N.Y. Times (Feb. 7, 2017), at https://www.nytimes.com/2017/02/07/world/middleeast/yemen-special-operations-missions.html (reporting that, following a raid that led to the death of Yemeni children and a U.S. servicemember, Yemen withdrew its permission for the United States to conduct ground attacks but left in place its acceptance of U.S. drone strikes).

7 U.S. Cent. Comm. Press Release, Update on Recent Counterterrorism Strikes in Yemen (Dec. 20, 2017), at http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/1401383/update-on-recent-counterterrorism-strikes-in-yemen [https://perma.cc/2JQW-9ALE].

8 U.S. Cent. Comm. Press Release, CENTCOM Updates Counterterrorism Strikes in Yemen (Nov. 6, 2018), at http://www.centcom.mil/MEDIA/PRESS-RELEASES/Press-Release-View/Article/1683907/centcom-updates-counterterrorism-strikes-in-yemen [https://perma.cc/BL4A-5PEQ].

9 See Hathaway, Francis, Haviland, Kethireddy & Yamamoto, supra note 4 (elaborating on these issues and also noting that the Houthis are deemed to be supported by Iran).

10 White House Press Release, Statement by NSC Spokesperson Bernadette Meehan on the Situation in Yemen (Mar. 25, 2015), at https://obamawhitehouse.archives.gov/the-press-office/2015/03/25/statement-nsc-spokesperson-bernadette-meehan-situation-yemen; cf. Daugirdas & Mortenson, supra note 6, at 531–33 (discussing circumstances under which U.S. aid to the Saudi military campaign might violate international law); Oona Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy & Alyssa Yamamoto, Yemen: Is the U.S. Breaking the Law?, __ Harv. Nat'l Sec. L.J. __ (forthcoming 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3272263 (analyzing the legality of U.S. involvement in Yemen under both international and domestic law).

11 Daugirdas & Mortenson, supra note 6, at 523.

12 Id. at 529.

13 Id.

14 Id. at 529–30.

15 Id.

16 Donald J. Trump, Remarks at the Arab Islamic American Summit in Riyadh, Saudi Arabia, 2017 Daily Comp. Pres. Doc. No. 350 at 4 (May 21).

17 Id. at 2. For other aspects of the Trump administration's support for the Saudi-led coalition, see Blanchard & Sharp, supra note 1, at 2–4.

18 Mark Landler, Eric Schmitt & Matt Apuzzo, $110 Billion Weapons Sale to Saudis Has Jared Kushner's Personal Touch, N.Y. Times (May 18, 2017), at https://www.nytimes.com/2017/05/18/world/middleeast/jared-kushner-saudi-arabia-arms-deal-lockheed.html?module=inline.

19 S. Res. 42, 115th Cong. (2017); 163 Cong. Rec. S100, 3427–28 (daily ed. June 13, 2017); see also Anne Gearan, Symbolic Effort to Block Part of Saudi Arms Sale Falls Short in the Senate, Wash. Post (June 13, 2017), at https://www.washingtonpost.com/world/national-security/symbolic-effort-to-block-part-of-saudi-arms-sale-falls-short-in-the-senate/2017/06/13/d68944f8-506a-11e7-b064-828ba60fbb98_story.html?utm_term=.22fe01b8f3b0.

20 Gearan, supra note 19.

21 Chris Murphy (@ChrisMurphyCT), Twitter (June 13, 2017, 12:09 PM), at https://twitter.com/ChrisMurphyCT/status/874705391371911168.

22 Eric Schmitt, Saudi Arabia Tries to Ease Concerns Over Civilian Deaths in Yemen, N.Y. Times (June 14, 2017), at https://www.nytimes.com/2017/06/14/world/middleeast/saudi-arabia-arms-training-yemen.html. A year later, the Trump administration submitted the sale of more than 120,000 precision-guided munitions to the coalition for congressional review, again arguing that precision-guided munitions reduce the risk of civilian casualties. Patricia Zengerle, Pompeo Says Precision-Guided Missiles, as in Yemen, Cut Risks to Civilians, Reuters (May 23, 2018), at https://www.reuters.com/article/us-usa-pompeo-arms-saudi/pompeo-says-precision-guided-missiles-as-in-yemen-cut-risks-to-civilians-idUSKCN1IO2LD.

