The return of Elian and his father to Cuba is wonderful not only for Elian and his family, but was a great triumph for the people of Cuba. It was a defeat for the fossilized politics of what Fidel Castro referred to as the Miami mafia—those Cuban-Americans who were willing to sacrifice the well-being and best interests of a young child to further their retrograde and narrow political agenda. In the eyes of many Americans the efforts by those Cuban-Americans to kidnap Elian demonstrated the utter bankruptcy of the cold war politics that drives that community. Indeed, it is unlikely that congress’s passage of legislation loosening the embargo on food and medicine would have occurred, but for the Elian case.
This is not to be Pollyannaish about the prospects for real change in U.S. relations to Cuba. There is still a very long way to go. The lock that the Miami mafia has on U.S. foreign policy regarding Cuba is rusting, but, as Elian’s case illustrates, it is still keeping that policy hostage. We can just look at the somersaults our politicians and judges turned in their efforts to please the Cuban-Americans, while all of the time knowing that law and morality mandated the immediate return of Elian to his father.
Money, Votes and Gore
On the national level Al Gore gave the worst performance of any of the actors, a spineless bid for votes and money that was shameful even by the low standards by which many judge politicians. Stating that Janet Reno was wrong in her determination that Elian should be returned to his father, he supported a law that would give Elian permanent residence, and called for the case to be decided by the state court, although only the federal courts had jurisdiction. Recall what happened when the great uncle went to state court in Miami; the judge, gave an unprecedented and lawless ruling granting custody to the great uncle. Subsequently it was discovered that the judge’s former public relations person for her judicial election was managing the great uncles’s public relations campaign to keep Elian in the U.S. The judge was subsequently indicted for______
So why did Al Gore who is a father and knows the importance of family relationships, turn his back on a six year old child? Although it was rarely mentioned, Gore did raise major money from the Cuban community—over $300,000 when Elian arrived in the U.S. and over $600,000 by spring of 2000.This was comparable to the amounts Bush raised. The Democrat Party had received an additional million dollars or more in soft money, some of it from the Fanjul family, the Cuban-American sugar barons for South Florida who receive significant subsidies. Gore also wanted to win Florida in the election; Clinton won it in 1996. However, Clinton did not win it with the Cuban-American vote; Gore’s hurt his election chances in both Florida and the U.S.
Dithering by Reno
Janet Reno also does not deserve high marks. Early on, in fact by January 5th , she had determined that Elian belonged with his father and advised Elain’s great uncle that Elian should be reunited by January 14th. However, after that date, Janet Reno—at least until the April 22nd seizure of Elian by federal agents—utterly failed to take any of the necessary actions that could have enforced her decision and possibly avoided the use of force. During this 31/2 month period she set deadline after deadline for the reuniting of Elian with his father, but was unwilling to stick to her position. It became almost laughable; except for the fact that this was our nation’s highest law enforcement officer. Her actions made a mockery of herself and the rule of law.
The effect on Elian of her actions is the real tragedy. During the crucial period after his mother’s death, Elian was given no chance to mourn or be with his father who could have comforted him. Instead, Reno allowed the great uncle to abuse Elian in a variety of ways: taking him to Disney World five days after his mother’s death, allowing him to become the poster child for the Cuban American National Foundation and allowing him to be interviewed by Diane Sawyer. Janet Reno allowed this circus atmosphere to prevail in which Elian was the main performer; she never even issued an order to the great uncle that such uncaring conduct had to cease. She could have easily ordered Elian removed from the great uncle on this basis alone. It is not only the great uncle who is guilty of child abuse.
At least initially, Federal marshals were not her only choice. Instead of continuously extending the deadline for the reuniting of Elian and his father, she could have issued an order requiring the return of Elian. When the great uncle refused to comply, she could have gone to federal court, and requested a court order. The great uncle’s failure to obey that order would have meant contempt of court; he could have been fined for every day of refusal and jailed almost immediately. At that point it was still January; the threat by a federal court
might have been enough. Reno also could have begun a criminal proceeding against the great uncle for his failure to comply with her order; charges could have included child abduction and possibly kidnapping. Again, these actions would probably have forced compliance.
