Politics & Policy

The Border-Patrol Two Deserve Jail

Law enforcement defends its honor, despite the "hero" propaganda

“Texans aren’t whiners,” Johnny Sutton told me. Still, forgive him if he sounds a bit frustrated.

Sutton is the top federal law-enforcement officer in one of the nation’s most notorious border badlands. Day in and day out, while no one was paying much attention to the dusty Rio Grande towns outside El Paso, he has been the U.S. Border Patrol’s staunchest ally.

A solid law-and-order conservative, Sutton’s position, United States Attorney for the Western District of Texas, is a unique perch from which to appreciate hundreds of dedicated Border Patrol agents, to grasp in a real way — not a bandwagon way, but a rubber-meets-the-road way — that these men and women truly are our last line of defense against the hordes for whom our political elites are determined to put out a big, fat welcome-mat reading “AMNESTY.”

He has thus vigorously supported them. Sutton’s office prosecutes their cases against alien smugglers and narcotics importers at an impressive clip. It is not for nothing, moreover, that badlands are called “badlands.” Illegals and their facilitators routinely assault the agents. Frequently, there is gunfire. Sutton knows the outnumbered agents have to be able to defend themselves and impose what passes for order. Since he’s been U.S. attorney, there have been several incidents in which agents have shot at hostiles, including four resulting in fatalities. In each, Sutton’s office investigated the matter thoroughly and the agents were cleared without charges being filed.

So why are some Border Patrol agents vilifying Sutton today? Why are they joined by a full-throated chorus of union reps, anti-immigration activists, media heavyweights, and a small but vocal cabal of mostly Republican congressmen? Because two rogues who had no business wearing badges and carrying guns have managed to entangle their gross malfeasance in the impassioned politics of immigration, that’s why.

The sordid details that should condemn these corrupt agents — agents who make the jobs of honest law-enforcement officers galactically harder both in the field and in the courtroom — have been obscured by layers of hyperbole. Hyperbole by which they’ve ludicrously been portrayed as “heroes.” Truth be damned, they have somehow managed to make themselves the rallying cry for Americans enraged by their government’s conscious avoidance — indeed, its active facilitation — of exploding illegal immigration and all its consequent social maladies.

Most ironic of all, this farce owes to the outrage that most offends us: Mexican drug pushers who enter illegally to peddle their poison north of the border. The kind of low-lifes Sutton prosecutes in droves, working shoulder-to-shoulder with the Border Patrol.

One such dope-smuggler, Osvaldo Aldrete-Davila, is at the center of the storm around the two mythologized agents. The propaganda version holds that Aldrete-Davila got off scot-free, while our brave “heroes,” agents Jose Alonso Compean and Ignacio Ramos, are serving heavy-duty jail-time for just doing their jobs.

That’s just not the truth.

FACT VERSUS FICTION

It should be enough to say that the job description for federal agents solemnly sworn to enforce the law does not include the commission of felonies like obstruction of justice and making false statements (in this case, quite intentional, highly material omissions on official government reports). But to state the obvious does not do this matter justice. Not even close.

Here’s the dirty little secret the agents’ partisans never tell in their relentless media rounds. You want to be mad about a miscreant like Aldrete-Davila getting away with importing scads of marijuana into Estados Unidos? Then be mad at … the “heroes.”

The rogue duo had two easy opportunities to arrest Aldrete-Davila: First, when he attempted to surrender and Compean decided it would be better to smash him with the butt of a shotgun than to put cuffs on him, as it was his duty to do; and then, when the “heroes,” having felled the unarmed, fleeing suspect with a bullet fired into his buttocks, decided to leave him there so they could tend to the more important business of covering up the shooting.

Since it’s hard to decipher the facts amid the noise, it’s worth remembering that a jury of twelve impartial Texans convicted the agents of almost all the charges, beyond a reasonable doubt, after a two-and-a-half week trial. Many complain, with some force, about the aggressive charges brought by the government against Compean and Ramos, but you don’t have to like this case to understand that — barring some demonstration of irrationality (and there has been none) — the factual findings necessary to that verdict merit respect. They are certainly more reliable than hype from those with an ax to grind.

