The Washington Post, April 24, 2000
The Court Case
By David Von Drehle. Washington Post Staff Writer. Monday, April 24, 2000; Page A17
Attorneys for the Miami relatives of Elian Gonzalez are worried that their case in federal appeals court will be torpedoed following Saturday's dramatic raid to seize the boy.
Lacking any custody claim, teetering on weakened legal precedents, the Miami lawyers spent yesterday urgently searching for court strategies to keep their hopes of political asylum from slipping away.
Kendall Coffey, a Miami lawyer representing the boy's great-uncle, charged that Cuban agents are now working with Elian's father "to get Elian to renounce his desire to remain in this country."
If the boy changes his mind, the case in federal appeals court is likely to evaporate, independent legal experts said, and Coffey agreed. It is "the way the Justice Department can overcome the ruling of the appeals court, which strongly suggested that [Elian] has legal rights to apply for
asylum."
Even without a change of heart from Elian, the fact that the boy no longer lives with the Miami relatives shifts the legal balance toward Juan Miguel Gonzalez, father of the shipwrecked 6-year-old, experts said.
The father is now in a stronger position to ask the appeals court simply to shut down the legal conflict that has riveted the country.
"It seems to me that a strategy the father might employ is for him to simply withdraw the asylum request and moot this whole thing out," said Theodore Klein, a prominent Florida lawyer who was at the center of a case that the Miami relatives have used to support their own cause.
"Now you've got a father who is in custody of his own child," Klein continued. "His father can say 'Elian, my good boy, sign here.' And he signs. How could the court look behind that?"
Last week, a panel of judges on the 11th U.S. Circuit Court of Appeals said there is a strong case to be made that the 6-year-old requires a full hearing on his application for asylum--a complicated legal document signed painstakingly in a child's uncertain block letters. The court ordered that
Elian remain in the United States until this question is decided.
Oral arguments are scheduled for May 11.
The judges relied heavily on two theories in issuing their order:
First, that Elian's best interests are not necessarily represented by his father. The judges seemed disappointed that the government never interviewed Elian to examine this issue. They cited the fact that great-uncle Lazaro Gonzalez was Elian's caretaker as a reason to pay heed to his views.
And second, the judges theorized that the boy is able to file an asylum application--indeed that Congress, when it wrote the law, set no limits on the age of asylum seekers.
Both are heavily contested legal notions--generally, parents have the authority to determine a child's interests, and very young children are not usually allowed to file important legal documents.
In any event, lawyers say, both ideas may be substantially undercut by the fact that Elian is once again in his father's custody, several lawyers say. As long as the boy was living with other relatives, it was easier to argue that his father did not speak for Elian or understand his best
interests.
"It doesn't need to be a generalized question now of whether children have rights to apply for asylum," said David Martin, a former general counsel of the Immigration and Naturalization Service. "It's a question of how, exactly, Elian exercises that right. He's 6. He needs a
representative, and the one that applies here is his father, who's responsible for his care."
The attorneys for the Miami relatives are preparing to seek a court order allowing great-uncle Lazaro, cousin Marisleysis and a sympathetic doctor to meet with Elian. "We need to minimize the possibility that he will be administered 'therapies' by Cuban psychologists," Coffey said.
Coffey acknowledged that he and his colleagues must hatch new legal theories in an increasingly unorthodox case. He said they are focusing "primarily but not exclusively" on the 11th Circuit, while making plans to rush before other judges if the appeals court turns against them.
The Gonzalez case has always rested on largely uncharted ground. Two existing immigration cases have offered some support to the cause of keeping Elian in the United States, but the change in custody weakens both pylons.
One case, Polovchak v. Meese, dealt with a boy who wished to remain in the United States even though his parents returned home to the Soviet Union. The boy in that case, Walter Polovchak, was 12 when his case began. At that age, courts begin giving some weight to the opinions of children--in
some child custody disputes, for example.
But it also was significant that Walter did not live with his parents during the dispute.
