The NewsHour with Jim Lehrer

RAY SUAREZ: Good evening, I'm Ray Suarez. Jim Lehrer has the day off. On the NewsHour tonight: Brzezinski versus Eagleburger on what to do about Chechnya; a Susan Dentzer report on the risks of gene therapy; and a very big argument over a very small boy. It all follows our summary of the news this Wednesday.

NEWS SUMMARY

RAY SUAREZ: Syria and Israel agreed today to resume peace talks for the first time since 1996. President Clinton made the announcement at a State Department news conference. He said Israeli Prime Minister Barak and the Syrian foreign minister would meet in Washington next week for the initial round of talks. Mr. Clinton called it a truly historic opportunity.

PRESIDENT CLINTON: These negotiations will be high-level, comprehensive and conducted with the aim of reaching an agreement as soon as possible. Israelis and Syrians still need to make courageous decisions in order to reach a just and lasting peace. But today's step is a significant breakthrough, for it will allow them to deal with each other face to face, and this is the only way to get there.

RAY SUAREZ: The President also said he's convinced Israel and the Palestinians can reach a final peace agreement. He welcomed Israel's decision to stop issuing new construction permits for Jewish settlements. But, the Palestinians again called for a total freeze on all settlement construction. Mr. Clinton also touched on Russia's escalating military campaign in Chechnya. He warned the attacks would prove very costly and would isolate Russia from the rest of the world. But, he said it would be a mistake to cut off U.S. aid to Moscow. Meanwhile, Russian military officials said troops had seized a rebel stronghold near the capital, Grozny, and planes and artillery continued to pound the city. The Russians have given residents until Saturday to leave the city; they said today that ultimatum applies to rebels, not civilians. Mr. Clinton was also asked about the fate of a 6-year-old Cuban boy; he fled Cuba with his mother and stepfather last month, but the adults died when their boat sank off the Florida coast. The boy is now with relatives in Miami, but his biological father and the Cuban government have demanded his return. Mr. Clinton said he hoped U.S. and Cuban officials would put politics aside and consider the boy's best interests. We'll have more on the story later in the program tonight. President Clinton also told reporters a national class- action lawsuit against gun makers is not meant to win money from the industry or bankrupt it. He said the goal is to end gun violence in poor neighborhoods by forcing the industry to change distribution and marketing practices and improve safety features. The White House is organizing the suit on behalf of about 3,100 public housing authorities; 29 cities and counties are already suing manufacturers. The National Rifle Association condemned the President's action.

A jury in Memphis found today the murder of Martin Luther King, Jr. was a conspiracy and not the work of a single assassin. The verdict came in a wrongful death lawsuit that the King family filed against a Memphis man. Lloyd Jowers once claimed he paid someone other than James Earl Ray to kill King. Relatives of the civil rights leader wanted unspecified damages, but they also hoped the suit would force a new investigation into the 1968 killing. The National Institutes of Health opened hearings today on gene therapy and the death of an Arizona teenager. The N.I.H. and the Food and Drug Administration are investigating the case of 18-year-old Jesse Gelsinger. He died in September after undergoing experimental treatment for a rare liver disease. It's the first reported death directly caused by the experimental therapy. An N.I.H. advisory panel is considering new rules for gene therapy trials. Food and Drug Administration we'll have more on this story later in the program tonight. The Scottish judge in the Pan Am bombing case rejected a defense motion today to reduce the charges. But he agreed to delay the proceedings until May. That's to give lawyers for the two Libyan suspects more time to prepare. The Libyans face murder and conspiracy charges. 270 people died when Flight 103 exploded over Lockerbie, Scotland, in December 1988. That's it for the News Summary tonight. Now it's on to: What to do about Chechnya; gene therapy risks; and the U.S.-Cuba face-off over one small boy.

FOCUS - WAR IN CHECHNYA

RAY SUAREZ: The American and world response to Russia's offensive in Chechnya: We start with a report from the Chechen border by Robert Moore of Independent Television News.

ROBERT MOORE: Today in the early morning mist just a few hundred meters from the front line, Russian soldiers could be seen trying to keep warm and bracing themselves for another day of heavy fighting deep inside Chechnya. This is a war of bombardment. Their mortar positions are already dug in as the Russians struggle to keep their own casualties to a minimum. Tonight, after days of heavy artillery and mortar fire, the Russian high command has broadcast news: It has seized the key strategic town of Orasmartin. The target now will be Grozny itself -- no frontal assault, rather a relentless bombardment designed to destroy Chechen resistance from afar. Refugees are still only emerging from Grozny in small numbers, despite the Russian threat to destroy the Chechen capital from this Saturday. Talk of a safe corridor for civilians seems meaningless for a people clearly fighting to even move. Tonight this border crossing remains a desolate spot, closed by the Russian military to the flow of refugees. But the real question is whether Saturday's ultimatum is just a warning, part of the brutal, psychological warfare, or whether it's a real deadline that might trigger a new and horrifying bombardment of Grozny. All the signs are that the Chechen guerrillas are digging in, preparing to make a last stand in the rubble of Grozny.

