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CNN Today

Fein: Sending Elian Gonzalez Back to Cuba is 'Virtual Child Abuse'

Aired January 6, 2000 - 1:33 p.m. ET

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

LOU WATERS, CNN ANCHOR: Joining us now to take a close look at the legal issues involved, constitutional lawyer Bruce Fein from Washington.

Mr. Fein, the president says he agrees with the INS decision. The attorney general says she agrees. You do not. Why?

BRUCE FEIN, CONSTITUTIONAL LAWYER: No, I think it's ill- conceived for many reasons. It's not solely the wishes of the father that ought to prevail here but also the -- the least reasonable interest of a child in a fulfilling life that's not a virtual prison.

And if you look at the conditions of Cuba, no matter what the individual sympathies of the father are, you have this evidence: One, the mother, who had custody of the child, risked her life. Indeed, she was a martyr to relieve Mr. Gonzalez from the hideousness of a Cuban life. It's earmarked by privation, very pronounced malnutrition and other hardships. Indeed, it would be a crime, if he returns to Cuba, for him ever to flee again, unlike in the United States where he can leave the country at will whenever he wished when he was appropriate majority.

Secondly, you have to examine what would be the attitude of the United States if, for instance, you had a mother who came to the United States with a daughter fleeing Taliban. She dies, the daughter's relatives want her to petition for asylum. The father, who's a Kalashnikov member of Taliban says, no, I want the daughter back to live under the, you know, the glory of women's rights in Afghanistan. I think it be ridiculous to suggest it would satisfy constitutional due process to send someone back to conditions that are virtually certain to deprive them of what we think is a sensible and fair and decent life.

And indeed, you can look at the Cubans themselves, what they appraise the conditions in the island are. There are 20,000 immigrant visas annually that are allotted to Cuba by random, and there are over half a million Cubans that apply. They are desperately seeking to flee that country.

That's objective evidence that shows, no matter what the father thinks, that it's virtual child abuse to subject the child to those conditions under such tyranny. WATERS: So, what you seem to be suggesting is we should have a full judicial hearing for all of these folks, whether they're getting away from the Taliban, out of Mexico, out of Cuba wherever and whenever...

FEIN: No, I think that's an overstatement. I understand that the -- that drawing lines as to what, you know, conditions are reasonably free and fair is matters of degree, and not everything is the Nazi Holocaust, not everything is the Gulag under the Soviet Union. But in this case, I think, when you have the object of evidence that's so stark, here, not only the mother, not only the adult citizens of Cuba, but also just the conditions that are taken note of by the United States State Department in their human rights reports, it's reasonably clear that the line of decency has been passed when you're subjecting a child to return to such heinous conditions.

And remember, the child, if he stays in the United States, will have a chance if, at time of emancipation, chooses to go back to Cuba to do so. Once you send that child back, it is a crime in Fidel Castro's Cuba to leave the country.

WATERS: What about the political and diplomatic considerations? As you know, one of the major reasons behind this decision was to avoid antagonizing Cuba at a time, and I'm sure the Republicans would disagree with it, but this administration wants to smooth over the differences between the United States and Cuba?

FEIN: Well, I don't think those considerations ought to trump the constitutional rights of a little child. I've also been informed that there's already been a bill introduced into Congress that would grant citizenship to Elian Gonzalez, and the United States Supreme Court has held that citizenship cannot be taken away from anyone. And if citizenship is granted, it would seem to me that probably would trump the decision of the immigration service and permit him to stay in the United States so long as he wished.

Again, I go back to the fact this is a humanitarian issue. It's not something that we ought lightly to do to sever ties between a parent and a child, but it doesn't means that we ought to not open our eyes to the realities of the dispensation in Cuba and recognize, you know, the very, very violent and oppressive conditions to which he would be returned.

WATERS: Thanks so much. Very interesting. Bruce Fein, constitutional lawyer, joining us from Washington today.

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