June 2, 2000
Review & Outlook
Congress and the Fourth Amendment
The 11th Circuit Court of Appeals yesterday addressed one legal
question when it ruled the INS was reasonably acting within its
discretion in denying Elian Gonzalez a federal asylum hearing.
Yet the significance of that decision is less in the answers it
gave than the question it so directly posed: Whether the INS
ought to have that discretion in the first place. As the court
noted in its decision, this is a question only Congress can
answer.
On their own, the dubious legal grounds upon which the Justice
Department relied for its Easter weekend raid to reunite Elian
with his father -- only two days after being denied a court order
to do just that -- would be reason enough for hearings. But the
11th Circuit's virtual invitation for the Congress to close up
"gaps" in INS law makes this the perfect moment to begin them. At
the least, any time the federal government dispatches agents with
gas masks and machine guns to beat down the door of a private
U.S. citizen posing no threat to anyone, we ought to ask some
questions. And we doubt that the men who wrote the Fourth
Amendment would have accepted as a suitable answer the waving of
public opinion polls showing two-thirds of the electorate
favoring the raid. The point here is that Congressional oversight
is not an option, it's an obligation.
Unfortunately, Republicans have all but run up the white flag. In
the House, only Tom DeLay, who had questioned the Justice
Department's lack of legal authority from the first hours after
the raid, continues to press for hearings. Over in the Senate,
Orrin Hatch, Chairman of the Judiciary Committee, tells us there
should be at least a day of hearings devoted to the warrant
issue, but is still gathering documents from the Justice
Department. Still, the dominant hope is that the issue just go
away and be resolved at the ballot box in November.
Certainly, when the raid is reduced to a matter of discretion, a
Reagan or Bush Administration would have refused to send the boy
back to a Communist Cuba. But pining for a George W. Bush
Administration come January does not absolve a Republican
Congress of discharging its responsibilities vis a vis the
Clinton Administration it has before it today. No doubt Greg
Craig is right: There is no longer "any uncertainty" in the
ultimate outcome of Elian's case.
But the Constitutional issues raised by the Easter weekend raid
remain not only unresolved, but unaddressed. Namely, as Senator
Arlen Specter told us, clarifying the "conditions that warrant
setting into motion a chain of events that could involve the use
of deadly force." Though the President's surrogates have fomented
an anti-hearing environment by constantly characterizing them as
partisan moves to "investigate the President," hearings in fact
are aimed at the process, and clarify and resolve procedures, law
and issues.
Those who say we have had many hearings into this Administration
with no result miss the point. Hearings are not supposed to be
about "getting" someone; in this case they are about ensuring
that the Fourth Amendment's protections mean something on the
ground. The hearings Senator Specter held about the shootings at
Ruby Ridge, for example, resulted in the FBI's changing its rules
of engagement when it uses deadly force.
Surely a raid that ended with a masked INS agent pointing a
machine gun at a terrified six-year-old child raises even more
profound questions, especially because it involved tactics and
legal procedure that wouldn't be used against a drug lord. To
begin with, why did the Justice Department seek a court order to
go in and get the boy if it did not need one, as it now
maintains?
Why did Justice get its search and seizure warrant signed by a
night magistrate rather than a proper judge? The case for this
raid should have been made to a federal judge or his equivalent;
instead, the Attorney General of the United States got her
warrant out of the equivalent of a Cracker Jack box. And how
could Elian be deemed to be here illegally -- as the argument for
the warrant maintained -- when he was under a U.S. court order
not to leave the country?
It is not just conservative Republicans who are asking these
questions. In wake of the raid, Laurence Tribe, a Constitutional
lawyer at Harvard generally not on the same side of Judicial
Watch, wrote in the New York Times that the Attorney General's
raid appears to have "violated a basic principle of our society,
a principle whose preservation lies at the core of ordered
liberty under the rule of law."
The same goes for his colleague Alan Dershowitz, who recently
wrote in the Los Angeles Times that Janet Reno's action
established a "dangerous precedent." Somehow we think that even
opinion polls might change were these issues addressed in an open
forum, especially if by that time we are treated to the spectacle
of Elian being paraded through the streets of Havana by a
triumphant Castro.
In private, Republican Members continue to be astonished by the
arrogance and hubris of this Justice Department. But what do you
expect when we have a Senate so loath to exercise its
responsibilities to oversight and to the Constitution? Hearings
will not rescue Elian, remove Janet Reno or change the elections.
But they might just help put some teeth back into the Bill of
Rights.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF: <[EMAIL PROTECTED]>
*Mike Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~ <[EMAIL PROTECTED]>
The Best Way To Destroy Enemies Is To Change Them To Friends
Shalom, A Salaam Aleikum, and to all, A Good Day.
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