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Burden of Proof

Deadline Approaches in Standoff Over Elian Gonzalez

Aired March 29, 2000 - 12:30 p.m. ET



KAREN KRAUSHAAR, INS SPOKESPERSON: The simple assurances we have sought from Lazaro Gonzalez are that he will cooperate with an orderly transfer of Elian Gonzalez in the event of an adverse ruling by the U.S. Court of appeals and barring emergency injunctive relief from the Supreme Court.

KENDALL COFFEY, GONZALES FAMILY ATTORNEY: The family has not ruled out signing a reasonable document to give assurances that they will comply with the law. That is something that we're very seriously looking at, and we intend to propose something that should give the INS the assurances that this family will respond to and obey the law.

MARISLEYSIS GONZALEZ, ELIAN'S COUSIN: Honestly, I wouldn't want my father to sign that. To me, that's betraying Elian. And after all he's been through, put him through something so horrible, I wouldn't sign that paper.


GETA VAN SUSTEREN, CO-HOST: A deadline approaches in the standoff over Elian Gonzalez. That's today on BURDEN OF PROOF.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Geta Van Susteren.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

A meeting is scheduled later today between immigration officials and the Miami family of young Elian Gonzalez. The INS wants a written agreement that if the appeals fail, the boy will be returned to his father in Cuba.

ROGER COSSACK, CO-HOST: Now earlier today on CNN, an attorney for the Miami family said the uncle is likely to attend the meeting, but he could not predict whether an agreement would be reached.

Joining us today from Miami, CNN's Susan Candiotti.

VAN SUSTEREN: Here in Washington, Brian Jones, former INS general counsel Paul Virtue, and David Wallace. And in our back row, Katie Braun Scott (ph) and Joshua Braun (ph). And also joining us in Washington, CNN's justice correspondent Pierre Thomas. Susan, first to you. What is going on in Miami now?

SUSAN CANDIOTTI, CNN CORRESPONDENT: At this hour, there's a strategy session going on among the legal team representing the great uncle of 6-year-old Elian Gonzalez. This is in advance of the meeting scheduled for around 4:00 this afternoon at U.S. Immigration headquarter offices here in Miami. So they're trying to figure out what they're going to do. Are they going to sign this agreement? Is there some wiggle room for the attorneys? You've heard Kendall Coffey, what he had to say a little while ago. Might the Justice Department bend just a little bit?

But if Lazaro Gonzalez -- that's the great uncle's name -- if he doesn't sign this promissory note to surrender the boy if all appeals are lost, the Justice Department says it's going to make good on its threat to revoke the boy's temporary parole as of tomorrow morning at 9:00.

VAN SUSTEREN: Susan, Kendall Coffey, the lawyer for the family, has said that the family has not ruled out signing, quote, "a reasonable document." Do you have any idea what a reasonable document means to the family? What's the hold up?

CANDIOTTI: Well, one of the things they're looking for is they want to keep their legal options open. They are saying that it's bad lawyering to allow their clients, even saying it amounts to malpractice, to allow them to sign a document that would prevent them from using any other legal avenues to try to prevent the boy from going back in any other court, presumably also including family court; any other actions or lawsuits they might want to file in federal court if some new information arose. So they don't want to sign anything, they say that they think would prevent them from doing that.

COSSACK: Joining us now is CNN's Pierre Thomas.

Pierre, this must be the Justice Department's biggest nightmare because, you know, obviously, they are looking around for a way to avoid having a confrontation. What do you know?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, just a few moments ago, I interviewed Bo Cooper, who is the INS general counsel. He made a number of things clear. One he made clear is that the Justice Department has tried to be cooperative with the family, but they do not want a lengthy process that would go on for months and months and months.

One of the things they're concerned about is after this appeals process, they do not want the family going to, for example, state court and seeking proceedings there to block the boy's transfer. He also made very clear that he did not think that the Justice Department was being provocative.

COSSACK: Pierre, the...

(BEGIN VIDEO CLIP) BO COOPER, INS GENERAL COUNSEL: It's hard to regard as provoking a process that has included direct discussions with the relatives in Miami, direct discussions and interviews with the father, a very carefully considered decision in January, a pause so that the relatives in Miami could appeal to the attorney general to consider and change the commissioner's decision, a direct meeting with their representatives during that period, confirmation of the commissioner's decision by the attorney general, and then a voluntary pause so that they could challenge our decision in the federal district court.


THOMAS: So from the Justice Department position, they've been very, very patient, and that patience is running out.


COSSACK: Pierre...

