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Burden of Proof

Elian Gonzalez Case: Did Agents Use Excessive Force?

Aired April 24, 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)

JOE LOCKHART, WHITE HOUSE PRESS SECRETARY: All of this could have been avoided. None of this had to happen. This happened because the family did not respect the legal process here that dictated the father should be reunited with the young boy. That lack of respect and the unwillingness to go along with what the court said and what the INS said led to no other alternative.

ROGER BERNSTEIN, ELIAN'S MIAMI RELATIVES' ATTORNEY: There was excessive force used that how -- at that home, while in good faith mediators and leaders from this community were negotiating. They were led to believe that their proposal was to be accepted. It was not...

(END VIDEO CLIP)

ROGER COSSACK, HOST: A turbulent home invasion leads to the reunion of a father and son. Today on BURDEN OF PROOF, was so much firepower really necessary?

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.

Immigration officials snatched Elian Gonzalez from his Miami relatives' home in a predawn raid Saturday morning, and the dramatic photographs from that seizure have given rise to debate about the force used in the effort.

Hours later, other photographs emerged of a playful Elian reunited with his father.

Chaos followed in Miami's Little Havana, while charges flew between lawyers and lawmakers on either side of the battle.

Joining us today here in Washington is the general counsel of the INS, Bo Cooper. Bo, thank you for joining us.

My first question for you is, describe the negotiations that were going on just prior to the raid. We have heard descriptions that they were fruitful and looked like they may work, and then suddenly the door came open. BO COOPER, INS GENERAL COUNSEL: Roger, the negotiations that were taking place on Friday evening and then into the early hours of Saturday morning represented just the final and last step of our efforts to try to bring this to a cooperative resolution.

They were -- while they were going on, up until the moments before the actual recovery operation began, they -- we were not able to bring them past a point of vagueness and on to the specific points that were critical to the reunion cooperatively of the boy with his father.

COSSACK: Bo, the family claims that in fact they were able to bring them past a vagueness, that in fact they felt that a deal was on the table, that you were speaking with their lawyers, that there were elements that, of course, hadn't been agreed upon, but that there were -- the negotiations were fruitful and were going forward.

COOPER: The elements that hadn't been agreed upon were the key ones that we had been discussing with the family for weeks and weeks and weeks to try to get this resolved in a cooperative way.

But throughout those discussions that night, there continued to be insistence that the father come down to Miami for these meetings. There was an absence of a firm commitment to turn the boy over to his father unconditionally. All the sorts of things that we had tried endlessly to try to bring to the table in an effort to get this boy returned peacefully and in a way that was the least troublesome for him.

COSSACK: The negotiations, I understand, they were talking about the idea of shared living spaces, that, in fact, the family from Miami would share living quarters with Juan Miguel, and that the child would be available to both sides. Is that something that was decided upon?

COOPER: The availability to both sides was a key question. One of the things that the father felt insistent upon and that the law seemed to make clear, and that our psychiatric experts were advising us, was that the child should be clearly and unambiguously in the custody of his father as quickly as possible after that man arrived in the United States.

And that was a point that we were never able to resolve. It's one that we had pursued over and over and over again.

COSSACK: What was the family's final offer, Bo?

COOPER: Really, the final offer, it's even difficult to describe it as an offer. The communications that were taking place in those -- in the last hour or so really had much more to do with the sorts of vague statements like, you know, Let's try to get the families together to talk to work this out, but without any of the kinds of key points that were critical.

I think it's important to emphasize that since January 5, when the INS first made its decision that that -- that the father speaks for the boy and that the father wanted the boy and should have him back, we have tried for over three months to try to work this out in a cooperative way. And that continued up until the very, very final minutes.

COSSACK: Bo, from the INS's viewpoint, though, was there really any negotiations that could have succeeded? I mean, what -- if you take the position, and I think legally you're correct, that in fact custody belonged to Juan Miguel, what was there to negotiate?

COOPER: The sorts of things I was describing to you. If -- there had been discussions about possibilities for continued contact, so long as the key elements were in place, and that is, an immediate and unambiguous transfer to the child to his father. That was what we had been advised, and that was what seemed to us, as a matter of law and common sense, had to happen.

I have to say that toward the end -- I mean, your basic question is, Was there any negotiation that could have resulted in a cooperative resolution? At the very end, when the attorney general went around the room in her office in the wee hours of Saturday and went person by person, and said, Do you think we need to go forward with the recovery operation? the view was unanimous, and it was based on our sad but firm conclusion at that point that there was no possibility for a cooperative arrangement.

