By Jerry Seper. The Washington Times. April 27, 2000
A federal appeals court has enjoined "any and all others" including the Justice Department from allowing Elian Gonzalez to be taken to the homes or offices of Cuban diplomats, where he might be held beyond the authority of U.S. courts.
Attorney General Janet Reno and her lawyers were told to "explain why the [appeals] court should not now appoint someone, acting as a friend of the court and special guardian ad litem to report to the court directly on [Elian's] condition and care as well as the circumstances of his
The court's order, signed Tuesday, went largely unreported until yesterday. The order, by Judge J.L. Edmondson of the 11th U.S. Circuit Court of Appeals in Atlanta, was a remarkable rebuke of Miss Reno and the Justice Department.
"To ensure that there is no misunderstanding about the terms and intent [of the court's earlier injunction]," wrote Judge Edmondson, "I have determined to issue this single-judge temporary order clarifying the pertinent injunction."
Miss Reno earlier had promised to keep Elian in the United States while his asylum appeal is pending, but the clarification seemed intended to remind Miss Reno and the Clinton administration that they are under a court order and obedience is required not requested.
The court had pointedly refrained, in the injunction last week, from requiring that Elian be taken from the custody of his relatives in Miami. Two days later, Miss Reno gave the order that sent agents armed with a battering ram, tear gas and submachineguns into the Miami home at 5:15 in the
In his answer, which the court demanded by 4 yesterday afternoon, Elian's father, Juan Miguel Gonzalez, asked that he be named as the boy's only legal representative in his pending asylum case. In an emergency petition, he said he should be allowed to "assert his rights as a father"
and asked the court to reject a bid by Elian's great-uncle, Lazaro Gonzalez, to have his lawyers and doctors see the boy and to speak for him.
The petition, filed by attorney Gregory Craig, said that only the father had the right to "speak on behalf of Elian, who has no other suitable representative."
"Lawyers for Lazaro Gonzalez and they are Lazaro's lawyers, not Elian's seek to use machination and legal sleight of hand to turn this court into the arbiter of an intra-family dispute in which the primary antagonist is too distant a relative to Elian to be considered even
'extended family' under Florida law," Mr. Craig said.
"This case cries out for this father's personal intervention to save his son from further manipulation," he said.
The Miami relatives had sought the appointment of a "neutral" guardian to represent the 6-year-old and asked that the guardian be given "immediate access" to the boy.
"No one is seeking here to rip him away from the father who he has now been reunited with, but to determine the issues independent of his father or the influences upon his father politically or otherwise," said Miami attorney Richard Sharpstein, representing the relatives.
The Justice Department yesterday also opposed the motion by the relatives for a neutral guardian and promised to provide the court regular reports from a psychiatrist and a social worker it has hired to monitor the boy.
Meanwhile, questions surfaced yesterday concerning the validity of the warrant used by agents to take Elian during the raid.
Constitutional law expert Alan Dershowitz told The Washington Times that the administration's seizure of the boy was "unlawful," adding that the government should have obtained a court order giving it the authority to take the boy from the home.
"No criminal act had occurred," Mr. Dershowitz said. "This is an end-run around the Constitution. What they did was improper and unlawful."
Harvard law professor Laurence Tribe, an expert on constitutional law and a longtime supporter of the Clinton administration, said the Justice Department's actions in the Elian case "strikes at the heart of constitutional government and shakes the safeguards of liberty."
Justice Department spokesman Brad Glassman said the INS takes aliens into custody on a daily basis based on administrative orders as in Elian's case.
"It is as lawful as any court order," Mr. Glassman said. "There is clear administrative authority to do this."
The warrant was obtained at 7:20 p.m. on Good Friday from a federal magistrate not involved in the case who was considered friendly to law enforcement. An affidavit signed by INS Agent Mary Rodriguez for the warrant said Elian was being "concealed" in the Miami house and had been "unlawfully
The affidavit also said that James T. Spearman, INS deputy director of investigations, had ordered the arrest of Elian as "an illegal alien."
The warrant was not sought from U.S. District Judge K. Michael Moore, who handled the Elian case from the start, but instead was taken before Magistrate Robert Rube after Judge Moore had left the courthouse.
Ysterday's rulings by the appeals court seemed to express its dissatisfaction with the seizure of Elian by federal agents armed with machineguns, who broke into the house with a battering ram. The court last week had declined to order a change in Elian's custody from his relatives to his
father as requested by Miss Reno and the INS.
Lazaro Gonzalez won temporary custody of the boy after he was rescued at sea in November. He had asked for asylum for the boy, but his petition was rejected by the INS on the grounds that only his surviving parent, his father, could speak for the boy.
That ruling was upheld, although the appeals court in Atlanta later ordered that Elian could not be removed from the United States until his May 11 hearing, saying his application for asylum had "arguable merit."
"Not only does it appear that plaintiff might be entitled to apply personally for asylum, it appears that he did so. According to the record, plaintiff although a young child has expressed a wish that he not be returned to Cuba," the court said.
The court also rebuked the INS for its handling of the boy's asylum request, saying it appeared the agency never sought to interview Elian "about his own wishes."
In its ruling, the court said the "true legal merits" of the case would be determined in May, when it intends to hear oral arguments in the asylum claim.
"We need to think more and hard about this case," the court said, adding that while recognizing the government's authority over immigration matters, it failed to see how an injunction in the case "infringes" upon the government.
Meanwhile, attorneys for the Miami relatives joined with a conservative Washington public interest law firm in seeking government documents about the Saturday raid.
U.S. District Judge James Robertson denied a motion by Judicial Watch for an expedited release of the papers, but told the Justice Department to release whatever items it could and provide a schedule by May 12 for releasing others.
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