POLITICS
|
UNITED
STATES COURT OF APPEALS
ELEVENTH CIRCUIT CASE NO. 00-11424-D
ELIAN GONZALEZ, a minor, by and through
Appellant, v. JANET RENO, Attorney General of the United
Appellees. ________________________________________________/
APPELLANT'S EMERGENCY MOTION FOR ENFORCEMENT
I. Introduction Three days after this Court entered its Order enjoining Elian's removal from the United States and declining the INS's request to order a transfer of custody, the INS decided to take by force what it did not receive through legal process. On April 22, 2000, while a telephone mediation session was still underway with Elian's attorneys, the Attorney General and the mediator, the INS launched a pre-dawn, unannounced, armed raid at 5:15 a.m. in order to remove by force Elian from the home where he had lived with his American family for the past five months.1 Ignoring the Court's encouragement of mediation between the parties, the INS imposed with gas canisters and automatic weapons what it hoped would be an ultimate resolution of this case. Indeed, now that the INS has executed its traumatic seizure of a fragile child, the aftermath of Elian's shock and separation from Marisleysis and Lazaro may be exploited in efforts to reap a grim harvest in the appellate field: almost assuredly, the INS. Juan Gonzalez and Cuban government functionaries are working on a devastated, displaced and isolated child to secure a repudiation of his asylum claim and thus mootness of the appeal. Whether the INS acted within constitutional boundaries is an issue that should properly be addressed in a separate forum and is not before this Court.2 This motion seeks appropriate enforcement and clarification of the Order previously entered by this Court to assure that Elian's well-being and appellate rights are indeed preserved. II. Negotiations And A Pre-Dawn Raid Following this Court's recommendation in the April 19th Order, appellant's attorneys contacted the Court’s mediation office the following morning to request that it initiate mediation. Rather than detail the particulars of that discussion, it should suffice for present purposes to confirm that, among other things, the immediate issues of so-called "custody" were within the scope of appellant's request. Disappointingly, on the following morning of Good Friday, the mediation office informed appellant that the INS was unwilling to participate in the Court's mediation process. Fortunately, or so it seemed at the time, another negotiation and mediation process was quietly underway directly with the Attorney General. Acting on their own initiative, the foremost leaders of Miami's business, education, and legal communities had begun their own dialogue with the Attorney General, someone they had known and trusted for many years. These leaders included Edward "Tad" Foote, the President of the University of Miami, Aaron Podhurst, one of the most respected lawyers in this country, Carlos de la Cruz, prominent businessman, former United Way Chair and chairman of the Board of Trustees of the University of Miami, and Carlos Saladrigas, co-founder of the largest Hispanic-owned company in the United States. These leaders, in turn, had without fanfare obtained support for their efforts from twenty more of Miami's most respected community leaders. Politicians were not involved. This was instead a spontaneous commitment of civic leaders to deal with the anguish of a child, his family, and our entire community. Beginning Tuesday, April 20 and continuing through Friday, April 21, the negotiators and the Attorney General worked on reaching a peaceful, negotiated resolution to the issues of custody during the pendency of the appeal. By mid-day Friday the negotiators, having developed the support of the Attorney General for a six-point combined family-reunification process, contacted Elian's attorneys to confirm the approval of the Lazaro Gonzalez family. Exhibit "2," Affidavit of Carlos Saladrigas ¶¶ 5-23. During the course of the negotiations, Aaron Podhurst emerged as the mediator, keeping the other civic leaders as well as the Attorney General informed "of each and every adjustment to the agreement that was being proposed." Id. ¶ 22. Ironically in light of subsequent events, the Attorney General repeatedly expressed her concern "that she not be embarrassed during the negotiations." Id. ¶¶ 13, 23 and wanted documented confirmation of the family's concurrence with the six points. By mid-afternoon on Good Friday, the Lazaro Gonzalez family met with counsel and agreed to all six of the elements of the proposal. The Attorney General asked for a document to be faxed to Washington by 5:00 p.m. confirming their agreement with the apparent solution. Before 5:00 p.m. on Friday, the negotiators, believing that they had reached an agreement in principle with the Attorney General, faxed her a written "term sheet" outlining the six points. Id. ¶ 23, 24. Pursuant to the Attorney General's request, the Gonzalez family later signed the term sheet and faxed it at approximately 8:30 p.m. on Friday night. Id. ¶ 25. A true copy of the signed term sheet is attached as Exhibit "A" to the Saladrigas Affidavit. The Gonzalez family's only addition to the unsigned term sheet that was originally