By David C. Stolinsky and Dave Kopel, Independence Institute
National Review Online, 1/10/01 10:55 a.m. More by Kopel on the Elián Gonzalez kidnapping.
When Election Day 2000 dawned, no one guessed that the race would be so close. But it was. No one guessed that the outcome would be decided in Florida. But it was. No one guessed that the result in Florida would be decided by a few hundred votes. But it was. And no one guessed that the margin of victory for George W. Bush would be the Cuban-Americans, who had trended Democratic in the prior two presidential elections, but who voted heavily Republican in 2000. That is, no one guessed that Elián Gonzalez would have his revenge for having been forcibly returned to the dictatorship of his "father," Fidel Castro. But he did.
It has been only half a year since black-clad thugs broke down the door of the Gonzalez family home in Miami, threw a cameraman to the floor, pointed submachine guns at Elián and the man holding him, threatened to shoot, seized the six-year-old as he screamed in fear, and then turned him over to other thugs who dressed him in a Young Pioneers uniform, and returned him to a dictatorship. One would have thought that the photo of the terrified child and the federal agent pointing the automatic weapon would be indelibly etched in our memories. But memory, like attention span, has been shortened by watching the fleeting electronic images of TV and computer screens.
If we remember Elián at all, it is with the mantra, "We are a nation of laws." Some people vaguely recall that after Elián's mother drowned bringing him to freedom on a makeshift raft, the "law" required the boy's return to his father, and a "court order" was carried out by federal agents.
In fact, there was no such law. Although the law said that "any" alien could seek asylum, courts ruled that the law was not clear about minor aliens. The courts then ruled that Attorney General Reno had essentially limitless discretion to invent a new regulation specifying that Elián could not seek asylum. The father's uncle Lazaro had been granted temporary guardianship of Elián, and Lazaro requested asylum for the child. The new Reno rule said that Lazaro had no authority to seek asylum on behalf of Elián.
The guardianship was then arbitrarily revoked, and custody was awarded to the father in the absence of a hearing to determine the best interests of the child. Even though Reno had initially said that the issue ought to be resolved in family court, where the best interest of the child is guiding principle. No one asked why the mother had divorced the father, or whether (as reported) he had physically abused her, or why Elián had been conceived after the divorce. And though the case was based on biology, no one asked for DNA evidence that the father was the father.
There was no "court order" either. In fact, the U.S. Court of Appeals specifically refused to issue an order returning Elián to Cuba.
Nor was there a justification for the gunpoint of kidnapping of Elián. The U.S. Supreme Court has earlier ruled that "no-knock" entries had to be justified by danger to the officers or danger of destruction of evidence. Neither danger existed in this case. Nevertheless, Reno ordered a violent "no-knock" entry and kidnapping of Elián, which Alan Dershowitz and Larry Tribe denounced as flagrantly illegal.
Janet Reno later claimed that the no-knock raid was justified because one man who was sometimes in the Gonzalez home had a permit from the state of Florida to carry a handgun for lawful protection. Under Reno's theory, every form of gun registration or gun-owner registration would appear to justify violent service of search warrants on every home where gun owners reside or visit.
In short, there was no "law," there was no "court order," and the "no-knock" raid and kidnapping were illegal and therefore criminal acts of violence.
Before Elián fades completely from our memories, we must make certain that requests for asylum are handled with concern for the welfare of the applicant, not with the hope of making deals with dictators. We must make certain that our military forces are strong enough to protect us from foreign tyrants, and that federal agents do not become a paramilitary force strong enough to install a domestic tyrant, or to carry out violent crimes with the "just following orders" excuse.
We must insist that our government protect us from dictators and not appease them. We must ensure that our nation remains a bastion of liberty, not an outpost of expediency. We must repudiate the government psychiatrist who never met Elián, yet declared that he was harmed by living with a loving family-but was not traumatized by being abducted at gunpoint. We must reject leaders incapable of recognizing the truth, much less telling it. Now is the time to ensure that ethical government is not an oxymoron, and that "law" really means law and not the whim of those in power.
We pray that soon Elián and every other serf on Castro's island plantation will be able to live in freedom. Until that happy day comes, Elián should have remained here, and not have been abducted at the point of submachine guns by criminals claiming to act in our name. Elián deserved his revenge, though paradoxically it will benefit us more than it will benefit him.