Taking Inventory of the Elián Case

by Jonah Goldberg

The questions, the history and the law surrounding the Elián seizure.

By this point, everybody knows what happened.

On April 21st, President Clinton declared, “I think he should be reunited with his father. That is the law.”

On April 22nd, in the pre-dawn hours, an assault team swarmed a small house in Miami. They hosed tear gas into the faces of dozens of peaceful protesters maintaining a prayer vigil. Eight men with automatic weapons and gas masks stormed into the small home of private citizens, while a cordon of over a hundred more formed a perimeter outside. The pool cameraman, Tony Zumbado of NBC News, was immediately kicked in the stomach. His sound man was bludgeoned in the skull with the butt of a shotgun. The agents dragged the near-unconscious sound man outside and said, if you move we will kill you. They also told the residents of the house that they would be shot and killed if they moved or disobeyed. A federal agent reached for the shrieking Elian Gonzalez with one arm as he trained his automatic weapon with the other. The child, screaming “Help me!” and “What’s happening!?” in Spanish had a blanket thrown over his head, and was passed to a female agent.

This took place during negotiations between the Justice Department and the Miami relatives. The Justice Department had already sought a warrant to invade the home, long before the round of negotiations even began.

The whole operation took no more than three minutes.

THE QUESTIONS
Forty-eight hours later, we are left with more questions than answers. Why does it appear that a Rasputin-like lawyer for Fidel Castro (and Bill Clinton) seems to be dictating the foreign policy of the United States? Why does the President seem so determined to feed this boy to the Castro regime? Is there a deal? Was the assault team supposed to beat up members of the media to prevent the sort of damaging images Alan Diaz of the Associated Press managed to capture? Is Elian being drugged or brainwashed? Why did the INS choose to use such excessive force? Why now?

We already have partial answers to many of these questions, and you can find them elsewhere on this site and in the media.

But there are some questions that are unanswered. The most common are “how could this happen in America?”, “by what right can the government do this?”, and “What would Reagan have done?” Peggy Noonan has a persuasive answer to the latter question in today’s Wall Street Journal. But there is another question, which might seem obscure or pedantic at this stage. But as so many people are asking the other important questions, this is the one I keep asking.

WHAT WOULD EDMUND BURKE SAY?
It sounds like a crazy question; what does an 18th-century British political philosopher and statesman have to say about the post-Cold War deportation of a six-year-old boy to the last bit of Communist putrescence to be left undigested by history?

But whenever passions run high; whenever I am furious at something in the news, I find it useful to take inventory of first principles. Burke is the touchstone for modern conservatism; all proper traditions of the Right borrow from him. The Constitution, itself, is a manifestly Burkean document.

Burke loved the American Revolution, despised the French Revolution, staunchly admired the monarchy and opposed the British East India Company. But, as Robert Nisbet has observed, there is one common denominator to Burke’s positions. All of his life, Burke opposed what he called the “arbitrary use of power.” For a conservative, there is absolutely nothing wrong with exerting force and power in a just cause. But that cause must be rooted in the law and in the implied consent of the people. To arbitrarily employ the power of government to further the narrow aims of selfish men is the definition of tyranny. Such exertion is the aphrodisiac of power.

When I see storm-troopers enter the homes of peaceful American citizens in an effort to further the President’s own agenda, I think of Burke’s observation that “power gradually extirpates from the mind every humane and gentle virtue.” When it becomes readily apparent that Castro, Clinton, and Craig are colluding with the help of a pliant media (would the press yawn at a lawyer who worked for Reagan and Pinochet?), to demonize the Cuban-American community, I recall Burke’s observation in Thoughts on the Cause of the Present Discontents. He wrote: “When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle.” When I hear the parade of fools, power-voluptuaries, and apologists for state-sanctioned murder explain that Cubans really want to live under the evils of Communism, I think of Burke’s 1784 speech in which he declared that “the people never give up their liberties” except “under some delusion.”

WHOSE LAW?
Later in the morning of the siege, a few minutes past 11 AM, the President of the United States walked out of the White House to meet reporters. “I felt strongly,” he explained, “that the law had to be upheld and that Elian had to be reunited with his father. And every conceivable alternative was tried for quite a long time. And so I think she did the right thing, and I’m very pleased with the way she handled it.”

Clinton has been at pains to say that his hands were tied. The “rule of law” determined what should happen here. Indeed, Joe Lockhart today blamed the Miami family for the siege: “This happened because the family did not respect the legal process here that dictated the father should be reunited with the young boy.”

The problem is that the “law” or “legal process” in this case is actually presidential whim. The law does not say resolutely that Elian had to go back with his father. If it did, how could the administration have originally ruled the opposite? Was the INS defying the law when it ruled on December 1, 1999, that the issue must be resolved in Florida’s family courts? Was that why the State Department took over this case, because the fatwa of the president of the United States and the diktats of a Cuban dictator are more legitimate than a State court? Are Greg Craig’s desires more pressing than the Democratic process of the state of Florida?

Yes, the administration has always had the power to decide Elian’s residency status. But such decisions are not the rule of law. They are the product of presidential policy, and such policies are subject to review and reversal, according to the Constitution. Yet, this administration has argued that their policies are synonymous with irrefutable black-letter law. Therefore, defiance of administration policy is the same as being a criminal. When confronted with the fact that the law, as determined by the US Court of Appeals for the 11th circuit, was not on their side, this administration sent armed soldiers into a citizen’s home. The President did not exhaust “all alternatives,” he exhausted all the alternatives that were in his interest. Once those expired, he consented to the violent betrayal of people negotiating in good faith.

It is important for conservatives to understand the distinction here. If Reagan were president, he would probably say this kid ain’t going back to a Communist country. This, too, would be the discretion of the executive branch at work. But Reagan wouldn’t deceive the American people by saying “my hands are tied.” He would say: “This is where I stand.” His position would not be muddled by the devious lies of false legalisms. President Clinton has taken just as brazen a position as Reagan would have (although with the exact opposite intent — appeasing Communism). But Clinton has been cowardly, meek, and dishonest. He has refused to admit what he has been doing. He has been hiding behind lies and legalisms and Janet Reno’s skirts. Indeed, his Attorney General has trumped Clinton’s “confusion” of the meaning of “is” by claiming a gun pointed at a child is not pointed at a child if the trooper’s finger is only a quarter of an inch from the trigger.

Sadly, this is not the first time, it is not even the tenth time, this administration has shown its own contempt for the true rule of law. The president himself lied to the courts on several occasions. His administration has hidden evidence from Congress. It has defied subpoenas. It claimed that the President’s private, possibly criminal, behavior was protected from legal inquiry through executive privilege. The White House invented a fictitious privilege, asserting that its own praetorian guard of Secret Service agents was exempt from giving testimony about material evidence. When asked about his violation of the Privacy Act, President Clinton responded recently, “I never thought … about whether [the Privacy Act] applied or not. It was the only way I knew to refute allegations against me.” The Clinton administration has willfully defied the Constitution by appointing government officials without the required consent of the Senate. The Vice President has defended his crimes by saying there is no controlling legal authority for the Executive Branch. Think about that. The president blew up aspirin factories for purposes emanating from his pants.

This President is entirely comfortable with the arbitrary use and abuse of his own power. When he says “the rule of law” he really means “I am the law.” The next time you listen to a clip of the President saying, “I think he should be reunited with his father. That is the law,” imagine a King, or better yet Castro, saying such a thing. Because that is the essence of what he is saying. The President of the United States is saying that the rule of law is synonymous with the rule of Clinton. And if that is the case, than Dickens was right and the law is an ass.