Elian Redux

[Michael MASINTER]

        Juan Miguel is not in a coma; he is competent and articulate.  He
has spoken, and, finally, Janet Reno listened.  Litigation will continue,
but in the interim, he will be with his father.

        The arguments Michael Rappaport offers against listening to Juan
Miguel have nothing to do with him or the particular circumstances of his
relatives.  They are arguments against listening to any Cuban who wants to
return with a child.

        Every one of us comes with relatives; if we come from Cuba, we
have relatives in Cuba.  Substitute another Cuban resident for Juan
Miguel, substitute another set of relatives for those of Juan Miguel, and
nothing changes.  I simply cannot accept a rule which forbids any Cuban
parent from speaking for his child; worse, I cannot accept a rule which
forbids a Cuban parent from speaking for his child if he chooses to
return, but which embraces his right to speak for his child if he chooses
to stay.



Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel


On Fri, 21 Apr 2000, Michael Rappaport wrote:

>         I am quite baffled by this argument.  This argument ignores the main
> reasons I gave for believing that Juan Miguel is being coerced.   Juan
> Miguel is not like the ordinary Cuban who has a relative that illegally
> leaves the country.  To briefly repeat the points made in my earlier post:
> Juan Miguel cannot easily defect.  His wife has a 7 year old child in Cuba
> and therefore is unlikely to want to defect.  Thus, to defect, Juan Miguel
> must be willing to abandon his wife (and infant child?).  Now Juan Miguel
> might want Elian to remain in the country, even though Juan Miguel must
> return to Cuba.  But Juan Miguel cannot do this.  Whatever Castro does
> about the ordinary Cuban whose relative’s exit illegally, this situation is
> different.  If Juan Miguel were to publically state that he wants Juan
> Miguel to remain in the US, he would be expressly and voluntarily allowing
> Elian to remain, before the whole world.   Castro would no doubt treat this
> quite harshly (and it would appear to be a violation of Cuban law).
>
>         The point is that we cannot know what Juan Miguel actually thinks.  He is
> unavailable; it is as if he were in a coma.  Thus, someone else must speak
> for him and the child – either the Court or the Miami relatives.  By
> assuming that Juan Miguel is not being coerced, we run the risk of allowing
> Fidel Castro to speak for Elian by putting words in the mouth of Juan
> Miguel.




>
> At 10:18 PM 4/20/00 -0400, you wrote:
> >I agree that one cannot know with certainty the true feelings of Juan
> >Miguel.  But if the fear that Castro would harm those relatives who remain
> >to punish their children who defect were well founded, Miami would be a
> >much smaller city, and Cuba would have far fewer elderly adults.  The
> >parents who sent their children over in Pedro Pan were not executed; the
> >elderly relatives of those who came in the 1970's and during Mariel were
> >not executed.  If Juan Miguel wished to defect, I rather doubt that his
> >fear for the well being of his mother would dissuade him from protecting
> >himself, his wife and their son by asking for asylum; many thousands of
> >others have already made that choice.  And unlike them, he would be
> >welcomed in Miami as a hero.
> >
> >Please do not misunderstand me; I am no apologist for Castro.  But there
> >are already hundreds of thousands of former Cubans who live in Miami who
> >are testament to the freedom Juan Miguel has to defect.
> >
> >I think we ought to accept that, however irrational we may think it, the
> >man wants to return to Cuba, and that the choice to do so is his choice,
> >freely, albeit unwisely made.  Of course, that does not answer the
> >question of whether the law *should* interfere with that choice, but I
> >think it clear that were he and his son already U.S. citizens, he would be
> >free to emigrate with his son to Cuba.
> >
>
> Michael Rappaport
> Professor of Law
> University of San Diego School of Law
> (619) 260-2329
>
>