faxed to the Attorney General before 5:00 p.m. was not a condition, but was simply a heartfelt, hand-written request: "We further request that a spiritual advisor be allowed to be on the premises" during the reunification process. Id. There would inevitably be details to be worked out concerning the agreement in principle, and the negotiators and the Attorney General "[a]ll seemed to agree" that there were details to be "dealt with later." Id. ¶ 27. Subsequently, during the evening and throughout the night, discussions continued among the Miami leaders, separated by various intervals as they awaited response from the Attorney General. Following the negotiators' conversation with Mr. Podhurst and the Attorney General at about 1:30 a.m., they were confident that a deal was indeed being reached. The negotiators and the Gonzalez family waited to hear back from the Attorney General for confirmation. Id. ¶ 28.3 They were left to wait until about 4:00 a.m., at which time Mr. Podhurst called with the Attorney General on the other line. Mr. Podhurst "indicated that her [the Attorney General's] tone of voice had changed, that she seemed to him to be under enormous pressure; and that the deal had changed substantially." Id. ¶ 29. After detailing the INS's eleventh-hour demands, Mr. Podhurst called again and said that "the Attorney General had indicated to him that we had only five minutes to agree to the new conditions." Id. ¶ 30. The negotiators awoke the family to discuss the Attorney General's latest unexpected demands. At 4:30 a.m., during the middle of these discussions, Mr. Podhurst, who had the Attorney General on the other line, told the negotiators and the family that "we were running out of time." Id. ¶ 31. The negotiators informed the Attorney General, through Mr. Podhurst, that they were in the process of speaking to their abruptly awakened clients and would be recommending agreement to the INS's main sticking point. Shortly after 5:00 a.m., while negotiators were still on the phone with Mr. Podhurst and with the Attorney General on the other line, the INS forces burst through the door, filling the house with tear gas. Id. It bears repeating that at the moment that INS agents clad in military-style uniforms and brandishing submachine guns, broke violently through the front door of the house, the Attorney General herself was on the phone with Mr. Podhurst, while Elian's attorneys, the Gonzalez family, and the community leaders were continuing the negotiations, stating that even the latest INS pre-condition would be accepted. Yet, as reported by The Miami Herald, by the time the Attorney General called the negotiators to pressure them and the Gonzalez family with last-minute demands in the dead of night, the INS already had put into motion hours earlier the armed raid on the Gonzalez's house.4 Following the attack on an unarmed household, with children inside, and no crime even being alleged, only disturbing conclusions can be rationally drawn from the process that included a documented concurrence twelve hours earlier by Lazaro and Marisleysis Gonzalez to the six-points that the Attorney General said she supported. First, this was an appalling subterfuge aimed at lulling the Gonzalez family, the negotiators, Mr. Podhurst, and the rest of the Miami community into a false sense that a peaceful, constructive manner was still the achievable goal of the INS. The ruse succeeded. Surprise was complete, and the number of supporters outside was minimal due to widespread reports than an agreement was being reached. If not a sham negotiation by original and deliberate design, it became a subterfuge nonetheless. If the Attorney General was indeed being forthright when she said she supported the documented terms negotiated between her and Miami's leadership, then the launching of an armed raid in darkness in the context of a settlement process manifests a different but also troubling scenario. Stated simply and not so implausibly, the Attorney General of the United States was unable truly to control the decisions and actions of her own department. III. A Child's Nightmare Revisited After ramming down and bursting through the front door with submachine guns at the ready, the INS agents terrorized the completely unarmed children and adults in the house. None was alleged to have committed any crime and yet all were subjected to assault shock tactics ordinarily reserved for serious drug dealers and violent criminals. The heavily armed agents shot off non-incendiary tear gas as they stormed in, hurting innocent and disoriented people who offered absolutely no resistance to the grossly excessive display of force. The Affidavit of Olga M. Saladrigas (Exhibit "3") described vividly the senseless and excessive display of force used by the INS raiders. The attorneys and negotiators inside the house were blocked inside the back room by INS raiders and subjected to the gassing that flowed throughout the house. Unfortunately, this was the latest of the ordeals for the home's occupants. The series of photographs attached hereto as Composite Exhibit "4" only partially show the aftermath of the agents' rampage through the house, including the gratuitous destruction of the little boy's bed. As if merely