The other case was the one involving Theodore Klein. In Johns v. Dept. of Justice, a Mexican woman was seeking to have her young daughter returned to her after an American couple illegally adopted the girl. Klein was appointed to represent the child after the court decided that all the adults in
the case had interests that might compete with hers.
That case, too, is now strikingly different from Elian's situation, Klein said yesterday. In the Johns case, the biological mother had never known or cared for the girl. The child "had spent her whole life" with the American couple, Klein said, while Elian was separated from his father
for only a matter of months.
Neither of the earlier cases was ever resolved. Walter Polovchak turned 18--old enough to make his own decisions--before his case was decided. Cindy Johns, the little girl, was spirited back to Mexico by her biological mother.
There appears to be no precedent for a child anywhere near as young as Elian applying for or receiving asylum against the wishes of his custodial parent.
If the appeals court abruptly shuts down the Elian drama, the Miami relatives and their supporters won't be the only ones disappointed. Several organizations devoted to the rights of refugees have asked the court to overturn a district judge's decision backing the government's handling of
Elian's case.
These groups--including the Lawyers Committee for Human Rights--are worried that U.S. District Judge K. Michael Moore's decision gives future U.S. bureaucrats too much power to refuse to consider asylum applications from children.
Without taking a position on Elian's case, the refugee groups insist that there are times when children need asylum against the wishes of their parents. "For instance, female genital mutilation . . . is generally conducted at the behest of a young girl's parents," the groups argued in
a "friend of the court" brief to the 11th Circuit panel.
Our Obsolete Cuba Policy . . .
By William Raspberry
Monday, April 24, 2000; Page A25
In their near-fanatic focus on a small tree named Elian, the Miami Cubans may be jeopardizing their foreign policy forest.
That possibility lies in the fact that their stubborn unreasonableness could have the result of putting Cuba policy back on the table--even if Saturday's dramatic events settle the matter of Elian.
A rethinking of that policy is long overdue, of course. What has kept it from happening is that few politicians with clout--and zero presidential candidates--have dared defy the Miami Cubans, for fear of losing Florida's huge pool of electoral votes.
The Miami Cubans constitute a fairly small minority of the state's electorate. But a small, cohesive group willing to vote on the basis of a single criterion can often frustrate the desires of a larger group whose members care about a number of issues.
The Miami Cubans certainly qualify as that single-issue constituency. Castro is, for them, the embodiment of evil. The only thing worth discussing is how to bring him down. Any talk of ending the U.S. embargo against Cuba is the moral equivalent of cutting a deal with Satan. That may be the
principal reason the embargo remains in place after nearly four decades.
The policy, whatever its Cold War anticommunist value, hasn't made sense for years. The rationale for clamping down on communist Cuba was that its international sponsors were using the island to spread communism in the hemisphere. Well, one of those sponsors, China, is now our trading partner.
The other, the Soviet Union, has ceased to exist, and its chief remnant, Russia, has abandoned communism. In what conceivable way does Cuba remain a threat to our interests?
The embargo hasn't made sense in moral terms. Castro remains fit and sassy while his people suffer. Indeed, the chief argument of the Miami Cubans for not allowing Elian Gonzalez to return to his father and Cuba is that Cuba is such an awful place: poor, oppressive and lacking in the
opportunities the youngster would find in the United States.
But one of the reasons Cuba remains so poor--and, I'm convinced, one of the reasons it remains both communist and beholden to Castro--is the embargo. The embargo's effects include poorer-than-necessary health care, malnutrition and under-exploitation of Cuba's potential for tourism. The United
Nations and major human rights organizations have condemned the embargo repeatedly.
Perhaps the embargo's most conspicuous failure is that it hasn't worked on its own terms. Castro, now nearly 74, is as much in power today as he was when President John F. Kennedy imposed the embargo in 1961. He's more likely to die of old age than to be deposed by the embargo we persist in
maintaining.
