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