The raid in replay

As Elian settles in with Dad, both sides argue over four key questions

May 1, 2000
Web posted at: 6:58 p.m. EDT (2258 GMT)

This is what the relocation of one little boy can do to a great nation: By Tuesday, Little Havana had padlocked its doors in silent protest at the removal of Elian Gonzalez by federal agents. That night 17 Cuban-American major league baseball players and coaches refused to show up for their games. Next, voters re-registered as Republicans in Union City, N.J., the big Cuban-American enclave in a battleground state. By Friday, Miami's Cuban-American mayor had fired the city manager and provoked the departure of the police chief for their minor roles in support of the raid. On Saturday a huge antigovernment march snaked through Miami. And proving once more how quickly our culture converts everything into entertainment, the creators of the bawdy animated South Park seized on the seizure and remade it for a Thursday-night prime-time audience as witless comedy: a bunny-suited Janet Reno points a rifle at one of the show's characters, who hides fearfully in a closet.

For most of the country, the reaction was more muted: the raid was the right move but hard to watch. For those who see the seizure of Elian in starker terms, vindication must wait while politicians and appeals courts have their say. The Miami relatives will insist they were reasonable; the Justice Department will contend it was a model of restraint; and others will point to the steady stream of pictures of a happy-looking Elian cavorting with his dad. Those without an agenda will want to look at the key questions.

Did the government use too much force? The government points out one certain thing: as often as the family promised to obey the law, it also warned that if the feds wanted Elian, they would have to use force. Marisleysis told a federal official a few days before the raid, "There's more than cameras inside the house."

That seemed to be the family's message from the moment the raid began. When the agents approached the front door, they first had to get past a few self-styled sentinels who, somewhat pathetically, tried to wrap up the feds in a TV news camera's cable. Then the agents banged twice on the door; when no one answered, they pushed in the door with a battering ram and moved quickly through the six-room house to find Elian. The rest is etched into the American imagination.

But the feds had other reasons to go in fully loaded. INS agents, who spent a week planning the raid, had observed from 10 to 30 self-appointed bodyguards who mixed with the crowd outside at any given time. Several were camped out in a tent in the backyard of the house behind the Gonzalez home; four others, members of Alpha 66, a radical anti-Castro group, often patrolled the crowd conducting surveillance, the INS said. Record checks showed that three of the four participated in a 1995 incident in which a band of Alpha 66 members took a boat to Cuba and fired shots at a beachfront hotel. Posing as tourists, INS agents tested the irregulars' lines in the early-morning hours and were quickly challenged; they discovered that whenever the irregulars sensed trouble, they would alert others nearby; agents think they put through a call to a local AM radio station asking for more protesters to swell the lines outside the house.

So when the raid began, the INS had about 60 people in the neighborhood, all armed with either .40-cal. sidearms or, in the case of the six-man strike team, 9-mm submachine guns. The strike went by the book: fast, in force and at an hour when the defenses of the targets were down. "It may not be the prettiest thing in the world," Reno said last week, "but it is effective."

Was it legal? U.S. agents breaking into a home to grab a child called up shadows of a police state for some. Lawyers as diverse as Harvard's Laurence Tribe and Republican Senator Arlen Specter of Pennsylvania have argued that the INS raid was unlawful and unconstitutional. That's dubious. When the INS agents burst into the house, they had two warrants: one from the INS, the other from a federal magistrate who authorized the agents to search "the residence of Lazaro Gonzalez" and seize the "person of Elian Gonzalez, a native and citizen of Cuba."

The warrants were hastily obtained but valid. The magistrate relied on a federal rule of criminal procedure that provides for warrants to seize any person "who is unlawfully restrained." And, indeed, the Gonzalez family had been holding the boy in defiance of an INS order for eight days. Specter argues that the warrant may have been valid but that it was illegally served because the agents never produced it once they were inside the Gonzalez home. INS district director James Goldman told TIME he laid the warrants on a table, as procedure dictates.

Did Reno cut off negotiations too soon? After Miami, no one will again think of Reno as a tough-as-nails negotiator. Her mistake wasn't ending negotiations too early; it was letting them drag on. Reno became deeply engaged in the last round of talks on April 21, about the same time she signaled the INS to prepare to execute the raid. In effect, she sent two trains barreling down converging tracks until 5:15 the next morning, when they collided.

Reno spent most of Friday and early Saturday morning on the telephone with mediator Aaron Podhurst, a Miami Lakes lawyer. Podhurst was connected by phone to the Gonzalez home 30 miles away; he later said his finger hurt from hitting the Hold button over and over. Around the Gonzalez dining-room table were family lawyers Manny Diaz and Kendall Coffey. All night long, the three parties went back and forth trying to reconcile Podhurst's plan to have the families join at a retreat near Miami with Reno's demand that Elian be handed over that night and the families repair to a site near Washington the next morning.

It was Reno who set the deadlines for a deal--first 2 a.m., then 3 a.m. and finally an hour later--and it was Reno who kept letting them slip. At 4 a.m. Reno told Podhurst, "We're out of time." But when he came back 20 minutes later begging for time, she gave him five more minutes to work something out. When the five-minute deadline came and went, Reno told Podhurst his time was up, but she remained on the phone, not talking but on hold while Podhurst tried to get the family lawyers to wake up Lazaro and change his mind. Reno later explained that even at this late hour she wanted to go the extra mile. "She's always looking for consensus," observed a longtime Reno watcher a few days before the raid. "She wants Lazaro to be happy, Juan Miguel to be happy, the Justice Department to be happy. She wants everybody to be happy, and you can't have that."

Was the Miami family negotiating in good faith? The members insist they were. At 5 p.m. on Friday, they faxed Reno a proposal they say Podhurst told them Reno wanted--in particular, a commitment to join Juan Miguel at a neutral site for a transition period during the appeals process. But the terms of custody were left vague, and the process soon bogged down and stayed that way.

Reno can legitimately claim that Lazaro's family never gave any sign that it was prepared to meet either of her chief demands: to turn over Elian immediately, as her legal order required; and to travel to Washington for a transition period. The closest the family came to averting the raid was with the Friday-night fax, which said, "We understand that you have transferred temporary custody of Elian to his father." But lawyers close to the family acknowledge that this was a concession in theory only; the family intended to share custody during the transition period and perhaps beyond--hence the word temporary. The same fax indicated that other conditions would be forthcoming. And after the fax was sent, as the lawyers were retiring to a Little Havana restaurant that evening, confident that they had backed Reno down again, Marisleysis told them to make sure she would have some measure of "joint custody" during the appeals process.

Government lawyers believe the family got the outcome it wanted, other than the boy himself: a televised martyrdom that would allow them to hold their heads up forever in Little Havana. How else to explain, they ask, the family's curious refusal to travel to Washington for the week-long cooling-off period? All night long, the family said it didn't want to fly; it preferred to drive. When Podhurst told Reno, at 4 a.m. on Saturday, that he couldn't get the family to make up its mind about leaving town, Reno called it a "deal breaker." As it turned out, what it took to get the family on a plane to Washington was Elian's going there first.

--Reported by Tim Padgett and Timothy Roche/Miami and Elaine Shannon and Jay Branegan/Washington