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Morning News

Justice Department Counters Florida Court Ruling in Elian Gonzalez Custody Case

Aired January 12, 2000 - 10:01 a.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

DARYN KAGAN, CNN ANCHOR: In the latest on 6-year-old Elian Gonzalez, a statement coming today from the Justice Department that could counter -- that does counter, in fact, what a state court in Florida had decided earlier this week.

For the latest, let's bring in our Mark Potter who's been covering this story from Miami -- Mark.

MARK POTTER, CNN CORRESPONDENT: Well, good morning.

CNN has learned that the Justice Department, in its letter to the attorneys for the family here, a letter that is expected to be released publicly very soon, is saying that the state court judge here in Florida did not have the proper jurisdiction to intervene in Elian Gonzalez's federal immigration case.

The department also upholds the INS decision that the only person who can speak for the boy, the only person who has custody of Elian Gonzalez is his father in Cuba. And the decision also has upheld that the boy should go back to Cuba.

Now, of course, this upholds the -- opposes, rather, the state court ruling on Monday that Elian Gonzalez should stay in the United States until at least March 6 when a custody hearing was scheduled. We are still waiting to hear specifically how the Justice Department intends to enforce this ruling, but government sources have said that the department plans to go into federal court asking a judge there to help enforce the decision.

Meanwhile, while all this was going on, Elian Gonzalez, apparently unaware of all the fireworks -- the legal fireworks surrounding him today, went off to school. He was with his great uncle Lazaro Gonzalez who was awarded temporary custody of the boy in the state court ruling Monday. But, again, the Justice Department is saying that that state court judge did not have the right to intervene. So the legal conflict continues.

One other bit of news: Cuban exile activists here in Miami who were involved in a civil disobedience campaign a few days ago, and then stopped it, are meeting today to discuss the Justice Department announcement that we anticipate to come shortly. We are told by one member of that group that they do not -- and I repeat, not -- plan to resume the civil disobedience campaign because this is still headed for the courts. That's what they wanted all along. The only way that they would resume the campaign is if the INS came here to grab the boy physically, and the INS has said repeatedly it does not intend to do that.

This is Mark Potter, reporting live from Miami.

BILL HEMMER, CNN ANCHOR: All right, Mark, thank you.

Now for a closer look at the legal complexities of this issue -- and there are many -- Roger Cossack, legal analyst, co-host of "BURDEN OF PROOF," now live in Washington.

OK, Roger, what do you make of this now?

ROGER COSSACK, CNN LEGAL ANALYST: Well, you remember "Alice in Wonderland" where they say this becomes curiouser and curiouser?

HEMMER: Yes.

COSSACK: This becomes curiouser and curiouser, and the reason is -- I must say that I think a lot of the fault in this can be laid to the Immigration and Naturalization Service who came out with that ruling last week, who said: Yes, the father has custody and, yes, we're going to figure out a way that everybody's going to cooperate and return young Elian back to his father.

Unfortunately, this notion of cooperation was something that I don't know where they ever thought -- and most experts thought this could never happen, and now we see tat it could never happen.

HEMMER: So you're saying...

COSSACK: You don't issue an order without a way of enforcing it, I guess is what I'm saying.

HEMMER: Roger, I guess you're also indicating, obviously, over the past few days, the delay from the INS -- let's get that stuff off the screen right now -- the delay from the INS helped to add to the "curiouser and curiouser" situation, correct?

COSSACK: It's not so much the delay as much as it really was this, I think, kind of pie-in-the-sky hope that these -- that Lazlo (ph) Gonzalez, the uncle of Elian and his father -- that these two almost opposing sides who really view this entirely differently -- view this situation from entirely different prisms -- could ever get together and agree to voluntarily return the boy. That just wasn't going to happen. And I see why the INS didn't want to get involved, because they didn't want to have to go down there and take the kid and physically return him -- take the young boy and physically return him back to Cuba. But, nevertheless, you cannot issue an order like this without some way of enforcing it.

HEMMER: Roger, are we to suggest here that the case is over, or is there an appeals process that could kick in given the current state? COSSACK: No, I think there'll be an appeals process. I think what's going to happen today is that the INS -- what we're understanding -- is going to go to federal court for a clarification on what happened in the state court. And I think they're right. I don't think the state -- immigration is a federal policy. It really has very little to do with the states. And the Immigration department has ruled that the person to speak for this young boy is his father. That's the way it should work. And I think what's going to happen is they'll go to federal court and they'll get a ruling in federal court.

What you see, of course, is parallel courts on a collision course. You're going to have state courts that are going to say, no, we're deciding it one way, and you're going to have federal courts saying, no, we're deciding it another way, and you're going to have that state's rights/federal government clash on something that, you know, should have been avoided.

HEMMER: Roger, 15 seconds left: The INS basically saying the only person who may speak for the child is the father. Correct ruling?

COSSACK: Yes. Well, in my opinion, it's a correct ruling. It's what the regulations of the INS would call for. They've done their investigation and that's their ruling, popular or unpopular as it may be.

HEMMER: Good deal. Roger Cossack from Washington.

And we'll hear more about it later today, I'm sure.

Roger, thank you.

COSSACK: Thank you.

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