RAY SUAREZ: And now Margaret Warner takes the story from there.

MARGARET WARNER: President Clinton was asked today whether there was anything more he or the West could do to dissuade Moscow from carrying out its threat to launch a final assault on Grozny this Saturday.

PRESIDENT CLINTON: Well, I haven't decided what else I can do. I do think, first of all, they may believe because their position in the United Nations and because no one wants them to fail and have more problems than they've got that they can do this, but, you know, most of life's greatest wounds for individuals and for countries are self-inflicted. They're not inflicted by other people. And I will say again, the greatest problems that the Russians will have over Chechnya are, one, I don't think the strategy will work. I have never said they weren't right to want to do something to the Chechen rebels. But I don't think the strategy will work, and, therefore, it will be expensive, costly, and politically damaging internally to them. Secondly, it will affect the attitude of the international community over a period of time in ways that are somewhat predictable and in some ways unpredictable, and that is a very heavy price to pay, because it works better when everybody is pulling for Russia. It's a great country, and they have all these resources and talented and educated people and yet they've got a declining life expectancy, as well as all these economic problems. And I think it's a bad thing for this to be the issue, the number one issue both inside the country and in our relationship with them. So I do think it's going to be a very costly thing.

MARGARET WARNER: For further perspective on the Chechnya conflict, and what the United States should do, we turn to: Lawrence Eagleburger, Secretary of State in the Bush administration, and Zbigniew Brzezinski, National Security Adviser to President Carter.

MARGARET WARNER: First, Mr. Secretary, decipher the President's words for us. How do you read the administration's policy here?

LAWRENCE EAGLEBURGER: What I think I heard just a few seconds ago was that this is really a very difficult and tragic situation and we aren't going to do anything about it.

MARGARET WARNER: Is that what you heard?

ZBIGNIEW BRZEZINSKI: What I heard was indifference and ignorance. Indifference to the genocidal carnage that's now taking place, and ignorance of the historical roots of this problem, of what has been happening, and of the political and geo-political implications of what might happen as a consequence of this war.

MARGARET WARNER: Does the U.S. have a dog in this fight? I mean, what does the U.S. -- and what are the western interests here?

LAWRENCE EAGLEBURGER: Well, I think Mr. Brzezinski and I may disagree on this fundamentally. Do we have a dog in the fight -- sure we do in the sense that we're dealing with Russia, which is a major power, which is in serious difficulties domestically and all of that adds to the confusion of what we're going to do with Russia in the next decade. But insofar as this specific issue is concerned, my own view of it is that fundamentally, while I had little trouble interpreting the President, I'm inclined to think his basic judgment is correct, and that, you know, the last thing I think we want to see is a Russia that begins to come apart at the seams because of issues such as Chechnya, where you have people that have decided they want to be independent, and many of them not very nice people. So my own view of this is, this is going to hurt the Russians in terms of public opinion. There's no question about it. They are doing it in their normal ham-handed way, than will hurt, but insofar as the justice of the fundamental cause, I personally think it's on the Russian side. I suspect Mr. Brzezinski will agree with that.

MARGARET WARNER: Are his suspicions correct?

ZBIGNIEW BRZEZINSKI: I think on that aspect Larry is correct. He's not on the rest. First of all, I think there is a moral issue involved here. There's a moral issue, as there was a moral issue in Kosovo or in East Timor: Namely, how should a people be treated by other people. And we're dealing here with a small nation that has resisted oppression for a long time, that was deported in Toto by Stalin, that was subjected to carnage four years ago and has been treated extremely badly. And incidentally, you missed perhaps the most telling sentence in the President's press conference, which I think is going to ring loud. He said, "I have no sympathy for the Chechen rebels." And that ignores real historical ignorance and moral indifference. But it's the political and geopolitical consequences which I think mean to me we should be concerned. If this war goes on and it succeeds, it's going to drive Russia into the hands of the KGB and the army.

MARGARET WARNER: Excuse me. When you say if it succeeds, if you... you mean if Russia succeeds in...

