Fascists! Fascists!
It's a nightmare scenario; frustrated by their failure in the courts, and prodded by powerful special interests, an executive-branch official shops for tame judges and executive fiats to support a flawed policy that most Americans oppose - and, stymied, finally results to pseudo-legal force to get its way.
Politicians, cynically looking out for their own careers, abandoned constitutional principle and their own ethics
In Florida, natch.
Remember Elian Gonzales?
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."
Seems pretty clear-cut, huh?
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.
In other words, the INS bent over backwards to find a tortured rationalization to enact - or rather, reverse - their policy, rules be damned. Naturally, they deployed a horde of lawyers to reinforce the point; 2+2 equalled five, and anyone who disagreed was insane to boot.
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.Ironically, the Clinton Administration - which oversaw a raft of legislation at the federal and state levels that were disastrous for divorced, non-custodial fathers in America, struck a huge blow for blackguards who happened to live in countries whose dictators had a talent for leading weak presidents around by the nose.
"But what were everyone's real wishes?"
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.
Those dirty executive branch bastards, defying the courts!
Pay careful attention to this bit:
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."
Remember how your lefty acquaintances poo-poohed the 11th Circuit's opinion? I have a small clacque of koolaid-addled lefty acquaintances; remember their hooting and yammering during the Elian episode is one of the most depressing episodes of the whole depressing Clinton era.
They are, naturally, the same people who are declaring the 11th Circuit the fount of all wisdom today in the Schiavo case.
Of course, the rule of law is just for peasants:
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.
Fascism! Fascism!
The rule of law. Heck, I guess we should be glad that it's back in fashion among the left.
Posted by Mitch at
March 29, 2005 04:40 AM
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Mitch,
You're absolutely right. The Schiavo case is just like the Elian Gonzlaez case, in which the Justice Department's actions to return custody of Elian to his father was upheld by every single court that considered the case on its merits and Attorney General Reno enforced the courts' repeated orders.
See Gonzalez v. Reno, 86 F. Supp. 2d 1167 (S. D. Fla. 2000), affirmed, 212 F.3d 1338 (11th Cir. 2000).
Jeb was doing exactly that when he tried to send Florida Department of Law Enforcement officers to violate every decision by every court that has ever looked at the case.
The similarities are eerie.
Or is this another post where you want to entirely ignore that pesky "record"?
Posted by: Slash at March 29, 2005 09:01 AM/jc
Er, right.
So where is John Fund wrong?
Posted by: mitch at March 29, 2005 09:27 AMMitch,
The distinction that Reno was enforcing the law as repeatedly found by the courts, while Jeb tried to use force to evade repeated court orders is somehow lost on you?
And as I recall, you fully supported Elian's father's right to custody of his son.
Posted by: Slash at March 29, 2005 09:43 AM/jc
Oh, screw it.
Slash? "Fact" in court doesn't necessarily equal "Truth". You know it. I surely do. "Fact" is determined by "who has the better lawyer", or "what does the court decide is and is not in its jurisdiction", or similar arcana, at least as much as "the truth" does.
I have no access to "the record", not that I know of, and little enough time to fsck with it in any case. I certainly don't have a job that allows me all sorts of on-the-clock recreational research time.
But I have access to people who do - who ARE lawyers, journos, whatever, people who DO have not only the time but the imperative to read "the record". Like most of us laymen, I nod to them on the odd occasion; they, like you, are among the high fecking priests of knowledge.
So again - where is Fund wrong?
Speaking of "the record", Slash; the record shows me that in August, you said that Douglas Brinkley was four days away from giving dates, times and locations when and where Lt. John Kerry's Swift boat was *in* (not near, not next to, not within sniffing distance of) Cambodia. Any progress, there? Or were you out getting an MRI?
Posted by: mitch at March 29, 2005 09:55 AMMitch--
I thought you believed in a father's right to raise his children as he sees fit?
Or does that only apply in America?
As for Slash's comments, they're absolutely on point, the Clinton administration was within the law to do what it did, and in the end, a child ended up living with his father. If I was living in Castro's Cuba I would've left Elian here...but that's nobody's decision to make but his.
Posted by: Jeff Fecke at March 29, 2005 10:06 AMMitch,
Here's where Fund is wrong, refering to what the Clinton administration did in the Elian Gonzalez case:
"Those dirty executive branch bastards, defying the courts!"
The Clinton administration wasn't defying the courts, it was enforcing the courts' orders!
Now, since you prefer to dismiss court decisions out of hand, that's little relevance to you -- that Clinton and Reno were enforcing the law when they returned Elian to his father, while Jeb tried to defy the courts by sending FDLE agents to seize Terri.
