Reno's Raid was Based On a Tissue of Lies
Andrew P. Napolitano
Bill Clinton and Janet Reno have been insisting that Saturday's armed assault on Lazaro Gonzalez's house was necessary to uphold the: "rule of law." Who are they trying to kid? Presumably not the 11th Circuit Court of Appeals, which Tuesday enjoined the government from moving Elian Gonzalez outside the jurisdiction of US courts specifically, to the Cuban diplomatic mission in Washington. The order also gives Ms. Reno until 4 p.m. today to explain why the court should not appoint an independent guardian to represent Elian.
The Elian Gonzalez case is a custody dispute. In Florida, as in all states, custody disputes are addressed by state family courts, not 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?
The agents who assaulted Lazaro Gonzalez's house early Saturday morning did have a search warrant. But a review of 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 US Circuit Court of Appeals that ordered Ms. Reno to keep Elian in the US and denied her request for an injunction requiring Mr. Gonzalez to turn the boy over.
True to form the administration lied to the American people. The first effort to hide the truth was the application for a search warrant. The Immigration and Naturalization Service didn't present it to Judge Michael Moore, the federal district judge in Miami handling the case. Rather, the INS 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 presented to the magistrate was signed by Special Agent Mary Rodriguez of the INS. Ms. Rodriguez told the magistrate 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 "an illegal alien." In response, the magistrate issued a search warrant.
Thus the power that the government invoked to invade the house was that 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 Mr. Gonzalez's front yard. Moreover, the INS itself had 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.
What the affidavit omits is as revealing as what it says. Ms. Reno justified her agents' use of tear gas, guns and violence by claiming a fear of weapons in Lazaro's house. Ms. Rodriguez's affidavit says nothing of the kind. Ms. Reno claims she seized the child for his own best interests. There is no allegation in Ms. Rodriguez's affidavit of mistreatment or likely harm to Elian by his Miami relatives. Ms. Rodriguez also didn't 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.
The application for the warrant is also 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. This restraint on the part of the INS is consistent with the Cuban Adjustment Act of 1966, which makes Cuban nationals eligible for US citizenship once they've been in the US for a year.
It is clear that the "search" warrant was just a pretext to get into Lazaro Gonzalez's house. No legitimate federal purpose was served by the raid. 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. A simple court order, sought with notide Jo Elian's lawyers, could have peacefully transferred custody.
The Washington Post reported Tuesday that Ms. Reno, fearing accusations of a cover-up, ordered her agents not to obstruct photographers. If this is true, the 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. But Associated Press photographer Albert Diaz was hiding in a bedroom. He positioned himself in time to take the shot seen round the world: a federal agent aiming an automatic weapon at the chest of a six-year-old boy.
In a free society the moral legitimacy of government depends on its fidelity to the truth and to established law. 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 to weaken the fabric of our culture.
Wall Street Journal, April 26, 2000.
Mr. Napolitano, a former New Jersey Superior Court judge, practices law in Newark, NJ, and teaches constitutional law at Seton Hall Law School.