THE BLOG
09/30/2007 05:22 pm ET Updated May 25, 2011

Taking a Small Step for America

Soon after 9/11 the Bush administration amassed powers, passed by the Congress, which seemingly diminished the notion that our government was comprised of three co-equal branches. Rather, it took on characteristics resembling an executive branch-led oligarchy.

As emotion and fear subside, rationality begins to once again rear its head above the debris of nationalism, reestablishing itself as a critical part of our public discourse.

To this end, America owes Judge Ann Aiken and attorney Brandon Mayfield a debt of gratitude. The U.S. District Court judge struck down two provisions of the USA Patriot Act, ruling they are unconstitutional because they allow search warrants to be issued without showing probable cause.

By ruling that the Foreign Intelligence Surveillance Act (FISA), as amended by the Patriot Act, wrongly allowed the executive branch to conduct surveillance in violation of the Fourth Amendment, Judge Aiken has restored some of the "balance" in our triune government system of checks and balances.

Judge Aiken's ruling resulted from a lawsuit filed by Portland attorney Brandon Mayfield, who was mistakenly linked by the FBI to the Madrid, Spain, train bombings that killed 191 people in 2004. A fingerprint discovered on the case carrying detonating devices was linked to Mayfield.

This triggered a series of, what would otherwise be considered outlandish surveillance procedures in a pre-9/11 world, but authorized by the so-called Patriot Act. Without the burden of due process or search warrants, the federal government tapped Mayfield's phone, secretly searched his house and law offices, and jailed him for two weeks as a material witness.

Moreover, the investigation of Mayfield was ongoing, as Spanish officials doubted the validity of the fingerprint match.

The federal government subsequently apologized and after admitting a fingerprint was misread, settled part of the lawsuit for $2 million. But Mayfield (here is where we owe him our gratitude) retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism.

Mayfield claimed that secret searches of his house and office under FISA violated the Fourth Amendment's guarantee against unreasonable search and seizure; and Judge Aiken agreed.
A misread fingerprint transformed Mayfield into a terrorist suspect. Who knows, if he was to be Guantanamo-bound?

Because we are a nation of laws and not people, we can ill-afford such legal blank checks like the Patriot Act. It assumes, or rather hopes for, government infallibility, under the guise that such egregious legislation is "temporary."

It was the Republican-led Congress that passed the counter terrorism bill known as the Patriot Act with little opposition 43 days after the 9/11 attacks. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.

Playing on the nation's collective fear, it made the irrational rational. Still clinging to the belief that it would only be used against our enemy, we watched, largely in silence, as it has been used against our own citizens.

But last month, the Bush administration persuaded the now Democratic-led Congress to expand the government's power to listen in on any foreign communication it deemed of interest without a court order, even if an American were involved. This latest expanded surveillance authority is scheduled to expire early next year.

What will Congress do? Will it make the case that such laws are antithetical to our values? Or will its members, in an attempt to demonstrate strength, cowardly succumb to the president's desires by ignoring the Bill of Rights?

Perhaps, as they contemplate that very issue, they should have a copy of Judge Aiken's opinion that stated: "For over 200 years, this nation has adhered to the rule of law -- with unparalleled success. A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised."

One would think it not necessary to remind Congress of the obvious. But these are hardly ordinary times and nothing can be assumed as obvious.

Byron Williams is an Oakland pastor and syndicated columnist.
E-mail him at byron@byronspeaks.com or leave a message at 510-208-6417.