The INS twisted its own rules and procedures in the Elian Gonzalez case -- and Washington loved it.
By Byron York. The American Spectator. June 2000
Grover Joseph Rees was stunned when he learned the number of federal agents who participated in "Operation Reunion," the raid to seize Elian Gonzalez from his great uncle's home in Miami. The government deployed a total of 151 people, 131 from the Immigration and Naturalization Service
and 20 from the United States Marshals. "That's more than we used to deport Joe Doherty," remembers Rees, who was general counsel of the INS during the last years of the Bush administration. Doherty, an Irish Republican Army terrorist convicted of murdering a British soldier, was arrested
in New York and deported to Belfast in 1992. Fearing the heavily armed IRA might stage an attack to disrupt the transfer, American officials made sure they were well-prepared for any possibility. "We took a lot of extraordinary measures," says Rees. "As I recall, there were 20 or 30
FBI agents and one or two INS agents." It was plenty of firepower -- but just a fraction of what was used in the Gonzalez case.
In fact, few INS operations -- at least those targeting a single alien -- have involved the level of force used in "Operation Reunion." Last August, for example, the INS in Los Angeles required far fewer agents to capture a suspect named Manuel Escalante, who was accused of killing 19
people in Mexico -- lining them up against a wall and cutting them down with automatic weapons. Nor did the INS assign as many agents to last year's search for Rafael Resendez-Ramirez, the "Railway Killer" wanted for eight murders, whom the agency had once picked up and mistakenly
released.
Notorious criminals aside, the simple fact that the INS spent so much time on an individual case is highly unusual. In recent years the INS has been stung by criticism that its enforcement work consisted mostly of raiding farms, fast-food restaurants, and other places where undocumented aliens
eke out a living. Looking for highly publicized, high-impact busts, agents specifically targeted places where they were likely to find large numbers of aliens -- and spent relatively little, if any, energy on time-consuming efforts to pick up individual immigrants. "One-on-one enforcement is
inefficient," a former INS official explains. "They want to create a deterrent effect."
In March 1999, the INS announced a plan to de-emphasize job site raids and border patrols in order to target criminals aliens, immigrant-smuggling rings, and document-forging operations. According to an INS statement, the new "Interior Enforcement Strategy" -- emphasizing the
mid-section of the country rather than its borders -- was designed to "systematically combat illegal immigration inside the United States by attacking its causes, not merely its symptoms." Enforcement against individual aliens sank even lower down the priority list.
Whatever its goal, INS has been plagued by gross mismanagement. Last year Syracuse University's Maxwell School of Citizenship and Public Affairs reviewed the performance of 15 federal agencies and ranked INS dead last, saying the agency can't seem to get anything done. "Evidence that INS
cannot manage its mission is overwhelming," the study's authors wrote. "New immigrants sometimes wait years to have their citizenship applications processed; the backlog of people seeking naturalization is nearly two million. At the same time, hundreds of thousands of illegal immigrants
enter the United States every year."
All of which makes the Elian Gonzalez case more than a little out of character for the INS. The agency acted with extraordinary speed, devoting thousands of man-hours and an extensive show of force to seize a single alien who was not a criminal, was not brought to the U.S. by a smuggling ring,
and wasn't trying to stay by using phony papers. Why the case was so important -- so urgent that the INS would throw its own policies and guidelines out the window -- is a question the agency has yet to answer.
To Raid Or Not To Raid
For weeks before the April 22 raid, there was an ongoing debate inside the Gonzalez legal team. Would the INS take drastic action? Or would it exercise restraint and allow the legal process to take its course? Spencer Eig, the Miami attorney who organized the legal group, tried to reassure his
fellow lawyers. "I said, 'I don't think there's going to be a nighttime raid,'" Eig recalls. "Some of our Cuban colleagues said they thought there would be. I attributed that to their experiences with the Castro government and thought they were overly paranoid. I thought the U.S.
government was not going to raid an innocent family."
