rover Joseph Rees was the general counsel of the Immigration and Naturalization Service from 1991-1993. He is currently staff director and chief counsel of the Subcommittee on International Operations and Human Rights in the House of Representatives.

National Review: What do you make of yesterday’s ruling in the Elián Gonzalez case?

Grover Joseph Rees: I think the court got it exactly right. In fact, it reaffirms one’s faith in the "rule of law" — which has become a slogan. It has been used as a slogan in this case by people who meant by the "rule of law" that "what I say goes." And in this case the court actually took a look at what the law really is. They said it’s all well and good to make these judgments about what’s in the best interest of the child or about whether the child in fact has any reason to fear persecution or mistreatment on return to Cuba, but we’ve got processes that are established by law for determining those things. It’s not enough for the attorney general to make her own intuitive judgment based on a very cursory, informal fact-finding process. Instead, you have to follow the law, even in the case of a six-year-old.

NR: Janet Reno asked the court, among other things, to issue an order that Elián be transferred to his father, and it didn’t. Is that a sign that they are favoring that he not be returned to the father? Can we read anything into that?

Rees: I don’t think we can. The court didn’t address the issue. They didn’t have to. If two parties each make separate motions, the court can rule on one motion and withhold judgment on the other, which seems to be what they’ve done in this case. I think that it’s clear that the court is not part of the cheering section for speedy return of Elián to Cuba, a process in which transfer to the father was to be an important first step. The court doesn’t address whether INS can just go pick up the child and bring him to his father, which is what the Justice Department is contemplating now.

NR: So is Reno on solid legal ground in saying that they haven’t prohibited her from doing anything?

Rees: They haven’t prohibited her. What you’ve got is an interesting case. The power of the Justice Department over the custody of the child is derivative. It’s derivative of their power to parole the child into the United States, which they’ve done. They can set conditions on that. Now, arguably, their only remedy if the conditions aren’t met — if, as has happened here, the uncle has gone to state family court, which would normally be the court having jurisdiction over custody, and gotten an order that says the child stays with me — and if the INS decides to put new conditions on the parole and those conditions conflict, it’s not clear to me that INS’s remedy is to take the child and put him in the hands of another custodian. It may be that INS’s only remedy is to revoke the parole and begin proceedings to deport the child.

NR: So there may not be a middle ground?

Rees: I think that’s why the attorney general took the precaution of asking for a court order. Why would she ask that if her power to do it without a court order was clear?

NR: Is there something that the Miami family’s lawyers should be doing to question or to stop the Justice Department and the INS from making any kind of move like that?

Rees: Well, in a way they’ve got the same risk. If they don’t go to a court asking for a protective order against a transfer of Elián to his father, they may lose. They could lose if they go to state court, for jurisdictional reasons. The state court could say that we just don’t have the jurisdiction to order the federal government to do things. And if they go to the federal court, they could lose because the federal court could say that that issue is not really before us. We’re not going to micromanage INS and tell them who should be the custodian while he’s in the United States as long as his right to remain in the United States is preserved until the asylum proceeding is over. So, they could lose. There’s always a possibility that you think you are right on the law, but you don’t want to test that in court. I think both parties may be in that situation with respect to the physical custody of the child pending further proceedings. I think that the thing that the family has got going for it, aside from the fact that they don’t have a court order telling them to turn over the child, is that the administration is likely to be reluctant to go in and physically remove the child, quite possibly kicking and screaming, from the environment in which he seems to want to be. And, the fact that they have assiduously had their psychiatrist and psychologist and pediatrician not interview the child. They are making all these judgments about what’s in the child’s best interest. One member of the team has even been issuing statements with lots of adjectives and exclamation points about how the child’s psychological health is in imminent danger. But they are doing that without examining the child.

NR: Which the court spoke to yesterday?

Rees: The court did address that. When you try to look behind that, why would they do that? Why would they send these people who have already reached their conclusion about what ought to happen to the child and, therefore, don’t need to do an examination? I think it’s because there is sort of an underlying knowledge that for whatever reason the child does seem to want to stay with the family in Miami. If you look at that from the government’s point of view, they’ve brainwashed him somehow, they’ve given him lots of toys. If you look at it from the family’s point of view, and that of some of their observers, he has bonded with his young cousin who is the same age as his mother, he’s been given a stable, warm, loving environment initially with the acquiescence, the endorsement of the INS. And so, to physically remove him from that situation, in a situation that appeared to be traumatic to him, could reverse the public opinion to the effect that he ought to be returned to his father. When I worked in the government, we called a situation like that "bad optics." The Justice Department is spinning this, implying that the reason they have been cautious is that they are afraid of violence from the Cuban American community. I don’t really think that’s what it is. I think that what they are afraid of is resistance from the child himself and having to do the whole thing on television.

NR: Can Congress step in at this point?

Rees: Congress could have stepped in anytime it wanted to. Congress could pass a law making Elián a lawful, permanent resident or citizen of the United States. Although it would not resolve the custody dispute, it would relegate the custody dispute to family court. It would take it out of the hands of the INS. There are different views in Congress on what ought to happen on this. There are members of Congress on both sides of the aisle who, without having met Elián, feel very strongly that he ought to be with his father. There are others who feel very strongly that he ought not to return to Cuba. And Congress doesn’t usually act quickly unless there’s an overwhelming consensus, which there isn’t at this point.

NR: Let me ask you about human rights — the State Department report on Cuba and human rights, and the United Nations denunciation of Cuba this past Tuesday. How significant was that vote, and why are we not making the connection?

Rees: You don’t necessarily need to make the connection, that is to say, there are lots of governments that severely violate the human rights of people who come to their attention and yet in which lots of people are able to live acceptable lives. This is the case that the government is already making in the newspapers about why Elián shouldn’t get asylum on the merits even if he gets a hearing: Just because they violate the rights of some prominent dissident doesn’t mean they are going to anything bad to Elián. Having said that, it’s quite clear that Elián has come to the attention of the Cuban government. Quite possibly they wouldn’t have done anything bad to Elián if they had never noticed him. But now that he is the Elián González, they’ve provided a special school for him in what I am told is the Communist Youth Center. They’re going to be watching him every minute, and if, as appears possible, he decides in a few years not to be a good Communist, he’s going to be in an awful lot of trouble. So, we should make the connection. This is one of the most brutal governments on earth. Sending a child back to Cuba is not the same as sending him back to France or Mexico, but we do not need to jump to the conclusion that no child could ever be sent back to Cuba to be with his parents. It depends on the circumstances, which is why there should be an individual hearing.

The drumbeat right now is about getting Elián into his father’s custody in the Cuban mission in Washington as quickly as possible. The father’s lawyer is saying that this is because every day adds further risk to his psychological health. Attorney General Reno and others in the administration have been saying almost the same words. Part of it is on the basis that they put out this video with Elián saying that he can’t go to Cuba. Now, I don’t know the circumstances under which that video was made. Certainly there would be circumstances under which using a child or having a child do that sort of video would be inappropriate. I can imagine other circumstances where it would be appropriate. But why is it that the only thing that the administration sees as a threat to Elián’s human rights is the possibility that somebody might listen to him before he goes back to Cuba? Why is it that they have never, as the court pointed out, had, even under the most protective conditions, a child-welfare expert talk to him to find out if maybe he knows something that we ought to know before we send him back to Cuba?