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Time Magazine August 25, 1997

A teen's death forces the military to question its role in fighting drugs


There was never any dispute about the basic facts of the case. On May 20, Marine Corporal Clemente Banuelos, 22, aimed his M-16 rifle at an 18-year-old goatherd named Esequiel Hernandez Jr. and shot him to death. Banuelos was part of a military surveillance unit helping control drug traffic in the tiny West Texas border town of Redford. He had apparently mistaken Hernandez--who was carrying a rifle and had fired it in the direction of the Marines--for one of the armed scouts who typically act as advance guards for drug smugglers.

A grand jury refused last week to indict Banuelos for shooting Hernandez, ruling that he had acted properly in defense of his fellow soldiers. But what remains unresolved--the question that has sent powerful tremors from the adobe-and-cinder-block foundations of Redford to the Defense Department in Washington--is whether the Marines should have been there in the first place.

In the wake of the Hernandez shooting, the Pentagon suspended such military border operations on July 29. And despite the grand jury's exoneration of Banuelos, the patrols may be halted for good. "Is it fair to the Banueloses of the world--who joined the Marines knowing they may go fight in a war and die--that in the conduct of their duties they could end up spending their life in jail for murder?" asks a top Pentagon antidrug official. "We're giving this a real hard look now, and I don't think these kinds of missions will resume."

Traditionally, U.S. military forces have been forbidden to take part in domestic law enforcement, the result of a post-Civil War law, the Posse Comitatus Act. But in the 1980s, in response to a growing drug problem on the border, the law was loosened to allow military units to help the U.S. Border Patrol catch drug smugglers. A Department of Defense entity called Joint Task Force Six, based in El Paso, Texas, has since 1989 coordinated 3,300 missions on the border; 746 of them involved listening or observation posts like the one Banuelos and three other Marines established several days before Hernandez was shot.

The danger of such military patrols is that they operate according to rules different from those of other law-enforcement agents. Moving stealthily about in camouflage gear, soldiers are under general orders not to identify themselves, not to fire warning shots and to respond to any perceived lethal threat under the military's "rules of engagement"--which means, roughly, shoot to kill. This is what happened to Hernandez, who had fired his weapon twice in the direction of the four Marines. Family members say Hernandez often carried a gun to fend off predators, and it is not clear whether he knew whom he was shooting at. However, Pentagon officials say Hernandez had been involved in an earlier incident in which he fired shots in the vicinity of Border Patrol agents.

One key issue in the grand jury hearing was whether the Marines had followed the rules of engagement after they were shot at by Hernandez. Apparently they stalked Hernandez for 20 min. after those shots, keeping in close radio contact with their unit. It was only when Hernandez raised his rifle again and pointed it at Lance Corporal James Blood that team leader Banuelos fired. The Marines said they were devastated by the killing, which they insisted was an accident. "If there was any way to fix it, I would," said Blood. The grand jury evidently believed them, deciding that Banuelos had acted "reasonably" in firing back.

Following the grand jury's decision, federal prosecutors said they will look into possibly bringing charges against Banuelos for civil rights violations. Still, the incident has left raw feelings in the community. "These people had no right to be here," says Melvin La Follette, a retired Episcopal priest and head of a Redford citizens group opposing the military's presence. "We were going blithely about our business, not knowing that Congress had handed away the civil rights of the people on the border." Former Marine Corporal Mark Otto, 27, who has served in surveillance missions in the border areas near Redford, defends the Marines' involvement and the stealthy way they operate. "You never know who the farmers might know," he says, "or who's a good guy or who's a bad guy." It is just such dangers, however, that may have finally convinced the military that when it comes to helping fight the drug war, it's best to just say no.

--With reporting by Charlotte Faltermayer/New York and Mark Thompson/Washington

This article copyright 1997 Time magazine and is reproduced for non-profit educational purposes only.

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