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Thursday April 27, 2000; 11:38 PM EDT

Napolitano: 'Indict Reno for Kidnapping'

Florida Governor Jeb Bush should convene a grand jury and attempt to indict Attorney General Janet Reno for Saturday's gunpoint abduction of six-year-old Cuban refugee Elian Gonzalez.

That's the opinion of former New Jersey Superior Court Judge Andrew Napolitano, who made the shocking assertion Thursday night on Fox News Channel's Hannity & Colmes.

Arguing that the Justice Department had gone far beyond what the law allowed in the Gonzalez case, Napolitano told Fox:

"The search warrant was unlawful. The seizure of the boy was in direct violation of the 11th Circuit Court of Appeals. And Jeb Bush should go before a grand jury in Florida and ask that Janet Reno be indicted for kidnapping."

Since last Saturday's pre-dawn raid, Napolitano has become one of Reno's more outspoken legal critics. On Wednesday he penned a forceful op-ed piece for The Wall Street Journal entitled, "Reno's Raid Was Based on Tissue of Lies."

But Napolitano reserves his strongest rhetoric for the talk show circuit, where his arguments often defy conventional legal wisdom.

Nationally syndicated radio host Lowell Ponte cited one of Napolitano's more remarkable Elian case insights in his Monday column for Front Page Magazine Online (See: Search and Seizure)

Noting that the INS appointed Elian's great-uncle Lazaro Gonzalez to be the boy's legal guardian and that Lazaro has already applied for Elian's asylum, Ponte wrote:

"As veteran Judge Andrew Napolitano has observed, under federal law and INS regulations, once such an asylum claim is filed, the INS and Justice Department lose all power to remove the original guardian. If they could do this, the government could deny any asylum application a fair hearing merely by assigning a new and unfriendly guardian to his case."

If the judge's argument turns out to be legally sound, it could have devastating implications for the Clinton administration. For instance, it would make the Justice Department's gunpoint abduction of Elian a gross violation of the law and perhaps provide the foundation for the kidnapping indictment Napolitano envisions.

The former Superior Court Judge, who now teaches constitutional law at Seton Hall Law School, made the same case Wednesday on Sean Hannity's New York radio show:

"The federal court had already ruled that (Elian) was lawfully in the house. Why? Because the INS chose Lazaro as the guardian. And the INS designated the place for the boy to live -- in Lazaro's house. Now the INS attempted to change that. But they made the mistake of attempting to change the idenitity of the guardian and the place of the boy's residence after the application for asylum was made.

Napolitano continued:

"If they had made that change before Lazaro and Elian filed an application for asylum, they could do it. But once the application for political asylum has been made, the INS loses its power to change the identity of the guardian and the place of residence for the boy."

Obviously, the Clinton gang doesn't see it that way. But if the courts concur with Napolitano, the Elian Gonzalez case could turn out to be the most prosecutable of all Clinton administration scandals.

-- ... (...@...com), April 28, 2000

Answers

Can someone please correct me if I'm wrong here? I thought that Lazaro et. al. were told to give up Elian to his father ~8 days before they raided the place WITH a warrent. If this is true, WHY are people still debating this?

The kid's father has him, let them go back to Cuba.

Frank

-- Someone (ChimingIn@twocents.cam), April 28, 2000.

Frank -

People are still debating this because many think something is VERY WRONG here.

-- Debra (Istillhavemany@questions.com), April 28, 2000.

---

NEWS

Posted Monday, April 24, 2000, in the Miami Herald Internet Edition INS Documentation for the removal of Elian Gonzalez Copy of the signed search warrant Application for search warrant Motion to seal application and affidavit until after execution Page 1 | Page 2 Affidavit for search warrant Page 1 | Page 2 | Page 3 | Page 4 | Page 5 | Page 6 | Page 7 | Page 8 Supporting memorandum Page 1 | Page 2 | Page 3 | Page 4 | Page 5 Government Exhibit A Order to appear | Arrival record Government Exhibit B (Letter to Lazaro Gonzalez dated Jan. 5, 2000) Page 1 | Page 2 Government Exhibit C (Letter to Miami family attorneys dated Jan. 12, 2000) Page 1 | Page 2 | Page 3 | Page 4 Government Exhibit D (Letter to Lazaro Gonzalez dated April 12, 2000) Page 1 | Page 2 Government Exhibit E (Letter to Lazaro Gonzalez dated April 14, 2000) Page 1 Government Exhibit F (Warrant for arrest of Elian) Page 1

-- Read the legal docs (@ .), April 28, 2000.

