BORDERLINE SHOOTINGS

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 antidrug 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 .38caliber
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 selfdefense. 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 antidrug 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
2,000mile border with Mexico. Central to the matter is a policy
stemming back to the ReaganBush 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
Warera 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 Force6, which coordinates military and law enforcement
antidrug operations from Fort Bliss.

Soldiers still cannot perform most police duties, but the law
allows for selfdefense.

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
antidrug 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
cuttingedge military technology.

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

The results seem to be impressive. Joint Task Force6 spokeswoman
Maureen Bossch reports that law enforcement agents seized nearly
$671 million dollars worth of cocaine with the help of the
military in the 199596 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 Washingtonbased 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 30yearold Mexican man to stop before firing
11 rounds from his M16. 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 nightvision 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 Force6 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 .22caliber 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 goodnatured loner whose worst offense was driving once without
a license, Hernandez routinely took his goats into the hills
surrounding his family's spartan cinderblock 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 Force6, 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 Force6 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
openandshut cases of selfdefense.

But prosecutors in Fort Stockton say the bullet from Banuelos'
M16 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 reenact the incident at
the site, but Joint Task Force6 had already sent them back to
Camp Pendleton.

Bossch, however, says the military is cooperating fully with the
state investigation. Joint Task Force6 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 Pasobased
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
combatready 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 selfdefense. 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 antidrug patrol in Redford,
continues to tend goats at the family's home on the Texas side of
the U.S.Mexico border. A goodnatured 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 selfdefense.

Inset:

JTF6 chronology

* December 1981 Civil Warera 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 Force6, an organization that
coordinates military and law enforcement antidrug 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 JTF6 operations are expanded to the entire continental
United States. The total number of troops is 700, with about 125
combatready soldiers conducting surveillance on the U.S.Mexico
border.

* January 1997 Cesareo Vasquez is the first person to be shot
by JTF6 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 .38caliber pistol.

* May 1997 Ezequiel Hernandez, a Presidio High School
sophomore, is the first U.S. citizen to be shot and killed by
JTF6 troops. He is struck by a bullet after he allegedly opens
fire on Marines with a .22caliber rifle while herding his goats.
Prosecutors plan to take the case to a grand jury.