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How About Reading That Elián Warrant?
Timothy NoahPosted Tuesday, April 25, 2000, at 1:35 PM ETHarvard 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.
E-mail Timothy Noah at .
Timothy Noah is a senior writer at Slate. Reader Response from The Fray:
The Slate submission by Tim Noah, like the INS reply in the April 26 New York Times, both proceed as though it made a material difference that the search warrant in the Gonzalez raid, the existence of which warrant I obviously noted in my April 25 Op-Ed in the New York Times, was indeed "a warrant to seize the child." Taken out of context, my sentence to the contrary was obviously mistaken. But whether the warrant did or didn't purport to authorize the child's seizure, which the INS in any event claimed was justified not by that search warrant but by its own administrative arrest warrant, doesn't affect in the least my argument that the executive branch, in the undisputed circumstances of this case, lacked "the type of...authority needed...to break into the home" of Elian's Miami relatives for purposes of effecting that seizure.
As Noah's posting says, the search warrant's recitation that Elian Gonzalez was "concealed" at the Miami home was indeed "standard boilerplate" to--in the words of Federal Rule of Criminal Procedure 41(b)--"search for and seize any...(4) person...who is unlawfully restrained." Not only was Elian transparently not "concealed" (witness his appearance at the home on nightly TV), however; plainly, he was not "unlawfully restrained." The Slate article and INS both blandly claim the contrary, deeming the child to fit that category inasmuch as the Miami family's "retention of Elian [was] unlawful because...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 charge, the magistrate's role is reduced from a rubber stamp to a Xerox machine, for the only probable cause that becomes relevant is probable cause to believe someone has not caved in to the government's demands. Clearly, this bootstrap argument flies in the face of the separation of powers and the purposes of the Fourth Amendment.
Noah has evidently made the same error as did the INS in its application for the search warrant when it said, after invoking Rule 41(b)(4), that this "situation is analogous to the retention of custody by a parent when a court has ordered custody transferred to another individual," citing UNITED STATES v. AL-AHMAD, 996 F. Supp. 1055 (D. Colo. 1998)(probable cause existed to establish a violation of 18 USC sec. 1204 where the father refused to comply with a court order changing custody to the maternal grandmother). But refusing to comply with a court order is altogether different from refusing to obey the executive branch, which here sought a court order compelling Elian's transfer from his Miami custodians but without success (when the Eleventh Circuit on April 19 refused to order Elian's removal from the home of his American relatives). When there is probable cause to believe that someone is being held in defiance of a court order, the duty of the Article II branch faithfully to "execute" the laws comes into play, and ex parte issuance of a suitable warrant is all the executive needs in order to enter a home to search for the person being so held. So too, in the standard cases for which Rule 41(b)(4) was designed, when there is probable cause to believe someone is being held as a hostage or kidnap victim, in violation of a duly enacted criminal statute, the duty of the Article II branch to execute the laws justifies issuance of a warrant as authorized by 41(b)(4).
Even if, contrary to fact, that provision had been designed with the self-serving and circular purpose attributed to it by Noah and by the INS, so that it would permit the executive branch--armed only with a warrant issued ex parte and not with probable cause to believe it is rescuing the victim of a violation of a criminal law enacted by Congress or of a custodial or other order issued by an Article III court--it would be difficult to square any such delegation of authority to the executive branch with the basic structure of our Constitution, which relies heavily on the separation of powers to protect personal liberty and property not only under the Fourth Amendment but elsewhere. Perhaps the magistrate and those agents who executed his warrant would and should be protected from personal liability by their compliance with official form here, and perhaps any evidence seized pursuant to this warrant would be similarly immunized from the ordinary operation of the exclusionary rule, but that's neither here nor there when we're dealing with the basic question of whether the Gonzalez raid complied with the Constitution. Finally, Noah's insistence that Elian "remains an illegal alien" subject to administrative arrest in light of the INS revocation of his parole and of his grand-uncle's temporary custody -- and the implicit suggestion that, for this reason, the Constitution's ordinary strictures become inapplicable -- both assumes that immigration actions are not subject to constitutional constraints (an assumption the Supreme Court has rejected often, most famously in the legislative veto decision involving the deportation of Mr. Chadha) and ignores the Eleventh Circuit's decision, just days before this raid, to enjoin Elian's removal from this country pending its resolution of his pending asylum request.