In the March 21 order dismissing the great uncle’s federal case, the judge said that “each passing day is another day lost between Juan Gonzalez and his son.” Reno, while acknowledging the trauma this continued separation was causing Elian, still refused to take any significant action. She set another deadline by which the great uncle had to agree that if he lost the appeal, he would return Elian—in other words agree to obey the law. Once again, true to form, she negotiated day after day, each day extending the deadline and the harm to Elian. The great uncle never agreed that he would comply with the law. Yet when Elian’s father came to the U.S. she started negotiating again (begging may be better word), this time for Elian’s return. This meant even more delay. The spectacle of her—the Attorney General of the United States flying to Miami to convince people who already said they would not obey the law, was embarrassing not only to her, but to the entire Department of Justice. Why she acted in the end
The George Wallace Mayor of Miami-Dade County
Alex Penelas the mayor of Miami Dade County publicly stated that he would refuse to uphold the law and assist federal authorities if they came to take Elian from the great uncle. This reminded people of George Wallace’s refusal to enforce a federal court order to integrate the Little Rock, Arkansas schools. It was a disgraceful performance. The fact that he thought he could and did get away with it demonstrates how much the Miami Cuban community considers itself outside the laws that govern the rest of the county. This is true not only in this instance. For years the First Amendment right of citizens of Miami to express views different than those espoused by the Cuban American National Foundation has been practically non-existent; for years expressing such views has been very dangerous.
When the federal authorities decided to forcibly take Elian, they did not inform Penelas. The raid had to be a surprise. Reno feared he would tip off the great uncle, that demonstrators would gather and that the chance of violence would increase. Nor did he police chief tell the Mayor. After the raid, the Mayor requested the city manager to fire the police chief; the city manager refused and he was fired. The new city manager then fired the police chief. Miami remains a country to itself; apparently run only in the interests of some of its Cuban-American residents.
The Forcible Taking of Elian
On April 22nd Janet Reno finally was forced to act. Elain’s father had been in the country for sixteen days and despite her promise that he would be reunited with his son if he came to the U.S., that had not happened. It was unclear to many why Reno had negotiated for so long and had not acted more forcefully through the courts to remove Elian from the great uncle, particularly because of the manner in which the Miami relatives where abusing him. By the time Reno made her decision she had little choice. The Miami relatives were clearly never going to voluntarily return Elian. After the seizure they claimed they would have done so, but their words and actions belie that claim. A week prior to the raid, the great uncle, Lazaro Gonzalez, said, “We will not turn this child over…They will have to take this child from me by force.” His daughter, Marisleysis, implied that there were guns in the house, “You think we just have cameras in the house? If people try to come in, they could be hurt.”
None of us liked to see the use of force and weapons to retrieve Elian. But once the decision was made to get him back, Reno had no choice. The Miami family had made that clear. Reno and the U.S. also feared violence from those surrounding the house. The U.S. government had trained and supported a number of Cuban-Americans in carrying out acts of terrorism against Cuba. These people were living in Miami and Reno knew the violence they were capable of. After all they were “our” terrorists. In fact, one of those blocking the entrance to the house on the night of the seizure had served 4 years in jail for refusing to tell a grand jury about Omega 7, a Cuban terrorist group.
Nor was there anything illegal about the raid despite the claims of Professor Tribe in a New York Times Op-Ed. Reno went farther then she had to; she went to a judge a got a warrant that authorized her to seize Elian. She probably could have done so without such warrant. In fact, she complied fully with the law.
The right wing TV media did the expected, excoriated Fidel Castro, claimed the father was not free to decide to stay in the United States because members of Juan Miguel’s family were being held hostage and ignored any facts that would show otherwise. So, for example, Mary Matalin on CNN’s crossfire asked “How he (Juan Miguel) can freely make decisions when his mother is in a secure government building, when his father his back in Havana.” And Bill O’Reilly of Fox News’s O’Reilly Factor said that high level sources had informed him that “Fidel Castro is taking no chances about Juan Miguel Gonzalez defecting with Elian. Castro has now removed Gonzalez’s elderly mother from her home in Cuba and has her in custody.” None of this was true. In fact, a day prior to O’Reilly’s report NBC had interviewed Juan Miguel’s parents in their home, not in government custody. Not only were the grandparents free, but they had applied to the U.S. for a second visa to travel to the United States so they could be with Juan Miguel and his family. This second request was turned down by the United States. None of this was reported by these and other reporters who continued to argue that Juan Miguel was not free because of what Fidel might do to the father’s relatives.