23 John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232 (2018).

24 Blanchard & Sharp, supra note 1, at 5; see also Letter from Senators Todd Young, Jeanne Shaheen, Susan M. Collins, Christopher S. Murphy, Benjamin L. Cardin, Jack Reed, Christopher A. Coons, Tim Kaine & Cory A. Booker to Mike Pompeo, Secretary of State, U.S. Dep't of State & James Mattis, Secretary of Defense, U.S. Dep't of Defense (Aug. 29, 2018), available at https://www.young.senate.gov/imo/media/doc/2018.08.29%20Letter%20to%20SecState%20Pompeo_YoungShaheen_Yemen%20Statute.pdf [https://perma.cc/3TMP-V82F] (stating that this provision “enjoys … broad, bipartisan, and bicameral support”).

25 U.S. Senate, Senator Todd Young Press Release, Young, Shaheen Successfully Include Yemen Provision in NDAA Conference Report (July 24, 2018), at https://www.young.senate.gov/newsroom/press-releases/young-shaheen-successfully-include-yemen-provision-in-ndaa-conference-report [https://perma.cc/PQF7-PC3L].

26 Pub. L. No. 115-232 § 1290(c)(1) (2018). The potential restrictions, however, do not apply to appropriations for in-flight refueling of coalition aircrafts used in certain operations, including counterterrorism missions against AQAP and ISIL and actions to prevent “the transport, assembly, or employment of ballistic missiles or components in Yemen.” § 1290(a)(1)(A)–(B).

27 § 1290(a)(2).

28 § 1290(b).

29 Donald J. Trump, Statement on Signing the John S. McCain National Defense Authorization Act for Fiscal Year 2019, 2018 Daily Comp. Pres. Doc. No. 533 at 1 (Aug. 13) [hereinafter Trump Signing Statement].

30 Id.; see also Scott R. Anderson, What to Make of Trump's NDAA Signing Statement, Lawfare (Aug. 23, 2018), at https://www.lawfareblog.com/what-make-trumps-ndaa-signing-statement (considering that this standard of “‘feasible and consistent’ … actually implies that the Trump administration accepts the validity of the [relevant] NDAA provisions … in at least some scenarios”).

31 For a longer discussion of these provisions, see Rita Siemion, Two Important New Civilian Casualties Provisions in the Defense Authorization Bill, Just Security (July 24, 2018), at https://www.justsecurity.org/59695/important-civilian-casualties-provisions-congressional-bill-national-defense-authorization-act.

32 Pub. L. No. 115-232 § 936(a).

33 § 936(b) (also imposing a reporting obligation on this official).

34 § 1062(a).

35 Id.

36 Trump Signing Statement, supra note 29, at 1 (stating with respect to Section 936 that “my Administration will implement [this provision] consistent with the President's authority as Commander in Chief”); id. at 2 (stating with respect to Section 1062 that the information sought might be subject to “executive privilege” and further that the administration considers this provision “as not requiring changes in underlying DOD processes for battle damage assessment and investigation”).

37 Department of Defense, Memorandum of the Under Secretary of Defense for Policy Designating a Senior Civilian Official for Civilian Casualty Policy (Oct. 23, 2018), available at https://www.humanrightsfirst.org/sites/default/files/CIVCAS_Coord%20_Memo_Final.pdf (designating the deputy under secretary of defense for policy as this official).

38 See generally Certification Under Section 1290 of the John S. McCain Nation Defense Authorization Act for Fiscal Year 2019 Related to Military Assistance for Saudi Arabia and the United Arab Emirates by Secretary of State Mike Pompeo, available at https://www.young.senate.gov/imo/media/doc/Yemen%20Certification%20Unclassified.pdf [https://perma.cc/VS8P-83A6].

