How does the Government know when a lawyer defending a terrorist has crossed the line and become a terrorist herself? The short answer is, it doesn't.

Ashcroft's prosecutor thought he had an answer for the Judge in the Lynne Stewart case.

Where,[the Judge] asked at a hearing in June, is the line between constitutionally protected political activity and criminal conduct?

"You know it when you see it, your honor," the prosecutor, Christopher J. Morvillo, replied.

That struck Judge Koeltl as dangerously inadequate. Last week, he threw out two terrorism counts against the lawyer, Lynne Stewart, holding that Justice Potter Stewart's famous remark about pornography — "I know it when I see it" — cannot be the standard for imprisoning people.

With the war on terror, the new darling of the prosecutor's nursery has become the law that prohibits providing material support to terrorists. Ashcroft has brought the charge in just about every case Justice has filed. Think, John Walker Lindh, the Buffalo Six, James Ujaama, the Oregon Six (now seven, with Mike Hawash added a few months ago,) the shoe bomber, Zacarias Moussaoui, the Detroit four, Florida professor Sami Al-Arian....and more.

Judge Koetel is not the first Judge to rule the statute unconsitutionally vague for failing to give notice of what is prohibited. In 2000, 9th Circuit Judge Alex Kozinski wrote that the 1996 version of the law was impermissibly vague, criminalizing political advocacy, in Humanitarian Law Project v Reno .

As Georgetown Law Professor and civil liberties expert David Cole points out in today's New York Times article:

"There is a reason that this statute has been a linchpin in the post-9/11 war on terror. "It does not require the government to prove any actual connection to terrorist conduct but instead allows it to rely on guilty by association."

Eric Freedman, another law professor and expert, says:

"The government's position that one can be locked up for decades for expressions of political positions on the telephone amounts to simple thought control."

The Lynne Stewart decision is a big blow to Ashcroft and the Administration. Professor Cole calls it a "milestone."

"It's the first decision throwing out a criminal indictment," Professor Cole said, "and it's the first case after 9/11 to criticize it."

Our full coverage of the Lynne Stewart case is here. Our protests against the whosale use of the material support statute are here.