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Elian and the Clinton Rule of Opposites
April 26, 2000

By James L. Hirsen, J.D., Ph.D.
contributor to

An accurate picture of the events that took place this past weekend in Miami, Florida, is steadily making its way out of the murkiness. New legal filings submitted reveal the true intent and objectives of the parties involved.

It seems that the Justice Department of the United States has filed papers arguing that Elian does not want to have an asylum hearing after all. The Justice Department,s moving papers also inform the court that sending the boy back to Cuba would not be the least bit harmful to the child.

This new maneuver by the Justice Department smells as if it is a rank attempt to open the door to whisking Elian silently back to Cuba without a court hearing. Could it be that one of the real reasons for the incredibly risky, custody-seeking, commando raid was to ensure that Elian would be placed in a position that would allow Gregory Craig and our well-trained government legal staff to withdraw the child,s asylum petition? Surely this is not what the Eleventh District panel had in mind when they determined that Elian indeed had a right to his day in court.

Still, there is a threshold fact that seems to have been lost amidst the shock and spin of this woeful incident. The moment that the three-judge panel of the Eleventh District ruled that Elian could remain in the United States, his status was altered. The boy was no longer here illegally. The court, in essence, had granted him temporary legal status.

And so, at a minimum, it is disconcerting that prominently displayed on the backs of the heavily armed invaders of the Gonzales,s home were the words "Border Patrol. The temporary legal status granted to Elian by the court effectively removed the jurisdiction of the INS and the border patrol from the entire matter.

It is important to emphasize the purpose and function of the INS. The INS was created by Congress to regulate the borders and to police those who cross the border illegally. Any reason for the INS to act in the Elian matter had been eliminated by the decision of the Eleventh District Appellate Court.

The Eleventh District Court determined that Elian Gonzales was entitled to seek asylum on his own, separate and apart from both his American relatives and from his father. This was the result of a proceeding where Elian was the plaintiff and was duly represented by his own counsel.

The fundamental right to counsel has now been undermined, if not eliminated, by the Clinton administration,s virtual imprisonment of the young lad. This point was underscored when a standing senator of the United States was denied access to visit with Elian Gonzales, while communist agents from Cuba were invited inside.

The Clinton/Reno tag team indicated that the only option available to the United States of America, the most powerful nation in the world, was to change the custody of a child, at the point of a submachine gun, without the inconvenience of a court order. This action is unprecedented within the American legal system. Issues of child custody, along with all legal considerations involving the family, such as marriage, divorce, adoption etc., have always been the exclusive province of state law.

But now a new attorney, Miami lawyer Richard Sharpstein, acting on Elian,s behalf, has filed papers in response. In addition to seeking a court appointed guardian, he has correctly pointed out that the supporting affidavit to the search warrant on which the government relied for its authority was defective. This affidavit alleged that Elian Gonzales was an "illegal alien. Since the court had granted him temporary legal status, this cannot be relied upon. The affidavit also alleged that Elian was "hidden. As it turns out, he wasn,t then, but he sure is now.

We should have learned from the past. We should have been alert to the sickeningly shrewd patter that links so many of the mishaps, snafus and scandals together. Call it the Clinton rule of opposites. Whatever he or his associates say, expect the opposite.

When Clinton says, as he did to Florida Senator Bob Graham, that Elian would not be seized in the dark of night, expect the opposite. When Janet Reno says that she is negotiating in good faith and working to achieve a peaceful resolution, expect the opposite. When Eric Holder tells Tim Russert, as he did on Meet the Press, that a raid of this type would not occur, expect the opposite.

We should have known that when Clinton and Reno refer to the rule of law, they mean to exclude the Fourth, Sixth and Tenth Amendments. We can only hope that the Eleventh District Court sees that the administration has shown a clear intent to thwart their holding, through use of unauthorized and illegal force, abduction, and denial of access to family and legal counsel.

The decision of the three-judge panel has been openly mocked. The lack of legal foundation for this reckless action has swayed a whole bevy of typically liberal, administration supporters, including law professors Alan Dershowitz, Laurence Tribe and Paul Rothstein.

They know what the uninured portion of the public instinctively senses. That breaking into the private homes of innocent citizens is not to be condoned, tolerated or ever allowed in a constitutional republic. The contorted, maligned and defamed rule of law may never be the same, for in the perversely fashioned Clinton universe, it has suffered the same fate as the English language and the American conscience.

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James L. Hirsen, J.D., Ph.D.

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