"They have, I think, succeeded in making the [Elian] case essentially moot."
By Kathryn Jean Lopez, NR associate editor-lopezk@nationalreview.com. National Review. 5/10/00 4:00 p.m.
lan Dershowitz is a Harvard law professor and author, most recently, of The Genesis of Justice: 10 Stories of Biblical Injustice That Led to the 10 Commandments and Modern Law.
National Review: You, of course, signed on to a letter calling for Congressional hearings into the Elian raid, which appeared in an ad in the Washington Post yesterday.
Alan Dershowitz: In very odd company for me.
NR: Yes, indeed [signers included Bill Bennett, Midge Decter, Milton Friedman, Mary Ann Glendon, Gertrude Himmelfarb, Norman Podhoretz, and Abigail and Stephan Thernstrom]. Do you think it’s irresponsible that Congress hasn’t held hearings already? Is it unacceptable if they don’t?
Dershowitz: I think Congress should hold hearings. I think the reason they’re not holding hearings is that they’re afraid of the implications of hearings, that is, the Republicans don’t want hearings about the INS in general and about how Republicans have voted over the years to
give INS this extraordinary power. In other words, the Republicans don’t want to have a hearing on the general issue and the Democrats don’t want to have a hearing on the specific issue. So, when you get that kind of situation, you’re not going to get hearings.
NR: In the op-ed you penned in the Los Angeles Times a couple of weeks ago, you said that by "enforcing its own order, without the judicial imprimatur of a court mandate, the Justice Department has reinforced a precedent that endangers the rights of all American citizens." How
widespread is this?
Dershowitz: Oh, it’s very widespread. It started with the Palmer Raids back in the ’20s when these — they weren’t called INS then — immigration agents would break into factories and homes and take away "radicals," in those days, Italian, Irish, and Jewish
Communists or Leftists. The Palmer Raids were notorious in history. Civil libertarians hate them. It continues to this very day. I hope that maybe this case would sensitize the public a little bit about the INS.
I will write another letter like this three years from now when Bush is president and you’ll notice a lot of the people that signed with me won’t be on that letter. Some will be. There are some principled civil libertarians on the Right and on the Left, but I think many of the people
that sign these letters and that make these points are not principled civil libertarians. They just use civil liberties as a way of supporting the Democrats or supporting the Republicans.
NR: What do you think accounts for the limited public outrage when they see those pictures, for instance?
Dershowitz: Because they like the result. When you give the public a means/ends issue, you’re not going to get a sensitive response. If they approve of the ends, they’re not going to be sensitive about the means. I mean what explains Anthony Lewis? To me, that was a shocking article. A
man who has for years been committed to civil liberties against the INS. I mean he’s been one of the great voices against the excesses of the INS and suddenly he’s defending them.
NR: Coming back to the courtroom, do you see anything good coming out of the 11th Circuit tomorrow?
Dershowitz: I can’t imagine. I think what happened is that the government succeeded in mooting the case essentially. By giving the child over to the father and giving the father the opportunity to go into court and say, "I speak for my son," they have, I think, succeeded in making
the case essentially moot.
NR: So, is there no point to tomorrow, and to talk of trying to bring it to the Supreme Court, as the Miami family lawyers have suggested they’ll do?
Dershowitz: You can’t make that decision until you see what the 11th Circuit says. It’s conceivable that the 11th Circuit could say something that would warrant some in-court review.
I think the hardest question that nobody has yet asked the father or Greg Craig is this one, and it’ll be interesting to see if the 11th Circuit asks it: If the 11th Circuit were to rule that Elian has the right to apply for asylum and if the Immigration Naturalization Service were then to
rule that he gets asylum, would you stay here or would you go back to Cuba? What’s more important to you: Your love of your country or your love of your son? If you couldn’t have your cake and eat it too, if you couldn’t have your son back in Cuba… If the choice was, your son
here or you back in Cuba, what would you choose? That’s the hard, hard question for him. This is a case that is so vaguely structured. Usually when you argue a case, you know exactly what the first, second, third question is going to be. I have no idea what the questions are going to be
tomorrow. It’s so difficult to anticipate what angle the court will take.
NR: There’s been a lot of back and forth about this Georgetown trip on Saturday night. Is that troublesome to you?
Dershowitz: What’s troublesome to me is that all the arguments that initially were made by the father’s side against the Miami side, "Oh, they’re showing pictures of him. There’s this hostage tape. How can the kid make any decisions for himself." Everything’s
now reversed. Now we see, not hostage tapes — whatever the tapes were — but we see smiling photographs which somebody picked through and selected. I’d like to see some of the crying photographs too. We’re not seeing any of those. And we’re suddenly going to see tomorrow,
Greg Craig’s going to say that the kid wants to stay with his father. Suddenly he’s old enough to make that decision. And then, you know, trotting him out and parading him around town. The same things that were criticized by this side are now in some degree being done by them.
NR: In a similar vein, Greg Craig — it’s been widely reported — issued that letter prior to the raid asking media people not to cover the raid. Is that just unacceptable that the administration didn’t criticize him for that?
Dershowitz: Unacceptable.
NR: Is there anything to what people have been saying that the court should appoint somebody else?
Dershowitz: Absolutely. Absolutely. I had a case like that many years ago where I was appointed by the court to represent, I think she was an 8-year-old in a dispute between mother and father. She wanted to have an independent lawyer and I got that role. I think there should be somebody
appointed to represent Elian, to interview all the parties in the case, to be utterly independent and to report to the court.
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