being present during this horrific scene were not traumatic enough, the agents further terrorized Elian himself by pointing an automatic assault rifle directly at him and forcibly prying him from the arms of Donato Dalrymple, the same fisherman who rescued him five months ago from the waters off the Florida Coast. See Affidavit of Donato Dalrymple (hereinafter "Dalrymple Affidavit"), attached hereto as Exhibit "5." A photograph taken by an Associated Press photographer who rushed into the house behind the agents graphically depicts the INS's brutal conduct towards Elian himself, Id. ¶ 14, and is attached as an exhibit to the Dalrymple Affidavit.5 The weapon aimed at Elian was a submachine gun, an MP-5 not designed for ordinary police work but for "killing situations, in high-risk raids, where commands of law enforcement officers are likely to encounter opposition that must be stopped quickly and powerfully." Washington Post, April 24, 2000, "The Gun Seen Round The World," p. CO 1. At gunpoint, an INS agent grabbed Elian by his pajama shirt away from Dalrymple's arms and literally threw him to another INS agent who covered his head with a towel and carried him away. See, Dalrymple Affidavit ¶ 16. All the while Elian screamed in English, "Help me! Help me!", and in Spanish, "Que pasa? Que pasa?" which means, "What is happening?" Unmoved by the cries and pleas of this child, INS agents, assault weapons in hand, physically carried him out of the house and into a waiting van. See Dalrymple Affidavit ¶ 16-20. As Dalrymple followed, pleading with the INS agents not to hurt Elian, he continued to be met by the barrels of INS machine guns and with the agents' threats: "Stay back, mother - er, or we'll shoot." See Dalrymple Affidavit ¶ 17. It may never be known with certainty why the INS deliberately strategized a darkness of night ordeal to remove Elian shockingly from his American family and the mother figure in his life. Nonetheless, through its paramilitary operation, some of the core elements of Elian's tragic ordeal last November was chillingly recreated by the INS. The terrifying removal in blackness from family and Marisleysis occurred while beloved adults were incapacitated and unable to help, a haunting analogy to the lost mother and helpless, drowning refugees who surrounded Elian in those horrifying moments five months ago. Saturday's trauma of abrupt separation was followed by a lonely journey with strangers, including a helicopter ride - another frightful experience for a sobbing child, who had never been on any sort of aircraft before. From there a customs airplane flight brought Elian to Andrews Air Force Base, another journey of unknowns after rupture from a mother's arms in darkness. As is described in the psychological report being filed simultaneously under seal, the parallels between the two traumatic evens of separation are extremely harmful and create a high level risk of long-term damage. Equally clear is the resulting sense of abandonment by his American family. That sense of seemingly permanent separation and total isolation, necessarily increases Elian's need for compliance with the wishes of the adult authority figures who now surround and control this child. IV. The Aftermath Remarkably, the Attorney General announced during a press conference later that day that, "Time ran out," on the negotiations and that mediation was impossible because the Gonzalez family "kept moving the goalpost." President Clinton stated in a separate press conference that the INS's armed raid occurred after "all efforts failed." Those statements to say the least, were not accurate. As to the settlement process undertaken by Miami's civic leaders, the Attorney General herself was on the telephone in continuing negotiations at the same time she had already ordered the raid. Indeed, Aaron Podhurst vehemently contests any claim to the contrary: Even as agents were battering down the door to enter the Lazaro Gonzalez house at 5:10 a.m., Attorney General Janet Reno was on the telephone with one of Miami's most respected civic leaders, Aaron Podhurst, discussing the shift of Elian's custody. Mr. Podhurst and others - including University of Miami President Edward T. "Tad" Foote II and business executives Carlos de la Cruz and Carlos Saladrigas - had worked round the clock over the preceding 48 hours as mediators between the government and the Miami family to arrange for the transfer. They believed enormous progress had been made and that the deal was
