»  National Review Online

May 11, 2000

   The Only Hope for Elián: Judicial Amour Propre

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A United States court of appeals in Atlanta has now heard the case for granting a political asylum hearing to Elián González. Nothing much can be deduced from the exchanges in the eighty-minute hearing, and it will be at least a week before the court issues its ruling. Those of us who would like to see the courts confound the whole dreadful, shameful Clinton-Castro operation to get the boy back to Cuba can take some slender hope from the fact that the senior member of the three-judge panel twice referred to Cuba as a "communist, totalitarian state" — a point of view that must have been shocking to leftist attorney Gregory Craig and the representatives of the Justice Department. Craig and the Justice people were two of the three parties being heard in the appeal; the third party was the Miami relatives. Both Craig — a long-time front man for hard-left causes — and the kind of people who rise to the top in Clinton's Justice Department are much more accustomed to think of Cuba in terms of 100 percent literacy and universal health care: as the pathetic, progressive victim of a vendetta by rearguard Cold Warriors and dispossessed Cuban millionaires who somehow, unaccountably, still maintain their influence over gullible or corrupt congresspersons. One can imagine their brows furrowing at Judge Edmondson's words. "Communist"? "Totalitarian"? Good grief, do people still talk like that?  Well, Judge Edmondson apparently does, and we must take what little comfort we can from that.

Little, indeed. The odds are now very long against Elián González being able to grow up in a free country, as his mother wished. With the best will in the world, and for all Judge Edmondson's understanding of Cuban reality, it is not clear that the U.S. appeals court has the authority to rule on anything other than the petition for an asylum hearing. Statute law says that "any alien" may apply for political asylum, and the crux of the matter is whether Congress, in passing this law, intended it to apply to six-year-olds incapable of comprehending the underlying concepts; and, if Congress did, how such a minor should be represented in the asylum proceedings. Judge Edmondson again opened a crack here, observing that it is not uncommon for courts to rule that a child's best interests sometimes override parental preferences, for example in the case where parents reject life-saving medical care for religious reasons. However, even if the court were to rule that the hearing on the asylum petition should go ahead, it is open to Juan Miguel González to simply withdraw the petition. There would then be a minor legal issue opened up: Elián filed the petition under the guardianship of the Miami relatives, but would be withdrawing it under different custody arrangements, imposed on him by executive action. However, it is unlikely that this technicality would detain the result for very long.

Such hope as there is for Elián's freedom now rests not so much on points of actual law as on judicial amour propre — that is to say, in the possibility that someone in the relevant federal or state courts recognizes the administration's actions in this case for what they are: the latest in a continuous, years-long assault on correct legal process by this President and his Justice Department. If one looks at the responses of the administration to various independent (I mean, not carried out by Justice Department employees) judicial inquiries into its conduct these past several years, those responses amount to a continuous act of contempt of court. From the withholding of requested documents to the slandering and intimidation of witnesses, from the original Whitewater investigation to the dilatory and derisive response to attempts to discover the process by which IRS audits of administration-hostile organizations are initiated — the pattern has been one of delays, misrepresentations, convenient amnesia, subornation of witnesses and flat-out perjury.

Much of this stuff is not illegal; but surely all of it is insulting to the judicial branch. The British Army — and for all I know, the United States Army, too — recognizes an offence against discipline called "dumb insolence." A soldier commits dumb insolence when he attempts to avoid being caught out in an overt breach of discipline by saying nothing, refusing to answer an officer's questions. Silence and refusal to cooperate in inquiries thus constitute an offence — a court-martial offence, in fact, for which under battle conditions a soldier could face summary execution. The Clinton administration have proved themselves grand masters of dumb insolence. I am not an advocate for making civilian law more closely resemble its military counterpart: "Military law is to law as military music is to music." I do believe, however, that if I were a proud member of the judicial branch, I should be outraged by the dumb insolence of the current executive, and would leap on any opportunity to return the insult.

What, after all, was the April 22nd seizing of Elián all about? Why the need to act, with a court date pending? Would nineteen days have made so much difference? Surely nobody — least of all Clinton and Reno — really believes the guff about Elián being "abused" by his Miami relatives. The child was in plain view of TV cameras practically 24 hours a day. Nor does the argument that the Miami relatives were in defiance of the law make any sense: the law required only that they acknowledge Juan Miguel González's custody, which they did. It did not require them to travel half the length of the eastern seaboard to deliver the child to his father. So what was the moonlight raid about? Why, it was an attempt to preempt the results of this appeals court hearing — to get Elián away from the Miami family and back into the care of Cuban-government handlers, so that by the time the asylum petition reached the courts Elián would have "lost" his desire for asylum. There must be members of the state and federal benches who are outraged by this. Not necessarily because it was illegal — possibly it was not — but because it was a display of naked executive power designed to affect the outcome of a court hearing.

The fundamental matter at issue in this strange, divisive case is the separation of powers. The business of the executive — and of the Justice Department, as the enforcement arm of the executive — is to ensure that the law is upheld. However, it is none of their business to interpret the law. That is the responsibility of the courts. No court has ruled the Miami family to be in defiance of any judicial ruling. For Reno and other officials to declare publicly that the Gonzálezes are so in defiance, and to conduct a violent search and seizure on their property as if they were, is a gross, probably unconstitutional violation of the proper role of the executive. To use this latter action to preempt the result of a scheduled court hearing — who can doubt that that was the intention? — is another.

Congress has been passive in this whole affair. Disgracefully passive, some would say; but our senators and representatives at least have the excuse that they must listen to their constituents, most of whom agree with the Clinton-Castro line. The judicial branch has no such excuse. If they too stand by passively while the administration interprets the law to suit its own policy goals, then we shall be facing a major breakdown in our system of government. It is common for conservatives to complain about the overweening power of the judiciary. Conservative commentator Mark Steyn has recently suggested that the judges in modern western democracies now operate like the military in a banana republic: "You can vote any way you like, but we shall have the last word!" In one of the many peculiar inversions prompted by this very peculiar case, conservatives — those of us, at any rate, who believe that this child's freedom is more important than the appeasement of Fidel Castro — should hope that the judicial branch is indeed sufficiently independent of the popular will, and sufficiently indignant at the dumb insolence of this insolent administration, to frustrate the desires of Castro, Clinton and Reno. In Elián González's short life, only three parties have, without coercion, shown much interest in raising him: his mother, who is dead, his Miami relatives, and Fidel Castro. (His father seems, on such evidence as we have, to have been little more than a sperm donor until taken in hand by Castro.) This should be no contest: custody to the Miami relatives. If there is a way for our judges to elevate the issue of asylum to this level. let us pray that some of them are wise enough — and angry enough! — to do so.