39 U.S. Dep't of State Press Release, Certification to Congress on Actions of Saudi Arabia and UAE in Yemen Under the NDAA (Sept. 12, 2018), at https://www.state.gov/secretary/remarks/2018/09/285861.htm [https://perma.cc/X3Y7-U77Z]. Defense Secretary Mattis endorsed Pompeo's certification stating, “[T]he governments of Saudi Arabia and United Arab Emirates are making every effort to reduce the risk of civilian casualties and collateral damage to civilian infrastructure resulting from their military operations to end the civil war in Yemen.” U.S. Dep't of Defense Press Release, Statement by Secretary of Defense James N. Mattis on Actions of Saudi Arabia and UAE in Yemen (Sept. 12, 2018), at https://dod.defense.gov/News/News-Releases/News-Release-View/Article/1628689/statement-by-secretary-of-defense-james-n-mattis-on-actions-of-saudi-arabia-and [https://perma.cc/C3GT-A23Z].

40 Dion Nissenbaum, Top U.S. Diplomat Backed Continuing Support for Saudi War in Yemen Over Objections of Staff, Wall St. J. (Sept. 20, 2018), at https://www.wsj.com/articles/top-u-s-diplomat-backed-continuing-support-for-saudi-war-in-yemen-over-objections-of-staff-1537441200.

41 Ali Al-Mujahed & Sudarsan Raghavan, Airstrike by U.S.-Backed Saudi coalition on Bus Kills Dozens of Yemeni Children, Wash. Post (Aug. 9, 2018), at https://www.washingtonpost.com/world/middle_east/airstrike-by-us-ally-on-bus-carrying-yemeni-children-kills-and-wounds-scores/2018/08/09/c047e55e-bbc6-42ff-a5db-4bd2e629f0b6_story.html?utm_term=.182f4c078f35.

42 Id.

43 The Embassy of the Kingdom of Saudi Arabia Press Release, Statement from the Coalition to Restore Legitimacy in Yemen on August 9th JIAT Investigation Findings (Sept. 4, 2018) at https://www.saudiembassy.net/news/statement-coalition-restore-legitimacy-yemen-august-9th-jiat-investigation-findings [https://perma.cc/2DWJ-PGHH].

44 Situation of Human Rights in Yemen, supra note 2, at 5 (noting that “the real figure is likely to be significantly higher”); see also Yemen: United Nations Experts Point to Possible War Crimes by Parties to the Conflict (Aug. 28, 2018), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23479 [https://perma.cc/UWC4-8BJB].

45 Situation of Human Rights in Yemen, supra note 2, at 14 (also finding that that coalition members “have committed acts that may amount to war crimes, including cruel treatment and torture, outrages upon personal dignity, rape and conscripting or enlisting children under the age of 15 or using them to participate actively in hostilities”).

46 Id. at 30–31. This number increased dramatically in subsequent months. See Humanitarian Aid, Half the Population of Yemen at Risk of Famine: UN Emergency Relief Chief, UN News (Oct. 23, 2018), at https://news.un.org/en/story/2018/10/1023962 [https://perma.cc/LMN8-FK8M] (estimating that as of October 2018, 14 million people were at risk of famine).

47 Letter from Senators Todd Young, Jeanne Shaheen, Susan M. Collins, Christopher A. Coons, Jerry Moran, Christopher S. Murphy & Jeffrey A. Merkley to Mike Pompeo, Secretary of State, U.S. Dep't of State (Oct. 10, 2018), available at https://www.young.senate.gov/imo/media/doc/2018.10.10%20Letter%20to%20Secretary%20Pompeo%20(Yemen%20Certification).pdf [https://perma.cc/EL9W-PHPE].

48 Id.

49 U.S. Senate, Senator Chris Murphy Press Release, Murphy Statement on Administration Claim That Saudi-Led War in Yemen Complies With The Law (Sept. 12, 2018), at https://www.murphy.senate.gov/newsroom/press-releases/_murphy-statement-on-administration-claim-that-saudi-led-war-in-yemen-complies-with-the-law [https://perma.cc/FN39-VNNJ].