--Laurence H. Tribe
(To reply, click
here.)
(4/28)
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Reader Response from The Fray:
The Slate submission by Tim Noah, like the INS reply in the April 26 New York Times, both proceed as though it made a material difference that the search warrant in the Gonzalez raid, the existence of which warrant I obviously noted in my April 25 Op-Ed in the New York Times, was indeed "a warrant to seize the child." Taken out of context, my sentence to the contrary was obviously mistaken. But whether the warrant did or didn't purport to authorize the child's seizure, which the INS in any event claimed was justified not by that search warrant but by its own administrative arrest warrant, doesn't affect in the least my argument that the executive branch, in the undisputed circumstances of this case, lacked "the type of...authority needed...to break into the home" of Elian's Miami relatives for purposes of effecting that seizure.
As Noah's posting says, the search warrant's recitation that Elian Gonzalez was "concealed" at the Miami home was indeed "standard boilerplate" to--in the words of Federal Rule of Criminal Procedure 41(b)--"search for and seize any...(4) person...who is unlawfully restrained." Not only was Elian transparently not "concealed" (witness his appearance at the home on nightly TV), however; plainly, he was not "unlawfully restrained." The Slate article and INS both blandly claim the contrary, deeming the child to fit that category inasmuch as the Miami family's "retention of Elian [was] unlawful because...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 charge, the magistrate's role is reduced from a rubber stamp to a Xerox machine, for the only probable cause that becomes relevant is probable cause to believe someone has not caved in to the government's demands. Clearly, this bootstrap argument flies in the face of the separation of powers and the purposes of the Fourth Amendment.
Noah has evidently made the same error as did the INS in its application for the search warrant when it said, after invoking Rule 41(b)(4), that this "situation is analogous to the retention of custody by a parent when a court has ordered custody transferred to another individual," citing UNITED STATES v. AL-AHMAD, 996 F. Supp. 1055 (D. Colo. 1998)(probable cause existed to establish a violation of 18 USC sec. 1204 where the father refused to comply with a court order changing custody to the maternal grandmother). But refusing to comply with a court order is altogether different from refusing to obey the executive branch, which here sought a court order compelling Elian's transfer from his Miami custodians but without success (when the Eleventh Circuit on April 19 refused to order Elian's removal from the home of his American relatives). When there is probable cause to believe that someone is being held in defiance of a court order, the duty of the Article II branch faithfully to "execute" the laws comes into play, and ex parte issuance of a suitable warrant is all the executive needs in order to enter a home to search for the person being so held. So too, in the standard cases for which Rule 41(b)(4) was designed, when there is probable cause to believe someone is being held as a hostage or kidnap victim, in violation of a duly enacted criminal statute, the duty of the Article II branch to execute the laws justifies issuance of a warrant as authorized by 41(b)(4).
Even if, contrary to fact, that provision had been designed with the self-serving and circular purpose attributed to it by Noah and by the INS, so that it would permit the executive branch--armed only with a warrant issued ex parte and not with probable cause to believe it is rescuing the victim of a violation of a criminal law enacted by Congress or of a custodial or other order issued by an Article III court--it would be difficult to square any such delegation of authority to the executive branch with the basic structure of our Constitution, which relies heavily on the separation of powers to protect personal liberty and property not only under the Fourth Amendment but elsewhere. Perhaps the magistrate and those agents who executed his warrant would and should be protected from personal liability by their compliance with official form here, and perhaps any evidence seized pursuant to this warrant would be similarly immunized from the ordinary operation of the exclusionary rule, but that's neither here nor there when we're dealing with the basic question of whether the Gonzalez raid complied with the Constitution. Finally, Noah's insistence that Elian "remains an illegal alien" subject to administrative arrest in light of the INS revocation of his parole and of his grand-uncle's temporary custody -- and the implicit suggestion that, for this reason, the Constitution's ordinary strictures become inapplicable -- both assumes that immigration actions are not subject to constitutional constraints (an assumption the Supreme Court has rejected often, most famously in the legislative veto decision involving the deportation of Mr. Chadha) and ignores the Eleventh Circuit's decision, just days before this raid, to enjoin Elian's removal from this country pending its resolution of his pending asylum request.
--Laurence H. Tribe
(To reply, click here.)
(4/28)