ZBIGNIEW BRZEZINSKI: Massacring the Chechens, which it probably will succeed in doing, actually. I think it will mean the victory will be celebrated through the takeover of power by the worst elements in Russia, of which Colonel Putin, the KGB colonel is a symbol, and he will be the next president of Russia. And, secondly, in the region, and particularly in the south caucuses, there's going to be greater instability. And we and the international community have a shared interest in an open Caspian Sea region, an open Central Asia, which we can reach. But if southern caucuses is destabilized and subjected again to Russian control, that access will be shot, and all of the talk about the Baku-- pipeline...

MARGARET WARNER: You're talking about the oil pipeline.

ZBIGNIEW BRZEZINSKI: The oil pipeline, the existing oil pipeline Baku -- to Georgia will no longer be accessible to the international community. So there are some stakes. It doesn't mean we should go to war with Russia, but I think the analogy is closer to that of East Timor, consorted international pressure, criticism, some sanctions induced Indonesia to do the right thing, and the same should be tried here.

MARGARET WARNER: But you think it's not only in Russia's interest but in our interests for Russia to keep Chechnya within Russia?

LAWRENCE EAGLEBURGER: Yeah. I think that the beginning of the dismemberment of the Russian federation, which the Chechnya situation could become, could lead to all sorts of instabilities. Now, you know, I don't want to sounds like Chicken Little, which my friend over here did, the sky is falling, I don't happen to believe that the situation is as bad as he would describe in terms of strategic outcome. I think the human aspects of this case are miserable, and the Russians are doing what they have done so many times in the past, which is hitting a tack with a sledgehammer, perhaps. But in terms of the fundamentals, I think there is an important aspect here in terms of one, the stability of the Russian Federation, first. Secondly, and Zbig is right in terms of the historical aspect of Chechnya. But I talked yesterday to a representative of a voluntary organization. I don't want to identify him because I don't want to get him in trouble, but who has been working in Chechnya. He says the Chechnya rebels are by and large very unpleasant types, that there's a lot of drug traffic that goes through there. They are in fact many of them fundamental Islamists of the worst sort. And that in fact in his judgment, and he's not prejudiced, I think. He said what he's seen in the most recent months is that the Chechens themselves are getting very unhappy with the guerrillas that are running this war at this point. So I think there's more balance here, more to be looked at here than simply this rather bleak strategic picture. Zbigniew is correct.

MARGARET WARNER: What about the point Dr. Brzezinski made that if Russia succeeds in this military campaign, it will also embolden those forces in Russia?

LAWRENCE EAGLEBURGER: Well, see, again, and I don't want to argue with one of the premier academic people on Russia and the Soviet Union and so forth, but I just don't see it that way. I mean, it may embolden them. On the other hand, I world argue fairly strenuously, I think, that if the Russians now fail in this effort, which by in large I gather has very substantial public support in Russia, if I they fail in this effort, it would seem to me that leads to some consequences that may encouraging precisely the people he says will be edge encouraged if they win. I think it's an unpleasant mess. Number one, I don't think there's a great deal we can do about it. But number two, I do think we need to understand that there are some fundamentals on the Russian side we need to consider, and frankly, while I don't often agree with President Clinton, I think in this case he was making the point, and I think properly, that there are some things we need to understand as far as Moscow is concerned.

MARGARET WARNER: But you do think there is something we can do. Draw that out a little more.

ZBIGNIEW BRZEZINSKI: Of course. There's a whole range of things that can be done between doing nothing and doing too much. The issue is what is at stake. And if this war succeeds, there will be a sense of triumphalism in Russia that will greatly help the worst elements in Russian politics. It's not a accident that the best people in Russian politics, like Yavlinksy or like Sergei Convalyos -- the human rights leader of Russia -- are adamantly against this war. But it is true that the Russian public has been stirred up by the worst chauvinist sentiments. And this is the kind of development we should not be encouraging.

MARGARET WARNER: But the President's been saying, you'll pay a heavy price. All the European leaders are going around saying this. Kofi Annan, the U.N. Secretary-general was on the phone with Ivanov, the defense minister. I mean, all jawboning them. What else should the West do?

ZBIGNIEW BRZEZINSKI: Well, the whole point is that it shouldn't be just words. Saying it will be a heavy price and then there being no price is, in fact, loss of credibility and self-defeat. There are things we can do. Take again the East Timor example. We said to the Indonesians, it's going to adversely affect your access to the world financial markets. It's going to affect your cooperation with us. It's going to affect your military connections with us. The same thing applies here. Russia needs IMF credits. The Europeans are, in fact, in favor of delaying them. The Germans and the French have been delaying them. They want Export Import Bank guarantees. They need that. They want to be accepted into the G-8 as a full member, a club of democracies when they're engaging in non-democratic conduct. The great many things, which can be done to convey some degree of pressure, which may not work, but which may discourage this form of conduct. And it seems to me if we are serious when we say that Russia will be paying a heavy price, there ought to be a heavy price. Otherwise it's empty words.

