AN IDENTITY CRISIS MOST DEADLY

On May 20, 1997, Esequiel Hernandez came home from high school, studied his
driver's education textbook and then went out to herd his family's flock of
goats in the rocky hills surrounding the tiny West Texas town of Redford on
the Mexican border.

Hernandez brought along his .22 rifle in case he ran into a rattle snake or
coyote, or just to plink around while meandering along a remote crest of
spindly ocotillo and creosote bushes overlooking the narrow, sluggish Rio
Grande.

Whatever the reason, Hernandez, an 18-year-old American with no criminal
record, fired his rifle. Twice.

The whistle of bullets sent a hidden four-man team of U.S. Marines--in full
camouflage, burlap and face paint--into combat mode. The team was one of
eight units deployed along a 20-mile strip that day in efforts to observe
drug smugglers slipping across the brown river by horseback, small boat or
on foot.

Flashing silent hand signals, the squad's leader, Cpl. Clemente Banuelos,
23, ordered his men to follow Hernandez over the rough terrain and
"neutralize" him if necessary.

Then Banuelos got on the radio and murmurmed his plan to Lance Cpl. James
Steen, who was at a command post 65 miles north in Marfa.

"As soon as he readies that rifle back down range, we are taking him,"
Banuelos said.

"Roger," Steen replied. "Fire back."

Moments later, with the sun low in the sky and twilight beginning to fall,
Banuelos allegedly saw Hernandez point his gun again. Without issuing a
warning, the Marine fired once, striking the teenager in his right side. He
dropped like a stone. Twenty minutes later, he died.

Hernandez had the unfortunate fate to be the first U.S. civilian killed by a
member of the armed forces since the Kent State University tragedy in 1970
in which National Guardsmen fired on students. He also became the first
American casualty by professional soldiers enlisted in the war against
drugs, a phrase once considered a mere figure of speech.

The Redford incident has become a rallying cry for human rights advocates
who object to the new militarization of the 2,000-mile border with Mexico.
Then, two weeks ago, Marine Corps issued the results of its investigation,
and it is more damaging than even the activists might have suspected. After
13,000 pages of text and supporting documents, Maj. Gen. John T. Coyne
concluded that Hernandez's death occurred during a mission marked by
"systematic failures at every level of command." It was a mission fraught
with errors, communications breakdowns and questionable judgments, led by a
team leader who seemed oddly eager to pull the trigger of his M-16.

One might reasonably ask, So what? A kid who turned out to be an American
was shot by an American Marine in a remote town on a faraway border under
questionable circumstances. Police in big cities often are forced to shoot
U.S. citizens, drawing a protest, perhaps, but no formal expressions of
regret from top U.S. officials, which Hernandez family members and other
Redford residents received.

The reason the case hits a deeper nerve and is unlikely to go away lies in
this nation's historical reluctance to deploy its soldiers on U.S. soil and
the primacy of civilian power over the military.

Since Reconstruction, when victorious Union troops were accused of abusing
their positions, the Posse Comitatus Act had prevented most uses of military
forces in domestic law enforcement. That's one reason why U.S. city streets
are not guarded by machine gun-toting military squads, as in countries from
Mexico to Israel to Nigeria.

To be sure, there have been exceptions. U.S. troops were called to put down
19th Century labor riots. They helped quell urban unrest in the 1960s in
Detroit, Los Angeles and Chicago. They fell out again to restore order after
the Rodney King verdict.

But in the 1980s, a new model emerged for the military in the waning days of
the Cold War. Rather than waiting around to respond to crises, the military
would be deployed to fight drugs in what the Pentagon calls "low-intensity
conflict."

The Posse Comitatus Act was loosened, and a new entity was created in 1989
to run counter-drug missions: the El Paso-based Joint Task Force 6.

The idea of putting U.S. troops on the border remains politically popular.
In May, the House of Representatives approved, by more than a 2-1 margin, a
$270 billion defense bill authorizing the return of ground forces to the
border. Part of the appeal is the U.S. already is paying to keep troops
ready.

"It's a cost-effective way to appear to be doing something about drugs,"
said Lawrence Korb, a former assistant secretary of defense under Reagan who
is now a senior fellow of foreign affairs at the Brookings Institution in
Washington, D.C. When a constituent asks what's being done to fight drugs,
he said, what better answer than to say: "Well, let me tell you, I got the
Marines on the border."

Although JTF-6 operations usually have been uneventful, there were eight
shooting incidents from 1993 to 1997, including one just four days before
Hernandez that involved recreational target shooters--nonetheless described
as "very hostile" after they fired over the heads of Marines, according to
the Coyne report.

Hernandez's death reversed a classic case of mission creep, in which the
military had slowly began to expand its limited mandate. By 1996, JTF-6 was
sending troops not only to the border but to national parks such as the San
Jacinto National Forest in California where Marines secretly staked out a
suspected marijuana garden. The pot growers, unamused, fired on the troops.
The unit retreated.

Hernandez was something else, though. For a year now, the Pentagon has
"temporarily" suspended the deployment of ground troops on U.S. soil for
counter-drug missions. The Coyne investigation vividly illustrates why that
prohibition is unlikely to be lifted and underscores the risks that come
with blurring the line between military and civilian law enforcement.

It includes dropping military personnel into a community for a temporary
mission. They are strangers with guns who don't know the locals.

Redford, population 100, is a dusty village consisting of two stores
attached to their owners' homes, one paved road, one church and a
goat-cheese cooperative.

