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Published Friday, Oct. 4, 2007 in The Register-Guard.

As Ann Aiken worked her way toward a federal judgeship, she always made time for public service. That included coaching T-ball for Kidsports. Setting an object squarely on a stick may not sound like important work, but history will judge whether she did exactly that last week.

Judge Aiken ruled last Wednesday that the so-called “sneak and peek” tactics used against Portland attorney Brandon Mayfield violate the U.S. Constitution. Although they are allowed by the USA Patriot Act, they run afoul of the Fourth Amendment’s protection against unreasonable search and seizure.

University of Oregon law professor Garrett Epps described the reach of Judge Aiken’s decision in the on-line magazine Salon.com: “Though the ruling will be strongly challenged on appeal, its larger importance may be as another straw in a judicial wind blowing against the Bush administration’s contemptuous treatment of the Constitution and the courts.”

To be precise, the ruling will reach 2,917 miles. It will almost surely land at the doorstep of the United States Supreme Court.

Attorneys on both sides argued for the trees, but it took an Oregonian judge to remind them of the forest. “For over 200 years, this nation has adhered to the rule of law — with unparalleled success. A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised,” she wrote.

Might is not right — not automatically. The mighty will always say, “Trust us.” The Constitution replies “First earn it.”

Our Constitution allows — requires — a judge to say to law enforcement: “Show us you’re right. THEN show us your might.” Without first showing probable cause, no authority may violate a citizen’s privacy.

The USA Patriot Act changed that.

Start with the name. The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (United States House of Representatives Bill 3162, Senate Bill 1510, Public Law 107-56)” doesn’t exactly trip off the tongue, does it?

Who can oppose Public Law 107-56 when it is known only as the USA Patriot Act? Even our own royalty in Eugene remind their subjects that their S.L.U.G. Queenships are bestowed by the Society for the Legitimization of the Ubiquitous Gastropod. Can we at least leave the periods in the U.S.A. P.A.T.R.I.O.T. Act?

However many English majors it took to craft that Orwellian acronym, they could have used one more. Nobody noticed that, in Aiken’s words, “a seemingly minor change in wording has a dramatic and significant impact on the application of FISA.” The Federal Intelligence Surveillance Act was devised in 1978 to foil foreign spies, so it was naturally employed in the battle against terrorism. Trouble is, the “foreign intelligence standard” of FISA was revised by Public Law 107-56 from the “primary purpose” to “a significant purpose.” Any connection to anything foreign and intelligent may suffice. Any requirement resembling “probable cause” could be skirted. Moreover, the feds could press their case with “a non-reviewable assertion,” evading the oversight the Constitution requires from the courts.

Judge: Why did you search without first getting a warrant?
Feds: We were trying to uncover secrets, your honor.
Judge: What made you think you’d find secrets?
Feds: That’s a secret, your honor.

“Stop!”, ruled Aiken. And our founding fathers for a moment stopped spinning in their graves.

Judge Aiken demands that the balance of powers set forth in the U.S. Constitution be restored. Her ruling is set squarely on the stick. She can now only stand back while others take their swings.

First comes the Ninth Circuit Court of Appeals. From there almost certainly it will be swatted to the United States Supreme Court for its ultimate review. If the appellate panel agrees that she has framed the issues correctly and ruled appropriately, it will be that frame and that language that will be pitched to the highest court in the land.

If someday Judge Ann Aiken is short-listed to fill a Supreme Court vacancy, it will acknowledge her care, clarity and courage for the rule of law.

Her ruling demands balance, and balance will be demanded of her ruling. Did she consider all arguments — for security and for freedom? For individuals and for society? For our nation’s history and its future?

Did she set the ball squarely on the stick?

Never let it be said that only children benefit from Kidsports. In this case, it may be every American.

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Don Kahle (fridays@dksez.com) is a free-lance writer, occasional public speaker and a past president of the City Club of Eugene. Readers may review and comment on past and future columns at his blog, right here.

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