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Burden of Proof

Elian Gonzalez Case: Custody Controversy Continues

Aired April 6, 2000 - 12:30 p.m. ET

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

(BEGIN VIDEO CLIP)

JUAN MIGUEL GONZALEZ, FATHER OF ELIAN GONZALEZ (THROUGH TRANSLATOR): I just arrived in Washington where I hope I'll be soon able to embrace my son, Elian Gonzalez Braton (ph) for the first time in over four months. For 137 days, I have endured an unfair and ruthless separation from my son. Never before the anguishing day since November 22nd did he have more need for his father and family.

ARMANDO GUTIERREZ, GONZALEZ FAMILY SPOKESMAN: Little 6-year-old boy that has been through so much, has found so much love here. And they want the best for Elian. They don't care what the end is, as long as it's the best for Elian.

ERIC HOLDER, DEPUTY ATTORNEY GENERAL: Father and his son need to be together. And in the coming days, we will do all that we can to ensure that that happens.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: The custody controversy continues. Today on BURDEN OF PROOF, are we any closer to the end of the Elian tug of war?

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

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

We had planned to bring you part two of our interview with Susan Smith's mother today. Linda Russell has rarely spoken about the night her daughter drowned young Michael and Alex in a lake in Union, South Carolina. But because of developments in the case of Elian Gonzalez, we'll save the second part of that interview for another day.

Early this morning, Elian's father touched down on American soil. He greeted protesters and media at the airport with stern remarks about the custody battle for his son. Passions were just as high in Miami where the 6-year-old has lived with relatives since surviving a Thanksgiving Day shipwreck more than four months ago.

Joining us today from New Orleans, George Fowler of the Cuban American National Foundation here in Washington, Tina Englehart (ph), former INS general counsel David Martin, and Lee Swilakowski (ph). In the back, Lakesha Carr (ph) and Clev Mezadore (ph). Also here in Washington, Congressman Robert Menendez of New Jersey. And joining us from the Justice Department, CNN justice correspondent Pierre Thomas. And from her post in front of the Miami relatives' home, Susan Candiotti.

Susan, what's going on down there in Miami now?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, the mood remains very tense here outside the home where 6-year-old Elian Gonzalez has been living for about four months now. A lot of the demonstrators that are just a short distance from the home standing behind police barricades remain adamant that they are against a reunion between father and son, at least one in which the father would bring the boy back to Cuba. No matter what these people say, they will do anything they can to try to prevent that boy from returning to Cuba.

The lawyers for the Florida relatives of this youngster continue to maintain and claim that the boy does not want to go back with his father. They even insist that the is afraid of his father.

Now we can remind you that the youngster has been speaking with his father nearly every day over the telephone. And whenever we see him, we see him out in the yard and he appears to be very content playing out here with a number of toys that he has received since he arrived in the United States. In fact, he was out not long ago playing on his play set, and also, frankly, playing to both the cameras and playing to the crowd of demonstrators that are standing nearby, about, I would say, 50 to 60 of them. When the crowd saw him, they would wave to him and, in fact, were chanting his name, telling him, "Elian, we're with you."

Now the Florida family, you will recall, has been saying all along that they welcome Juan Miguel Gonzalez to the United States. They said that that's what it would take for him to get his son back. However, now that the father is indeed on free soil, they are claiming that already, since he touched down at the airport, that his words are not his own, that they claim he is under the thumb of the Cuban government. And unless, they say, the father is able to speak in a situation beyond the control, as they put it, of the Cuban government to be able to meet with this family head on without anyone else there - no lawyers, no politicians, no officials from any government - only then, this family says, will it be convinced of the father's true feelings.

COSSACK: Susan, you indicated there's about 60 protesters now. At the very height of the protest, how many protesters do show up to voice their thoughts?

CANDIOTTI: On a day-to-day basis, I would say there are probably maybe 20 people here at most. Since things have gotten a little more lively over the past few days, since the announcement of the possibility that the father would be coming here, the numbers have increased to what they are now.

But on certain occasions when there was particular nervousness that the government might possibly be making moves to force this family to surrender the youngster, there was a demonstration just last week of several thousand people who went out into the streets to form a cross using flashlights and the like. And you'll remember they've conduct traffic demonstrations.