As is typical in controversial trials, when the sentences the court imposes months after the verdict turn out to be stiff, it is true that some jurors have since expressed regret about their vote to convict Compean and Ramos. But three jurors’ lame bleating that they were in the dark about the possibility of holding out for a hung jury smacks of buyer’s remorse, not confusion. When it counted, the full jury plainly resolved disputed issues and credibility calls against the agents. In addition to being entitled to deference, that lopsided resolution also happens to make the most objective sense. Indeed, it is telling that the agents’ partisans vent mainly about immigration policy and prosecutorial overreach; they don’t dare dwell on the agents’ disgraceful performance on February 17, 2005.

It was about 1:00 that afternoon when Agent Compean observed Aldrete-Davila driving suspiciously along a levee road toward tiny Fabens, Texas, in a van later found to be carrying 743 pounds of marijuana. Compean radioed for help. Agent Ramos heard the call and headed to Fabens, where he anticipated intercepting the van.

Aldrete-Davila soon realized he was being pursued by Ramos and another agent. Unable to shake them, he abandoned the van and made a dash for the Rio Grande border. Compean, however, was lying in wait across the levee.

What happened next is disputed. Compean now says there was a struggle, causing him to fire although Aldrete-Davila eluded him. Ramos contends that while in pursuit, he heard shots; saw his fellow officer, Compean, down on the ground; kept chasing Aldrete-Davila; and finally fired at him because, through thick dust, he thought he saw something shiny in the smuggler’s hand that, he surmised, must have been a gun.

This is the Official Truth according to the agents’ partisans. It is also the one rejected by the jurors who heard the whole case — including the parts about which the partisans are now tongue-tied.

GRATUITOUS BRUTALITY

The preponderance of the evidence established that Aldrete-Davila was unarmed. Besides Compean and Ramos, there were several other agents on the scene. None of them believed Aldrete-Davila posed a threat to their safety; none, other than the two defendants drew their weapons; and Compean and Ramos neither took cover nor alerted their fellow agents to do so.

More to the point, Compean admitted to investigators early on that the smuggler had raised his hands, palms open, in an attempt to surrender. This jibed not only with Aldrete-Davila’s account but with that of another Border Patrol agent. Compean opted not to take surrender, not to place the smuggler under arrest so he could be prosecuted.

On that score, for those over-heatedly analogizing the border to a battlefield, it is worth noting that even under the law of war, quarter must be given when it is sought. Compean, to the contrary, tried to strike Aldrete-Davila with the butt of his shotgun. But it turns out the agent was as hapless as he was malevolent. In the assault, he succeeded only in losing his own balance. The smuggler, naturally, took off again, whereupon Compean unleashed an incompetent fuselage — missing Aldrete-Davila with all fourteen shots.

It was only after the surrender attempt that Ramos opened fire as the unarmed smuggler neared the border. Defending his decision to bring the case, U.S. attorney Sutton later explained: “Border Patrol training allows for the use of deadly force when an agent reasonably fears imminent bodily injury or death. An agent is not permitted to shoot an unarmed suspect who is running away.” The fact that Aldrete-Davila was a drug-dealer — something the agents may have suspected but had not yet confirmed at the time they were shooting at him — did not justify the responsive use of potentially deadly force under standard law-enforcement rules of engagement.

Cops are peace officers; absent life-and-death exigencies, they are not judge, jury and executioner. Not in big cities like New York. Not in rural middle America. And not on the border. As Sutton put it when I spoke with him, a big part of what separates us from many countries in the world is that “in America, the cops are the good guys.”

Compean and Ramos are bad guys. Once Aldrete-Davila was down from Ramos’s shot to the backside, they decided, for a second time, not to grab him so he could face justice for his crimes. As they well knew, an arrest at that point — after 15 shots at a fleeing, unarmed man who had tried to surrender — would have shone a spotlight on their performance. So instead, they exacerbated the already shameful display.

