Senators and representatives of both parties have expressed outrage over the night raid that separated Elian Gonzalez from his Miami relatives and his lawyers, and the Senate has planned hearings about it. But, in stark contrast to its vivid rhetoric, Congress is avoiding using a powerful tool at its disposal that could bring Elian and his relatives together and gain information on a number of vital questions the subpoena, an order that can be drafted by any congressional committee for a person to appear to help with its investigations. Once a subpoena is issued, it has to be obeyed.
A congressional committee holding hearings on the issue could subpoena Elian Gonzalez, Juan Miguel Gonzalez, and/or the Miami relatives to come to either a closed or open session to hear what they have to say. On March 29, on CNN, Rep. Robert Menendez, Democrat of New Jersey, specifically cited the subpoena option, and said, “I would urge the majority that has all of those powers to consider any or all of them so that the child ultimately has his … due process.”
Such a subpoena is completely legal, and is justified by the circumstances. We have the unusual case of a plaintiff whose application for an asylum hearing was upheld by the 11th U.S. Circuit Court of Appeals. Elian Gonzalez has been forcibly separated from his lawyer and his previous government-appointed guardian, a U.S. citizen, using U.S. government resources. The only people whom the Immigration and Naturalizatoin Service (INS) allows to see him, besides his father’s lawyer Gregory Craig, are from Cuba, the country from which he is seeking asylum.
The founding fathers gave the U.S. three branches of government precisely so that atrocities of this sort would be minimized. With the executive branch removing the child’s rights, the congressional branch has the power to restore them by renewing his contacts with his American family. The third branch, the judiciary, has already weighed in with a strong statement from the 11th Circuit forbidding anyone to allow Elian to be taken to homes or offices of Cuban diplomats. The judge’s statement has not prevented the INS from importing numerous Cuban visitors to see Elian.
Some may argue that after Elian’s gunpoint experience with the INS a subpoena to come before senators or representatives may cause further trauma. However, a visit to the U.S. Capitol would come during the day, not at night, and the trip would proceed in a quiet and orderly manner. He could be accompanied by his father, and he would be able to see the relatives with whom, as photos document, he spent so many happy hours. By now he may very well be tired of playing soccer with his father and friends and want a change of scenery.
Congress also has the power to subpoena documents relating to the raid, to find out who organized it and who was directing the negotiations. Congress could ask for phone records and correspondence between Gregory Craig and the White House and Cuba. Whereas Mr. Craig might stall at responding to subpoenas, telephone companies are in possession of records of calls and can deliver this information promptly. Congress could obtain from the National Security Administration transcripts of the conversation between Juan Miguel Gonzalez and the Miami relatives when Elian was first rescued, to see if the father’s first reaction was to allow his son to stay or to get him back.
What has been lost in the Elian saga is how his plight is common yet his treatment is uncommon. Every year, hundreds of thousands of people from around the world come to the United States without proper papers or stay beyond visa limits, and the INS process can vary from days to years. Temporary stays turn into semi-permanent relationships. Delay and endless litigation are the norm, and there are countless custody issues with relatives in other countries. None of these make headline news or warrant a visit from the attorney general.
Elian’s exodus from Cuba is an extraordinary saga, but his plight as an immigrant should be all too ordinary. Yet his treatment by this administration has been anything but normal. For the first time in history, the attorney general has focused on a zealous and discriminatory application of one law. SWAT teams have never before been used to take custody of 6-year-olds from unarmed relatives. Before President Clinton, all Cubans reaching U.S. territories had automatic asylum.
Why has the administration been held hostage to the immigration paper mill of one 6-year-old boy? Why has the administration made extraordinary efforts on behalf of Fidel Castro, after first saying that the incident was a matter for the Florida family courts, when the best the administration can muster for hundreds of thousands of other would-be immigrants both legal and otherwise is benign neglect? Why was the normal neglect not followed in the case of Elian? These are all questions that Congress could answer through subpoena power.
While Congress shirks the power that it has, the administration is using power that it does not have. In order to get the search warrant to enter the Gonzalez residence, the INS falsely informed the magistrate that Elian was an illegal alien, hidden in the home and “unlawfully restrained.” Professor Laurence Tribe wrote that “no judge or neutral magistrate had issued the type of warrant or other authority needed for the executive branch to break into the home to seize the child.” Constitutional law expert Alan Dershowitz said that “this is an end run around the Constitution. What they did was improper and unlawful.”
It is up to Congress to find out the facts of the case and rectify injustice by using the tools that they have. The founding fathers would expect nothing less.
Diana Furchtgott-Roth is a resident fellow at the American Enterprise Institute.