Tonight's journal entry is a little different.  It's what I promised last night, which is the culmination of wanting to know for myself what ought to be done in the Elian Gonzalez affair.  Feeling ignorant about the laws in question, I've researched them.  I've felt comfortable with my moral position all along, and that hasn't changed.  Tonight is really a research project/op-ed/journal of mental activity all rolled into one.  It's not meant to convince anyone, although it should convince the open-minded.  It's simply my way of coming to grips with an intellectual problem that touches on virtually all of my areas of interest.  In its own way, it also demonstrates the poverty of the historicist, legalistic "expert society" devoid of normative concerns foisted upon us by the Progressives -- and the fact that so many bright people could read this and not even follow it itself is evidence of the dominance of the Progressive or "scientific" study of politics and law that attempts to remove the question of morality altogether.

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Elian Gonzalez should remain in the United States.  Morality demands it.  The principles of the Declaration and the American Founding demand it.  The law allows it.

What is this last?  The law allows it!?  Haven't we seen a constant barrage from the media and other assorted people (who haven't bothered to investigate "the law") telling us "the law" requires Elian to be reunited with his father, as surely as "the law" compelled Janet Reno to engage in a paramilitary assault on Lazaro Gonzalez's home?  Surely Whited is confused on this one!

No, actually -- "the law" does not COMPEL any of these things.  The laws in question are ambiguous, making this a POLITICAL decision in many ways.  Morality is the science that, properly understood, guides us in making all decisions -- including political ones -- and a morality based upon the principles of the American Founding (or upon Ayn Rand's philosophy, Objectivism) makes it an easy POLITICAL decision whether to employ the machinery of the United States government to return Elian to a totalitarian regime with no respect for human rights (individual or parental) or to employ the machinery of the United States government to allow him to stay. 

1) The Relevant Statutes and Court Decisions:  "the law"

2) Analysis:  "the law" is ambiguous, making its interpretation ultimately political

3) Conclusion:  A proper political solution ought properly to consider Elian's rights human -- and the extent to which those are not respected in totalitarian regimes.

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1) The Relevant Statutes and Court Decisions

The asylum law in question states the following:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title. [8 U.S.C. 1158 (a)(1)].

A number of limitations to this general rule follow but none act as a limit on the age of an applicant for political asylum.

Lazaro Gonzalez applied for asylum for Elian Gonzalez on 10 December 1999.  INS itself -- not a court of law -- determined that "Elian Gonzalez is a six-year-old boy, too young to make legal decisions for himself" and further that "Mr. Juan Gonzalez of Cuba has the sole legal authority to speak on behalf of his son, Elian, regarding Elian’s immigration status in the United States" [INS Statement, 5 January 2000].  No statutory authority for the determination was cited. 

Lazaro Gonzalez filed an appeal in Federal District Court challenging on several grounds INS refusal to consider the asylum application.  The Federal District Court rejected the claim.

Lazaro Gonzalez appealed to the U.S. Court of Appeals for the Eleventh Circuit, which enjoined Elian Gonzalez from departing the U.S. or being assisted in said departure, so that the legal merits of the case can be decided.  While the decision was NOT on the merits of the asylum application -- only on the injunction -- some notable commentary emerged.  First, the Court cites 8 U.S.C. 1158 as I do above, then proceeds to engage in statutory analysis

The statute in this case seems pretty clear. . . . Plaintiff appears to come within the meaning of [a]ny alien. . . . And the statute plainly says that such an alien "may apply for asylum."  We, therefore, question the proposition that, as a matter of law, Plaintiff (unless his father consents) cannot exercise the statutory right to apply for asylum.

Later, the Court writes:

. . . . At this time, we cannot say that "any alien" excludes Plaintiff:   given the plain language of the statute, he might be entitled to apply personally for asylum.  Furthermore, it seems unclear than INS decision to treat Plaintiff's application as a nullity without an adjudication on the merits is a 'procedure for the consideration of [Plaintiff's] asylum application.'

Finally, the Court adds:

Not only does the plain language of the statute seem to support Plaintiff's argument that he, despite his age, is entitled to apply personally for asylum, the present regulatory scheme created by the INS also seems to strengthen Plaintiff's position.   The existing INS regulations do envision situations where a minor may act on his own behalf in immigration matters. . . . Moreover, the regulations contemplated that a minor, under some circumstances, may seek asylum against the express wishes of his parents. . . . Also, the INS Guidelines for Children's Asylum Claims . . . envision that young children will be active and independent participants in the asylum adjudication process.

