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Jewish World Review June 2, 2000 /28 Iyar, 5760

Paul Greenberg

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Adios, Elian --
or is it hasta luego? -- DESPITE THE BRAVE TALK about appeals, Thursday's decision by an appellate court in Atlanta was a great victory, maybe a decisive one, for the Clinton administration, for Janet Reno and her Justice Department, for the U.S. Immigration and Naturalization Service, and for tyranny in general.

One can sense the elation in the hearts of those who really never wanted to be bothered by this little case and this little boy in the first place. Now both, it would seem, have been put in their place.

It is a great victory, too, for those who have long resented this country's Cuban community, which has been so loud, so vociferous in pressing Elian's claim for asylum in this country, even staging demonstrations and trying to use its political influence, as if these people were living in a free country now.

It's not that the 11th Circuit Court of Appeals doesn't appreciate the freedoms Americans enjoy, freedoms those representing this 6-year-old plaintiff tried to claim for him. On the contrary, the court seemed fully aware of what now awaits Elian Gonzalez some 90 miles and a world away from these shores. To quote its unanimous decision:

"We acknowledge, as a widely accepted truth, that Cuba does violate human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba. ... Persons living in such a totalitarian state may be unable to assert freely their own legal rights, much less the legal rights of others. ... No one should doubt that, if Plaintiff returns to Cuba, he will be without the degree of liberty that people enjoy in the United States. Also, we admit that re-education, communist indoctrination, and political manipulation of Plaintiff for propaganda purposes, upon a return to Cuba, are not beyond the realm of possibility.''

The court's rhetoric on the subject of American freedom and Cuban tyranny is elaborate, but it is only rhetoric. For it is unwilling to act on its fine words and fully justified fears for this 6-year-old appellant.

It is between belief and a willingness to act on it, between word and deed, that the court's decision falls. And fails. The court is not unattached to the idea of freedom, but it is more attached to the rule of the INS.

The judges agree that any alien may apply for political asylum in this country, just as the law says, but they discern a gap in the law between the right to apply for asylum and how that right should be defined. And they are willing to let the INS fill that gap with its rules, regulations, and dead-of-night raids. As often happens, it is not in what the law says, but in its spaces that arbitrary rule takes root and thrives, like deadly nightshade.

The court's decision stems from a long, if not honorable, tradition in American jurisprudence. When the Dred Scott decision was handed down, it was not because the justices were less attached to freedom, but that they were more attached, like this court, to the separation of powers, and they, too, felt obliged to defer to a slave state.

Dred Scott may have escaped from slavery, but for various legal reasons, he would have to be returned to his master. History is never over, and the spirit of the Fugitive Slave Act is still very much alive.

It's not quite time for the spontaneous demonstrations to be elaborately organized in Havana, and for the customary crowds to cheer the Maximum Leader, but they can get ready. One can also sense the elation in the hearts of the anti-anti-Communist left, which Lord knows has had little to cheer about since circa 1989, when The Wall fell and the Soviet empire followed soon thereafter. One must celebrate whatever victories one can, even over a 6-year-old.

What will happen to Elian now, and to what he might have become? Will he fill out that uniform he was already wearing on that sealed-off plantation, and take his place in the marching ranks shouting slogans? Will he grow up to be a good Communist, another True Believer, blinders firmly in place?

Maybe he'll become a cosseted apparatchik himself, with access to hard currency and party privileges, trained to keep unacceptable thoughts at bay. Or will he one day thoroughly embarrass the regime and speak out unafraid, like Fidel Castro's own daughter? Maybe he'll become just another wistful face on the Havana dock, looking out at the far shore, struggling to retain a 6-year-old's memory of what it was like over there, amid the tumult and shouting, not sure what really happened so long ago, and what the fuss was all about. ...

Is it Adios, Elian, or just Hasta Luego? A lot of Americans may not care. They'll wonder what the kid is doing back in the news. Didn't he disappear? They don't want to think about it anymore; they just want somebody else to take care of it, and now somebody else will -- the courts, the INS, whatever.

But those Americans who put freedom first will think about it, and remember. Along with those Americans who are still close enough to their immigrant roots to see in Elian the cousin, the nephew, the one who didn't make it here, or, worse, was sent back.

Some cases are lost. But memory is not lost. Hope is not lost. And as long as people hold on to such things, freedom is not lost. As long as Elian is remembered, neither he nor all the other tempest-tossed are lost. This is not the end of the drama, but only of the second act, as night falls. Some of us still believe in third acts, and morning.

Some of us think of freedom as essential to human development, not as one more legal consideration to be weighed against others, like the over-arching claim of a bureaucracy. And certainly not as a bargaining chip in international relations.

We think this case is about certain unalienable rights, rather than, as the court in Atlanta put it, "the President's conduct of our nation's international affairs.'' We think, we believe, that no president, no court, no bureaucracy can forever ignore those rights.

That is the great advantage those of us who believe in freedom have over those who just want to get this case over with. We remember. We will remember Elian, and all the other Elians. We won't give up on this captive boy anymore than we gave up on the captive nations. And one day The Wall will fall again.

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