| April 27, 2000 ELIAN GONZALEZ I fell asleep watching TV last Friday night. I awoke to an infomercial at about 2:30 a.m. I got off the couch and went into the kitchen for a glass of water. Suddenly, the calm soothing sounds of peoply happy with their real estate investments gave way to an excited news reporter breathlessly talking about Elian Gonzalez. I went back into the family room and there saw the repeated replays of the uniformed SWAT teams carrying out their "operation" and removing Elian Gonzalez from the home of his Miami relatives. For five months, the Elian Gonzalez story had tragedy written all over it. The experience of watching the story resembled watching an out of control train that you knew was eventually going to crash, but hoping against hope that a miracle resolution would reveal itself. The boy required a Solomon -- instead he got Bill Clinton and Janet Reno. This past weekend, I focused on the story for the first time in detail. After reviewing the sequence of events, I am convinced this is the lowest moment of the Clinton presidency. The impeachment scandals, the campaign financing scandals, the smearing of his political enemies, etc., were low, but they were merely personal or political scandals. This was different. In this case, the President of the United States, acting through his incompetent and pathetic Attorney General, placed the interests of a foreign dictator ahead of the interests of a six-year old boy, his United States citizen relatives, and the wishes and emotions of almost 1 million American citizens who saw in the boy the symbol of their entire lives. To do so, he had to lie, mislead, ignore the law, and when all else failed, invade the home of United States citizens who broke no law and take away a six year old boy at gunpoint. To be clear, the end here -- returning the boy to Cuba -- is not the scandal, although returning the boy to Cuba would be a tragedy. (Of course, keeping him in the US while Daddy stays in Cuba would also be a tragedy -- that is why this whole mess is a tragedy). The scandal here is the means that culminated in the events of last Saturday morning. There was absolutely no justification for what occurred. Like all Clinton scandals, the more you know, the more loathsome Clinton's actions become. Recent polls show general support for the administration's actions, because the general awareness of the incident resides at the "Daddy vs. great-uncle", "who the hell cares about Cuba," "why is this still in the news" level. However, since the readers of the list care about truth, let's deconstruct the administration. LIE NO. 1: ONCE THE FATHER REQUESTED THAT THE BOY BE RETURNED, THE UNITED STATES GOVERNMENT WAS REQUIRED TO ACT: The United States had absolutely no responsibility to become involved in a custody dispute between the boy's father and the father's relatives in Miami. The decision to become involved was a political decision to appease Fidel Castro. Eventually, we will know why Bill Clinton decided to act as an agent for one of the most repressive countries in the world. In the meantime, all we know is that he did. Here is the evidence. The following are quotes are from the Miami Herald: November 30, 1999: U.S. government officials said Monday they will play no part in deciding whether 5-year-old Elian Gonzalez, the survivor of a Thanksgiving week smuggling tragedy that killed his mother and nine others, should rejoin his father in Cuba or remain with relatives in Florida -- a question they said can be answered only in state courts. Even as the Cuban government and the boy's father, Juan Miguel Gonzalez, again demanded the boy's return to the island, State Department and immigration officials concluded in a late-afternoon meeting in Washington, D.C., that they have no legal say in the matter. December 1, 1999: As Gonzalez pushed for his son's release, the U.S. Immigration and Naturalization Service said it will contact the Florida Department of Children and Families to discuss Elian's future. INS has paroled him into the United States so the boy can apply for residency. ''We are involved because of the humanitarian interest for Elian Gonzalez,'' INS spokesman Dan Kane said. ''We are concerned about his health and welfare.'' December 4, 1999: The debate over whether 5-year-old Elian Gonzalez ought to be returned to Cuba is all but over if the Cuban government continues to insist that the boy's father will not travel to the United States to seek custody, legal experts said Friday. Cuban Foreign Ministry spokesman Alejandro Gonzalez said Thursday that the father, Juan Miguel Gonzalez, will not go to Miami to claim his son. Without his father's presence, Elian will continue to live indefinitely with relatives in here since U.S. immigration officials have declared the custody dispute a matter for Miami-Dade family court, experts said. . . . . In Havana, Ricardo Alarcon, president of the National Assembly, said he will raise Elian's status at U.S.