CUBANET ... CUBANEWS

April 22, 2000



Elian

NY Times


Reno Says Miami Relatives Forced Seizure of Elian

By THE ASSOCIATED PRESS

WASHINGTON -- Attorney General Janet Reno today defended the decision to take Elian Gonzalez by force, saying the government believed agents might face armed resistance in ending the standoff.

Reno said the government received information that there might be guns "perhaps in the crowd, perhaps in the house" and agents had to be prepared.

She said the government will "take every step necessary" to ensure that the 6-year-old Cuban boy does not leave the United States with his father until the court battle over his custody is resolved.

The Miami relatives left the government no choice but to move in forcefully and take the boy, she said.

"I informed the parties that time had run out," she said after an all-night session of negotiations that ended with the boy's seizure before dawn.

Associated Press photos taken during the seizure showed one of the fishermen who rescued Elian at sea five months ago backed into a closet, clutching the boy, as an agent pointing his weapon was about to take him.

Asked about the photo, Reno said the gun "was pointed to the side" and the agent's "finger was not on the trigger."

Reno did not say whether any weapons had been found in the house.

Authorities outside fired pepper spray to control the relatives' angry and distraught supporters.

"We have been told on occasion that people would have weapons to prevent it from happening," Reno said.

She told a news conference that eight agents were in the house for just three minutes. A female agent spoke to Elian in Spanish as she took him from the house, where he has stayed since his Thanksgiving Day rescue off the Florida coast.

Reno said after she set the raid in motion, the intermediary for Elian's Miami relatives called with a counteroffer.

"I did until the final moments try to reach a voluntary solution," she said.

Reno said the boy needs to "have quiet time and to be with his father." As she spoke, Elian was being flown to a Washington-area airport for a reunion with his father, Juan Miguel Gonzalez.

Father and son talked by telephone during Elian's flight to Washington.

While an appeals court deals with the custody dispute, Reno said, "We will take every step necessary to ensure that Elian does not leave the country."

The attorney general expressed frustration in the government's dealings with the Miami relatives during the five-month-long standoff.

"Every time we thought we had achieved what we wanted, it wasn't enough," she said. "It was just one step after another in which they moved the goalpost."

Greg Craig, lawyer for the boy's father, expressed relief that the standoff was finally over and said the use of force was necessary to get Elian away from his Miami relatives.

Reno "walked the extra mile and then walked yet another mile," he said in Washington.

"We agreed to virtually all the demands contained in the attorney general's proposal, but we would not compromise on the most critical issue of custody," Craig said.

Reno had led extraordinary all-night negotiations trying to resolve the custody dispute after Miami civic leaders serving as intermediaries proposed a settlement.

Proposals and counterproposals flew through the night by telephone and facsimile machine among the Miami house, the Justice Department and the Washington office of the father's lawyer.

Specifically, the proposal called for Elian, his father and the two Miami relatives who have been the boy's chief caregivers -- Lazaro Gonzalez and his daughter, Marisleysis -- to move to one of two foundation-owned conference centers near Washington -- either Wye Plantation, a center on Maryland's Eastern shore that has been used for Mideast peace conferences, or Airlie House near Warrenton, Va., according to a government official, who requested anonymity.

The plan called for formal custody to transfer immediately from the Miami relatives to the boy's Cuban father -- something the relatives have refused to accept.

Another sticking point was the length of the joint occupation of the compound. The intermediaries proposed that all family members stay until a court appeal is completed, in late May at the earliest. But Juan Miguel Gonzalez faxed a counterproposal back in late evening that called for a much shorter joint stay, the official said.

During the evening, Gonzalez traveled from his temporary home in the Maryland suburbs to the downtown offices of his lawyer, Gregory Craig, to review proposals forwarded by Reno. He went home before midnight.

