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Democrats Have a Unique Constitutional Duty to Check, Balance the President | The Nation

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John Nichols

John Nichols

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Democrats Have a Unique Constitutional Duty to Check, Balance the President


(AP Photo/Ariel Schalit)

When Lyndon Johnson was president, Senate Foreign Relations Committee chairman William Fulbright held his fellow Democrat to account with hearings that challenged Johnson’s escalation of the undeclared war in Vietnam. It was the right thing to do.

When Richard Nixon maintained that war, he was challenged by fellow Republicans such as Charles Goodell in the Senate and Pete McCloskey in the House.

When Ronald Reagan was conducting a lawless dirty war in Central America, Republicans such as Lowell Weicker of Connecticut and Charles Mathias of Maryland raised objections to the policies and actions of their party’s president.

When Bill Clinton steered the United States into the conflict in Yugoslavia, Senator Russ Feingold and Congressman Dennis Kucinich rejected partisanship to demand that the Democratic president respect the constitutional requirement that wars be declared.

Even when George Bush and Dick Cheney were enforcing the strictest party discipline, Iowa Congressman Jim Leach co-sponsored a resolution of inquiry into whether his fellow Republicans had conspired to lie about the supposed “threat” posed by Iraq.

In every case, the members of the Congress rejected the party line in order to defend the rule of law, which requires in our system of separated powers that the legislative branch check and balance the executive. It wasn’t personal. It was a matter of principle. In this, they accepted an understanding of the separation of powers articulated by then-Senator Barack Obama, who said in 2007: “The notion…that the president can continue down a failed path without any constraints from Congress whatsoever is not warranted by our Constitution.”

Checking and balancing the Obama administration on its use of drones is also a matter of principle. That is why it is not just appropriate but necessary for Democrats to ask the right questions, raise the right concerns and mount the appropriate constitutional challenges to administration policies.

Give Senator Ron Wyden, D-Oregon, high marks for making the same demands for transparency from Democrat Barack Obama that he would make of a Republican president. “Every American has the right to know when their government believes it’s allowed to kill them…,” says Wyden. “[This] idea that security and liberty are mutually exclusive, that you can only have one or the other, is something I reject. So we’re now going to have to begin the heavy lifting of the congressional oversight process by examining the legal underpinnings of this program and to make very clear I am going to push for more declassification of these key kinds of programs. And I think we can do that consistent with national security.”

Wyden should not stand alone in a moment when Democrats have a unique constitiutional duty. There needs to be much broader recognition within the president’s party that it is possible to respect Obama while at the same time respecting the demands of a system where powers are appropriately separated.

With the credibility of Republican senators diminished by their grumbling about any and every action of Barack Obama, they are ineffectual when it comes to checking and balancing this president. So the task of asserting essential constitutional premises, along with the very American principle that Americans have a right to know what is being done in their name but without their informed consent, falls to responsible Democrats. A few have stepped up. Last year, Congressmen John Conyers, Jr. (D-MI), and Dennis Kucinich (D-OH) introduced an amendment to the House version of the 2013 defense budget bill that sought to roll back the White House decision to expand drone strikes against terrorist targets around the world.  

Conyers and Kucinich—who finished his House service in January—were not suggesting that the United States ought not defend itself, but they were demanding transparency, accountability and respect for the rule of law.

In a letter to the White House, they wrote,

A recent article published in The Washington Post revealed that the Central Intelligence Agency (CIA) and Joint Special Operations Command (JSOC) have been given new authority that allows them "to fire on targets based solely on their intelligence 'signatures'—patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicated a presence of an important operative or plot against U.S. interests." Allowing the CIA and JSOC to conduct drone strikes without having to know the identity of the person they’re targeting is in stark contrast to what the administration has previously claimed regarding its drone campaign: that they are targeted strikes against suspected terrorists on lists maintained by the CIA and JSOC.

The implications of our use of drones for our national security are profound. They can generate powerful and enduring anti-American sentiment. Such "signature" strikes raise the risk of innocent civilians or individuals who have no relationship to attacks on the U.S. of being killed. The government has the right and the obligation to protect the citizens of this country. Yet Congress must be given the opportunity to weigh in and demand that there be a minimum of transparency and accountability for our U.S. drone program abroad.

Ultimately, two dozen House members joined Conyers and Kucinich in asking the White House to provide more information to Congress regarding drone strikes. Congressional Progressive Caucus co-chairs Raul Grijalva (D-AZ) and Keith Ellison (D-MN) were among the signers. Congressman Jerrold Nadler, the ranking Democrat on the Constitution subcommittee of the House Judiciary Committee, was a signer. So, too, were two of the few House Republicans who have been serious about checking and balancing the war-making powers of Republican and Democratic presidents, Texan Ron Paul (who has since retired) and North Carolina’s Walter Jones, Jr.

Paul and Jones had credibility because they had opposed President Bush’s lawless actions. They weren’t acting as mere partisan automatons. They were acting as members of Congress whose oath of office requires them to check and balance the executive. Democrats such as Wyden and the House members who have stepped up are similarly motivated. They are not disrespecting the president. They are respecting the Constitution.

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This is a principle well understood by Congresswoman Barbara Lee, the California Democrat who cast the only vote against the overly broad 2001 Authorization for the Use of Military Force act that continues to be read as justifiction for an ill-defined and apparently endless “war on terror.”

Congresswoman Lee, one of the first backers of Barack Obama’s 2008 presidential campaign and a key player in writing the 2012 Democratic Party platform, is very loyal to the president. But she is also loyal to the Constitution.

“The recently leaked Justice Department memo that outlined the overly broad and vague legal boundaries used to justify drone strikes should shake the American people to the core. While I applaud President Obama for releasing more information to the Senate and House intelligence committees, the root of the problem remains: The administration is using the Authorization for the Use of Military Force passed by the House on Sept. 14, 2001, as one of the justifications for the lethal use of drones. As the only member of Congress who voted against this blank check, I believe now more than ever that we must repeal it,” argues Lee in a letter published Sunday in the Los Angeles Times.

“We need a full debate of the consequences of the September 2001 action, and meaningful oversight by Congress is vital. As commander in chief, it is Obama’s duty to keep our country safe, but Congress must not retreat from its constitutional obligation of oversight. These checks and balances are the foundation of our democracy, and they must stay intact.”

Along with Ron Wyden and John Conyers, Barbara Lee is striking the proper balance for all members of Congress, but especially for Democrats.

Read Greg Mitchell's take on the Brennan hearings.

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