Agony over Elian : The anti-anti-Communists are back.

THE last time attorney general Janet Reno urged hasty action because of her concern for the well-being of children, the Branch Davidians' compound was incinerated. In the case of Elian Gonzalez, a similar dynamic may be at work. Reno has declared that a Florida judge's grant of emergency custody to Elian's great-uncle "has no force or effect" because "this little boy has been through so much . . . It is therefore imperative that all of us do what we can to resolve his case as soon as possible." Reno appears to be quite eager to see the pint-sized refugee returned to a tyrant.

She's not the only one having problems with this flap. Ever since Elian was found lashed to an inner tube in the waters off Florida-having survived an escape from Cuba that took the life of his mother and ten others-the dispute over his future has had liberals championing the rights of a father who, as a subject of the Cuban regime, has none, and some conservatives arguing for the right of a 6-year-old to determine his own fate.

The liberals have the worse part of the bargain. Conservatives, in a sense, are only taking a position consistent with their beliefs of the last 40 years. Anti-Communists are loath to see the boy condemned to life in a dictatorship. The anti-anti-Communists, however, are rallying to Castro's regime.

The Clinton administration accuses Republicans of playing Cold War politics to curry favor with Cuban Americans. But the fact remains that the unilateral decision to return the boy to Cuba breaks with precedent- and is the direct result of Fidel Castro's intimidation.

The administration's insistence that the case is strictly a federal matter under the jurisdiction of the Immigration and Naturalization Service is a reversal of its initial position. On December 1, a few days after Elian's rescue, the INS recognized that issue of legal custody must be decided by [the] state court." Cuba had asked the American mission to return the boy, but the State Department explained that the federal government would defer to the Florida courts, as they take precedence in custody disputes.

On December 5, Castro demanded that Elian be returned within 72 hours-or else mass demonstrations would take place, just as negotiations were about to begin on the future of the migration accords (under which the Cuban government vows to prevent a flood of illegal departures). Following Castro's threat-according to Richard Nuccio, President Clinton's former adviser on Cuba-the State Department urged the INS to reconsider its jurisdiction.

Within 48 hours of Castro's ultimatum, the State Department announced that INS regulations "recognize the right of a parent to assert parental interests in an immigration proceeding. The INS will be in contact with Mr. Gonzalez in the near future . . . " The statement also noted that the U.S. remained committed to the migration accords.

Once Castro made it clear that he wanted Elian back, the dictator's old friends in the U.S. took up his demand. Ramsey Clark joined a protest at the INS office in New York City, and the former general secretary of the National Council of Churches hurried to Cuba to vouch for the fitness and sincerity of Elian's father.

Others urging the INS to hurry Elian back to Cuba would rather that he suffered scarcity than be "spoiled" by the riches of capitalism. The Washington Post's Mary McGrory criticizes the toys and trips the motherless child is enjoying and frets that Elian is in danger of becoming "the permanent kid in a candy store." That certainly won't happen if he is returned to Cuba, where children over age 6 are forbidden to drink rationed milk.

Also in the Washington Post, Judy Mann regrets that the case provides "a marvelous opportunity for anti-Communists to drag out their dreary old Cold War rhetoric." In USA Today, Jill Nelson sees "cultural imperialism" in the claim that Elian would have a better life in America. Particular hostility is directed toward Cuban Americans, the only aggrieved minority group told by liberals to "get over it." Even Cuba's charge that Elian's fate cannot be left in the hands of "corrupt judges" is echoed by the dictator's friends. McGrory notes that the "Cubans of Miami" elected the judge who awarded temporary custody, so "she is, emotionally, one of them."

To further discredit the judge, critics raised a conflict-of-interest charge because an unpaid spokesman for Elian's Miami relatives was a paid consultant on the judge's 1998 campaign. But under Florida's code, there is no obligation to disclose a prior relationship with an individual who is not an attorney or party involved in the pending case.

The state judge awarded temporary custody to a great-uncle, but the INS will not defer to the state court; it has determined, instead, that only the boy's father can act in his behalf. Grover Joseph Rees, a former general counsel at the INS, recognizes that the agency is not bound by the state-court judgment, but believes that the INS acted improperly in the case: "The INS abused its discretion in letting someone in Cuba withdraw an asylum application that says, please don't send me back to Cuba because I'll be persecuted."

INS officials, like the media, treat interviews with Elian's father, Juan Gonzalez, as though he were in Canada pleading for his son's return. The INS concluded that Mr. Gonzalez was expressing his "true wishes" and found nothing that would call his parental rights into question. Here, the INS is forgetting Cuban law. Under the Code of the Child, the state exercises parental rights and demands that all persons coming in contact with a child develop his "Communist personality."

Mr. Gonzalez's Miami relatives maintain that he knew and approved of his former wife's plan to flee with their son, and it is rumored that Mr. Gonzalez has twice applied for an immigrant visa for the U.S. The truth of these assertions can't be determined in a unilateral INS administrative proceeding. In an adversarial hearing, with all sides represented, Elian's relatives would have a chance to prove their claims about his father's true intentions.

The Justice Department wants to avoid the spectacle of federal marshals prying Elian's fingers off a Big Wheel to be dragged to the nearest airport. That's why it should follow precedent-and defer to the state court for a determination of custody that Elian's relatives have pledged to abide by. One of the Cold War's last refugees should have his day in court.