The INS has not pointed to (nor have we found) statutory, regulatory, or guideline provisions which place an age-based restriction on an alien's ability to apply for asylum.   And we have found no preexisting requirement that a minor, in submitting an asylum application, must act through the representative selected by the INS. . . .

Not only does it appear that Plaintiff might be entitled to apply personally for asylum, it appears he did so.  According to the record, Plaintiff, although a young child, has expressed a wish that he not be returned to Cuba. . . . He personally signed an application for asylum. . . .

Even if the INS is correct that Plaintiff needs an adult, legal representative for his asylum application, it is not clear that the INS, in finding Plaintiff's father to be the only proper representative, considered all of the relevant factors, particularly the child's separate and distinct interests in seeking asylum. . . . It does not appear that the INS ever spoke to or interviewed Plaintiff before making this determination. . . ."

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2) Analysis:  "the law" is ambiguous, making its interpretation ultimately political

Clearly, the plain language of the asylum law does NOT compel the INS or Attorney General to consider the wishes of Juan Miguel Gonzalez in this case.  Indeed, the plain language of the statute -- as the 11th Circuit recognized -- seems to indicate that the child might presumably, under certain circumstances, apply for asylum entirely on his own.  Indeed, INS provisions for just that circumstance seem to exist.  INS's interpretation of the statute, therefore, was not compelled by the clear language of the law, and was political -- political in this case meaning an interpretation of a statue by the executive (political) branch of government not compelled by the clear language of the law.

Further, no statute and no Federal Court compelled Janet Reno to take the actions she took in using paramilitary troops to assault the home of Lazaro Gonzalez and remove Elian forcibly.  Recall that the only court order in existence -- the only legal compulsion -- was the 11th Circuit injunction against any attempt to remove Elian Gonzalez from the country!  The INS itself made the determination that the temporary custody it had originally granted to Lazaro Gonzalez should be transferred to Juan Miguel Gonzalez.  Thus, Janet Reno's argument that "the law" required her to act really amounted to this:  Janet Reno made an interpretation of a broad INS statutory code that, at best, authorized her (and even this is questionable), but did NOT COMPEL her, to make a change in custody -- and then executed that law with brutal paramilitary force.  This was again a political decision -- not a decision in any manner "compelled" by the law.  It is particularly chilling in that Reno acted as both interpreter and executor of law (especially recalling Federalist 47's admonition that the accumulation of all powers legislative, judicial, and executive in one place is "the very definition of tyranny"); Laurence Tribe (NY Times, 25 April 2000), Andrew Napolitano (WSJ 26 April 2000), and Alan Dershowitz (Fox) have all raised issues of the constitutional propriety of the search warrant that was obtained to raid the home, so I will leave that additional issue alone as they have handled it nicely.

Because the law itself is ambiguous on this matter -- and does NOT compel any clear course of action -- the 11th Circuit was preparing to rule on the substance of the asylum application as well as the custody question.  Along these lines, recall footnote 16 of the 11th Circuit Decision: 

The INS, in its response to Plaintiff's motion, said it would consent to an injunction requiring the INS to bar plaintiffs departure from the United State if this Court also entered an order directing Lazaro Gonzalez to present plaintiff to the INS, as directed by the INS, for transfer of care to Plaintiff's father.  WE DECLINE TO PROCEED IN THAT MANNER. [Emphasis supplied --klw]   

It is hard to imagine a more stark admission by INS that it lacked authority for a paramilitary raid than this plea to a Federal Court for authority -- any authority -- to claim the law compelled them to take the action they ultimately did!

It has been clearly demonstrated that the relevant statutes and court rulings -- quite unlike "the law" commentators and people who have not studied this matter carefully keep discussing -- do NOT compel the INS or Janet Reno's course of action thus far.  Because the laws in this particular case are so ambiguous, the decision to act has been political, rather than compelled legally.  Indeed, the decision to engage in the paramilitary assault on Lazaro Gonzalez's home runs counter to the spirit of the 11th Circuit decision if anything!

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3) Conclusion:  A proper political solution ought properly to consider Elian's human rights -- and the extent to which those are not respected in totalitarian regimes.