MARGARET WARNER: So what's wrong with some of those steps?

LAWRENCE EAGLEBURGER: Well, no, first of all, I don't disagree at all that we ought not be making threats that we don't intend to carry out. That's one of the things that this administration has done too much of all the last eight years. So I'm not... and if we're going to say it's going to require a heavy price, then I suppose we have to pay it -- or demand they pay it. But my point would be a different one. First of all, as far as the IMF is concerned, they're not getting anything now nor should they even if they walked out of Chechnya tomorrow because of the corruption that we've seen take place over the years with regard to those loans. Ex-Im Bank credits, we can cut those off. They won't mean much, I don't think. You watch the Europeans who are screaming bloody murder about how tough they're going to be. It will all turn out to be a wet biscuit and not much more than that, I think. I guess fundamentally what I'm saying is I can't think of any real punishments that we can impose upon the Russians that won't do first of all more damage to the long-term relationship between the U.S. and the Russians themselves, which after all we have to be careful about, if for no other reason than we have all of those nuclear weapons sitting there and we have to find ways to get rid of them. I mean, I can go through 18 reasons why we have to think about the Russian relationship in more than the context of Chechnya. That isn't to say that I don't think what they're doing is wrong and horrible. I don't think there's much we can do about it, number one, and number two, I would hope at some point we will learn there are some battles and conflicts we ought to stay out of. And this is one. If we want to say it's reprehensible, we should say that. But in terms of trying to do anything, to affect events, I don't think, one, there's much to do. And two, if we tried it, I think it would do us more damage than good.

MARGARET WARNER: All right, gentlemen. We have to leave it there. Thanks very much.

RAY SUAREZ: Still to come on the NewsHour tonight: Gene therapy risks and an international custody battle.

FOCUS - GENE THERAPY

RAY SUAREZ: Now, an inquiry into the developing science of gene therapy, reported by Susan Dentzer of our health unit, a partnership with the Henry J. Kaiser Family

Foundation.

SUSAN DENTZER: Ever since the notion of gene therapy first surfaced in the 1980's, the prospects have been tantalizing. Scientists had already determined that much of human disease had its root in faulty or even missing genes. So it seemed only natural that they begin looking to prevent or cure illness by injecting healthy copies of genes into the body.

DR. FRENCH ANDERSON: We then went through a period of great enthusiasm and optimism.

SUSAN DENTZER: Dr. W. French Anderson is director of gene therapy at the University of Southern California's medical school. A preeminent researcher in the field for more than two decades, he presided over the first experimental treatment of a human in 1990. The patient was then-four-year- old Ashanti DeSilva, who suffered from a condition known as severe Combined Immune Deficiency, caused by a defective gene. To cure her, Anderson and his colleagues located healthy copies of those genes, injected them into viruses specially engineered to serve as package- carrying messengers; then transferred the viruses into DeSilva's body.

DR. FRENCH ANDERSON: That was very successful. Ashi is now a delightful young lady. She leads a totally normal life, and she's grown up. That was now nine years ago. She's 13 years old, and delightful.

SUSAN DENTZER: Based on DeSilva's case, newspapers and magazines hailed gene therapy as a breakthrough, but as with much of medicine, the initial euphoria about gene therapy has been tempered by subsequent events. The latest was the death last September 17th of Jesse Gelsinger. The 18-year-old died after undergoing gene therapy for a rare metabolic disorder at the University of Pennsylvania's Medical Center. His is the first death that has been directly attributed to the effects of the gene therapy rather than to the patient's underlying disease. Penn officials say Gelsinger's treatment sparked a severe reaction of his immune system, a so-called inflammatory response that caused multiple organs in his body to fail. But the death has also raised scores of questions that are now the subject of a federal investigation. Dr. Kathy Zoon of the Federal Food and Drug Administration oversees the roughly 200 gene therapy clinical trials now underway in the United States. She told us that an FDA inquiry suggests that researchers at the university violated strict trial guidelines, or protocols.

DR. KATHY ZOON: Right now we have preliminary evidence that there have been these protocol violations. But we need to confirm the information and thoroughly investigate it before we can actually have a complete understanding of what transpired.

