Eric Rasmusen, Indiana University, Dept. of Business Economics and Public Policy, Kelley School of Business, Room 456, 1309 East Tenth Street, Bloomington, Indiana 47405-1701, (812)855-9219. [email protected] , Php.indiana.edu/~erasmuse.
Evidence is:
(1) No warrant was left at the house, as required by law to avoid the issue of backdating.
(2) The Justice Department didn't mention the existence of a warrant till the next day and did not show it to anyone till late the next night. (3) The day after, Eric Holder of the Justice Dept. clearly showed by his public comments he didn't think there was search warrant or that one was needed.
(4) The Clinton Justice Department already has a reputation for political cover-ups, in many different cases. (5) The documents backing the warrant seem hastily drawn up.
This would be a serious crime on the part of Magistrate Dube and the INS, but a tempting one. If the INS was supposed to have a warrant and didn't get one, the organizer of the raid might well lose his job. If higher authorities are involved, a federal magistrate might well be promised future favors--perhaps even a judicial appointment. I do not know anything about the particular individuals involved, but I have no reason to believe that they are more trustworthy than the average policeman, and while I have more faith in the police than most people do, I know they are often tempted and sometimes do tamper with documents.This case would involve easy rationalization (it is just a technicality, a backdating), low probability of detection, and high rewards for the tamperers.
More specifically, here are the suspicious things:
1. Reno's number two man, Eric Holder, clearly did not think there was a search warrant in his press interview the Sunday after the raid. He did not mention it Monday morning either.
2. Janet Reno did not mention any search warrant till Monday night. (The first mention is Sunday morning, by Doris Meissner of the INS.)
3. Elian's attorney, Kendall Coffey, an experienced prosecutor who was in the house at the time of the raid, said that no warrant was presented. A Miami Herald report says the raiding INS agents left behind only a helmet and an empty pepper spray container. On the warrant it says specifically, in the regular boilerplate, that a copy must be left with the person whose house is searched.
4. Coffey, and Representative DeLay publicly complained about lack of a search warrant on Saturday. Late Sunday night, the search warrant appeared publicly.
5. The search warrant was dated Friday, 7:20 p.m., and signed by Magistrate Robert Dube. The government chose to do this on the evening of Good Friday when only a magistrate was available, and when it would be difficult for him to ask advice, rather than ask a district judge, presumably better informed as to the law, to sign it.
6. The affidavit supporting the search warrant applicant seems hastily drawn up-- it has a mistake about when parole was withdrawn from Lazaro Gonzalez, for example. The government case is also sloppy in its very light emphasis on the arrest warrant for an illegal alien that would seem to be its strongest justification. Instead, it argues that Elian is like a kidnap victim, unlawfully restrained. This is good public relations, but bad law, the kind of thing that is nice to present publicly afterwards but would not convince a judge who read the application carefully.
7. The affidavit is not signed by Betty Mills, the INS agent who was assigned to bring out Elian, but by INS Senior Special Agent Mary A. Rodriguez, a name not otherwise in public view. Note that by Saturday, Betty Mills was on a plane north with Elian, and unable to sign anything in Miami.
8. The raid was planned in careful detail, even to what to do about a dog that might be present. So why were the search and arrest warrants not obtained well in advance, and left at the house as part of the plan? (The arrest warrant was signed by an INS official, and so there was no possibility of information leakage at all. Also, obtaining a warrant valid over a week or so does not yield much information on whether and when a raid will take place.)
9. A Miami Herald report says that Tom Scott, the Southern District of Florida US Attorney, opposed the raid, though he was resigned to it occuring, and "top federal authorities" not told till midnight Friday. "The preparations were even kept quiet from top federal authorities in Miami, who learned of them Friday evening: they were told to assemble at FBI headquarters in North Dade for a midnight briefing." Yet Assistant US Attorney Dexter Lee wrote a memo on Tom Scott's behalf in support of the search warrant application that was submitted early Friday evening. The memo was undated, but mentions the April 21st arrest warrant issuance as a past event. Was the US Attorney one of those "top federal authorities"? (What other top federal authorities are there in Miami?) Then how could Scott's office write the memo before he knew about the raid?
10. The INS raiders assaulted the two NBC TV cameramen who were there, to prevent video being taken. This is significant because only video, not still photos, could prove that a search warrant was not presented. Also, the INS made no effort to videotape the raid themselves, which could have verified the legality of their actions.
Some people have mentioned Wilson v. Layne, 000 U.S. 98-83 (1999), the "media ride-along" case, in connection with Elian,saying that Janet Reno wanted to have reporters along, but was forbidden by law. (Wilson: http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-83.) That is only true in a narrow sense. Reno could not have invited reporters to storm inside the house with the INS agents and photograph the Gonzalez's bedroom furnishings. She could, however, have invited them to witness the events outside the house, to verify whether the INS agent actually knocked, whether the force used was reasonable, and whether the INS agents outside threatened to kill people such as the NBC cameraman. Also, the INS could have had their own, government photographer along. Whether the INS could have immediately released the photographs to the public is questionable, but they could make a strong case for doing so after the Gonzalez's accused the INS agents of illegality, and they could certainly use such photographs in court if the Gonzalez's sued them.
One item I have not looked into is whether there was a "return" of the warrant to the magistrate. I think this would be available from the courthouse in Miami, if it exists.
CHRONOLOGY.
Friday, April 21st. Deputy Assistant District Director Spearman issues an arrest warrant, if the date is to be believed. A memo in support of a search warrant by Assistant US Attorney Dexter Lee is undated, but mentions that arrest warrant.
Friday,April 21. 7 pm. Mary Rodriguez swears an affidavit before Magistrate Robert Dube, according to an April 30 Miami Herald story. That story implies it is done at a workplace; elsewhere, I have seen a story that said was signed at Dube's home. (Experts dispute warrant to seize Elian from home,April 29, 2000, Miami Herald, Andrew Viglucci, [email protected])
Friday, April 21: 7:20 p.m: Date of search warrant signature by Magistrate Robert Dube.
Saturday, April 22: 5 a.m. The raid takes place. Attorney Kendall Coffey, who was in the house, says no copy of the warrant was presented. A Miami Herald report says only a helmet and a pepper gas container were left behind. "The agents then retreated and in their rush left behind one dark green and black military helmet and a canister of pepper spray." (April 23, 2000, Miami Herald, HOW IT HAPPENED, Lightning move took agents just 154 seconds, Herald Staff Report)
Saturday, April 22. Morning. Janet Reno holds a press conference. She does not mention a search warrant, despite trying to make a case that the raid was legal.
Sunday,,April 23, 10 am. Reno's number two man, Holder, clearly does not know about a search warrant. He mentions an INS order and the District Court ruling, but not any search or arrest warrant. Rep. DeLay says there was no search warrant, and Holder contradicts him excitedly on other statements, but not on that one. NBC Meet the Press.
Sunday, April 23rd,morning. Doris Meissner, INS Commissioner, says on TV that a search warrant exists, having been obtained from a federal judge Friday around 6 p.m.
Sunday, April 23rd,evening. News reports later say that this is when the search warrant was released by the Justice Department.
Monday, April 24th,10:30am: Holder does not mention the search warrant. ABC News.
Monday, April 24th. The search warrant is posted on the Web by the Miami Herald.
Monday,April 24th, 11:35 pm: Reno tells Koppel there was a search warrant, and she thinks it has been released, when Koppel mentions DeLay's claim that there was no warrant.