Statement of Patrick Leahy
Ranking Member, Senate Judiciary Committee,
Concerning the Elian Gonzalez Case Subpoena
June 8, 2000

Despite the fact that the Elian Gonzalez matter is approaching its long-overdue end, the majority insists on prolonging it with yet another subpoena request. Although the majority has set a very low bar for subpoena requests during this Congress, it fails to meet even its previous standards here. Indeed, this is a motion to subpoena documents whose contents have already been made available to Members and staff, with only minor redactions to protect the Justice Department’s justifiable concerns about protecting its law enforcement officers and line attorneys. At bottom, this request is little more than yet another attempt to embarrass the Justice Department.

The Eleventh Circuit last week unanimously upheld the decision of a Federal District Court judge that the Administration had acted within its rights in its treatment of Elian Gonzalez’ case. This decision reinforces the common-sense idea that parents speak for their six-year old children in all but the most extreme cases, such as where there is evidence that that parent is unfit. It is exceedingly unlikely that Elian’s Florida relatives will have any success if they choose to mount another appeal. In other words, Elian Gonzalez and his father appear to be safely and irrevocably reunited, which I believe is the right result and the result that has the broad approval of the American people.

The majority appears to be intent in finding illegality in a well-executed law enforcement operation that has the overwhelming support of the American people. As part of that effort, the majority three weeks ago suggested subpoenaing documents reflecting the advice that the Attorney General’s staff – including line attorneys – gave to her. The Justice Department, as it has throughout this “investigation,” responded quickly with an offer to provide access to these documents. Rather than accept this reasonable compromise, the majority charges ahead today with another subpoena.

In evaluating this request for a subpoena, we must review some of the history of this Committee’s attempt to investigate the Justice Department’s actions to reunite Elian Gonzalez and his father, Juan Miguel Gonzalez. On April 24, the first business day after the April 22 law enforcement operation, the Justice Department – at the majority’s request – provided the majority with documentation supporting its request for the warrant that authorized it to remove Elian from the Miami home where he had been kept.

On April 25, the Tuesday after the operation, the Attorney General, the Deputy Attorney General, and the Commissioner of the Immigration and Naturalization Service came to the Senate to meet with more than a dozen Senators and answer all of their questions. The meeting lasted approximately 90 minutes before the Majority Leader chose to end it and attend another event. Participating in the question and answer session were several members of this Committee, including the Chairman, the Chairman of the Immigration Subcommittee, and Senator Specter. After that meeting the Majority Leader announced there would be hearings. The next day this Committee noticed a hearing without any insistence of further document production.

On the following afternoon, Thursday, April 27, the Chairman sent out an additional document request to the Attorney General, asking that all documents relating to the operation be turned over to him by the next day at 5:00. Despite the unfairness of this timetable, the Justice Department made substantial compliance by the next day, and worked over the weekend to produce as many responsive documents as it could by Saturday, April 29. The Chairman canceled the hearing when the Justice Department was physically incapable of meeting his timetable.

On April 28, the Justice Department informed the Chairman that there were some materials in which the Department had “substantial confidentiality interests,” and it requested the opportunity to confer with Committee staff about how the Department could “accommodate []our information needs consistent with [Justice’s] interests in those materials.” On May 2, the Chairman wrote again to the Attorney General, requesting a list of the documents that the Department was “withholding” by May 4. The Department provided a list on the date requested.

On May 9, the Justice Department produced another set of documents related to the operation, reflecting the Department’s continuing effort to comply with the majority’s requests. The Department also produced documents related to the Attorney General’s negotiations with Aaron Podhurst on the night preceding the operation, which had been requested by the Chairman on May 3.

On Tuesday, May 16, the Justice Department gave the majority access to further documents related to the operation. These were documents that the Justice Department had reviewed so that it could determine whether any privilege applied to them. Although Justice believed that the documents did reflect the deliberative process, it decided that on balance it was preferable to provide the Committee with access to them. In a fair compromise, Justice allowed staff to view these documents but not take possession of them, in order to take every precaution that nothing in the confidential documents was disseminated to the general public.

There were a small number of additional documents that the Justice Department believed it should not share with the Committee because it believed they were privileged under the deliberative process privilege. Justice represented that these documents included handwritten notes concerning meetings between the Attorney General and a mix of other officials, including both high-ranking officials such as the Commissioner of the INS and line attorneys from the INS and the Justice Department. Justice felt – understandably in my view – that producing these documents would make it more difficult in the future for government officials to speak freely in deliberative meetings if they knew that the view they advocated would become subject to public knowledge and potentially hostile oversight proceedings. This, after all, is the very basis of the deliberative process privilege.

On Wednesday, May 17, in lieu of producing these documents, the Justice Department sent highly knowledgeable people, including the general counsel of the INS and the Associate Deputy Attorney General, to brief Committee staff on the matters that were contained in the privileged documents. These officials spent an hour and a half briefing the Chairman’s staff on the relevant issues.

