A National Figure of Charm and Pity - 24 March 2000

The afternoon of 25 November last year - Thanksgiving Day - was, as you'd expect, a warm day in southern Florida.

The blue-green sea lapping the bodies of swimmers and sunning idlers, the light across the horizon having that piercing glitter, like a streak of horizontal lightning, that it has in those sub-tropical parts.

If any of the swimmers and loungers had binoculars powerful enough to focus just this side of the horizon they would have seen an unbelievable object riding the swells. The truly freakish survivor from a boat whose capsizing had sent everybody else - 11 men and a woman - to the bottom of the ocean.

The surviving object was a small boy - six years old - and he was floating on an inner tube.

Move the binoculars over a touch and there would come into focus a fishing boat and pretty soon the two fishermen leaned way over and rescued the boy.

And he was, as you've guessed, Elian Gonzalez, and one of the drowned was his mother. They were all sailing to the eastern coast of Florida and they very nearly made it.

It's been barely four months since Elian was hauled to safety and to deafening fame.

The Miami Cubans who, by now, are about one in four of the population, swarmed all over Elian and made him, within days, a bright, innocent symbol of the fierce anti-Castro community.

I don't know which institution the fishermen delivered Elian to, beginning - I should guess - the first people they'd get in touch with would be the coastguard, but whoever it was the boy was very soon handed over to the federal authority - the Department of Immigration, which alone has immediate jurisdiction over immigrants - legal or illegal - or/and other categories of strays arriving, kidnapped, children for instance.

From the beginning - way back there in November (it feels like a year) - Elian Gonzalez has become a national figure of charm and pity. And to people who've thought about his future as a human being simply, a figure to feel sorry for.

No child actor or actress was ever so doused in a daily tidal wave of praise and affection and fake affection and protestations of admiration verging on worship.

In fact in one corner of Miami a move was started towards the sanctification of Elian. And at a vast parade in his honour one section of weeping Cubans, not wanting to wait for the Vatican, waved posters and placards hailing "Saint Elian".

Now since the start of this fanatic circus the federal law has been quite clear - custody goes to the living next of kin, which means to the father, unless he's a convicted felon or has a record of delinquency. Neither is true of Elian's father, who remains in Cuba praying and pleading for his son.

At one point he was asked to come to Miami and see his son until the courts decided whether Elian should be returned with his father or kept as, at present, under the guardianship of a great uncle.

The father refused to come for a reason he had learned from his ruler - that the American courts are "corrupt".

But if the law is clear - and the federal law of immigration is controlling - how come there was a problem that brought the boy's status into - by now - three courts - a city, a state and last Tuesday a federal court?

I almost said "finally a federal court" but American courts move, unlike God, not only in mysterious ways but through an elaborate maze of precautions all established in the noble belief that the first court and the second may make a mistake, so it's safer that you should have access to an appeals court and then another one and if that doesn't decide things your way then in any question of a violation of your rights as an individual you can go all the way to the United States Supreme Court - the last trump, the ultimate assurance that justice has been done.

Well the reason for the boy's having to pad, figuratively, through this legal maze is also simple but it has not been noised abroad.

The Department of Immigration, in the first place, bungled its job which was, at once, to have the attorney general issue an order, put the boy aboard a Coastguard cutter and sail him back to Cuba.

Somebody in the department - not identified - hesitated for days, long enough for the exulting Miami anti-Castroites to get to a lawyer - in fact to a troop of lawyers - and start actions to question his legal standing, to have him declared a refugee from a dictatorship or a foundling in a free country whose relatives here had prior rights of custody, or a suit to have Congress declare the six-year-old - by joint resolution - an American citizen so as to make his deportation illegal. In fact all of the above.

Now lawyers, as you know, abound in America - more than in any known civilised country. Of the 55 men who met in Philadelphia to write the Constitution of the United States more than 30 were lawyers and ever since, in the Congress, they have bulked - or talked - more than in any other known institution of government.