COSSACK: You -- yet in fact, the agencies applied for a search warrant to go in and enter that home the night before, somewhere around 7:00 in the evening.

COOPER: Right.

COSSACK: So that indicates that, in fact, plans were made, at least at 7 P.M., and I'm sure before that, to have legal authority to go in and enter the house and take Elian. So obviously this was something that you had thought about and were prepared to do as early as 7:00 the evening before.

COOPER: Absolutely. Much earlier than that. I mean, we had been making plans to carry this out if absolutely necessary for days and days before that, because an operation like this, once you reach the point where it's unavoidable, has to be made to work. And all the details have to have been thought out, including gaining -- as you mentioned, getting a warrant, gaining the legal authority to carry the thing out.

But that had nothing to do with our willingness, even up until the very end, the commissioner and the attorney general went to the farthest reaches of patience...

COSSACK: All right, Bo, let me just cut you off and ask you this question, then. If, in fact, the -- you had planned on this and you had all of these thoughts on how you were going about do it -- go about doing it, why was it necessary for such a force with so much military power -- and we all have seen that picture of that agent going in with that automatic weapon facing the child -- why was it necessary to do that? Wasn't there a more peaceful way?

And second of all, were those weapons inside that house, were they loaded?

COOPER: First, let me address your question about why this was necessary. I mean, everyone has seen that image, and it's a very, very wrenching image. I'm a father, I can certainly tell you it's wrenching, and nobody would deny that. But the point that it's critical to remember is that, first of all, there's a very big difference between a show of force and a use of force.

Second, when an operation like that begins, when it becomes absolutely necessary, it's critical for the safety of the child first and foremost, and then to the safety of everyone else, that the operation work, that is, that the people be able to get in the house, recover that child safely, and get out promptly.

You have to remember that the government had been receiving some very troubling indications up until the day before that there may have been weapons inside the house, in the crowd and around the house. And you've got to -- you can't bet in a situation like that, you've got to be prepared for every possibility.

As well, it's important to remember what had happened in the streets of Little Havana on the day that we asked the family to bring the child to the airport so that he could be returned to his father. There were thousands of people, and it was critical to avoid a situation where the effort to recover the boy and reunite him with his father became bogged down in crowds.

COSSACK: But doesn't that heighten the chances that there is going to be some sort of an accident, or at least some sort of injury, when you send people inside the house with that much firepower?

COOPER: No, to the contrary. I think it reduces the chance. All of the planning for this was made with the effort to reduce to the barest possible minimum the likelihood of injury. That was the choice to go at nighttime rather than by day, which was specifically authorized by the warrant. That was the choice to -- that resulted in the choice to get the boy quickly out of there and use a helicopter to get him out of the vicinity as quickly as possible. That informed the choice of a number of people.

Every aspect of the recovery operation was devised so as to minimize, to the extent possible, the risk of any harm. And, in fact, the boy was recovered with no harm to anyone inside, with no serious harm to anyone outside. And the boy seems by all indications to be doing beautifully.

COSSACK: All right, Bo Cooper, thank you for joining us today.

COOPER: Thank you, Roger.

COSSACK: When we come back, more on the use of force and the breakdown of negotiations. Stay with us.

(BEGIN LEGAL BRIEF)

For the first time in eight years, the Supreme Court will hear a major case tomorrow involving abortion rights. Advocates on both sides of the issue say the court's eventual decision will either significantly erode or strengthen abortion rights in the United States.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Though the boy and his father have been reunited, the battle and debate over that reunion continues.

Here today to clarify some of the actions and accusations of the past few days, in New Orleans, George Fowler of the Cuban American National Foundation. And here in Washington, Brian Jones (ph), immigration attorney Elliott Lichtman, and former deputy associate attorney general Jeffrey Harris. In the back row, Soledad Darcella (ph), Jonathan Brooks, and Lee Irvin (ph).

George, I want to go right to you. You've heard what Bo Cooper said. Do you feel that the negotiations were going on in good faith, or do you feel that you were set up?

GEORGE FOWLER, CUBAN AMERICAN NATIONAL COMMITTEE: I think that the Justice Department would have liked to have worked this out in a different manner. But for some reason, they were getting a great deal of pressure from the Castro government.

I participated in some of the negotiations, and it was clear to me that the Castro government was dictating the terms of deal. And the sine qua non of this deal was that the boy had to be turned over. All the overtures by the family to have the father come and meet with them were all turned down. All overtures to meet, for the father to meet with the family and try to work this out in a family way, were turned down, ultimately by the Castro government.

