Elian: Force of arms, not 'rule of law'

By Jack Kemp

Copley News Service

Reasonable people might be able to disagree on whether Elian Gonzalez should be granted asylum in the United States or placed in the sole custody of his father, but one issue that no one can ignore is that the Justice Department of this administration has, not for the first time, taken the law into its own hands. It's hard to escape the conclusion that the president and the attorney general believe the law is whatever they say it is.

Some of our more prominent civil libertarians, including Harvard's Laurence Tribe and Alan Dershowitz, have raised valid concerns over the procedures used to seize Elian, including the nature of the warrants relied upon and the use of force in a manner that might be justified in detaining illegal aliens, but never in a legitimate asylum case. As Tribe wrote in the April 25 New York Times, "Ms. Reno's decision to take the law as well as the child into her own hands strikes at the very heart of constitutional government and shakes the safeguards of liberty."

It is patently obvious that the administration decided early on it wanted to expedite Elian's return to Cuba by getting him in the hands of both his father and Cuba's official representatives in the United States. From day one this case has been mishandled. The White House and the Justice Department have flipped from one position to another with little rationale - in law or policy - other than to suit the administration's temporary political convenience.

First the Lazaro Gonzalez family was regarded as a source of security and emotional support for Elian, and the INS wanted custodial questions resolved in Florida family court. Then we were told there was no custodial issue to resolve, that only Elian's father (still in Cuba months after Elian was pulled from the sea by Miami fishermen) could claim asylum for the child, and that the Miami relatives not only had no standing to represent Elian's interests but that they also would lose custody to Elian's father upon his carefully orchestrated arrival from Cuba.

The 11th Circuit Court of Appeals saw through these flip-flops, honing in on the vital truth that INS guidelines do indeed allow a minor to seek asylum in his own right and that the INS never made any effort to meet with Elian directly to determine his wishes. There is no doubt that the 11th Circuit's pointed criticism of the Clinton administration's handling of the case triggered the Clinton-Reno raid on the home of Lazaro Gonzalez, and Elian's forcible removal, at gunpoint, to what appears to the untrained eye to be joint U.S.-Cuban government custody. In this volatile situation, with Elian carefully shielded from the public eye, it is impossible to know whether Juan Miguel Gonzalez speaks for himself or for a joint U.S.-Cuban entente.

Regardless of the ultimate disposition of this case, the Miami raid in the pre-dawn hours raises very troubling questions about the rule of law in America, and this administration's cavalier attitude toward the right of both citizens and noncitizens. While it is true that the INS has plenary power over aliens seeking entrance to the United States, the 11th Circuit made it clear that Elian has rights of his own, that the federal government had not followed its own rules and procedures, and that final disposition of Elian's asylum request must precede any effort to remove him from the country.

The Miami raid can only be seen as the administration's using whatever means it thought it could legally get away with to achieve its ends. Even if defensible on technical legal grounds, the raid sent America not just chilling images, but a vivid reminder that the Clinton-Gore administration has been all too willing to use sharp lawyering to defend policies and practices that invade our privacy (such as the FBI files) and thwart proper constitutional oversight of the executive branch.

And once again the president violated the public trust by assuring Democratic Sen. Bob Graham of Florida that any "enforcement action" would not occur in the dead of night, then authorizing a pre-dawn raid at gunpoint to seize the child. Even if he wants to redefine the word "night," the president surely hasn't forgotten that it gets darkest just before the dawn.

When the rule of law and the English language itself suffer such constant manipulation and abuse by the attorney general and the commander in chief, it is time for all citizens to be concerned. That's not an issue for public opinion polls, but a fundamental matter of right and wrong and trust in government - what we used to call a "credibility gap."

Legal issues notwithstanding, the Miami raid is completely unacceptable in a free society like ours, and severely damages our ability to stand as a beacon not just for freedom-loving people in Cuba, but for people around the world who cherish the American vision of political liberty and economic opportunity.

Jack Kemp is co-director of Empower America and Distinguished Fellow of the Competitive Enterprise Institute.

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