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Burden of Proof

Elian Gonzalez Case: Two Nations Await Federal Appeals Court Ruling

Aired April 19, 2000 - 12:30 p.m. ET



JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES: Every day that goes by in which Elian is not reunited with his father and this matter brought to a conclusion is -- can be disruptive. And no child should be in that kind of never-neverland for that long.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Two nations watch a federal court of appeals in Atlanta waiting for a key ruling affecting 6-year-old Cuban boy Elian Gonzalez.

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

COSSACK: Hello and welcome to BURDEN OF PROOF: The 11th Circuit Court of Appeals will make a key ruling in the case of Elian Gonzalez. The court is considering arguments received late last week from lawyers of Elian's Miami relatives and the Justice Department.

GRETA VAN SUSTEREN, CO-HOST: Meanwhile, Attorney General Janet Reno said today that she is considering, among other issues, the use of force if necessary to retrieve the boy. She said an imminent reunion with his father is crucial for Elian.


RENO: I have been concerned that the boy has been separated from his father in a most difficult situation where it appears that he is not able to lead a normal life, get sleep, go to school. And I think it's important that the time comes that he -- quickly that he is returned to his father in a safe way with as little disruption as possible.


COSSACK: And joining us today here in Washington are Sam Ayube (ph), Jose Cardenas of the Cuban American National Foundation, and constitutional law scholar Bruce Fein.

VAN SUSTEREN: In our back row, Nader Ayube (ph), Jim Fenton (ph), and Bill Norman (ph). And also joining us here in Washington is CNN justice correspondent Pierre Thomas.

Pierre, what was the purpose of the meeting this morning with Janet Reno? Was it a routine or is this a special briefing?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Routine briefing moved up a day and probably because of the Oklahoma City memorials that are taking place today. The attorney general did take the opportunity to talk about the struggle she's in the middle of. You know, today is also the anniversary of Waco. People are talking about are you being too patient, are you too personally involved. And what she essentially said was that, look, Waco was a situation involving suspects who had killed people, who had wounded people. Here's a situation where you're trying to figure out how to get a boy out of a situation where you're talking about a family, not armed criminals.

VAN SUSTEREN: Pierre, do you get some sort of sense of how much this issue involving Elian Gonzalez is consuming the attention of the attorney general and other high-ranking Justice Department officials?

THOMAS: Well, I can tell you it's consuming a lot of their attention. I can't think of too many situations. Perhaps this is the only situation where you've seen the attorney general get on the plane and go directly into the heart of a controversy to try to resolve it herself. So that is clearly taking up a lot of their time, not all of their time. Clearly, they're taking care of other matters. For example, you had a hacker case that was announced today that the attorney general has been involved in. But this is taking up a lot of her time.

COSSACK: Pierre, what's the mood of the top leaders of the Justice Department? It seems to me that they are no closer to being able to resolve this case in a -- hopefully in a peaceful way than they were a week ago or two weeks ago and doesn't seem to be making any progress. What's the feelings over there?

THOMAS: Well, the feeling is that the planning for the enforcement option is underway. They are hoping that the federal court of appeals will issue a ruling that would force Lazaro Gonzalez, the great uncle, to turn over the boy so that he would face potential contempt of court. And they feel like that might be the impetus for him to actually turn over the boy. They're hoping that that's what happens. But if that does not happen, that is where the dilemma is: how much force do you use, how will it be viewed around the world, what kind of problem would it cause on Elian Gonzalez. Those are the critical factors.

Now you have some people who say, look, the time is long since passed when we should have taken action in this particular case. And then there are other people who say, well, what is the end game? Once you go to that house, you have no idea how the crowd in Miami would react.

VAN SUSTEREN: Pierre, are there plans in -- I mean, do they have sort of a range of plans that they have already set up just in case or are they waiting to see what the 11th Circuit does and then make their plans? THOMAS: Well, they've been very tight lipped about the plans. All we know is that it would probably involve INS agents and marshals to some degree, that it would be as unprovocative -- to create a word there, if I may -- as it could be.

VAN SUSTEREN: All right, let me interrupt you for -- Pierre, let me interrupt you for one second. I'm going to take us to Jeanne Meserve here in Washington.


