In my Intro to Law Enforcement class, we discuss laws and how they're interpreted on a regular basis. Most of my students obtained their knowledge about policing from seeing local cops on patrol and pulling people over, and from watching television news and entertainment shows. My task is to give them a realistic understanding of what policing is, the humanity of the people serving and the push-pull of rights and limits involved in any effort to maintain order in a society.

The latter task is one of the most difficult. Few of them, if any, have thought critically about laws, why we have them, and how we are affected daily by them. Only if they run afoul of one do they think to complain, and they don't have a concept of the fact that laws that don't touch us directly and personally can still have a major impact on not just our lives but the direction our country will take. I try to shake them loose of that very shallow vision and give them a broader scope. One of the ways I do that is to discuss police use of force, when it's appropriate, how we should assess specific episodes, and what the fallout is - both good and bad - when further limitations are put on police.

While we have a solid core of law in this country, built primarily on British common law but expanded exponentially over the years, there is always lawmaking going on (the legislators have to prove their worth somehow) and always judicial interpretations (ditto). As with issues affecting law enforcement, the outer reaches of interpretation in all areas of law are always in flux as some groups try to lock down their area of interest with new laws and limits, and other groups battle to keep their freedoms. It's part of what makes us a democracy.

It's a sometimes esoteric endeavor, dealing with abstractions and possibilities that seem far-fetched or alarmist to most of us. And yet we should be alert, because by the time those issues become a matter of intimate concern to the average American, they're frequently settled at the boundaries and difficult to alter. It's the way special interest groups have managed legislation for years - and it behooves us to recognize that at times the federal government contains special interest groups more concerned about narrow goals within their purview than with our larger freedoms as citizens.

Such is the case with the Patriot Act, which for my sins I've not spent much time reviewing. I tend as a pattern to be pro-law enforcement, pro-military, pro-Justice Administration, pro-crack down on the baddies. I don't necessarily question that their desired laws could in the long run have a negative effect on society as a whole, and I should. This article by Jarett Decker in Reason is a case in point. He writes of Lynne Stewart, a leftist criminal defense attorney on trial for allegedly aiding the planner of the 1993 WTC attack communicate with his followers, essentially issuing a statement for him that authorized his followers to conduct deadly attacks. She was his defense attorney, and the question is whether her actions were themselves defensible under her authority as his defense attorney, or if she overstepped the bounds and committed a criminal act. I'm somewhat familiar with Stewart's case, since it's a NYC issue and one of her close friends is Ron Kuby, a Manhattan leftist defense attorney who cohosts a morning radio talk show in Manhattan with Curtis Sliwa of Guardian Angel fame. It seems very likely both from those discussions and from Decker's article that she did overstep her bounds.

But that's not the concern with her case.

What Decker is alleging is that the Justice Department is trying to stretch the boundaries of their ability to prosecute defense attorneys to the extent that it will chill the attorneys' overall efforts to vigorously defend their clients. And he claims that the Patriot Act was structured specifically to provide for that:

It may seem fanciful to suggest that criminal charges would be brought against a lawyer for nothing more than representing a client in court proceedings, and in fact that power is unlikely to be exercised routinely. But the Justice Department’s history suggests that charges may be used, or threatened, against lawyers who represent the government’s prime targets too often or too well. And the mere existence of the law and the possibility of charges may chill the zeal of all but the bravest defenders. There is reason to believe this was not an unintended consequence of the PATRIOT Act but the realization of a longstanding Justice Department goal.

Section 805(a)(2) of the PATRIOT Act, the provision that allows prosecution of lawyers, did not spring from nowhere. It has a history in the Justice Department’s quiet campaign during the last 15 years to create precedents and obtain legislation that would give federal prosecutors broad power to bring charges against defense lawyers for alleged misconduct in criminal cases. To put it simply, federal prosecutors would like to be both players and referees in the adversarial game of criminal litigation, with authority to penalize their opponents at will...

On October 26, 2001, just six weeks after the attacks on the Pentagon and the World

Trade Center, the 107th Congress passed the 350-page legislative excretion known as the USA PATRIOT Act. As has often been remarked since then, the bill was fed to Congress whole by Justice Department draftsmen and then dumped into the U.S. Code in haste, largely unread and undigested by those who voted for it. It is a fool’s errand to ascribe any particular intent to Congress in passing the PATRIOT Act, beyond the desire to be seen as taking strong measures against terrorism. The specific provisions of the act are almost entirely the work of the Justice Department.

One provision that passed without scrutiny was Section 805(a)(2), which expanded the definition of "material support" to foreign terrorist organizations. Under the AEDPA, "material support" already included financing, weapons and explosives, lethal substances, training, personnel, facilities, lodging, safe houses, communications equipment, transportation, and "other physical assets." The PATRIOT Act added a new item to the litany of the banned: "expert advice and assistance." There is no legislative history to explain why the addition was necessary, or what the Justice Department draftsmen had in mind. That would not become clear until the prosecution of Lynne Stewart.

It's difficult for most of us to grasp that a defense attorney vigorously defending a porn king or a murderer or even a terrorist is in a sense protecting the outer borders of our own rights. But it's true. The order in our society is sustained through clearly understood rules that we willingly follow. We submit to the rules because we tacitly concede that, on the whole, we as individuals are better for their existence. If the vast majority of us did not obey the rules generally without rebellion, our nation would quickly descend into anarchy. One of our most cherished freedoms, a right guaranteed by the Constitution, is that we won't be hounded into jail - or kidnapped from our homes at night to never be seen again - but instead will have full opportunity to hear what the charges against us are and to defend ourselves against them. The majority of us are so inured to following the rules, so accepting of their necessity, that we will never test that provision. But it wouldn't take long for our rights to begin degrading if the rights of those who have broken the rules, sometimes in quite heinous ways, are abrogated. That includes terrorists and those who aid them.

I am inclined to give John Ashcroft and his minions the benefit of a doubt. At the same time, I have to understand that even the best people can make egregious mistakes for the best of reasons. None of us see clearly all the time, which is why debate in society is so important. It is important for each of us to set aside our first response of support or fault-finding for whatever the government does, and really explore the what's being said and done. It sounds like the Justice Department may have overstepped its bounds as surely as Lynne Stewart did. And it also sounds like the US Supreme Court is on the case. We need to keep an eye on this, and not let it slip past because, after all, why do we care if terrorists go to jail on poor evidence? Aren't we safer then?

I would say no.