[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.

                          ____________________