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Carta de Cuba, la escritura de la libertad |
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Debido a la importancia del caso, reproducimos el texto integro del artículo. Estamos haciendo gestiones para traducir el mismo. El Dr. Laurence Tribe es considerado actualmente la principal autoridad en derecho constitucional de los Estados Unidos. The New York Times, April 25, 2000 Justice Taken Too Far By LAURENCE H. TRIBE Some are wildly comparing the armed
seizure of Elián González to the
roundup of innocents by the Gestapo.
Others think Attorney General Janet Reno
showed admirable patience in dealing
with a group of zealots using the boy as
a pawn in its war with Fidel Castro.
But the partisan squabbling over these
caricatured views threatens to obscure a
vital question: Where did the attorney
general derive the legal authority to
invade that Miami home in order to seize
the child?
The fact is, even on the assumption
(which I share) that under applicable
legal and moral principles Elián should
ultimately be reunited with his father,
the government's actions appear to have
violated a basic principle of our
society, a principle whose preservation
lies at the core of ordered liberty
under the rule of law.
Under the Constitution, it is axiomatic
that the executive branch has no
unilateral authority to enter people's
homes forcibly to remove innocent
individuals without taking the time to
seek a warrant or other order from a
judge or magistrate (absent the most
extraordinary need to act). Not only the
Fourth Amendment but also
well-established constitutional
principles of family privacy require
that the disinterested judiciary test
the correctness of the executive
branch's claimed right to enter and
seize.
Although a federal court had ordered
that Elián not be removed from the
country pending a determination of his
asylum petition, and although a court
had ruled that the Immigration and
Naturalization Service could exercise
custody and control of Elián for the
time being, 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. The agency had
no more right to do so than any parent
who has been awarded custody would have
a right to break and enter for such a
purpose. Indeed, the I.N.S. had not even
secured a judicial order, as opposed to
a judicially unreviewed administrative
one, compelling the Miami relatives to
turn Elián over.
The Justice Department points out that
the agents who stormed the Miami home
were armed not only with guns but with a
search warrant. But it was not a warrant
to seize the child. Elián 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.
To be sure, our courts have allowed
immigration officials to obtain areawide
warrants to search workplaces for
illegal aliens, and Congress has by
statute empowered immigration officials
to search, interrogate and arrest people
without warrants in order to prevent
unlawful entry into the country. But no
one suspects that Elián is here
illegally.
In fact, it's hard to see any
significant immigration-related or other
federal interest in whether Elián was
reunited with his father now or after
asylum is denied (if that is the
outcome). And, should asylum be granted,
Elián's father might still be granted
custody and could then take the boy to
Cuba with him if he so chose; asylum
only means permission to stay in the
United States and is not a requirement
to stay.
Either way, Ms. Reno's decision to take
the law as well as the child into her
own hands seems worse than a political
blunder. Even if well intended, her
decision strikes at the heart of
constitutional government and shakes the
safeguards of liberty.
Laurence H. Tribe is a professor of
constitutional law at Harvard.
Copyright 2000 The New York Times Company |