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West Texas DA questions military account of slaying

Drug unit spokeswoman calls remarks surprising

By Douglas Holt copyright The Dallas Morning News 06/04/97

EL PASO - Two weeks after a U.S. Marine fatally shot an 18-year-old goat herder near Big Bend, discrepancies are beginning to appear in the military's explanation of the shooting, a prosecutor says.

Potentially troubling for the military, the case is in the hands of District Attorney Albert Valadez, who says he is dissatisfied with explanations of military officials.

Mr. Valadez said he has taken exception to the preliminary conclusion, offered by Marine Col. Thomas R. Kelly two days after the May 20 shooting, that the case amounted to self-defense in "strict compliance" with the military's rules of engagement.

"The comments made by the military were conclusions that were drawn perhaps prematurely," said Mr. Valadez, whose six-county district includes Presidio County, where the shooting occurred. "I would never draw conclusions as quickly as they did without some type of tangible evidence."

A spokeswoman for the El Paso-based military unit that coordinates drug-fighting efforts expressed surprise at comments from Mr. Valadez and others but said the military was cooperating with investigations by the Texas Rangers, FBI and Presidio County sheriff's office.

In addition, the military unit, Joint Task Force 6, is conducting its own inquiry, said spokeswoman Maureen Bossch.

"We're still waiting," she said. "There's been no official release of information at all from this."

The May 20 death of Ezequiel Hernandez in his hometown of Redford, the first U.S. citizen shot by a military drug-surveillance team on the border, is still under investigation. It is expected to go to a grand jury next month, raising the specter of a U.S. Marine standing trial for the shooting in a state court.

In the interim, the military has suspended its drug-fighting activities in the Marfa sector of West Texas.

The shooting has come at a time when the Clinton administration is preparing a long-range plan for the Southwest border that could answer critics of the militarization of the U.S.-Mexico border.

Key points in the report, due to be released this fall, include an unprecedented increase in the U.S. Border Patrol, from 6,191 today to 20,000 over the next 10 years, said Don Maples, spokesman for the White House Office of National Drug Control Policy.

Mr. Maples said that would allow the government to remove armed troops from the border, reversing a policy inherited from the Reagan and Bush administrations and championed by former Chairman of the Joint Chiefs of Staff Colin Powell.

"We don't believe having military forces on the border is in the long run the best way to go about policing our borders," Mr. Maples said. "Policing, defending, managing and administering our border is inherently a law enforcement responsibility."

Typically, about 100 troops may be stationed along the border at any one time, officials said. The law allows them to help with surveillance and intelligence-gathering but bars them from making arrests or searching property.

In West Texas, Mr. Valadez offered no details on the state's potential case against the Marine who fired one round at Mr. Hernandez with an M-16 rifle. Federal authorities have said the young man, armed with a .22-caliber rifle, had fired in the direction of a unit of four Marines.

Military authorities have refused to identify the soldier, saying only that he is a noncommissioned officer based in Camp Pendleton, Calif.

But Mr. Valadez made it clear he is not one to be cowed by the military, or anyone else in a mountainous region known as a drug smuggling corridor.

"When I get on a case, I'm going to find out what the hell happened," he said. "I don't care where they're from or who they work for."

In Midland, Texas Ranger Capt. Barry Caver said last week that the preliminary investigation appeared to conflict with Col. Kelly's initial explanation of the shooting. The colonel is deputy commander of Joint Task Force 6.

"Some of the evidence, as far as the injuries to the body and the angle, doesn't exactly match what they're telling us," Capt. Caver said, referring to the angle of Mr. Hernandez's bullet wound.

While revealing few details, he said Mr. Valadez "is certainly willing to prosecute the case, and he evidently feels he has enough evidence."

Further contradicting the military's account, Capt. Caver said there was a "good possibility" Mr. Hernandez was unaware that he was shooting toward U.S. Marines, who were dressed in heavy camouflage, their faces blackened and bodies covered in burlap and leaves.

Col. Kelly had said the military was certain that Mr. Hernandez knew he was shooting at humans, without detailing the basis of that belief.

Authorities have said the Marines were conducting surveillance because the area is heavily used by drug smugglers crossing the Rio Grande.

Officials said Mr. Hernandez, to their knowledge, was not engaged in any illegal activities when he was shot. His family said he had just returned home from high school and had taken his flock of 30 goats out for grazing.

Lawrence Korb, who was an assistant secretary of defense in the Reagan administration, said the shooting demonstrated the incompatibility of military and police duties.

He opposed a historic loosening in the 1980s of the Posse Comitatus Act, a Civil War-era law that banned most uses of military forces in domestic law enforcement.

"The military is much more likely to use force of arms because that's what they're trained to do," said Mr. Korb, now a senior fellow at the Brookings Institution. "The military, to put it bluntly, is trained to vaporize, not Mirandize."

Others say it's no stretch to compare the border to a battlefield, and efforts to stop drugs to a war. Ranchers near Eagle Pass and elsewhere have complained of armed thugs overrunning their land.

Although reported armed confrontations have declined since the early 1990s, border agents were threatened with firearms or shot at 110 times from October to April, according to the Immigration and Naturalization Service, which oversees the Border Patrol.

Three days before the Marine was involved in the West Texas shooting, a Border Patrol agent on the California border was fired on by a sniper on the Mexico side. He was wounded in the shoulder. Phil Jordan, a former Drug Enforcement Administration agent and former head of the El Paso Intelligence Center, a worldwide anti-drug listening post, said bringing the military to bear on the border merely levels the playing field.

Drug traffickers use encrypted telephones and fax machines, advanced night-vision equipment that flooded the surplus military market after the fall of the Soviet Union, sophisticated counterintelligence techniques, airplanes and an unlimited supply of weapons, he said.

"The American people don't have any idea of the sophistication of countersurveillance and intelligence that the traffickers based in Mexico have," he said. "When you're dealing with an army of smugglers, you need to respond accordingly."

Mr. Maples, the National Drug Control Policy spokesman, said the proposal to boost Border Patrol presence is not a reaction to the Marine shooting. Still, he said, the incident certainly highlights the risk of deploying ground troops "with guns trained on the border," even if the troops are there to gather information and not to make arrests.

Lawmakers have strongly supported deploying the military in a widening array of roles since the early 1980s.

Since October alone, the military has taken credit for helping seize 13.5 tons of cocaine, 58 tons of marijuana and nearly $1.5 million in drug traffickers' cash, according to Joint Task Force 6.

Said Larry Neal, spokesman for U.S. Sen. Phil Gramm, R-Texas: The military "has plainly given valuable assistance to the Border Patrol and it has provided useful training for the military personnel involved."

This article copyright 1997 the Dallas Morning News and is reproduced for non-profit educational purposes only.

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