So they refused to allow this meeting. What was less traumatic, taking this kid at gun point from the home of his Miami relatives, putting him on a plane and taking him to where his father was, or having that father come down to Miami and meet with the family and see if he could work things out over there?

But the Castro government did not let him come down. Somebody has got to give a reasonable explanation other than what we've been saying, and that is that this man is under the control of the Castro government...

COSSACK: George, George, let me...

FOWLER: ... and as always...

COSSACK: ... let me just...

FOWLER: Let me just say one more thing, one more thing. Let me just tell you, when they saw that the case was going against them in the 11th Circuit Court of Appeals, I went home with an injunction that said that the immigration should have allowed Elian -- should have interviewed him and a clear indication that the statute very clearly said he had a right to a political asylum here.

COSSACK: No, wait, wait, wait...

FOWLER: When they realized that things were going wrong, then they moved very quickly. They knocked over the chess table, and there's a new game now.

COSSACK: George, let me just ask you about some things that perhaps we can agree on. There's no decision by any court that I know of that changed the law that said that custody belonged to Juan Miguel. Isn't that the status of the situation right now? And wasn't that the status of the situation prior...

FOWLER: Wait, wait, wait.

COSSACK: ... to the INS raid?

FOWLER: The custody issue, according to the immigration's first directive, which I sent to you and your program, that this was a state court family issue. Of course, since they realized that they were going to lose there on this issue, that in -- they changed their mind and decided not to go to a state court.

The issue of custody has yet to be determined, except now by force.

COSSACK: Are you -- are you -- is it your position and the Cuban American Foundation's position that in fact legal custody does not reside with the father as of this moment and before the raid?

FOWLER: As of this moment, there's been no decision by state court custody. And that should have been handled in the normal course of events.

COSSACK: All right...

FOWLER: When there's a custody issue in this court, you go to state court. You don't do it at the point of a gun.

COSSACK: All right, let me talk to some of our other guests.

Elliott, George claims that this is a state court issue. Is it?

ELLIOTT LICHTMAN, IMMIGRATION ATTORNEY: I disagree. I think it's clearly a federal court issue, and my understanding is the state court judge decided that she had no jurisdiction over the matter, and that it was for the federal agency and the federal court to decide.

COSSACK: And in fact, if that's the case, then was it -- was -- does legal custody belong with the father before the raid, as well as now?

LICHTMAN: I think it's clear that the father has had legal custody throughout.

COSSACK: Jeff, in terms of what the Justice Department did in this matter, does the Justice Department have the right to go in and order this kind of a raid?

JEFFREY HARRIS, FORMER DEPUTY ASSOCIATE ATTORNEY GENERAL: Absolutely.

COSSACK: Why?

HARRIS: Because the custody being in the hands of the father, which it is, they have the authority to return that child to the father. The Immigration Service, when someone comes into this country, has control over where that person resides and under what conditions while the immigration matter is being finalized. And the Justice Department had absolutely every right to do what they did.

They used in a show of force, which was appropriate, in my view, because it -- a large show of force tends to reduce the chance that someone who's thinking about resisting will resist. They did it at the time of day when you'll notice that most arrests go down, and those are in the hours just before dawn. The science tells you that people's body systems are at their lowest at that point. There's less likely that you'll get resistance.

And also, this issue about knocking on the door. The rule is that you do announce yourself, but you don't wait very long if you don't get a response, because just imagine...

COSSACK: Well, if you don't get a response. But the rule is that you have to give knock notice, that's...

HARRIS: (inaudible)...

COSSACK: ... you have to knock on the door and announce your purpose, what you're there for.

HARRIS: That's right, and...

COSSACK: And give the residents the opportunity to open the door peacefully.

HARRIS: That's right. And the question is, how long are you going to wait, not knowing what's on the other side of the door? And law enforcement in this situation and in any situation doesn't wait very long. And I'd suggest to you that with good reason.

COSSACK: All right, let's take a break here.

What happens next in the case of Elian Gonzalez? More on that when we come back.

(BEGIN Q&A)

Q: The federal racketeering case against four-term Louisiana Governor Edwin Edwards, his son, and five others goes to the jury today. If found guilty on all 27 counts, what kind of sentence would the former governor face?

A: More than 300 years in prison. (END Q&A)

(COMMERCIAL BREAK)

COSSACK: On May 11, the 11th Circuit Court of Appeals will hold a hearing regarding Elian Gonzalez's immigration status.

George, what about his application for political asylum, is that still going to go forward?