The four Marines, based in Camp Pendleton in southern California, didn't
know that the grazing goats they saw belonged to Hernandez. They didn't know
he or anyone else lived just over a nearby hill. They didn't know that
Border Patrol agents several months earlier had scolded Hernandez for
shooting his .22 after dark.

Instead, they were told in briefings that Redford was "not a friendly town"
and that criminals operated in the area with the help of town residents. In
a standard JTF-6 memo, they were warned they would "face an organized,
sophisticated and dangerous enemy (drug smugglers). . . . These gangs are
extremely dangerous and will also use force."

In theory, the Marines didn't need to know much about Redford because they
were supposed to slip in unannounced and remain undetected for three days
before slipping out. During the day, the teams were to remain motionless in
a "hide site," coming out only after nightfall to set up observation posts
overlooking the Rio Grande. They were told to alert the Border Patrol if
they saw anything suspicious.

Then they heard a gunshot.

Was a crime committed? A Texas Rangers' investigation poked holes in the
Marine Corps' story: Hernandez's rifle may not have been pointed at the
Marines because he was right-handed, yet was shot in the right side.
Moreover, Hernandez was too far away to support the contention that Banuelos
saw the gun pointed at a fellow Marine when he fired. And the other Marines
could not say they saw what Banuelos said he saw, except for one Marine who
changed his story.

Despite such disparities, state and federal grand juries have refused to
issue indictments against the Marines, and from the beginning, the military
defended Banuelos as having diligently adhered to combat rules of
engagement, which allow firing back without warning when fired upon. Marines
are not SWAT units, after all.

Retired Col. Hays Parks, an expert in military operations, reviewed the
incident for the Marine Corps and said Banuelos acted as "a reasonable man
under the circumstances."

Those circumstances point to a broad failure of U.S. policy. The military
rules Banuelos followed were a product of the Cold War. They were
"inappropriate" for domestic law enforcement, Parks wrote.

Besides, basic combat training "instills an aggressive spirit," according to
the Coyne report. Even the phrase, "rules of engagement," poses problems
because it presumes the existence of a hostile force.

"Accordingly, the admonition within the rules of engagement to de-escalate,
where possible, becomes counterintuitive," it said. "Moreover, the use of
battlefield operating system terms such as `intelligence preparation of the
battlefield,' `battlefield geometry,' and `hostile forces,' communicates to
young Marines a situational awareness far removed from the reality of
manning an observation post on private property adjacent to a small
community on United States soil."

Military instinct led the Marines to track Hernandez. Banuelos told
investigators he was trying to prevent the goatherder from "flanking" his
squad.

So great was the Marines' sense of self-preservation that even after one of
them saw Hernandez struck with such force that his legs were upended and his
hat sailed into the air, they still were worried whether their target was
armed and dangerous. They took several minutes to cautiously crawl to where
he lay slumped in an abandoned well into which he had plunged.

Adding to the confusion that the Marines exhibited was the fact that even
though one was trained as a medic, nobody tried to help Hernandez. Nor did
anyone call for a medivac helicopter until other authorities arrived on the
scene.

While first-aid likely would not have saved Hernandez's life, the lack of
action was "substandard as measured by any humanitarian standards," the
Coyne report concluded.

Another point demonstrated in the report is that short-term military
missions invite bureaucratic bungling.

In theory, the Border Patrol was in command of the Marine operations. But,
when a crisis came, the two institutions fumbled in their roles. The Marines
believed that the Border Patrol would keep agents posted within a 15-minute
response time should anything go awry.

Border Patrol officials said they thought that applied only after dark, when
the Marines were supposed to be on the move or actively observing. They were
caught off-guard when Banuelos decided to leave their hide site at 6 p.m. to
move gear, nearly three hours before nightfall.

The lapse matters because the Marines tracked Hernandez for 22 minutes
before shooting him, conceivably enough time for Border Patrol agents to
intercede. They might have recognized Hernandez and his goats. They might
have defused the situation. But it took a half-hour for the Border Patrol to
arrive, delayed in part because their radios could not communicate directly
with the Marines. By that time Hernandez was nearly dead.

The military is a powerful institution that is hard to hold accountable.

A theme of the post-shooting investigation from nearly the start was
conflict with local and state authorities. The Texas state police complained
that military officials hustled the Marines away after preliminary
questioning, without authorization.

As a heavy rain fell, the Marines were put in one hotel room, with a
six-pack of beer, and told to write statements of what occurred.

Days later, the Marines were sent back to California, again surprising local
investigators.

In the months that ensued, investigators complained of military stonewalling
as they attempted to subpoena documents and witnesses.

Now that the Marine investigation has closed, the Pentagon is evaluating
whether ground troops should return to the war on drugs. That's not likely,
one Pentagon official said. The Hernandez episode may have ended the
nation's experiment with military law enforcement.

Troops still will find other ways to help, such as building walls and roads
and using military hardware to gather intelligence.

But the nation trains its troops to fight its wars, the official said. The
Hernandez episode put the military in a place it did not want to be: with a
soldier responding as he had been purposely taught, yet then being
vulnerable to not just military justice but civilian courts, both criminal
and civil.

"To have a Marine indicted and taken out of the Marines--we've just lost a
good war-fighter," the official said. Going to war against drug smugglers
"is a function more readily taken by the Border Patrol."

Checked-by: "Rolf Ernst"