Justice told to protect Elian from Cuba
Jerry Seper
THE WASHINGTON TIMES
A federal appeals court has enjoined "any and
all others" — including the Justice Department —from allowing Elian
Gonzalez to be taken to the homes or offices of Cuban diplomats, where
he might be held beyond the authority of U.S. courts.
Attorney General Janet Reno and her lawyers
were told to "explain why the [appeals] court should not now appoint
someone, acting as a friend of the court and special guardian ad litem
to report to the court directly on [Elian's] condition and
care as well as the circumstances of his present custody."
The court's order, signed Tuesday, went largely
unreported until yesterday. The order, by Judge J.L. Edmondson of the
11th U.S. Circuit Court of Appeals in Atlanta, was a remarkable rebuke
of Miss Reno and the Justice Department.
"To ensure that there is no misunderstanding
about the terms and intent [of the court's earlier injunction]," wrote
Judge
Edmondson, "I have determined to issue this single-judge temporary
order clarifying the pertinent injunction."
Miss Reno earlier had promised to keep Elian
in the United States while his asylum appeal is pending, but the clarification
seemed intended to remind Miss Reno and the Clinton administration
that they are under a court order and obedience is
required — not requested.
The court had pointedly refrained, in the
injunction last week, from requiring that Elian be taken from the custody
of his
relatives in Miami. Two days later, Miss Reno gave the order that sent
agents armed with a battering ram, tear gas and
submachineguns into the Miami home at 5:15 in the morning.
In his answer, which the court demanded by
4 yesterday afternoon, Elian's father, Juan Miguel Gonzalez, asked that
he be
named as the boy's only legal representative in his pending asylum
case. In an emergency petition, he said he should be allowed
to "assert his rights as a father" and asked the court to reject a
bid by Elian's great-uncle, Lazaro Gonzalez, to have his lawyers
and doctors see the boy and to speak for him.
The petition, filed by attorney Gregory Craig,
said that only the father had the right to "speak on behalf of Elian, who
has no
other suitable representative."
"Lawyers for Lazaro Gonzalez —and they are
Lazaro's lawyers, not Elian's — seek to use machination and legal sleight
of
hand to turn this court into the arbiter of an intra-family dispute
in which the primary antagonist is too distant a relative to Elian
to be considered even 'extended family' under Florida law," Mr. Craig
said.
"This case cries out for this father's personal
intervention to save his son from further manipulation," he said.
The Miami relatives had sought the appointment
of a "neutral" guardian to represent the 6-year-old and asked that the
guardian be given "immediate access" to the boy.
"No one is seeking here to rip him away from
the father who he has now been reunited with, but to determine the issues
independent of his father or the influences upon his father politically
or otherwise," said Miami attorney Richard Sharpstein,
representing the relatives.
The Justice Department yesterday also opposed
the motion by the relatives for a neutral guardian and promised to provide
the court regular reports from a psychiatrist and a social worker it
has hired to monitor the boy.
Meanwhile, questions surfaced yesterday concerning
the validity of the warrant used by agents to take Elian during the raid.
Constitutional law expert Alan Dershowitz
told The Washington Times that the administration's seizure of the boy
was
"unlawful," adding that the government should have obtained a court
order giving it the authority to take the boy from the home.
"No criminal act had occurred," Mr. Dershowitz
said. "This is an end-run around the Constitution. What they did was
improper and unlawful."
Harvard law professor Laurence Tribe, an expert
on constitutional law and a longtime supporter of the Clinton
administration, said the Justice Department's actions in the Elian
case "strikes at the heart of constitutional government and
shakes the safeguards of liberty."
Justice Department spokesman Brad Glassman
said the INS takes aliens into custody on a daily basis based on
administrative orders as in Elian's case.
"It is as lawful as any court order," Mr.
Glassman said. "There is clear administrative authority to do this."
The warrant was obtained at 7:20 p.m. on Good
Friday from a federal magistrate not involved in the case who was
considered friendly to law enforcement. An affidavit signed by INS
Agent Mary Rodriguez for the warrant said Elian was being
"concealed" in the Miami house and had been "unlawfully restrained."
The affidavit also said that James T. Spearman,
INS deputy director of investigations, had ordered the arrest of Elian
as "an
illegal alien."
The warrant was not sought from U.S. District
Judge K. Michael Moore, who handled the Elian case from the start, but
instead was taken before Magistrate Robert Rube after Judge Moore had
left the courthouse.
Ysterday's rulings by the appeals court seemed
to express its dissatisfaction with the seizure of Elian by federal agents
armed with machineguns, who broke into the house with a battering ram.
The court last week had declined to order a change in
Elian's custody from his relatives to his father as requested by Miss
Reno and the INS.
Lazaro Gonzalez won temporary custody of the
boy after he was rescued at sea in November. He had asked for asylum for
the boy, but his petition was rejected by the INS on the grounds that
only his surviving parent, his father, could speak for the
boy.
That ruling was upheld, although the appeals
court in Atlanta later ordered that Elian could not be removed from the
United
States until his May 11 hearing, saying his application for asylum
had "arguable merit."
"Not only does it appear that plaintiff might
be entitled to apply personally for asylum, it appears that he did so.
According
to the record, plaintiff — although a young child — has expressed a
wish that he not be returned to Cuba," the court said.
The court also rebuked the INS for its handling
of the boy's asylum request, saying it appeared the agency never sought
to
interview Elian "about his own wishes."
In its ruling, the court said the "true legal
merits" of the case would be determined in May, when it intends to hear
oral
arguments in the asylum claim.
"We need to think more and hard about this
case," the court said, adding that while recognizing the government's authority
over immigration matters, it failed to see how an injunction in the
case "infringes" upon the government.
Meanwhile, attorneys for the Miami relatives
joined with a conservative Washington public interest law firm in seeking
government documents about the Saturday raid.
U.S. District Judge James Robertson denied
a motion by Judicial Watch for an expedited release of the papers, but
told the
Justice Department to release whatever items it could and provide a
schedule by May 12 for releasing others.