The Volokh Conspiracy

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January 6

There Is No Need for Another PATRIOT Act

Law enforcement has more than enough tools already, argues former Senator Russ Feingold in the Wall Street Journal


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.

Feingold continues:

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.

NEXT: How Did Impeachments Become So Partisan?

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  1. Excuse me, Mr. Adler. It was not a Capitol insurrection. It was a pro-democracy takeover of Parliament, as they did in Hong Kong. The insurrection is by the cheaters in the Democrat Party. Same targets. Chinese Communist Party style tyranny and large government. Same puppet masters in both, the tech billionaires.

    1. Hush. The grownups are trying to talk.

  2. A very oddly named act = PATRIOT Act. It was anything but.

    1. But most D's voted for it

      1. So did most R's. They were both wrong.

  3. Any classification of the Capitol Building takeover whose author did not classify the Antifa/BLM riots, arson, murder, and looting as worse, and did not demand trials for the mayors who donated city resources to those autonomous zones in clear violation of Article IV's Guarantee Clause, is partisan hackery.

    1. Can you elaborate on how, in your view, it's even theoretically possible for a local government official to violate that clause?

      1. Can you elaborate, even a little, on how turning over control of an area to criminals, is not a violation of the requirement to have an elective, representative, government?

        1. Hint: even if we assume for the sake of argument that you are accurately describing the CHAZ/CHOP silliness, the constitution does not impose any restrictions on local officials in that regard. The Guarantee Clause imposes a duty on the federal government, not the mayor of Seattle.

          1. Right, the failure was when Trump didn't send the troops in to restore order. I'll happily grant that. He treated Antifa and BLM much too gently.

            Insurrection charges against local officials who cooperated with creation of autonomous zones would have been in order, too.

    2. Hmmm. But wouldn't the converse also be true?

    3. Posted to wrong comment. My question: wouldn't the converse also be true?

  4. There's a need for another Patriot Act that reverses the last one rather than expanding on it.

    1. we just need a repeal of the "PATRIOT" Act

  5. I'd be much more impressed if his concern didn't appear to be that it would end up being used against the "wrong" people; "History makes clear that these new powers are likely to be used predominantly against black and brown communities and progressives."

    I can't say I've read the entire essay, it's paywalled, but the portion that's visible doesn't look all that principled.

    1. "A police-state is fine, as long as the right people are in charge." Hasn't this always been the Left's position?

  6. Feingold's conservatism leaves two critical concerns unaddressed:

    1. Armed insurrection.

    2. Armed political intimidation.

    It will not be enough to rely only on post-hoc investigations to address those two issues. After the fact, the damage is done. The challenge is to find a way to prevent those kinds of damage in the first place, because the nation cannot endure otherwise.

    Escalating armed violence over politics is too awful to permit. It must be prevented, not suffered or punished ineffectually afterward.

    Likewise, an objective to avoid draconian or tyrannical methods which could turn the nation into a police state is also indispensable. Political peace at the cost of liberty is no answer at all. More likely, it would prove a goad to more violence. Thus, active support for second amendment rights should be part of the approach.

    That can be done. What the nation needs is gun controls which go no farther than addressing narrowly those two activities, which I presume every law-abiding gun owner has no interest in doing anyway.

    To ease the threat of armed insurrections by extremists, pass a federal law which defines armed insurrections. The law should then provide that anyone convicted of carrying any kind of weapon, whether a firearm, tools of arson, a baseball bat, a hockey stick, a flag pole used as a cudgel, pepper spray, a taser, a padlock in a sock, or any other dangerous weapon, while participating in an insurrection will forfeit second amendment gun rights for life.

    To address concerns about gun control over-reach, the law should further codify a right to carry, and lawfully use, so-called semi-automatic assault weapons, by anyone who is indeed a law-abiding gun owner. Other concessions to ease concerns about the nation's continuing commitment to gun rights should also get consideration.

    To address the second problem, armed political intimidation, the approach can be ordinary domestic security police work. Simply establish by federal law that arms at political assemblies are presumed to intimidate and burden the right of peaceable assembly. Empower police or federal officers to check attendees for arms, and turn back any who carry them. Make bringing a weapon to a political assembly a misdemeanor, for which non-admittance and a written warning are the response prescribed for a first offense. For repeat offenders, use non-draconian fines, plus weapons confiscations, but without curtailing gun rights for the otherwise law-abiding.