Lawyers assembled at Lazaro Gonzalez' Miami home Friday night. A fax machine was carried in, then back out when they went to a local restaurant. At mid-evening, the crowd of Cuban exiles outside was read a letter to Reno that suggested resistance on the key issue. In it, the relatives' pediatrician, Armando Acevedo, wrote that it would be "harmful ... (and) inhumane" to remove Elian from their home.

TV Viewers Awake to Startling Pictures of Pre-Dawn Raid

By The Associated Press.

EW YORK -- Television viewers awoke today to repeated video images of the pre-dawn raid to snatch Elian Gonzalez, pictures of a federal agent running to a van clutching a frightened little boy.

CBS, NBC, CNN, Fox News Channel and MSNBC were all covering the dramatic development in the ongoing custody battle live by 6:15 a.m.

Their live footage showed people rapidly arriving at the house in Miami's Little Havana section where the 6-year-old had been kept, no doubt alerted by television that the moment they feared had taken place.

The most arresting pictures on TV, however, came from a photographer working for The Associated Press. His pictures showed a federal agent in the home, pointing a gun, and Elian being held in a closet by Donato Dalrymple, one of the fishermen who had rescued him in November.

The photographer, Alan Diaz, had been waiting in a house adjacent to the Gonzalez residence. When he heard a noise outside the relatives' house, he hopped a fence to enter the home.

It was not immediately clear why there were no video pictures from the Gonzalez home. Television networks had been talking with the family about having a camera present to record any raid.

Unlike Diaz's photos, the only video pictures from inside the home depicted the aftermath of the raid, showing religious icons and toys scattered about.

TV pictures from outside the home showed federal agents squirting pepper spray on bystanders. Some in the crowd tossed chairs and other objects at the government's white vans as they sped away with Elian.

A tearful, shaking Dalrymple was quickly interviewed by TV networks.

"My God, what's happened to our judicial system?" he said on NBC. "What has happened in America? Please, America, don't fail this community."

An angry Miami Mayor Joe Carollo made the rounds denouncing the government. On NBC, he called the agents "thugs." On CNN, he said it was one of the most shameful acts he had ever seen.

"What they did here was a crime," Carollo said on CBS. "Tell the country that these are atheists. They don't believe in God ... I felt that I could not trust our government any longer."

ABC was caught somewhat flatfooted by the raid. It broke in to children's programming briefly at 6:30, and didn't begin continuous coverage until anchor Elizabeth Vargas appeared shortly before 7 a.m.

CBS's Dan Rather was the first of the three top network anchors to appear, at 6:50 a.m., and was interviewed by CBS correspondents as something of an elder statesman. Rather had interviewed Juan Miguel Gonzalez, Elian's father, last weekend.

THE LEGAL QUESTIONS

Court's Ruling Is Giving Experts Pause About Rights of Children to Be Heard

By William Glaberson.

he federal appeals court ruling on Wednesday in the Elián González case has startled experts on family law because it suggests that immigration officials should ask 6-year-old Elián whether he wants to return to Marxist Cuba or remain with his Miami relatives, regardless of the wishes of his father.

But just how much control should a 6-year-old have over his future? Beyond the international political fight, and the chanting of the crowds outside a small Miami house, should Elián be able to choose his country?

At least until Elián's case, the answer under American law seemed to be that a 6-year-old had no such right.

"The rule is that parents decide for children," said Martin Guggenheim, an expert on children's rights at New York University Law School.

Some of the language of the preliminary ruling from the United States Court of Appeals in Atlanta, and the reaction of legal experts this week, has suddenly placed unusual attention on a little-examined corner of American law. In fact, very young children, those under 12, are seldom asked to decide questions as important as whether they will live with their parents, legal experts say.

Some lawyers and judges pointed out that the appeals judges' suggestion that Elián should be interviewed by immigration officials did not mean that his preferences would carry any significant weight. Immigration officials could still conclude that the boy is too immature to make any meaningful decision about whether to seek political asylum.

But some of the experts said they were troubled by the fact that the judges seemed to suggest that the boy had already made meaningful decisions about seeking asylum. The court said not only that Elián might be able to apply for asylum but "it appears he did so." The judges noted that the boy had signed an application filed with the Immigration and Naturalization Service.

