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published the Houston Chronicle, Sunday, June 22, 1997, page 1
LTEs: viewpoints@chron.com
article from the Houston Chronicle website


Two cases this year raise questions about military's role on Rio Grande

By THADDEUS HERRICK Copyright 1997 Houston Chronicle San Antonio Bureau

BROWNSVILLE -- Four months before a Marine anti-drug squad fatally shot a Presidio High School sophomore on a remote stretch of border hundreds of miles to the west, troops on a similar mission here shot and wounded an illegal immigrant who had just crossed the Rio Grande.

Cesareo Vasquez was first described by the Border Patrol as a "bandit" who shot twice at the soldiers with a .38-caliber revolver after having robbed a group of Mexican immigrants.

But federal officials now say Vasquez was not involved in the robbery and that he fired only once -- he says as a warning. If Vasquez did fire at the soldiers, it is unlikely he knew whom he was firing at. The incident occurred in heavy underbrush, the soldiers were camouflaged, and fog enveloped the banks of the river on the night of Jan. 24.

U.S. officials eventually learned that Vasquez, who pleaded guilty in April to a lesser charge, was wanted in Mexico for illegal possession of a gun and suspected in a robbery. But they had no such information at the time of the shooting. And though Vasquez carried an illegal weapon into the United States, he was shot from behind while clad only in a shirt, a detail omitted by authorities in their early reports but later acknowledged.

Similarly, an investigation by state authorities into the May 20 death of high school sophomore Ezequiel Hernandez Jr. has cast doubt on the military's claim of self-defense. Hernandez allegedly opened fire on the Marines while herding his family's goats, but local prosecutors say he was not aiming at the troops when he was shot.

Unlike the Vasquez incident, the Hernandez shooting in Redford has prompted state prosecutors to aggressively pursue a criminal case against the Marine suspected in the death, Cpl. Clemente Banuelos of Camp Pendleton, Calif. They intend to serve subpoenas for military documents at Fort Bliss in El Paso on Tuesday and are expected to bring their case before a grand jury next month.

The Hernandez shooting marks the first time anti-drug troops have shot and killed a U.S. citizen. It was the second shooting involving the military since soldiers were deployed along the border in 1990. The first was the shooting that injured Vasquez.

Considered together, the incidents in Redford and Brownsville suggest the beginnings of a troubling pattern along the country's 2,000-mile border with Mexico. Central to the matter is a policy stemming back to the Reagan-Bush years that -- while prohibiting troops from making arrests, searches and seizures -- has allowed for their limited use in domestic law enforcement.

"The issue is not what these troops did on the border but rather the policy that put them there," said Timothy Dunn, author of the Militarization of the Border and a doctoral candidate at the University of Texas. "Law enforcement is not the role of the military in a democratic society."

Largely a response to the illegal drug trade, the buildup on the border began in 1981 with the historic loosening of a Civil War-era law banning most uses of the military in law enforcement. In the next several years, the Reagan administration declared drug trafficking a national security threat and established Joint Task Force-6, which coordinates military and law enforcement anti-drug operations from Fort Bliss.

Soldiers still cannot perform most police duties, but the law allows for self-defense.

Federal law enforcement officials say the help of some 700 troops to train their agents, build border roads and dividing walls, and most importantly stake out traditionally unmanned spots along the vast border with Mexico, makes a critical difference in their ability to secure an often lawless frontier. About 125 soldiers are dispatched to border lookout spots, a number that federal officials say has remained constant since 1990.

"They have skills and abilities we cannot provide," said Douglas Kruhm, chief of the U.S. Border Patrol. "They can go into a suspected drug smuggling trail, observe the activity and get that information to us."

Phil Jordan, a longtime Drug Enforcement Administration official and former director of the El Paso Intelligence Center, an anti-drug post that monitors the globe, adds that the deployment of troops between Brownsville and San Diego provides the United States a fighting chance against kingpins who operate with cutting-edge military technology.

"If we are going to declare war against the most notorious, well-organized criminals in the world, we have to respond accordingly," he said.

The results seem to be impressive. Joint Task Force-6 spokeswoman Maureen Bossch reports that law enforcement agents seized nearly $671 million dollars worth of cocaine with the help of the military in the 1995-96 fiscal year in addition to marijuana worth $184 million and heroin valued at $46 million.

But critics of the policy say the soldiers -- who are trained to "vaporize, not Mirandize," in the words of Lawrence Korb, former assistant secretary of defense under President Reagan -- are poor choices for domestic duty.

"As a soldier, your whole mindset is to go to war," said Korb, a senior fellow at the Washington-based Brookings Institution who publicly opposed the push to put troops on the border. "You can try to perform law enforcement tasks, but at some point your instincts may take over."

