Expert: Reno's Legal Lies
President Clinton and Janet Reno’s insistence that Saturday's armed
assault on Lazaro Gonzalez's house was necessary to uphold the "rule
of law" is nonsense, according to Andrew P. Napolitano, a former New
Jersey Superior Court judge, now practicing law in Newark, N.J.
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,"
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
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
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
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
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
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."