But to anyone who cares about the rule of law, it's a huge difference.
Posted by: Slash at March 29, 2005 10:36 AM/jc
Oddly enough, towards the end of the 11th Cir. opinion cited above, the judge has this to say:
"As policymakers, it is the duty of the Congress and of the executive branch to exercise political will. Although courts should not be unquestioning, we should respect the other branches' policymaking powers. The judicial power is a limited power. It is the duty of the judicial branch not to exercise political will, but only to render judicial judgment under the law."
Y'all can take that for what it's worth...
LF
Posted by: LearnedFoot at March 29, 2005 10:42 AMY'see, Slash, this is where debating with you slips from "entertaining diversion" into "neo-masochistic drudgery".
You say "Now, since you prefer to dismiss court decisions out of hand, that's little relevance to you..."
Bullshit. I don't "dismiss court decisions out of hand". I am - for those who are in doubt - NOT A LAWYER. You are. Outside the fairly narrow bounds of, say, family court decisions, I have little literacy and - this is kinda big - even less access to same. Saying "read the record" is as useful to me, as a rule, as saying "read the sheet music" is in getting you to understand the Beatles (and why the Kinks are better).
And so, in the interest of "discussion", I've been BENDING OVER BACKWARDS for the past four or five days on this blog to say "Yes, Slash, I'll defer to you on the substance of what is in the court's decisions, but I have these reservations..." about which, as it happens, the court record is *largely irrelevant* (in the Schiavo case) or contested (in the Gonzales case).
But no. You plug your ears and chant "record record record record record", and toss off strawmen as above, making any attempt at moving the discussion from the record to the moral and ethical scope of the underlying law futile (at least as far as "talking with Slash" goes).
You're a lawyer; you get paid to futz with the law.
I'm a citizen and a voter. Every 2-6 years, I hire people to make the laws. And I'm a taxpayer; through the executive I hire every four years, I hire people like you to do said futzing.
I don't care about the record; that's what we pay lawyers for. I care about the law, and how it can be made better.
I do that for free.
Posted by: mitch at March 29, 2005 11:18 AMWho was it, Micawber? Who said, "If that's the law, then the law is a ass." Truer words were never spoken. The law is a meagre lantern in the search for justice. Every jot and tittle of what's happening to Terry Schiavo demonstrates that.
I don't know what to say to or about those on whom that distinction is lost.
Posted by: Brian Jones at March 29, 2005 11:55 AMBrian - Well put.
Jeff and Slash: Ah. So they did it for the father! Well, that's different.
The Clinton Administration didn't act out of a burning desire to see a father's right to raise his son be fulfilled. It acted to appease Castro.
Your question might have meant something had the Clinton Administration showed one single instance of consistency on the issue - say, having fought for the rights of Cuban fathers in the US to have their minor children reunited with them. Unfortunately, they ignored all such cases. Clinton was a disaster for fathers' rights on nearly every front.
A REAL administration would have told Castro "sure, the father can raise his kid. Send him and his family over".
By the way, this is one issue where Republicans are generally as clueless as Democrats.
Posted by: mitch at March 29, 2005 12:36 PMMitch,
In an echo of Brian's remark above, I am partial to Dirty Harry's opinion of "the law". Recall the scene in the first film in which Harry tracks down the psycho in a football stadium, wounds him with his trusty .44 mag, and tortures him for information on a kidnap victim's location. Later, Harry has a meeting with the D.A. and a judge in which they haughtily tell him that all of Harry's evidence is inadmissible under "the law".
Harry's reply: "Then the law's crazy!"
'Nuff said.
Posted by: Eric C. at March 29, 2005 08:34 PMOf course, slash also neglects the fact that no court authorized the forcible entry into the Gonzalez home for the purpose of removing the child, which is why the "search" warrant was obtained through an afadavit containing demonstrably false statements, via a magistrate expressly selected for his unfamiliarity with the matter (by waiting until Good Friday, when the judge who had been hearing the case was no longer available), and because he never had seen a search warrant application he didn't like. I await slash's defense of the abuse of the search warrant process....oh, that's right,it isn't abuse as long as the action is in pursuit of the outcomes slash prefers.
Posted by: Will Allen at March 30, 2005 02:46 AMSo according to a selective, pedantic, and sophomoric interpretation of the "rule of law," it is okay to break into a private home, put a machinegun to the head of a 6-year-old boy, and forcibly remove him from his extended family, especially if the President of the United States is willing to violate the "rule of law" of long-established U.S. immigration policy to kiss the ass of a maniacal communist dictator who has meanwhile put a gun to the head of the boy's father.
Well, if the judge says it's okay, then it must be okay, eh?
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