The claimed neutral reporters also got in on the act. Cokie Roberts of ABC, a journalist lauded by many, repeated the drivel about Juan Miguel’s parents having been put in a government compound. She rhetorically asked an interview with Janet Reno, “But do you feel that he’s really free? His parents have apparently been put in some compound where they’re being watched by the government.” On ABC’s This Week Cokie Roberts made the extraordinary statement that she wanted Elian and Marisleysis to come and live with her as “she (Marisleysis) is clearly the only person who cares about him.” And what about Elain’s father and grandparents?
The most shocking was the exploitative Diane Sawyer ABC interview with Elian. It was one of the low moments of the entire saga, a utter abuse of Elian and an example of just how base American TV and its newscasters have become. Sawyer asked Elian to describe what happened to him on the high seas, how his mother died and had him draw pictures of the scene of tens of millions of people. Elian was obviously pained by the memory of what occurred.. These are the type of memories a six year old child ought to talk about with a therapist or his father. It is difficult to understand how Sawyer can live with herself; were Dante writing today he would have for Sawyer and her ilk.
Print media was somewhat better—at least the editorials. The majority favored the reuniting of Elian with his father and allowing him to return to Cuba. Even the normally conservative New York Post came out on the right side as did the less ideological Daily News.
The New York Times had three editorials favoring the return of Elian to his father, but pulled its punches as to when and how that should occur. It was frustrating to read the Times continued calls for patience and the use of the courts during a period when the great uncle was abusing Elian, psychological damage was being inflicted and he was denied his father. Not once did the Times recognize this abuse and call for Elian’s immediate removal from his great uncle.
There was much that generally was not covered —except by Salon and a few others–that would have been beneficial to Elian’s case. The great uncle’s family was no model. There were drunk driving convictions, older cousins of Elian’s had been accused of crimes, and the famous Marileysis had been hospitalized for breakdowns even prior to contact with Elian. Then here was the matter of the money, some two million dollars, supposedly offered to Juan Miguel to stay in the United States. Nor was their significant coverage of the how children are treated in Cuba, of the guarantees of health care, education and nutrition. Instead a portrait of children living under state control in almost concentration camp conditions was put forward. The true facts were inconvenient for much of the media; they did not agree with the propaganda line they were putting out.
*Media quotes are taken from a wonderful compilation by Fairness and Accuracy in Reporting (FAIR)
The Law and the Court Cases
Until the very last day, June 28th, when the Supreme Court refused to hear the case and refused to prevent Elian from leaving the country, there was never any assurance that he would be allowed to do so. This was not because the law was unclear. There was never a serious question about the law—Elian should have been returned to his father within days of his November 22 arrival in the U.S. The taking of Elian by his mother was contrary to the domestic law of Cuba and the U.S. as well as international law. It is forbidden for one parent to remove a child from another parent who is exercising some form of custody over the child, even where it only visitation. Here, of course, Elian was practically living at his father’s house; there was really no dispute about this point. Even had his mother survived the voyage he should have been returned to Cuba; that is what the law says. The U.S. has signed a treaty to that effect.
[As an aside here it is important to note that the U.S. by its dry land refugee policy and the Cuban Adjustment Act encourages Cuban like Elian’s mother to make the dangerous voyage by sea. The U.S. Cuban refugee accords permit 20,000 immigrants a year from Cuba. It was not part of the agreement that Cuban who reach the dry land of the United States would also be treated as refugees; it was the understanding that any such Cubans, like those found on the high seas would be returned. The U.S. is in violation of that agreement. In addition the Cuban Adjustment Act allows any Cuban in the U.S. for a year (unlike any other immigrant) to adjust to permanent resident in one year. This is an added inducement to take the dangerous boat trip.]
Once Elian’s mother died, Elian’s should have been an especially simple legal case. There was only one surviving parent, and barring the unfitness of that parent, he, the father, should have gotten his child back. Even had there been claims that Juan Miguel was an unfit father, those claims under the law are to be decided by the courts of the country of the child’s habitual residence, in this case Cuba.