JEANNE MESERVE, CNN CORRESPONDENT: And we're going to go quickly to Capitol Hill where Attorney General Janet Reno is commenting on news from Canada that a 15-year-old has been charged with major hacking attacks back in February. Let's listen.

RENO: I am so pleased with the important breakthrough we have had in this investigation. For the last two months, the FBI, prosecutors from the computer crime section have been working with investigators from the Royal Canadian Mounted Police. This has been an excellent effort between prosecutors and the Justice Department, FBI agents and the Canadian law enforcement agencies.

These joint efforts resulted in the arrest of a 15-year-old suspect by the Royal Canadian Mounted Police in Montreal Saturday morning. The suspect, who goes by the online name Mafia Boy, has been charged in connection with the cyber attacks on the CNN network Web site.

Today's announcement was the product of an extraordinary cooperation between U.S. and Canadian authorities as well as cooperation among law enforcement agencies in the United States. In addition, we received excellent assistance from victims in the denial- of-service attacks, and we continue to work with industry on this and other incidents.

At the time of the attacks, I pledged our commitment to tracking down the people responsible, the cyber culprits. I believe this recent breakthrough demonstrates our capacity to track down those who would abuse this remarkable new technology and track them down wherever they may be. Our investigation is continuing. And I would like to commend all who have been involved in this effort. Thank you.

QUESTION: Attorney general, (UNINTELLIGIBLE) Mafia Boy (UNINTELLIGIBLE) is a minor. Are current laws inadequate to deal with these kinds of problems (UNINTELLIGIBLE) minors?

RENO: I think it is important, first of all, that we look at what we do to let young people know that they are not going to be able to get away with something like this because of age. There has got to be a remedy. There's got to be a penalty. But more importantly, we have got to renew our efforts to teach young people, children, young people cyber ethics so that we ensure that this tool is used by all concerned to expand our opportunity for learning, for communication, for commerce.

QUESTION: Has Mafia Boy finally (ph) been charged for attack on CNN, (UNINTELLIGIBLE), eBay?

RENO: What I would do is ask that Myron confirm for you so that we do not make any mistakes between us and the Canadian authorities. Thank you.

MESERVE: You've been listening to Attorney General Janet Reno speaking on Capitol Hill about the arrest of a 15-year-old in Canada in association with major hacking attacks against the CNN Web site. She said this was an example of extraordinary cooperation and coordination between U.S. and Canadian authorities. And she said it should put all on notice that those who abuse this technology will be tracked down.

BURDEN OF PROOF will continue in just a moment.


COSSACK: 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. And 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.

VAN SUSTEREN: Welcome back to BURDEN OF PROOF. We're now joined by CNN's Susan Candiotti, who's in Miami outside the Gonzalez house.

Susan, what is going on in Miami today at the moment?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, Greta, as you take a look now at the demonstrators who are standing right behind police barricades near the home where Elian Gonzalez is living, we can tell you that one police officer described the mood as somber, compared it to a funeral, or he said, kind of like what it's like being in the waiting room of an emergency room as you're waiting for the doctor to come out and give you a report.

There is no way to tell when that ruling from the federal appeals court is going to be forthcoming but that's what people here are waiting to find out about.

COSSACK: Susan, do they have that sense that if the appeals court decision goes against them, that it's pretty much all over and that they understand that at that time that Elian will be transferred to his father?

CANDIOTTI: There is a sense of resignation among many of the demonstrators here. On the other hand, they will tell you that they will be here until the bitter end, whatever that end may be. They are standing by and continue to talk about the possibility of forming a human chain and to do whatever they can to prevent that boy from being forcibly -- from being removed from this home if it comes to that.

VAN SUSTEREN: All right, well, on this day seven years ago, the Branch Davidian compound burned to the ground killing David Koresh and about 80 of his followers. During this morning's Justice Department briefing, Janet Reno was asked to draw comparisons to the way federal agents handled the seize at Mt. Carmel and the Elian Gonzalez situation in Miami.


RENO: In Waco, you had people who had killed federal officers and -- thank you -- and who had injured others. You had people who had not only defied the law but killed people in the process. There's a lot of difference. And each case has got to be judged on the facts of the case as to how we can best achieve the goals set forth by the law, while at the same time minimizing the chances for violence.


