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More on That Elián Search Warrant
Timothy NoahPosted Friday, April 28, 2000, at 7:00 PM ETChatterbox 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 warrant
was
indeed "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.
E-mail Timothy Noah at .
Timothy Noah is a senior writer at Slate. Reader Response from The Fray:
A quick clarification on the interesting conversation between Chatterbox and Professor Tribe. Under the law as it now stands, I think the INS will likely prevail in their claim that they acted constitutionally. They had a warrant, and today's judges often think that this is enough--even when the warrant has been stretched to cover situations that go beyond what warrants covered at the Founding. The 1978 Zurcher v. Stanford Daily case would be a strong Fourth Amendment precedent for the INS. But Zurcher, in my view, was an unfortunate case, giving executive officials overly broad powers to conduct extremely intrusive searches and seizures without sufficient justification. Indeed, Congress later overruled the case by statute, though this statute does not apply to Elian's case.
Under the law as it should be--and I think this is Professor Tribe's best point--the government should need more than a barebones warrant to bust down the door of a home at gunpoint when it is seeking something rather different from stolen goods, contraband, and the like. The government should also be required to prove that a less intrusive intervention--a subpoena or contempt citation--would not do the trick and thus that an armed confrontation in the home is truly necessary. If--and it's a big if--the government did have strong evidence that a contempt order or subpoena would have been defied, then its actions would be justified. On the facts of Elian's case, I confess I don't know enough to say whether this test was met.
--Akhil Reed Amar,
Yale Law School
(To reply, click
here.)
(4/29)
Tribe's argument is essentially that an executive branch agency (such as the INS) can never invade a home without violating the Fourth Amendment unless it has a court order to do so. A search warrant, Tribe says, is not enough.
Tribe ignores, however, the fact that the Constitution delegates near total power (it is called "plenary power" in the cases) to Congress in immigration matters, and Congress has in turn delegated that power to the INS. Tribe cites the INS v. Chadha case for the proposition that the INS is subject to the Constitution, but Tribe is being dishonest here, taking advantage of the fact that the readers of his post may not know much about the law. The Chadha case invalidated the "legislative veto", a separation of powers issue that could have come up in any case, whether related to immigration or not, and had nothing to do with the relationship between the Fourth Amendment and immigration matters. However, in Matthews v. Diaz, the Supreme Court said that the power of the Congress (and through delegation, the INS) to regulate immigration was near total, and there were very few constitutional restrictions. And in Shaughnessy v. Mazei, the Supreme Court said that an excludable alien paroled into the country (eg Elian Gonzalez) had no Constitutional rights with respect to his deportation.
Tribe is also being disingenuous when he states that the executive branch may never conduct a raid without a court order. That contention is silly. In "exigent circumstances", not only do you not need a court order, you don't even need a warrant (which the government had in this case). Thus, law enforcement can do a hostage rescue, with an armed SWAT team, with no judicial approval whatsoever, even in the form of a warrant signed by a magistrate. This child was effectively being held hostage by people who had publicly stated that the government would have to take the child by force. Elian was also being psychologically abused by the relatives' media strategy, including by making a sick videotape where the relatives turned the kid against his own father. His confinement had to stop, so "exigent circumstances" were arguably present.
Further, even if the circumstances were not "exigent", a court order is not required to seize a person held in violation of an executive branch agency's valid order rendered within its jurisdiction. Nobody believes that the INS did not have the power to change the parole custodian from Lazaro to Juan Miguel Gonzalez. If the relatives (who are represented by capable lawyers) really believed the INS order was contrary to the law, they could have gone into federal court and obtained a writ of mandamus quashing the order. Thus, the INS's order was the law. The relatives didn't believe that it was an improper order--they just decided to disobey it. There was thus no requirement that the INS get a court order, any more than the local health department has to get a court order in order to forcibly shut down an unsanitary restaurant who continues operating in disobedience of the department's order to close. Valid executive branch orders are binding against those who choose not to attempt to stay or overturn them in court.
Laurence Tribe knows as well as any lawyer (and he is one of the best, and one that I greatly admire) that when a government agency orders your client to do something and you believe the order to be improper, you don't wait for the agency to get a court order. You go in to court and get it stayed or overturned before the agency can act to enforce it. There is no doubt that the INS's action was proper.
--Dilan Esper
(To reply, click
here.)
Warrant, schwarrant. I agree with Larry Tribe. The "warrant" gave the INS nothing. For that matter, any warrant based on false affidavits is invalid. What do you think precipitated the "warrant"? On Thursday, Reno's Justice Department got an adverse ruling from the 11th Circuit. All the fancy dancing, deadlines and negotiations were Reno's charade designed to derail the 11th May hearing. Reno Justice, figuring possession is 9/10ths of the law, obviously planned to send Elian to Cuba, Adolph Eichman style if need be, to avoid that hearing.
--George
(To reply, click
here.)
I think that Tribe still has the better of this argument, but I want to underscore a point where he and Amar agree: warrants are far too easy to get, and there is far too little accountability for improprieties and corner-cutting in their issuance and procurement. I think it is far too easy to dismiss this issue as Chatterbox has done, by saying that therefore there's nothing special going on here. We should be angry about this, and anxious to fix it, across the board. My colleague Tom Davies has just published a lengthy discussion in the Michigan Law Review, which I will wildly oversimplify by stressing just one of its points: that traditionally magistrates who issued warrants, and officers who conducted searches without them, were far more susceptible to lawsuits for misbehavior than is the case today, when judges and officers alike are protected by a doctrine of immunity that has no basis in the constitution, but is purely a matter of judicial creativity. That's another thing we should be unhappy about, across the board.
