Gestapo Tactics

  The picture has been burned into our national consciousness: A flak-jacketed commando, pointing his gun. A terrified child, clinging to the man who had fished him out of the sea five months before. It's been almost a week, and I for one still can't believe it happened: Government agents armed with guns, mace, and tear gas, breaking down the door of an American home—the most chilling example of excessive government power I can remember. In the wake of this, Americans ought to be, and are, asking some hard questions. One is over timing. The Justice Department claimed the raid was necessary because negotiations with Elián's relatives had broken down. But the negotiations were going on seconds before the SWAT team battered down the front door of the Gonzalez home. The second question is the grave one: whether the rule of law has been violated. Two of our country's most liberal lawyers—both Harvard professors—Alan Dershowitz and Laurence Tribe, had the courage to speak out this week, both saying the Justice Department abused its power—that in fact it was without proper legal authority to break into the Gonzalez home. As Tribe argues in the New York Times, under the Constitution, the executive branch has no unilateral authority to force its way into private homes and remove innocent people without first obtaining a proper court order. Why didn't the government do it? It tried, and was turned down by the 11th Circuit Court of Appeals, which three days earlier held that Elian was entitled to a hearing on his asylum application and that he couldn't be removed from the country. As Dershowitz writes in the Los Angeles Times, instead of risking another turn-down by a federal district judge, the Justice Department "issued its own order and imposed its own deadlines"—orders and deadlines that were illicit because they had not been backed up by a judge. The warrant the government did rely on was merely a search warrant, obtained on the grounds—patently false—that Elián was a concealed person. This is the very thing our Founding Fathers feared most—the idea that a too-powerful central government would feel free to violate the civil rights of citizens. Christians ought to take particular offense because the rule of law came about as a result of Christian doctrine. In the 1600s, Scottish cleric Samuel Rutherford wrote the classic book Lex Rex, which means "the law is king." He asserted that the law stands above the king, and the king is subject to the law like everyone else. Rutherford's ideas profoundly influenced our Founders, who determined that American citizens would be ruled, not by men, but by law. Last week we saw what America looks like when men, not the law, rule. Armed officers breaking down doors, assaulting reporters, ransacking a private home, and seizing an innocent child. One wonders what would have happened if the Gonzalez family had offered any resistance. Elián might have been killed. If the rule of law was violated, as Dershowitz and Tribe argue, we must demand that Congress hold those who ordered this raid to account. For this question is much bigger than Elián's fate. It goes to the very nature of our free society, and whether any of us are secure in our homes.  

04/28/00