Published Saturday, April 29, 2000, in the Miami Herald
Experts dispute warrant to seize Elian from home
ANDRES VIGLUCCI
[EMAIL PROTECTED]
Shortly after 7 p.m. on Good Friday, an immigration officer
visited the home of U.S. Magistrate Robert Dube, who was on
after-hours duty that night, with a request for a warrant
authorizing federal agents to seize Elian Gonzalez.
In the packet that agent Mary Rodriguez gave Dube was a standard
Immigration and Naturalization Service arrest warrant for Elian
as an illegal alien and a series of documents in which the
government methodically built its case for permission to search
the Little Havana home of the boy's relatives.
Among them were INS letters to Elian's great-uncle, Lazaro
Gonzalez, ordering him to surrender the boy and, after he failed
to do so, informing Lazaro that he was now unlawfully holding
Elian.
Dube signed the warrant, setting in motion the raid that reunited
Elian with his father.
Now some prominent constitutional scholars, in a strange alliance
with conservative activists and the Miami relatives' lawyers, are
attacking the legality of the government's seizure of Elian. They
say it violated the great-uncle's right to privacy. A significant
part of the criticism has been deployed in the conservative
opinion pages of the Wall Street Journal.
Other constitutional scholars, immigration specialists and the
Justice Department disagree, calling the debate baseless.
They contend the warrant was proper and duly approved by a
federal magistrate, and that the INS in any case has wide powers
granted to it by Congress to search for and arrest illegal aliens
such as Elian without a court-approved warrant.
KNOTTY ISSUES
The argument of those who think the seizure was not legal turns
on knotty legal issues, but boils down to this: The search
warrant was improperly issued because it is meant for use only
when there is suspicion of a criminal violation, or violation of
a direct court order -- neither was the case in Elian's
situation. And without that warrant, federal agents had no right
to enter the home of a third party, namely Lazaro Gonzalez, to
grab Elian.
The relatives' lawyers think they can use their contention of an
improper search in a second effort to persuade federal appellate
judges that Elian needs an independent guardian to represent his
interests. A three-judge panel of the 11th Circuit Court of
Appeals, which is considering their request for a political
asylum hearing for Elian, on Thursday rejected the relatives'
first request for a guardian.
At the very least, the question has already become a political
issue, and would become a major focus of promised congressional
hearings if they take place.
``One can't turn back the clock,'' said Laurence H. Tribe,
professor of constitutional law at Harvard. ``But the relevance
of arguing about this and taking seriously the constitutional
issues it poses is the threat of its happening again in the
future.''
Those who think the seizure was legal say its most unusual aspect
was the existence of any warrant.
``Usually they just go in, knock on the door and grab someone,''
said Tammy Fox-Isicoff, a former INS lawyer now in private
practice in Miami. ``It sounds like they went the extra mile in
this case in asking for a search warrant, knowing they would be
under scrutiny.''
MARKED BY ERRORS
The debate over the warrant has been marked by misunderstandings
and errors. Tribe, in a column he wrote for The New York Times
assailing the warrant before reading the documents submitted by
the INS, erroneously said Elian was not an illegal alien, a
mistake repeated by other critics of the raid.
In fact, he is, said Fox-Isicoff and several other immigration
experts interviewed for this article. Although physically present
in the country, Elian is an ``unadmitted alien'' with few
due-process rights under immigration law, and thus entirely
subject to the control of the INS and the attorney general.
When Lazaro Gonzalez disobeyed an order to turn over the boy, the
INS revoked the parolee status that allowed Elian to remain in
the U.S. temporarily.
``The revocation of the parole makes Elian's presence here
illegal,'' said Michael Ray, president of the South Florida
chapter of the American Immigration Lawyers Association. ``If you
are not legally in the United States, they can arrest you if you
don't do what they ask you to do.''
But government lawyers wrote in their request that they decided
``in an abundance of caution'' to seek a search warrant.
The government lawyers argued that Lazaro Gonzalez's repeated
refusals to surrender the boy meant he was ``unlawfully
restraining'' his nephew. That rubric is typically applied when
someone is being held against his will -- as in a kidnapping or
hostage situation -- or in defiance of a court's custody order.
``It sounds legally regular to me,'' said Bruce Winick, professor
of constitutional law at the University of Miami. ``It sounds
like Janet Reno had the legal authority to do this.''
#####
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~~~~~~~~ <[EMAIL PROTECTED]>
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