Debra- Many people think something is wrong here??? Over 75% of the citizens in this country agree with what has happened, the returning of this child to his father.... There is NO sympathy for those scummy Miami relatives who *extended* this sad affair by 4 1/2 months too long! Nobdy cares anymore...Not even the courts care as they have just handed the Miami scum a stinging defeat!

-- Rob (celtic64@inficad.com), April 28, 2000.

The only thing wrong on this day,

Are the morons like Debra that bray.

That Family is bad,

Now the boys with his Dad,

And the Feds did a good thing I say!

BTW, this Napolitano asshole is just another scumbag opportunist making a buck by doing the talk shows. And the Mayor of Miami should be arrested and prosecuted for abuse of power. We better take that city back from the Cubans while we can.

-- Ra (ton@l.1), April 28, 2000.

How does it happen that some information gets placed beyond the submit button? I'll spend a little time looking into Napolitano this morning and let y'all know what I find.

-- Anita (Anita_S3@hotmail.com), April 28, 2000.

Trying something.

-- (hmm@hmm.hmm), April 28, 2000.

Looks like it worked.

By the way, I didn't really post that Miami Herald stuff above, even though it looks like I did.

-- (hmm@hmm.hmm), April 28, 2000.

Hmmm, thanks for fixing this thread. I could not fix it with the editor, the errors in tags also broke the thread in the edit funtion. I couldn't figure out what "Read" had done wrong. I see now what you did when I look at view source.

This forum software is most quirky at times, now I can't figure out why the code "Read" put in appears on your post.

I will try switching the tags you used to fix it with into "Read"s post. If that screws things up more or deletes anything, I apologize in advance. I need to experiment and learn how to fix this particular html problem, as it crops up often.

-- Olf TB2K Forum Regular (freespeech@yahoo.com), April 28, 2000.

It worked! Thanks again for your help, Hmmm.

-- Old TB2K Forum Regular (freespeech@yahoo.com), April 28, 2000.

Glad to help.

-- (hmm@hmm.hmm), April 28, 2000.

Purest crock.

Tell you what. You get in some trouble, and go before a judge two or three times, and then another judge signs a warrent for your house to be raided. TRY getting off because the first judge isn't the one to sign the warrent. NOT A REQUIREMENT, NO WAY, NO HOW.

You don't like Castro? Cool. I think the man has been crazy for years, myself. WTF has that got to do with this case?

If I was leaving the US to live in Albania, would you try to take custody of my kids? How about Iran?

No, I don't think you would. And the same goes for my relatives in KY.

If you don't realize the kid has become a political football FOR THE CASTRO HATERS IN MIAMI, I feel sorry for you. And I don't blame Reno one bit for yanking the kid out of the place when the 'dolphins sent by God' horseshit started moving front and center. That stuff draws out the crazies in droves, and pretty soon somebody decides to save the kid by killing him.

-- Paul Davis (davisp1953@yahoo.com), April 28, 2000.

For whatever reason, Janet Reno has done some very dumb things in the past which got her lots of deservedly bad press. This isn't on of them. My only complaint in this Elian business is that she should have sent the goons in a long time ago.

JOJ

-- jumpoff joe (jumpoff@echoweb.neet), April 29, 2000.

It's interesting to me that Andrew Napolitano seems to be the only person that Newsmax and WND can conjure that concurs with their opinions. He's fairly unknown, as I learned when I attempted to explore his history a few days back. It seems he DID back Kenneth Starr during Starr's investigations into the administration. I couldn't find anything to indicate whether his role was official or simply as a muppet in the peanut gallery.

It seems that many others disagree with his conclusions, however:

On the legality of conferring U.S. citizenship on six-year-old Cuban boy Elian Gonzalez JURIST Forum is an occasional series in which law professors offer their views on topical issues. In this edition, a letter to U.S. Senator Christopher Dodd on the legality of conferring U.S. citizenship on six-year-old Cuban boy Elian Gonzalez. Readers are invited to respond using this form, or by e-mailing JURIST@law.pitt.edu. Commentary

The Honorable Christopher Dodd United States Senate Washington, DC 20515

Dear Senator Dodd:

You have requested a legal opinion regarding proposed legislation that would grant citizenship to Elian Gonzalez, the six year old Cuban boy. We teach in the fields of constitutional, family, immigration, and human rights law at Yale Law School, New York University School of Law, University of Pittsburgh Law School, University of California, Hastings College of Law and American University, Washington College of Law, and offer this response.