Eig's opinion carried particular weight because he had been, until just last year, an experienced trial attorney for...the INS. After stints as an adviser at Justice Department headquarters in Washington and as an assistant U.S. attorney in New Orleans, in 1994 Eig moved to Miami, where he spent
the next five years trying immigration cases. He knew the agency did not normally use the kind of SWAT-team tactics that some on the legal team feared. "They ordinarily reserve these kinds of active measures for bringing in aggravated felonies," Eig reasoned.
And besides, Justice Department officials had been liberally leaking their intention to avoid any sort of armed raid. Nine days before "Operation Reunion," the Associated Press, citing government sources, reported that "federal marshals and immigration agents sent to get the boy
would likely arrive in minimum numbers, wearing civilian clothes. The agents who actually would go to the house might not even be armed." Three days before the raid, the AP reported a "plan to use U.S. marshals and immigration agents in minimum force and civilian clothes, with no drawn
guns." And just hours before agents arrived at the Gonzalez house, Cox News Service reported that federal officials would "send plain-clothes immigration officers and federal marshals to the house."
Top Justice Department officials did nothing to correct the impression that they would exercise restraint. "You wouldn't send a SWAT team in the dark of night to kidnap the child, in effect?" Tim Russert asked Deputy Attorney General Eric Holder on "Meet the Press" nearly two
weeks before the raid. "No," answered Holder. "We don't expect anything like that to happen." The day after the seizure, Holder appeared again with Russert, who asked, "Why such a dramatic change in position?" Holder stood by his words; his original statement was true,
he explained, because "We waited 'til five in the morning, just before dawn."
Justice officials later revealed that they chose to move in on Saturday because they did not want to take action on either Good Friday or Easter Sunday. In retrospect, it seems more accurate to say that they chose the holiday -- it was both Easter and Passover -- because that was a time when the
Gonzalez side might be ill-prepared for the raid. "The Gonzalez family had requested that action be deferred because both they and I were observing solemn holidays," says Eig. An observant Jew, Eig left Miami on Wednesday, April 19 to spend Passover with his wife's family in St. Paul,
Minnesota. He then entered a period of intensive religious celebration in a household that did not have a television. He spoke to no one on the phone. When the Sabbath arrived at sundown on Friday, he still had not communicated with anyone and heard of the early-Saturday raid only when someone
mentioned it to him later in the afternoon. Still, he could not make any calls until nightfall, when the Sabbath ended. One of the main members of the Gonzalez team was completely out of the loop at the most critical moment in the entire standoff.
America's Most Wanted
When it was all over -- when photos of rifle-toting armed federal agents seizing Elian had been shown on television and published in the papers -- a diverse group of critics that included congressional Republicans and liberal Harvard professors Laurence Tribe and Alan Dershowitz began to
question the legality of the INS's tactics. "No judge or neutral magistrate had issued the type of warrant or other authority needed for the executive branch to break into the home to seize the child," Tribe wrote in a much-quoted New York Times opinion piece. "The agency had no more
right to do so than any parent who has been awarded custody would have a right to break and enter for such a purpose."
But in the days that followed Tribe's pronouncement, Justice Department lawyers released a series of warrants and affidavits revealing their legal premise for raiding the home. First, the INS revoked Lazaro Gonzalez' custody of Elian. Then it issued an arrest warrant for the boy, temporarily
declaring him an illegal alien and thus subject to pickup. Then, on the basis of its own arrest warrant, it asked for and received a search warrant from a federal magistrate to enter the Gonzalez house and seize the child. Then -- voila! -- after the seizure the INS declared Elian to be legal again
and gave custody to his father, Juan Miguel Gonzalez.
After their initial anger subsided, some critics conceded the INS likely had the legal authority to act as it did. "Did they have all their ducks in a row when they did this? I think they pretty much did," says Grover Joseph Rees. But Rees and others point out that the Justice
Department's actions, while not illegal, were an abuse of the Attorney General's power and, at the very least, a parody of standard department practice. The arrest warrant/search warrant stratagem, in particular, seems more like a clever trick than a measured response to the situation. "Neither
warrant served the purposes of this case," says a former Justice Department official. "They weren't really searching for him, and they weren't really arresting him."
