The use of the word "controlling" in this context was a poor choice of words, in as much as the Judge has made an issue of the concept of the Attorney General's decisions as to law, as being "controlling". After reflecting upon this issue, it appears that the proper phrase to use in this instance, in lieu of the word "controlling" was "both representative and authoritative" for the following reasons.

     The fact that he did not use the words that were most obviously appropriate, is a sign that the judge is looking for any opportunity that presents itself to amplify the illusion of what is controlling concerning questions of law. The fact that he takes this opportunity to set forth this principle is another example of his propensity to misunderstand the importance of context.

     The subject referred to here doesn't have anything to do with the issue of what is controlling in terms of questions of law: Especially when you understand that there is no difference of opinion among any of the defendants, they are all uniformly of one mind on the question of denying Elian Gonzalez the opportunity to submit an application for asylum, and therefore no issue is raised concerning one position being "controlling" over another differing position. The question at hand has to do with reducing the number of defendants from several to one. It is a matter of simplifying his work.

     What he is trying to say here is that we have the actions of several people to deal with, but there is no need to analyze the actions of each one, because they are all of one mind, and they are all subordinate to the person at the top of the heap, all of them operating under the aegis of the Attorney General's authority, making it impossible to find fault with an underling, because the underling is simply following orders, so we will take the actions of the person at the top of the heap, and base our decision on what she did, i.e. the Attorney General. In other words, the actions of the Attorney General, in relationship to the full group of defendants, are "both representative and authoritative".

     Moving into the judges characterization of Attorney General Reno's decision we read:

     One comment here regarding this characterization: "including a six-year-old child who had recently lost his mother". This is not a proper characterization. This is a very truncated, and therefore distorted characterization. It is like trying to describe a human being while limiting yourself to a description of the person's big toe. Elian's mother lost her life trying to bring Elian to freedom. Cuba is a Totalitarian Police State. America is a free land. The mother was bringing the child from slavery into freedom. There is a long tradition of people fleeing from Cuba to the United States for this reason. Those are the facts. A proper characterization would have to point to these facts, because if the context is not properly established the issues cannot be properly resolved. This is not a small point. By leaving out this context, the Judge is illustrating his bias, his strong desire to shut out anything that might argue against the return of Elian to Cuba.

     And in regards to this: "found no evidence of abuse." Is the INS really qualified in such matters. Could only two in-person interviews ever come to a valid conclusion in this regard? Are abusers known to admit their abuses? I think the opposite is true. And it is very likely that if there was anything relevant in this regard, that all the people around Juan Miguel Gonzalez would be under the pressure of the Cuban government to remain silent.

     And in regards to this: "principles of international standards that support the presumption that a parent speaks for his or her child". International standards have no bearing in an American Court of Law. If "international standards" are recognized by the U.S. Congress, those standards will be written into the text of the law. If they are not written into the text of the law, whatever "international standards" might be, they have no relevance in the adjudication of United States Law. What bears on this case is U.S. Law as the U.S. Congress intended it to be applied.

     If a federal judge could be thought of as an artist, his pallette of colors must consist only of those provided by the U.S. Congress. It is no part of the United States Justice system for a federal judge to bring this ill-defined pallette of "international standards" into the equation and simply dip his brush into whatever paint pot fits his fancy. And the same goes for the Attorney General. International standards apply only to the extent that they are explicitly recognized by the U.S. Congress and codified into the body of the law in accordance with our legislative procedures.

     The Judge moves on, and comes to his first disposition of Count II:

     There are several points to make about this block of text, and we will do it in reverse order. First, consider the last paragraph:

     The Judge says that "the Attorney General's decision is controlling, see 8 U.S.C. § 1103(a), and thus dispositive of Count II." We have addressed this issue of what is and is not "controlling" about the Attorney General's decision concerning matters of law. You may remember that we identified this as the first flaw in the Judge's foundation, and that his conclusion regarding it was an illusion. Here he applies his illusion to support a conclusion that Elian's complaint in Count II can be disposed of.

     Make note of the fact that his justification for setting aside plaintiffs complaint in Count II, is based entirely on his belief that "the Attorney General's decision is controlling." Because this belief has no foundation in the law itself, as we have shown conclusively, this whole paragraph can be red-lined, struck out, for it is completely erroneous.

     But because he uses this foundation to support all of his arguments, this flaw casts a deep shadow of doubt upon the whole of the judge's conclusions regarding the interpretation of Section 1158.

