[Congressional Record Volume 146, Number 48 (Tuesday, April 25, 2000)]
[Senate]
[Pages S2818-S2819]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ELIAN GONZALEZ
Mr. SPECTER. Mr. President, I have sought recognition to comment
briefly on the case involving young Elian Gonzalez. At 11 o'clock this
morning, Senator Lott has scheduled a closed-door proceeding with
Attorney General Reno, and there are a number of important outstanding
questions which, in my view, should be addressed.
At the outset, let me make it plain that I believe and have believed
that young 6-year-old Elian Gonzalez should have been reunited with his
father at the earliest possible time. I believe that as a legal matter
there is no real justification for any asylum proceeding to keep young
Elian Gonzalez in the United States. The purpose of asylum is to
protect an alien from going back to a country where he or she will be
persecuted. That certainly is not the case with Elian Gonzalez. He
would be adulated.
Nonetheless, I believe there are some very serious issues which have
arisen that the Congress ought to address, and the most prominent of
those is the manner in which Elian Gonzalez was taken into custody. In
my opinion, there were less intrusive ways in which that could have
been accomplished. The Immigration and Naturalization Service said that
they proceeded at 5 a.m. because they did not want to have any
interference from the crowd. The avoidance of interference from the
crowd could have been accomplished at high noon if the crowd were to
have been moved back several blocks, which is customary where people
have a right to demonstrate, people have a right to express themselves,
but they do not have the right to do it right at the location where
there may be other interests which have to be preserved. Had the crowd
been several blocks away, there would have been no difficulty in taking
whatever action was deemed appropriate without the risk of having a
problem with the crowd.
Once the Immigration and Naturalization Service agents were directed
to move in to take custody of young Elian, they had been armed to
protect themselves. But the action necessitating their being armed had
very great potential for violence. It was a potential powder keg.
Fortunately, there were no serious injuries. But there could have been.
And it is my view that there ought to be a look by the Congress at ways
to improve these procedures in the future.
The Supreme Court of the United States, in the case of Garner v.
Tennessee, issued a ruling involving a Tennessee statute which involved
law enforcement officers using deadly force against a fleeing felon
even if that felon was unarmed. The Supreme Court of the United States
held that this statute was unconstitutional because deadly force may
not be used unless it is to save lives or avoid grievous bodily injury.
Now, the problem with what was done by the INS in moving in with drawn
weapons at 5 a.m. was that it could have triggered a chain reaction
which could have led to violence. And there was really no necessity.
They were not dealing with the customary INS case where they have a
suspected terrorist or a violent criminal. This is not a John Dillinger
who has to be taken into custody. That matter could have waited another
day.
When I read the morning papers last Friday that the Department of
Justice was considering moving in to take young Elian Gonzalez, I wrote
to both the Attorney General and the President and expressed the view
that there were a number of less intrusive alternatives which could
have been undertaken. And I pressed hard at that time for them to have
a court order.
When the President said the Federal court ordered Elian Gonzalez
taken into custody, that is not correct. The Court of Appeals for the
11th Circuit specifically refused to decide and declined to issue an
order requested by the Department of Justice to have the uncle turn
over Elian to INS so he could be turned over to the father. The
district court did not deal with the custody issue either, but only
decided that if there were to be an application for asylum, the proper
person to make that was the father and not the uncle.
On this state of the record, there is a very serious legal issue as
to what authority the INS had to take Elian into custody. They
certainly were not going to take him into custody to deport him because
there was an order of the circuit court prohibiting that until the
circuit court had decided the case.
There is, in my opinion, a need for Congress to take a look at
another issue. The Department of Justice, regrettably, does not have a
good record at Ruby Ridge or at Waco. I chaired the subcommittee
hearings on Ruby Ridge which led to a change in the FBI rules on use of
deadly force and currently am chairing a special task force of a
subcommittee looking into Waco. In the context of what happened at Ruby
Ridge and Waco and what happened with the potential powder keg in Miami
last Saturday morning, it is my view the Congress ought to consider
institutionalizing some permanent unit within the Department of
Justice.
The raid, which was conducted at 5 a.m., has the potential--and it is
hard to determine--of leaving very deep scars on young Elian Gonzalez.
When it occurred, the question came into my mind as to why the father
was not at the scene, if not present at the house, but close to the
scene to assist in soothing young Elian. I think the entire matter
could have been avoided had the crowd been cleared, had there been a
court order, had the Government taken up the representation of the
uncle's lawyer that Elian would be peacefully turned over.
In the interim, it is my hope that the proceedings in Federal court
will be expedited. I ask unanimous consent that the letters I wrote to
Attorney General Reno and President Clinton be printed in the Record at
the conclusion of my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. SPECTER. Mr. President, those letters set forth in some greater
detail the way those hearings can be expedited. When the Million Man
March occurred in 1998 in New York City, the Federal court ruled on
August 26, and the court of appeals took it up on September 1 and
issued a 9-page opinion the same day. In the Pentagon papers case, only
18 days elapsed from the publication of the papers until the case went
through the district court, the court of appeals, and the Supreme Court
of the United States. I renew my suggestion to the Department of
Justice to expedite those proceedings.
