Register Editorial . Mobile Register, April 20, 2000
The Clinton administration deservedly suffered a stinging rebuke on Wednesday when the 11th Circuit U.S. Court of Appeals ordered that young Elian Gonzalez should remain for now in the United States.
The court's injunction will stand until the boy and his Miami relatives can make their appeal for an asylum hearing. Oral arguments in that appeal are scheduled to begin on May 11.
In recent weeks, few spectacles have been as ludicrous as the sight of President Bill Clinton citing the "rule of law" as reason to return young Elian to his father. Just over a year ago, remember, this was the same president who was in effect arguing that he himself was above the rule
of law. But more than that, what was particularly galling about Mr. Clinton's statements was that the law has not yet spoken on this Cuban boy's case.
Sure, the Justice Department, through the famously obtuse Attorney General Janet Reno, has spoken. And so has the Immigration and Naturalization Service. But the Justice Department does not decide the law; it only represents the administration's position as to what the law says. And the INS is
not a court of law, but merely a regulatory agency. As such, its rulings can be appealed in the courts, which is where the meaning of existing law is ultimately determined. And the courts have not yet spoken.
The rule of law, therefore, dictates that parties to a dispute have the right to be heard in court. By trying to deny that right to Elian, and to his Miami relatives, the administration was acting in opposition to the rule of law.
As the 11th Circuit panel wrote, young Elian deserves "his day in court." To deny it to him, the judges wrote, could do "irreparable harm" to him. And make no mistake: Allowing Juan Miguel Gonzalez not only to take custody of his child, but to return with him to Cuba pending
the appeal, would effectively nullify that right to a day in court.
The nature of Fidel Castro's communist regime is such that there is almost no chance that the father and child would return to the United States for the court hearing if they were already in Cuba. In Cuba, there is no rule of law independent of Castro's wishes.
As the judges wrote, Elian's "case will likely become moot" in those circumstances.
The judges furthermore took a well-aimed shot at the INS. To quote from their decision: "It appears that never have INS officials attempted to interview plaintiff Elian— about his own wishes. It is not clear that the INS, in finding plaintiff's father to be the only proper
representative, considered all of the relevant factors - particularly the child's separate and independent interests in seeking asylum."
Meanwhile, the family in Miami continues to offer Juan Miguel Gonzalez the invitation to come to their home, meet with them and see his son. Oddly, he has refused, preferring instead to conduct media interviews while based at the Washington home of Castro's emissary.
Lest one think that Elian's father is not under pressure, consider: Mr. Gonzalez' mother has been moved from her own home to a house in Havana secured by the Castro government, and his young stepchild remains in Castro's clutches as well.
There remain many unanswered questions in this case. And only a court of law, with its long-established rules of fair play, can decide the complicated issues involved.
That's why the 11th Circuit was right to keep Elian in the United States - so that another court, the proper one, can hear his case in full.
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