Custody Case's Losers See a Reviled Cuban Phoenix Rise From the Ashes
By Rick Bragg. The New York Times. April 27, 2000
IAMI, April 25 -- At the corner of Flagler Street and 22nd Avenue, a procession of cars filled with teenagers, salsa music blaring, crawled slowly across the intersection with Cuban flags fluttering from radio antennas and a big American flag flying upside down, in scorn.
In Little Havana, in the days since Elián González was taken from his Miami relatives' home in a blur of tear gas and armed federal agents, upside-down flags and disdain for the United States are fashionable.
As a city, "we are more divided than we have ever been," said Max Castro, the senior research associate at the Dante B. Fascell North-South Center at the University of Miami, and an expert on the exile community.
Almost everyone involved in the case lost something in the five-month standoff and the three-minute raid on his relatives' home, say legal, immigration and political experts who have followed the case, including his Miami family, the exiles who made Elián a symbol of freedom, the two
mayors who sided with the exiles over the government, and -- because of the nature of the raid -- the government itself.
And the clear winner, said the experts, is the man exiles here see as the devil himself. "Fidel Castro has taken great advantage," said Osmel Lugo, a political dissident jailed in Cuba until 1999.
It is not that Mr. Castro did very much to profit from the case. Others, even those who hate him most, did his work for him, said experts on Cuba and the exile community.
The exiles and the family that could not bear to give up the child, no matter how well-intentioned their refusal, gave Mr. Castro material to prop up his sagging revolution and have turned American support from their cause.
And Mayor Alex Penelas of Miami-Dade County and Mayor Joseph Carollo of Miami, though they may have heartened many of their constituents by siding with the exile community against the government, stumbled on the national stage.
"The clear losers are the hard-liners in the Cuban exile community who conducted themselves in such a way as to antagonize and alienate U.S. public opinion," said Wayne Smith, a senior fellow at the Center for International Policy in Washington who served as a diplomat in Cuba.
"They seemed to believe they could take the law into their own hands, defy the law, defy the federal government, and get away with it."
Few people doubt, political and immigration experts said, that Elián's great-uncle Lázaro González and the boy's cousin Marisleysis González both loved Elián and were heartbroken when he was taken. But, even if a last-minute compromise was close, as the Miami
family and others said, the family clearly had little credibility with frustrated Attorney General Janet Reno.
"Lázaro González said a number of times they would have to take the boy by force," Mr. Smith said. "Well, they did. I think U.S. public opinion was turned off by them."
Despite criticism that the government used excessive force in the raid, Americans have overwhelmingly approved of it in poll after poll.
A USA Today/CNN/Gallup Poll released on Monday showed that 60 percent of respondents approved, and 62 percent believed that the Miami relatives would not have turned the boy over peacefully if the agents had not been armed.
Only 28 percent of respondents said that Congress should hold hearings on the raid, and only 25 percent said they believed that Elián should remain in the United States.
Mr. Penelas and Mr. Carollo had, before and after, harshly criticized efforts to remove the boy, refused to let their police help in the effort and made speeches that left no doubt they would not cooperate with the government, drawing condemnations from around the country.
So, in a startling snub, federal officials did not alert them to the raid, apparently because those officials felt they could not trust them. For the top elected officials in an American city to be so ignored is unusual, said political experts.
"The government just went around them," said Lisandro Perez, director of the Cuban Research Institute at Florida International University.
If the two politicians plan to seek political office only in South Florida, where Cuban-Americans remain the dominant cultural, political and economic force, they probably did not damage themselves, political experts agree.
Mr. Carollo, in a city dominated by Cuban-Americans, "solidified his position," said Dario Moreno, an associate professor of political science at Florida International University.
But, said political experts, television images of smoking tires and overturned trash bins burning in the streets and the police scuffling with violent demonstrators may halt any larger political ambitions at the Miami-Dade County line for both mayors.
