Letter to the Times?

[Randy Barnett]

Sandy,

I was and still am simply trying to understand the legality of the
government's actions on Saturday.  To that end, I have deliberately avoided
getting involved in separate issues, such as whether the INS agents would
have required some protection from the up-until-then peaceful and
lawfully-assembled crowd outside the home--I assume they would--or whether
the Attorney General was negotiating with the family in good faith while the
raid was being staged and executed.

Rather, the issue I am trying to understand is the legality of the INS
breaking into the home under color of a warrant.  In sum, I am asking only
whether a refusal of their request for Elian when they came to gain custody
was a legal prerequisite for their obtaining a legal search warrant--which
the government itself seems to concede when it refers to the "refusal" of
Lorenzo Gonzales to bring Elian to Opa Locka as their basis for asserting
"unlawful restraint."  I don't know the answers to the questions I have been
asking, but if the law says, in effect, that this was a necessary first step
to obtaining a valid search warrant then I think that is important to know.

Randy

PS:  I have just received and begun to examine the 4th edition of Brest,
Levinson, Balkin, and Amar.  It is very impressive indeed and I commend it
to others on this list.  I am really impressed with the way it blends
history with current doctrine.  Congratulations on a magnificent
accomplishment!

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
www.bu.edu/rbarnett
www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
www.LysanderSpooner.org (Lysander Spooner Website)


> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Sandy Levinson
> Sent: Friday, April 28, 2000 4:23 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Letter to the Times?
>
>
> Apropos the meaning of kidnapping and "terrorism."  As we all
> know, RICO was originally supposed to apply (only) to the Mafia.
> As we all know, it hasn't turned out that way.  An 11th Circuit
> capable of reading the asylum act's reference to "persons" to
> apply to a six-year old should surely have no trouble construing
> the statute, as quoted, to apply to the Miami family.
>
> I think that my friend Randy Barnett must be making a bad joke if
> he genuinely is suggesting that the INS should politely have
> visited the Miami home and asked for Elian.  First of all, they
> would need police protection.  Secondly, there is, of course, no
> reason whatsoever to believe that it would have been any more
> effective than a personal negotiation with the Attorney General
> of the United States (!).
>
> Sandy
>