50 Letter from Representative Ted Lieu to Glenn A. Fine, Acting Inspector General, U.S. Dep't of Defense (Aug. 13, 2018), available at https://lieu.house.gov/sites/lieu.house.gov/files/2018-08-13%20TWL%20Letter%20to%20DoD%20IG%20Fine%20-%20Yemen.pdf [https://perma.cc/F4T7-CK2X].

51 E.g., H.R. Con. Res. 138, 115th Cong. (2018); S. Res. 54, 115th Cong. (2018); see also U.S. Senate, Senator Bernie Sanders Press Release, Sanders to Bring Back War Powers Resolution to End Unauthorized U.S. Military Involvement in Yemen (Oct. 15, 2018), at https://www.sanders.senate.gov/newsroom/press-releases/sanders-to-bring-back-war-powers-resolution-to-end-unauthorized-us-military-involvement-in-yemen [https://perma.cc/9ULJ-22GA].

52 Carlotta Gall, What Happened to Jamal Khashoggi? Conflicting Reports Deepen a Mystery, N.Y. Times (Oct. 3, 2018), at https://www.nytimes.com/2018/10/03/world/middleeast/khashoggi-saudi-journalist-istanbul.html.

53 E.g., Jamal Khashoggi, Saudi Arabia's Crown Prince Must Restore Dignity to His Country — by Ending Yemen's Cruel War, Wash. Post (Sept. 11, 2018), at https://www.washingtonpost.com/news/global-opinions/wp/2018/09/11/saudi-arabias-crown-prince-must-restore-dignity-to-his-country-by-ending-yemens-cruel-war/?utm_term=.94e4d30f26a7; Jamal Khashoggi, Saudi Arabia's Crown Prince Already Controlled the Nation's Media. Now He's Squeezing It Even Further, Wash. Post (Feb. 7, 2018), at https://www.washingtonpost.com/news/global-opinions/wp/2018/02/07/saudi-arabias-crown-prince-already-controlled-the-nations-media-now-hes-squeezing-it-even-further/?utm_term=.d3b5193abef1.

54 Gall, supra note 52.

55 David D. Kirkpatrick & Carlotta Gall, Audio Offers Gruesome Details of Jamal Khashoggi Killing, Turkish Official Says, N.Y. Times (Oct. 17, 2018), at https://www.nytimes.com/2018/10/17/world/europe/turkey-saudi-khashoggi-dismember.html (further noting that Turkey apparently possessed audio tapes of what transpired within the Saudi consulate).

56 Aaron C. Davis & Erin Cunningham, Saudi Forensic Expert is Among 15 Named by Turkey in Disappearance of Journalist Jamal Khashoggi, Wash. Post (Oct. 11, 2018), at https://www.washingtonpost.com/world/saudi-forensic-expert-is-among-15-named-by-turkey-in-disappearance-of-journalist-jamal-khashoggi/2018/10/11/e62d6dd4-cd6a-11e8-ad0a-0e01efba3cc1_story.html?utm_term=.d66ebe4e14b2 (noting that the forensic expert's flight left Riyadh “just nine minutes after Khashoggi entered the country's diplomatic compound in Turkey” and that he returned to Riyadh on an 11p.m. flight).

57 See id.

58 Ben Hubbard & David D. Kirkpatrick, Saudis Shift Account of Khashoggi Killing Again, as 5 Agents Face Death Penalty, N.Y. Times (Nov. 15, 2018), at https://www.nytimes.com/2018/11/15/world/middleeast/saudi-arabia-khashoggi-death-penalty.html.

59 Id. (noting that the agent, Maher Abdulaziz Mutreb, was an “intelligence agent who has often traveled abroad as part of the crown prince's security detail”).

60 U.S. Dep't of State Press Release, Remarks to Press by Secretary of State Mike Pompeo (Oct. 23, 2018), at https://www.state.gov/secretary/remarks/2018/10/286854.htm [https://perma.cc/CPC9-KD67].

