The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
You do not usually expect to see former Democratic Senator Russ Feingold, President of the progressive American Constitution Society, on the op-ed page of the Wall Street Journal. When you do, it is likely on an issue where Right and Left should be able to agree, and so it is today with his op-ed explaining why the Capitol insurrection, and the broader upsurge in domestic violence by fringe groups, white supremacists, conspiracists, anarchists and others, does not justify enacting a new, expanded PATRIOT Act.
As Feingold notes, "The overwhelming tendency in domestic antiterrorism has been to use invasive and unconstitutional surveillance techniques to criminalize legitimate dissent." This history should cause us to pause before expanding the authority of federal law enforcement to engage in surveillance and related activities.
We must not . . . confuse the need for a forceful response with the need for new law-enforcement powers. The law already gives the Federal Bureau of Investigation and U.S. prosecutors extensive powers to counter those who use violence for political purposes. . . . [F]ederal law enforcement already has sweeping power to get at criminal organizations and those who support them.
In using these powers domestically, however, federal law enforcement is bound by the Fourth Amendment and other civil-liberties protections. This seems to be the real concern for supporters of new domestic terrorism laws. What they want is new, less-constrained surveillance powers that might allow, say, law enforcement to use wiretaps without first demonstrating probable cause that a crime is being committed and obtaining approval from a judge. . . .
As James Baldwin observed more than 50 years ago, when we bring home battlefield notions of counterinsurgency, we end up burning down our own communities, ostensibly in order to save them. Let us not repeat that mistake.
I may not agree with Feingold on much, but when he's right, he's right.