Instead of arresting the wounded smuggler, they put their guns away and left him behind. But not before trying to conceal the improper discharge of their firearms. Compean picked up and hid his shell-casings rather than leaving the scene intact for investigators. Both agents filed false reports, failing to record the firing of their weapons though they were well aware of regulations requiring that they do so. Because the “heroes” put covering their tracks ahead of doing their duty, Aldrete-Davila was eventually able to limp off to a waiting car and escape into Mexico.

BAD FACTS AND BAD LAW

Myopic border-enforcement activists seem unconcerned about any of these facts — for them, much like anti-death penalty obsessives, the cause is a higher calling. Concededly, though, this case rankles ordinary Americans, too. That’s understandable given the severity, the equities, and the potential ramifications of the punishment.

There is broad recognition that bad agents should be weeded out of any police force. Compean and Ramos, however, have not just been terminated; they were socked with sentences of twelve and eleven years, respectively. This, in connection with an incident that arose out of a job which — their appalling conduct aside — is undeniably dangerous; an incident instigated by a drug dealer who was not prosecuted for crimes worth at least as much jail time as the agents received — an illegal alien felon who may end up with a big cash windfall premised on the absurdity that his purported American “civil rights” were violated. As a matter of policy, moreover, the effectiveness of honest Border Patrol agents could be compromised if they come to believe the kind of energetic policing we need may be met by prosecution — rendering them and the rest of us more vulnerable.

There are answers to all these concerns, but they are not particularly satisfying. The truism that bad facts make bad law was never more true — and these facts are ugly.

For starters, should these guys really have been prosecuted at all? Wouldn’t it have been enough just to fire them? If the agents had only acted dishonestly, you might say that. But the behavior here was egregious and could easily have resulted in murder. That’s unacceptable under circumstances where the agents were in no danger and the unarmed man they shot was running away after trying to surrender. But leaving the inexcusable comportment aside, there are a few things the uninitiated should understand.

Though they work for the public, federal employees, including law-enforcement agents, are permitted to unionize and fight the public every step of the way, no matter how abundantly clear it is that they should be disciplined or terminated for betraying the public’s trust. No federal official more cries out to be fired than one we trust with a gun and a badge who proves himself unfit to bear the attendant responsibilities. Yet, our system arms even them with administrative rights that make termination prohibitively difficult. Moreover, it gives these bad actors powerful incentives not to accept termination without a fight. Because law-enforcement work can be physically stressful and dangerous, agents have very attractive benefits — including retirement after comparatively short careers with a pension based on their highest-income years of service. There is too much at stake to go away quietly.

Criminal conviction is often the only way to cut through the burdensome, uncertain administrative process. Agencies sometimes will not take disciplinary action absent charges. Consequently, if agents don’t agree to resign over outrageous misconduct, the only sure way to get rid of them is to indict and convict them.

Okay, you say. But did the indictment really have to be this severe? After all, the sentences are extremely harsh. Here, the agents have mainly themselves to blame. The government offered them very generous plea deals. Compean and Ramos spurned them. If defendants decline to plead guilty and insist on proceeding to trial, it is standard operating procedure for the Justice Department to bring its best case — which includes charging the offense that carries the highest penalty among all readily provable crimes. Indeed, it is common for the government to insist on the most severe, readily-provable offense even at the plea-negotiation stage — something Sutton’s office did not do.

In this case, that offense was the discharge of a firearm during a crime of violence. This crime carries a mandatory-minimum ten-year jail sentence which must, by statute, be imposed in addition to the sentence of incarceration on any other count of conviction. It is Congress that enacted this law — not the Justice Department. Congress (including some of the members complaining most vociferously about this case) fears that judges will be too soft on several types of crimes, including gun crimes. Rather than trusting them to impose reasonable sentences, it forces their hand. It’s a great racket: if the court ignores the law, Congress goes berserk at the judiciary; if the Justice Department applies the law, congressional ire is directed at the executive branch. Meanwhile, the legislators who foisted this rigid, unforgiving law on us never have to apologize for anything. In any event, Congress carved out no exceptions from this statute for law-enforcement personnel accused of crimes committed in the line of duty.

PROSECUTORIAL DISCRETION

Still, it must be asked: Did the Justice Department overreach in charging it? This is a very close call, but I believe it was a reasonable exercise of discretion.