61 Id.

62 U.S. Dep't of State Press Release, Global Magnitsky Sanctions on Individuals Involved in the Killing of Jamal Khashoggi (Nov. 15, 2018), at https://www.state.gov/secretary/remarks/2018/11/287376.htm [https://perma.cc/WZW2-Y3XM] (noting that “all of these individuals’ assets within U.S. jurisdiction are blocked, and U.S. persons are generally prohibited from engaging in transactions with them”).

63 Hubbard & Kirkpatrick, supra note 58.

64 Shane Harris, Greg Miller & Josh Dawsey, CIA Concludes Saudi Crown Prince Ordered Jamal Khashoggi's Assassination, Wash. Post (Nov. 16, 2018), at https://www.washingtonpost.com/world/national-security/cia-concludes-saudi-crown-prince-ordered-jamal-khashoggis-assassination/2018/11/16/98c89fe6-e9b2-11e8-a939-9469f1166f9d_story.html?utm_term=.4a3a922edb5e.

65 White House Press Release, Statement from President Donald J. Trump on Standing with Saudi Arabia (Nov. 20, 2018), at https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-standing-saudi-arabia.

66 Id.

67 Chuck Schumer (@SenSchumer), Twitter (Nov. 20, 2018, 12:22pm), at https://twitter.com/senschumer/status/1064977318865788928?lang=en.

68 Bob Corker (@SenBobCorker), Twitter (Nov. 20, 2018, 2:18pm), at https://twitter.com/senbobcorker/status/1065006401272143873?lang=en. For some other responses, see Adam Edelman & F. Brinley Bruton, In Unusual Statement Disputing the CIA and Filled with Exclamation Points, Trump Backs Saudi Ruler After Khashoggi Killing, NBC News (Nov. 20, 2018), at https://www.nbcnews.com/politics/donald-trump/unusual-statement-disputing-cia-filled-exclamation-points-trump-backs-saudi-n938526.

69 Jordain Carney, Rand Paul Vows to Force Vote on Saudi Arms Sales Over Missing Journalist, The Hill (Oct. 9, 2018), at https://thehill.com/homenews/senate/410585-rand-paul-vows-to-force-vote-on-saudi-arms-sales-over-missing-journalist.

70 U.S. Senate, Senator Bob Menendez Press Release, Menendez, Young, Reed, Graham, Shaheen, Collins Introduce Comprehensive Saudi Arabia Accountability and Yemen Act (Nov. 15, 2018), at https://www.menendez.senate.gov/news-and-events/press/menendez-young-reed-graham-shaheen-collins-introduce-comprehensive-saudi-arabia-accountability-and-yemen-act [https://perma.cc/R382-HWD8].

71 Karoun Demirjian, Carol Morello & John Hudson, Rebuking Trump, Senators Back Effort to Suspend U.S. Support for the Saudi-led War in Yemen, Wash. Post (Nov. 28, 2018), at https://www.washingtonpost.com/powerpost/pompeo-mattis-to-brief-senate-on-saudi-arabia-khashoggi-and-yemen/2018/11/27/ee4e36c0-f28a-11e8-bc79-68604ed88993_story.html?utm_term=.5a90efbfd910. This resolution was brought forward through a procedural mechanism set out under the War Powers Resolution. See id.

72 “Julie Hirschfeld Davis & Eric Schmitt, Senate Votes to End Aid for Yemen Fight Over Khashoggi Killing and Saudis' War Aims, N.Y. Times (Dec. 13, 2018), at https://www.nytimes.com/2018/12/13/us/politics/yemen-saudi-war-pompeo-mattis.html. In the absence of similar action by the House of Representatives, the effect of these resolutions is symbolic. See id.”

73 Wesley Morgan, Pentagon: No More Refueling of Saudi Aircraft Bombing Yemen, Politico (Nov. 9, 2018).

74 U.S. Dep't of State Press Release, Ending the Conflict in Yemen (Oct. 30, 2018), at https://www.state.gov/secretary/remarks/2018/10/287018.htm [https://perma.cc/CSA4-GBW6].