See Exhibit "7" "A Shocking Raid, A Call For Calm," The Miami Herald, April 23, 2000 A1, A. in a separately issued statement, Mr. Podhurst stated that "productive negotiations and conversations were ongoing right up to the moment of the raid." As to the President, his statements were not only inaccurate, they were profoundly incomplete. His "all efforts failed" sound-bite ignored the truth that the INS had refused any form of judicially supervised mediation, rejecting out-of-hand even this Court's own encouragement to participate in Eleventh Circuit mediation. Moreover, nowhere did President Clinton acknowledge that three weeks earlier, in the Oval Office, he had personally assured Senator Bob Graham that there would not be any law enforcement operations under the cover of darkness.6 Along with the inaccurate spin about part of the events is the INS's continued stonewalling on the subject of Elian's present and immediate future.7 On Saturday afternoon, the Attorney General participated in a two-hour telephone conference, held at the offices of The Miami Herald, with Aaron Podhurst, Tad Foote, Carlos Saladrigas and Carlos de la Cruz during which she discussed "the case and the events of the last two days." Exhibit "2," Saladrigas Affidavit ¶ 32. During that teleconference, Mr. Saladrigas asked the Attorney General whether she could guarantee that Elian was alone with his family and outside the control of Cuban agents. Id. The Attorney General "replied that she had no knowledge of who was with the child and had no authority to limit access to the child." Id. That is a startling statement. It is deeply unsettling for the nation's chief law enforcement officer, after wrenching a six-year old from a loving household through the use of armed force, to disavow knowledge or ability concerning the protection of the child from agents of a foreign government while situated at a United States Air Force base. Even worse, however, is the fact that, with or without the Department of Justice's knowledge, Cuban government officials have already been meeting with Elian. Thus, in yet another grim and unfathomable irony, the U.S. government is denying access to Elian's U.S. family, doctors and lawyers, while allowing agents of the Cuban government from which this appeal seeks protection, to see this child. V. This Court Has The Ability To Enforce Its Existing Injunction Unfortunately, the rapidly changing and dramatic circumstances of this case have made it necessary for this Court to step in to clarify and enforce its earlier Order in order to meaningfully maintain the ability to proceed with this appeal. This Court's Order recognized that Elian's appeal raises a substantial case on the merits regarding his entitlement to ultimate relief in the form of an asylum hearing, and therefore enjoined Elian's removal from the United States during the pendency of the appeal. This motion seeks to enforce or clarify that Order in order to ensure that it does not become meaningless. This Court's power to effectuate its previous Order is unquestioned. As the Supreme Court has emphasized, "federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced." Hutto v. Finney, 437 U.S. 678, 690 (1978). Accord Parker v. Ryan, 960 F.2d 543, 546 (5th Cir. 1992) (inherent authority to enforce injunctions and to preserve court's ability to render judgment) (citations omitted). Similarly, this Court enjoys inherent power to enforce and clarify its injunction when faced with changing factual circumstances and repeated threats to its jurisdiction. The Second Circuit has described the nature of this inherent power. An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaptation as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change. Sierra Club v. United States Army Corps of Engineers, 732 F.2d 253, 256 (2d Cir. 1984) (citing Swift, 286 U.S. at 114). See also Augustus v. School Board of Escambia County, 507 F.2d 152, 156 (5th Cir. 1975).8 (a court has inherent power to enter such ancillary orders as are necessary to carry out the purpose of its lawful authority). This Court should act to prevent a violation not only of the letter but also of the spirit of its Order. DeKalb County School District v. Schrenko, 109 F.3d 680, 684 (11th Cir. 1997) (further relief required consistent with the letter and the spirit of the decree."): Securities and Exchange Com'n v. Okin, 137 F.2d 862, 864 (2d Cir. 1943) ("The duty of the defendant was obedience not only to the letter, but to the spirit of the Order.") VI. In Order To Protect This Court's Jurisdiction Over This Appeal, Appellant Must Be Prevented From Being Taken Onto Property Under The Control Of The Cuban Government. An essential corollary to the injunction already preventing Elian's removal from the United States is his continuous presence within the borders of this Court's jurisdiction. The same concerns requiring the injunction preventing Elian's removal from the United States mandate that he be kept out of locations within this country that are immune from this Court's power, but within the control of Cuba. Jut as critical is the Court's structure that the INS must take the "reasonable and lawful steps as necessary" to prevent removal. Any common sense adherence to this command requires that Elian not be placed even briefly in the control of Cuban government agents or instrumentalities who could abruptly remove him with impunity and immunity. The serious risks of removal that would accompany entrustment to Cuban property or personnel are manifest. The premises of a foreign embassy are inviolable. See El-Hadad v. Embassy of the United Arab Emirates, 69 F. Supp.2d 69, 75 n.5 (D.D.C. 1999). The agents of the receiving state (i.e., the United States) may not enter except with the consent of the head of the diplomatic mission. See, e.g., 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire, 988 F.2d 295, 298 (2nd Cir. 1993); Fatemi v. United States, 192 A.2d 525, 528 (D.C. 1963). Moreover, the "private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission." York River House v. Pakistan Mission to the United Nations, 820 F. Supp. 760, 762 (S.D.N.Y. 1993). Also immune from U.S. control are Cuban government functionaries. Diplomatic immunity, 12 like sovereign immunity, belongs to the foreign state (i.e. Cuba) and may only be waived by that state itself. See, Aquamar S.A. v. Del Monte Fresh Produce, N.A., Inc. 179 F.3d 1279, 1295 (11th Cir. 1999). Diplomatic immunity, therefore, may not be waived by the diplomat himself, but must be waived by the diplomat's state in an express writing transmitted to the United States State Department. See, United States v. Denver, 1987 WL 13365 (D.C. App. 1987); Fatemi, 192 A.2d at 528; United States v. Arizti, 229 F.Supp. 53, 54 (S.D.N.Y. 1964). If Elian were transferred to territory outside of this Court's jurisdiction, the potential ramifications are clear. The Cuban government has emphatically proclaimed on countless occasions that it wants Elian returned immediately. The U.S. proclaims Cuba to be an outlaw state. Therefore, Cuba has both the strong motive and the indifference toward U.S. laws that could simply put Elian on a plane and depart bound straight to Cuba or a third country way station. As is sadly obvious, unexpected operations in the dark of night are apparently a preferred method for imposing solutions where Elian is concerned. Certainly, it provides no comfort for the INS to state that Elian will not be allowed to leave, but that the father can depart for Cuba at any time (Exhibit "10"). Obviously, any notion that restraining Elian while his father can leave with him is untenable. In reality, if Elian is subject to Cuban control in any form, this Court would be rendered powerless to prevent his abrupt departure from the United States, and no power in the United States could compel his return from Cuba. Just as plainly, the INS is not taking such "reasonable and lawful measures as necessary" to prevent Elian's removal. Reportedly, Elian is currently being held at Andrews Air Force Base outside of Washington, D.C. The INS has indicated that he will be moved from Andrews imminently, but has refused to disclose the location to which he will be removed. Indeed, the INS refuses to state whether Elian will be removed to areas within the U.S. that are nonetheless beyond this Court's jurisdiction because they 13 are controlled by representatives of the Cuban government.9 In light of Elian's imminent transfer to an undisclosed location, and the INS's refusal to provide any assurance about the location or the access by Cuban functionaries, it is important that this Court act to preserve its continuing jurisdiction over this appeal. VII. In Order To Protect This Court's Jurisdiction Over This Appeal, Appellant Must Be Prevented From Being Exposed To Diplomats, Officers, Physicians, Agents Or Any Other Representatives Of The Cuban Government. In order to preserve this Court's power to order meaningful relief in the form of an asylum hearing, Elian must be protected from the very government from which he seeks asylum during the pendency of his claim. Therefore, safeguards are required preventing contact with any agents of the Cuban government while he is in the United States, including Cuban government officers, diplomats, and particularly Cuban physicians and psychiatrists with instructions to reindoctrinate him. To permit Elian to be placed in the hands of Cuban government agents amounts to the immediate infliction of the ultimate harm that this appeal seeks to avoid. Whatever may be the intentions of Juan Gonzalez, he cannot resist the directives of the police state that houses most of his family back home, even while he stands on a U.S. base. Asylum claims, like Elian's, are anchored upon the need to be protected from a foreign government's exploitation and persecution. Harmful measures could occur wherever that country's agents can be found. Clearly, Cuban operatives sequestered with Elian in the United States are as capable of harming Elian psychologically as Cuban agents in Cuba. Indeed, the recent, unprovoked physical assault on United States citizens by Cuban "diplomats" assigned to the Cuban Interests Section demonstrates the contempt that representatives of the Cuban government have for this country's laws and process. See Composite Exhibit "11," "Radio Figure Blasted. Carrollo Links Him to Envoy," The Miami Herald, April 19, 2000; "A Blow For Diplomacy," The Miami Herald, April 19, 2000. Despite some beliefs to the contrary, Cuba is still a brutal police state. On April 18, 2000, the day before the Court issued its Order, the United Nations Commission on Human Rights adopted a resolution decrying Cuba's failure to ensure basic human rights and noting Cuba's "continued repression of members of the political opposition and about the detention of dissidents." See Exhibit "12," April 18, 2000, United Nations Press Release. Cuba had the disgraceful distinction of joining Myanmar (f/k/a Burma), Sierra Leone, the former Yugoslavia, Sudan and Iran on the list of countries condemned by the United Nations. Oddly, even as the INS has stepped up so devastatingly its effort to remove Elian to Cuba, the United States is strongly