Nor is there much evidence the American people want to keep the embargo. It's in place almost entirely because of the Miami Cubans who, as certified anticommunists and, in some cases, personal victims of expropriation of their property, have held the moral (or at least political) high ground.
But their behavior over the past four months--and continuing--may have offended enough people to embolden politicians to rethink our Cuba policy. I'm thinking not merely of the shameless exploitation of Elian (they're doing it, of course, to prevent Castro from exploiting him!) or their
obviously sincere notion that to return the boy to Cuba is to condemn him to the hell he only recently escaped.
I'm thinking, too, of the truly disrespectful treatment of the endlessly patient Janet Reno, who, like an ever-hopeful Charlie Brown, kept kicking at a football that's no longer there, because Lucy--in the person of Uncle Lazaro--had snatched it away at the last second.
It's great sport for a while, but then sympathies began to flow toward the hapless Charlie.
Even if it's true that the Miami Cubans are losing sympathy and with it clout on their single most important issue, that doesn't mean that Castro is necessarily gaining sympathy.
My hope is that we'll at least be able to discuss our Cuba policy again. Just last week, Congress asked the U.S. International Trade Commission to begin an official investigation of the effect of the embargo on U.S. and Cuban economic interests. The report is to be submitted to the House Ways
and Means Committee by February. That's not a lot. But it's a start.
Republicans Seek Hearings on Elian Raid
By Thomas B. Edsall. Washington Post Staff Writer. Monday, April 24, 2000; Page A17
Angry Republicans yesterday called for congressional investigations of the seizure of 6-year-old Elian Gonzalez by federal agents, who removed him Saturday from the home of his Miami relatives to reunite him with his father.
"When I saw what was going down, I was outraged, I was sickened, and afterward I was ashamed," House Majority Whip Tom DeLay (R-Tex.) said on NBC's "Meet the Press." "You bet there'll be congressional hearings. . . . [We] should look into this in depth because this is a
frightening event that American citizens can now expect that the executive branch on their own can decide whether to raid a home."
Sen. Arlen Specter (R-Pa.) said on ABC's "This Week" that "the Senate Judiciary Committee should take a close look at the propriety of the government breaking into the uncle's house in the middle of the night. . . . We need to take a look at the professionalism on the judgments
used."
Rep. Jose E. Serrano (D-N.Y.) defended the armed entry into the Miami home, contending federal agents were forced to act without any support from local police. "There was no local support. The mayor had said, 'I'm not going to help you in any way.' So she [Attorney General Janet Reno] had
to do it on her own."
On the morning television shows, Deputy Attorney General Eric H. Holder Jr. and Immigration and Naturalization Service Commissioner Doris M. Meissner defended the Justice Department's actions, but there were substantially more Republican elected officials on the air attacking those actions than
Democratic officials supporting them.
One of the most vigorous administration defenders was Rep. Charles B. Rangel (D-N.Y.), who appeared on at least three shows over the weekend. "The attorney general's conduct was commendable," Rangel said on CBS's "Face the Nation." "As bad as that image was of seeing
these armed military-type people going in, [the message of] the picture of the smiling son reunited with his loving father to me is that we ought to take a deep breath and get on with it."
Democratic and Republican analysts said the political ramifications of a congressional investigation depend on how the inquiry is conducted. They said those with the most to lose are congressional Republicans, whose conduct of the impeachment investigation backfired in the 1998 elections, and
Vice President Gore, the presumptive Democratic presidential nominee whose dissent from his own administration's policy has so far won more criticism than praise.
"The Republicans risk coming off as politicizing the issue, and it could hurt among the majority of people" who supported returning Elian to his Cuban father, said Fred Steeper, a Republican pollster whose clients include Texas Gov. George W. Bush and the Republican National Committee.
"Politically, we should just let it simmer," he said.
Along similar lines, GOP pollster Whit Ayres warned: "Overt second-guessing could backfire. This is one of those situations where the better part of valor is to keep your mouth shut and let events take their course."
The consensus is that Gore lost more than he gained by breaking with the administration to support legislation granting permanent resident status to Elian, his father, his stepmother and grandparents, and arguing that the family court should have jurisdiction.
