from: http://www.aci.net/kalliste/ Click Here: <A HREF="http://www.aci.net/kalliste/">The Home Page of J. Orlin Grabbe</A> ----- The Crucifixion of Elian "Rule of Law"=Rule of Reno by Grover Joseph Rees Mr. Rees, a former judge and law professor who served as general counsel of the U.S. Immigration and Naturalization Service from 1991 to 1993, is staff director of the House Subcommittee on International Relations and Human Rights. Reasonable people may disagree about whether the U.S. government should send a child back to Cuba. But they shouldn't disagree about whether Attorney General Janet Reno ought to be on television arguing that if you look carefully you can see the submachine gun wasn't really pointed at the child's face. Nor should they be fooled into thinking the Easter weekend raid on the Gonzalez home had anything to do with "the rule of law." The raid employed counterterrorist tactics usually used in hostage situations. These included the predawn hour, the use of obscenities and of violence against inanimate objects to intimidate and disorient the actual targets, and the fabrication of an imminent breakthrough in negotiations just before the extraction team moved in. But Elian Gonzalez was not a hostage, and if there were any terrorists in this operation they were not the relatives whom Ms. Reno described just a few days earlier as "loving caregivers." Highly Misleading At worst the Gonzalez family is guilty of being on the wrong side of a custody dispute. Originally selected by the attorney general herself to look after Elian during his U.S. parole, the family later secured temporary custody from a Florida family court. Ms. Reno's Justice Department subsequently directed the family to turn Elian over to his father. The family raised a number of legal and practical objections, and Justice asked a federal appeals court to order the family to surrender the child. But Ms. Reno didn't wait for a court order before proceeding to break down the Miami family's door. The repeated attempts by President Clinton and other officials to justify the raid by saying a federal court had approved Justice's handling of the case are highly misleading. They refer to an earlier procedural ruling by a lower court, which didn't deal directly with custody. The lower court held only that Ms. Reno had acted within her discretion in allowing Elian's father to withdraw an asylum application filed on behalf of the child. Last week, however, the U.S. 11th Circuit Court of Appeals delivered a stunnin g rebuke to the Justice Department, strongly suggesting that the lower court was wrong and the department had mishandled the asylum case. The appeals court prohibited Justice from allowing Elian's return to Cuba pending its final decision on whether his asylum application should be considered. The opinion did not address Justice's motion for an order to surrender the child, which was therefore still pending before the court. In other words, the administration's argument that Saturday's operation was compelled by "the rule of law" has it almost exactly backwards. The only court order in effect is the one that says Justice can't return Elian to Cuba. The forcible transfer of custody does not technically violate this order. It could, however, defeat the purpose of the order, which is to preserve Elian's access to an asylum hearing if the court should ultimately find him entitled to one. An important part of the asylum claim is that Elian's father is acting, probably against his will, as an agent of the Cuban government. Elian's lawyers plan to present evidence that upon return to Cuba the father would be required to turn over effective custody of Elian to the Castro government, which would likely subject him to unconscionable re-education techniques including Soviet-style abuses of psychology and psychotropic drugs. (The Cuban government has already announced that upon return to Cuba, Elian and his father will go to live in a government compound with people selected by the government, including "mental health" experts.) As the appellate court opinion suggested, consideration of the asylum claim should also include conversations with Elian himself. If, now that Elian is back with his father, he takes to saying he wants to return to Cuba, the appellate court may appoint a third-party guardian charged with trying to determine the boy's true feelings and interests. Preparing for such a hearing would have been vastly less complicated if the government had waited a few more weeks. This is not to say that it will be impossible. Preliminary reports, for instance, suggest that Justice has had the good sense to insist the father not take Elian to live in the Cuban diplomat's house in which he had been staying. The department should also ensure that Elian's new living arrangement doesn't include any handlers or mental-health experts provided by Mr. Castro. And it should offer a more reassuring exposition of Deputy Attorney General Eric Holder's statement that he has "no knowledge that \[Elian\] was given any kind of drugs." Even so, Justice's precipitous action will entail yet another transfer of custody -- a traumatizing event even when executed more gently than the one on Saturday -- if Elian is held eligible for asylum and if his father decides to return to Cuba. Why, then, did Ms. Reno not wait until the appellate court had ruled on a hearing? Part of the answer is that Ms. Reno believes she's right. Once she and her Justice colleagues satisfied themselves that the father enjoyed a loving (although noncustodial) relationship with Elian before he left Cuba, they saw the case as an easy one: A child should be with his sole surviving parent, except when the parent is unfit. In her zealous pursuit of this principle of family law, she allowed it to trump principles of asylum law. She dispensed with an immigration hearing that might have shed light on the extent to which the father, rather than the Cuban government, would actually exercise custody over Elian. Ironically, she then asserted her jurisdiction over Elian's immigration proceeding to preclude a fact-finding hearing in the state family court on whether this case is one of the rare exceptions to the rule that a surviving natural parent gets custody. So when Ms. Reno says "the law" requires Elian be returned to his father and then to Cuba, she means nothing more than her own subjective judgment, conducted after an informal fact-finding process that consisted primarily of two interviews conducted by the Immigration and Naturalization Service with the father in Cuba. The timing of the raid may also have been motivated by a perceived need to regain momentum after last week's setback in appellate court. Most law-enforcement excesses are caused not by officials who set out to do the wrong thing, but by crusaders who can't stand to lose cases in which they have become deeply invested. Scripted by Fujimori Finally, Ms. Reno's personal involvement in this case is also driven by her belief that because of her past experiences in Miami she understands and knows how to deal with the Cuban-American community. This apparently means she has arrived at the same insights as most news coverage of the Elian story, which is so accustomed to treating Cuban-Americans as the heavies that it barely minds forced child labor in Cuba, much less Justice operations that could have been scripted by Alberto Fujimori. If this case had involved a six-year-old West African girl whose mother had died coming to the U.S., and whose American relatives said she would be subject to ritual genital mutilation if sent back to her noncustodial father, it is hard to imagine Ms. Reno sending the girl back without an asylum hearing -- much less sending 151 agents with semiautomatic weapons to effect the transfer. She should have shown the same regard for Elian. The Wall Street Journal, April 25, 2000 ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, All My Relations. Omnia Bona Bonis, Adieu, Adios, Aloha. Amen. 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