As we explain below, respect for family integrity is a basic principle of U.S. law, enshrined in our Constitution, statutes, and regulations. The Supreme Court, the Executive Branch and the Congress have all emphasized the importance of parental rights, the importance of family reunification, and the right of parents to choose where a child will live and his citizenship. Legislation granting a six year old child citizenship, against the wishes of his father, a father whom the Immigration and Naturalization Service has determined has the legal right to speak for his son in immigration matters, is unprecedented and would involve Congress in family matters that are traditionally protected from government invasion. We conclude that it would be unconstitutional, contrary to U.S. immigration law and congressional rules, and a serious interference in the parent-child relationship for Congress to grant Elian citizenship without the consent of his father.

1. Imposing citizenship on Elian Gonzalez without the consent of his father Juan Gonzalez would be an unconstitutional interference with the parent-child relationship.

Granting Elian citizenship would interfere with the parent-child relationship, a relationship that the Constitution has long protected against government usurpation, disregard, or disrespect. Our courts have repeatedly stated that a parent s desire for and right to the companionship, care, custody and management of his or her children is a fundamental right under our Constitution and can be disturbed only in the most egregious of circumstances. The rights to conceive and raise one s children have been deemed essential, basic civil rights of man. This constitutionally protected parent-child relationship includes the right to determine where [the child] will live during his minority and of what country he will be a citizen of while he lives there. Not only will granting citizenship to Elian interfere with the parental right to determine the political system he owes allegiance to, but it will have a divisive impact on family relations as it will be the predicate for further government action.

Legislation conferring citizenship on Elian would directly invade the private interest here, that of a man [Juan Gonzalez] in the children he has sired and raised. Elian s father has made clear his choice for his family and his son he wants his son to live with him, in Cuba, as a Cuban citizen, and does not desire that the boy live in the United States as a U.S. citizen. As his grandmother recently said: No one has a right to make him an American citizen. He was born in Cuba. He lives in Cuba. He s a Cuban.

The wishes of a father for his child the country in which he is to live and be a citizen of are constitutionally protected and must be respected. Only unequivocal proof that the natural parent cannot or will not provide a normal family home for the child can override the parent-child relationship protected by the Fifth Amendment to the Constitution. No such proof exists here. After U.S. officials conducted lengthy and private interviews of Mr. Gonzalez in Cuba, INS Commissioner Doris Meissner determined that there is no question that Mr. Gonzalez is Elian s father, that Mr. Gonzalez has a close and continuous parental relationship with his son, and therefore that Mr. Gonzalez has the sole authority to speak for his son on immigration matters. INS also determined that there was no credible information indicating that the child would be at risk of torture or persecution if returned to his father. In these circumstances to override the decisions the father has made for his son and family, would be contrary to the family values that this country has deemed essential since its founding.

2. Imposing citizenship on Elian Gonzalez without his father s consent would violate the right of every individual to determine his own citizenship.

Under the U.S. Constitution individuals have the right to determine their own citizenship; imposed citizenship (other than at birth) is an interference with fundamental constitutional rights. This has always been the position of the U.S. government: No person should have the nationality of a foreign country forced upon him after birth without his consent.

Our country s rejection of imposed nationality originates from its interference with an individual s fundamental liberty interest to determine his or her own citizenship. That interest is constitutionally protected. Citizens have a constitutional right to voluntarily relinquish their citizenship, cannot be constitutionally punished by forced denationalization, and cannot relinquish their citizenship except through voluntary actions. So too, the forced acquisition of new citizenship for Elian would carry with it new obligations, such as military service, and new burdens, such as the restrictions on travel to Cuba for U.S. citizens. New citizenship also often removes or weakens the diplomatic protection afforded by the person s prior citizenship, and involves an important aspect of personal self-definition. Those substantial individual interests and obligations cannot be made subject to government compulsion by forced citizenship.

Nor is there any argument that the great uncle has the legal right to give his consent for Elian to become a citizen. The Attorney General and INS Commissioner have already determined that Mr. Gonzalez alone may speak for the child, and that he desires his son s immediate return to his home in Cuba. That is the father s right, according to the Attorney General and federal law. Elian was merely placed in the temporary physical care of his great uncle by the Attorney General; it is a placement that can be revoked by her at any time and gives the great uncle no right to speak on Elian s behalf with regard to such matters as his citizenship. Elian is still considered to be in the legal custody of the Attorney General; she has determined that Elian belongs back with his father and that it is he who can speak for his six year old son.

The Florida State court order provides the great uncle with no additional right to consent to citizenship on behalf of Elian. As the Attorney General said, the question of who may speak for a six-year- old child on asylum and immigration matters is a matter of federal law. [T]he Florida court s order has no force or effect insofar as INS s administration of the immigration laws is concerned. In these circumstances, the only person who can speak for Elian is his father. He has spoken. To impose citizenship upon Elian in these circumstances is unconstitutional.