Ultimately, Elian will be returned with his father to wherever they
choose to go. I hope they will stay in the United States, but that is a
matter for the Gonzalezes to determine. Juan Miguel Gonzalez is the
father, having parental responsibility for the child, but these are
issues as to the use of this extraordinary force and what should be
institutionalized in the Department of Justice, which I think the
Congress should look into in oversight hearings, not to attach any
blame but to improve procedures and approaches for the future.
Again I thank my distinguished colleague from Arizona and yield the
floor.
Exhibit 1
U.S. Senate,
Committee on the Judiciary,
Washington, DC, April 21, 2000.
Hon. Janet Reno,
Attorney General, U.S. Department of Justice, Washington, DC.
Dear Attorney General Reno: I am deeply concerned about
reports in today's media that you may initiate action through
Federal law enforcement agencies to take Elian Gonzales from
the residence of his relatives in Miami and return him to his
father. My concern arises from the experience at Ruby Ridge,
a subject on which I chaired Judiciary
[[Page S2819]]
Subcommittee hearings and also on the Waco incident, on which
I am now chairing a Judiciary Subcommittee on Department of
Justice oversight.
In advance of any such action there are a number of
alternatives which could be pursued. For example, the Court
of Appeals for the 11th Circuit could be asked to expedite
the appeals process. There are many precedents for prompt,
expedited Circuit Court action such as that taken by the
Court of Appeals for the 2nd Circuit on the Million Man March
case in 1998. There, the District Court, by order dated
August 26, 1998, allowed the March for September 5 and the
Circuit Court heard arguments on September 1, 1998 and issued
a written opinion the same day.
Another option would be to ask the Court of Appeals for the
11th Circuit to hear the case en banc which could be
accomplished very promptly.
Yet another option is to ask the Supreme Court of the
United States to take the case and hear it on an expedited
basis which that Court has the authority to do at any time.
The Pentagon Papers were published on June 12, 1971. The
District Court issued a decision on June 19, the 2nd Circuit
heard the case on June 22 and decided the case on June 23.
The Supreme Court heard arguments on June 26 and decided the
case on June 30, 1971.
In a case involving the Iranian hostages, the Solicitor
General asked the Supreme Court for the United States for
certification before judgment on June 10, 1981. The Supreme
Court granted the request on June 11, ordered briefs within
one week, heard arguments on June 24 and decided the case on
July 2, 1981.
There is good reason to believe that the order of the 11th
Circuit three-judge panel will be reversed for a number of
reasons. One glaring error is that there is no basis for
asylum for Elian Gonzales since that relief is granted when
the individual faces persecution or some prospective ill
treatment upon his return, which is certainly not the case
with young Elian. If returned to Cuba, he will be the subject
of adulation, not mistreatment.
Before resorting to action to take Elian from his Miami
relatives, I urge you to seek a judicial order from the
United States District Court authorizing such action by the
Department of Justice. While perhaps not technically
necessary, such an order might well be persuasive enough for
the Miami relatives to turn Elian over voluntarily. Such an
order may also be persuasive so that others would not impede
Department of Justice action to take Elian from his Miami
relatives.
I am sending a copy of this letter to the President, and I
am sending you a copy of a letter I am writing to him.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, April 21, 2000.
Hon. William Jefferson Clinton,
President, The White House, Washington, DC.
Dear Mr. President: With this letter, I am enclosing a copy
of a letter which I am sending to Attorney General Reno
suggesting a number of judicial remedies before any action is
taken to return Elian Gonzales to his father other than
through a voluntary turning over of the boy by his Miami
relatives.
I am writing to you and the Attorney General without being
privy to any of the on-going negotiations, but only because
of my concern about what happened at Ruby Ridge and Waco
which involved incidents where I have been extensively
involved in oversight of the Department of Justice by Senate
Judiciary Subcommittees.
If there is to be any action taken by Federal law
enforcement officials other than a voluntary turning over by
the Miami relatives of Elian Gonzales, then I urge you to be
personally involved and to consult with experts in the field,
in addition to officials at the Department of Justice because
of the deeply flawed actions taken by the Department of
Justice at Ruby Ridge and Waco and in other law enforcement
judgments of the Attorney General.
As noted in my letter to the Attorney General, the hand of
the Federal Government can be considerably strengthened by a
District Court order authorizing the Department of Justice to
take Elian Gonzales from his Miami relatives and returned to
his father.
It may well be that taking the potential use of force off
the table would materially damage the Government's bargaining
position with the Miami Gonzales family; but if force is to
be used, it must be used with mature, measured judgment
contrary to what was done at Ruby Ridge and Waco.
Sincerely,
Arlen Specter.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I seek recognition under the 10 minutes
reserved on the Democratic side.
The PRESIDING OFFICER. The Senator is recognized.
____________________