A response from Tribe

[Sandy Levinson]

Professor Tribe writes:

 Elian obviously was not a kidnap victim, a hostage, or anyone else
being held in violation of a criminal statute.
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I suppose that a lot rides on "obviously."  It seems to me altogether proper to argue that he was indeed a kidnap victim or a hostage.  It's true that custody was initially gained legally, but it was, just as clearly (a wonderful law professor's word), withdrawn by the INS, and I really don't see why they need a federal court to provide them cover on what is an everyday administrative procedure.  (I recall from first-year criminal law that even if you rent me your horse and my initial possession is thus perfectly legal, I can still be guilty of larceny if I refuse to return it when my rental period runs out or when, as permitted, you tell me that I must return it.  It is, "obviously," objectionable to compare Elian to a horse, but one of the things that's remarkable about the argument made by Tribe and others is the astonishing willingness to ignore the fact that a vulnerable six-year old, who had lost his mother, was being deprived, without the slightest legal (or moral) authority, of access to his father except on the preposterous terms offered by the Miami relatives.  In spite of my ill-tempered remarks yesterday, I genuinely admire Professor Tribe for his general devotion to civil liberties; in this instance, though, I continue to find his fears almost literally incomprehensible and the disregard for the actualities of the case troublesome.

Sandy