It's why passing a law - or as they would say, finalising the decision-making process to achieve appropriate legislation - it's why even passing a law takes so long.

The consolation for the humble citizen is that when the law applies to you and you feel you've been cheated there's a whole school of American lawyers whose expertise is devoted exclusively to bending the rules of the law.

And, another instance, if you're rich and would like to be richer there is another type or brand of lawyer whose professional life is spent like a super ingenious spider to weaving invisible loopholes in the twilight zone between tax avoidance - which is legal - and tax evasion, which is criminal.

Well, you can imagine the length and verbosity of the many, many briefs that were filed through the several judges in the several courts that have heard, or may yet hear, the case of Elian Gonzalez.

Last Tuesday the first federal judge to deal with the case took over and we did assume that it was all done with.

The judge ruled that the purpose of the Miamian suit was eventually to grant Elian asylum but this was a matter that only the attorney general could decide and she had decided. Therefore, said the judge, the government's motion to dismiss is granted.

You can see him pronouncing before a packed court of reporters those words and tapping his gavel as the judge did in all the Perry Mason movies.

There's just one flaw in that happy picture that comes to mind: the judge didn't show up in the Miami courtroom, he didn't even have a clerk read his ruling. He did what judges and businessmen and shoppers and doctor's patients and you and I will increasingly do - he posted his opinion, his recipe, his judgement on the internet for all the world to see.

Well as I say we've waited three days to have Attorney General Reno order up the Coastguard cutter and let us see a couple of hours later the joyful picture on the tube of Elian arriving on the Cuban shore and being greeted by his dad and the cheering crowd whose sighs and visible ecstasy had been guaranteed ahead of time by order of Fidel.

But I learned years ago as a young reporter, after covering my second American trial, that even a jury's verdict is never necessarily the end - it can be only the end of the beginning.

As the immortal baseball sage Yogi Berra said: "It ain't over till it's over."

Maybe there's a long forgotten statute that can give the attorney general pause. Maybe the threat of some disgruntled Miami Cubans to find a way of taking it to the United States Supreme Court - maybe - who knows?

Well the day after the district court judge's ruling in the Elian case there was a true settlement - we believe - in another legal suit which was unique in producing the largest cash settlement of a sex discrimination case in American history.

It was a class action suit - a very classy class action suit - brought by 1100 women who said that in applying for jobs with the Voice of America - which is the government's overseas radio service - they had been turned down mainly because they were women.

Needless to say that that's a matter which, considering all the subtleties, and the subtleties that can be manufactured, in sex discrimination suits, that was going to take a prolonged hearing and it got it.

But on Wednesday the federal government threw in its hand and agreed to compensate the rejected women to the tune of $550m - oh by the way the suit was filed 23 years ago and the first two acts of discrimination, between 1974 and 1984 - so to be fair it took only 15 years to settle this tricky case.

What else about the ability of American courts to act, as one famous Supreme Court ruling put it, "with all deliberate speed."

Well thanks to the mercies and precautions of the appeals courts the average interval between a death sentence and the man's being put to death, the average interval is 21 years.

Perhaps these simple facts may help us all appreciate the warning of the late great Judge Learned Hand - the most distinguished American judge who didn't make it to the United States Supreme Court.

Facing a bevy of immigrants, of newly-fledged citizens, he offered a word of advice: "No one," he said, "has greater respect, I dare to say, reverence for the law than I have.

"At the same time I urge you to try and go through your life in this country without ever going into litigation."

THIS TRANSCRIPT WAS TYPED FROM A RECORDING OF THE ORIGINAL BBC BROADCAST (© BBC) AND NOT COPIED FROM AN ORIGINAL SCRIPT. BECAUSE OF THE RISK OF MISHEARING, THE BBC CANNOT VOUCH FOR ITS COMPLETE ACCURACY.

Letter from America audio recordings of broadcasts ©BBC. Letter from America scripts © Cooke Americas, RLLP. All rights reserved.