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Burden of Proof

Elian Gonzalez Custody Case: Intensity Escalates as Juan Miguel Gonzalez Meets with Attorney General

Aired April 7, 2000 - 12:30 p.m. ET



JUAN MIGUEL GONZALEZ, FATHER OF ELIAN GONZALEZ (through translator): I've been very satisfied with the meeting with them. They've given me all their courage, all their -- I don't know how to tell you -- all their support that this will be resolved the soonest possible. They have assured me, the state, the government, has assured me that that is how it's going to be, and I am sure that it's going to be that way, that soon I will have my son with me.


ROGER COSSACK, CO-HOST: The intensity of the custody battle escalates as Elian's father meets with the attorney general. Today on BURDEN OF PROOF: What happens next? And how will Miami react?

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

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Elian Gonzalez's father, only a day after setting foot on American soil, met with the United States attorney general and the commissioner of the INS this morning. Afterward, Janet Reno issued a statement indicating that she intends to take every step possible to ensure that the transfer of Elian from his Miami family to his father occurs in a fair, prompt and orderly manner.

The attorney for Juan Miguel Gonzalez said he too was pleased with the meeting.


GREGORY CRAIG, ATTORNEY FOR JUAN MIGUEL GONZALEZ: In the course of this meeting, Juan Miguel conveyed to Miss Reno and Miss Meissner, the depth of his pain and his feelings and his love for his child, and he made the request for their assistance to have him returned to them instantly or as soon as possible.


COSSACK: Joining us to look at where this legal battle is going, in New Orleans, George Fowler of the Cuban American Legal Foundation; here in Washington, Chip Kennett (ph), former INS counsel Paul Virtue and Gillman Barndollar (ph). In the back row, Ryan Nagle (ph) and Nicole Angarella (ph).

From the Justice Department, we are joined by CNN's Pierre Thomas. And in Miami, from her post in front of the house where Elian has lived since his rescue at sea five months ago, CNN's Susan Candiotti.

Susan, what's going on at the house today?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, it's fairly quiet. The demonstrators who are behind police barricades at this hour. It's the same number of people who are generally here at this time of day. However, later this afternoon, Cuban exile leaders are talking about kicking things up a notch by carrying out a traffic slowdown at Miami International Airport in the middle of Friday afternoon rush hour, starting at around 4:00. So they're, of course, trying to register their anger against the U.S. government and Immigration for what it has been doing, but they're also probably going to anger a lot of people as they did back in January when they staged other traffic demonstrations.

And I wanted to mention another thing as well. One of Elian's great uncles, Delfene Gonzalez (ph), early this morning, traveled to Washington, the trip paid for by the lobbying group, the Cuban- American National Foundation, so that he could continue to lobby Congress for help, for example, by trying to pass that residency bill, or grant citizenship to the youngster.

So they continue to pull out all stops and they're also trying to -- changing their position about never going to meet with Elian's father anywhere but in Miami. Now, the attorneys are changing that hard-line position by saying: Well, now, they would meet with him anywhere, anytime, anyplace without Elian, perhaps to talk this to talk this out family to family.

However, after the way things have been going with the war of words going on, and the strain and relationship between Elian's father and these relatives down here, I don't know whether that could ever happen.

COSSACK: Susan, has there been any comments from the attorneys for the Miami family as to how they would conduct themselves, if they were ordered to turn over custody of the child to Juan Miguel?

CANDIOTTI: Well, so far, they have said that they are very hard- pressed to want to comply voluntarily with a transfer of the child. The impression they are giving, as they are going to try to make the federal government jump through every hoop known to man to get them to turn over this youngster.

So I think it's entirely possible that the U.S. government, given that position, that the U.S. government may try to go ahead with that court order, try to move this child out. But the lawyers are also trying to use every other legal means possible, because, for example, this afternoon, one of the members of the legal team is going over to state court to ask for a court date for an evidenciary hearing to try to put on evidence, they say, that the child, if he is returned to Cuba, would be in imminent danger. And they are also discussing the possibility of trying to serve Elian's father with a subpoena to depose him for that evidenciary hearing.