And, in fact, just a couple of days ago, when there was a rumor, which turned out to be a false one, that U.S. authorities were coming to snatch the boy, a number of these people - about 50, 60 - broke down the police barricade and formed a human chain around the house, which the continue to say they will do if anyone comes close to the youngster.

The police thus far have been letting these people, as they say, blow off steam. They maintain that these folks should not - do not present a security risk at this time to anybody. And one other development.

COSSACK: Go ahead, Susan.

CANDIOTTI: This is from Miami Dade mayor Alec Penelas. You recall, I think, just last week when Mayor Penelas shocked a number of people, not only in this community but throughout the country, when he made a public pronouncement that said if there is any violence, that he holds the Clinton administration and U.S. Attorney General Janet Reno responsible. And furthermore, he said that he would not allow his police officers to assist U.S. authorities if they try to take this child away. Since then, Mayor Penelas has said that his comments were misinterpreted. And moments ago, he released this following statement, that he wants to repeat his call for peace and order. And he adds that while he is troubled by suggestions that Elian Gonzalez's due process rights might be cut short by what's happened, now that his father is in the United States, that he's urging calm in this community.

COSSACK: All right, thanks to Susan Candiotti.

Let's go now to Congressman Robert Menendez.

Congressman Menendez, we have heard talk of a bill in Congress that would give Elian Gonzalez certain status as a permanent resident. What do you know about that?

REP. ROBERT MENENDEZ (D), NEW JERSEY: Well, the bill that's pending, Roger, and it's up to the Republican majority as to whether or not they'll bring it up for a vote in the House and/or the Senate, and we see it only as a mechanism to get what I think everybody ultimately wants in this case, which is a day in court for the young man, where the only question to be raised and decided by a court, the most nonpolitical institute in our country, is what is in the best interest of this child. And that's what those efforts are. However, that legislation has not been moving, and so far, we haven't seen the Republican majority seek to move it.

COSSACK: Congressman Menendez, you say that you want a day in court for this young boy, but hasn't he had several days in court so far? MENENDEZ: Roger, I said on the question of what's in the best interest of the child. The only day in court that he has had really has been the district court on the issue as to whether or not he even has the right to apply for political asylum. And as you know, the Justice Department has taken the position that only his father can ask for an immigration benefit, so to speak, on his behalf because of his age, even though, you know, many of us in Congress read the statute to say any alien. It doesn't say - it doesn't have qualification to it - any alien is entitled to apply for political asylum. But that's the only issue that has been actually litigated at the district court and it's pending in the appellate division on that limited question.

The issue of what's in the best interest of this child, in essence a custody proceeding in determining psychological evidence, as well as, you know, fitness and other questions have never, ever actually been heard other than the state district court which that proceeding has been set aside for the moment.

COSSACK: All right, let's now go to Pierre Thomas at the Justice Department.

Pierre, what is the Justice Department going to do? Do they have any contingency plan set up?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, Roger, as you know, there are negotiations going on between the Miami relatives and also the Justice Department and INS officials today. They hope those negotiations will be fruitful. They want the family to voluntarily agree to transfer the boy to his father. If those negotiations fail, we are told that the Justice Department would consider a number of options including sending a letter to the father - excuse me, the great uncle, informing him that temporary care of the boy would be transferred to the father. That would be later followed up by a letter in which they would tell the Miami relatives of a date, place and time to transfer the boy.

Now beyond that, if the family balks at those overtures by the government, they would consider going to a federal court to seek an order that would compel them to transfer the boy. Now beyond that, your guess is as good as mine. The Justice Department does not want to get to the point where they would have to physically go in and get the boy.

COSSACK: All right, let's take a break. Attorneys for the Miami family say they will comply with the laws that pertains to custody of Elian, but what exactly is the law? Stay with us.

(BEGIN LEGAL BRIEF)

The Center for Constitutional Rights has filed suit against the World Church of the Creator for the death of Reverend Stephen Anderson. The center claims the church leader conspired with the shooter to "commit wholesale acts of genocide" and is suing under the Illinois Hate Crimes Act and the historic Anti-Klan Act.

(END LEGAL BRIEF) (COMMERCIAL BREAK)

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 cnn.com/burden. 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.

The reuniting Elian Gonzalez with his father is a matter of law, logistics, diplomacy and dialogue.