SUSAN DENTZER: If these protocols had been followed, she says, Gelsinger may never have been enrolled in the experiment in the first place. And Zoon says it may be that the trials should have been halted for other reasons. Researchers at Penn denied that any protocol violations had taken place. While the investigation continues, events surrounding the boy's death are receiving a thorough airing at a three-day meeting that began today. Taking place at the National Institutes of health in Bethesda, Maryland, the meeting was called by the Recombinant DNA Advisory Committee or RAC. That's a federally-appointed group of experts who advise the government on gene therapy research. Gelsinger's death has also highlighted other important concerns in the field of gene therapy. These include alleged gaps in federal oversight and apparent delays by some researchers in reporting to the government when patients have had serious reactions. Abbey Meyers is president of the National Organization for Rare Disorders, incorporated, which advocates for patients afflicted with many genetically-linked diseases. In the past, she has also served on the RAC.

ABBEY MEYERS: Things happened behind closed doors that should have been out for public discussion, public debate. It's raised so many questions about the science, about the ethics.

SUSAN DENTZER: This isn't the first time that the safety and effectiveness of gene therapy has been called into question. For all the hope that accompanied the first experiment on DeSilva, most subsequent gene therapy trials essentially failed. For example, patients with another genetic disease, cystic fibrosis, had such severe reactions to the therapy that trials were halted. And efforts to treat patients with advanced heart disease, cancer or AIDS didn't stop progress of the underlying illness.

DR. FRENCH ANDERSON: By about 1996 there had been about 300 clinical protocols approved and over 3,000 patients had been treated, and the vast majority died.

SUSAN DENTZER: One key problem dogged many of these trials: Failure to get healthy copies of genes into enough cells of the body to reverse the underlying disease. That led to a flurry of experimentation with the microscopic viral messengers that were being used to carry healthy DNA into the body. Researchers call these messengers vectors. One type of vector, or messenger, that proved very effective at transporting its genetic cargo was a common cold virus known as an adenovirus.

DR. FRENCH ANDERSON: Because it's a human virus... many of us have adenovirus in our throats all the time... because it's a human virus, it is able to get into a broad range of cell types.

SUSAN DENTZER: And the more viruses injected into the body, the better job they did at transporting genes. But high doses also ran the risk of irritating the body's immune system. Ultimately, this trade-off between viral dose and effectiveness apparently played a role in the death of Jesse Gelsinger. In the mid-1990's, scientists at the University of Pennsylvania proposed using very high doses of the adenovirus in a clinical trial of patients with so-called OTC Disease. The disease is caused by a genetic defect that prevents the liver from ridding the blood of ammonia, a normal byproduct of metabolism. Although the disease can be controlled through diet and medication, in infants, in particular, it is often fatal. Researchers at Penn proposed to inject progressively higher dose of adenoviruses and healthy genes into patients' bodies to determine the effects.

ABBEY MEYERS: The RAC had reviewed the protocol back in 1995, had decided that the protocol should not be approved.

SUSAN DENTZER: But the FDA disagreed on the basis of the scientific evidence and let the trial go forward. 17 patients with OTC then proceeded through the trial before Jesse Gelsinger.

DR. FRENCH ANDERSON: Seventeen patients had received the vector without problems, and this was the eighteenth and last patient. And it is still unknown why this patient had such a massive reaction.

SUSAN DENTZER: The FDA's preliminary findings suggest some possible reasons why. For example, the FDA's Zoon says tests performed on Gelsinger before he entered the trial showed that ammonia levels in his blood were too high. That could have meant that Gelsinger's liver was already functioning too poorly for him to have been admitted into the trial. What's more, Zoon says,earlier patients were having such toxic reactions to the increasingly high doses of adenovirus. As a result, under the agreed-upon protocols, the trials should have been stopped.

SUSAN DENTZER: If all of this is true and borne out in the rest of the investigation, it suggests that Jesse's death really was a needless death.

DR. KATHY ZOON: Well, I think we don't know that those deviations from the protocol could be causal. So that has to really be investigated very carefully and understood. But I think I am very concerned about how that was carried out, and how it affected the safety of the patient.

SUSAN DENTZER: Jesse Gelsinger's father, Paul Gelsinger, had this to say about the researchers at Penn.

PAUL GELSINGER: He was treated fine at Penn. They did everything they could to help Jesse. What happened was totally unforeseen. They had no indication that anything would happen like what happened to Jesse.

SUSAN DENTZER: As profound as are these safety and ethical issues surrounding the experiment at Penn, there is an equally strong desire on the part of many that experimentation in gene therapy continue.

