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Jewish World ReviewMay 3, 2000 / 28 Nissan, 5760

Linda Chavez

Linda Chavez
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Why 'Elian' won't go away -- A LOT OF FOLKS would like the Elian Gonzalez case to go away, but it's not likely to anytime soon. What started out as an issue of one boy's fate has become a serious test case for the rule of law in America. Are the president and the attorney general a law unto themselves? Or must they, too, obey the Constitution, the courts, and the laws, as written by Congress?

Administration officials would like us to believe that their actions in the early morning hours of Easter weekend were not only justified, but compelled by law. Much of the media and the general public seem willing to accept the government's claims at face value. After all, didn't the Justice Department obtain a "search warrant" before breaking down the doors of the Gonzalez family home in Miami?

The issue of the department's search warrant has received too little scrutiny in the press: Justice Department lawyers obtained the warrant by filing an affidavit claiming that Elian was being "concealed" and "unlawfully restrained" and that the deputy director of the Immigration and Naturalization Service had ordered him arrested because he was "an illegal alien." But these statements misrepresent the facts. According to former New Jersey superior Court Judge Andrew P. Napolitano, writing in the Wall Street Journal, the Justice Department cited these reasons because "the power that the government invoked to invade the house was that conferred by Congress when contraband or evidence of a crime is being hidden."

The Justice Department must have known it was on shaky grounds to obtain a search warrant. Why else would department lawyers have waited to obtain their warrant until after 7 o'clock on the evening of Good Friday, after most judges had gone home for the holidays --- including the federal district judge most familiar with the case? Several constitutional scholars and civil libertarians, among them Harvard law professors Alan Dershowitz and Laurence Tribe, have said that both the warrant and the affidavit the Justice Department filed to obtain it misrepresent the facts, are constitutionally flawed, and are, therefore, illegal. Tribe said the attorney general's action "strikes at the heart of constitutional government, and shakes the foundation of liberty." Dershowitz said that the Justice Department's action "endangers the rights of all American citizens."

These are stunningly harsh words from two well-respected liberals and civil libertarians, not to mention men who have often defended President Clinton against his critics. So, why hasn't Congress moved ahead with hearings on the issue? Apparently, Republicans are reading the polls that suggest most Americans are glad to see Elian reunited with his father, and believe the attorney general was within her authority to use force to obtain that end. But polls shouldn't trump the Constitution.

Congress has an obligation to investigate the Justice Department's actions. Not only was the search warrant suspect, but the entire raid took place just three days after the 11th Circuit Court of Appeals refused the Justice Department's request that it order Elian Gonzalez removed from the home of his Miami relatives. On May 11, the court will hear the full case on whether the department acted properly when it refused to consider an asylum application for young Elian. The court has already been highly critical of the Justice Department's handling of the asylum application, which may explain why the government behaved so precipitously to moot Elian's claims by placing him with his father, who wants the asylum application withdrawn.

Understood in this light, the administration's actions appear a bold attempt of the executive branch to usurp the jurisdiction of the courts on this matter. Clearly, as a co-equal branch of government, Congress should intervene with a thorough investigation and hearings on the administration's actions.

Perhaps it's not just the polls that are causing the Republicans some queasiness over this controversy, however. After all, Republicans have frequently led the fight to give greater authority and discretion to the INS and other law-enforcement agencies, sometimes, at the expense of civil liberties. They may now be loathe to take on the monster they have helped create.

But Republicans should remember that a healthy skepticism about government extends beyond bashing bureaucrats. The unrestrained police power of the state is the greatest threat to liberty, something our Founders clearly understood.

It's time the Republicans demonstrate they understand this principle as well.

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© 2000, Creators Syndicate