EDITORIAL: Judges' tough scrutiny a needed practice

A decision by federal Judge Audrey B. Collins in Los Angeles to strike down a portion of the sweeping anti-terrorism law passed in haste after the terrorist attacks of Sept. 11, 2001, looks like a heartening sign that the judiciary system might be ready to get back in the game of protecting the liberties of American citizens.

Even better would be a decision by Congress to let those portions of the Patriot Act scheduled to expire this year to expire.

Judge Collins’ decision referred to specific language in the Patriot Act that prohibited anyone from providing “expert advice or assistance” to designated terrorist groups. Before the Patriot Act it was already illegal to provide “material assistance” to such groups, and people have been prosecuted for doing so. But the act expanded the scope of criminality to include mere speech, which the Constitution protects vigilantly.

Judge Collins is probably on solid ground. In a 1998 case, she invalidated a provision in an earlier terrorism law that criminalized providing “training and personnel” on the grounds the wording was so vague people could not reasonably know in advance just what actions were being made illegal. That decision has been upheld twice by the 9th U.S. Circuit Court of Appeals and has not been challenged.

Steve Shapiro, legal director of the American Civil Liberties Union’s New York office, believes this decision indicates we are “seeing a real reaction by the judiciary to fairly grandiose claims by the executive branch” in the prosecution of the undeclared war on terror. Indeed, the U.S. Supreme Court has already taken up serious questions about the detention of prisoners at Guantanamo and the treatment of one of two American citizens held without charges.

The next big case concerning the Patriot Act could come in Michigan, where the ACLU, librarians and others challenged parts of Section 215, which allows the government to demand information of librarians and others, with less stringent requirements than are usually required for a search warrant. The case could be decided soon.

If the judiciary is really determined to be a player in proceedings arising from terrorist threats and the Patriot Act, that’s good news for American liberties and the integrity of the Constitution. There are plausible arguments for allowing the government to exercise some extraordinary powers during a time of threat to the country, but such decisions also deserve skeptical scrutiny.