The US Senate’s Brian Darling firmly believes that the arrest warrant is based on a seriously faulty assumption. Darling points out that the arrest warrant says that Elian was “within the country in violation of immigration laws and is therefore liable to being taken into custody.” Yet, two days prior to the boy’s seizure by federal agents (and one day prior to the arrest warrant being issued) the Federal Court of Appeals for the 11th Circuit had ruled [a pdf file] that Elian must be kept in the US pending his May 11, 2000 court date. Senator Darling asks how Elian could be illegally in the US one day after a federal court ruled that he must remain in the country.

Department of Justice counsel to Deputy Attorney General Eric Holder, Brad Glassman, disagrees with Darling’s analysis. Glassman responds that “courts stay departures from the United States regularly, but that does not change the underlying status of the person’s presence here in this country. The court specifically declined to rule on the custody issue.” His point: just because an alien is scheduled to appear before a judge does not mean that the alien is in this country legally. Yet, arresting Elian because he is in this country illegally does not seem to serve an obvious purpose if the boy is due to appear in court within a few weeks anyway, and that very court has mandated his continued presence in the country. In addition, it would be interesting to know if other such arrests take place because the alien is in hiding, and refusing to turn himself over to the court’s jurisdiction, rather than the opposite case in which the alien himself petitions the court for redress, as Elian has done in this case.

Another Justice Department official, speaking on background, stated that the agency did not need the arrest warrant to seize Elian from his relatives. According to the language of the search warrant, the INS was authorized to search Lazaro Gonzalez’s residence for Elian, “and if the person or property be found there to seize same.” Though, this being true, it remains unclear why the INS sought and received an arrest warrant if one was not needed.

Additional criticism comes from a recent article in the New York Times by Laurence H. Tribe, a noted professor of constitutional law at Harvard. Along with most noted constitutional experts, he disagrees with Justice’s analysis. “It was not a warrant to seize the child,” writes Mr. Tribe. “Elian 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.”

Does a Faulty Arrest Warrant Jeopardize the Search Warrant?

Senator Darling further argues that if Justice was incorrect in seeking an arrest warrant on the (above noted) false grounds, that Elian was then in the US illegally, this necessarily also calls into very serious question the legality of their search warrant, as its issuance was based in part on the opinioned-faulty arrest warrant.

The above was excerpted from: Was Elian Arrested? John Aravosis