Covert Mission
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This is an opinion piece by liberal lawyer/educator/constitutional scholar Alan Dershowitz, regarding the Elian raid. Although he surely has few fans here, it's an important piece. Like the opinion piece in today's NY Times by Lawrence Tribe (posted elsewhere here on TFL today), he is harshly critical of the raid to recover Elian Gonzalez from his relatives in FL, agreeing with Tribe. Dershowitz goes into more particular details about what was done, not done, and what should have been done. Note the passages i have boldfaced. Make the leap from this situation to one where these people or any like them decide that, regardless of the constitution or due process, they have to ban our guns and take them from us, "for the children." The ends justifies the means. This event may be the best thing that's happened to gun owners lately, in giving us ammunition against the Clinton-Gore regime. They apparently have thrown due process out the window, as long as they think the goal justifies it.. We MUST make the public aware of what this means for ALL of us. (Btw, I, like many, was foolish enough to assume that Reno MUST have had a warrant or court order to proceed with this plan. Mea culpa. I foolishly believed that no one could be so arrogant as to do otherwise in so high profile a case as this one).
from The Los Angeles Times, Tuesday April 25, 2000. Home Edition, Metro Part B Page 9-Op Ed /Opinion Piece
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The family portrait of a smiling Elian reunited with his father is the current news. But the enduring precedent is reflected by the photograph of an armed government agent breaking into the home of American citizens. Although the agents had something denominated a ‘search‘ warrant, this warrant was not based on any court order issued after a full adversarial hearing. Instead, it was based on an after-hours, ex parte application that claimed that Elian was being ‘concealed‘ and ‘unlawfully‘ restrained, and that Elian was himself the subject of an INS administrative warrant of arrest. This is not the way American law enforcement should work.
The appropriate manner by which Elian should have been reunited with his father was a government request for a court order, following an adversarial hearing and determination that the Miami relatives were in contempt of court. If the relatives were then unwilling to obey the court order and turn Elian over, law enforcement authorities would have had the lawful power to arrest these relatives and remove him from the home.
Why then did the Justice Department and the INS not seek a court order? The answer is they had earlier sought such an order from the 11th Circuit Court of Appeals, which had denied it as part of the opinion ordering Elian to remain in the United States. They were afraid that if they sought such an order from a federal district court, it too would have denied it. So instead of going to court, the government simply seized the child based on an uncontested and entirely inappropriate search warrant, which courts routinely issue.
Had there been an adversarial hearing, the Miami relatives would undoubtedly have argued that transferring the child to his father would essentially moot the case now pending before the 11th Circuit, since Elian, now under the influence of his father, will almost certainly withdraw his application for asylum. The father’s lawyer will now argue that since the 11th Circuit apparently gave some credence to the asylum application of a 6-year-old child, it has no choice but to give equal credence to his withdrawal of that application.
For whatever reason the government chose not to seek a court order following an adversarial hearing, its actions confirm a dangerous precedent: that the executive branch of the government has the authority to break into a citizen’s home in a contested dispute without giving that citizen the opportunity first to present his side to a court for resolution of the dispute.
This dangerous precedent has long permitted the INS and its predecessors to break into the homes of aliens, to raid factories of citizens who employ aliens and to act in other high-handed ways without prior court approval. Civil libertarians recall with horror the Palmer raids in which immigration officials rounded up thousands of Italian, Irish and Jewish ‘radicals‘ during and following World War I. This practice has continued unabated and manifests itself today in the frequent raids conducted by immigration officials in Southern California, Texas and Florida. When the objects of these raids are Mexican workers, civil libertarians express appropriate outrage, because they disagree with both the means and the ends of such raids. But when the object of such a raid is the reunion of a Cuban father and his son, many liberals and civil libertarians remain suspiciously silent or even supportive of lawless government action, because in this case they agree with the end and believe that a good end justifies bad means.
This situational approach to civil liberties considerably weakens the credibility of those who claim to believe in due process. People who support procedural safeguards only in cases where they agree with the substantive rights at issue, are legitimately subject to accusations of hypocrisy. Our system of checks and balances must be applied vigorously even in cases in which the executive is seeking to achieve a desirable end. The most important check on the excesses of the executive branch is judicial review, as has been acknowledged since the foundational Supreme Court decision in Marbury vs. Madison. Although that case involved a judicial check on unconstitutional action of the president, the principle applies to any case where the executive seeks to act in violation of the rule of law.