Mr. Penelas, the young mayor of Miami-Dade County, had seemed destined for a political career beyond Miami, but was condemned by dozens of editorial pages around the nation, and by whites, blacks and other Hispanics in his own county. "He hurt his political career," Mr. Moreno said,
though he added that it was too soon to write the mayor's political obituary.
Both mayors have said over and over they did what was right, what the majority of constituents wanted. But in doing so they ignored almost everyone except Cuban-Americans.
"Some people really became invested in Elián remaining here," Mr. Castro, the researcher, said. "Other people felt alienated, felt the city was being taken over by one case."
The long-standing power in the Cuban exile community, the Cuban American National Foundation, and its chairman, Jorge Mas Santos, tried but failed to broker a deal for a more peaceful transfer of Elián.
And, the foundation had a less visible presence at street level than the much less powerful Movimiento Democracia, led by Ramon Saúl Sánchez. Mr. Sánchez was slammed in the head by a rifle butt in the raid.
"At this point it means that they, the hard-liners, do not have the monopoly on Cuban policy, do not have the influence they had," said Mauricio Font, director of the Cuba Project at the Graduate Center of City University of New York. But Mr. Mas Santos said the Elián case
actually served the exile's fight, because "people now have a better understanding about what life is like in Cuba. Fidel tyranny had been exposed."
Gov. Jeb Bush, who insisted that family court should settle the issue, had no real presence in the case and should not be affected much by it one way or another. Political experts said Mr. Bush, a Republican, was supportive of exiles but was not bloodied because he was never a real factor in how
the drama played out.
But votes, power and public opinion aside, Elián's father, Juan Miguel González, seems to have won the ultimate battle, for the child.
The United States Court of Appeals for the 11th Circuit, in Atlanta, is expected to rule on May 11 on the Miami relatives' appeal of a lower court ruling that Elián, at 6, is too young to ask for a political asylum hearing.
Experts on immigration law and child psychology say that, with a 6-year-old boy, whoever exercises influence over him will ultimately win the custody battle, which is really what the asylum hearing is about.
"The power of persuasion is now in the hands of the father," said Pamela Falk, a professor of immigration law at the City University of New York. That, Professor Falk said, was why the government had to act so drastically to remove Elián from the Miami family.
The Miami family lost a child. Elián's father was without his son for five months. And Elián endured a nightmare when armed agents took him from the home and into the chaos of the street outside.
Fidel Castro, in a time when he needed a shot of power, has it now.
"Every three or four months, Fidel has a speech and talks about the same thing," Mr. Lugo said.
Elián's story has given him a passionate topic that appeals to the nationalism of the Cuban people.
He will talk about it, experts on Cuba said, forever.
Polls Show American Support of Raid to Seize Cuban Boy
By Janet Elder. The New York Times. April 27, 2000
he American public supports the recent removal of Elián González from the home of his relatives in Miami and says the Justice Department was left with little recourse than to do so by force, according to several polls taken on Sunday and Monday.
While congressional Republicans are pursuing hearings on the matter, Americans, including a majority of Republican voters, say that is unnecessary. The polls found widespread support for Attorney General Janet Reno and her decision to send in federal marshals to remove the 6-year-old boy in the
pre-dawn hours last Saturday. To the degree that there was criticism, it was that the decision was five months in coming.
But the public was highly critical of the Miami family for holding the child and said the relatives probably would not have relinquished him without a show of force by the Justice Department. Sixty-three percent of Americans sampled, including 56 percent of Republicans, said the Miami relatives
would not have voluntarily returned the child to his father, making it necessary for the government to remove him, according to a CBS News poll conducted on Sunday.
The public was closely divided on the question of whether or not the government had exhausted all other options before federal agents broke into the house with guns in hand. Fifty percent of respondents in an ABC News poll said the government had done all it could while 45 percent said the
government should have done more. That poll was conducted on Monday.