"It's a lose-lose situation," said political scientist Gary Jacobson of the University of California at San Diego. Jacobson said Gore may have been completely sincere or just making a political bid to win Cuban American votes in Florida, but "if it was a political calculation, it
was a poor political calculation."
Initial polling did not find much support for a tough investigation of the administration.
Asked whether they approve or disapprove of the fact that "federal agents physically removed Elian Gonzalez from the home of his Miami relatives early [Saturday] morning and have taken him to Washington, D.C., to reunite him with his father," 57 percent of 613 telephone respondents
told a CNN-Gallup survey Saturday that they approved and 37 percent said they disapproved.
Asked whether it would be in Elian's best interests "for him to remain in the U.S. to live with relatives who have requested he stay here, or for him to live with his father in Cuba, as his father has requested," 59 percent said he should go to Cuba with his father, and 27 percent said
he should stay in the United States.
Americans were, however, split over whether federal agents used too much force, with 40 percent saying too much and 36 percent saying it was the right amount.
The Gun Seen Round The World
By Stephen Hunter. Washington Post Staff Writer. Monday, April 24, 2000; Page C01
It is one of the most disturbing images of the year: a burly federal officer, helmeted, goggled, wearing a flak jacket, battle fatigues and shooter's gloves designed to protect the hand but permit the prehensility of the trigger finger, confronting a screaming child and the man who protects him.
And, of course, he has a gun.
The officer, wearing a Border Patrol patch on his vest, is holding it one-handed by the pistol grip, his naked shooting finger indexed over the trigger guard, the butt stock unanchored in the cup of his shoulder. The gun looks terrifying, as it is designed to look: a black, plastic-shrouded
apparition with a bleak little snout, a curved ammunition magazine containing 32 rounds of what are almost certainly hollow-points, a strange bulge forward under the muzzle, which is but 15 inches from Elian Gonzalez and Donato Dalrymple.
What gun is this? Where are we now?
The gun is a German-manufactured submachine gun that goes under the designation MP-5, a short-barreled 9mm weapon that has been famous in action and movies since May 1980, when British SAS troopers armed with it successfully assaulted the Iranian embassy in London, killing all but one of the
terrorists who had commandeered the building and murdered a policewoman.
It is currently issued to almost all Western elite military units, civilian SWAT and hostage rescue teams, and movie stars heroically fighting international evil. Bruce Willis used it in the "Die Hard" movies; James Bond has used it. The Baltimore County SWAT team used it against
Joseph Palczynski, hitting him 27 times in 42 attempts in about three seconds. It was seen in the hands of a bearded FBI agent guarding Tim McVeigh during his trial.
As the M-16 became the symbol of the Vietnam era, the MP-5, manufactured by Heckler & Koch, of Oberndorf, Germany, has become the symbol of our nervous postwar environment. It represents the condition our condition is in, where highly trained units may have to act with surgical precision
against heavily armed opponents in highly volatile circumstances.
"Operators," as SWAT officers and commandos style themselves, love it because it is light, easy to manipulate in tight spaces, rugged and reliable. It can fire thousands of rounds without so much as a burp. It is easy to maintain once its few secrets have been mastered. It is also
flexible.
It can be fitted with suppressors (the movies call them silencers), shortened, lightened, mounted with a telescopic sight or an infrared one for night operations, given a folding or collapsing stock, chambered in more powerful calibers, hidden in a briefcase, hung invisibly in a harness under a
suit coat, configured to fire single shots, shoot two or three-round bursts, or rip off an entire magazine in three seconds.
One of the more popular stylings is apparent on the gun in the photograph. That bulge at the end of the muzzle is actually a flashlight housing, in which nestles the state-of-the-art device in tactical illumination, the Sure-Fire flashlight. Fashion dominates the tactical world as it dominates
any world, and in the past few years illumination technology has become all the rage, under the principle that most lethal-force encounters take place in low light, and so the operator who can see his target--and know that if his target is illuminated, his weapon is correctly aimed--has the
advantage.
