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Jewish World Review March 28, 2005 / 17 Adar II 5765

John H. Fund

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Selective Restraint: Libs cheered when Janet Reno defied the courts to seize Elian Gonzalez | The sad case of Terri Schiavo has raised passions not seen since five years ago. Then another bitterly divided family argued in Florida courts over someone who couldn't speak on his own behalf: Elian Gonzalez.

In both cases, those who were unhappy with the courts' decisions strained to assert the federal government's power to produce a different outcome. The difference is that in Mrs. Schiavo's case, Congress backed off after passing a bill that merely asked a federal court to hear the case from scratch, something that U.S. District Judge James Whittemore declined to do. By contrast, those who wanted the federal government to intervene in Elian Gonzalez's case went all the way, supporting a predawn armed federal raid on the morning before Easter to seize the 6-year-old boy despite a federal appeals court's refusal to order his surrender.

Both cases were marked with hypocrisy and political posturing galore. Both times some conservative Republicans talked about issuing subpoenas to compel the person at the center of the case to appear before Congress; they swiftly backed down when public opinion failed to support their stunt. Rep. Barney Frank, a Massachusetts Democrat, argued that by opposing Elian's return to his father in communist Cuba, conservatives were abandoning the principle that "the state should not supersede the parents' wishes." In the case of Terri Schiavo, many conservatives who normally support spousal rights decided that Michael Schiavo's decision to abandon his marital vows while at the same time refusing to divorce his wife rendered him unfit to override the wishes of his wife's parents to have her cared for.

But liberals have gotten off easy for some of the somersaulting arguments they have made on behalf of judicial independence and states' rights to justify their position that Terri Schiavo should not be saved. Many made the opposite arguments in the Elian Gonzalez case.

Elian was plucked from the ocean off the coast of Florida on Thanksgiving Day 1999. after his mother died in an ill-fated attempt to bring him to freedom. Before he became a political football and Fidel Castro demanded his return, the Immigration and Naturalization Service granted him immigration "parole," which gave him the right to live in the U.S. for one year until his status was determined. Because Elian was underage, his fate would therefore be decided by local family courts. On Dec. 1, the INS issued a statement saying, "Although the INS has no role in the family custody decision process, we have discussed the case with the State of Florida officials who have confirmed that the issue of legal custody must be decided by its state court."

Then the Clinton administration reversed course after protests from the Castro regime reached a fever pitch. On Dec. 9, the INS declared its previous position "a mistake" and said that state courts would not have jurisdiction in Elian's case. They claimed that because Elain was taken directly to a hospital he was therefore never formally paroled into the U.S.--even though he was then turned over to his Miami relatives rather than the INS. "Technically, he was not paroled in the usual sense," said a Justice Department spokesman. But she could come up with no previous case in which a Cuban refugee had had his parole revoked and then had the INS move to return him to Cuba.

But it quickly became clear that was the INS's intent. Over the Christmas holidays the agency dispatched agents to Cuba to interview Elian's father, Juan Miguel Gonzalez. After the interview, Mr. Gonzalez told reporters the agents and an accompanying U.S. diplomat had assured him Elian would be returned. The Clinton administration disputed those statements, although one of the government officials later privately acknowledged they had been made. Nonetheless, INS bureaucrats in Washington quickly determined that a man who had abandoned Elian and his mom for another woman was a "fit parent" who could "properly care for the child in Cuba." No public consideration was given to the fact that his father, a member of the Communist Party, might have been coerced.

If a state court had been allowed to hear the custody case, INS officials would not have been able to testify as to what Mr. Gonzalez told them to support his claim because it would have been hearsay. He would have had to come to the U.S. to testify on his own, subject to cross-examination. Even if the state court had granted him custody, it would have had to decide whether it was in the child's best interest to be returned to Cuba.

That's what Judge Rosa Rodriguez of Florida Family Court, complying with the original INS ruling, tried to do when she ruled in early January 2000 that her court had jurisdiction over the boy and gave Elian's great-uncle legal authority to represent him. Her order contravened an INS ruling that only Elian's father could speak for the boy and that he should be immediately returned to Cuba. Attorney General Janet Reno than promptly declared that Judge Rodriguez's ruling had "no force or effect." At the same time, INS officials assured reporters that under no circumstances did they intend to seize Elian by force.

The stalemate continued for another three months. On Thursday, April 20, the 11th U.S. Circuit Court of Appeals--the same court that rejected the pleas of Terri Schiavo's parents last week--turned down the Justice Department's request to order Elian removed from the home of his Miami relatives. Moreover, the court expressed serious doubts about the Justice Department's reading of both the law and its own regulations, adding that Elian had made a "substantial case on the merits" of his claim. It further established a record that Elain, "although a young child, has expressed a wish that he not be returned to Cuba."

The Reno Justice Department acted the next day to short-circuit a legal process that was clearly going against it. On Good Friday evening, after all courts had closed for the day, the department obtained a "search" warrant from a night-duty magistrate who was not familiar with the case, submitting a supporting affidavit that seriously distorted the facts. Armed with that dubious warrant, the INS's helmeted officers, assault rifles at the ready, burst into the home of Elian's relatives and snatched the screaming boy from a bedroom closet. Many local bystanders were tear-gassed even though they did nothing to block the raid. Elian was quickly returned to Cuba; because he was never able to meet with his lawyers a scheduled May 11 asylum hearing on his case in Atlanta became moot.

Of course, there are differences between the Gonzalez and Schiavo cases. But clearly many of the people who approved of dramatic federal intervention to return Elian to Cuba took a completely different tack when it came to the argument over saving Terri Schiavo. Rep. Frank makes a compelling argument that Congress took an extraordinary step when it met in special session to create a procedure whereby the federal courts could decide whether Ms. Schiavo's rights were being violated. He may have a point when he accuses Republicans of "trying to command judicial activism and dictate outcomes when they don't like" rulings. But where were Mr. Frank and other liberals when the Clinton administration decided to sidestep a federal appeals court and order an armed raid against Elian Gonzalez? While Mr. Frank allowed that the use of assault rifles in the Elian raid was "excessive" and "frightening," he also defended the Justice Department's view that "of course [agents] had to use force."

According to some reports, Gov. Jeb Bush considered seizing Mrs. Schiavo, à la Elian, and taking her to a hospital so she could be fed. But he did not do so. "I've consistently said that I can't go beyond what my powers are, and I'm not going to do it," the governor says. Janet Reno and the Clinton administration showed no such restraint when it came to Elian Gonzalez.

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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)

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©2001, John H. Fund