Harvard constitutional law professor Laurence Tribe weighed in on the legality of the González raid in the April 25 New York Times:
The Justice Department points out that the agents who stormed the Miami home were armed not only with guns but with a search warrant. But it was not a warrant to seize the child. Elián was not lost, and it is a semantic slight of hand to compare his forcible removal to the seizure of evidence, which is what a search warrant is for.
Unlike many opinions flung about during the past few days, Tribe’s does not seem to be colored by an ideological animus against the Clinton administration. Moreover, Tribe is a respected legal expert. In this instance, though, Tribe doesn’t seem to have done his homework.
The Miami Herald has posted on its Web site a copy of the search warrant in question. (To read it, click here.) Contrary to what Tribe writes, it is “a warrant to seize the child.” In what appears to be standard boilerplate, the warrant says that “there is now concealed a certain person or property, namely (describe the person or property),” at which point the following words have been inserted: “the person of Elian Gonzalez, date of birth December 8, 1993, a native and citizen of Cuba.” The warrant goes on to say that the U.S. Immigration and Naturalization Service is authorized to search for Elián at the González home. The warrant is signed by U.S. magistrate Robert Dube.
The Herald has also posted various supporting documents submitted to the court when the INS was seeking the warrant. Chatterbox is no legal expert, but the documents seem to suggest that the court didn’t act rashly when it granted the warrant. In this memorandum, for example, the INS points out that as of April 12, when the INS revoked Lázaro González’s temporary custody of Elián (Elián was, and remains, an illegal alien), Lázaro’s refusal to turn over Elián was in contravention of U.S. law. To wit:
Federal Rule of Criminal Procedure 41(b) provides that a warrant “may be issued under this rule to search for and seize any … (4) person for whose arrest there is probable cause, or who is unlawfully restrained. [Italics Chatterbox’s.] Lazaro Gonzalez’s retention of the custody of Elian is unlawful because it is contrary to the INS order of April 12, 2000, and without the consent of Juan Miguel Gonzalez.
You can argue that the INS doesn’t get to decide what U.S. law is, but you can’t argue that a U.S. magistrate doesn’t get to decide what U.S. law is. Dube, after reading this memo, approved the warrant.