supporting the resolution that so harshly condemns that regime. The need to prevent Elian's contact with individuals associated with the government that is the subject of his underlying asylum claim, is nowhere on the INS's present agenda. The Attorney General's surprising statement this past Saturday that she has no idea who is meeting with Elian, underscores the fact that the INS is chronically unable or unwilling to address the safeguards needed for this child. Inexplicably, an excruciating commitment to destroying Elian's asylum rights has infected this case from the moment in early December when Castro began his strident, high-decibel demands for Elian's return.10 With Saturday's pre-dawn raid, the INS's unprecedented zeal for avoiding an asylum hearing, "without having met with Plaintiff or having any evaluations done on his capacity" Order at 7, n.7, has taken an even more destructive turn of events. The INS finally met Elian, at gunpoint, with tear gas. And now, rather than consider his rights, the INS launched a final strategy for utterly destroying them. No one should be surprised in light of the continuing Cuban control over Juan Gonzalez and its recent interactions with Elian, if the coming days see an alleged repudiation of Elian's claim, followed by a motion to dismiss the appeal for supposed moothness. If this Court is to have any meaningful ability to issue an ultimate remedy in this case to preserve Elian's potential asylum rights, Cuban agents, including government officers, physicians, and psychiatrists, must be enjoined from interacting with him. That restraint should continue during the pendency of the appeal and throughout the asylum process, should this Court eventually mandate such proceedings. VIII. Appellant's Family, His Treating Physician and His Attorneys Must be Given Access to Him on a Regular Basis Pending the outcome of the Appeal Elian was abruptly and violently removed from his American family. This is the family that during the past five months, provided Elian with love, stability and safety since he was found floating alone in an inner tube off the Florida coat after having witnessed the drowning of his mother, stepfather and nine other adults. As this Court repeatedly noted in its Order, the INS refused to meet and evaluate this child before stripping him of his rights. In light of Elian's Thanksgiving Day rescue, it is more than ironic, indeed it is reprehensible, that the INS chose a pre-dawn, armed, snatch-and-grab assault on Elian's home over this Easter weekend as its way of meeting Elian. For the second time in a span of five months, Elian has been deprived of a mother figure in shattering circumstances. At worst, this is cold-blooded treachery, at best, a crude insensitivity. In either case, it is further proof that the INS stumbles badly and tragically whenever it enters the unfamiliar realm of a child's well being. Accordingly, it is even more clear than before that the INS lacks the competency to prevent further harm from endangering Elian's fragile emotional and mental health. Illustrating that indifference to jeopardy is the refusal to allow Lazaro Gonzalez and his family members regular access to and interaction with Elian. This would reduce the severe harm from the rupture of the bonds that he established during the past five months, bonds that were so abruptly terminated in Saturday's pre-dawn raid. Further, as stated in the most recent psychological evaluation and report, in order properly to mourn the loss of his mother and to readjust to his new family, Elian must remain in contact with his U.S. family members. Otherwise, Elian will be led to believe that he was abandoned by relatives in Miami after he tragically lost his mother and stepfather at sea. Indeed, the removal of Elian with armed force from that family's home can only reinforce dramatically his feelings of abandonment and deep anxieties. No doubt, those intensified fears may foster superficial compliance with adult wishes, while scarring even more deeply the inner psyche of a child in distress. To facilitate a less damaging transition, Elian's treating physician must also be granted immediate and continuing access to him. It is obviously crucial that Elian receive continuity in his treatment. Therefore, he should be visited and seen by the physician who has established months of trust and communication with him. Dr. Alina Lopez-Gotardi is the only individual with the significant background knowledge necessary to evaluate what is in Elian's best interest from a psychological standpoint. Casting Elian entirely into the hands of unknown new physicians, particularly in light of the new wave of trauma from Saturday's raid, will almost assuredly effect a drastic reversal of Elian's recent programs. Be ensuring continuity of treatment, Elian's physician may be able to ameliorate the trauma of being thrown at gunpoint from the arms of the very man who rescued him at sea and, if possible, ensure that the healing process of recent months is not irretrievably damaged. Finally, Elian's attorneys need to be assured that they will have access to their client during the appellate process. Although access by Elian's family members and his treating physician is paramount to the