The steps taken in the earliest days of Elian’s case did follow the law. The Immigration and Naturalization Service (INS) is the legal custodian of unaccompanied alien minors. The INS is supposed to try and not put minors like Elian in custody, but should attempt to find a parent or other relative. That is what INS did; it temporarily gave or “paroled” Elian to his great uncle, but INS still retained legal custody. That temporary paroling of Elian was just that; INS could request Elian’s return at anytime and INS could place conditions on that parole, e.g. no TV appearances etc. This temporary parole gave the great uncle no rights, but he did have obligations, particularly to obey INS requests and orders with regard to Elian.
During this entire period there was also an effort to make Elian a citizen or permanent residence by means of a congressional private bill. The theory here was that as permanent resident, Reno and the INS would no longer be his legal custodian and could no longer determine who should have custody of the child. In other words, Reno and INS would be divested of jurisdiction. Elian’s custody would then be determined by the Florida state courts which certainly at the lower levels were bound to award custody to the great uncle. This proposed legislation was a serious threat for a while. Interestingly it was stopped by a number of Republicans some of whom just do not like immigrants and others who had a strong belief in family values and did not want to deprive Elian of this father. As a number of law professors argued it also was probably unconstitutional to make Elian a citizen or resident without his father’s consent.
Subsequent to the temporary paroling of Elian, INS made the determination that Juan Gonzalez was Elian’s father. For political reasons it went even further then it needed to, interviewing the father twice in Cuba and concluded that he had a close relationship to his father and that he was speaking freely. None of this was necessary under the law, nor would any of this have been done with regard to an unaccompanied minor from a country such as Haiti. Such minors would have been returned immediately.
On the basis of these interviews Reno and INS requested that the great uncle to return the Elian by January 14th. When they did not do so, she did nothing to enforce that request. Instead, by letter she informed the great uncle that he could file a federal court action and that she would not take Elian back pending that court proceeding. This was a remarkable caving in to the lawlessness of the Cuban-American community and certainly gave the great uncle the firm impression that they could violate the law with impunity.
The great uncle took up Reno’s invitation and filed a federal court action. It had one primary claim: that Reno and INS improperly denied an asylum application filed by the great uncle on behalf of Elian and signed by the great uncle and by Elian. The application claimed that if Elian was returned to Cuba (1) he would not have the freedom he has in the United States; (2) he might be forced to undergo “re-education” and indoctrination in communist theory; and (3) he might be used for propaganda purposes. Reno and INS had denied the asylum application for two reasons. First, that a six year old child was not competent to file such an application and the great uncle had no authority to do so; and second, that on the merits there was nothing in the application to warrant the granting of asylum. Asylum is given to aliens who have a well-founded fear of persecution for political, racial or similar reasons and the application clearly did not articulate such a fear. Reno’s great uncle insisted that Elian or he could file such an application and that Elian had a right to a hearing prior to its denial.
The Federal District Court in Miami took months, until March 21st, to finally decide in favor of Attorney General Reno. It found that it was within the Attorney General’s discretion to decide whether or not Elian had the capacity to apply for asylum. This was clearly the correct legal decision. The only earlier relevant case concerned a child from the U.S.S.R. An appeals court had found that the views of a child of 12 who applied for asylum should be considered, but that 12 years old was at the lower end of when the INS had to do so. The lawyers for the great uncle knew this and argued that Elian, while only six, had the mental capacity of a 12 year old.
From the time of that district court decision it took over 3 months to finally let Elian go home. It must have been a frightening time for Elian and his father. The appeal of the district court order went to 3 judges in the 11th Circuit court in Atlanta. The first order out of this court—on the question of whether Elian could leave the country while the appeal was pending– did not bode well. The circuit court continued to require that Elian not leave the country, a decision that many of us expected. But the court went on to say that the language of the asylum statute “appeared to support” the great uncle’s claim that Elian as a six year old could apply, on his own, for asylum and “it appears that he did so.” The court further emphasized that Elian, “has expressed a wish that he not be returned to Cuba,” and that the INS had failed to interview him. That the court could have believed that a six year old had any idea about asylum or that his claimed preference of where to live should be considered, seemed absurd and ridiculous. Its an embarrassment to the claimed intelligence of the judges. I asked myself whether any of them had ever raised children?
