The GULLY | Americas | Judging Elian

Yesterday, a panel of three federal appeals judges sitting in Atlanta refused to order an asylum hearing for Elian, as his Miami great-uncle Lazaro Gonzalez had demanded. From a legal standpoint, the judges all but killed the relatives' crusade to keep the 6-year old Cuban castaway in the United States against his father's wishes.

However, with a wink and a nod to the Cold War pieties of their youth—calling Cuba a "totalitarian state"—the judges also threw the Miami relatives two (puny) legal bones to chew on.

First, they refused to let Elian's father, Juan Miguel Gonzalez, replace Lazaro in the asylum bid as the adult who can speak for the child, something which would have allowed dad to immediately withdraw the application and return home to Cuba with his son. Then, they prolonged for a least 21 more days the injunction keeping Elian in this country, while this six-month fiasco drags out even further.

Up next for the Miami relatives is either the full Atlanta apellate court or the U.S. Supreme Court. Neither is likely to overturn the ruling and the Supreme Court will probably refuse even to hear the case.

A Grudging Ruling
It was a grudging, clenched-teeth, but ultimately iron-clad ruling.

The Atlanta judges characterized the INS common-sense decision that only Juan Miguel Gonzalez could legally speak for his 6-year old son, and not a distant relative, as "within the outside border of reasonable choice."

They also went out of their way to trumpet that, had it been up to them, Lazaro Gonzalez would have gotten his every wish. Eleven times, in extremely unusual asides, the court suggested that the INS had made the wrong decision.

Tugged in opposite directions by two visceral conservative impulses—vintage Cold War anti-Communism, and a horror of an activist (read: liberal) judiciary prodding the government and Congress—the Atlanta judges opted to strike a blow against the latter by deferring to the government, while sniping at it in pious, yet legally non-binding asides.

Judge J.L. Edmonson, a Reagan appointee who penned the ruling, stoically wrote that it was not the job of judges to overturn the decision, "merely because we personally might have chosen another." In the end, the opinion concluded, "It is the duty of the judicial branch not to exercise political will, but only to render judgement under the law."

Side Effects
The ruling, though a blessing for Elian and Juan Miguel Gonzalez, was troubling to some children's advocates.

Although cheered by the court's affirmation of the right of children to apply for asylum in the U.S., advocates feared that parental objection could now be used by the INS to deny asylum bids by, say, an African girl fleeing genital mutilation, or by a Pakistani girl fleeing parents who had threatened to kill her if she married wrong. They are also afraid that future courts might not step in to protect children if the Elian case is seen as a precedent.

It may have been useful to those future courts, had the Atlanta judges let us know if, in their view, genital mutilation, forced marriages, honor killings, and torture by families, neighbors, and governments are as good a reason for deserving an asylum hearing as life in a "totalitarian" society that curtails freedoms of speech and association, and other civil liberties. One wonders if it was the "totalitarian" label that bothered them, or the actual loss of civil liberties, which can be observed in many societies the world over which have never been called "totalitarian."

flag afire The anti-totalitarian rhetoric now heard in Atlanta has served to excuse the Miami relatives' pursuit of their meritless case and their defiance of the law, the excesses of Cuban-American Miami, and months of coddling by the Justice Department.

Tepid, Rancid Cold War-Speak
While most Americans know by now—and couldn't care less—that the Cold War is over and done with, and we won it, some in our rarefied political class insist that it goes on in Cuba. This allows liberals to sound tough at no cost to themselves. And conservatives to shake their morose state (now that abortion and homosexuals have flunked as worthy replacements of the Evil Empire) by proffering scary Eisenhower-era words such as "Communist", "Totalitarian", and, of course, "Brainwashing".

Both conservatives and liberal contrast all that to "Democracy", a word so bland, boring, and meaningless that mere mention of it makes most Americans flee to the kitchen in search of snacks.

The worst effect of that evocative word "totalitarianism" is that it blinds courts, legislators, and INS officials to the oppression in the unqualified places like Ethiopia, Peru, or El Salvador. That gangs, and not the government, execute the outspoken in El Salvador, is considered irrelevant.

That it is the family, or the tribe, that holds down a young girl and mutilates her genitals in Africa, seems to make it less horrifying than if it were done by the government.

Judging Ourselves
We have to continually remind ourselves to look for truth lurking behind the rhetoric. What do we really know about Cuba? What is the real life of an average person there? Yes, it is a one-party state controlled by an authoritarian, larger-than-life personality. There's no free press, independent labor unions, or any of a number of civil liberties we take for granted. Those who challenge the government politically are harshly dealt with, although generally not killed or tortured.

But is Cuba really a monolithical society? Are the municipal elections with multiple candidates, but not parties, organized in the past few years a sign of a modest democratization, or are they just for show? How absolute is the control of the government over the thousands of associations and clubs that have emerged in the last decade—anything from bird watching and stamp collecting to computer literacy? Are spaces for individual initiative and expression, protected from governmental pressure, being opened or not? We know very little about Cuba.

And how does the Cuban regime's oppressive policies stack up to other oppressive regimes the world over?

Is freedom of speech more important than freedom of body? Would you really choose mutilation or death over the silence of a fading tropical communism? Most people wouldn't. Neither would most people choose the right to vote over their daily bread.

Our own U.S. history shows slews of red-blooded Americans have sold votes for whiskey, votes for money, votes for almost anything.

I do not mean to devalue real democracy. We should apply all of our vast superpower to nurture it, not democracy on paper, as we mostly do now, but true democracy, the kind that cares as much for the body as for the mind. But, to reach a state of perfect democracy, we have to acknowledge first that there are degrees of freedom, as there are degrees of oppression. Not just in the world, but here, in the United States. We are far from perfect ourselves.

But we do know that allowing a Cuban father, despite the political system in which he lives, to be with his son, was not merely "within the outside border of reasonable choice". It was the only reasonable choice—in a real democracy.