FOWLER: Absolutely. But, you see, the situation has dramatically changed, Roger. Despite the immigration's position that Elian did not have a right to a political asylum hearing, the 11th Circuit Court of Appeals granted an injunction on Wednesday, clearly indicating that in their view, that statute says that any alien, not any alien except Elian, has the right to a political asylum hearing.

So the government knew that the case was going in the wrong way. The rule of law wasn't going in the way -- if we get a political asylum hearing for Elian, that could take years to resolve itself. And the needed to deliver the child back to Fidel Castro, therefore they moved, and they moved swiftly, within two days of that decision, before the hearing.

Why couldn't they have waited until May 11? After all, the father had not seen fit to go see his son. And I think he would have had he been permitted by Castro...

COSSACK: All right, George...

FOWLER: ... over the last five months.

COSSACK: All right, George, let me (inaudible)...

FOWLER: Now, why couldn't -- why not wait until May 11?

COSSACK: All right. Let me interrupt you for a second. Elliott, let me give you a hypothetical. Could Elian's father, Juan Miguel, now decide that he wishes to withdraw the petition for political asylum that Elian has on file now?

FOWLER: Well, that's precisely...

COSSACK: (inaudible), hold on, George, I want to ask Elliott here.

LICHTMAN: I think he could do that. In most cases, the parent can represent a young child who's only 6 years old. But I think there's a necessity for the INS to be satisfied that this is a fit parent, that it's a loving relationship, and that's exactly what the INS...

COSSACK: But why couldn't he have done that...

LICHTMAN: ... determined early on.

COSSACK: ... (inaudible)...

FOWLER: No, no, I've got the answer to that, Roger.

COSSACK: Let me just ask one more question. Why couldn't -- if that's the case, why couldn't he have done that any time? I mean, (inaudible) changes, he has actual physical custody of the child, if you can do that.

LICHTMAN: There are some circumstances where children have a right to file a claim and where their testimony needs to be taken, if there's evidence of an abusive relationship between the parent and the child, antagonistic interests between the two, INS would properly interview the child. Now, there's never been any evidence of that in this case, to my knowledge.

FOWLER: Well, let me say this...

COSSACK: All right.

FOWLER: ... Roger, if I may. The decision in the Miami court decided that Lazaro, the uncle, had the right to proceed with this application for political asylum on behalf of Elian Gonzalez because precisely, there is a conflict between the father. This is the father that arguably wants to take his child back to a dictatorship country that will control him for the rest of his life.

COSSACK: All right...

FOWLER: And this child said, No, I wanted to stay in the United States, in the land of the free and the home of the brave.

COSSACK: But (inaudible)...

FOWLER: So there's an auc -- there's a conflict there...

COSSACK: But George, that has to do...

FOWLER: ... where you have the friend...

COSSACK: ... George, George...

FOWLER: ... that has the right to make the claim.

COSSACK: ... hold on. That's right. But that has to do with, assuming that he does get a hearing, with a 6-year-old, Elian Gonzalez, being able to make out a claim to the INS that he will be persecuted personally if he returns to Cuba, which I think many feel would be a difficult thing for anyone to do...

FOWLER: Oh, that is the real -- that's the problem...

COSSACK: George, let me just -- let me just -- hold on one second.

FOWLER: That is the big problem that we have. And... COSSACK: George, I just want to interrupt you for one second. Jeff, I want to get a question from you. Let's suppose that the family goes to court and says, The taking of this child was unconstitutional, the issuing of the search warrant was unconstitutional. You shouldn't have issued the search warrant. And the court would say, Fine, or not fine, but they'd have a hearing, and they'd say, We agree with you, it is unconstitutional.

What would be the remedy? Would the child then be returned?

HARRIS: No, the traditional remedy for violation of the search and seizure laws or the Constitution in that regard is that the evidence is suppressed and this -- the fruits of the search and seizure cannot be used. But no, in cases, for example, in which there has been violation when people have been brought back to this country to stand trial, even if they win that there was an illegal search and seizure, they don't get to leave the country and go back.

I think what's really going on here is that any of us -- we could get Elian Gonzalez to say he'd like to go to Kosovo if we were -- if we had him for two weeks. A 6-year-old cannot be relied upon to give independent judgment about what he'd like to do.

COSSACK: All right, and that's the last word. You got it today, because that's all the time we have.

Thanks to our guests, and thank you for watching.

The conversation about reuniting Elian with his father continues later today on "TALKBACK LIVE." Was the raid really necessary? Phone, fax, or e-mail your ideas to "TALKBACK." It's your turn to weigh in. Live at 3:00 p.m. Eastern, noon Pacific.

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

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