Luckily, the decision on the merits of the case went against the great uncle. On June 1st the circuit court decided that the asylum statute gave Reno the authority to rule that a six year old was not competent to apply for asylum and that it was inappropriate for the great uncle to do so as well. But the three judges did so with great reluctance and they said so. Essentially the court said that had the decision been theirs to make they would have made a different decision, but because Congress had left the issue to the Attorney General they could not interfere. The Court heavily criticized Cuba: “We acknowledge, as a widely-accepted truth, that Cuba does violate human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba.” This statement is not only false, but it was utterly extraneous to the opinion and seems to have been made to ingratiate the judges with the Cuban-American community. The court went on to say that a “reasonable” asylum judge might well have granted the application and found that re-education was persecution. Presumably to these judges teaching students the benefits of capitalism is education and teaching the benefits of socialism is re-education.
This decision should have ended the case, but the great uncle and the Miami Cubans did not give up. They appealed to all twelve judges of the judges on the 11th Circuit; while this appeal was pending the order prohibiting Elian from leaving the country remained in effect. On June 23rd the Circuit denied the appeal. On June 28th the Supreme Court refused to hear the case and refused to prohibit Elian from leaving the country. He, his father and the rest of his real family left for Cuba few hours later.
Some Afterthoughts, The Return Home & Fidel
One of the ironies of Elian’s case is that the primary accusation leveled against Cuba, that the State takes custody and control of children from their parents, is precisely what the Miami Cubans attempted to do in the United States. The accusation with regard to Cuba is unfounded. Yet, without any apologies, these Miami Cubans attempted to take a very young child from his father. Another irony is that unlike the United States where millions of children do not receive a good education, sufficient nutrition of have good health care, the opposite is true in Cuba. In the very community where Reno placed Elian, his relatives were not exactly shining examples of the benefits of America’s bounty.
Behind many of the actions taken in Elian’s case was the belief by both the Miami Cuban, by Reno and Clinton et al., that if and when Juan Miguel came to the United States, he would defect and stay here. This explains many of their actions. It explains why Reno did nothing to take Elian out of an abusive situation with the great uncle until Juan Miguel came to the U.S. Elian was the bait to bring the father here. It explains why the case was tied up in court. Reno always knew the court had no jurisdiction and she could take Elian back; but court delayed the return forcing Juan Miguel to come to the U.S. The court itself, even after Elian and his father were reunited, refused to let Elian leave; there could be only one reason for this—the vain hope that Juan Miguel would defect. The politicians, the courts, the Cuban Miami community could not believe that Juan Miguel would voluntarily go back to Cuba, especially after two million dollar offer to stay. After all in the United States for many it is money and not morality that matters. But Juan Miguel proved otherwise.
It should be recognized that it was Cuba that acted morally took the risks. Cuba made the decision to permit the father and his family to come to the United States where it knew the pressure Juan Miguel would be under to defect. But it allowed the journey in the belief that what was most important was the reuniting of Elian and his father. Many would have been tempted by the offers made to Juan Miguel; he was not. For this he stands as an important symbol not only to the Cubans, but to all of us.
In awarding Juan Miguel the Carlos Manuel de Cespedes Order Fidel recognized the importance of the decision made by Juan Miguel, the incredible pressure brought upon him to forsake his country and the risks. As Fidel said:
“A whole nation staked everything and was prepared to do whatever was necessary for his son. But in the final stage, the success of failure of our colossal efforts depended solely on him. The best decision made by the revolution was to fully trust Juan Miguel. The biggest mistake made by the mob and the empire was to believe that Juan Miguel could be bribed and coaxed into treason….There is a grave moral sin of which neither [the U.S. Administration and the Miami mob] is innocent. They both believed that Juan Miguel could be bought and even openly urged him to defect and stay in the United States.”
Fidel closed the award ceremony by recalling highlights of the revolutionary struggle that he had experienced. Yet he said that at
“none of these moments in our struggle have I felt such intense emotion as I did when I saw on television that door open on the little plane that brought them from the United States after so many months of tireless battle, and the figures of Juan Miguel and Elian emerge, at 7:53 p.m. on June 28. A small boy and a modest Cuban father known by very few people hardly a few months before, were as great moral symbols of our homeland.”