VAN SUSTEREN: Susan, let me ask you a question. Pierre's just talked about what the federal government's position is now. Does the family intend to go back to Washington? I know there was a lot of rumblings early on in this case that the Congress is going to get involved. Is there any congressional involvement?

CANDIOTTI: Yes. One of the attorneys told me this afternoon that they have people working Capitol Hill trying to see if, for example, they can get Dan Burton to activate that congressional subpoena, you'll remember from a couple of months ago, to call Elian to testify before Congress.

If that were the case, that presumably would prevent U.S. immigration authorities from removing the boy from this country until he would testify.

COSSACK: Pierre, it would seem that the family has the right to go to whatever court they may wish to; whether or not they get relief is a different story. What does the Justice Department -- Do they have a fall-back plan or a fail-safe plan if the family says, "We're not going to sign, but we are going to other courts?"

THOMAS: Well, again, the Justice Department, for example, holds that the state court has no jurisdiction in this matter. So they do not intend to allow the family to go that route. If the family went that route, you've already seen the Justice Department file papers saying, again, that the state court has no jurisdiction.

And in terms of Congress taking action, the Justice Department, Mr. Cooper made clear this morning that they believe that even before the appeals process began, that they had the authority to take action then, but they simply have been trying to accommodate the family. They think that they have the authority to act now.

VAN SUSTEREN: Paul, Bo Cooper's the current INS general counsel; you are a former INS general counsel. This document that the governor, federal government wants the family to sign, is that unusual or is that routine?

PAUL VIRTUE, FORMER INS GENERAL COUNSEL: Well, it's unusual and so is this case. But for somebody to be paroled into custody of family in the United States, that family has to undertake to make that person available for any proceedings or any interviews that the INS may wish to conduct, or -- and to make that person available if the INS is in a position to remove him. So I think they really have that authority without this specific document.

VAN SUSTEREN: Well, why do they want this document, because it seems like it's drawing a line in the sand between the family and the federal government? Do they have to have this document?

VIRTUE: Well, my impression is they don't want to have any arguments either in state court or any other forum with respect to their authority. They believe their authority is clear. They have exercised unusual restraint to accommodate the family in terms of these appeals, but you know, I think they want to nail down what will happen at the end of the process now.

VAN SUSTEREN: Let me ask you a quick question, though. Let's say they sign the government but Congress and Dan Burton decide to do something. The family can't prevent that at this point.

VIRTUE: Well, they can't, that's right. And Congress may subpoena the United States government to make Elian available. Right now, the Justice Department is not the subject of the subpoena, and so there's some question what effect it would have on his removal, even if the subpoena were to be enforced at this point.

COSSACK: And you know, Greta, you wonder how valid that document would be anyway when you're given the choice of either signing it or losing that process to go to court.

Well, let's take a break. Up next, the appeals process: What are the legal roadblocks between Elian Gonzalez and his future? Stay with us.


On this day in 1971, Charles Manson and three of his followers were sentenced to die in California for the 1969 murders of actress Sharon Tate and six others. California repealed its death penalty in 1972 at which time the sentences were reduced to life in prison.



VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room. COSSACK: Federal officials want an orderly return of Elian Gonzalez to his father in Cuba. Elian's Miami family is fighting that reunion every step of the way.

Joining us now, Congressman Robert Menendez.

Congressman Menendez, you take an interesting position and believe that perhaps the judge should be the one that decides whether or not young Elian should have to go back rather than Attorney General Reno. Please explain.

REP. ROBERT MENENDEZ (D), NEW JERSEY: Well, it seems to me that it's the judge who should make this final determination upon what's in the best interest of the child. This whole debate that we've had over these appeals that are pending and the court hearings just whether or not Elian even has the opportunity to present his case for political asylum, which he has not had the opportunity to do so. And he has not had the opportunity to have a hearing as to what's in the best interest of this child. So on both substantive scores, he's not had a hearing.

The only hearings he's had as to whether or not he could even file a petition for political asylum. And so I think that's part of the frustration in this process and the heavy-handedness of the Justice Department, who is insisting on this letter in a way that's rather open ended doesn't permit the family to have all of its due process rights. And a family that has complied every step of the way. They were given trust of Elian. They've taken care of him. When the grandmothers come, they produce the child.

VAN SUSTEREN: Congressman, let me just...

MENENDEZ: When they wanted an expedited appeal, they filed for an expedited appeal. So if you look at the facts, they have done everything they've been asked to do.