-Cuba immigration talks set for Dec. 13 in Havana. ''The situation we face today is a direct, specific and clear violation of the migration accords,'' Alarcon said. The policy established by the Cuban Adjustment Act of 1966 fosters the ''vile'' smuggling of immigrants by people ''who enrich themselves at the expense of other people's lives,'' he said. December 7, 1999: The escalating confrontation over Cuban refugee Elian Gonzalez became more intense Monday as Cuba stepped up preparations for anti-U.S. demonstrations and the Clinton administration flatly rejected a demand by Cuban President Fidel Castro to hand over the child soon or face a public backlash in Cuba. . . . . . The confrontation comes just days before U.S. and Cuban officials are set to meet for regularly scheduled migration talks next Monday. Those talks monitor the status of two historic accords reached between Havana and Washington in 1994 and 1995, which curtailed a rafter exodus by allowing the repatriation to Cuba of illegal migrants and which facilitated the orderly outflow of more than 20,000 Cubans a year to the United States. Cuban officials have made plain that they believe the decision not to repatriate Elian Gonzalez immediately was a violation of those accords. Over the weekend, National Assembly President Ricardo Alarcon hinted that the talks might be scrapped because ''it is very hard to imagine that we could have any type of constructive discussion'' while the controversy over the child simmers. . . . . With the prospect of a renewed Cuban exodus never far from the minds of U.S. policy makers, Foley said it was the State Department's view that the migration talks were in the ''mutual interest'' of both nations. U.S. officials noted that Castro's angry outburst Sunday, when he branded the U.S. decision to let Florida courts handle Elian's case a ''kidnapping, was the fourth strong attack he has launched against U.S. policies over the past few weeks. ''Castro is clearly orchestrating a major anti-American campaign with all this, and now the child," one U.S. official said. ''The question is, where is he going with all this? We just hope it doesn't get out of control. December 8, 2000: After days of U.S-Cuban acrimony over a little boy saved from an inner tube at sea, the U.S. government Tuesday signaled a willingness to consider returning 6-year-old Elian Gonzalez to Cuba to live with his father. ''We are committed to working with the family of Elian Gonzalez, including the father, and all relevant officials to achieve an appropriate resolution to this case,'' a State Department statment said. U.S. immigration regulations ''recognize the right of a parent to assert parental interests in a immigration proceeding,'' it added, explaining that immigration service agents would contact the boy's father in Cuba to explain the procedures. The announcement capped a third straight day of furious Fidel Castro rhetoric -- and immediately touched off anger in Miami, where exile activists accused the U.S. of bowing to Castro's bullying. I do not think you have to be a conspiracy theorist to conclude that the administration's decision to become involved was prompted by threats from the Cuban government and not by any specific concern over the boy or the father's rights. Since Clinton would never admit he is trading the life of a six-year old boy for peaceful relations with Cuba, we had to hear five months of bullshit about the rights of Daddy, and how the Miami relatives are unstable and crazy for attempting to keep the boy in the United States and out of a country the State Department has called one of the worst abusers of human rights in the world. In any event, I think it is inescapable that everything that happened after December 8 must be analyzed with the understanding that the administration had promised that Cuban government that the boy was coming back -- whatever it took. LIE NO. 2: FEDERAL IMMIGRATION LAW REQUIRED THAT THE BOY BE TURNED OVER TO THE FATHER: If I hear Bill Clinton or Janet Reno mention that "rule of law" one more time, I will explode. It is a blatant lie. There is no federal immigration law that required that the relatives turnover the boy to the father. Let's be clear about this. Bill Clinton, through Janet Reno, through the INS, has a statutory duty to determine who is entitled to be present on United States soil. In exercising that responsibility, the INS has the discretion to determine who has custody of an unaccompanied child when he is present on United States soil pending further determinations. On November 26, 1999, the INS decided that person should be Lazaro Gonzalez. On January 6, the INS changed its mind and said custody of the child pending further immigration proceedings should be granted to the father who wasn't even present in the United States. Nothing compelled that decision, which is almost nonsensical (how can the boy be in temporary custody of the father in the United States when the father isn't in the United States?). There is no law. It was a political decision. Let us be even clearer. The INS has no authority to make any ultimate child custody decisions. Child custody decisions are made by state courts. This is what the INS actually said on January 6, 2000: "After careful evaluation of the relevant facts, INS has determined that Mr. Juan Gonzalez of Cuba has the sole legal authority to speak on behalf of his son Elian regarding Elian's immigration status in the United States." What this means is that the INS did not decide, as a matter of law, that Daddy was entitled to permanent custody as opposed to Lazaro (again, that would be nonsensical because Daddy wasn't in the US). What the INS said is that, because Elian was a minor and incompetent to assert rights on his own, the INS was going to follow the instructions of Daddy for immigration matters as opposed to Lazaro. And Daddy wanted him back. The decision to permit Daddy to make decisions as opposed to Lazaro was purely discretionary. There