child's well-being, other issues here deserve great respect in our legal systems. As a result, this Court should not permit the INS to sever unilaterally the relationship between Elian, the real party in interest here, and his attorneys. Clearly, the law requires that Elian's attorneys must be granted access to Elian. See Jean v. Nelson, 727 F.2d 957, 983-984 (11th Cir. 1984) (en banc). aff'd on other grounds, 472 U.S. 846 (1985). See also Committee of Central American Refugees v. INS, 795 F.2d 1434, 1438 (9th Cir. 1986), and cases cited herein ("The key factor present in each of these cases showing a constitutional deprivation is the existence of an established, ongoing attorney-client relationship."). IX. Need For An Independent Officer of the Court It is recognized here, as the INS itself acknowledged on December 1, 1999, before Castro's rages began, that it is not the usual role of federal courts to supervise child custody matters. Normal principles of federation counsel strongly against such intervention. Of course, little is normal about this case, and if ever there was an occasion for direct federal involvement into issues of visitation and access by families, doctors and lawyers, this is the case. Moreover, as a people, we have for more than two centuries looked to our federal courts as the sentinel of liberty, especially in matters of conflict with one's own government. For that reason, this Court should considers clarifying and modifying its present order to state simply that reasonable access and visitation should be allowed to Elian's U.S. family, his treating medical professionals and his attorneys. Indeed, present conditions impose the distressing paradox of a U.S. Government that bars access by U.S. family and professionals while facilitating visitation by the Cuban agents of a totalitarian regime that our country consistently condemns. And yet, in cases of great emotion and controversy, it can be all the more appropriate to rely on long-standing principles as the compass for passage through difficult passions. Therefore, on balance, the most appropriate remedy may be the appointment of a temporary guardian ad litem or other independent judicial officer to deal with certain interim issues while this appeal is ongoing. Those issues should include, but perhaps not be limited to, issues of visitation as well as medical and legal access. Concerning family and medical issues, a neutral officer of the court might engage and rely on an independent child psychologist to mediate any difference between the INS psychologist and the child's treating psychologist. Already pending before this Court is the appellant's contention submitted over two months ago the district court should have appointed a guardian below concerning Elian's INS administrative proceedings. Johns v. Department of Justice, 624 F.2d 522 (5th Circuit 1980). The issue now being submitted to this Court is related, but still different, and is far more urgent. Here, a guardian ad litem is needed on a temporary basis to deal with the immediate concerns and interests of Elian in the wake of a shattering reprise of his previous loss of loved ones in the darkness of night. Irrespective of whether Rule 17 (c) is directly applicable to the appellate context of the present tragic dilemma, courts have inherent authority and an ancient duty: [t]he infant is always the ward of every court wherein his rights or property are brought into jeopardy, and is entitled to the most jealous care that no injustice be doneto him. DuPont v. Southern Nat. Bank of Houston, Tex, 771 F.2d 874, 881 (5th Circ. 1985). So powerful is this "ancient precept of Anglo-American jurisprudence" that appellate courts have decreed protection for children sua sponse. Johns v. Department of Justice, 624 F.2d 522 (5th Cir. 1980); Wagner v. Canastota Central School Dist, 146 F.3d 123, 124 (2d Cir. 1998). We believe this Court itself has the inherent authority to appoint such a guardian or other court officer, especially in light of present exigencies. Nonetheless, if this Court concludes otherwise, we would respectfully request a partial relinquishment of jurisdiction to the district court, on an emergency basis, directing the district court to appoint an interim and neutral officer of the court for the balance of this appellate proceeding. X. Conclusion and Prayer for Relief Wherefore, appellant respectfully requests that this Court enter an Order: (1) preventing him from being taken to any location outside the territorial jurisdiction of this Court, including the Cuban Interests Section in Washington, the homes of Cuban diplomats, and any property and premises owned or leased by agents of the Cuban government which are immune from this Court's process; (2) preventing him from being transferred to the custody or care
of or
(3) preventing him from being handed over, visited or observed by physicians, psychologists, or other medical personnel associated or affiliated with the Cuban government; and (4) providing that Elian and his attorneys, family, and his treating
physicians and psychiatrist be given regular and reasonable access to
(5) appointing an independent guardian ad litem or other officer
of the
Respectfully submitted, Barbara Lagos, Esq.
