NewsMax.com
Wednesday, April 26, 2000

Writing in today’s Wall Street Journal, Napolitano, who teaches constitutional law at Seton Hall Law School, asked, "Who are they trying to kid?" and added that it presumably is not the 11th Circuit Court of Appeals, "which Tuesday enjoined the government from moving Elian Gonzalez outside the jurisdiction of U.S. courts - specifically, to the Cuban diplomatic mission in Washington."

The court’s order gave Reno until 4 p.m. yesterday to explain why the court should not appoint an independent guardian to represent Elian.

Elian’s case is a "custody dispute," Napolitano wrote, adding that such disputes "in Florida, as in all states," are handled by state family courts, and not by federal courts, and focus on one paramount issue: "What are the best interests of the child - not the interests of a parent, not the interests of a president, not the interests of a foreign government."

"Has there ever before been a case of a child's custody being changed by the force of the federal government without a specific court order authorizing it?" he asked.

Although the government agents who assaulted Lazaro Gonzalez's house early Saturday morning did have a search warrant, the affidavit on which the warrant was based shows that "the raid was constitutionally flawed, unlawful and repugnant to the language and spirit of the then three-day-old decision of the U.S. Circuit Court of Appeals" which ordered Reno to keep Elian in the U.S. and denied her request for an injunction demanding that Mr. Gonzalez turn the boy over.

The administration, an obviously angry Napolitano wrote, simply "lied to the American people. ... Their first effort to hide the truth was the application for a search warrant," which the Immigration and Naturalization Service didn't present to the federal district judge in Miami handling the case, Judge Michael Moore, but instead "waited until after 7 p.m. on Good Friday, when a federal duty magistrate, not familiar with the case and notoriously pro-government in his rulings, was available to hear warrant applications."

The affidavit, signed by Special Agent Mary Rodriguez of the INS, claimed wrongly that Elian was being "concealed" at Lazaro's home, that the boy was "unlawfully restrained" there, and that INS Deputy Director of Investigations James T. Spearman Jr. had already ordered the arrest of Elian because the boy was allegedly "an illegal alien." In response, the magistrate issued a search warrant.

"Thus the power that the government invoked to invade the house was [the power] conferred by Congress when contraband or evidence of a crime is being hidden. That was hardly the case with Elian, who was often present, for all the world to see, in Lazaro Gonzalez's front yard," Napolitano wrote.

Moreover, "it was the INS itself that designated Mr. Gonzalez as Elian's guardian and had placed the boy in his great-uncle's house, revoking that parole just nine days before the raid."

Napolitano said that what the affidavit left out "is as revealing as what it says."

Reno, he recalled, claimed that it was a fear of weapons being present in Lazaro's house that justified her agents' use of tear gas, guns and violence. Yet "Ms. Rodriguez's affidavit says nothing of the kind."

Moreover, he said, although Reno claims she seized the child for his own best interests, there is nothing in Ms. Rodriguez's affidavit concerning any "mistreatment or likely harm to Elian by his Miami relatives."

Nor did Rodriguez tell the magistrate that Aaron Podhurst, a well-respected Miami lawyer and a longtime friend of Ms. Reno, was "feverishly mediating negotiations between lawyers for the government, Elian's father and Lazaro Gonzalez even as the affidavit was being filed."

Napolitano also found the application for the warrant "troubling because, according to Richard Sharpstein, one of Miami's best regarded criminal-defense and immigration lawyers (and, as of Monday, a member of Elian's Miami legal team), the INS never arrests Cuban aliens without evidence that they have committed a crime."

Such restraint on the part of the INS, he noted, "is consistent with the Cuban Adjustment Act of 1966, which makes Cuban nationals eligible for U.S. citizenship once they've been in the U.S. for a year."

The "search" warrant, Napolitano charged, was simply a pretext to get into Lazaro Gonzalez's house. "No legitimate federal purpose was served by the raid," he wrote. "Elian was lovingly cared for by blood relatives; he was not ‘involuntarily restrained’; and a federal appeals court was soon to hear his appeal of Judge Moore's denial of his right to apply for asylum." Moreover, he explained, "just a simple court order, sought with notice to Elian's lawyers, could have peacefully transferred custody."

Noting that The Washington Post reported Tuesday that Ms. Reno, "fearing accusations of a cover-up, ordered her agents not to obstruct photographers," Napolitano wrote that if the story is true, Reno’s agents "apparently weren't following orders. The first agent to enter the Gonzalez home kicked, maced and assaulted an NBC cameraman, ensuring there was no video footage of the agents ransacking the house and seizing Elian."

Moreover, the "shot seen round the world," the photo of an armed federal agent point a gun at a terrified 6-year-old child, was taken only because AP photographer Alan Diaz had managed to get into the bedroom where Elian was being hidden in a closet by the fisherman who’d rescued him, before the federal agents stormed into the house and into the room.

"In a free society the moral legitimacy of government depends on its fidelity to the truth and to established law," Napolitano wrote. "Mr. Clinton and Ms. Reno, after more than seven years, have shown once again that they don't know - or don't care - how much they tend to weaken the fabric of our culture."