ABBEY MEYERS: The one thing that Jesse's death should not do is stop gene therapy research. That would be the worst outcome.

SUSAN DENTZER: And in fact, for all the setbacks to date, gene therapy's potential still seems enormous. For example, these researchers at Georgetown University's Medical Center are experimenting with a gene known to suppress tumors, called p53. They inject the gene into mice that have been given human prostate cancer and that have also been treated with radiation, a standard treatment for the disease. So far, the results appear dramatic, says biochemist Kathleen Pirollo of Georgetown.

KATHLEEN PIROLLO: You can see, compared to the tumors that we saw in the other animals, these tumors are virtually completely gone on these guys, and what we're hoping, and from what our past experience has been, that over the course of the next few weeks these tumors should completely disappear.

SUSAN DENTZER: Based on these results, the first federally-sponsored clinical trial of this approach in humans with prostate cancer is expected to begin within a year. And still other patients are continuing to pin their hopes on gene therapy for treatment of cancer. 42-year-old David Lunneborg is undergoing gene therapy for melanoma, a deadly skin cancer, at the Mayo Clinic in Rochester, Minnesota.

DAVID LUNNEBORG: I am hoping it's a cure, but if it can just can keep it at bay for years or two years until there is a real true cure, that's that we're looking for.

SUSAN DENTZER: At today's RAC meeting, participants reported on new findings on adenoviruses. Tomorrow they will take up the Gelsinger case.

FOCUS - TUG OF WAR

RAY SUAREZ: little boy caught between Cuba and America. We start with some background.

RAY SUAREZ: The U.S. and Cuba began Thanksgiving Day when American fishermen rescued Elian Gonzales two miles off the chest of Fort Lauderdale. The five-year-old boy had been floating on an inner tube for two days without food or water. His mother and stepfather and nine others died in the attempt the flee Cuba when their overloaded motor boat capsized. The boy and two adults survived. The U.S. Immigration and Naturalization Service has placed Gonzales in the custody of relatives in Miami's little Havana neighborhood, though his father is still alive in Cuba. That prompted an angry response from President Fidel Castro and his government.

PRESIDENT FIDEL CASTRO: (speaking through interpreter) All our friends are arranging for a committee to secure the release of this boy, kidnapped by U.S. authorities. If they have any sense, they will act before 72 hours, or there will be millions of people in the streets, demanding the boy's freedom.

RAY SUAREZ: Castro later described the deadline as wise advice, rather than an ultimatum. He called the U.S. actions political suicide and threatened to boycott upcoming U.S.-Cuban migration talks unless the boy is returned. For the last four day, thousands of Cubans have gathered at Castro's behest for anti-American protests, demonstrations occurred in the capital of Havana and in the town of Cardinas, where Elian lived and went to school. The boy's father also appealed for his son's return.

JUAN MIGEL GONZALEZ, Elian's Father: (speaking through interpreter) If I have to go get him, I will. This is where his family is. This is where his loved ones are. This is where he was raised.

RAY SUAREZ: Cuba says the U.S. violated a 1994 joint accord known as the Wet Feet-Dry Feet Policy. If Cubans are caught at sea, American authorities are to send them home. If they make it to shore, they're guaranteed U.S. entry. For now, Washington has resisted the repatriation demands and says the boy's fate lies with a Florida court that oversees child custody cases.

JAMES FOLEY, State Department Spokesman: Our concern is for the welfare of the child, and we would like to see a decision on the case consistent with that goal. We do not accept the ultimatum issued by Fidel Castro through the press on Saturday night.

RAY SUAREZ: Meanwhile, Elian celebrated his sixth birthday on Monday. His relatives in Miami want him to stay there and take advantage of the opportunities.

MARISLEYSIS GONZALEZ, Elian's Cousin: A future, a better lifestyle and a education, everything that nobody has had there for plenty of years.

RAY SUAREZ: For more on the Cuban boy in America, we turn to Jose Pertierra, an attorney who specializes in immigration and human rights law; Yvonne Conde, author of "Operation Pedro Pan," a book about people, such as herself, who were sent to the United States from Cuba as young children in the years following the communist revolution; and Otto Reich, senior associate at the Center for Strategic and International Studies. He served as ambassador to Venezuela and special adviser to the secretary of state during the Reagan administration.

Jose Pertierra, as a lawyer, this is complicated case, a simple case for you?

