Seizure of Boy Was Legal, but Another Court Option Existed

The Justice Department had the legal authority to seize Elian Gonzalez from his Florida relatives, but it chose not to take another step that might have strengthened its hand and produced a peaceful solution, legal experts said Sunday.

Several legal authorities dismissed claims by the Florida family members, Republican leaders and other critics that Saturday’s lightning raid by heavily armed federal agents was illegal, and perhaps even unconstitutional.

But in choosing to act when she did, Atty. Gen. Janet Reno exposed herself to criticism that she failed to obtain a specific court order compelling Florida family relatives to produce the boy, which might have persuaded them to hand him over, the experts said.

They cited a provision of immigration law that gives the Immigration and Naturalization Service the authority to take custody of any unaccompanied minor it has allowed into the country.

The INS had in hand a search warrant issued by a federal magistrate in Miami when its agents rammed their way into the home of Lazaro Gonzalez, the great-uncle who took in Elian after he was rescued at sea nearly five months ago.

But there was one additional legal step that government officials could have taken, experts said. Before moving forward with a forcible seizure, they could have sought a district court order instructing Lazaro to produce the child.

If such an order had been issued and Lazaro Gonzalez still refused to relinquish custody of Elian, he could have been held in contempt of court and faced possible arrest and substantial fines.

In the view of some observers, the ratcheting up of legal pressure might have been enough to convince him it was time to turn over the child to his father, Juan Miguel Gonzalez, who was reunited with Elian after Saturday’s raid.

“The uncle might have said, ‘I’m willing to defy the INS, but I’m not willing to defy the courts,’ and he might finally have handed over the child,” said David Martin, former INS general counsel and now a University of Virginia law professor.

“But it’s not as though these were speedy mechanisms,” he added. “And I think the risk is you’d come out the other end of that process and still have a defiant Miami family and still have to make the tough decision about whether or not to send in the agents.”

Central to the dispute between the Justice Department and its critics is whether Elian should be treated like an unaccompanied minor, whose father has the legal authority to speak for him, or like an immigrant, with the ability to apply on his own behalf for asylum or legal residency in this country.

From the beginning, the INS subjected Elian to the same laws that govern any foreign child who arrives by himself in the United States. Under the Immigration and Nationality Act, the INS can parole a minor into the temporary care of relatives or others. But it also can revoke the parole if it finds that one or more of the child’s parents is fit to speak for the child.

Ever since INS agents interviewed Juan Miguel Gonzalez at his home in Cardenas, Cuba, in December, they were convinced he was a fit parent. On Jan. 5, INS Commissioner Doris Meissner ruled that Elian “belongs with his father” and must be returned to Cuba.

“He’s not an immigrant coming to this country. An immigrant coming to this country presupposes that he wants to apply and wants to come to the U.S.,” INS spokeswoman Maria Cardona said Sunday.

“This is an unaccompanied minor who through a tragic situation ended up in the U.S. and has a father who speaks for him and who clearly does not want him in the U.S., doesn’t want him to seek asylum and does not want him to be admitted to the U.S.,” Cardona said.

The Miami relatives saw things differently. Lazaro Gonzalez applied for political asylum on behalf of his young charge, asserting that Elian, although a child, knew his own mind enough to make the decision to seek asylum.

On Sunday, congressional Republicans called for hearings into the tactics used by the agents who snatched the Cuban castaway from his Miami relatives.

Sen. Bob Smith (R-N.H.), who flew to Washington with members of the Miami family after the raid, sponsored a Capitol Hill news conference at which family members, friends and lawyers berated President Clinton and the Justice Department for the operation.

“This president of the United States, defender of human rights, a president who invokes the name of Martin Luther King, a president who went to war in Bosnia over human rights . . . snatched a little boy on Easter weekend from his home at the point of a gun,” Smith said during the lengthy, emotional news conference.

Some Democrats also are challenging the legal basis for the raid.

“There was an insensitivity and a crudeness to this,” said Sen. Bob Graham (D-Fla.) on ABC-TV’s “This Week” program.

Coming as it did in the dark of night and in the midst of negotiations with the family, Graham said, the raid was “absolutely intolerable, unnecessary, outrageous.”

The decision to authorize the raid marked an abrupt change in tactics for Reno, who had been widely criticized for insisting on conducting a deliberative process of negotiations with the family.

But the Justice Department had no guarantee that seeking a district court order directing Lazaro Gonzalez to surrender the child would achieve what it had decided was absolutely necessary: the reunion of Elian with his father.

A federal appeals court in Atlanta did not rule on the custody issue last week when it extended a previous order keeping Elian in the United States while the asylum issue plays out in the courts.

Observers familiar with the deliberations said Justice Department lawyers carefully weighed the possibility of asking a federal district court to order Elian’s great-uncle to turn him over--or go to jail. “I know that was something that was being looked into as a live possibility over the last couple of weeks . . .,” Martin said.

But in the end, Reno decided that asking a court to issue such a directive was too risky and would take too long. She chose instead to do what the Clinton administration had long threatened: enforce its own order.

“There’s no question the agency had the legal authority to do what it did,” said Elliott Lichtman, an immigration lawyer in Washington.

“The question is whether politically it would have been better to wait longer, to try something different. What we’re seeing now is intense fallout that has more to do with appearances than with what actually happened in that house Saturday morning.”