For the record, the gun is 26 inches long, with an 8.85-inch barrel. It weighs 5.5 pounds and fires at a cyclic rate of 600 rounds per minute, which means not that you could shoot it 600 times in a minute but that if you had a magazine that contained 600 rounds, it would take a minute to fire
it.
MP-5s are not issued to troops or police officers routinely; they have specific tactical uses. They are frequently used as statements of intimidation to ensure crowd control or to dissuade aggressive action. In this way, they represent the principle that the weapon brandished is the weapon used,
even if an actual act of firing is never consummated.
But more often MP-5s are used in killing situations, in high-risk raids, where commandos or law enforcement officers are likely to encounter armed opposition that must be stopped quickly and powerfully. Unlike their movie counterparts, the authentic operators are trained to fire short, aimed
two- to three-round bursts, never to sweep a room or to fire randomly. Indeed, much of submachine gun training is taken up with the issue of trigger control, as shooters learn not merely to shoot accurately but also to prevent that potentially fatal fusillade of fire.
It so happens that this writer, doing research for a novel, has taken a course in tactical submachine gun techniques at a local range, during which time he fired close to 2,000 rounds through an MP-5 and practiced some of the deployment techniques of a "dynamic entry" scenario of the
type that the federal officers used Saturday morning in Miami.
Thus, what struck me most about the photograph isn't the gun itself, but the way in which it's held. It's very close to being out of control. These are not one-handed weapons, and except for emergency circumstances, they are not even two-handed weapons. They recoil so persuasively they must be
secured at three points: They must be moored against the shoulder or the center of the chest; the firing hand grips the pistol grip and controls the trigger; and, finally, the other hand must secure the muzzle via the foregrip or a front vertical grip. The officer doesn't even have the weapon
secured against his shoulder, as police are taught to do. In fairness it's possible the photograph freezes one moment when the gun was loosened from his control (photographs will do that) and in the next second, he reclamped it into his shoulder, lowered the muzzle and backed off.
Still, his use of the weapon certainly belies the claim that none of the entry team ever "threatened to shoot." Whether that statement was made verbally is immaterial. If the gun is deployed, it threatens by its very presence, and no verbal exchange matters.
And it is also true from the photograph that the safety is off; that means the gun is primed to fire and no mechanical device stands between the gun and the consequences of firing except trigger pressure. But it's equally clear from the photograph that the federal officer has been well trained;
his trigger finger is set properly above the trigger guard, so that if he falls or trips, an involuntary spasm won't cause his finger to tighten and the weapon to fire.
However, most self-defense experts counsel students to approach all potentially lethal situations that way, reasoning that it is just as quick to fire from that position as it is from a finger on the trigger. Whether the officer had any intentions of firing cannot be concluded from the picture.
Regardless of his intentions, that's where his finger would be. Moreover, he has trained thousands of times to move his finger from that position to the trigger and fire; by this time, it's second nature to him--or he has no business being on the raid.
It is also said that the gun was not "pointed" at the boy and his guardian. However, if the officer hasn't got the gun under control, then the issue of where it's pointed is moot. These guns recoil powerfully when fired; they move this way and that. That is exactly why H&K now
manufactures them with burst-control devices, which limit the gun to two or three fully automatic shots. It is impossible to see if the officer's MP-5 had that device. The reality is that at that moment an accidental discharge or a mistake in judgment, and the gun fires an uncontrollable shower of
bullets.
I mean no disrespect to this currently anonymous officer. In the moment of highest intensity, things don't go according to plan, minds don't work clearly and nobody can really control events. The discipline of keeping his finger where it belonged may have saved lives.
But the point is larger than that: It's that these guns, which represent the state's most extreme control over its citizens, are immensely powerful and, in the hands of the untrained or even the poorly trained, extremely dangerous. They are not toys and they should be used only in dire
circumstances, when it is certain that lives are at stake.
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