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. ================================================================= <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! These are sordid matters and 'conspiracy theory'—with its many half-truths, misdirections and outright frauds—is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. 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