--Glenn Reynolds
(To reply, click
here.)
(5/1)
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Reader Response from The Fray:
A quick clarification on the interesting conversation between Chatterbox and Professor Tribe. Under the law as it now stands, I think the INS will likely prevail in their claim that they acted constitutionally. They had a warrant, and today's judges often think that this is enough--even when the warrant has been stretched to cover situations that go beyond what warrants covered at the Founding. The 1978 Zurcher v. Stanford Daily case would be a strong Fourth Amendment precedent for the INS. But Zurcher, in my view, was an unfortunate case, giving executive officials overly broad powers to conduct extremely intrusive searches and seizures without sufficient justification. Indeed, Congress later overruled the case by statute, though this statute does not apply to Elian's case.
Under the law as it should be--and I think this is Professor Tribe's best point--the government should need more than a barebones warrant to bust down the door of a home at gunpoint when it is seeking something rather different from stolen goods, contraband, and the like. The government should also be required to prove that a less intrusive intervention--a subpoena or contempt citation--would not do the trick and thus that an armed confrontation in the home is truly necessary. If--and it's a big if--the government did have strong evidence that a contempt order or subpoena would have been defied, then its actions would be justified. On the facts of Elian's case, I confess I don't know enough to say whether this test was met.
--Akhil Reed Amar,
Yale Law School
(To reply, click here.)
(4/29)
Tribe's argument is essentially that an executive branch agency (such as the INS) can never invade a home without violating the Fourth Amendment unless it has a court order to do so. A search warrant, Tribe says, is not enough.
Tribe ignores, however, the fact that the Constitution delegates near total power (it is called "plenary power" in the cases) to Congress in immigration matters, and Congress has in turn delegated that power to the INS. Tribe cites the INS v. Chadha case for the proposition that the INS is subject to the Constitution, but Tribe is being dishonest here, taking advantage of the fact that the readers of his post may not know much about the law. The Chadha case invalidated the "legislative veto", a separation of powers issue that could have come up in any case, whether related to immigration or not, and had nothing to do with the relationship between the Fourth Amendment and immigration matters. However, in Matthews v. Diaz, the Supreme Court said that the power of the Congress (and through delegation, the INS) to regulate immigration was near total, and there were very few constitutional restrictions. And in Shaughnessy v. Mazei, the Supreme Court said that an excludable alien paroled into the country (eg Elian Gonzalez) had no Constitutional rights with respect to his deportation.
Tribe is also being disingenuous when he states that the executive branch may never conduct a raid without a court order. That contention is silly. In "exigent circumstances", not only do you not need a court order, you don't even need a warrant (which the government had in this case). Thus, law enforcement can do a hostage rescue, with an armed SWAT team, with no judicial approval whatsoever, even in the form of a warrant signed by a magistrate. This child was effectively being held hostage by people who had publicly stated that the government would have to take the child by force. Elian was also being psychologically abused by the relatives' media strategy, including by making a sick videotape where the relatives turned the kid against his own father. His confinement had to stop, so "exigent circumstances" were arguably present.
Further, even if the circumstances were not "exigent", a court order is not required to seize a person held in violation of an executive branch agency's valid order rendered within its jurisdiction. Nobody believes that the INS did not have the power to change the parole custodian from Lazaro to Juan Miguel Gonzalez. If the relatives (who are represented by capable lawyers) really believed the INS order was contrary to the law, they could have gone into federal court and obtained a writ of mandamus quashing the order. Thus, the INS's order was the law. The relatives didn't believe that it was an improper order--they just decided to disobey it. There was thus no requirement that the INS get a court order, any more than the local health department has to get a court order in order to forcibly shut down an unsanitary restaurant who continues operating in disobedience of the department's order to close. Valid executive branch orders are binding against those who choose not to attempt to stay or overturn them in court.
Laurence Tribe knows as well as any lawyer (and he is one of the best, and one that I greatly admire) that when a government agency orders your client to do something and you believe the order to be improper, you don't wait for the agency to get a court order. You go in to court and get it stayed or overturned before the agency can act to enforce it. There is no doubt that the INS's action was proper.
--Dilan Esper
(To reply, click here.)
Warrant, schwarrant. I agree with Larry Tribe. The "warrant" gave the INS nothing. For that matter, any warrant based on false affidavits is invalid. What do you think precipitated the "warrant"? On Thursday, Reno's Justice Department got an adverse ruling from the 11th Circuit. All the fancy dancing, deadlines and negotiations were Reno's charade designed to derail the 11th May hearing. Reno Justice, figuring possession is 9/10ths of the law, obviously planned to send Elian to Cuba, Adolph Eichman style if need be, to avoid that hearing.
--George
(To reply, click here.)
I think that Tribe still has the better of this argument, but I want to underscore a point where he and Amar agree: warrants are far too easy to get, and there is far too little accountability for improprieties and corner-cutting in their issuance and procurement. I think it is far too easy to dismiss this issue as Chatterbox has done, by saying that therefore there's nothing special going on here. We should be angry about this, and anxious to fix it, across the board. My colleague Tom Davies has just published a lengthy discussion in the Michigan Law Review, which I will wildly oversimplify by stressing just one of its points: that traditionally magistrates who issued warrants, and officers who conducted searches without them, were far more susceptible to lawsuits for misbehavior than is the case today, when judges and officers alike are protected by a doctrine of immunity that has no basis in the constitution, but is purely a matter of judicial creativity. That's another thing we should be unhappy about, across the board.
--Glenn Reynolds
(To reply, click here.)
(5/1)