3. Imposing citizenship on Elian Gonzalez without his father s consent would flout the principles of family integrity codified in the naturalization statutes.

Like other areas of American law, our country s naturalization statutes respect the fundamental, constitutional rights of parents to raise their children without government interference, including deciding the citizenship status of their minor children. Congress has crafted these naturalization statutes to ensure that family integrity is accorded paramount significance. To impose citizenship on Elian would flout these constitutional principles and their longstanding incorporation by Congress into the naturalization statutes.

It is plain that under the naturalization statute and its implementing regulations, Elian is far too young to make an independent application for naturalization in his own right. Rather, children are eligible to naturalize only on a derivative basis, upon the successful naturalization application of their natural or adoptive parents. There is absolutely no provision in the naturalization statutes for another relative, such as a great-uncle (even one granted temporary custody), to arrange for the naturalization of a child. In fact, the naturalization statutes specifically address Elian s situation, providing a single path to citizenship for him: a child under 18 years of age and born outside the U.S. to two alien parents automatically acquires U.S. citizenship upon the naturalization of the surviving parent if one of the parents is deceased.

Under the naturalization statutes, Elian is too young to apply for citizenship in his own right, and may acquire U.S. citizenship only if Mr. Gonzalez himself were to file a successful application for naturalization. No other relative can seek to convert Elian s citizenship. This statutory scheme is the product of wise legislative choices, but it is also grounded in the Constitution, which recognizes the basic parental right to raise one s children, and shields that right from governmental attack. Imposing citizenship on Elian without his father s consent would flout the naturalization statutes and violate the Constitutional protections they codify.

4. Imposing citizenship on Elian Gonzalez without his father s consent would flout House and Senate rules governing private bills.

Like the naturalization statutes, House Rules governing private bills recognize and incorporate the powerful constitutional protections afforded the parent-child relationship. For example, these Rules require a signed statement by each beneficiary, or the beneficiary s guardian, that he or she desires the relief sought by the bill (emphasis added). Granting Elian Gonzalez citizenship without the consent of his father flouts House Rules regarding private immigration bills and violates the constitutional principles upon which the Rules rest. Although it may be true that House Rules can be overridden by vote of the House itself, this rule is not a mere rule of procedure, but one of substance that reflects the constitutional requirements outlined above that it is only the parents (and perhaps a legal guardian) that can request citizenship on behalf of their minor child. Ignoring the House Rule that requires a guardian s consent would violate the constitutional due process rights of both Elian and his father and would be unconstitutional.

In addition, House and Senate Rules require that all administrative and judicial proceedings regarding a beneficiary s immigration status be completed before a private bill is considered. Congress has recognized by this Rule that extra-legal remedies should be a course of last resort. This is to insure the rule of law, that Congress is given the benefit of judicial rulings and that it is not burdened with bills presenting issues that may be remedied in courts. At present Elian Gonzalez is the subject of two court proceedings in Florida one in federal court and the other in state court. Although in our view the Attorney General is not required by law to await the outcome of further judicial proceedings before implementing her decision to return Elian to his father, nevertheless she has announced that she will do so. No private bill should even be considered until these proceeding are concluded.

Finally, Senate Rules mandate that no private bill may be given favorable consideration until appropriate Executive Branch departments have prepared and submitted a report to the Subcommittee, and establish a scheduling rule that private bills be considered in chronological order of their introduction, except that priority shall be given to bills introduced earliest in any previous Congress. These rules ensure the orderly consideration of private bills as well as coordination with executive branch agencies charged with, among other things, management of foreign affairs. An immediate vote on a private bill imposing citizenship on Elian Gonzalez would defy the ordinary Senate rules, disadvantage beneficiaries of other proposed legislation, and deny members the benefit of the Executive branch s view of the proposed private bill.

5. Conclusion

In our opinion, private legislation purporting to confer U.S. citizenship on a six year-old boy, contrary to the unambiguously expressed desires of his sole surviving parent, would be unlawful. Such legislation would violate constitutional protections of the parent-child relationship and the right of an individual to determine his own citizenship. It would also flout the codification of these basic constitutional principles in U.S. naturalization statutes and congressional rules.

Michael Ratner - J. Skelly Wright Fellow, Yale Law School Jules Lobel - Professor, University of Pittsburgh School of Law Michael Wishnie - Assistant Professor, New York University School of Law Martin Guggenheim - Professor, New York University School of Law Sylvia Law - Professor, New York University School of Law Richard Boswell - Professor, University of California Hastings College of Law Peggy Cooper-Davis - Professor, New York University College of Law Leti Volpp - Assistant Professor, Washington College of Law, American University

January 24, 2000

-- Anita (Anita_S3@hotmail.com), April 29, 2000.