Renowned (in liberal circles) Harvard law professor Alan Dershowitz stated in an interview on the Fox News Channel this week (April 24), that the Clinton administration acted against the law when its agents violently seized 6-year-old Elián Gonzalez from the home of his Miami relatives. According to Dershowitz the Clinton Administration,
“… should have gotten a court order. They should have sought to hold the family in contempt. And if the family refused to comply with the court order, then they could have issued contempt citations and arrested the family. But I have a reason why they didn’t go for a court order. They didn’t go for a court order because they knew they couldn’t get one…
“This is established to really confirm the terrible precedent that the administration can act without court approval and break into the home of an American citizen. You know, the picture of Elián smiling is the picture of the day, but the picture of the gun-toting INS agent coming into the house is the – is going to be the precedent, the picture in the history books. It’s a dangerous day for all Americans…The great danger is when the administration, without a court order, can take the law into their own hands.”
Constitutional law professor at Harvard Laurence Tribe writing in Tuesday’s New York Times (April 25) reiterated the same claim saying that:
Although a federal court had ordered that Elián not be removed from the country pending a determination of his asylum petition, and although a court had ruled that the Immigration and Naturalization Service could exercise custody and control of Elián for the time being, no judge or neutral magistrate had issued the type of warrant or other authority needed for the executive branch to break into the home to seize the child.
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…
Either way, Ms. Reno’s decision to take the law as well as the child into her own hands seems worse than a political blunder. Even if well intended, her decision strikes at the heart of constitutional government and shakes the safeguards of liberty.
Former New Jersey Supreme Court Judge Andrew Napolitano wrote in (The Wall Street Journal, April 26):
The agents who assaulted Lazaro Gonzalez’s house Saturday morning did have a search warrant. But a review of the affidavit on which the warrant was based shows the raid was constitutionally flawed, unlawful and repugnant to the language and spirit of the then three-day-old decision of the U.S. Court of Appeals that ordered Ms. Reno to keep Elián in the U.S. and denied her request for an injunction requiring Mr. Gonzalez to turn the boy over.
Why did the Clinton administration force Reno to do it?
According to Alan Dershowitz,
…they acted lawlessly — they couldn’t get one because the 11th circuit had already turned down their request for a court order, and the family would have argued that giving the child over to the father, at this point, would moot the case in the 11th circuit because, predictably, within a few days, Greg Craig will come out with a hand-scrawled little note from Elián saying he now withdraws his application for asylum.
Mark Levin of the Landmark Legal Foundation concurs while commenting on their friend of the court brief, filed on behalf of Elián with the 11th Circuit Court of Appeals, April 23:
The Justice Department may have transferred physical custody of Elián at gunpoint last Saturday, but they did not — and do not have the right to — prevent him from consulting with independent legal counsel. Greg Craig and the U.S. government are denying him those rights…
…the Justice Department is moving at warp speed to send this six year old back to Cuba. It is ignoring or attempting to circumvent every established legal procedure and precedent, and we don’t believe it should be allowed to do so unchallenged…
…As the Court said in its April 19th order, it acted to prevent Elián from being deprived of his day in a court of law…We’ve filed our brief to see that he is not deprived of something of equal importance — his right to independent legal counsel.
The key point is that presently the Clinton Government is preventing Elián’s asylum lawyers from visiting with Elián — while allowing Castro supporters exclusive contact with Elián — in order to deny Elián’s right to an asylum hearing, which the court has declared is Elián’s right:
If Congress had meant to include only some aliens, perhaps Congress would not have used the words “any alien.” In addition, although the INS has the authority to issue regulations and procedures governing the submission of asylum applications, the INS cannot properly infringe on the plain language of the statute or the clear congressional purpose underlying it. [click here for the full text]
Furthermore the court declared that it is possible that Elián’s father’s interests are against those of Elián’s:
Moreover, the regulations contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents…Not only does it appear that Plaintiff might be entitled to apply personally for asylum, it appears that he did so. According to the record, Plaintiff — although a young child — has expressed a wish that he not be returned to Cuba. He personally signed an application for asylum.
Even if the INS is correct that Plaintiff needs an adult, legal representative for his asylum application, it is not clear that the INS, in finding Plaintiff’s father to be the only proper representative, considered all of the relevant factors — particularly the child’s separate and independent interests in seeking asylum… [click here for the full text]
Such is the only legacy Clinton will leave in the legal realm: spitting on the rule of law from the left side of his mouth, while praising its glories from the other side.
