MSNBC
January 14, 2000
 
 
The law and Elian Gonzales
 
Analysis: U.S. must return 6-year-old boy to his dad

                                                                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.