     And sensing the weakness of his argument, the Judge goes on to provide an alternative reason for rejecting Elian's complaint in Count II. The ground upon which that alternative is constructed is no more solid than the ground upon which the previous conclusion was constructed, but we are getting ahead of our self in this regard. Before moving on the alternative, we need to point out two (2) additional flaws in the previous foundation. We will repeat the first two paragraphs from above:

     First, there is a contradiction in his metaphors in the second paragraph. The judge says that " ...The Attorney General's finding of incompetency on the part of Plaintiff, much like a federal court's determination of a prospective witness's capacity or competency to testify, is a threshold matter in need of resolution prior to the processing of Plaintiff's application ... ".

     If the reader has made the effort to read pages 1 through 33 of the opinion, I can assure you that this is where that effort starts to pay off. Reading the two foregoing paragraphs, one cannot help but remember the substantial and convincing effort the Judge made in batting down similar arguments when it came to the capacity and standing of Elian to bring this suit before HIS Court. Remember that the judge cited several precedents which held that while it can be said that a minor child does not have the capacity to sue, and while he may not even understand the full ramifications of the suit, that the law nevertheless recognizes that suits can be filed on behalf of children, notwithstanding the objection of their parents, in those cases when the parents have interests that appear to be detrimental to the interests of the child. These same principles apply in an equal manner to the issue of bringing forth a request for asylum on behalf of child. And it is a manifest error in the reasoning of this Judge that he would not apply those same principles to expose the flaws in the Attorney General's decision to deny Elian the opportunity to apply for asylum on the basis of the fathers objections which clearly represent a conflict of interest. These flaws all point to an abuse of discretion on the part of the Attorney General.

     Let us take a few minutes here to review what the judge brought up on behalf of Elian's right to bring this case in federal court. When discussing the issue of Elian's standing to sue, the Judge said the following:

     As this is an accepted principle in the body of the common law, it is far more applicable than any vague reference to "international standards." The Attorney General willfully ignores this well established principle in her decision to deny Elian the opportunity to apply for asylum. While the judge refers to it in order to allow Elian to enter into federal court, he conspicuously ignores its relevance when it comes to the issue of Elian's right to apply for asylum, and to have his asylum application adjudicated.

     In the course of discussing whether Elian qualifies as a "Real Party in Interest" the Judge says the following:

     All of these interests which the Judge is illustrating here on behalf of Elian's right to bring this case to federal court apply equally well when it comes to the issue of whether or not Elian ought to have the right to apply for asylum, and not have a parent (controlled by a communist dictator) stand in the way. Clearly, whether or not the child fully comprehends it, the child has an interest in securing a future in which he may realize the full range of his God-Given talents in an atmosphere of freedom.

     Next, the Judge finds that under Florida law, that a six- year old does not have the capacity to sue [pp. 26-28], but that this fact does not bar an interested party in bringing suit on the child's behalf. The Judge says:

     Again, these are not just words. These words have weight because they embody the quality of justice. There are situations in which the interests of child need to be protected, where the child is too young to be able to defend himself, where justice can only be served if the child's interest can be represented in court by another party. This principle undermines to a significant extent the Attorney General's contention that Elian's father is the only person who can speak for him. And the Judge makes a significant error in bringing up these principles to allow Elian's interests to stand in the dock in his court, but does not apply these principles to gauging whether the Attorney Generals decision was manifestly contrary to the law and an abuse of discretion. The judge continues in the context of the discussion of the issue of "next friend":

     The Judge continues:

     Again these are not just words. They embody a principle of justice. If justice is to be served in circumstances that are not normal, the normal order of things cannot apply. This is certainly the case in where a mother gives her life in helping her child escape from the clutches of a communist dictator, but the father allows himself to be used as a tool to lure the child back into the clutches of that very same communist dictator. And again, the Judge makes a significant error in bringing up these principles to allow Elian's interests to stand in the dock in his court, and specifically citing the presence of a "conflict of interest" no less, but does not apply these principles to the important task of determining how closely the Attorney General's decision has come to being "manifestly contrary to the law and an abuse of discretion".

     
The Judge ties up all of these principles in a neat little package in the conclusion to that portion of his opinion, as follows:

     Each of the principles which the Judge applies to this determination, apply equally to the determination that the Attorney General's decision, i.e. a) that Elian's application would not be heard, and b) that the only person who could speak for Elian was his father, who remains under the control of a communist dictator, was manifestly contrary to the law and abuse of discretion. The Judge erred by not applying these principles in a uniform manner. In fact on the face of it, it appears that the judge applied these principles in service to his own self-interest, in order to justify his involvement in this case, and then threw those principles out the window when it came to evaluating what was in the best interest of Elian Gonzalez.