Now, whether or not this will get that far, since there is a question of jurisdiction, is another matter altogether.

And remember, on Monday afternoon, the attorneys also have a deadline to file their legal briefs before the circuit court of appeals in Atlanta. So they are still moving in a lot of different areas.

COSSACK: All right, let's now go to Pierre Thomas, CNN Justice Department correspondent.

Pierre, there was a meeting today, tell us about it, between Janet Reno and Juan Miguel.

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, the father and the attorney general met for about an hour. The father made known his wishes to have his child as soon as possible. The attorney general was apparently very supportive and the INS commissioner, Doris Meissner, was also very supportive.

The question is: How will Reno make that transfer take place? We are told a letter is being drafted that would inform the family that temporary custody of the boy would be transferred to the father at some near date, followed by another letter at some point, giving a specific date and time for the transfer of the boy.

That is under way. The attorney general put out a statement after the meeting, said that she, again, wanted a fair and prompt transfer of the boy to his father. So the attorney general is very supportive of Mr. Gonzalez.

COSSACK: Pierre, what kind of timetable do you have a feeling we might be seeing here, in terms of transfer or in terms of at least the letter being sent, or delivered to the family?

THOMAS: Well, the letter, as of about 30 minutes ago, was still being drafted. They are still working on it. The feeling is that one of these letters could go out as early as today, followed by another letter some time in the next few days. So they are trying to move this process forward, but, as you have been stating earlier, they want a slow-tiered process in which they would not unnecessarily provoke the people in Miami.

COSSACK: Pierre, do you have any feeling as to when this transfer will take place, if it takes place at all? I mean, do you have a sense that this will be over, at least the transfer of the child, within a week? THOMAS: Well, there have been some discussion of perhaps having a transfer or at least notification about a transfer as early as next week. That discussion has been ongoing, but right now it's still unclear exactly what date will be put in one of these letters. The Justice Department, again, wants to move quickly, but at the same time, does not want to unnecessarily feel like they're pushing the family and the Cuban exile community in Miami.

COSSACK: Pierre, you know, this could be a horrible situation, and we hope it isn't. How closely is Janet Reno involved in this? or is this -- other people that are making these decisions?

THOMAS: Well, Miami is Janet Reno's home. As she said last weekend, a fairly emotional moment at the Justice Department, she said: I love that community. When it hurts, I hurt. So the attorney general is directly involved. She wants to know every major development in the case. She has given input. I've been told by one of my sources that she wants a peaceful transition. She's trying to get a peaceful transition, but at the same time, she's been very firm that it's not a question of if the boy will be transferred to his father, but when.

COSSACK: All right, our thanks to CNN's Pierre Thomas and Susan Candiotti. Susan Candiotti be sure and stay out of that traffic jam this afternoon.

Let's take a break. Up next, how does the long arm of the law expect to put Elian back in the arms of his father? When we come back.


Because they did not intend to break the law when they released information from Linda Tripp's file, Pentagon spokesman Ken Bacon and a former assistant will not be prosecuted, according to the Justice Department.



COSSACK: We're back with more on the Elian Gonzalez matter. Let's now go to George Fowler.

George, we understand that your group is trying to push for a bill to make young Elian a legal resident in this country. Tell us about it.

GEORGE FOWLER, CUBAN AMERICAN NATIONAL FDN.: We're pushing for a bill, but it looks like we have the votes to pass it. The news that I got this morning is very positive. Although, most Americans, the polls indicate want the child to be returned to Cuba, most Americans believe he should be entitled to a hearing. And so, if you make him a permanent resident that takes the matter out of the hands of Immigration and it lands in the custody court. You may recall that the state court in this case has given Lazaro, the Miami relative, the custody of Elian. So we're getting a lot of support. The vice president of the United States is taking a courageous stance and is supporting this bill. He's breaking with the Clinton administration, who is for reasons that escape all of us, is fighting viciously to return to this child to Castro, and the government of Cuba has declared that Elian will become a possession of the state of Cuba. We don't understand why the Clinton administration is so dead-set on it.

But the battle is being waged in Washington and we believe we have the majority of the votes to pass this because the issue is whether or not he gets a hearing, and that's all the Cuban-American community wants is a hearing for Elian to decide what is in his best interests.

