Wednesday,
April 26, 2000
President Clinton
and Janet Reno’s insistence that Saturday's armed assault on Lazaro Gonzalez's
house was necessary to uphold the "rule of law" is nonsense,
according to Andrew P. Napolitano, a former New Jersey Superior Court judge,
now practicing law in Newark, N.J.
Writing in today’s Wall Street Journal,
Napolitano, who teaches constitutional law at Seton Hall Law School, asked,
"Who are they trying to kid?" and added that it presumably is not the
11th Circuit Court of Appeals, "which Tuesday enjoined the government from
moving Elian Gonzalez outside the jurisdiction of U.S. courts - specifically,
to the Cuban diplomatic mission in Washington."
The court’s order gave Reno until 4 p.m.
yesterday to explain why the court should not appoint an independent guardian
to represent Elian.
Elian’s case is a "custody
dispute," Napolitano wrote, adding that such disputes "in Florida, as
in all states," are handled by state family courts, and not by federal courts,
and focus on one paramount issue: "What are the best interests of the
child - not the interests of a parent, not the interests of a president, not
the interests of a foreign government."
"Has there ever before been a case of a
child's custody being changed by the force of the federal government without a
specific court order authorizing it?" he asked.
Although the government agents who assaulted
Lazaro Gonzalez's house early Saturday morning did have a search warrant, the
affidavit on which the warrant was based shows that "the raid was
constitutionally flawed, unlawful and repugnant to the language and spirit of
the then three-day-old decision of the U.S. Circuit Court of Appeals"
which ordered Reno to keep Elian in the U.S. and denied her request for an
injunction demanding that Mr. Gonzalez turn the boy over.
The administration, an obviously angry
Napolitano wrote, simply "lied to the American people. ... Their first
effort to hide the truth was the application for a search warrant," which
the Immigration and Naturalization Service didn't present to the federal
district judge in Miami handling the case, Judge Michael Moore, but instead
"waited until after 7 p.m. on Good Friday, when a federal duty magistrate,
not familiar with the case and notoriously pro-government in his rulings, was
available to hear warrant applications."
The affidavit, signed by Special Agent Mary
Rodriguez of the INS, claimed wrongly that Elian was being
"concealed" at Lazaro's home, that the boy was "unlawfully
restrained" there, and that INS Deputy Director of Investigations James T.
Spearman Jr. had already ordered the arrest of Elian because the boy was
allegedly "an illegal alien." In response, the magistrate issued a
search warrant.
"Thus the power that the government
invoked to invade the house was [the power] conferred by Congress when
contraband or evidence of a crime is being hidden. That was hardly the case
with Elian, who was often present, for all the world to see, in Lazaro
Gonzalez's front yard," Napolitano wrote.
Moreover, "it was the INS itself that
designated Mr. Gonzalez as Elian's guardian and had placed the boy in his
great-uncle's house, revoking that parole just nine days before the raid."
Napolitano said that what the affidavit left
out "is as revealing as what it says."
Reno, he recalled, claimed that it was a
fear of weapons being present in Lazaro's house that justified her agents' use
of tear gas, guns and violence. Yet "Ms. Rodriguez's affidavit says
nothing of the kind."
Moreover, he said, although Reno claims she
seized the child for his own best interests, there is nothing in Ms.
Rodriguez's affidavit concerning any "mistreatment or likely harm to Elian
by his Miami relatives."
Nor did Rodriguez tell the magistrate that
Aaron Podhurst, a well-respected Miami lawyer and a longtime friend of Ms.
Reno, was "feverishly mediating negotiations between lawyers for the
government, Elian's father and Lazaro Gonzalez even as the affidavit was being
filed."
Napolitano also found the application for
the warrant "troubling because, according to Richard Sharpstein, one of
Miami's best regarded criminal-defense and immigration lawyers (and, as of
Monday, a member of Elian's Miami legal team), the INS never arrests Cuban
aliens without evidence that they have committed a crime."
Such restraint on the part of the INS, he
noted, "is consistent with the Cuban Adjustment Act of 1966, which makes
Cuban nationals eligible for U.S. citizenship once they've been in the U.S. for
a year."
The "search" warrant, Napolitano
charged, was simply a pretext to get into Lazaro Gonzalez's house. "No
legitimate federal purpose was served by the raid," he wrote. "Elian
was lovingly cared for by blood relatives; he was not ‘involuntarily
restrained’; and a federal appeals court was soon to hear his appeal of Judge
Moore's denial of his right to apply for asylum." Moreover, he explained,
"just a simple court order, sought with notice to Elian's lawyers, could
have peacefully transferred custody."
Noting that The Washington Post reported
Tuesday that Ms. Reno, "fearing accusations of a cover-up, ordered her
agents not to obstruct photographers," Napolitano wrote that if the story
is true, Reno’s agents "apparently weren't following orders. The first
agent to enter the Gonzalez home kicked, maced and assaulted an NBC cameraman,
ensuring there was no video footage of the agents ransacking the house and
seizing Elian."
Moreover, the "shot seen round the
world," the photo of an armed federal agent point a gun at a terrified
6-year-old child, was taken only because AP photographer Alan Diaz had managed
to get into the bedroom where Elian was being hidden in a closet by the
fisherman who’d rescued him, before the federal agents stormed into the house
and into the room.
"In a free society the moral legitimacy
of government depends on its fidelity to the truth and to established
law," Napolitano wrote. "Mr. Clinton and Ms. Reno, after more than
seven years, have shown once again that they don't know - or don't care - how
much they tend to weaken the fabric of our culture."