JOSE PERTIERRA, Immigration Lawyer: Well, if you look at it from the point of view of the law, it's not a complicated case. The law says that the father is presumed to have proper custody of this child unless he's shown to be an unfit parent, and there's absolutely no evidence in this case to demonstrate that this man is unfit to be the custodial parent of Elian Gonzales. What complicates the matter is that the little boy happens to be Cuban, and the rules of the game are different somehow in this country when it comes to Cuban immigrants. That's what's complicated. If you look at it strictly from the point of view of immigration law and family law, I think it's crystal clear that custody belongs to the father.

RAY SUAREZ: But Otto Reich, you would make a distinction between what the law says in black and white and a moral imperative?

OTTO REICH, Center for Strategic & International Studies: Well, I think we will see what the law says, because as I understand it, there's going to be a hearing in Florida court. What's going to be interesting, and this is the difference between the United States and Cuba, is whether the Cuban government allows the father to come and present himself and present his case in that court. And I think it's very likely that if there is no coercion, which is the common case in Cuba, that there is coercion, that the father may very well ask for political asylum. And Fidel Castro knows that and he probably will not let the father come with some guarantee that he is not going to seek political asylum in the United States.

RAY SUAREZ: So keep Elian here is what you're saying?

OTTO REICH: I think we have to take into consideration the conditions that this...that the boy's mother, and let's remember, by the way, that the mother was divorced from the father. The father was not the custodian of the child. There was a stepfather. They both died, the stepfather and the mother died in an attempt to bring this child to freedom. They gave their lives so this boy could exercise the freedoms that we take for granted. I think that has to be taken into consideration. Ten years ago, we did not return five-year-old East German children back to East Germany if their parents had the luck to climb over the wall. And this case, what happened in this very dramatic and very tragic case is very similar. It's an escape from communism. And what we ought to also be very careful about is not to fall into the trap that I think we're already falling into, the cynical trap that the Cuban government and Fidel Castro has woven that they make it appear this case is all having to do with this child. It has to do with the fact that Castro has a lot of domestic problems. Like all dictators, whether Argentine generals or Milosevic, they create international crises to avert attention from the conditions in their countries.

RAY SUAREZ: Yvonne Conde, when you've been reading this story in the papers, you must have had a flashback to your own young life and the stories you've heard from all the children now adults who were brought over by the Operation Peter Pan.

YVONNE CONDE, Author: Yes, I was ten years old. I was alone in this country, too. I didn't know when my parents were coming. The majority of the Pedro Pan children, 14,000 of them who were sent out of Cuba alone by their parents to save them from communism, 85 percent of them, NAFTA, say they are very happy that their parents sent them out of Cuba alone, although for many the separation was for many years, and some never saw their parents again. Still, they are glad. I certainly am glad that my parents sent me out.

RAY SUAREZ: But there must have been some difficult times. Elian as a six-year-old is probably caught up in a swirl of events that he can't necessarily understand.

YVONNE CONDE: Of course. And we're not denying there was pain and there was suffering for us. And I'm sure there are for Elian. I really empathize with him so much. My heart goes out to him. I think this is a Solomonic decision that has to be made. But the child is having a taste of freedom. He's having choices. Choices he will not have back in Cuba. Some of the Pedro Pan children too, in fact, went become to Cuba, and one of them returned three years ago, after trying to leave Cuba most of her adult life. The other one who came back five years ago, and we wonder, will Elian come back to the United States in a few years by his own choice?

RAY SUAREZ: Jose Pertierra, does the fact that this is a six-year-old boy that we're talking about make some difference? Give him less latitude than, for example, Walter Polabcuk, the young Ukrainian who was 14 when his parents decided to leave Chicago and go back home. He said, "no, I want to stay here."

JOSE PERTIERRA: I think this case is clearly distinct from that one because in the case you're talking about in the Ukrainian boy, that boy was a teenager. This is a six-year-old boy. I don't think that six-year-old children are in the business of being able to say which parent or which adult they would like to live with. And this case is also different from the Pedro Pan cases because in the Pedro Pan cases that Ms. Conde talks about, the parents chose to send their children to the United States. In this particular case, the father is in Cuba and does not wish his son to live in the United States. Now, Mr. Reich may not want this boy to live in Cuba, but unfortunately this boy is not Mr. Reich's son. The father in this case is the one who has ultimate authority as to where and how this child should live. If the child then grows up and reaches the age of majority and decides to live in the United States, then we're talking about a different matter. But right now the father has decided to live in Cuba. There's absolutely no evidence of any coercion. On the contrary. All evidence is this father is a member of the Communist Party and has chosen on the live in Cuba -- freely and of his own volition.

