INS Authority in Gonzalez Raid

* Criticizing the Immigration and Naturalization Service recovery of Elian Gonzalez, Alan Dershowitz says wrongly that the INS sought to subvert the judicial process by acting without first obtaining a court order through an adversarial hearing (Commentary, April 25).

The central decision of the INS--that this child’s father speaks for him in immigration matters and that the child should be returned to his father--has been reviewed by the judiciary. A federal district court found this decision to be lawful and dismissed the suit challenging it. The appeals court decision Dershowitz refers to, ordering Elian to remain in the U.S. during the appeal of that district court decision, in no way disturbed the underlying INS decision or the district court’s conclusion.

The INS had full authority to implement this decision by ordering Lazaro Gonzalez to deliver the child and by taking custody of the child when Lazaro Gonzalez refused to comply with this order. Dershowitz makes the astonishing assertion that no citizen has the obligation to obey the executive unless its order is backed by judicial authority. This runs counter to the entire structure of administrative law. On a daily basis agencies in many fields, not just immigration, make and enforce decisions under the authority granted them by Congress, without court orders.

Dershowitz also asserts that the INS “seized” Elian based on an “uncontested and entirely inappropriate search warrant.” The INS obtained (from a judge) a search warrant under a law (passed by Congress) authorizing warrants to search for and seize any person “who is unlawfully restrained.” Applications for any kind of search warrant are ex parte, without a contested hearing, because giving advance notice of the search could defeat the purpose of the warrant. An officer of the judicial branch may issue such a warrant on the basis of an uncontested hearing after carefully testing the justifications put forth. The INS action was backed by judicial authority and was based firmly in executive authority to administer the immigration laws.

BO COOPER

General Counsel

INS, Washington

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Re “Federal Agents Expected Worst in Miami,” April 29: You quote agents as expecting to encounter a network of heavily armed Cuban American extremists ringing the property. Hence, their excuse for a heavily armed commando-type raid on a home.

Obviously, their intelligence mechanism is as faulty as their judgment in carrying out the raid. It’s not surprising they’ll cook up after-the-fact, imagined scenarios to justify taking the law into their own hands instead of awaiting legitimate court decisions that would have settled the case in the “used to be” American way. That is, before the Clinton gang got its hands on the roots of power.

GENE GUSTAVSON

Glendale

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Re “Public Bill in Elian Case Tops $1.5 Million, Agencies Say,” April 28: An expenditure of $1.5 million on the “battle” over Elian Gonzalez. Countless articles in print and hours of television about Elian. Meanwhile, children are again starving to death in Ethiopia. Shame on all of us.

JOSEPH ANTCZAK

Los Angeles