The majority proceeded to notice its intent to seek a subpoena (at 6:00 p.m. on the night before the Committee’s May 18 executive business meeting), the Justice Department offered to provide access to redacted versions of the documents to Committee Members and staff. The Justice Department made this offer not because it no longer believed that the documents were privileged, but in an attempt to make every reasonable effort to allow this Committee to exercise its oversight function. The majority did not accept this reasonable offer and instead chose to press its subpoena request.

That request was held over at the request of the minority, and it reappears on our agenda today, despite the fact that the Justice Department has made good on its offer and provided access to redacted copies of the relevant documents to the Committee during the intervening weeks. The redactions made in these documents are quite minor. The vast bulk of them protect the identities of the law enforcement officers and line attorneys who took part in the operation, and the Justice Department has represented that the remainder of the redactions concern matters not sought by the subpoena. Considering the prompt and thorough production that the Justice Department has made in this investigation, there is no reason to doubt the Department’s representations on this topic.

The Chairman has said that he would re-notice a hearing only if the Justice Department’s documents demonstrate that there are “problems.” My question is: Under the standard that the Chairman laid out, what has he found in the hundreds of pages of documents that Justice has made available to this Committee that would justify further action? It is time to declare what wrongdoing we are purportedly investigating.

The majority’s pursuit of this investigation is in keeping with the reckless statements that Republican leaders have made about the Elian Gonzalez matter throughout the controversy. Immediately following the reunion of Elian and his father, Republican leaders called the law enforcement officers who took part in the operation “jack-booted thugs” and referred to them as “stormtroopers.” It was shortly thereafter that the Majority Leader promised there would be hearings. At this point, there is no evidence that the Justice Department committed any wrongdoing whatsoever in its conduct of this operation.

There seemed to be confusion when we discussed this matter at our May 18 executive business meeting. The Chairman said that the Department did not produce evidence showing that the law enforcement officers who conducted the operation had reason to fear gun violence in the Gonzalez home in Little Havana. But Justice had produced precisely such evidence weeks before, in the documents it gave this Committee on April 29. Those documents included an internal draft “Intelligence Architecture” describing the intelligence to which the planners of the operation had access. Among other things, the draft said: “[w]eapons were found on two individuals in the crowds in the weeks leading up to the law enforcement action. Known criminal felons, some of whom had been arrested and/or convicted on weapons charges, were involved in security operations either directly in the house or in the two residences located in close proximity of the house. Additionally, four bodyguards identified by name were confirmed through law enforcement database checks to have current concealed weapons permits. They were routinely seen in the house.” (DOJ-EG-0065) (Emphasis added). Lest anyone think that this draft was an attempt to justify law enforcement’s conduct after the fact, the Justice Department also provided page after page of intelligence reports that were filed in the days leading up to the operation, including the April 17 description of reports that a bodyguard who was spending time in the house carried a weapon in an ankle holster (DOJ-EG-0073); an April 19 report that four individuals with lengthy arrest records – including arrests for gun crimes and other crimes of violence – were camped out in the back yard of the home behind the Gonzalez home (DOJ-EG-0080-81); and an undated report of a threat from a nearby house where “there may be shotguns” and where “armed men whose mission is to try to prevent removal of Elian from the house by US authorities” were living. (DOJ-EG-00106). As a former law enforcement official, this seems to me to be more than ample justification to believe that there might be guns in and around the Gonzalez home, and to take every appropriate step to protect the duty officers whose job it was to execute the operation.

The majority, on the other hand, appears to be unsatisfied with the explanation it has received so far, and instead presses this overbroad and partisan subpoena. The subpoena is overbroad because, among other reasons, the majority apparently seeks to compel information concerning individual law enforcement officers and line attorneys, including the names of the law enforcement officers who executed the operation and the views expressed by line attorneys during internal deliberations. I have pointed out many times how the Chairman has previously put himself on record as opposing subpoenas of line attorneys. But the subpoena that he proposes today calls for any and all documents reflecting the views of any and all U.S. Attorneys involved in the operation, and also appears to compel production of documents reflecting the views of line attorneys within the Justice Department and the INS.

The majority has more than enough information to proceed. But instead of moving forward with this “investigation” and holding the hearings that it has long promised on whether laws were broken in the government’s efforts to reunite Elian and his father – a premise that is not supported by a single piece of evidence – the majority chooses to beat up on the Justice Department.

I suppose there is nothing new about this Committee making the Justice Department the villain, but I think it is particularly inappropriate in this matter. In my view, the Department, to a striking degree, handled the matter in a way that was beyond politics. In keeping with that conduct, the Department has acted appropriately and fairly in cooperating with this Committee’s investigation – it is unfortunate that the majority has chosen to disregard that cooperation and once again transform this Committee’s oversight responsibility into a partisan opportunity.