ANALYSIS
By Burton S. Katz
SPECIAL TO MSNBC
Jan. 14 — It is easy to dismiss Elian’s father, Juan
Miguel Gonzales, as a puppet of a
communist-totalitarian dictator. And since
there’s no love lost between the U.S. and Cuba
anyway, why doesn’t the U.S. government just
give Elian a chance to thrive in a democratic
society, instead of insisting that he be sent back
to a dictatorship. It’s illegal, that’s why.
UNDER BOTH international and local laws, which
recognize that a surviving biological father who is not
otherwise unfit as a parent is entitled to the immediate return
of his son to his custody, Elian should be sent back to his
dad.
In order to grant Asylum to Elian, the Immigration and
Naturalization Service (INS) must make a finding that he
would be persecuted or subject to inhuman treatment were
he returned to Cuba. So far, at least, the INS has made a
finding that Elian will suffer no persecution or be treated in
an inhumane way if he was returned to his father,
grandparents and homeland. This, after two interviews with
Elian’s father. Furthermore, the INS has ruled correctly that
his father is the only one who can legally represent Elian.
That is the test. That is the law. And he wants Elian back.
BEST INTERESTS OF THE CHILD
Despite the passions and protestations of those who
oppose Elian’s return to Cuba, the “best interests of the
child” are not the primary criteria in Asylum cases. “Best
interests of the child” embraces issues that are aired in
family courts having lawful jurisdiction involving parents or
lawful guardians fighting over custody. But in thos case, that
is not the issue before the INS.
But even if it was, who are we to say that Elian will
fare better without his father, grandparents and brother?
How arrogant are we to assume that we know what is
best for a 6-year-old child who sorely misses his family.
Were the situation reversed, and Elian had been
abducted to Cuba, do you think the U.S. would acquiesce
in Cuba directing its “courts of justice” to hold a hearing to
determine what is in the best interests of the child before
deciding whether to honor international law and return him
to the U.S.?
The question is obviously rhetorical. We are a great
nation, but we are not always fair or consistent. We trade
with Communist China, a nation with a history of human
rights violations. We seek rapprochement with Iran, a
country who supports terrorism. We hold talks with a host
of other dictatorships and countries with abysmal record on
human-rights. Yet we refuse to accord Cuba even simple
justice-over politics -something we routinely demand of
other nations.
JANET RENO IS CORRECT
U.S. Attorney General Janet Reno has correctly said
that the Miami State Court has no jurisdiction over INS
matters. She has said that the INS acted properly. It is time
for her, as the Chief Law Enforcement Officer in the nation
to see that the law is enforced. Without further court
proceedings, Elian should be returned immediately to his
father in Cuba. If Reno and the Govt. allow this to be
played out in the theater of political ranting, U.S. Justice will
once again be compromised.
It was not too long ago, that American Justice, acting
out of political considerations denied justice to others:
Sacco and Vanzetti, a pair of Italian Anarchists;
Bruno Hauptman, who while he may have been guilty,
was denied a fair trial in the Lindbergh-kidnapping case;
The Rosenbergs, minor players in a spy network who
were executed during the hue and cry of the public fed by
McCarthy hysteria-though Klaus Fuchs and other spies
who gave far more damaging atomic secrets to the Soviets
and were given lenient sentences;
The killers of civil rights protestors who were acquitted by
bigoted juries
The test of a nation is to do what is right, what is just,
what is fair against the shrill cries of politics and personal
interests. Have a safe trip back to your homeland, Elian.
Burton S. Katz is a legal analyst for MSNBC Cable.