By Larry P. Arnn Posted April 27, 2000

The now famous pictures of a federal agent with a submachine gun pointed at 6-year-old Elian Gonzalez and the fisherman who rescued him from the sea last Thanksgiving, display the worst face of our government today. It is the face of a government that has lost all sense of proportion in how it behaves because it has forgotten its purpose.

The issue of Elian is complex, having two distinct parts. The first concerns custody. Should Elian be in the custody of his father, or of his Miami relatives? The second concerns asylum. Should Elian be allowed to remain in America, or be returned to Cuba? Either of these parts, considered separately from the other, would be easy to resolve. Taking the parts together makes a resolution more difficult.

The Clinton administration treats the issue of Elian as a simple custody question of parental versus non-parental guardianship, uncomplicated by the asylum question of freedom versus slavery. The boy's mother is dead, it says, ignoring the fact that she drowned while risking her life and her son's life to live in freedom. The father must speak for the child, it says, ignoring the fact that the father is under the thumb of Cuban security agents here in America, and that his mother and step-child are being held in Cuba as added insurance against an attempt on his part to defect. Parents should have custody, period, it says — ignoring the fact that under Cuban law, Elian will not be in his father's custody, but in the custody of the state, which already has set up for him a "re-education" compound, and which customarily treats dissidents with electric-shock treatments and mind-altering drugs.

Clearly, even the Clinton administration does not believe, as it now cynically pretends, that parental rights trump all other considerations. When it famously and disastrously employed lethal force against the Branch Davidians in Waco, Texas, after all, it did so in an effort to separate children from their parents. But the evil here goes deeper than cynicism.

Since December the Clinton administration has sought stubbornly to return Elian to Cuba without any judicial proceedings that would raise the thorny complications noted above. Most commentators have attributed this position to an appeasing foreign policy. It may also stem in part from domestic policy concerns. Listening to White House apologists on television talk shows, one comes to realize how much some of them admire and would like for America to adopt Cuba's socialized education and health systems. Likewise when it comes to child rearing, the Clinton administration urges not more hands-on parenting, but an increased state role through government day-care and after-school supervision. As for the political repression that forms the flip side of Cuban socialism, ardent Clintonites like Newsweek's Eleanor Clift dismiss it in terms of "different lifestyles." In this context, one can see how legal proceedings detailing the stark horrors of Cuba's totalitarian "lifestyle" may prove embarrassing.

Whatever underlies the Clinton administration's position on Elian, that position is wrong. Elian's custody/asylum case should be allowed to wind its way through the courts. In the end, the law may well compel Elian's return to Cuba. But even if that happens, the debate along the way might re-enliven Americans to the moral superiority of freedom to slavery, to the extent that at least a majority of us would look on Elian's replacement into bondage with a sense of regret that now seems lacking.

Finally, let us make two brief points about last Saturday's pre-dawn paramilitary strike against the Gonzalez household in Miami.

First, after years of listening to the Clinton administration insist that a president may commit perjury under the correct circumstances, we should be suspicious when it claims to have advanced the "rule of law." And indeed, as it turns out, there was no law or court order that in any way justified Saturday's assault operation. There was a Justice Department order that the Miami relatives must surrender Elian should INS agents come knocking on their door. But this never occurred. There was also apparently a search warrant issued by a federal magistrate. But the administration's action against the Gonzalezes far exceeded the terms of such a warrant. Even so staunch a Clinton supporter as Harvard law professor Laurence Tribe wrote in the New York Times earlier this week that the action "strikes at the heart of constitutional government and shakes the safeguards of liberty."

Second, Lincoln once said that "he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed." This can obviously occur for good or ill. Polls suggesting that a sizable minority of Americans approve of the military-style assault on their fellow citizens in Miami indicate a growing indifference to our precious but destructible civil liberties. This may be the darkest legacy of the Clinton presidency. It will be the most urgent task of Clinton's successors to see that this legacy is short-lived, reviving by word and example what Madison called "the vigilant and manly spirit which actuates the people of America — a spirit which nourishes freedom, and in return is nourished by it."

Institute adjunct fellow Macubin Thomas Owens has written an article on Elian Gonzalez and the Fugitive Slave Law. I invite you to read it.