George Fowler, you're with a group that believes strongly that young Elian should stay here. What would you advise the family in light of recent developments?

GEORGE FOWLER, CUBAN AMERICAN NATIONAL FOUNDATION: Well, I'd advise the family to wait for him, for the father to come. The problem with the father, he took the wrong plane. He ended up in Washington. His son is in Miami with the rest of the family. I don't know what he's doing in Washington. He should go - If it was my son, I'd go immediately to go see him. And that's the proof of the situation with Juan Miguel Gonzalez. Juan Miguel Gonzalez is under the control of Fidel Castro.

The second thing that I want to say is about this bill, which is a very important bill, which is the only bill that's going to give Elian a custody hearing and determination of what's in his best interest. We have over 40 senators, Republican senators voting for it. I'm waiting to see whether the Vice President Al Gore has the clout to bring us more votes, Democratic votes. We only need about 10 votes on his side. So, hopefully, he'll get behind this bill which is so important so that Elian can finally have his day in court.

The third thing I want to say is I think I've seen on CNN about 200 times knocking down of the barricades. The Cuba-American community is a peaceful community. I was there last week when they had a vigil, not a demonstration, and over 25,000 Cubans were there praying for Elian. We are all praying for Elian to be reunited with his father and for his father to stay here in a free country with the rest of his family. I urge the father to go to Miami, visit with his son, visit with his family. He's in the wrong city.

COSSACK: David, is he in the wrong city or is this something that the INS would prefer that he come to Washington and work this out in an orderly way?

DAVID MARTIN, FORMER GENERAL COUNSEL, INS: Well, I think it's very understandable why he hasn't gone to Miami. There have been some fairly strong, sometimes inflammatory statements that have come from some elements of community down there. It wouldn't be surprising that he would be concerned about immediately going there.

Right now, the INS is the intermediary. They are working, as I understand it, for arrangements for the families to get together. It makes a lot more sense that it be in some neutral third site. It doesn't have to be Washington. And so for him to be in Washington while that's being worked out may make some sense.

COSSACK: How should the INS proceed?

MARTIN: Well, they're - as I understand it, they're in negotiations now. If they can work out some plan whereby the family will actually bring Elian out of the home there in Miami and go to someplace else as far away as possible - I don't know if it's possible - but as far away as possible from the media and from protesters, that's probably the best scenario. Spend some time together, work out a transition, minimize the shock on Elian. I think all that's quite useful.

If negotiations don't succeed, INS does have the power - they've had the power all the way along to issue an order that ends the temporary custody rights of the uncle. And they can also place directives in there about where the family is supposed to bring the child. If that fails, we heard from the Justice Department they have plans to try to pursue that then in court. And I just hope that the family, which seems to have softened some of their lines in the last few days since it's been clear that the father is coming, I hope the family will think that through very carefully and work out some kind of arrangement.

They're both talking about the same objective right now: getting the father and the child together. That's been a bridgeable difference, I think, to figure out the exact details about it, and I hope it will happen by agreement.

COSSACK: Congressman Menendez, we've heard talk about this bill. Suppose that this bill does not succeed. How would you advise - what would you advise the family in Miami to do with Elian in terms of transferring custody to his father?

MENENDEZ: Well, I think that the family has said what they want is a family reunion. They don't want to see the sterile set of circumstances in which the grandmother came. And we heard Sister O'Laughlin's own sense of what happened there. She was a witness to it all; it didn't come across well. The child did not react well under the set of circumstances. So if we really care about what's Elian's best interest, what we have here is a family reunion. I think that the protesters can be set aside. Maybe even your cameras can be set aside. And ultimately, this family can begin to try to bond together and work out the set of circumstances between themselves.

Secondly, what the family has said as well, one of the difficulties with INS is that INS is asking them, in essence, to sign certain documents that would, in my mind, from what I've understood of them, curtail their rights to having the ultimate decision that is pending on May 8th at the appellate division potentially be obliterated.

And lastly, if the child is somehow transferred, let's say by agreement of the parties, how do you ensure that, in fact, the child stays here with his father until that time that the May 8th decision is held? If the child goes back and the appellate division rules that, in fact, he does have a right to apply for political asylum, it will be too late. That right will be snuffed out. So these are some of the difficulties that are pending.