COSSACK: All right, let's go to Paul Virtue.

You heard the request for a hearing, but obviously this is a hearing in the state court of Florida, rather than the federal court of the United States and Florida. What's going to happen, Paul?

PAUL VIRTUE, FORMER INS GENERAL COUNSEL: Well, Roger, the state court is not going to have any affect on the federal issue. But if, as George says, the Congress passes a law that provides permanent resident status for Elian then it would eliminate at least one issue, the immigration issue that we have now. It wouldn't change, necessarily, the father's right to have the boy and to take him back to Cuba if he wished.

COSSACK: But if that happened, if this bill did pass, then it would be decided by a different court, then it becomes decided by the state court of Florida rather than the federal court having to do with an immigration problem; isn't that true?

VIRTUE: Well, to the extent the Florida court would have jurisdiction over the father, which the father is not a party to that action at the present, as far as I know. But if he did become subject to that court, then the state court could make that determination, that's right.

COSSACK: All right, let's talk a little legal process here. The reason this is in the federal court, at least so far, and the reason that the federal court has been the one that has been making the calls is because there has been a decision that this is strictly a federal matter because it's an immigration matter; right?

VIRTUE: That's right. The Justice Department made a decision fairly early on that Elian was not competent to speak for himself on matters such as asylum or applying for admission to the United States, and so the Justice Department looked to who is speaking on Elian's behalf. And made the determination that the father, who is his biological father, is in the best position to do that. And so they have honored or at least have been attempting to honor the father's request that he be returned to Cuba. And that's how we've gotten here, it's really that issue. COSSACK: George, doesn't that, in a sense, you know, isn't that the uphill problem that your group has been having the most difficult time overcoming, this notion of not having state jurisdiction and saying: Look, this is an immigration matter, the courts have decided it's an immigration matter and that's a strictly federal matter?

FOWLER: Well, let me say first, the father needs a map, because he's gone to the wrong state. He should be in Miami where his son is. And the fact that he's in Washington, I think, is a very telling fact. The father has been invited by state court to appear and claim his rights, but he has chosen not to do so.

COSSACK: But George, let me just interrupt you for a second. Does he really have to, in light of where the legal process is right now, that is with the only rulings being that this is a federal matter and that the state court really has no jurisdiction?

FOWLER: But it is not a federal matter.

COSSACK: But isn't that what the courts have ruled as it stands right now? I mean, you may not agree with it, but isn't that where the rulings of law are now?

FOWLER: That is the court of first instance, and we think they're wrong. The issue of custody everybody knows is decided by state courts. In this case, Immigration has decided this custody issue, and they are wrong, and the court of first instance is wrong.

This is a matter to be decided by state court. They have the experience to determine who is the proper person for Elian to be with. They have -- the federal courts have no experience. This whole matter has been decided by a visit by two Immigration officials to visit Juan Miguel Gonzalez in Cuba, where he has been surrounded by Castro and his goons, and he still has not appeared in Miami to see his boy or to assert his rights in the state custody court. He's going over to Washington to lobby. That is very strange behavior. Doesn't that tell you, Roger, that that man is not free to act? and isn't that an important fact...

COSSACK: Let me...

FOWLER: ... to determine.

COSSACK: Let me interrupt you for a second. Paul, let me speak to Paul for a second.

Paul, George makes the compelling excelling point. He says, look, custody is usually decided by a state court, what's the immigration people doing deciding custody, why?

VIRTUE: This is not an issue about what is in the best interest -- as a legal matter -- it is not what is in the best interest of Elian, whether he should be with the father, whether he should be with the family. The issue is, the jurisdiction of the Immigration Service to enforce the immigration laws. And they have looked to the father's interest in determining what the boy wishes. And in doing that, it's a fairly straightforward and simple decision. I think the district court got it right and the court of appeals will get it right in upholding that decision. The court of appeals would have to find that the Justice Department has abused its discretion in order to overturn the district court. And I just don't see that happening.

COSSACK: All right, let's take a break. How will Elian be returned to his father? and what could dissenters do to undermine that effort? Stay with us.