The odyssey of the young boy, who left Cuba in a rickety boat with his mother and a dozen other refugees last November and then survived for two days on an inner tube in the water after his mother and all but two other passengers drowned, has focused Americans's attention on Cuba itself. The
island is only 90 miles from the coast of Florida. Fifty-four percent of Americans said they would like to see diplomatic relations with the Communist country re-established, according to a Gallup poll taken on Monday.
In the absence of that, 76 percent of Americans sampled said the government should offer citizenship to Juan Miguel González, the child's father, so that father and son can remain in the United States, according to the CBS News poll.
The polls all found that a majority of Americans think that it would be best for Elián to return to Cuba with his father. They also say that is what they expect will happen.
In the hours following the Justice Department's actions, Democrats in Congress voiced support and Republicans voiced criticism. But the polls found the Republican Party leadership to be out of step with rank-and-file Republicans on this matter. The ABC News poll found that 57 percent of
Republicans said they opposed any congressional hearings on the government's actions.
The one-day national telephone polls by CBS News and Gallup each have a margin of sampling error of plus or minus 4 percentage points, while the margin of error for the ABC News poll is 5 percentage points. The CBS News poll was conducted with 577 adults, the Gallup poll with 611 adults and the
ABC News poll with 505 adults.
Justice Taken Too Far
By Laurence H. Tribe. NY Times. April 25, 2000
ome are wildly comparing the armed seizure of Elián González to the roundup of innocents by the Gestapo. Others think Attorney General Janet Reno showed admirable patience in dealing with a group of zealots using the boy as a pawn in its war with Fidel Castro.
But the partisan squabbling over these caricatured views threatens to obscure a vital question: Where did the attorney general derive the legal authority to invade that Miami home in order to seize the child?
The fact is, even on the assumption (which I share) that under applicable legal and moral principles Elián should ultimately be reunited with his father, the government's actions appear to have violated a basic principle of our society, a principle whose preservation lies at the core of
ordered liberty under the rule of law.
Under the Constitution, it is axiomatic that the executive branch has no unilateral authority to enter people's homes forcibly to remove innocent individuals without taking the time to seek a warrant or other order from a judge or magistrate (absent the most extraordinary need to act). Not only
the Fourth Amendment but also well-established constitutional principles of family privacy require that the disinterested judiciary test the correctness of the executive branch's claimed right to enter and seize.
Although a federal court had ordered that Elián not be removed from the country pending a determination of his asylum petition, and although a court had ruled that the Immigration and Naturalization Service could exercise custody and control of Elián for the time being, no judge or
neutral magistrate had issued the type of warrant or other authority needed for the executive branch to break into the home to seize the child. The agency had no more right to do so than any parent who has been awarded custody would have a right to break and enter for such a purpose. Indeed, the
I.N.S. had not even secured a judicial order, as opposed to a judicially unreviewed administrative one, compelling the Miami relatives to turn Elián over.
The Justice Department points out that the agents who stormed the Miami home were armed not only with guns but with a search warrant. But it was not a warrant to seize the child. Elián was not lost, and it is a semantic sleight of hand to compare his forcible removal to the seizure of
evidence, which is what a search warrant is for.
To be sure, our courts have allowed immigration officials to obtain areawide warrants to search workplaces for illegal aliens, and Congress has by statute empowered immigration officials to search, interrogate and arrest people without warrants in order to prevent unlawful entry into the
country. But no one suspects that Elián is here illegally.
In fact, it's hard to see any significant immigration-related or other federal interest in whether Elián was reunited with his father now or after asylum is denied (if that is the outcome). And, should asylum be granted, Elián's father might still be granted custody and could then
take the boy to Cuba with him if he so chose; asylum only means permission to stay in the United States and is not a requirement to stay.
Either way, Ms. Reno's decision to take the law as well as the child into her own hands seems worse than a political blunder. Even if well intended, her decision strikes at the heart of constitutional government and shakes the safeguards of liberty.
Laurence H. Tribe is a professor of constitutional law at Harvard.
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