Dershowitz: Clinton-Reno Acted ‘Lawlessly’

Tuesday April 25, 2000; 5:16 PM EDT

Renowned Harvard law professor Alan Dershowitz defended President Clinton against all comers when he was charged with lying in Sexgate. He even testified on Clinton’s behalf during the House Judiciary Committee’s impeachment hearings.

But in a Monday night interview with Fox News Channel’s Paula Zahn, he said the Clinton administration acted “lawlessly” when agents seized 6-year-old Elian Gonzalez from the home of his Miami relatives, calling it “a dangerous day for all Americans.”

Just hours after Dershowitz made his remarks, constitutional law professor Laurence Tribe echoed his Harvard colleague, writing in Tuesday’s New York Times that Attorney General Janet Reno did not have the legal authority to conduct Saturday’s pre-dawn assault on the Gonzalez home.

But it was Dershowitz’s comments that should be causing the White House the most agitation, coming as they do from a reliable Clinton ally.

Appearing on Zahn’s Fox show The Edge, the professor got into a heated debate over Elian with former Arizona senator Dennis DeConcini. After Zahn gave him the floor, the one-time Clinton defender minced no words:

DERSHOWITZ: They 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.

ZAHN: Why?

DERSHOWITZ: And 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 Elian saying he now withdraws his application for asylum.

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 Elian 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.

ZAHN: Mr. DeConcini, you have long supported the idea of reuniting the little boy with his father. Was this the way to do it?

DECONCINI: Well, unfortunately, it was the only way to do it. I was a prosecutor before elected to the Senate. I‘ve great respect for Mr. Dershowitz. He‘s testified before the Judiciary Committee many, many times, and the commissioner also. But being a law enforcement official, you have to enforce the law. The INS and the Justice Department had the right to do what they did. Even the 11th circuit confirmed that in their decision just last week. So there was ...

ZAHN: Now, didn‘t Mr. Dershowitz say they couldn‘t do that?

DECONCINI: No, they could do that. And the law provides that they could do what they did. Now, unfortunately, when you have to enforce the law, whether it was against Orville Faubus in Arkansas or Wallace in ... in ... in other states, you have to enforce the law, even if you disagree with what the people may believe. I know many of those Cuban-Americans. I worked with them for years, and they‘re good people, and they wanted to do what they thought was right. But it is - became a political issue here, and I don‘t think anybody disputes that now, that that‘s what happened. And Janet Reno had to do what the law gave her permission to do ...

DERSHOWITZ: But the big difference ...

DECONCINI: ... and that was to reunite that son and that father. And anybody who is a father or a grandfather or a parent can understand the importance of doing that and not letting that boy be exploited any further than he already was.

ZAHN: Well, Alan - Alan is a father. Jump in there.

DERSHOWITZ: I‘m a father and a grandfather, but let me tell you, Senator - I have enormous respect for you, too, as you know. But the difference between the Faubus case and the other cases, in all of those cases, they came with a court order. What happened is they went to court. The issue was resolved favorably to the government by a court. The great danger is when the administration, without a court order, can take the law into their own hands.

(CROSSTALK)

DECONCINI: Alan, they had the law on their side.

DERSHOWITZ: They had a statute, but ...

DECONCINI: They had a statute that Congress gave them authority to do that. And that‘s what they were acting on.

DERSHOWITZ: But the 11th - they went into the 11th circuit and asked specifically ...

DECONCINI: And the 11th circuit - but the 11th circuit didn‘t say that they could not follow the law.

DERSHOWITZ: They didn‘t say ...

DECONCINI: As a matter of fact, the 11th circuit said they could.

DERSHOWITZ: No, they didn‘t. I read the opinion and ...

DECONCINI: Yes, they did.

DERSHOWITZ: No, what the 11th circuit ...

DECONCINI: I did, too.

DERSHOWITZ: The 11th circuit simply didn‘t ...

ZAHN: All right, gentlemen ...

DERSHOWITZ: ... refrain from giving ...

ZAHN: ... I‘m going to have to ...

DERSHOWITZ: ... them that.

ZAHN: I‘m going to have to play mediator on the other side of this break. If you would, please stand by.