COSSACK: Do you think that the courts ever will decide that the child has a right to apply for political asylum, or because he's 6 years old, that belongs to the father?

MARTIN: Well, I think it's unlikely that they will overturn what the district court already decided, that the father gets to make the decision. But there are other possibilities here with regard to exactly how the arrangements would be made for him to be turned over and also to make sure that the father remains here through any additional legal proceedings. That has been a concern all the way along.

The Justice Department has been quite consistent in saying that they want to allow judicial proceedings to run their course. They have the authority, also, to give the custody to the father on terms whereby he will have to remain in the country until further notice or until the court proceedings are concluded. And there's even further power, something very rarely used called the departure control order if there needs to be some further assurance on that. I don't think that's a big problem. I think the scenario is they're going to try to transfer custody to the father and await - make sure he's still here through further court proceedings.

COSSACK: All right, let me take a break. A federal court has ruled that the Immigration and Naturalization Service has the right to return Elian Gonzalez to his father. The Miami relatives who have been caring for the boy are appealing that decision and pushing for an asylum hearing instead. How will it all work out? Stay with us.

(BEGIN Q&A)

Q: Why was San Diego Police Officer Lawrence Cahill on trial?

A: Cahill was on trial for charges of animal abuse. His German Shepherd died on a hot day in July after being left unattended in the patrol car for 90 minutes. The case ended in a mistrial after the jury voted nine to three in favor of acquittal.

(END Q&A)

COSSACK: The international tug of war over young Elian Gonzalez came to Bethesda, Maryland this morning when the boy's father traveled to the home of a Cuba diplomat. CNN's Bob Franken is there.

Bob, describe the scene for us.

BOB FRANKEN, CNN CORRESPONDENT: Well, first of all, this is about as unlike Havana, Cuba as you will ever, ever find. Welcome to suburbia, which, of course, is also the home of the person who represents Cuba in the United States. And the house is being taken over by the Gonzalez family. As a matter of fact, Mr. Ramirez is going to leave. He is going to take up residence elsewhere for now to answer the charge that's being made by some of the Cuban-American community in Miami that the Gonzalez family would be under such tight control that they really would not be able to be candid or make any of the moves they want to make.

We had arrival this morning. They came in about a little before 8:00 Eastern time. They've been inside the house for the most part all day, they being Juan Miguel Gonzalez, his wife, young child. They're waiting, of course, in the hope that they will have a reunion with their son, Elian, who is still in Miami, still part of this big geopolitical intrigue that has been going on for four months, which now centers on the suburban street in Bethesda, Maryland.

COSSACK: All right, George Fowler, why is it that when Juan Miguel landed this morning, the Cuban diplomats renounced their diplomatic status and diplomatic immunity at that residence?

FOWLER: Because they were being - I think it's because they're setting up a meeting with Elian coming to that house over Amera Des Da Nos (ph) or maybe the Cuban Interests Section and the Cuban-American community and others who are supporting Elian are suggesting that he would have diplomatic immunity, and therefore, he would be in Cuban territory if the little boy went there. So that indicates to me that they're expecting Elian to be brought to Washington, not the father going to Miami, where he should be going, where his family is.

The Juan Miguel family is in Miami. They welcomed him - they are welcoming him now. They welcomed the grandmothers. When the grandmothers came, they were waiting with a plate of black beans and rice for them. And they would love for Juan Miguel to go to Miami. But Castro is not going to let that situation develop.

Let me say one thing. The house where he's at is the house of Castro's ministry in Cuba, the Amera Des Da Nos. When he came to New Orleans to speak at Tulane University, I tried to speak to him. He turned to me and there were witnesses to that, and he said, "I am not allowed to speak to you," and he turned around and walked away. So even in this country, Castro has a way to control people. And he's controlling the father. But let me tell you...

COSSACK: George, I'm afraid you can't tell me now because I'm afraid that's all the time we have for today.

FOWLER: OK.

COSSACK: Thanks to our guests and thank you for watching. Stay tuned to CNN for the latest developments in the saga of Elian Gonzalez.

The Reverend Tom Fowcett (ph), who was on the plane with Elian's father this morning, will respond to your phone calls, e-mails and faxes today on "TALKBACK LIVE." That's at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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