    Make it a point to emphasize that law enforcement policy will be applied evenhandedly, regardless of political affiliations, ethnic identity, immigration status, or any other consideration extraneous to the peaceable objectives of these two laws.

    My aim is four-fold:

    First, to propose some practical, non-tyrannical way to prevent the nation from sliding farther along an escalating curve of armed political violence.

    Second, to head off extremist government responses to extremist domestic threats.

    Third, to say forthrightly to the arms enthusiast community that there is no longer time for equivocation on the question whether gun owners owe allegiance to a lawful objective to assure a peaceable political future for all citizens.

    Fourth, to say to the gun control community that second amendment rights will continue as an abiding and legitimate part of American constitutionalism.

    Responses suggesting alternatives or adjustments would contribute more to the spirit I am looking for, than would ideological negations or personal attacks.

    1. I don't think we need new laws in this area, when the existing laws aren't being enforced. Conspicuously not being enforced.

  7. lathrop, there is already a law that defines insurrection. If you want Congress to add a penalty, then petition Congress to add the forfeiture of 2A rights as a penalty for being convicted.

    One about just making the entire country open carry. You know what I have noticed? People become downright neighborly when surrounded by armed people carrying guns. One might even call it....civilized.

    Maybe you should just leave them (people who own guns) alone.

    1. Right, it's remarkably conspicuous that Antifa/BLM don't riot in areas where the 2nd amendment right of armed self defense is properly respected. They only do so where they can be confident local authorities will punish anybody who defends themselves.

    2. One alternative….how about just making the entire country open carry. You know what I have noticed? People become downright neighborly when surrounded by armed people carrying guns. One might even call it….civilized.

      I can't tell if that was intended, as self-conscious irony, or unintended, as cluelessness. Are you a helpful volunteer, to example the need for the armed intimidation law? Or are you just unaware that you responded to a complaint about armed intimidation by suggesting to make a norm out of armed intimidation?

      I'm pretty sure it's the latter, and that you, along with Bellmore, think armed intimidation is something to snicker at. Here is a hint for you both. Gun enthusiasts are not in the majority, and with just a little bit more insurrection, your 2A rights will come under a political assault more energetic and better organized than anything you have yet seen. The only political question worth asking then would be, "How far do we need to retreat?"

      So where is this heedlessness coming from? Am I mistaken in your case? Are you stockpiling arms for insurrection? Screw the law-abiding gun ownership bit, that's just to sell to the suckers? Is that you?

      Feel free to jump in Bellmore. It all applies to you too.

      1. lathrop, if you want to take away people's guns, under the guise of gun control (emphasis on control), simply say so. You don't need a lot of flowerly language to say that.

        My point still stands. People are in fact downright neighborly and civilized when citizens openly carry guns. It is noticeable and pervasive where there is open carry. People are more polite, more deferential. You might call that intimidation. I call it common sense; as in, don't screw with the gal carrying a gun because you will have a really bad day.

        You should get a gun for yourself, lathrop. There is nothing quite like going to the gun range and practicing your shooting skills. You meet a lot of interesting people. I have. Hell, my wife even goes. Girls with guns and know how to use them are....somehow alluring. 🙂

  8. Question: Even if Congress permitted warrant-less wiretaps, wouldn't the exclusionary rule still apply? And the fruit of the poisonous tree as well?

    So what good would anything they obtained be?

    Conversely, other than professional integrity, is preventing them from doing it now?

    1. Well, they'd still be able to put you on the No-Fly list. And the No-Banking list. And the No-Employment list. And whatever other lists they decided to create.

      That No-Fly list is an abomination, and I'm really pissed off the Republicans didn't lift a finger to get rid of it when they were in a position to.

  9. Actually, "The overwhelming tendency in domestic antiterrorism has been" to detect and prevent terrorist attacks. Have there been "invasive and unconstitutional surveillance techniques" used "to criminalize legitimate dissent?" Sure. And those uses should be addressed. But it is (yet again more) craven political grandstanding to neglect to mention that the overwhelmingly more frequent use of antiterrorism statutes and the tools they authorize has been against actual terrorist actors and activities.

  10. Aside from nuking DC from orbit, I’m opposed to burning down our own communities...

  11. If you use the word "insurrection" in this context it proves you're unserious and deserved to be dismissed.

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