Yes, the government could have contented itself with lesser charges such as obstruction of justice and false statements, offenses that could probably have been proved without testimony from Aldrete-Davila — thus obviating the need to give him use-immunity in exchange for his testimony. But as Sutton points out, the case would not have been nearly as strong without the testimony of the smuggler. He was the only witness in a position to explain the entire transaction and rebut the agents’ perjurious version of events. If it was important to do this case at all, it was important to present that testimony. Otherwise, the agents would have been positioned to portray themselves as decent men doing a tough job who were being unfairly nickled-and-dimed over mere technicalities — and if you don’t think that was a concern for the prosecutor, you haven’t been listening to what conservatives usually strong on law-and-order have been saying about the Scooter Libby case, or what liberals said through years of defending Bill Clinton.

More significant than strategy, Americans need to know that there are not two justice systems: one for corrupt public officials and one for everybody else. Everybody else, especially upon declining a generous plea offer, gets hit with the most serious offense. Treating these agents differently would have been very difficult to justify.

For what it’s worth, I believe the treatment of the smuggler is more disturbing than the sentences imposed on the agents. The agents got more time than they would have without the mandatory minimum, but what they did here patently merited imprisonment. The alien narcotics smuggler, to the contrary, gets off scot-free, plus, thanks to another congressional statute, he can actually sue the United States — and is reportedly seeking $5 million in damages.

That is ludicrous. We can swallow hard and accept the cold reality that the government needed to make a strong case to get rid of bad agents who would otherwise still be on the job — potentially endangering others, including their fellow agents. We can understand, even though we resent, that the only way to obtain the testimony of Aldrete-Davila, who was in Mexico, was to promise that his statements would not be used against him. We can perhaps even abide that the drug dealer was not prosecuted. He was, after all, shot and wounded (albeit while fleeing to escape justice); he could have stayed in Mexico rather than agreeing to return for the trial; and the agents’ misconduct had left the case against him nigh impossible: the government says that none of the agents could make a physical identification based on their fleeting and chaotic interaction with him, that the marijuana-laden van did not yield forensic evidence tying him to it, and therefore that the only way to establish guilt would have been a confession — which the feds had to provide immunity to get.

Yes, all that is infuriating, but we regrettably realize that’s the way things go sometimes. What cannot be countenanced, however, is that an illegal alien’s criminality is not only excused but rewarded — and rewarded based on the fiction that the trespasser has rights under our Constitution.

Generally speaking, an alien acquires American rights progressively as he weaves himself into the fabric of our society. Here, to the contrary, we are talking about a non-American whose every second inside our country was spent both violating our immigration laws and engaging in an international drug conspiracy. Yet, our courts have seen fit to vest such invaders with Fourth Amendment protection.

The theory is more a check on executive excess than a recognition of alien entitlement — we don’t want doors kicked in without warrants or human beings brutalized just because their presence here is unauthorized. Fair enough. But Congress has piled self-flagellation atop this well-intentioned restraint by providing a legal claim for money damages for anyone, including illegal aliens, whose “civil rights” have been denied.

That is simply too much. Congress should stipulate that only aggrieved U.S. citizens and legal aliens have a right to bring such lawsuits. We can firmly address police misconduct without simultaneously encouraging lawlessness. Making our jackpot justice system yet another attraction for illegal immigration is madness.

Finally, the implications of this prosecution for bonafide border enforcement are far from a baseless concern. Nonetheless, two things should allay our fears. First is the very solid record U.S. attorney Sutton’s office has compiled. The Border Patrol has been given great support. Appropriately, its agents have regularly been given the benefit of the doubt due to their dedication, the uphill battle that is their mission, and our desperate national need to stem the tide of illegal immigration. There is no reason to suspect that, in the future, honest, hard-working agents will be targeted for just doing their jobs.

Second, regardless of the fall-out, law enforcement must police itself with integrity. Americans instinctively think of their agents as heroes because they know most of them are. When we find some who demonstrably aren’t, dispensing with them is not an injustice. It’s a defense of honor.

Defending honor can be a wrenching business. That doesn’t make it any less vital.

Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

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