- The Washington Times - Friday, May 12, 2000

A three judge panel from the 11th Circuit Court of Appeals in Atlanta has a daunting task before it: balancing two seemingly irreconcilable rights. It is right that a child, who reaches America, should be protected from a dictatorship that routinely coerces and punishes innocents to perpetuate its absolute power. It is also right that a father should have the rights to his 6-year-old child. The panel began considering these conflicting questions yesterday, when it heard oral arguments for and against granting Elian Gonzalez the right to apply for U.S. asylum.

"I worry about whether there is inherently a conflict of interest that … a child is within the jurisdiction of the United States and the sole parent is … residing in what I understand our State Department calls a communist, totalitarian state," said appeals Judge J.L. Edmondson yesterday. Judge Edmondson's statement was refreshing because, in the White House's zeal to reunite father and son, it has failed to answer some pressing questions regarding the Castro regime.

Why, for example, were Elian's grandparents moved from their hometown in Cardenas and put in a government compound around the time Juan Miguel traveled to the United States? Why didn't Elian's stepmother bring her child, from a different marriage, with her to the United States? This question is particularly relevant since Mr. Castro is attempting to create a little Cuba on the retreat where Elian currently lives. It seems Mr. Castro took pains to ensure that some hostages would be left behind.

Judge Edmondson said yesterday that it's not uncommon for courts to override parental rights when upholding the best interests of a child. Judge Edmondson cited cases in which children are taken from parents' custody if they reject medical care for their child for religious reasons. It's not out of disrespect for their beliefs, Judge Edmondson said, "but it seems to be so conspicuously in conflict with the needs of the child."

The "conspicuous conflict" that Cuba represents was made painfully clear in an opinion piece by Armando Valladares published by the Wall Street Journal on May 5. Mr. Valladares spent 22 years in solitary confinement for refusing to pledge allegiance to the Castro regime. While in jail, he heard the voice of a child whimpering, "Get me out of here! I want to see my mommy!" This was the voice of Robertito, a 12-year-old child who was put into prison for reaching into the window of a car and playing with a gun he found there. It turns out the car belonged to a captain in the political police. Robertito stayed in prison until his 18th birthday.

Kendall Coffey, an attorney for Elian's Miami relatives, succinctly summed up the Cuban reality yesterday. "There is no parent in Cuba who controls what happens to his or her child, and there is no power in this country that can protect this child if he is removed to Cuba."

On the other hand, the panel posed some questions which are sure to hearten Juan Miguel. Judge Charles Wilson asked Mr. Coffey whether Elian could understand the contents of his asylum petition. "I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition," he said.

Even if judges decide to give Elian a voice of his own, Elian's resolve to win U.S. asylum has surely weakened since he has been put in the custody of a father opposed to that desire. It is very likely that the Justice Department had this precise aim in mind when it raided the home of Elian's Miami relatives to transfer custody.

Judge Edmondson said that although the panel won't rule this week, it could reach a decision in a few weeks. Given the moral complexity of the case, judges will need time to deliberate.

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