Clipped from Slate
chatterbox
More on That Eli n Search Warrant
By Timothy Noah
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 Eli n
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 Eli n Gonzalez 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."
More important than whether Larry Tribe did his homework, of
course, is whether Tribe's general point was correct. Was the Eli n
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 Eli n Gonzalez 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 Eli n warrant, Robert Dub‚, 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 Dub‚ is "notoriously pro-government
in his rulings." Indeed, both the Journal editorial board and
Napolitano hold Dub‚ 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 Dub‚, 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 Eli n 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 Gonz lez
family in jail, but rather to retrieve Eli n. Indeed, in today's
Washington Post, Karen DeYoung reports that the INS had a lot more
to fear than that the Gonzalezes might hide Eli n. The INS says it
had evidence that the five bodyguards providing "close-in security
for the Gonzalez family and Eli n" 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 Gonzalez house.
Next case.
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