was no law that compelled the result. Furthermore, and this is easily forgotten, Elian was born two years after Daddy divorced mom, and Daddy is not listed on his birth certificate. This is not to say that Daddy isn't the Daddy, or that he wasn't involved in the boy's life. However, if the INS is making a technical legal decision about who has legal authority to speak for the boy, Daddy's custodial rights are not clear. Mommy had the sole authority to speak for the boy, and she attempted to bring the kid to the United States. The issue is not that simple under family law. But that is what family law courts are for. LIE NO. 3: THE COURTS UPHELD THE INS DECISION TO RETURN THE BOY TO THE FATHER: Shortly after January 6, 2000, Lazaro filed suit in Federal Court. In essence, Lazaro said that Elian, even though a minor, was entitled to an asylum hearing, even if Daddy said no (the relatives had Elian sign his own asylum petition in December). The INS, on the other hand, said that Daddy "has the sole legal authority" to speak for Elian and he said no, so end of story. On March 22, 2000, the District Court ruled in favor of the INS's right, in its discretion, to deny Elian an asylum hearing. At this point, the administration plays hardball, and insisted that the relatives agree to an expedited appeal and to hand over the boy if they lose the appeal to the 11th Circuit Court of Appeals. On April 19, 2000, the Court of Appeals blows the INS out of the water. In essence, the Court preliminarily held that the INS violated the law and its own regulations when they denied Elian an asylum hearing without even interviewing him. In short, in direct contradiction to what the INS said on January 6, the Court said that Elian has an interest independent of his father and is entitled to a hearing. Furthermore, and this is critical, as part of the appeal, the INS requested that the Court order Lazaro to turnover Elian to the INS pending further proceedings. The Court refused. Instead, the Court recommended mediation. To be clear, therefore, the house was invaded three days after the Court of Appeals ruled in favor of the family, refused to order the turnover of Elian, and recommended mediation,. The reason for the invasion of the house, of course, was that the relatives refused to obey the law. LIE NO. 4: NOTWITHSTANDING THE ABSENCE OF A COURT ORDER, THE INS HAD THE AUTHORITY TO INVADE THE HOUSE AND SEIZE THE BOY: If there was no Court order compelling Lazaro to turnover the boy, where did the INS get the authority to invade the house? To be highly technical, because Elian was picked up by the Coast Guard at sea and did not make it to land, for purposes of immigration law, he is an "excludable alien" and not technically in the United States. What this means is that Elian has no right to be in the United States until a decision is made by the INS to permit him to stay (if he makes it to land, he is a "deportable alien" and has the right to stay until he his deported, which would provide him certain due process rights he presently does not have). However, the INS has the discretion to "parole" him to a parent, legal guardian or other adult who will vouch for his well being pending further proceedings. On November 26, 2000, Elian was paroled to the temporary custody of Lazaro. Daddy arrived in the United States on April 6, 2000. For several days, the INS attempted to work out a deal by which Lazaro would voluntarily turnover Elian. After the negotiations were unsuccessful, on April 14, 2000, the INS revoked Lazaro's temporary custody of Elian and demanded he be turned over. On April 19, 2000, the Court of Appeals ruled in favor of the Miami relatives and denied the INS's request for an order compelling turnover. Without the court order, Lazaro was under no compulsion to turnover the boy. The INS has no authority to order a United States citizen to take any action without first going to Court. However, and this is critical, because the INS revoked Lazaro's custody, in the eyes of the INS, Elian was now an illegal alien. Therefore, as a legal matter, the invasion on April 22, 2000, was not allegedly justified by Lazaro's failure to tunover Elian (there is no such order, remember), or the best interests of Elian, but was actually characterized as the arrest of Elian as an illegal alien. In order to enter and search the house, however, the INS needed a search warrant. Therefore, the INS alleged that an "illegal alien" was being "concealed" and "unlawfully restrained" at the house. First, it was nonsensical and a lie to allege that Elian was being "concealed" at the house, since everybody in the Western Hemisphere knew he was there. For God sakes, the relatives were being criticized for parading the kid. Second, it was nonsensical and a lie to argue that he was being "unlawfully restrained" -- the Court of Appeals had just refused to order the relatives to turnover the boy. In fact, the very example the INS used in its brief as an example of an unlawful restraint was a parent who ignored a court order to turnover custody. That is precisely what was not occurring. Finally, it was nonsensical to allege that that Elian was subject to arrest for being an illegal alien. The Court of Appeals had just ruled three days earlier that he was enjoined from leaving the United States! How can you be arrested for illegally being on United States soil when a Federal Court just enjoined you from leaving! The only possible legal justification