Elian: Pious Words, Craven Acts
By Michael Ratner

Early on in the Elian affair Janet Reno made the correct determination. On
January 5th she determined that Elian’s father had a close, loving
relationship with his son and that he had the sole legal authority to speak
on Elian’s behalf in immigration matters. She then advised Elain’s great
uncle that Elian should be reunited with his father by January 14th.
However, since that date, Janet Reno utterly failed–at least until April
12th–to take any of the necessary actions that could have enforced her
decision and put a quick end to this matter. During this 31/2 month period
she set deadline after deadline for the reuniting of Elian with his father,
but was unwilling to stick to her position. It became almost laughable;
except for the fact that this was our nation’s highest law enforcement
officer. Her actions made a mockery of herself and the rule of law.

However, the effect on Elian of her actions is the real tragedy. During the
crucial period after his mother’s death, Elian was given no chance to mourn
or be with his father who could have comforted him. Instead, Reno allowed
the great uncle to abuse Elian in a variety of ways: taking him to
Disneyworld five days after his mother’s death, allowing him to become the
poster-child for the Cuban-American National Foundation, allowing him to be
interviewed by Diane Sawyer and now the new video of Elian saying he does
not want to go back to Cuba. Janet Reno allowed this circus atmosphere to
prevail in which Elian was the main performer; she never even issued an
order to the great uncle that such uncaring conduct had to cease. She could
have easily ordered Elian removed from the great uncle on this basis alone.
It is not only the great uncle who is guilty of child abuse.

Some might ask well what choice did Reno really have. She did not want to
send federal marshals into Miami primarily for political reasons (the
Democrats did not want to lose money and votes of the Cuban community), but
possibly for reasons of safety as well. However, had she done so early on
some of these risks could have been avoided. Those Cubans in Miami resisting
government authority were less well organized, the incident would be long
over and Elian would have been back where Reno said he belongs.

But federal marshals were not her only choice. Instead of telling the great
uncle on January 12th that she would extend the January 14th deadline
pending any federal court litigation the great uncle might file, she could
have issued an order requiring the return of Elian. When the great uncle
refused to comply, she could have gone to federal court, and requested a
court order. The great uncle’s failure to obey that order would have meant
contempt of court; he could have been fined for every day of refusal and
jailed almost immediately. At that point it was still January; the threat by
a federal court might have been enough. Reno also could have begun a
criminal proceeding against the great uncle for his failure to comply with
her order; charges could have included child abduction and possibly
kidnaping. Again, these actions would probably have forced compliance. The
point here is that Reno never tired moderately strong action; she did not do
so even when the great uncle initially went into federal court. She never
asked the court to order the return of Elian.

In the March 21 order dismissing the great uncle’s federal case, the judge
said that “each passing day is another day lost between Juan Gonzalez and
his son.” Reno, while acknowledging the trauma this continued separation was
causing Elian, still refused to take any significant action. She set another
deadline by which the great uncle had to agree that if he lost the appeal,
he would return Elian–in other words agree to obey the law. Once again, true
to form, she negotiated day after day, each day extending the deadline and
the harm to Elian. The great uncle never agreed that he would comply with
the law. Yet when Elian’s father came to the U.S. she started negotiating
again (begging may be a better word), this time for Elian’s return. This
meant even more delay. The spectacle of her–the Attorney General of the
United States--flying to Miami to convince people who already said they
would not obey the law, was embarrassing not only to her, but to the entire
Department of Justice. Finally, at the end of a week of this charade she
realized (or at least one hopes) that the great uncle was not going to give
up Elian. This was obvious to most observers months ago. She then, and only
then, issued an order to return Elian. The great uncle refused.

He then went to the federal appeals court and won a temporary injunction
prohibiting Elian from leaving the country. At that point Reno did what she
should have done in early January: she asked the court to order the great
uncle to return Elian. Presumably (hopefully) the appeals court will do
so–but even this action if taken will be subject to a condition that Reno
agreed to in advance: Elian will not be permitted to leave the U.S. until
the appeal is over. The great uncle has no chance of winning the appeal: the
case was frivolous from the start. The condition seems absurd, but at least
Elian will in all likelihood be reunited with his father during the process.

Elian’s case is really a case of justice delayed, justice denied. It was
within the power of the government to do what was right, not just say what
was right. It was in Janet Reno’s power to make Elian’s suffering less and
to allow him time to heal. She failed both our country and Elian.

Michael Ratner is the vice-president of the Center for Constitutional Rights
and the Skelly Wright Fellow at Yale Law School.