Dick Cheney is in retirement, a cable nuisance but not a political threat to President Obama—unless there's another terrorist attack. In that case, Cheney will no doubt cast himself as a sagebrush prophet whose vicious slurs against the president (he's "soft" and not protecting America) were vindicated by events. Unless Obama can go seven and a half years without some kind of attack, he'll need a more muscular way to rebut the former vice president's calumnies. The U.S. is using pilotless drones (soon to outnumber aircraft in the Air Force) to kill as many Qaeda operatives as possible. If Obama whacks Osama, will Cheney finally shut up?

Probably not, for this is a man who is attempting to do more than win a historical argument and poison any potential jury pool. He's seeking nothing less than a redefinition of the Constitution and the rule of law. The stakes are high. If the Cheney view prevails, it will give comfort to human-rights abusers everywhere, help terrorist recruitment, harm U.S. foreign policy, and set back the prosecution of terrorists by giving defense attorneys more grounds on which to get their clients acquitted.

Two words jumped out at me from Cheney's Fox News interview last week. Chris Wallace asked, "So even in those cases where they [CIA interrogators] went beyond the specific legal authorization, you're OK with it?" Cheney answered, "I am." That unadorned "I am" was terrifying. Cheney was saying that certain ends justify criminal means. This is a deeply antidemocratic and authoritarian notion. Why even create his bogus legal authorization for "enhanced interrogation techniques" (a way to get around U.S. laws banning torture) if it could be disregarded without consequence?

Even if torture worked, it wouldn't be justified. And it's not clear that it does. Khalid Sheikh Mohammed, the mastermind of 9/11, apparently provided some useful information about that plot after he was waterboarded. According to The Washington Post, he also fingered as many as 70 other terrorists. But KSM, like anyone being tortured, lied to stop the pain. Following bogus leads from tortured detainees wastes precious time, as many interrogators have testified. The recently declassified Justice Department memos include a 2004 report from the CIA inspector general that found no conclusive proof that any specific "imminent" threats had been thwarted by information gleaned from waterboarding and other forms of torture. Cheney's claim that torture was "absolutely essential" in saving thousands of American lives is unproven. And if there was proof, don't you think he would do everything he could to publicize it?

I wouldn't put Cheney in a league with world-class torturers, but he's getting closer. Paul Van Zyl of the International Center for Transitional Justice makes a case that he's even worse than some well-known authoritarians: "What distinguishes Cheney from Pinochet [of Chile] or Botha [of South Africa] is that neither of them ever thought to publicly justify torture. Cheney creates a moral argument for torture. That's a gigantic step back for civilization." Ruthless leaders, with what they consider to be their own existential threats, have new arguments to exploit. Van Zyl, who ran South Africa's Truth and Reconciliation Commission, says that if Attorney General Eric Holder had decided not to launch a probe, the message to the world would have been, "Torture is bad, except when it's us."

Even so, I've got some problems with Holder's idea of a special prosecutor. Not because it "distracts from Obama's agenda"; that's a hollow and amoral argument. The problem is that John Durham, who's been assigned the task, will have a hard time refraining from scapegoating a few overzealous CIA interrogators, à la Abu Ghraib. As for the higher ups, as much as I'd like to see Cheney frog-marched out of Jackson Hole and sent to prison for violating his oath, it would set a bad precedent. Gerald Ford was right to pardon Richard Nixon. What we need is a full airing of the abuses and an official acknowledgement of grievous errors, not convictions that can easily be discredited as partisan prosecutorial pelts. Grover Norquist, the conservative Leninist, said he approves of Holder's decision because it means that when the Republicans regain control of the government they can prosecute Democrats for their criminal stimulus package. Delightful.

Obama wishes the whole issue would just go away. He promised during the campaign that his attorney general would be the people's lawyer, not his, and so he figures he's stuck with Holder's decision. But he isn't. It's not too late to overcome his aversion to commissions and appoint one to issue a comprehensive report. If the commission recommended prosecution, it would provide a better counterweight to Dick Cheney than Eric Holder can.

Alter is a national-affairs columnist.

© 2009