Janet Reno's mission appears to be to send Elian Gonzalez back to Cuba immediately and be done with this thorn in the Clinton administration's side. The Holy Saturday seizure of Elian from the arms of his Miami relatives by Immigration and Naturalization Service agents armed to the teeth certainly advanced that mission. But Reno advanced her mission in another way as well. By using paramilitary tactics common to totalitarian regimes such as Cuba and by seizing Elian by use of a magistrate's search warrant that treated Elian as property, Reno herself made the case for not returning Elian to Cuba much less compelling.
The argument for not returning Elian to Cuba is grounded in the contention that, as a totalitarian communist regime, we would be returning Elian to a life that is tantamount to slavery. In Cuba, as in other communist regimes, property is owned by the state. You work for the state and keep only what the state allows you to keep. You speak what the state tells you to speak. You do what the state tells you to do. If you try to leave that condition of virtual slavery, you do so at great peril, as those gunned down in 1994 by Fidel Castro's police while trying to leave discovered. The victims' families were not even allowed to bury the bodies.
Elian's case is therefore not primarily about parental rights — it is about the nature of communist Cuba. As Mackubin Owens, professor of strategy and force planning at the Naval War College, has pointed out, parental rights exist under the Cuban constitution "only as long as their influence does not go against the political objectives of the State." In Cuba, Castro, not Juan Migeul Gonzalez, is the only "daddy" who has any authority over Elian.
If Cuba is thus equivalent to slavery, we as a free people not only have no duty to return Elian to Cuba, we have a legal and moral obligation not to return him. Since at least the time of William Blackstone, the common law and law of nations have held that slaves escaping from the jurisdiction of their enslavement into free territory were deemed to be free and were not returned to the state of their slavery. That was true whether or not the slave was an adult or a child, and in the case of the latter, inquiries were not made into the wishes of the slave father remaining behind in slavery.
The correct inquiry, therefore, is not whether Elian's father wishes for Elian to stay in the U.S. or return to Cuba, but whether the Cuban regime is tantamount to slavery. If it is the latter, then the case for recognizing Elian's freedom is compelling. That was, ultimately, the very inquiry being undertaken by the courts hearing Elian's challenge to the Clinton administration's decision not to hear Elian's application for asylum. In that litigation, the Clinton Justice Department asked for a court order directing Elian's Miami relatives — relatives who had been given temporary custody of Elian by the INS — to turn Elian over to immigration officials. The court denied the government's request. So Reno took the law into her own hands, obtained a search warrant (not an arrest warrant), and treating Elian as property — just as the Cuban government treats him — seized him screaming from the arms of his relatives.
The administration now claims that Reno's tactics were necessary to vindicate the rule of law. But it is a fundamental principal of our law that we do not treat human beings, even six-year-old human beings, as property. It is a fundamental principle of our law that executive branch officials do not take the law into their own hands after being denied by the courts permission, on nothing more than the flimsy, pretextual reed provided by a pediatrician who had never observed Elian that he was being psychologically abused by the family that had cared for him since his miraculous rescue off the coast of Florida.
It is a fundamental rule of our law that even a 6-year-old is entitled to his day in court, represented by someone whose interests are not clearly in conflict with his own. And it is a fundamental rule of our law that executive branch officials — the police — heed court orders.
In this case, the Florida court appointed Lazaro Gonzalez, Elian's great uncle, to be his guardian in the legal proceedings and specifically ordered that Elian not be taken out of the court's jurisdiction. That court order was still in effect when INS agents ordered Lazaro to turn Elian over to them at the Opa-Locka airport. Yet Lazaro's failure to comply with the INS directive — which would have meant violating the court order — served as the pretext the INS used to obtaining a search warrant, asserting that Lazaro was "unlawfully restraining" Elian. Unlike Clinton adminstration officials (apparently), ordinary citizens like Lazaro Gonzalez are required to comply with court orders rather than the edicts of the executive branch. To claim, as the INS did, that Lazaro was thus "unlawfully restraining" Elian is the real abuse of law here.
With such abuses of the rule of law by our own Attorney General, it is hard for the United States to assert the moral high ground that freedom is preferable to slavery. We can only hope that the courts will not succumb to the tactics of this "most ethical" adminstration.