Don’t Mistake Federal Delay for Weakness

In the early 1960s, I worked in the Justice Department on civil rights. Under the leadership of Atty. Gen. Robert F. Kennedy, I had the job of dealing with the near-continuous confrontation between the civil-rights movement and state and local authorities. This required constant decisions on use of federal force: its timing; its components (military or civilian); such negotiations as were possible; and the public aspects of force--the harm to minors, if involved, and to local civilian populations. The decisions covered varied institutional conflicts: over school and university admissions, the right to register and vote, access to public places, transportation facilities, jobs and simply people’s right to make grievances known. Underlying all these decisions were the basic, almost intractable, struggles over the position of black Americans in U.S. society--whether one of freedom and equality or subjugation--and who had the power to decide what that position should be: federal constitutional law or the regional, state and local customs, laws and beliefs as formulated over the decades and centuries.

The similarities between the great dramas of those civil-rights confrontations of the ‘60s and the poignant family quarrel over the future of Elian Gonzalez in Miami are strong. Today, too, it is the federal government and federal law that stands opposed to a local group of indeterminate size backed, from time to time, to varying degrees, by local law enforcement (two mayors, the local police) and, in an offhand and thoughtless way, some nationally known and residually Cold War politicians.

Yet, if these were the only participants, resolution would be simple, with short-lived repercussions, as was true of many confrontations in the early ‘60s. The answer would be to apply federal law enforcement of whatever kind and force needed, mindful of the obligations of those in power to use force with restraint, creating minimal resentment.

The obstacle to using this as a model for the Gonzalez case is that the person at the core of this drama is a 6-year-old boy, who has become a symbol (if fuzzy at the edges) of a temporarily powerful nation-in-exile, much of which is now working, voting and organizing in its new country to retake its old one. As a symbol, Elian is being subjected to manipulation of many varieties--the principal one designed to keep him in this country--regarding his custody, his location, his future home. We all know this, and wish it were not so.

Still, he is just 6 years old, and the notion of applying force, in a public way, to remove him from his custodian-relatives-in-fact in Miami and take him to his custodian-in-law and presumably loving and caring father in Washington is so heart-rending that it has apparently caused the attorney general to flinch every time one of her so-called deadlines has been flouted by the boy’s great-uncle.

Many of the early-’60s confrontations had built-in deadlines, in terms of fulfilling the federal right or duty involved, that the federal government was determined not to let slip by without resolution. This was automatically true in school cases, the most prominent being James Meredith’s entry to the University of Mississippi in October 1962 and Vivian Malone and James Hood’s to the University of Alabama in the spring of 1963. There was always a plausible deadline: a date set well before, so if these students were registered on or near that date, their federal rights were fulfilled, no matter what the surrounding turmoil; whereas if not, then not. It is almost unfortunate that no such impartial deadline exists in the Gonzalez matter. For it could also be used to explain federal action, even if it takes place on the anniversary--as was true last week--of the Waco siege, or the Oklahoma City bombing, or the Bay of Pigs invasion, or even on Passover, or a day associated with the resurrection of Jesus.

Delay, or any hesitancy about deadlines, is clearly crucial in such matters, for an unarguable deadline imposed neutrally, and before any crisis arose, removes any uncertainty. This may lead to a public clash of forces, but at least the matter is resolved.

In the Gonzalez controversy, the responsibility for setting a deadline appears to lie with Atty. Gen. Janet Reno. As both she and Gregory B. Craig, the skilled lawyer representing Elian’s father, have pointed out, the 11th Circuit Court of Appeals’ decision on Wednesday, issuing a stay with respect to any move of father and son to Cuba before a May 11 hearing, has no bearing on this. Even the president has said as much: The decision does not touch the question of custody--of the physical removal of the boy from his great-uncle’s Miami home to the father’s care in the United States. So the question remains: What does the attorney general have in mind when she speaks of “use of force.”

Reno seems to be flinching, delaying for delay’s sake, on every occasion when a time for force--often one she herself set--has arrived. Certainly, the presence of the child leads to hesitation, as it would for anyone. Perhaps it is also the memory of the Waco fire, seven years ago on April 19, when a key factor behind the sudden federal move were reports of child abuse within the compound. Now, a professor of pediatrics and a director at Children’s Medical Center at Montefiore in New York, who is advising the U.S. government, reports signs of psychological child abuse within the Miami house, and this appears to have been directed straight to the attorney general. There must be other factors also affecting her actions, or lack thereof.

So it is hard to take comfort from past federal-local confrontations. In Miami, the local authorities’ support for federal law has ranged from scandalous opposition, or at least abdication of normal law-enforcement obligation, to vague retreats from that original position. The governor seems not to have heard of the matter, and there is no equivalent of, say, late U.S. District Court Judge Frank M. Johnson Jr., who officially, and clearly, reminded Alabama Gov. George C. Wallace of his duties to maintain law and order, all within the scope of the judge’s order to permit the Selma march in 1965. There is, in fact, no strong judicial authority at hand. This is so contrary to the experience of those who sought judicial support from those like Johnson at the district-court level, or the strong members of the 5th Circuit Court of Appeals at the time of Oxford, Miss., and Selma.

What is needed to avoid force is an act of conscience, a sincere move toward the best interests of the child, from those now holding power over him. For make no mistake, in this case, family love masks an exercise of unlawful power over a small boy whom the law places in the custody of his father, and it is also deeply influenced by the political agenda of Miami’s Cuban-exile community.

I know of no way to bring such an act of conscience about. It may be that Reno and others on the federal side believe movement toward it will be helped by delay, so the realities of eventual paternal custody can sink in. However, in my experience, delay leads only to the opposite conclusion: Strong voices on the anti-federal side see delay as a sign that actual enforcement will never happen. They might believe that public sympathy for the small boy will switch toward a conviction that he has been the object of dispute for too long, and another drastic shift in his life--his forcible delivery to his father and return to Cuba--is intolerable.

I certainly do not advocate such an outcome, but I fear it every time a further delay seems to be contemplated inside the federal government. If force must come, then, of course, the rule is: as little as possible, as kind and courteous toward the boy as possible and as swift and unannounced as can be arranged.

It is plain to me, as matters stand, that Reno must act. Further delay will further harm the boy, as was forcefully stated in the pediatrician’s report last week. It will also further disrupt the Cuban population involved and further confuse and dismay the American public. It may be that the attorney general needs some sort of public help beforehand from the president, who has thus far stayed on the margins. If so, it is up to her to ask for it and define what she needs.

Personally, I think pre-announced public warnings, like hints of unspecified action at 2:00 in the afternoon, are a mistake: They only lead to panic and turmoil around the Gonzalez house. In any event, the time for delay and passive hope for the boy’s well-being is long past. The Justice Department has accepted responsibility for his interests, and they lie--as the law requires--in a return to his father, as quickly as possible. *