Federal officials say Sgt. Christopher Lemmen, the soldier who shot Vasquez, was on a surveillance mission with five other Green Berets about 12 miles east of Brownsville's downtown bridge. They say he warned the 30-year-old Mexican man to stop before firing 11 rounds from his M-16. Authorities say he yelled, "Alto," Spanish for "stop," before shooting.

But Vasquez, a native of Matamoros, Mexico, who says he was on his way to Houston with a friend to start a job tinting automobile windows, says he neither heard such a warning nor saw the soldiers. He says he carried the gun because he had been robbed during a previous crossing.

"I couldn't see anything," said Vasquez, who remains in Brownsville's Cameron County Jail awaiting sentencing. "But I heard people in front of us so I fired a warning shot into the ground."

In their reports to the Border Patrol following the incident, the soldiers said they watched through night-vision goggles on the evening of Jan. 24 as a bandit robbed several illegal immigrants. Later -- some familiar with the case say as much as two hours later -- Vasquez and two others stumbled across the Green Berets. Federal authorities say Vasquez retreated but then came back at the soldiers and fired.

"The shooting (by the soldiers) was justifiable," said Mervyn Mosbacker, an assistant U.S. attorney who charged Vasquez with attempting to kill a federal officer and settled for assault instead. "There's no doubt in my mind."

But Jeff Wilde, a federal public defender who represented Vasquez before his client -- suspicious of federal legal counsel -- sought another attorney, says Vasquez was not shooting at the troops. For his part, Vasquez says he cut a deal because he was certain he would lose a jury trial, not because he assaulted a soldier.

"I can't tell you what happened," said Wilde, citing confidentiality with his former client. "But I can tell you no one meant to assault a federal officer."

Federal public defenders say the point may be moot, since in issuing a warning for Vasquez to stop, Lemmen may have overstepped the boundary that divides soldiers and law enforcement agents. Though Vasquez's lawyer sought to pursue this point in court, U.S. District Judge Filemon Vela denied the motion. It was never appealed since a deal was struck.

To be sure, the Mexican border has evolved in places such as Brownsville from a sleepy port of entry to an often hostile staging area for an array of illegal activities. The Vasquez incident came not long after the shooting of a Border Patrol agent nearby. Indeed, the Border Patrol reported 151 assaults on agents along the Mexican border during fiscal year 1996.

But critics say the deployment of camouflaged troops into this often chaotic, sometimes violent world -- a place that is not quite Mexico and not quite the United States, with its own dialect and culture -- is almost certain to invite trouble. In fact, they are surprised that troops were not involved in shootings until this year.

"Given the trends," said Dunn, author of Militarization of the Border, "we're headed for more of this."

A particular concern is the secrecy with which the troops of Joint Task Force-6 carry out their surveillance. Though they are required to get permission from landowners before setting up a post, they operate unbeknownst to the community. This has led prosecutors in the Hernandez case to suspect that the youth did not know what he was shooting at when he apparently fired twice with a .22-caliber rifle.

Military officials insist Hernandez knew what he was doing. But the four Marines, who had been at their post for three days, were dressed in fatigues that blended in with the creosote and cactus of the brown, barren hills of the desert. The shooting appears to have taken place from a distance of 125 to 200 yards.

"I don't think what the military said is what happened," said Rusty Taylor, chief deputy sheriff for Presidio County. "I wasn't sure who those guys were when I first saw them. If you're out there herding goats, all you're going to see is something that looks like a bush."

A good-natured loner whose worst offense was driving once without a license, Hernandez routinely took his goats into the hills surrounding his family's spartan cinder-block home on the banks of the Rio Grande.

On May 20, after returning from nearby Presidio High School, studying for his upcoming driver's license tests and quickly eating a burrito, he herded his goats across the dirt road and up a hill, within shouting distance of his home.

A little past 6 p.m., with a stiff wind and heavy thunderclouds signaling an impending storm, Hernandez fired two shots at the Marines before preparing to fire a third, investigators say. The Marines never verbally warned Hernandez, investigators say, nor did they retreat. Instead, they fanned out and followed him for as long as 20 minutes.

Still, military officials say they are satisfied with the Marines' version of events, in which Banuelos had no choice but to fire at Hernandez when the youth apparently raised his rifle a third time.

"We have no reason to doubt the soldiers," said Marine Col. Thomas Kelly, deputy commander of Joint Task Force-6, who nonetheless offered his sympathy to the family and friends of Hernandez along with the Border Patrol's Kruhm, who himself called the incident a "tragedy."

