The case of Brandon Mayfield is a poor test of the secret searches and surveillance authorized by the Patriot Act. It's a poor test because the man was no terrorist. Instead he turned out to be an innocent man wrongly suspected of being involved in an atrocity in Spain.

So it is no surprise that Ann Aiken, a federal judge in Oregon, ruled for him in a lawsuit he brought against the government. She decided that secretly tapping someone's phone and searching his place without showing probable cause violated the Constitution. Of course it does.

The ruling comes in a civil lawsuit brought by Mayfield. As such it doesn't mean much in the broader context of the efforts to defend the country against al-Qaida and the like.

The Constitution does not bar searches. It bars unreasonable searches.

In this case, the government likely would have had no trouble getting a judge to sign a warrant authorizing all kinds of surveillance and searches. After all, remember that this unfortunate Portland lawyer became a suspect because his fingerprints supposedly showed up on evidence from the bomb attacks on the trains in Spain. As a cause for searching, that alone would have been more than reasonable. Only later did the print identification turn out to be no match.

The facts of a case have a lot to do with whether a warrantless search is justified.

Suppose the government gets wind that somebody with links to al-Qaida has recently signed for shipments of material that could be assembled into a bomb to spread poison gas. Getting a warrant and searching his address would tip off the terrorist cell, if any. So the government uses the Patriot Act to do a search in secret and - a week and a half later - manages to arrest the entire cell together as they huddle in the basement assembling their own version of a WMD.

Is anybody other than the terrorists going to complain about how the search was conducted and the evidence obtained?

In short, let us insist that our civil liberties be protected and the Fourth Amendment be observed. Let us also hope that when there's an actual and imminent threat of terrorist destruction, government agents do whatever it takes in the time required to protect us from that threat. (hh)