by Harley Sorensen

Only Antonin Scalia can save us now.

From The New York Times, quoting Vice President Dick Cheney: "The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans -- men, women and children -- is not a lawful combatant."

And, he added, "They don't deserve to be treated as a prisoner of war. They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process."

Let me see if I get this right. A handsome and charming man like, say, Ted Bundy can wander around America killing scores of women and be assured of all the protections of the American judicial system after he gets caught.

A decorated Gulf War veteran like, say, Timothy McVeigh, can turn a Ryder truck into a bomb and use it to kill a couple of hundred innocent men, women and children -- to make some kind of obscure political point -- and our Constitution protects him from the lynch mob.

It's a matter, Mr. Cheney says, of what someone deserves. In his eyes, some criminals like Bundy and McVeigh deserve the protection of our laws; others do not.

Cheney last week defended President George W. Bush's order last Monday establishing military courts to try suspected alien terrorists.

These courts can be held anywhere -- on a ship at sea, for instance. They do not have to be open to the public.

That being the case, America's Monster of the Moment, Osama bin Laden, could even now be at the bottom of the sea. Had he been captured, he could have been tried aboard a ship by one of Bush's military tribunals and executed.

It could be. Who would know?

Lest you think Cheney and Bush are alone in their desire to demolish the Constitution, listen to the words of John Ashcroft, attorney general and, as such, our chief law-enforcement officer. As reported Thursday in The Times:

"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice. I think it's important to understand that we are at war now."

Maybe I'm wrong about this, but it seems Ashcroft is a little fuzzy on the Constitution. According to my reading of the Constitution, only Congress has the power to declare war. Unless I missed it, no war has been declared by Congress recently. The only "declaration of war" I've heard was declared by President Bush, who also said we were on "a crusade" before correcting himself.

I can't help but wonder what freedom-loving people in other nations are thinking about the unraveling of American democracy these days.

A year ago, they saw the ugly spectacle of our botched national election. No matter who you favored in that debacle, you have to admit that the way we arrived at the final result was not a shining example of democracy at work.

Now, after 15 Saudis and four other Arabs committed massive acts of terror against us, we're waging (undeclared) war against Afghanistan.

Please note that lovers of democracy have no problem with the destruction of the Taliban in Afghanistan. But those of us, at home and abroad, who see America as the spiritual leader of the democracy movement would be infinitely happier if the nation we love abided by some sort of rules.

Striking out at evil is commendable, but it shouldn't be done willy-nilly, without regard to the laws and traditions that have made us what we are, or would like to be.

"But, Mr. Sorensen," the e-mailers will ask me, "what rules did the terrorists follow when they snuffed out more than 5,000 innocent lives?"

Fear creates strange leaps of logic. I understand the anxiety many of us feel over the possible dangers we face, but that anxiety should not cause a suspension of reason.

That the terrorists had no compassion for their victims is of no consequence. Criminals in general lack compassion for their victims. If they abided by our rules, criminals wouldn't be criminals. Ignoring the rules is the essence of criminality.

If people who ignore long-standing rules are criminals, what are people who change the rules in the middle of the game? What then are Bush, Cheney and Ashcroft?

That brings us to Antonin Scalia, the Supreme Court's most powerful conservative voice.

It is a certainty that the draconian laws being instituted by our president, without consultation with Congress, will be appealed by lawyers. It is almost certain that these appeals will find their way to the Supreme Court.

And what matters then is what Justice Scalia thinks.

If Scalia, who is considered brilliant even by those who oppose him, does what he usually does, he'll kowtow to the Republican establishment and give it whatever it seeks. In this case, that would be to allow Bush's order to stand.

But possibly Scalia will rise to the occasion. Possibly he'll put country ahead of party this time, and become as loyal a strict Constitutional constructionist as he has been a loyal party supporter.

We can only hope. Others on the court follow Scalia's lead, so what he does matters most.

Bush and Company have done a good job since Sept. 11 of protecting the lives of our citizens, but they've begun to run roughshod over our Constitution. We can't look to them to preserve our liberties. They won't.

That is up to Antonin Scalia.

Harley Sorensen is a longtime journalist and iconoclast. His column appears Mondays.

©2001 San Francisco Chronicle

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