for arresting Elian would be that the INS has unfettered discretion to detain and imprison all "excludable aliens," including cute six-year olds. Perhaps so. But for the record, it would be unprecedented in the history of American immigration law to arrest a previously paroled minor who committed no crime, or is in the care of relatives, or has petitioned for political asylum, or an appellate court just refused to order be turned over to the INS. But the ends justify the means. LIE NO. 5: THE MIAMI RELATIVES GAVE JANET RENO NO OPTION BUT TO FORCIBLY REMOVE ELIAN: Let me preface this by saying that the relatives were emotional and often intransigient in demanding a meeting with Daddy before they would agree to turnover custody. However, they were United States citizens motivated by love for a boy and love for the freedom of this country as opposed to the repression of Cuba. Nothing they did justified what was done to them. Based upon the undisputed testimony of neutral mediators, at 8:00 p.m. on April 21, 1999, the family proposed a deal for reunification. At midnight, Daddy rejected the deal, because the family reunification that the relatives insisted upon would take place in Florida as opposed to Washington D.C. At 3:00 a.m., Janet Reno called the mediator and said that the reunification had to take place in Washington D.C. or no deal. While the family was considering that last clause, while the relatives' lawyer was on the phone with the mediator, who was on the phone with Janet Reno, the invasion took place. How this can be characterized as intransigience on the part of the relatives is beyond me. Furthermore, what possible rationale can there be to launch the raid under these circumstances? The only explanation that makes any sense is that the INS must have been shocked on April 19 when the Court of Appeals slapped the INS silly and made clear that Elian was entitled to an asylum hearing. If an asylum hearing goes forward, this case will drag on for months, plus there will be a full evidentiary hearing on conditions in Cuba, which the State Deparment in 1999 declarared one of the most repressive countries in the world. Therefore, in order to avoid all of this and keep the promise to Fidel Castro on December 8, the INS had to get possession of the boy in order to attempt to get his asylum petition withdrawn. The ends obviously justified the means. HOW THIS TRAGEDY SHOULD BE RESOLVED I don't know whether the boy should stay or should he go. But I do know how this all should have been handled. The nature of the tragedy - that there is no right answer - was clear from the start. Therefore, the United States government had a responsibility to the boy, Daddy, the Miami relatives, and the Cuban-American community, to act as a mediator and not as an agent of the Cuban government. All Bill Clinton had to do was immediately offer to fly into the country Daddy and whoever else Daddy wanted to bring, and set up a meeting with the Miami relatives. If Daddy refused to come, so be it, but that would resolve the issue, because it would prove that either (a) Daddy didn't want the boy to come back, or (b) the Cuban government wouldn't let Daddy come, which would shoot to hell the argument that Daddy as opposed to Fidel Castro was the true "parent" here. If after extensive mediation Bill Clinton found the relatives instransigient, and the relatives sued for custody in family court, the federal government could have intervened and supported Daddy, including even making the argument that the foreign relations interest of the United States supports returning the boy. If the family court ruled that Elian should be with Daddy, I think all could have lived with that. If the relatives refused to turnover the boy after a court order, that would be an "unlawful restraint" and a search warrant would have been appropriate. But that is not what Bill Clinton did. He made the decision on December 8 to return the boy no matter what the consequences. Therefore, the boy will be returned even though: 1. Three days before Elian was picked up at sea, Daddy called Lazaro and told him the boy was coming and to take care of him. . 2. Daddy refused or was not permitted to come for five months. 3. Daddy has refused or was not permitted to meet with his Miami relatives, even though that meant he couldn't see Elian. 4. When Grandmas came to visit Elian, their Cuban handlers refused to let them meet with any of their relatives, including a sister. The fear was so palpable that the nun who organized the meeting changed her mind and stated that the boy should stay in the US. 5. Instead of instructing Janet Reno to delay the raid when the parties were close to an agreement, Daddy apparently consented, or was instructed to consent to, the violent and traumatic home invasion. 6. The Cuban government has stated that the boy is property of the Cuban state and will not be going back with Daddy when he gets back to Cuba. Instead, he will be going to a "rehabilitation camp" for several months. Daddy has made no comment. We haven't heard from Janet Reno's mental health experts either. The case is a scandal. This has nothing to do with whether the boy should be with Daddy or the Miami relatives. This has to do with the actions of the most cynical administration in American history doing the bidding of a dictator, even if that means ignoring the law and invading a home at 5:00 in the morning. If people don't care, @#$% 'em. Thank you for listening. DS |