"We’re asking that the legal rights of the boy be returned to the court and that a guardian be appointed."
By Kathryn Jean Lopez, NR associate editor--lopezk@nationalreview.com. National Review, 4/27/00 10:25 a.m.
National Review: How did you come to join the Miami Gonzalez legal team on Monday? And what are the family’s legal options at this point?
Richard Sharpstein: My wife and I are essentially criminal-defense lawyers and we were brought in to handle the challenges to the search warrant and the inevitable seizure of Elian, which presents, notwithstanding the summary dismissal by the president and others, enormous and very fascinating
legal issues.
The search itself was based on a search warrant, but part of the search-warrant affidavit was an arrest warrant that they apparently had issued through the INS for the arrest of Elian Gonzalez as a "illegal alien." This is one of these form arrest warrants that are used for the arrest
of, essentially, deportable aliens who have no status here or have been ordered by a court deported or arrested.
Nothing could be further from the truth of this case, because, first of all, there was an asylum petition pending which is being argued before the 11th Circuit on May 11th. There has been an order of the court that he not leave the country. Inherent in the spirit and intent of the motion was to
maintain the status quo. And instead, the attorney general took it upon herself to have a U.S. attorney, locally in Miami, execute a search warrant at 7 PM — it was actually signed 7:20 PM by an emergency duty magistrate.
To go to an emergency magistrate at 7 o’clock on Good Friday smacks of a lack of sincerity. And it just went downhill from there, because the magistrate, knowing nothing about the case, was presented essentially with the procedural history of the case claiming that the attorney general
demanded that the child be transferred. This was in essence a custody issue, but the asylum issue was still pending in the court. There was no illegality of this alien in the country.
They also claim that he was being illegally restrained by Lazaro Gonzalez, when the 11th Circuit themselves recognized that he was in the custody at that time of Lazaro Gonzalez and certainly not concealed, as the search warrant said. But that’s standard language.
There was certainly no concealment. This was the most public child in the world at this point. Instead, they took it upon themselves to enter with force as if they were arresting a band of drug criminals that were hiding out in Little Havana.
Secondly, it’s complicated further. The bad faith is complicated by the fact that at the very time the warrant was executed the attorney general’s on the phone with mediators, who were really appointed by her, to try to mediate the transfer which they said they were right on the verge
of. Part of the mediating team was actually in the house at the time of the execution. And just as important as that is the fact that the attorney general did not share the fact that she had a warrant with any of these people. Not even in private, telling her own negotiators, "Don’t tell
anybody but we got a search warrant, so maybe you shouldn’t be over there," or, "If we can’t do this by 5 o’clock, we’re entering that house with a warrant." I really think there was some political thing going on here.
NR: What are your goals at this point?
Sharpstein: We’re attempting to enter the proceedings really on behalf of Elian to ask for a remedy for the illegal search and the illegal seizure of him. We’re not asking for the return of the boy to his Miami relatives. We’re not asking for the return of the boy anywhere. We’re
asking that the legal rights of the boy be returned to the court and that a guardian be appointed. We’ve already flagged that issue. The court yesterday ruled that they would give the government and Craig until 4 PM to answer why they shouldn’t appoint a guardian based upon the custodial
circumstances and the boy’s welfare over a period of time.
We’re not asking to rip him away from his father who he’s just been reunited with. He’s had enough trauma over the last six months to last a lifetime. His mother’s died. The government has not made one effort to ask for the appointment of a guardian or real psychologists that
are treating him, not ones that are giving an opinion from an office in Georgetown or something like that, and make a decision in terms of what’s in the boy’s best interest.
We haven’t sent someone back to Cuba in over 35 years, except for deportable aliens such as criminals and we really haven’t sent them back except for the ones Castro agreed to take back from the Louisiana riots several months ago. So, that’s what’s disturbing the people down
here so much. The precedent and the fact that this is a minor child make it very disturbing to the Cuban population here, although we are entering not for the Cuban population, not for the family, but for him, to protect his rights because it may very well be in the best interest of Elian Gonzalez
not to return back to Cuba. And maybe his father, who is the one who is the adult, should make the decision to live in America or live with his child because this is where he’s going to be.
That’s not the issue I’m in on. Those are immigration issues. We’re just setting the stage by mounting constitutional and legal challenges to the search and seizure of the young boy.
NR: It’s been suggested, and it seems sort of plausible, that Greg Craig could walk out of his D.C. office at any moment with a scribbled note from Elian saying that he revokes any asylum request.
Sharpstein: Can’t be done. We’ve tried to head that off in the past by the request for the appointment of a legal guardian. If Craig walks in there with a scribbled note, it only adds fuel to our argument that the boy’s being manipulated by a party that has, in essence, kidnapped
the boy from the court through the abuse of power of the government. It’s sort of unprecedented that while people are litigating — Elian is the plaintiff, Reno is the defendant, Juan Miguel Gonzalez is a third-party intervener — so the defendant, the government, Janet Reno, the
attorney general, uses or abuses her power to kidnap the plaintiff and give the plaintiff to the other side. The plaintiff has no access to his lawyers or his legal representatives and that person is now controlled by another lawyer who is controlled by a foreign government we’re not friendly
with. It’s a lot more than a father and child reunion we’re talking about here. It’s an international incident that really needs to play out now as to what’s in the best interest of Elian Gonzalez in the long run. If he leaves now, if he waives his asylum claim, under the Cuban
Adjustment Act he cannot get back in. If he’s 16 and changes his mind, going, "Why the heck did you take me out of there?" "Sorry, Elian, you wanted to go." "I was 6, what did I know?" Knock on the door of the U.S.. "Sorry, Elian. Tough. You wanted to go to
Cuba, we’re not taking you back."
NR: Is making this a family-court issue still an option?
Sharpstein: The family-court issue is essentially over, although what this has been is a glorified family court being played out through authorities that don’t really have the authority to do so. The attorney general doesn’t litigate custody issues although she decided a custody issue
here and then decided to enforce a custody issue with powers that are generally reserved for law enforcement. She keeps saying, "This is not a custody issue. It’s an INS issue," but what she decides is a custody issue and returns the boy to the parent on a custody issue, takes the boy
on the custody issue, on her decision of it, enforces it, so that’s essentially what it is because the government has totally disregarded the 11th Circuit pending action right around the corner to determine whether or not this young man does have an asylum action. And it is in his best interest
that he remain in the U.S.
NR: Have you had any communication with Craig?
Sharpstein: No, not yet.
NR: Have you tried?
Sharpstein: No, it’s not in my interest yet. When we file the motion, I’ll introduce myself when we’re litigating and he has to respond. I’d be more than happy to. I hear he’s a great lawyer and I look forward to litigating with a good lawyer.
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