Professor Kris W. Kobach
University of Missouri School of Law
5100 Rockhill Road
Kansas City, Missouri 64110
January 27, 2004
Mayor David Dunfield
Vice-Mayor Mike Rundle
Commissioner Sue Hack
Commissioner Dennis Highberger
Commissioner David Schauner
City Hall
P.O. Box 708
Lawrence, Kansas 66044
Dear Member of the Lawrence City Commission:
I am writing to you regarding the USA PATRIOT Act. As a former Counsel to the U.S. Attorney General (2001-2003) and as a Professor of Constitutional Law, I am well acquainted with the Act’s purposes, effects, and constitutionality. I urge you to reject any motion to formally oppose the Act or prevent city officers from cooperating with federal officials exercising authority conveyed by the Act. I am writing this letter in my private capacity, as I am no longer an employee of the Department of Justice.
In the past year, there has been a nationwide effort by a few interest groups to spread misinformation about the Act and its impact upon civil liberties. This campaign has led to false claims that the Act has in some way restricted the civil liberties of American citizens. I will respond to these claims in greater detail in my testimony before the Commission. However, I would like to place a few facts on the table so that the Commission’s deliberations may be firmly anchored in reality.
First, there is scant support for the claim that any specific civil liberties have been violated by the Act. Myriad public statements about violations of civil liberties have been made without any specification of exactly what liberty has been violated. Numerous legal challenges have asserted that various provisions of the USA PATRIOT Act are unconstitutional. To date, only one court (a federal district court in the Central District of California) has held any provision of the Act unconstitutional—and that in a highly contrived case in which no one was actually arrested for anything. The plaintiffs succeeded in persuading the judge that their public advocacy on behalf of the Tamil Tigers might hypothetically be construed as providing “material support” to a terrorist organization in the form of “expert advice or assistance.” The judge, in a highly questionable ruling, held the “expert advice or assistance” language to be impermissibly vague. None of the central provisions of the Patriot Act have ever been held unconstitutional by any court.
Second, contrary to the hysterical claims of some interest groups, many of the provisions of the Act have never even been employed. For example, the American Library Association has insisted that the Patriot Act has undermined the privacy of library users. What they fail to mention is that the provision of the Act in question—Section 215, which allows the FBI to obtain “tangible things” pursuant to a court order—has never been used. Moreover, if ever it is used in the future, FBI agents must first persuade a court that the sought-after documents are associated with foreign intelligence or international terrorism.
Third, it is difficult to imagine how a Lawrence Police Officer might be directed to refuse to cooperate with federal officials exercising USA PATRIOT Act authority in any coherent way. Typically, in a terrorist investigation, the FBI relies on a plethora of statutory authorities to do its work. The USA PATRIOT Act may not even come into play, and if it does, it may not be evident to Lawrence officials. For example, if the FBI were to request local assistance in arresting a terrorist suspect, Lawrence police officers would have no basis for concluding, say, that the FBI was relying on roving wiretaps authorized by the Act. Nor could a Lawrence officer conclude the FBI’s investigation was initiated after information obtained by a federal grand jury was shared with the FBI in order to prevent a terrorist attack—information sharing authorized by the Act. Therefore, if the Lawrence City Commission were to direct city officials to refuse to cooperate with federal officials exercising USA PATRIOT Act authority, the only way that a city official could be sure that he was in compliance with the directive would be to refuse to assist the FBI in any terrorist case. Such a blanket withdrawal of local assistance would be a profound disservice to the country and could potentially place Lawrence residents in danger.
In conclusion, I urge the Commission to reject any motion to refuse to cooperate with federal officials or to express opposition to the USA PATRIOT Act. The Act has played a pivotal role in the successful prosecution of the war on terrorism by the Justice Department and the FBI. Unless and until any solid violation of civil liberties is established, such a move by the City of Lawrence would be ill considered.
Sincerely,
Kris W. Kobach