"It would be a nearly meaningless question to ask a 6-year-old whether he prefers one economic system to another economic system, one culture to another culture," said Lee E. Teitelbaum, an expert on juvenile law who is the dean of Cornell University Law School. "These questions are hard enough for adults to answer. "

In American courts dealing with more routine disputes like custody battles, older children are sometimes asked their views, but courts do not necessarily feel bound to abide by them. Some states set 16 as the age when courts must follow the wishes of children in custody disputes between two parents.

That legal approach to children is based on a view that very young children, do not have the maturity to make decisions about their future and that to ask them to try may be psychologically harmful.

"Anyone who is not a 'mature minor' under the law cannot make any decision over a parent's objection," Professor Guggenheim said. "You can't apply for amnesty over a parent's objection; you can't go to the dentist over a parent's objection. Your parents decide where you go to school, what church you go to, who your friends are."

The legal question is complicated in the Elián González case, partly because there is no absolute rule in American law setting forth how old children should be before their opinions are considered in court. "We tend not to draw the line," said Carol Sanger, an expert on children's legal rights at Columbia Law School.

But Professor Sanger said the courts had not expanded their flexible approach to credit the wishes of a 6-year-old on an issue as important as where he should live when a living parent has expressed a strong desire.

"We use a maturity standard," Professor Sanger said. "But the judicial system thinks a 6-year-old is inherently immature. We think they discuss what they want now: chocolate milk, an electric car."

Some legal experts said the suggestion by the appeals court, the United States Court of Appeals for the 11th Circuit, that officials should ask a 6-year-old to decide whether to seek asylum violated principles that have been widely accepted. "American courts think certain things have to be decided by adults, and the adults who decide them ought to be the parents," said Michael S. Wald, a specialist in children's legal issues at Stanford University Law School.

There has been some expansion of children's rights in recent years, with children treated less and less like the property of their parents. In the 1970's, Hillary Rodham Clinton was one of the proponents of that movement, writing law review articles proposing the expansion of children's rights in some circumstances. (She has said Elián should be reunited with his father.)

But even taking into account this more modern view of children, some experts say it would be difficult for the courts to use the González case to expand children's rights to the point of giving a 6-year-old veto power over his father's decision that no asylum application should be filed for his son.

To a large extent, the varying treatment of children in the American legal system depends on the context. For example, the "age of majority" at which children are deemed to be able to make all decisions independently varies from 17 to 21. Under federal law, 18-year-olds can vote.

Nationwide, children 7 and younger are typically deemed so immature in their thought processes that they cannot form the conscious intent to commit crimes. So, even when they commit violent acts they are often immune from prosecution.

But when children are called upon to testify as witnesses, judges apply a different test. They evaluate whether a potential child witness understands the nature of the oath to tell the truth by asking, for example, whether the child knows what it means to lie.

Professor Guggenheim of New York University said that under that test, very few 6- or 7-year-olds qualify to present sworn testimony. But he said many courts do hear sworn testimony in civil and criminal trials from children 8 and older.

Professor Sanger of Columbia said the courts have different standards in evaluating children's participation in court proceedings. As witnesses of events involving other people, like observing a crime, one test is whether a child would be a reliable witness. Many courts have concluded that children can correctly report events that they have observed.

But she and other experts said a different issue arises when a child is being asked to explain in court what he or she wants in the future, for example, when parents are battling over custody. In the cases of very young children, she said, courts have overwhelmingly shied away from asking children to make choices between parents.

That is partly because judges typically conclude that children can be manipulated and that they can suffer psychologically later from the choices they made as children.

"It has been concluded by the courts that for the majority of children," Professor Wald of Stanford said, "it will be harmful for them to have their voices heard because it puts them in loyalty conflicts and it encourages disputes that get drawn out for years."

Copyright 2000 The New York Times Company

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