The New York Times has an article Sunday, replete with examples, of how the 1996 law making it a crime to provide material support to terrorist groups has become the J ustice Department's new darling in the nursery--its "statute of choice."

In several dozen cases both high profile and little noticed, the law has become the Justice Department's main weapon in pursuing people it contends are linked to terrorists. Part of the appeal for prosecutors is that they do not have to prove that the defendants actually supported terrorist attacks, only that they helped a group tied to terrorism. Civil libertarians and defense lawyers, however, are increasing their criticism of the law and the department's aggressive use of it, saying the prosecutions smack of a McCarthylike notion of guilt by association. Critics say the law is so overly broad that people with no intention of helping terrorists are being prosecuted. Moreover, they accuse authorities of using strong-arm tactics to force pleas.

A Judge on the 9th Circuit Court of Appeals has held parts of the law are unconstitutionally broad. It is an issue that likely will reach the Supreme Court.

David Cole, a Georgetown law professor who represents a group challenging the law, argued in a brief in the appeal that the law made it a crime for a Quaker to send a book by Gandhi to a terrorist to persuade him to forgo violence, or for a person to write an op-ed article advocating on behalf of a "banned" group. "This smacks of the cold war era and Communist lists," Mr. Cole said in an interview. "And there's been an extremely broad chilling effect."

The law has been used to obtain convictions against the Buffalo Six and in a North Carolina case. Charges of violating the law are pending against the six defendants in the Portland, Oregon case, attorney Lynne Stewart in New York, and a professor in Tampa, and several others. Supreme Court Justice Stephen Breyer told a group of international lawyers the other day that the Court is preparing to hear terrorism cases that will require it to decide whether the Government has gone too far in its war against terror. While the first cases likely will involve the detainees at Guantanamo Bay, closed immigration hearings and the tracking of foreigners, cases involving the material support statute may be next.

We know that terrorism is a problem. We also know we live in a country that wants to protect basic civil liberties," Breyer told the American Society of International Law in Washington. He said courts, including his own, "are fully aware of mistakes that have been made in American history." Among those, he cited the holding of 100,000 Japanese Americans in camps during World War II -- which the Supreme Court upheld in 1944 -- and the punishment of critics of World War I.

We hope the High Court lives up to its responsibility when the time comes to judge these new cases. Articles like these also remind us of how important it is that the Democrats not allow Bush to pack the federal courts with ultra-conservative ideologues and judicial activists.