In the Elian Gonzalez case, the executive had a traditional legal option available to it, which it could have pursued weeks ago. It could have asked a court to order the Miami family to turn the child over to his father. Instead, the Justice Department, a part of the executive branch, issued its own order and imposed its own deadlines. Under American law, no citizen has an obligation to obey the executive, unless its order is lawful and backed by judicial authority. By enforcing its own order, without the judicial imprimatur of a court mandate, the Justice Department has reinforced a precedent that endangers the rights of all American citizens.
[This message has been edited by Covert Mission (edited April 25, 2000).]
from The Los Angeles Times, Tuesday April 25, 2000. Home Edition, Metro Part B Page 9-Op Ed /Opinion Piece
--------
The family portrait of a smiling Elian reunited with his father is the current news. But the enduring precedent is reflected by the photograph of an armed government agent breaking into the home of American citizens. Although the agents had something denominated a ‘search‘ warrant, this warrant was not based on any court order issued after a full adversarial hearing. Instead, it was based on an after-hours, ex parte application that claimed that Elian was being ‘concealed‘ and ‘unlawfully‘ restrained, and that Elian was himself the subject of an INS administrative warrant of arrest. This is not the way American law enforcement should work.
The appropriate manner by which Elian should have been reunited with his father was a government request for a court order, following an adversarial hearing and determination that the Miami relatives were in contempt of court. If the relatives were then unwilling to obey the court order and turn Elian over, law enforcement authorities would have had the lawful power to arrest these relatives and remove him from the home.
Why then did the Justice Department and the INS not seek a court order? The answer is they had earlier sought such an order from the 11th Circuit Court of Appeals, which had denied it as part of the opinion ordering Elian to remain in the United States. They were afraid that if they sought such an order from a federal district court, it too would have denied it. So instead of going to court, the government simply seized the child based on an uncontested and entirely inappropriate search warrant, which courts routinely issue.
Had there been an adversarial hearing, the Miami relatives would undoubtedly have argued that transferring the child to his father would essentially moot the case now pending before the 11th Circuit, since Elian, now under the influence of his father, will almost certainly withdraw his application for asylum. The father’s lawyer will now argue that since the 11th Circuit apparently gave some credence to the asylum application of a 6-year-old child, it has no choice but to give equal credence to his withdrawal of that application.
For whatever reason the government chose not to seek a court order following an adversarial hearing, its actions confirm a dangerous precedent: that the executive branch of the government has the authority to break into a citizen’s home in a contested dispute without giving that citizen the opportunity first to present his side to a court for resolution of the dispute.
This dangerous precedent has long permitted the INS and its predecessors to break into the homes of aliens, to raid factories of citizens who employ aliens and to act in other high-handed ways without prior court approval. Civil libertarians recall with horror the Palmer raids in which immigration officials rounded up thousands of Italian, Irish and Jewish ‘radicals‘ during and following World War I. This practice has continued unabated and manifests itself today in the frequent raids conducted by immigration officials in Southern California, Texas and Florida. When the objects of these raids are Mexican workers, civil libertarians express appropriate outrage, because they disagree with both the means and the ends of such raids. But when the object of such a raid is the reunion of a Cuban father and his son, many liberals and civil libertarians remain suspiciously silent or even supportive of lawless government action, because in this case they agree with the end and believe that a good end justifies bad means.
This situational approach to civil liberties considerably weakens the credibility of those who claim to believe in due process. People who support procedural safeguards only in cases where they agree with the substantive rights at issue, are legitimately subject to accusations of hypocrisy. Our system of checks and balances must be applied vigorously even in cases in which the executive is seeking to achieve a desirable end. The most important check on the excesses of the executive branch is judicial review, as has been acknowledged since the foundational Supreme Court decision in Marbury vs. Madison. Although that case involved a judicial check on unconstitutional action of the president, the principle applies to any case where the executive seeks to act in violation of the rule of law.
In the Elian Gonzalez case, the executive had a traditional legal option available to it, which it could have pursued weeks ago. It could have asked a court to order the Miami family to turn the child over to his father. Instead, the Justice Department, a part of the executive branch, issued its own order and imposed its own deadlines. Under American law, no citizen has an obligation to obey the executive, unless its order is lawful and backed by judicial authority. By enforcing its own order, without the judicial imprimatur of a court mandate, the Justice Department has reinforced a precedent that endangers the rights of all American citizens.
[This message has been edited by Covert Mission (edited April 25, 2000).]