VAN SUSTEREN: Jose, it seems to me that the family in Miami may hold the key cards as to whether or not there is force. The attorney general has made her statement about at least what she may do. We don't know. But do you think the family is going to flat out refuse to turn over that child in the even the court of appeals rules against the family?

JOSE CARDENAS, CUBAN AMERICAN NATIONAL FOUNDATION: No, I don't think they are, Greta. And I think it's...

VAN SUSTEREN: Let me ask you this: Will they make the attorney general or her representative come to the home or will they deliver that child to a designated spot?

CARDENAS: No, I don't think that they're going to deliver the child to anywhere that the government demands. I think that the lawyers for the family in Miami do not feel that Lazaro Gonzalez is under any, any law that he has to do the government's dirty work for them. But what's interesting is that as we listen to Janet Reno making distinctions between Waco and what's going on in Miami today, I think that one thing that is certainly going on is we are now starting to see the demonization of the Miami family with this letter, supposedly unsolicited from a doctor in New York that has never even met Elian, giving a psychiatric analysis that the boy is in danger. And I think that we're also seeing sources from the Justice Department raising the rhetoric that it's providing this umbrella of, quote, unquote, "justification" for them to go in there and forcibly remove this boy.

COSSACK: Bruce, let's talk a little law for a second. This is now in front of the 11th Circuit Court of Appeals. It's been there for a few days, who after they issued an emergency stay. Greta and I were -- at least I'll speak for me -- I'm surprised that this has taken so long, to be honest with you. It would seem to me that -- I mean, I would think the 11th Circuit Court could come to their decision quickly in this.

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: Well, it could have but I don't think the necessity for urgency is as stark as some have suggested. First of all, there's no question that Elian will stay in the United States until there's a final definitive decision as to whether or not under the immigration law, the father does have the right to decide whether an asylum petition should be sought or withdrawn. In my own...

COSSACK: But isn't that what the 11th Circuit is going to decide

FEIN: On the merits, on the merits.

COSSACK: That's right.

FEIN: But in the interim, it could well be that it would actually be counterproductive to have Elian shifted back out of the hands of someone who Janet Reno herself under her pro authority gave custody...

VAN SUSTEREN: You know what, though, Bruce, you know what the problem is here?


COSSACK: Don't you get a stay only if the 11th Circuit would believe that there's merit and that the case would be reversed later on?

VAN SUSTEREN: And wait a second. You've got the second problem, too, is that what the court -- what the original stay, the first temporary stay that was granted said only the child couldn't leave the country. It didn't say that Janet Reno could not go and get the child. That's the first important designation.

The second thing and I think in response to your question, Roger, why it's taking so long is in order for that stay to continue, the United States court of appeals by law must find that there's substantial likelihood that the trial court judge was wrong. And I bet that is what is taking them so long to do.

FEIN: I don't think the stay -- because as Roger pointed out, the stay does not relate -- The stay order prohibits Elian from being removed from the country. It does not address custody.

VAN SUSTEREN: Right, exactly.

FEIN: So that the stay order, in my judgment, will not turn on the likelihood of success on the merits because that will affect custody if Elian is found to have entitlement to apply for asylum and wins, then I can guarantee you, the custody will not be with the father permanently.

VAN SUSTEREN: I don't think that...

FEIN: If I could just interject. See, there is a reason in my judgment that's been overlooked for being cautious about making a decision to turn Elian back at present to the father. He may have to go back again because the law is not at all clear, contrary to what the department has just said, as to whether or not an alien, even if they're a minor, can -- is prohibited from seeking asylum based upon a fear of political persecution some time later in his life.

COSSACK: Let's go back to Susan Candiotti. Susan, you want to get in on this?

CANDIOTTI: Well, yes. And also, there was an amicas brief that was filed just the other day in connection -- on that very point raising the question as to how old you must be in order to acquire a political asylum hearing. But I thought that Mr. Cardenas also raised a point there a little while ago when he talked about the demonization of the father. But many people here are also -- that is to say government officials -- are concerned about the demonization of Juan Miguel Gonzalez, Elian's father, because of the various people that are coming before the microphones here and making allegations about his fitness as a parent and whether nor not he is an abusive parent, claims that are being denied by, of course, Mr. Juan Miguel Gonzalez as well as his family.

