More on That Elián Search Warrant

Chatterbox has just learned a great new rhetorical trick. If someone catches you making an error, don’t say, “Whoops, I goofed.” Say, “Taken out of context, my sentence to the contrary was obviously mistaken.” That’s how Harvard law professor Laurence Tribe answers Chatterbox’s item, “How About Reading That Elián Warrant?,” which disputed Tribe’s assertion (in an April 25 New York Times op-ed) that the search warrant used by the federal agents who seized Elián González in Miami was “not a warrant to seize the child.” As Chatterbox pointed out in the item, the warrantwasindeed “a warrant to seize the child.” (If you want to read Tribe’s response, scroll to the bottom of the earlier item. Or click here to read it in “The Fray.” Harvard law student Doug Sims interviewed Tribe about his error for the April 28 Harvard Law Record. Click here to read that.)

More important than whether Larry Tribe did his homework, of course, is whether Tribe’s general point was correct. Was the Elián raid a violation of Fourth Amendment protections against unreasonable searches and seizures? In part, this question turns on whether it was appropriate for the Immigration and Naturalization Service to invoke Federal Rule of Criminal Procedure 41(b), which says that a federal-law enforcement agent may seize a person who is being “unlawfully restrained.” Tribe says, in his response, that this is irrelevant because Elián González wasn’t “unlawfully restrained.” He was restrained against an order from the INS, and the INS isn’t the law. And the federal magistrate who approved the warrant isn’t the law, either, or shouldn’t be the law, because he’s acting like a mere “Xerox machine” (instead of playing his customary role, which, Tribe writes, tends to be that of “rubber stamp”).

That federal magistrates grant warrants too readily is not a new argument, and Chatterbox, lacking much firsthand knowledge, isn’t inclined to take Tribe on about this. But Chatterbox doesn’t really see any practical difference between a “rubber stamp” magistrate and a “Xerox machine” magistrate. That is, if federal magistrates tend to be too accommodating, Chatterbox doesn’t see what makes the magistrate who approved the Elián warrant, Robert Dubé, any worse than most of his peers. Chatterbox has somewhat less patience for the “federal magistrates are an easy lay” argument when it’s waged by the editorial page of the Wall Street Journal, which usually takes a hard line on law-and-order issues. An April 26 editorial in the Journal clucks that the INS didn’t present its warrant to federal Judge Michael Moore, but rather waited till after 7 p.m. on Good Friday, “when they knew Judge Moore would not be there.” An accompanying op-ed by Andrew Napolitano, a former New Jersey Superior Court judge, says that Dubé is “notoriously pro-government in his rulings.” Indeed, both the Journal editorial board and Napolitano hold Dubé in such unconscious contempt that they flub his name, calling him (tellingly) “Rube.” Or maybe there’s a non-psychological explanation: Napolitano doesn’t really know much about Dubé, or his rulings, at all. In any event, Chatterbox doesn’t expect the Journal’s newfound passion for civil liberties to outlast the week.

Chatterbox phoned Yale Law School professor Akhil Reed Amar, a Fourth Amendment scholar who generally believes warrants “are dangerous things” because they can give government officials too much power, to ask him about the constitutional issues raised by the Elián warrant. Amar said that Tribe is initiating “a good conversation. … Warrants and seizures, when you go in on your own, are more intrusive than, say, a subpoena.” But he said he thought Tribe was wrong, and the INS was right, on the technical question of whether this particular warrant was constitutional. In response to Tribe’s argument that the INS ought to have gotten a court order of contempt–it did request one, but was denied–Amar said that the INS might plausibly argue: “We were afraid, we had good reason to think if we simply served the subpoena they were going to hide the kid or they were going to make themselves martyrs and say, ‘You can put me in jail, but you’re not getting the kid.’ ” Which would have been counterproductive, Amar explained, since the government’s goal was not to put any member of the González family in jail, but rather to retrieve Elián. Indeed, in today’s Washington Post, Karen DeYoung reports that the INS had a lot more to fear than that the Gonzálezes might hide Elián. The INS says it had evidence that the five bodyguards providing “close-in security for the Gonzalez family and Elián” were armed. All five had concealed weapons permits, and one of the five was actually seen by a government informer carrying a gun inside the González house. Next case.