VAN SUSTEREN: Congressman, let me talk to you about what you say, that the judge should decide. With all due respect, here's the bind you're in with that particular argument. The judge already has decided, and that's that the law says the attorney general can make the decision. I agree with you, the letter, that seems like gamesmanship.

But what about you in Congress? Is there anything you in Congress can do in light of the fact that the courts seem to be working in a different direction than what you want?

MENENDEZ: Well, I think there's three different things that can be done but they all depend upon whether the Republican majority wants to act. Number one is they could bring up a bill either for permanent residency as I have suggested is the appropriate manner to the floor in both houses or for citizenship. I prefer permanent residency.

They could -- The subcommittee on Judiciary could send an official inquiry to the INS, which under their agreement with that subcommittee, stops any further procedure in the action. Or the subpoena question still remain an issue in terms of any committee's subpoena offered to both Elian, which it has been, and/or to the Justice Department in this regard. Those are three different avenues that exist.

COSSACK: Paul Virtue, isn't that a catch 22 here in the sense that once the Justice Department decides that Elian's father is the one that speaks for him, automatically then Elian loses his right whether he wants to or not to apply to this country for political asylum?

VIRTUE: I'm not so sure it's a catch 22, Roger. It's really -- I mean, that is the law essentially that a child of such tender years can't form an intent that is different than that expressed by his parents. And so the decision was made that the father was speaking of his own volition and he wants the boy back. So I think that's a pretty straight forward question that the Justice Department has answered.

VAN SUSTEREN: Susan, the mayor of Miami- Dade County, has weighed in on this issue. What is his position?

CANDIOTTI: Well, at a news conference just a little while ago, he was there with about 20 other local politicians. And that mayor, Alex Penelas of Miami-Dade County, says that he sent a letter to the White House, and he is saying that he and the other local dignitaries are holding the federal government responsible and Janet Reno responsible personally, the U.S. attorney general, if the Justice Department carries out its threat to try to repatriate the boy, and if this leads to civil unrest and violence, that he will hold the U.S. government and Janet Reno responsible.

And he also said that the Miami-Dade Police Department and the city of Miami Police Department will not lend any resources, as he put it, to assist U.S. forces attempting to send the boy back to Cuba.


COSSACK: Pierre, what happens next if, in fact, that's -- You know, what the mayor said is almost challenging the Justice Department and saying, "If you want this young boy, you're going to have to come get him and we're not going to help you." What's the Justice Department going to do?

THOMAS: Well, expect a number of things tomorrow morning if the family decides not to abide by the Justice Department agreement. One of the things that we're being told is, again, the first thing is that the boy's parole would be revoked. Then they would begin to give the family instructions on what they call an orderly transfer of the boy. However, if the family were to renege on that, no one is talking in terms of specifics about what would happen next.

The one thing that again, Bo Cooper, the INS counsel, said this morning is that those kind of decisions, in terms of whether there would be something negative happening is really in the family's hands. They view it as, you know, asking the family to cooperate. If they don't, it's the family's decision. That's the Justice Department position.

VAN SUSTEREN: Susan, what's going on in the household, the sense that Elian knows what's going on? Is there life -- Is he going to school? I mean, what's going on there?

CANDIOTTI: Well, his cousin, Marisleysis, told us that the boy does understand what's going on, the 6-year-old child. She says he completely understands the situation.

And he has not been going to school all week because the family says it is concerned about broadcast reports coming out of Cuba that talk about the possibility of the specter of commando forces coming to the United States to bring the boy back to Cuba. They claim that this concerns them and so they're keeping the boy home from school.

And a little while ago, we saw the boy out playing in the yard, and we also saw a school teacher arrive to continue his instructions at home.

VAN SUSTEREN: All right, well, should his Miami family lose their appeal to keep Elian Gonzalez in the United States, the boy is to be returned to his father in Cuba. How would such a reunion take place when we come back.


ARMANDO GUTIERREZ, FAMILY SPOKESMAN: The family has always said they'll obey the law. And, you know, immigration asked them to go over to the state court, they did. They asked them to go to federal court, they did. They asked them to go to the appellate court as emergency, we did. I don't know what else the government wants. I wish they'd spend some time in trying to hire some expert psychologists and psychiatrists and see what's better for the 6-year- old child instead of seeing what's better for both government, Cuba and the United States.



Q: Though attorney generals are rarely deposed or called on to testify, Janet Reno met with civil lawyers yesterday and testified for two hours in conjunction with what case?

A: The Branch Davidian wrongful death suit.