And there are also questions about whether there is any kind of wiggle room here at all since it was just last week -- and I'm sure Mr. Cardenas could address this point, when the foundation, the Cuba American Foundation, called a late-night news conference to say there was going to be a meeting that Lazaro was going to Washington to meet with Juan Miguel Gonzalez with Elian. And then it was suddenly called off within an hour's time by Lazaro Gonzalez. And there were conflicting reports, even according to Senator Torricelli that there was no pre-arrangement about what would happen when that meeting took place, about whether the child would be turned over or not. So the foundation even seemed to think that there was a meeting that was going to take place.

COSSACK: All right, let's -- Jose, let me give you a chance to answer that, but we have to take this break.

Susan, thanks for joining us today from Miami.

Up next, the status of a lawsuit surrounding the Elian Gonzalez case filed by the Cuban American National Foundation. Stay with us.


Q: When is the deadline for filing any lawsuits against government agencies stemming from last year's massacre at Columbine High School?

A: Tomorrow. Colorado law requires such suits to be filed within one year of the disputed action. One suit was filed yesterday more. More are expected.


COSSACK: Last week, the Cuban American National Foundation filed a lawsuit surrounding the immigration status of Elian Gonzalez, but this morning, that complaint was withdrawn.

Jose, before I ask you about the complaint being withdrawn and perhaps before my partner asks you about the complaint being withdrawn, I want to ask you about the meeting that Susan Candiotti referred to at the end of our last segment having to do with a meeting where Lazaro is going to come to Washington and bring Elian and then suddenly decided not to do it.

CARDENAS: Right. Susan's account was accurate. The Cuban American National Foundation did attempt to bring the family together, and we still believe that this issue, this ordeal should be resolved in a family meeting. But where it broke down was the fact that the meeting was set up with no pre-conditions. And then as soon as the meeting was announced publicly, the other side began to say the meeting was convened precisely to turn over Elian to his father. And that's where the meeting broke down. We rejected that and that was not what was agreed to.

VAN SUSTEREN: Jose, let me ask you, before we run out of time, the Cuban American National filed a lawsuit, civil lawsuit here in Washington, not in Miami, seeking to stop the child from going back to Cuba and saying that there would be human rights violations in Cuba. This morning, your organization withdrew that lawsuit. Why?

CARDENAS: Pending -- it was withdrawn pending the resolution of the decision in the Atlanta court of appeals.

VAN SUSTEREN: Why? Why not do a double barrel attack?

CARDENAS: I think that our attorneys reserved the right to file it again.

VAN SUSTEREN: But why not do the double barrel attack? You do it down in -- do what you're down in Florida...

CALLER: Probably takes a little longer, Greta, to file the second time.

VAN SUSTEREN: Well, no. What I think is the reason why -- but why was it...

CARDENAS: Well, since this only happened about an hour ago, I'd have to defer to our counsel to explain the legal strategy in withdrawing it.

VAN SUSTEREN: So you want a continuance on that.

COSSACK: Granted. Bruce Fein, let me -- you mentioned I think off camera that you thought that there was at least a year to go before all of the appeals in this matter would be decided and I said, "No, no way." Tell me why you think a year.

FEIN: Well, because I think there's an entitlement if the losing party to seek a rehearing in the 11th Circuit. Anbach (ph) means all of the judges not just the three-judge panel. Then there's a 90-day period to seek review in the United States Supreme Court, a petition for certiary (ph). The Supreme Court will not be around in the summer. The certiary petition oftentimes take lengthy periods.

VAN SUSTEREN: And let me interrupt because we're out of time. And I just have to say one thing. I agree with you, Roger. Bruce, I think, it could happen lickety split in the Supreme Court, doesn't have to go on a full vacation. COSSACK: Well, it always happened in a hurry to me when I was on the wrong end of the stick.

VAN SUSTEREN: You know, judges get those long vacations, but that's all the time we have for today. Thanks to our guests and thank you for watching.

COSSACK: Later today on "TALKBACK LIVE," is access to the Internet a right or a luxury. Join the debate this afternoon at 3:00 p.m. Eastern, noon Pacific. And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

You really do agree with me on that?



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