LEVINSON at JURIS.LAW.NYU.EDU
Tue Apr 25 15:34:21 PDT 2000
Apropos Michael Manister's point about armed "security" personnel: A recent piece on the editorial page of the Wall Street Journal (I found it tacked on a colleague's bulletin board, so I don't have the exact date, but I suspect that it within the past couple of weeks), Michael Gonzalez, "The Ethnic Group Liberals Love to Hate," condemns liberals for, among other things, being insufficiently supportive of the right to bear arms (and its signification of the priority of liberty), and includes the sentence: "Miami is better armed than Fort Knox." I think it would have been gross incompetence on the part of the Justice Department had the persons sent to liberal Elian not been heavily armed themselves. As it happens, firearms didn't need to be used, something for which liberals are indeed grateful. I agree with Tom Friedman that Americans have little to be ashamed of with regard to the infamous photo. (If the family had indeed not been resisting lawful authority, then the family would have answered the door or, at least, carried Elian into the living room to make a peaceful transfer. Instead, of course, he was being sequestered in a closet by someone who had no conceivable basis for claiming lawful authority over the child.)
As for Laurence Tribe's argument, I confess I don't understand it. Elian was the equivalent of contraband. A search warrant was precisely what was appropriate. (Assume that the family had one of the missing computers from the State Department. Wouldn't a search warrant be completely appropriate?) The INS didn't need to seek an arrest warrant because, extremely wisely, it chose to exercise its discretion not to arrest anyone. (This may be one reason why it is indeed misleading to refer to them as "kidnappers" vel non, since true "kidnappers" would surely be prosecuted.)
I also strongly endorse the Justice Department's rejection of the injunction strategy. The uncle (and his Miami enablers) would have liked nothing better than creating a martyr willing to go to jail to uphold his beliefs. (Remember Susan McDougall? Perhaps Janet Reno learned something from Kenneth Starr's mistakes.) And if the uncle were fined, then I have no doubt that Gloria Estefan and others would have been delighted to pay them and become even more wildly popular within "Little Havana." (I put to one side that seeking an injunction would simply have meant many further days of Elian's confinement--wouldn't he have a case for false imprisonment?--by the Miami relatives. Direct and decisive (and measured) action was precisely what was called for and that is what, at long last, we got.
I join, incidentally, is asking Paul Finkelman's action. What conceivable basis does Elian have for asking for "asylum," at least as that word is used in non-Orwellian lawtalk with regard to anyone else except Cubans, given that the standard applying to everyone else is a well-justified fear of state-directed persecution or, in a couple of cases, subjection to cultural practices like female genital mutilation. Isn't Elian's claim, by those who endorse it, just another example of the Cuban affirmative action program. (Is this one affirmative action program that Eugene supports, or would he say that anyone from a Communist country, including, of course, China, should be entitled, by law, to stay in the United States until the regime changes?
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