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LEGAL AFFAIRS - Elian: An Excess Of Certitude And IdeologyOn All Sides LEGAL AFFAIRS - Elian: An Excess Of Certitude And IdeologyOn All Sides

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LEGAL AFFAIRS - Elian: An Excess Of Certitude And IdeologyOn All Sides

Am I the only person in Washington who is not sure-absolutely, unequivocally sure-of the answers to all the big questions raised by the Elian Gonzalez drama? The only one who isn't certain that the boy should go back to Cuba with his father-or that this would deliver him into slavery? The only one who has trouble deciding whether the predawn paramilitary raid that snatched Elian from the Miami home of his great-uncle Lazaro on April 22 was a triumph for the rule of law or a police-state abomination?

Elian's story may have generated more righteous certitude on all sides than Monica's, Ollie's, or Alger's. Some conservatives accuse the Clinton Administration of using storm-trooper tactics to preempt the judicial process so Elian can be handed over to Fidel Castro to be used as a propaganda tool. Some liberals accuse conservatives of venting irrational hatred of Castro at the expense of family values and parental rights. And each side accuses the other of trampling the rule of law.

It's not just partisans such as House Republican Whip Tom DeLay, R-Texas, who outrageously referred to the federal agents who had raided the house as "jack-booted thugs," or Rep. Jose Serrano, D-N.Y., who insipidly said "sure" when asked whether Cuba allows freedom of speech. Some of the nation's most insightful journalists hurl hyperbolic rhetoric with utter confidence from opposing sides.

Take the reactions of columnists Thomas L. Friedman in The New York Times and Charles Krauthammer in The Washington Post to two famous April 22 photographs. The first photo shows Elian screaming as a federal agent points an MP-5 submachine gun toward the man who had rescued the child from the sea. The second shows Elian beaming in his father's arms. Friedman wrote that he liked the first picture because it "illustrates what happens to those who defy the rule of law," including the hard-line Cuban-Americans who tried to "get away with kidnapping Elian," and the second because "you can't fake ... the very parent-child bond that our law was written to preserve." Krauthammer approvingly quoted a man associating the first photo with "pictures of German soldiers plucking Jews out of their houses," and said the second proved only that it's easy to get a 6-year-old to smile for a camera, "with or without pharmacology."

What we have here is an ideological Rorschach test. I have my own leanings on Elian's case. But whenever I'm about to join one of the clashing choruses, I stub my toe on some hard questions. A few of them are sketched below.

What will become of Elian? If Juan Miguel is an "obviously loving" father, in the words of Michael Kinsley, editor of the online magazine Slate (and a friend of mine), then why did he spend so many months issuing demands from Cuba rather than rushing to his child-a child found clinging to an inner tube after the shipwreck that had drowned his mother? Even assuming that Juan Miguel was properly outraged that the United States did not immediately send Elian back to Cuba, what kind of father would let such a grievance keep him away from his traumatized child for so long?

The truth, I suspect, is that Juan Miguel is a loving father who was, is, and will remain under the thumb of a dictator with control over the fates of his own mother and other family members in Cuba. What kind of future does that portend for Elian? Doesn't it lend credence to the concern that whatever this father (who appears to like the Castro regime) may want for his son, Castro's government will "re-educate" Elian as thoroughly, as forcefully, and as often as necessary to make sure that he acts and talks like a "hero of the revolution"-and never follows his mother's example?

Cuba is a country whose constitution specifies that parents must yield to "the political objectives of the State" in rearing their children. It is a "totalitarian state," in the words of the Clinton State Department, where "expressing opinions at odds with those of the government ... can bring sentences of up to 14 years"-and where abuse of political prisoners has been chillingly documented by former prisoner Armando Valladares and others.

So we should never send Elian back, right?

But if a father's rights to custody and control of his 6-year-old can be trumped by the child's presumed interest in staying in the land of the free and the home of Disney World, then why did the 1992 Republican platform state that "Republicans trust parents and believe that they, not courts and lawyers, know what is best for their children"? And why did U.S. Supreme Court Justice Antonin Scalia imply in January that courts may not order parents to give grandparents visitation rights because "the child does not belong to the court: the child belongs to the parents"? And why do so many of the same Republicans who spurn Juan Miguel's parental rights push for laws requiring parental consent before a 17-year-old girl can have a legal abortion?

When should a child be considered for asylum? If "the law is very clear" that a relative such as Lazaro Gonz--lez has no legal standing to seek asylum for a 6-year-old over the sole surviving parent's objection, as Attorney General Janet Reno claims, are there no exceptions? Would Reno's position be the same in an asylum case filed by the great-uncle of a 6-year-old Nigerian girl whose father wanted to take her home to face female genital mutilation?

On the other hand, how much sense did it make that the U.S. Court of Appeals for the 11th Circuit (on April 19) barred Miguel indefinitely from taking his son home to Cuba based on the boy's "signature" on an asylum petition that he could neither read nor understand? Why should it take weeks or months to resolve the straightforward question of whether a 6-year-old is legally competent to begin the often-protracted asylum process over his sole surviving parent's objection? Have any of these judges lived with a 6-year-old lately? Are they starting down the same road as the courts that handled the asylum petition of Walter Polovchak, the 12-year-old Russian kid who balked at returning to the Soviet Union with his parents in 1980 and whose asylum petition bounced around until his 18th birthday mooted his parents' objections?

Should the Clinton Administration have waited for the courts? If "there was every reason [for Janet Reno] to allow the judicial process to proceed toward a peaceful resolution," in the words of Washington Post columnist Michael Kelly, then how many weeks, months, or even years should Reno have waited for the courts to dither while Lazaro defied the lawful order of the Immigration and Naturalization Service to surrender Elian? And given Lazaro's history of stalling and moving the goalposts during weeks of talks with the fumbling Reno, how confident can we be that the negotiations were (in Kelly's words) "progressing toward apparent resolution" at the time of the raid? (Perhaps I should add that Kelly is occasionally right, at least in his capacity as my editor-in-chief at National Journal.)

Was it necessary to storm the house? If, in the words of a Washington Post editorial, "the government did the right thing, cleanly and well" in taking Elian at gunpoint from the same Miami relatives whom Reno had recently called "loving caregivers," how clean was it to proceed in a fashion that (as Kelly has stressed) "might result in a firefight that might kill people, including Elian"?

In my view, Elian should probably have been returned to his father (and to Cuba) as soon as Juan Miguel had so demanded while standing on American soil, and the courts should move quickly to get out of the way. This is not because I am confident that going to Cuba is in Elian's best interest. It is because that is what his father says he wants. And the transcendent principle here, in my view, is that no judge or bureaucrat should be able to tell an apparently fit, loving parent-even one who chooses to return to a repressive dictatorship-where or how to rear a child whose other parent is dead and who is too young to have an informed opinion of his own.

I also think that Reno probably had justification enough to take Elian from Lazaro's house without a court order more exalted than a magistrate's warrant and to do it by force, if necessary. But I'm not sure it was necessary to batter down Lazaro's door and charge in with automatic weapons and pepper gas. Nor do I know for sure that it was not: Maybe an overwhelming show of force was the best way to extricate Elian without exposing him and federal agents to potentially lethal mob violence. I may never know.

In short, I'm with the physicist Richard Feynman, who, according to a biography by James Gleick, "believed in the primacy of doubt, not as a blemish upon our ability to know but as the essence of knowing."

Stuart Taylor Jr. National Journal

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