OTTO REICH: I don't know where Mr. Pertierra is getting his information. It has to come from the government of Cuba - otherwise there is no other source of information. How does he know how the father really feels in a country where there is no freedom of speech, no freedom of the press, no freedom of association. You can belong to the Communist Party or you don't belong to the Communist Party. I mean, I think the father should come here, see the child and participate in that hearing. This is what the law prescribes. I hope you're not saying we should send the child back without a hearing, according to U.S. law.

JOSE PERTIERRA: Well, so far there's been no case presented in a family court.

OTTO REICH: I understand that. The U.S. Government has said there will be a hearing in Florida court.

JOSE PERTIERRA: In order for...

OTTO REICH: And that all the parties involved, including the father... The U.S. according to the U.S. State Department today is going to contact or has contacted the father, as the law requires.

JOSE PERTIERRA: Well, in order for there to be a hearing in family court, it's not up to the United States government to present the complaint for custody. It's up to the family of the little boy in Miami.

OTTO REICH: He has a family.

JOSE PERTIERRA: I know he has a family here, but that family so far has not presented a complaint for custody. So right now there is no legal impediment. There hasn't been any writ issued by a Florida judge to prevent this boy from being sent back to Cuba and to obey the wishes of his father. Right now the United States government could comply with the wishes of the father of Elian Gonzales, put him on a plane and send him back. If he were from any other country, if he was a Guatemalan boy or Mexican boy, he would have been on a plane long ago.

OTTO REICH: But if he were Guatemalan, he would not be sent back to the... to a country where the president of that country ordered the sinking of a tugboat with 72 people on board, and 41 of them died, including ten children under the age of 15. That has to be taken into consideration.

RAY SUAREZ: Yvonne Conde, I guess this is a illustration of how putting Cuba in the mix changes everything.

YVONNE CONDE: Well, it is a different situation. There is a legal precedent, I hate to disagree, but there is a legal precedent in the 60's. Two teenage boys were sent out by their mother, and the mother was not allowed to leave Cuba. She was a scientist. And they needed her there. Some months later there was a claim for the... accordingly it was from the mother for the children to return, and in family court, Catholic Charities upheld that the decision that the children would not be sent back to Cuba unless the mother herself came to Miami to pick them up. And of course they never allowed her to. And the children grew up here, didn't reunite with their family until 20 years later.

RAY SUAREZ: Well, if this was a Haitian boy, a very similar geographical situation, a very similar problem over the years with immigration, how much is just the fact that he would live in poverty or may live in poverty entering into this? We heard his cousin in the tape report talking about how this would give him opportunities and a better lifestyle. Should that intrude or over the fact that the father is alive and seems the want the kid?

OTTO REICH: Well, I'm not a judge. And I agree with Ms. Conde that this will require a Solomonic decision. I think all factors have to be taken into consideration. Unfortunately, if he returns to Cuba, he live in poverty. Cuba is the only country in this hemisphere whose per capita caloric intake has dropped in the last 40 years. Not even Haiti has experienced that decline. If Castro really cares about Cuban children, he will change the economic system that has condemned these children and parents to risk 90 miles of shark-infested waters to reach the United States.

RAY SUAREZ: Well, then, quickly, Jose Pertierra, is there a legitimate place in a hearing to discuss the relative prospects for this boy if he does return and the fact that he may be less well nourished, less well educated?

JOSE PERTIERRA: Well, first there has to be a complaint filed in a family court. Thus far there hasn't been one. But in the event one is filed, I don't think the fact that the father lives in poverty as against Miami really has any bearing on what kind of a father he is. Just because a person is poor doesn't mean he's a bad father. Just because a person lives in Watts, for example, doesn't mean that his children are better off in Beverly Hills with a distant relative. I don't think the material reaches of this country can compare with the value of the relationship between a father and his son.

RAY SUAREZ: Jose Pertierra, Yvonne Conde, Otto Reich, good to talk to you all.

RECAP

RAY SUAREZ: Again the major stories of this Wednesday, Syria and Israel agreed to resume peace talks for the first time since 1996. Israeli Prime Minister Barak and the Syrian foreign minister are to meet in Washington next week for the initial round of talks. And President Clinton said Russia's escalating military campaign in Chechnya would prove very costly and isolate Russia from the rest of the world. And late today in Washington, Mr. Clinton and a Boy and Girl Scout lit the national Christmas tree. The 42-foot Colorado Blue Spruce is located on the ellipse between the White House and the Washington Monument.

PRESIDENT CLINTON: Go! (Cheers and applause) Good job.

RAY SUAREZ: We'll see you on-line and again here tomorrow evening. I'm Ray Suarez. Thank you and good night.