     What could explain the fact that the judge thought these principles so important to bring forth to allow Elian into his federal court, but were of no importance when it comes to giving Elian access to the asylum application process? There is a huge contradiction here, that can only be explained by the distortions in thinking produced by the presence of a strong and counter productive bias on the part of Judge Moore.

     Having these contradictions in mind, we now return to the stream of analysis dealing with the judge's interpretation of Section 1158.

     Let us quickly review the words of the judge at the end of the section that we are in the process of reviewing here, from page 39 of the opinion:

     As noted above, the Judge went on to offer an alternative rationale for throwing out Count II. I would again note that he would not have went to the trouble to do this if he himself thought that the first rationale was sufficiently solid. After all, even a blind man can form an accurate conclusion as to whether his feet are planted on sand or concrete. And we will continue our analysis of that alternative:

     This entire argument regarding the obligation of a court to defer to administrative decision-making can be completely set aside on the basis of one simple principle. If the administrative decision is contrary to the law, then there is no obligation or duty of a court to defer to it. This is somewhat like soldiers in the field who are expected to obey orders, and this is the rule because 99% of all orders are lawful. But the soldier has no obligation to follow an unlawful order. In fact the soldier has a duty to oppose any unlawful order. Much like the duty of the judge in this case to strike down any administrative decision that is contrary to the law.

     Now, the precedent points to this duty. And the important point here is that all of the criteria listed are found in the administrative decision of the Attorney General, when you consider the fact that the Attorney General is ignoring all of the factors associated with placing a child back into the confines of a totalitarian police state from whence he had previously escaped. This is the criteria set forth by the Judge from the cited precedent:

     And moreover, I would point to these words: "in the absence of congressional intent indicating otherwise". There is an abundance of evidence of congressional intent in regards to the universally held view that Cuba is a totalitarian police state, and that it is one of the international communities most audacious violators of human rights. One simply need to turn to the Cuban Democracy Act, codified in the United States Code, Title 22, Chapter 69. For example consider Section 6001, Findings, Paragraphs (1) and (2):

     The Attorney General's decision is manifestly defiant of this Congressional finding, willfully ignoring the reason that people flee from the island prison. Because there is no absence of congressional intent in this regard, there is no basis upon which the Court has any obligation to defer to the Attorney General's finding that Elian must be returned to his father in Cuba (or to a father that will take him directly back to Cuba.)

     Moreover, there is an abundance of information available from the U.S. Department of State and independent human rights organizations, and we have provided links to these above, that catalog the wide variety of human rights abuses, many in excruciating detail, all of which defines the character of the Castro Regime, all of which the Attorney General has ignored. The stubborn insistence on ignoring this information fits the definition of what is arbitrary and capricious.

     What defies understanding in this particular respect, is the fact that while the U.S. Department of State worked tirelessly during the month of April 2000 to get a resolution passed before the United Nations Human Rights Commission, condemning Cuba for its human rights abuses, the U.S. Attorney General worked tirelessly to find a way to send Elian Gonzalez back to Cuba.

     What defies understanding in this particular respect even more, is the fact that even as the U.S. Justice Department files briefs before the 11th Circuit Court of Appeals arguing earnesly for the outcome that the dicatator Fidel Castro desires, the U.S. Department of State has issued its annual report on terrorism, and Cuba is listed as a supporter of terrorism, alongside the likes of North Korea, Libya, Iran and Iraq.

     Moreover, we know without a doubt, and it has been affirmed in a public statement by a Cuban diplomat, that in Cuba, a child is the property of the state. In other words, the child is the property of totalitarian police state, which alone claims custody of the child. In light of this statement alone, to hold stubbornly to the view that the issue is just an issue of custody involving the father only, borders on intellectual dysfunction, which is well beyond the definition of the words "capricious" or "arbitrary".

     The Judge continues:

     First, we must note that there is nothing "silent or ambiguous" about the Cuban Democracy Act. There is no question that the U.S. Congress believes, and has so stated in the U.S. Code, that the totalitarian police state maintained by Fidel Castro is hostile to the interests of the Cuban people, including children. Therefore, the conclusion to reach concerning Attorney General Janet Reno's decision to send Elian back to Cuba cannot be considered a "permissible interpretation of the statute." Against the backdrop of what we know about Communist Cuba, in particular how the children are trained up to serve the interests of a communist revolution whose goal is to undermine all the democracies in Latin America, we must ask ourselves if it is possible that the Congress could have intended the power of the Attorney General to be used to send a child back into that totalitarian police state. Given the nature of the communist regime, and given our history with that island prison, the answer has to be No.