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.