Beyond that, the very fact the raid took place at all did enormous violence to the spirit of due process. The two sides -- the Gonzalez family and the INS -- were in the middle of litigating the issue of Elian's application for asylum. The Eleventh Circuit Court of Appeals had delivered a
setback to the government by saying the INS was wrong when it refused even to consider asylum applications from Elian himself and from Lazaro Gonzalez on Elian's behalf. Then, with the issue unresolved, the government blew the case wide open by taking the child. "It was a clear example of the
defendant kidnapping the plaintiff because the lawsuit wasn't going well," says Eig.
The government's intransigence on the issue of asylum is particularly perplexing. In a December 1998 press release headlined "INS Issues New Guidelines for Children's Asylum Claims," the agency announced procedures it said would make it easier for young people to apply for asylum. "The
guidelines recognize that children under the age of 18 may experience persecution differently from adults and may not present testimony with the same degree of precision as adults," the INS said. The new procedures will "help provide the child asylum seeker with a comfortable, secure
environment in which to best present his or her claim." The guidelines, according to the INS, were developed in consultation with the United Nations High Commissioner for Refugees, as had an earlier set of policies making it easier for women to seek asylum.
"There was no age limit; the guidelines talked about the best interest of the child," says Cheryl Little, executive director of the Florida Immigrant Agency Advocacy Center, which has filed a brief with the Eleventh Circuit supporting Elian's right to an asylum hearing. "We
believe that international law and U.S. law recognize the rights of children to apply for asylum. To say the Attorney General alone determines who has that right is troubling." Yet that is precisely what the INS claims when it comes to Elian Gonzalez.
Laughing Matter
It took Bill Clinton exactly one week to make his first public joke about the Miami raid. The occasion was the April 29 White House Correspondents' Dinner, the last Clinton would attend as president, and the targets of his humor were Cubans who in their anger and frustration briefly flirted with
silly conspiracy theories about Elian's reunion with his father. Pointing to pictures showing the smiling child with Juan Miguel Gonzalez, they said Elian's hair appeared longer than it had in photographs taken that morning during the raid. The smiling pictures must have been doctored.
At the dinner, Clinton began his remarks by pointing to a photo of himself with a broad smile on his face. "Taken just moments ago, it proves beyond a doubt that I am happy to be here," he said as the audience caught on to the joke. "Now, wait a minute," Clinton continued,
his voice taking on a conspiratorial hush. "It seems that my hair in that photo is a little longer than it is tonight." The assembled reporters, editors, and media insiders burst into laughter; how stupid those Cubans seemed.
The president even made a little quip about the Justice Department's use of excessive force. A party being held after the dinner was so exclusive, Clinton said, that almost no one got an invitation. "But I'm not worried," he added. "I'm going with Janet Reno." The crowd
laughed and applauded.
Reno herself, along with top deputy Eric Holder, was at the dinner, accepting kudos for the raid. And that morning's Washington Post carried an account of yet another Washington party, this one at the State Department, at which Gregory Craig, the White House-connected lawyer who represented Juan
Miguel Gonzalez, was nearly mobbed with well-wishers. Craig, the Post said, "won hands down in the most-kissed category, accepting smoochy congratulations from one and all."
In other words, Washington was quite happy with the outcome of the Gonzalez case. And it didn't take long before Republicans on Capitol Hill began to back off their vows to hold hearings to investigate the raid. "I don't know whether or not a hearing will be necessary," House Majority
Leader Dick Armey said in early May. "I think we need to make some inquiries and see where we can go on that and just see where it takes us."
Don't be surprised if it takes them nowhere. But that doesn't mean the Gonzalez matter will disappear. Even if the courts allow Juan Miguel Gonzalez to take his son back to Cuba, the Miami raid will have long-lasting repercussions. "I have a feeling we'll see no shortage of lawsuits filed
by people who were tear-gassed, pepper-sprayed, struck and otherwise illegally molested during that raid," says Spencer Eig. "The right to peaceably assemble is enshrined on our Constitution, right up there with voting and the jury." It's not a terribly popular point to make in
official Washington -- what with all the laughing and smooching -- but it may someday be one of the lasting lessons of Elian Gonzalez's strange stay in America.
Byron York is The American Spectator's senior writer.
This article also appears in the June 2000 issue of The American Spectator.
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