Those comments came two days after the shooting. Bossch of Joint Task Force-6 says the group will make no further statements until the Texas Rangers have finished their investigation. In both the Vasquez and Hernandez cases, the military and federal law enforcement agents sought to portray the incidents as open-and-shut cases of self-defense.

But prosecutors in Fort Stockton say the bullet from Banuelos' M-16 that struck Hernandez in the right rib cage and the location of the Marines, who had each moved to different positions, indicating the youth was not aiming at any of the soldiers. They say investigators asked the Marines to re-enact the incident at the site, but Joint Task Force-6 had already sent them back to Camp Pendleton.

Bossch, however, says the military is cooperating fully with the state investigation. Joint Task Force-6 has suspended operations in the Big Bend area, but she says it made the four Marines involved in the shooting available to investigators for four days.

Further troubling investigators is how the Marines handled the situation once Hernandez was shot. Though they called for Border Patrol assistance, they did nothing more than take the youth's pulse until agents -- arriving some 20 minutes later -- called for a medical helicopter. Meanwhile, the sheriff's deputy dispatched to the scene minutes later was not told a shooting had occurred until 15 minutes after he arrived.

Though the Vasquez case has drawn criticism from border rights advocates, the Hernandez shooting has touched a more sensitive nerve. The family of Hernandez is exploring a lawsuit against the government while the communities of Redford and Presidio are mulling some sort of legal action. Meanwhile, the El Paso-based Border Rights Coalition on Friday rallied in front of El Paso's federal building.

The incident has drawn some interest on Capitol Hill, though lawmakers are generally supportive of maintaining a military presence on the border. Silvestre Reyes, an El Paso congressman who formerly served as chief of the Border Patrol there, has urged his colleagues to replace the military with Border Patrol agents.

Others say the military is stretched too thin already to undertake domestic law enforcement tasks. "Besides," said a Democratic source close to the House National Security Committee, "a military that has no role in law enforcement is one of the things that separates us from banana republics."

Even the White House acknowledges that the current situation is not ideal. Don Maple, a spokesman for the office of National Drug Control Policy, says plans were already in the works to increase the number of Border Patrol agents from about 6,000 to 20,000 over the next 10 years when both Texas shootings occurred. The strategy would maintain military support, he says, but not with combat-ready troops.

"We believe there will always be a role for the military in law enforcement," said Maple. "But it will probably be twirling dials in a trailer" rather than sending soldiers into the field.

Photo caption: The Rev. Mel LaFollette, above, visits the grave of Ezequiel Hernandez Jr., who was killed by Marines on an anti- drug mission. The teed never was suspected of a role in the drug trade. The Marines claim self-defense. At left, police tape remains tangled in the brush near the scene of the May 20 shooting.

Photo caption: Ezequiel Hernandez Sr., above, father of the teen killed by a camouflaged Marine on anti-drug patrol in Redford, continues to tend goats at the family's home on the Texas side of the U.S.-Mexico border. A good-natured young man -- at 18, still a high school sophomore -- Ezequiel Hernandez Jr. often took the family's goats into the hill surrounding their home on the Rio Grande. The military claims the Marine who shot him to death on May 20 acted in self-defense

Joint Task Force-6 (JTF-6) chronology
  • December 1981 -- Civil War-era law known as Posse Comitatus is loosened with backing from Reagan administration, allowing the military to support law enforcement agents in the war on drugs.

  • 1986 -- President Reagan formally designates drug trafficking as a national security threat.

  • November 1989 -- Joint Task Force-6, an organization that coordinates military and law enforcement anti-drug operations, is established at Fort Bliss in El Paso under the direction of Defense Secretary Richard Cheney. Its focus is the U.S.-Mexico border. First troops are deployed a few months later.

  • 1995 -- JTF-6 operations are expanded to the entire continental United States. The total number of troops is 700, with about 125 combat-ready soldiers conducting surveillance on the U.S.-Mexico border.

  • January 1997 -- Cesareo Vasquez is the first person to be shot by JTF-6 troops. An illegal immigrant from Mexico, Vasquez is injured by a Green Beret after he crosses the Rio Grande in Brownsville and fires a shot with a .38-caliber pistol.

  • May 1997 -- Ezequiel Hernandez, a Presidio High School sophomore, is the first U.S. citizen to be shot and killed by JTF-6 troops. He is struck by a bullet after he allegedly opens fire on Marines with a .22-caliber rifle while herding his goats. Prosecutors plan to take the case to a grand jury.

  • This article copyright 1997 the Houston Chronicle and is reproduced for non-profit educational purposes onl y.

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