Aiken hits a homer for liberty.

Byline: Don Kahle For 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.

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 AmendmentOs protection against unreasonable search and seizure.

University of Oregon law professor Garrett Epps described the reach of Judge Aiken's decision in the online 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 almost will surely land at the doorstep of the U.S. Supreme Court.

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

Might is not right - not automatically. The mighty always will 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?

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!", Aiken ruled. And our Founding Fathers for a moment stopped spinning in their graves.

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.

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.

Don Kahle ([e-mail]) 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, www.dksez.com.