
          Cubans in Limbo
          By Dolman, JoeJoe 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.

          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.
          
        