1 Hours after the armed raid Castro publicly proclaimed that this was a "Day of Glory" for his regime. 2The INS's indifference to the rights of others apparently extended to the process that accompanied the forced entry. Certainly, its 7:25 p.m. signing of the warrant suggests that the ongoing negotiations were not meaningful and were instead being used to minimize the presence of demonstrators. Also unseemly is the supposed basis for the warrant - the administrative warrant to arrest six-year-old Elian, and the premise that Elian was being "concealed" (Exhibit "1"). Elian had been at the same house for almost five months, under the constant watch of scores of cameras and thousands of observers without the slightest suggestion of flight risk. Just as obviously, Elian was seen and filmed playing in the yard on Good Friday and regularly throughout the time that the warrant was being prepared and submitted. Stated simply, the sworn allegations of concealment were utterly false. Incidentally, no warrant was presented and other requirements of law were similarly discarded, all deeply troubling issues that will be developed further in separate proceedings. 3Evidently, the Magistrate's warrant had already been issued at 7:25 p.m. (Exhibit "1") It is now distressingly apparent that this law enforcement operation was proceeding inevitably throughout Good Friday into the next morning, even while some community leaders slept, believing an agreement had been reached, while others negotiated believing they were addressing the details. 4At 4:15 a.m., at the same time that Mr. Podhurst was communicating the Attorney General's latest demands to the negotiators in the Gonzalez house, Miami Police Chief William O'Brien "received a call at his ... home from Assistant Chief John Brooks, [advising that] [federal agents would raid the house at 5:15 a.m." "How it Happened," The Miami Herald, April 23, 2000 1A, 14A. Concerning news reports, appellant respectfully requests that this Court take judicial notice of relevant and wisely distributed newspaper accounts and transcripts of publicly-made statements by government officials. See Peters v. Delaware River Port Authority of Pennsylvania and New Jersey. 16 F.3d 1346, 1355, fn 12 (3rd Cir. 1993) (court took judicial notice of newspaper accounts in considering whether governmental entities were in competition with one another. 5To deflect criticism of the INS's inexcusable conduct, Attorney General Reno has stated to the media that the photograph attached as an exhibit to the Affidavit of Donato Dalrymple actually exemplifies the INS's attempts to prevent trauma to Elian because, at the particular instant, that the photograph was taken, the gunman's finger was not on the trigger of his automatic weapon. The Attorney General is correct - the gunman's trigger finger is next to, but not physically resting on the trigger. It hardly need be observed that this hair-splitting by the Attorney General made no difference to a six-year-old child with an M-5 submachine gun pointed in his face by a United States government agent in full riot gear. Equally obvious is the fact that a jittery gunman would have needed only a split-second before being able to fire a spray of bullets into the room. Keeping to her pre-announced determination to avoid "embarrassing herself," the Attorney General wisely did not point out to the media and the United States public listening to her press conference that the wider-shot of the same scene shows a masked gunman in the background of the photograph pointing his M-5 submachine gun at Elian's five-year-old best friend and cousin -- and that this gunman has his finger on his trigger, positioned to mow down a child, hardly a threat worthy to justify this shameful display of United States military might. See Exhibit "6." That child ingested substantial portions of tear gas, was later stabilized but has remained incommunicative and withdrawn due to the obvious shock. 6U.S. Senator Graham, who is widely regarded as a moderate and one of the Senate's most thoughtful members, minced no words about "a clear commitment which was violated." See Exhibit "8," copy of transcript of interview of Senator Bob Graham. He also spoke compellingly about the INS's amazing professions of ignorance as to whether there might have been guns in the house, a house which was continually accessible to police officers: The fact is that if law enforcement intelligence didn't
know what was happening in that little house right in back of us for five
months, didn't have an absolute 100 percent understanding of who, what
and what capabilities was in that house. There was a mammoth failure of
law enforcement intelligence. That fact is, they did know, and they knew
that it was not necessary to come with machine guns and scare children
and tear gas innocent citizens. It was a gross excessive use of force.
7 On Saturday evening, counsel for appellant faxed a letter to the Attorney General and David J. Kline expressing concern that Elian Gonzalez might be placed in a situation in which Cuban government personnel would have control or supervision. To date, the INS has ignored the letter which is attached as Exhibit "9." The Miami Herald, however, on April 24, 2000, reported that "[a] Clinton administration official did say that Cuban officials have visited the family "two or three times" since the family's arrival Saturday." 8 See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (adopting as binding all decisions of the former Fifth Circuit handed down prior to September 30, 1981) (en banc) 9Although the Cuban government initially suggested that it would withdraw immunity for the residence in Bethesda, Maryland, no Cuban diplomat ever delivered a formal diplomatic note renouncing that status and, according to the United States Department of State, the house in Bethesda remains "inviolable," Exhibit "10," "Dad's Temporary Home Off-Limits To U.S.," The Miami Herald, Saturday, April 22, 2000, 15A. 10 As described in Exhibit "C" to appellant's
motion of April 14, 2000, the INS committed on December 1 to keeping Elian
here so that the family courts could handle the issue of Elian. Castro's
tirades began four days later and, to say the least, things have never
been the same.
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