Obama's questionable claim to whack at will

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Mississippi Gov. Phil Bryant listens at right as Republican presidential candidate, former Massachusetts Gov. Mitt Romney speaks at the Mississippi Farmers Market in Jackson, Miss., Friday, March 9, 2012. (AP Photo/Rogelio V. Solis)

Bear with me while I quote from The Godfather - hey, doesn't everyone? - because this is really about how Barack Obama has been playing fast and loose with the Constitution.

Michael Corleone tells Kay that his dad, Vito, is really no different than "a senator or a president." Kay tells Michael that he's being naive, because "senators and presidents don't have men killed."

To which Michael says, "Oh. Who's being naive, Kay?"

You tell her, Michael! Because, as the U.S. attorney general made clear the other day - in a speech that got little play in the media, thanks to the Republican primaries - Obama is the first president to claim the legal authority to whack U.S. citizens, to act as judge, jury, and executioner without a shred of transparency or public accountability.

This issue flared briefly last fall after Anwar al-Awlaki, an American-born, American-educated radical Muslim cleric, was lit up in Yemen by one of Obama's drones. Another American was killed in the attack, and, two weeks later, Awlaki's 16-year-old son, also an American citizen, was taken out in another attack. The Obama team refused to say why Awlaki warranted summary execution. It refused to discuss whether he was an imminent threat, or the criteria that prompted Obama to OK the hit. It appears that the Justice Department supplied a legal rationale in writing, but to this day the administration refuses to confirm or deny the existence of such a memo.

Indeed, 18 months before Awlaki's death, it was reported (via government leaks) that Awlaki's name had been placed on a hit list of American citizens, but today we still don't know who is on the list, why they were placed on the list, what kind of evidence puts you on the list, or which government officials maintain the list. What's clear, however, is that an American citizen can be placed on the hit list without knowing it, and with no opportunity to face or refute one's accusers.

All that would appear to be in violation of the Fifth Amendment (No person shall be "deprived of life ... without due process of law"), as well as Obama's constant boast that he is running "the most transparent administration in history." And when Attorney General Eric Holder said in his speech that Obama can make these life-or-death decisions without any judicial oversight, he contradicted Sen. Obama, who had insisted on the Senate floor that even presidents fighting a war on terror needed to be checked and balanced by judicial oversight.

Democrats, you may recall, were very upset in those days by George W. Bush's flexing of executive muscle. They didn't like his warrantless wiretaps. They didn't like his Guantanamo detentions, which is what Sen. Obama was complaining about in 2006. He said that a detainee should have the right to refute the government's case. He said the courts were the proper venue, and he scoffed at the Bush partisans for believing "that judicial inquiry is an antique, trivial, and dispensable luxury."

Flash forward to 2012. Obama, as president, has gone way beyond lockups and wiretaps. He says it's OK to order hits on American citizens for secret reasons, shielded from any judicial inquiry. When the ACLU sued the government in late 2010, trying to pry open some information about the reported hit list, Obama's lawyers invoked a "state secrets" defense and convinced a federal judge that the courts had no role to play. And when the ACLU and the New York Times recently filed Freedom of Information requests, hoping to obtain the legal memorandum that supposedly vets the hit program, Obama's lawyers said no, and stated: "We do not confirm or deny that such a memorandum exists."

So just imagine, for a moment, how Democrats would have reacted if Bush had ever pulled something like that. They would have stormed the MSNBC studios in high dudgeon. They would've inveighed against executive tyranny, the trampling of the courts, and the Corleone mentality of Bush capos secretively targeting their own citizens.

But since it's Obama who is doing it, Democrats are basically mute. Don't constitutional principles, and the importance of civil liberties, apply to whoever happens to be in power? They're apparently fine with Obama's "trust us" message simply because he's a Democrat. But how will they feel in the future when those same powers of life and death are exercised in secret by the likes of Mitt Romney - or someone far to his right?

Granted, few of us care about what happened to Anwar al-Awlaki. He was over in Yemen stoking our mortal enemies with incendiary rhetoric ("Jihad against America is binding upon myself"). And most of us probably assume that anyone who lands on a citizen hit list deserves to be there. And presidents are on safe ground politically if they sound tougher than tough in the war on terror.

But somebody has to ask the inconvenient questions. It would help us greatly if the White House reporters did the job; Unfortunately, when they met with Obama at a March 6 news conference, they failed to ask Obama a single question about Holder's speech just 24 hours earlier. That would have been a prime opportunity, because Holder gave Obama sweeping life-or-death authority without supplying a single legal citation.

Someone could have stood up and asked: What kind of evidence is required to whack an American citizen? Who weighs this evidence? Does anyone speak for the accused citizen? How many citizens are on the list? Are citizens ever removed from the list? What specific legal arguments override the Fifth Amendment guarantee of due process? Are there institutional safeguards to ensure that this summary power to kill Americans will not be abused in the future?

In The Godfather, Part II, Michael Corleone said, "If anything in this life is certain, if history has taught us anything, it's that you can kill anybody." But surely we can do better than that. I'd much prefer the words of former Justice Sandra Day O'Connor, who warned in a ruling eight years ago that "a state of war is not a blank check for the president, when it comes to the rights of the nation's citizens."

Contact Dick Polman at dpolman@phillynews.com or follow @dickpolman1 on Twitter.