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Was Elian's Arrest Warrant
(04/21/00)Valid?
The
US Senate's Brian Darling firmly believes that the arrest
warrant is based on a seriously faulty assumption. Darling
points out that the arrest warrant says that Elian was "within
the country in violation of immigration laws and is
therefore liable to being taken into custody." Yet,
two days prior to the boy's seizure by federal agents
(and one day prior to the arrest warrant being issued) the Federal
Court of Appeals for the 11th Circuit had ruled [a pdf
file] that Elian must be kept in the
US pending his May 11, 2000 court date. Senator Darling asks how
Elian could be illegally in the US one day after a federal
court ruled that he must remain in the country.
Department
of Justice counsel to Deputy Attorney General Eric
Holder, Brad Glassman, disagrees with Darling's
analysis. Glassman responds that "courts stay
departures from the United States regularly, but that does
not change the underlying status of the person's presence
here in this country. The court specifically declined
to rule on the custody issue." His point: just
because an alien is scheduled to appear before a judge does
not mean that the alien is in this country legally.
Yet, arresting Elian because he is in this country illegally
does not seem to serve an obvious purpose if the boy
is due to appear in court within a few weeks anyway, and
that very court has mandated his continued presence in the
country. In addition, it would be interesting to know
if other such arrests take place because the alien is in
hiding, and refusing to turn himself over to the court's
jurisdiction, rather than the opposite case in which the
alien himself petitions the court for redress, as Elian has
done in this case.
Another
Justice Department official, speaking on background, stated
that the agency did not need the arrest warrant to seize
Elian from his relatives. According to the language of
the search warrant, the INS was authorized to search Lazaro
Gonzalez's residence for Elian, "and if the person or
property be found there to seize same." Though,
this being true, it remains unclear why the INS sought and
received an arrest warrant if one was not needed.
Additional
criticism comes from a recent article in the New York Times
by Laurence H. Tribe, a noted professor of
constitutional law at Harvard. Along with most noted
constitutional experts, he disagrees with Justice's
analysis. "It
was not a warrant to seize the child," writes
Mr. Tribe. "Elian
was not lost, and it is a semantic sleight of hand to
compare his forcible removal to the seizure of evidence,
which is what a search warrant is for."
Does
a Faulty Arrest Warrant Jeopardize the Search Warrant?
Senator
Darling further argues that if Justice was incorrect in seeking
an arrest warrant on the (above noted) false grounds, that
Elian was then in the US illegally, this necessarily also calls into
very serious question the legality of their search warrant, as its
issuance was based in part on the opinioned-faulty arrest
warrant.
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