MANNY DIAZ, GONZALEZ FAMILY ATTORNEY: The position of the family has not changed one bit. INS has the legal right to come to the home, ask that the child be returned. They have the right to revoke parole, revoke temporary custody. And if that is their wish, in the face of the evidence that's been presented to them, in the face of which includes the psychological reports, which includes what the family has told them that the child has told them, if they're still willing to do that without taking into consideration at all what we believe to be the best interests of the child, then they have a legal obligation. And they have the legal right to do that, I should say.



Q: Why has the New Hampshire legislature begun steps to impeach state Supreme Court Chief Justice David Brock and perhaps several others?

A: Possible ethics violations. The court has admitted that justices, excused from a case for possible conflicts of interest, have offered opinion and advice. Brock angrily denied any scandal and said that he would issue a rebuttal.




LINDA OSBERG-BRAUN, GONZALEZ FAMILY ATTORNEY: I think the family will comply with every obligation they have under the law. The question is, will they take affirmative action to bring Elian to INS officials, or will the officials come to the house to retrieve Elian? And legally, I'm sure Lazaro will comply with all conditions imposed upon him. He'll do so with a heavy heart, but he will do as required.


COSSACK: Now, the actual transfer of Elian Gonzalez from his Miami relatives to his Cuban father might happen as early as next Wednesday -- and I repeat "might" because we don't know what's going to happen. George, let's talk about the attitude of the Miami -- of the Florida Cuban community, the Miami Cuban community and what would -- how they would react if, in fact, they are ordered to turn over -- Lazaro is ordered to turn over custody of young Elian to his father. Will there be civil disobedience?

FOWLER: I think the Miami Cuban Americans are very conscious of their rights to protest peacefully. I'm upset at the fact that some members of the media are trying to portray them as violent. That is not fair. There hasn't been any violence. If the media wants to see violence, they should go to Cuba. Castro has killed 18,000 people over the years and he still beats up dissidents. And we don't get those camera shots. Lucia Newman probably could do a better job of that.

COSSACK: Well, George, let me just interrupt you for a second. We've already heard today that there is planned civil disobedience in Florida, which is going to put out an awful lot of people who have very little if anything to do with this, by people who are unhappy with what the federal government is doing. Is that fair?

FOWLER: Roger, they're going to protest to -- peacefully. Most of the protesters that I've seen have flowers. I have seen repeatedly, though, that camera shot of when they knocked down the barricade. That's repeated over and over again. That's not fair to the Cuban community. They have the right to defend Elian. They feel very strongly for Elian because they know what awaits Elian in Cuba because they were victims of it. And people need to understand.

You know, one thing was stated on one of these shows the other day that makes a lot of sense: The people that understand what really is going to happen to Elian believe he should stay here. Obviously, the argument that Elian should be reunited with his father is very compelling, but what we want is for Elian to stay here with his father in a free country. And that's what the Cuban Americans are protesting about.

COSSACK: All right, George, let me just interrupt you a second to go to Paul.

Paul, walk me through the transfer of Elian to his father. If so ordered by the court, what will happen? We know a letter is going out today, or soon, to the family. What's the process?

VIRTUE: Roger, I don't even think you need a court order. Once the INS revokes the parole, then the temporary custody has been terminated, and so the family is under an obligation to turn Elian over. I think the family's negotiating position here is fairly curious, and that is they seem to say that possession is 9/10 of the law. We have Elian. The federal government should have to come and get him.

But, in fact, what they have is temporary caretaker status. They don't have any other rights associated with that.

FOWLER: Roger... VIRTUE: And if they think it's in the best interest of the boy to have the federal agents knocking on the door or having Elian go with them with the crowd around, I just seriously doubt they believe. And so I think they should work to make that exchange in a different location.

COSSACK: Paul, you got the last word.

George, that's all the time we have for today.

Thanks to our guests. Thank you for watching.

Later today on "TALKBACK LIVE," Harvard professor Alan Dershowitz talks about his new book,"The Genesis of Justice." Call, fax or e-mail your comments today at 3:00 p.m. Eastern, noon Pacific.

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



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