Subject: The Elián Raid and the Separation of Powers
From: Laurence H. Tribe, Harvard Law School
Date: Fri Apr 28 09:46:44 a.m.
Tim Noah proceeds as though it made a difference that the search warrant in the González raid—the existence of which I obviously noted in my April 25 op-ed in the New York Times—was indeed "a warrant to seize the child." But whether the warrant did or didn't purport to authorize the child's seizure doesn't alter my argument that the executive branch lacked "the type of ... authority needed ... to break into the home" of Elián's Miami relatives.
As Noah writes, the search-warrant's language—that Elián was "concealed" at the Miami home—was indeed "standard [legal] boilerplate" to "search for and seize any ... person ... who is unlawfully restrained." But not only was Elián not "concealed" (witness his appearance at the home on nightly TV); plainly, he was not "unlawfully restrained." Noah and INS both blandly argue that the Miami family's "retention of Elián [was] unlawful because ... [it was] contrary to the INS order of April 12, 2000, and without the consent of [his father]." How remarkable! The INS gets to break into all homes whose occupants fail to obey its orders? When that is the assumption, the only probable cause that becomes relevant is probable cause to believe someone has not caved in to the executive branch's demands. Clearly, the Constitution's separation of powers and its Fourth Amendment undo this bootstrap argument.
Noah has evidently made the same error as did the INS. In its application for the warrant, the INS argued that the "situation is analogous to the retention of custody by a parent when a court has ordered custody transferred to another individual." But refusing to obey an order of the court is altogether different from refusing to obey an order of the executive branch—which had sought a court order demanding Elián's transfer but failed.
Even if the legal provision to "search for and seize any ... person ... who is unlawfully restrained" had been designed with the self-serving and circular purpose attributed to it by Noah and by the INS, it would be difficult to square any such transfer of power to the executive branch with the basic structure of our Constitution—which relies heavily on the separation of powers to protect liberty and property (not only under the Fourth Amendment but elsewhere). Perhaps the judge and the INS agents who executed his warrant should be protected from personal liability by their compliance with official procedure, but that's neither here nor there regarding the basic constitutional question.
Finally, Noah implies that Elián "remains an illegal alien" simply because the INS revoked his grand-uncle's custody. Noah implies that, for this reason, the Constitution does not apply. But this assumes that immigration regulations are not subject to constitutional constraints—an assumption the Supreme Court has rejected often—and ignores the Eleventh Circuit Court's decision, just days before the raid, to prohibit Elián's removal from the country pending his asylum request.
Subject: "Stolen" Op-Ed a Mistake, Not a Scandal
From: Larry Jordan
Date: Wed Apr 26 05:52:47 p.m.
Since Jay Jennings has referred to me by name in his story on a "stolen" humor piece which we unwittingly ran in our magazine, Midwest Today, I want to take the opportunity to briefly address a couple of the points he makes.
First, to say it was "stolen" by us is ridiculous, because as any lawyer would tell you, that presupposes we knew who it belonged to initially and then unlawfully took it. As anyone knows who has spent even a minimal amount of time on the Web, the Internet is full of unsigned compositions from amateur writers who, for one reason or another, want to remain anonymous. Frankly, we felt this article fit that category—it was clearly amateurish. That was part of its appeal, and why we only ran it as a sidebar. We felt it was on a par with the humorous stories and jokes that get sent around from office to office by fax or in chain e-mails. Nothing more. As I explained to Mr. Jennings in my letter to him, we made a sincere attempt to establish authorship of the piece before we ran it.
Jennings, by the way, is guilty of the sin of omission. What he failed to tell his readers is that he knows that in the same issue as we ran his sidebar, we ran a second sidebar that we also found on the Internet. But since it had a name on it, we e-mailed the guy who wrote it (who happened to work for ABC News). He was only too happy to give us permission, and in turn we put his byline on it, gave his e-mail address, and even plugged a book he'd written.
[To read an unedited version of this post, click here and scroll to the bottom.]
Subject: Kennedy and Cotts' Radical Chic
Date: Thu Apr 27 12:33:27 p.m.
Dan Kennedy, never make the mistake of thinking that just because you were "brave" enough to burn a useless draft card while under the influence of pot (Thursday's entry) that you have any moral superiority over the millions who, in the U.S., in South Vietnam, and in North Vietnam, answered the call of their countries and laid down their lives—by choice, by necessity, or by sheer love for their patrimony.
You two seem to put your actions and opinions on some pedestal of superior morality. You both seemed to distrust and look down upon the U.S. military. What have you done in your adult lives, as you shuttle around the East Side, dine at Nobu, and read all the papers, to actually stop genocide, promote peace, distribute food to famine victims, rescue flood victims, prevent cholera, alleviate some increment of suffering at home or abroad?
You come walk in my boots with me—you come to Kosovo, not just on a breezy 3-day VIP tour, but you really come and do some good—then you can write about what you think about war and who are and are not war criminals. Go sit in on the tribunals in The Hague. You come look a real war criminal in the eyes, and then you can talk about Henry Kissinger and Bill Clinton. Then you will know the intellectual dishonesty you are perpetrating when you toss those terms around.
I regret I cannot sign with my rank and name, but I have given up certain of my freedoms in order to serve. Would you? Am I somehow less than you, morally, intellectually, or spiritually, because I have? I don't think so. I volunteered for the Balkans because it is the right thing to do. I try every day to put my money where my mouth is and to live by my ideals. Can you say the same? And, by the way, I am a woman. Men do not have a monopoly on the Army, honor, or service to the country.
[To reply, click here.]
Subject: Irving Howe's Misunderstood Essay
From: Keith Gessen
Date: Wed Apr 26 09:43:55 p.m.
This was a fine exchange, until you guys took that cheap shot at Irving Howe. I urge you to read that Commentary essay again: The conventional wisdom is wrong, and Howe was, for all his excesses, pretty much right. But that essay has been abused, misquoted, and called upon to justify so many poor critical practices that it would perhaps have been better had he never written it. In any case, Howe was emphatically not criticizing Ralph Ellison for neglecting "the ideological and emotional penalties" suffered by blacks; the passage from which the quoted line was ripped is, actually, this:
What astonishes one most about Invisible Man is the apparent freedom it displays from the ideological and emotional penalties suffered by Negroes in this country. I say "apparent" because the freedom is not quite so complete as the book's admirers like to suppose. Still, for long stretches Invisible Man does escape the formulas of protest, local color, genre quaintness, and jazz chatter. No white man could have written it, since no white man could know with such intimacy the life of the Negroes from the inside; yet Ellison writes with an ease and humor which are now and again simply miraculous.
[Brent Staples responds,"It's been a long time since I read the essay. Thanks so much for the clarification. I shall return immediately to the original, lest I continue along in error."]
[To reply to Gessen's post, click here.]