The controversy about spying on the American people fails to understand the implications of "Cheney's Law" -- the president of the United States has unlimited power in his role of commander in chief to do whatever he deems necessary in a time of war. He can intern prisoners without trial, approve the kidnapping of suspected enemies, send these suspects to prisons in foreign countries where they will be tortured, deny the right of habeas corpus, even nullify laws Congress has passed. He needs no permission from Congress or the courts to engage in any of these activities. The president, in other words, is the maximum leader at any time that he decides it is appropriate for him to exercise ultimate power in the United States.

Vice President Dick Cheney has argued this with considerable vigor and persuasiveness. Indeed, he argued it even before he was vice president. The current White House has obviously bought it.

Those who argue that it would not be difficult for the National Security Agency to obtain permission from the secret court to eavesdrop on American citizens miss the point of the controversy. The issue is not the National Security Agency. The issue rather is that those who revealed the domestic spying have dared to challenge Cheney's law.

There are historical grounds that lend some support for his draconian theory. President Abraham Lincoln suspended the right of habeas corpus during the Civil War. President Franklin Roosevelt interned thousand of Japanese Americans during World War II, acts of which later Americans became ashamed. Nonetheless, the response is that in times of crisis, a president must do what he has to do. And how long does the crisis last? Apparently, as long as the president says it lasts. When will the so-called war on terrorism cease? Arguably never. Thus, the president will possess absolute power to ignore existing laws, Congress, the courts and the Constitution itself indefinitely.

There is political wisdom in Cheney's law. While law professors, liberals, some journalists and some clergy are deeply concerned about the Bill of Rights, it means very little to the average person whose civil liberties have never been endangered. Moreover, when someone questions the absolute power of the commander in chief, President Bush can always play the "fear card." The successors of the 9/11 terrorists are still all around us. The absolute power of the presidency is essential to fight them off. Whether the "fear card" still has political clout remains to be seen. However, it has worked every time the president has played it. What better way to boost your approval ratings than by running against the American Civil Liberties Union and the Bill of Rights?

It would be very helpful to know how many conspiracies have been nipped in the bud by the measures justified under Cheney's law (and its spawn, the Patriot Act). The only answer seems to be Cheney's remark that it's not an accident that there have been no attacks since Sept. 11. National security, we are told, does not permit such chapter and verse.

How convenient. One might ask whether the founding fathers would agree that the commander in chief was in principle a leader with absolute powers. George Washington does not seem to have thought so.

Under Cheney's law, therefore, the president isn't a constitutional leader but in effect a military dictator, not notably different from Fidel Castro or Hugo Chavez -- not to mention other military dictators in ages past. We must trust his virtue and restraint and that of those around him to assure us he won't abuse his absolute power. He is, after all, a God-fearing man who prays over all his decisions. This is pretty thin armor.

The only way to defeat Cheney's law is to elect a Democratic Congress and threaten impeachment for high crimes. Would the Democrats run on a platform of supporting the Bill of Rights? Are they capable of being so "unpatriotic''?

Could a commander in chief nullify such an election in a time of war? One would hope the president and vice president would not extend Cheney's law that far. A year ago I would have thought that such a suggestion was from the lunatic fringe of blog writers and e-mail nuts. Now I'm not so sure. Power corrupts and absolute power corrupts absolutely.

© Copyright 2005 Chicago Sun Times

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