SEN. ORRIN HATCH (R), UTAH: For reasons I fail to understand this administration yesterday significantly ratcheted up the stakes in this matter and unnecessarily turned this into a crisis situation by threatening to involuntarily and forcibly remove this little boy from the place he calls home and to forcibly remove him from the family that's cared and sheltered him for four months. (END VIDEO CLIP)

VAN SUSTEREN: Dozens of Cuban exiles in Miami are keeping a vigil around the house of Elian Gonzalez's relatives. They say they will not allow Elian to be taken from their home. Some of have said they will die for him.

Paul, the specter of the federal government going off and getting this child is rather extreme, but in the normal, case if you've exhausted all your court remedies and you refuse to go and your parole has been revoked, how does the INS get you out of this country? Do they come with handcuffs?

VIRTUE: They actually go out and look for you, go to your home and take you into custody physically if they have to.

VAN SUSTEREN: And where would they -- If they did this with this child, which is hard to imagine they would, but what would they -- where does he go? What do they do with him?

VIRTUE: Well, I would think they would take him back to the district office and they would have had presumably some prior arrangements made to place him with another family or to move him actually physically back to Cuba. They would have made arrangements before they have to actually physically go in to get him.

VAN SUSTEREN: So they have a plane ready for him?

VIRTUE: Well, they may. I don't know that, but that might be part of the plan, sure. If they plan to move him immediately, then I would think they would have done that. They don't want to waste any time.

COSSACK: OK, Paul, let's take it to the worse situation. Now it's time and the INS has decided that it's time for Elian to leave and the family surrounds the home. Now what happens?

VIRTUE: Well, you know, the troubling thing -- Obviously, INS has enforcement assets available to it. It has the border patrol down there in Miami. They also have the marshals or anyone else they might want to call in. It's disturbing that they wouldn't also have the cooperation, perhaps, of the Miami police based on the statement I heard earlier from the mayor, which you would typically want to count on in such a situation. So it's a potential volatile situation that I think Justice has been trying to avoid this whole time.

VAN SUSTEREN: Congressman Menendez, what are you going to do?

MENENDEZ: Well, we're trying to get Justice to act differently. They've created an unnecessary set of circumstances here. There's an appellate date May 8th. Why this is of such incredible importance right now to ratchet it up creates this type of reaction in the community.

VAN SUSTEREN: Assume they're going to do this, though, congressman. What, if anything, are you going to do or can you do anything other than to say that you don't like what the Justice Department is doing? Can you do anything?

MENENDEZ: Only the three, the very three things we told you before, Greta. It's either getting the majority in the House and the Senate to move a bill on residency or permanent -- permanent residency or U.S. citizenship, having them make a formal inquiry by the Subcommittee on Immigration of the Judiciary Committee which, from my understanding with the Justice Department, stays their movement on any given case. And/or lastly, considering the subpoena power. I mean, I would urge the majority that has all of those powers to consider any or all of them so that the child ultimately has, you know, his full due process.

This whole -- This insistence on expedited processing is such that, you know, truncates the child's rights. And part of what they're asking the family to sign is a letter that says that unless they get emergent relief, assuming they fail the appellate division from the United States Supreme Court, which is I think a very high burden to try to achieve, that they will automatically give the child without knowing the facts and circumstances.

COSSACK: Congressman, let me just ask you this. Most lawyers agree that there's very little chance there'll be success in the next go around in front of the court. Doesn't it become cruel then to just continue this on and on and on?

MENENDEZ: Well, Roger, you know, the bottom line is with all due respect to all of those experts, the fact of the matter is the reason we have appeals and ultimately the Supreme Court is because people make mistakes, both lawyers and judges. And so this family, which are now American citizens, should have the same right as any other American citizen to go through all of the process in the normal course of events, and then they will, I think, voluntarily as much as it will be heart wrenching for them to do. If they lose to the normal process, then they will do and obey the law. But when you create -- put a gun to their head and basically say it's this way or, in fact, we terminate all your rights, it's difficult.

COSSACK: Congressman, I hate to interrupt you but I'm afraid that's all the time we have for today.

Thanks to our guests and thank you for watching. Today on "TALKBACK LIVE," the Supreme Court hears argument on whether praying before high school football games violates the separation of church and state. That's today at 3:00 p.m. Eastern, noon Pacific.

VAN SUSTEREN: And be sure to tune in to BURDEN OF PROOF next Tuesday and Wednesday for a special two-part interview with Susan Smith's mother. Linda Russell has rarely discussed her daughter or the night Susan drowned young Michael and Alex in John D. Long Lake.

We'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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