The machinery of government, in this case where the law is so ambiguous, ought to be employed in a liberty-maximizing manner for Elian Gonzalez.  Rather than expediting his return to Cuba, the national government of the United States should make every effort to maximize young Elian's liberty, including consideration of his appeal for asylum and including consideration of custody.

Taking into account the first question of asylum: there is no doubt in my mind that a return to Cuba will be detrimental to this young man, given the brutal nature of the Castro regime.  It is likely that Elian will be re-educated by Cuban psychologists (see Robert Novak on this), because the Castro regime has no need for anyone telling the people how nice life is in Miami.  It is certain that Elian will be returning to a land that, by its very state ideology, does not respect human rights.  The documentation of human rights abuses in this regime is so widespread -- even among groups that are not necessarily friendly to the United States -- that it's hard to imagine how anyone could take issue with this statement.  Except, some have and do (see National Review's article "Still Useful, and Idiotic").  Then again, there are those who denied Robert Conquest's and Richard Pipes' documentation of the horror that was the Soviet regime, and some who still do even after archival evidence has proven things were probably worse than Pipes or Conquest ever imagined!  There are a growing number of those who deny the Holocaust.  I don't know what to say to members of any of these groups except, Existence Exists.  For the best moral elaboration of Elian's rights as a human being, there is no finer essay I've seen than Leonard Peikoff's "A Sin to Deport Elian."   I shall not repeat what he has argued eloquently.

As far as the question of custody, I would argue this is not a determination for Janet Reno or any of her entirely unqualified staff, but instead one for a family court.   Family courts are charged with deciding the INTERESTS of a child, and thus are not compelled to award custody of a child to the person whose DNA most resembles the child, although of course they do lean in that general direction.  However, we have seen courts remove children from situations in which their interests are jeopardized; generally in this country, that involves unfit parents.  I am not alleging that Juan Miguel Gonzalez is an unfit parent; I suspect he loves his son as much as the very best Americans love their own progeny!  However, I am stating the Cuba's "Code of the Child" regards children as wards of the state, and empowers the state to oversee their education in communism, and that the state is oppressive in many other ways that render Juan Miguel Gonzalez unable to perform the duty of parent in Cuba as we understand that duty in the United States.  Leonard Peikoff is right to call the notion that "He needs a father no matter what" a mindless bromide, for  it is a statement that equates being a father in Cuba with being a father in the United States -- something that, because of the repressive nature of the Cuban regime, is not at all guaranteed or self-evident.

I've often asked myself what Ronald Reagan (or Lincoln) might have said about all of this.  Peggy Noonan, one of the Gipper's speechwriters, opined the following recently in a column originally appearing in the Wall Street Journal: 

And some of us, in our sadness, wonder what Ronald Reagan, our last great president, would have done. I think I know. The burden of proof would have been on the communists, not the Americans; he would have sent someone he trusted to the family and found out the facts; seeing the boy had bonded with the cousin he would have negotiated with Mr. Castro to get the father here, and given him whatever he could that would not harm our country. Mr. Reagan would not have dismissed the story of the dolphins as Christian kitsch, but seen it as possible evidence of the reasonable assumption that God's creatures had been commanded to protect one of God's children. And most important, the idea that he would fear Mr. Castro, that he would be afraid of a tired old tyrant in faded fatigues, would actually have made him laugh. Mr. Reagan would fear only what kind of country we would be if we took the little boy and threw him over the side, into the rough sea of history.

He would have made a statement laying out the facts and ended it, "The boy stays, the dream endures, the American story continues. And if Mr. Castro doesn't like it, well, I'm afraid that's really too bad."

But then he was a man.

I actually think Reagan would have been more eloquent.  But his moral vision would have been right where Noonan placed it.  It would be nice if there were any such leadership today:  leaders in Congress, for example, who would move forward on legislation to confer citizenship on Elian (so when the President vetoed it, he couldn't hide behind Miss Reno's skirt any longer, but would have to take credit for his immoral policy), or a Congress that would even make a statement by conferring a Congressional Medal on young Elian's mother, who died (perhaps in vain) so that her son might escape the Communist Paradise to our south.  But then, morality isn't part of politics these days, is it? 

Copyright (c) 2000, Kevin L. Whited