By Gilberto Firmat
ATLANTA — As the United States' kidnapping of Elian Gonzalez enters its fifth month, US attorney-general Janet Reno continues to steer her department on a course that openly defies the January court ruling, which she endorsed, that stated that the six-year-old child belongs with his father in Cuba.
Although there are no outstanding court orders to prevent Reno from returning the boy — which is what she claims the US government has decided to do — she has entered into negotiations over further judicial proceedings with the child's great-uncle in Miami. It was Reno's department that handed the child over to this relative in November after Elian was found adrift off the coast of Florida.
In an attempt to deflect the mounting tide of demands that Reno immediately send Elian home, the Justice Department leaked word of the negotiations, presenting them as a "take it or leave it" ultimatum to those who have the boy.
The terms of the Justice Department's offer are an expedited calendar of three weeks for arguing an appeal before the 11th Circuit in Atlanta, which has jurisdiction over Florida cases.
These three weeks, however, could be just the tip of an iceberg in terms of delay. It assumes the court will agree to such a schedule, and covers only the time for arguing the appeal. It does not include how long the court might take to hand down its ruling. It also allows for further appeals to the US Supreme Court, something which can easily take two years.
In public, all Reno would say at her regular media briefing was that she was working to solve the case in an "orderly, fair and prompt manner", and that it was counterproductive to carry out such negotiations in public. Thus, she gave the lie to the idea that her latest negotiating position really is an "ultimatum".
Inaction
Further confirmation of the Justice Department's real stance was leaked to the Miami Herald, which reported, "One option that government officials say is not under active consideration is forcibly removing Elian from the Little Havana home of his great-uncle, Lazaro Gonzalez".
The Herald also reported that the Justice Department does not have a contingency plan for returning the child over the great-uncle's objections: "Two officials say the issue of forcible removal, however, has caused dissension between Reno and the US attorney in Miami, Tom Scott. According to the officials, Scott was asked to prepare a plan listing several options for carrying out the boy's return to Cuba.
"Though Scott was instructed to include a forcible removal plan as a last resort, he has balked at doing so, raising concerns that it could prompt violent protests in Miami."
The heads of Justice Department offices in different districts are not career public officials, but political appointees. The position Scott holds — US attorney — is a high-profile post often used as a springboard for launching electoral careers. Scott is as much beholden to the right-wing exile groups which dominate southern Florida politics as are the local judges, who are elected.
By having word of his defiance leaked, Scott has signalled to Elian's great-uncle and the right-wing Cuban exile groups that Reno is bluffing and that they can probably hold out for better terms. It is possible that this is a charade being played out with Reno's explicit or implicit agreement, considering the attorney-general's usual reputation for being a hard-nosed official who does not brook insubordination.
Federal District Court Judge Michael Moore set off the latest round of manoeuvres on March 21 when he upheld the decision of immigration officials to, in effect, return the boy to Cuba (unlike local Florida judges, federal judges are appointed for life).
The judge did not endorse the Immigration and Naturalization Service (INS) officials' decision, and limited his ruling to saying that the INS did not abuse its powers in issuing the order. Nevertheless, the last two pages of the judge's convoluted, 50-page legal analysis contained a thinly veiled appeal to the "well-intentioned" relatives and Justice Department lawyers to return Elian to Cuba.
The judge accepted the right of Lazaro Gonzalez to act on behalf of Elian as the "next friend" of the minor. This implicitly contradicts the INS's ruling that Elian's father has the exclusive right to speak for his son.
Farce
The substance of the great-uncle's lawsuit, on "behalf" of Elian, is a farce. Technically, the boy is demanding a hearing on a claim for political asylum. Yet, in the case of Cubans (and only Cubans) no such hearing is necessary.
Under Cold War US legislation, all Cubans who make it to the US are automatically entitled to receive the equivalent of political asylum, provided they ask for it. Unlike people from other countries, Cubans are entitled to get US permanent residence one year after obtaining this "parolee" status.
It is this law — the Cuban Adjustment Act — that is at the root of the Elian Gonzalez tragedy. For, while the US diplomatic office in Havana hands out legal visas with an eyedropper, anyone who illegally makes it to Florida is received with open arms. Given the illusions many people in the Third World have about US streets being paved with gold and the economic hardships faced by people in Cuba due to the US economic blockade, this encourages insanely dangerous ocean crossings in rickety boats like the one which Elian barely survived and in which his mother lost her life.
The Cuban government is demanding not just that Elian be returned home, but also that the US stop encouraging such illegal, risky emigration. Havana points out that it is the US government, not Cuba, that limits the number of Cuban people who can emigrate legally.