David Scott:
While I agree with the ends, it doesn't justify the means. Read the pieces by LIBERAL scholars Tribe and Dershowitz below. Reno conducted a unilateral and improper action. Yes, the Miami family are probably idiots, and Castro is a dirtbag. This doesn't justify the action.
-------
Justice Taken Too Far
By LAURENCE H. TRIBE
Some are wildly comparing the armed seizure of Elián González to the roundup of innocents by the Gestapo. Others think Attorney General Janet Reno showed admirable patience in dealing with a group of zealots using the boy as a pawn in its war with Fidel Castro. But the partisan squabbling over these caricatured views threatens to obscure a vital question: Where did the attorney general derive thelegal authority to invade that Miami home in order to seize the child?
The fact is, even on the assumption (which I share) that under applicable legal and moral principles Elián should ultimately be
reunited with his father, the government's actions appear to have violated a basic principle of our society, a principle whose
preservation lies at the core of ordered liberty under the rule of law. Under the Constitution, it is axiomatic that the executive branch has no unilateral authority to enter people's homes forcibly to remove innocent individuals without taking the time to seek a warrant or other order from a judge or magistrate (absent the most extraordinary need to act). Not only the Fourth Amendment but also well-established constitutional principles of family privacy require that the disinterested judiciary test the correctness of the executive branch's claimed right to enter and seize.
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 agency had no more right to do so than any parent who has been awarded custody would have a right to break and enter for such a purpose. Indeed, the I.N.S. had not even secured a judicial order, as opposed to a judicially unreviewed administrative one, compelling the Miami relatives to turn Elián over.
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. Elián was not lost, and it is a semantic sleight of hand to compare his forcible removal to the seizure of evidence, which is what a search warrant is for.
To be sure, our courts have allowed immigration officials to obtain area-wide warrants to search workplaces for illegal aliens, and Congress has by statute empowered immigration officials to search, interrogate and arrest people without warrants in order toprevent unlawful entry into the country. But no one suspects that Elián is here illegally. In fact, it's hard to see any significant immigration-related or other federal interest in whether Elián was reunited with his father now or after asylum is denied (if that is the outcome). And, should asylum be granted, Elián's father might still be granted custody and could then take the boy to Cuba with him if he so chose; asylum only means permission to stay in the United States and is not a requirement to
stay.
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.
---- Laurence H. Tribe is a professor of constitutional law atHarvard.
------------------------------(from The Los Angeles Times, Tuesday April 25, 2000. Home Edition, Metro-Part B, Page 9-Op Ed /Opinion Piece )
by Alan Dershowitz
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.
----
note: Dershowitz has volunteered to testify in Congress as to the raid's illegality
[This message has been edited by Covert Mission (edited May 01, 2000).]
[This message has been edited by Covert Mission (edited May 01, 2000).]
