Cubans in Limbo

By Joe Dolman

Vol. 10, No. 3, 1988, pp. 8-9

The Atlanta Federal Penitentiary was weirdly luminous in the bleak November dusk. U.S. Army floodlights, hauled in on long flatbed trailers, bathed its granite walls and gray cellhouses. Hovering helicopters played thin beams of light into the prison's courtyard. Yellow flames from the remains of the industrial building flickered over rooftops and walls. And across McDonough Boulevard, with this scene as a backdrop, dozens of television reporters stood before their own spotlights, nervously waiting to do 6 o'clock "live shots."

The Cuban detainees had finally won our attention. In Oakdale, La., one federal lockup already lay in smouldering ruins as a hostage standoff there entered its third day. In Atlanta, inmates held more than a hundred prison workers captive. They were making a point: They would not be permanently separated from their families and deported to an uncertain future in Cuba without a fight.

It would be eleven more days before every hostage was freed unharmed. The riots were harrowing, destructive and wrong-but in the end, they did force the government to acknowledge one of the strangest lapses of justice in our history.

Since the 1980 Mariel boatlift, the Justice Department has imprisoned thousands of "excludable aliens" arbitrarily and indefinitely. Some were classified as dangerous and locked up soon after they landed here. Most were "paroled" into society but then ran afoul of police or immigration officials. Because Castro had forbid their return to Cuba, the feds held them without sentences in prisons and jails across the country. By November, six thousand waited in this limbo.

A few were dangerous: murderers, rapists and the like. Others had been convicted (or merely accused) of crimes as minor as marijuana possession. Some had done nothing more than violate technical parole rules. Many had family members in the United States. They were a collection of good people and bad, hardened criminals and victims of circumstance, hopeful strivers and chronic misfits.

Yet the government made no distinctions among them. As excludables, all were in effect legal nonpersons. Despite their years in the United States, they had no constitutional rights in the rule of the federal courts. They were thrown together in squalid lockups to be held until the Justice Department decided that freedom was appropriate, or until the day that Castro might allow their deportation to Cuba.

If this travesty is unique in our history, it does have an ugly cousin: the internment of 120,000 Japanese-Americans during World War II. The similarities are instructive. In both instances, the government-faced with an unfolding crisis-summarily took action against a specific ethnic group for reasons that seemed to make sense at the time. In neither instance did Congress, the Supreme Court or most citizens lift a hand to protest such un-American denials of freedom. On both occasions, the nation let its apprehensions overwhelm its ideals.

In 1980, crime was our great fear. It was not wholly imagined. Castro had sprinkled a small number of criminals (as well as mental patients) among the 125,000 refugees who left through the port of Mariel. Other refugees, accustomed to life in a totalitarian society, hadn't a clue how to provide for themselves in a free society. Some turned to crime.

In 1942, subversion was the great fear. This was not an irrational worry, either. America was still reeling from the surprise attack on Pearl Harbor. Our West Coast might easily have been the next target. Anything was possible. Moreover, many Japanese-Americans did maintain close ties with the old country. Where did their loyalties lie? On signal, could a group of saboteurs mine our harbors? Bomb our oil pipelines? Destroy our shipyards? It was not beyond question.

The problem is: We panicked. In both cases, we decided the Bill of Rights was not up to the challenge at hand. The peculiarities of each case gave officials a way to wiggle out of their constitutional obligations, and they did.

On Feb. 19,1942, President Roosevelt acceded to a military request and authorized the Army to exclude, when necessary, any citizen or alien from any area on the West Coast. Instead of using due process of law to determine who was safe and who was not, the government simply rounded up all Japanese-Americans-indiscriminately-and packed them off to relocation camps.

A military officer criticized the internments in the October 1942 issue of HARPER'S. "The entire 'Japanese Problem' has been magnified out of its true proportion," he wrote, "largely because of the physical characteristics of the people. It should be handled on the basis of the individual, regardless of citizenship, and not on a racial basis." Yet two years later, the Supreme Court ruled that wartime necessity indeed justified this mass detention.

The Cubans face a different predicament. Excludable aliens have no constitutional rights because the United States can't logically be expected to open its court system to any foreigner who shows up at its borders. But what happens when the government is unable to deport the people it wishes to exclude? There is only one reasonable approach. After a certain length of time, the government must trust the efficiency of its Bill of Rights. That is, it must prove its case against each person and, if successful, must ask a judge for an appropriate sentence. Yet forty years later, the Cubans fared no better before the Supreme Court than did the Japanese-Americans. The court upheld the denial of due process for Mariel detainees.


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As with the Japanese-Americans, prejudice is surely an underlying cause for such treatment. Gary Leshaw, lawyer for detainees in the Atlanta penitentiary, observed that if his clients were Scandinavians, say, instead of Cubans (many of them black), the government would never think of locking them away for years on end without due process.

With time, Americans have grown ashamed of the wartime internment. Last September, the House voted to appropriate $1.25 billion in reparations [In April, the Senate also approved reparations] to 62,000 surviving internees. The vote came after U.S. Rep. Norman Mineta of California read aloud a letter from his father, which recounted the family's experience in a relocation camp: "We lost our homes, we lost our businesses, we lost our farms, but worst of all, we lost our most basic human rights."

The Marielitos may also wait a long time for a public apology. Nevertheless, in an odd way, the November riots did help turn public opinion more to their favor.

The disruptions began when the government announced it had reached a deportation agreement with Cuba. Typically, no one had thought to brief the inmates. Only 2,500 Cubans may be deported, which means most detainees will stay here. But the inmates didn't know that. All they knew was that they could be separated forever from their families (who would stay here) and returned to a place where they would have no guarantees of safety.

So they fought. Suddenly, the older exile community of Miami, fiercely anti-communist, embraced their cause. With that, the Justice Department began to show a new flexibility. And a revisionist line on the Marielitos emerged: Any group that preferred American imprisonment to a life in Castro's Cuba perhaps deserved the benefit of the doubt.

Today, the government has established a review process to determine who should be deported, who should remain behind bars here, and who should go free. It isn't due process, and it is still inadequate-but it is the government's best attempt yet to deal fairly with the Cubans. Many prisoners are now scheduled for release. Meanwhile, congressmen Pat Swindall of Georgia (a religious right conservative), Romano Mazzoli of Kentucky and Bob Kastenmeier of Wisconsin have introduced a bill that would give the Mariel detainees certain due process rights. The measure is their best chance yet for fairness.

When World War II came to a close, not a single Japanese-American had been convicted of a crime against the United States. When the prison riots of 1987 ended, not a single hostage had been harmed. In retrospect, neither the Japanese-Americans nor the Cubans were as dangerous as we had imagined. But hindsight isn't good enough. At a recent symposium on the detainees, Ira Glasser, executive director of the American Civil Liberties Union, put it this way: "The only true test of morality is when it counts. The only true test of morality is to take the fair position during the time that the victims are suffering, and not afterward, because there is no way to repair what happened."

How can we recognize the fair position when it counts? We can start by adhering to constitutional principles-even when our instincts tell us to panic.

Joe Dolman writes editorials for the ATLANTA CONSTITUTION. His observations on the Cubans in federal prisons earned a nomination for the Pulitzer Prize.