The New York Times, April 24, 2000
With Elián González reunited with his father, the nation has begun an important debate about the government's handling of the case, especially the forcible seizure of the Cuban boy by heavily armed federal agents before dawn on Saturday. Few actions in recent times have so
powerfully drawn the attention of Americans to the exercise of authority by the federal government, a fundamental issue in the governance of a democracy. The Justice Department acted rashly and unwisely in ordering the raid, and its decisions now require the most careful evaluation by Congress
and the American people.
That will not be easy in the charged aftermath of the commando-style operation at the Miami home of Elián's great-uncle, Lázaro González. The sight of an assault team armed with automatic weapons storming a private residence at night to take custody of a 6-year-old child
understandably alarms and angers many citizens, even when no shots were fired.
Politicians are predictably but unconstructively rushing to exploit the affair.
The central issue is not whether the government had the legal authority to take custody of Elián. It clearly did. Federal statutes give the Immigration and Naturalization Service the power to enforce immigration laws, and the agency was well within its rights to determine that Elián,
who was rescued at sea, should be placed in the custody of his father rather than his great-uncle.
The government's mistake was turning prematurely to the use of force rather than first applying the full leverage of the law against the Miami relatives. The Justice Department has yet to offer a good reason why it did not seek a court order instructing Lázaro González to
produce Elián. That would have carried greater authority with the public than acting under an I.N.S. administrative order, and also subjected Mr. González to arrest and criminal penalties if he defied the court.
Eric Holder, the deputy attorney general, argued yesterday on NBC's "Meet the Press" that the government was compelled to act on Saturday because Elián's welfare was threatened the longer he stayed with his relatives and because they were not negotiating in good faith. But by
creating an artificial timetable for action, the Justice Department fell into the trap of letting tactical considerations drive its decisions at a moment when further negotiations seemed warranted.
When contemplating the use of force in a custody case like this, where there is no immediate danger of violent criminal activity, the government must exhaust other remedies first, and insure that it obtains the unambiguous authorization of a court to take action. These steps may not be
required by law in an immigration case, but they are necessary to reassure the public that the government is not acting arbitrarily or using excessive force -- even if it has a search warrant -- when it invades someone's home in the middle of the night.
In a society governed by the rule of law, the government has a duty not only to follow the law faithfully but also to apply it judiciously against citizens who are not behaving violently. The authority of the law and the power of the government are not diminished when the Justice Department
moves deliberately, as it often did in Southern civil rights enforcement in the 1960's. |