In the Border Patrol Case, the Best Defense Is a Good Offense

A report by the Homeland Security Department’s inspector general is the occasion for the latest offensive by champions of Jose Compean and Ignacio Ramos, the former Border Patrol agents currently serving lengthy sentences for assault and obstruction of justice in connection with their 2005 shooting of an unarmed, fleeing drug dealer.

I say the report is the occasion rather than the grist for the offensive because, quite obviously, the agents’ apologists would prefer that people not actually read the report.

DHS has made it available, here. It’s clear why the government would do so. Reading the report, one easily understands why the jury convicted the two agents of almost all the counts they faced. Reading the report, one easily sees that the revisionist version of events being peddled by the agents and their cheerleaders is a patent fabrication — as different from the stories Compean and Ramos were telling in the aftermath of the shooting as night is from day.

So the hype steers clear of the substance of the report. We hear, instead, about atmospherics. These include a ruckus raised at a House Appropriations subcommittee hearing earlier this week. There, DHS Inspector General Richard L. Skinner conceded that, during a September 26 meeting with four concerned Republican congressmen, some DHS officials significantly overstated the proof against the agents.

World Net Daily, an enthusiastic member of the agents’ bandwagon, reports that the officials falsely claimed to possess investigative reports that proved Compean and Ramos had confessed guilt and admitted they “wanted to shoot some Mexicans.”

In truth, the investigation established that the agents certainly wanted to shoot one particular Mexican, marijuana smuggler Osvaldo Aldrete-Davila (at whom they fired 15 times, hitting once, as he fled after they declined to take his surrender). But they never said anything about wanting to shoot him or shoot other Mexicans. As for confessions, Ramos refused to make any post-arrest statement, relying on his privilege against self-incrimination; Compean, by contrast, did make statements, by turns shady and preposterous, that conceded obstruction of justice and false statements, but claimed the shooting — the crux of the case — was in self-defense.

Naturally, DHS’s foolish exaggeration of the proof in oral statements to legislators has spun border-enforcement activists, already hopping mad, into full whirling-dervish mode. For example, columnist Sher Zieve, who apparently knows very little about either trials in general or the trial of these agents in particular, risibly rails: “In order to gain a conviction against U.S. Border Patrol Agents Ignacio Ramos and Jose Compean, the U.S. Department of Homeland Security has admitted it lied to Congress.”

Convictions, someone might ‘splain to Ms. Zieve, are not won before Congress by spiffy bureaucrats whose job is Hill hobnobbing. They are, instead, won in court by prosecutors and agents. And they can’t just blather about a case; they have to prove it to a jury beyond a reasonable doubt.

Whatever may have been said to the congressmen by the ill-informed suits is beside the point. After hearing nearly three weeks of proof that was studiously attacked by experienced defense counsel, a jury of twelve impartial Texans — red-staters whose sensible instincts are to cut our agents a break and revile illegal alien dopers like Aldrete-Davila — unanimously convicted Compean and Ramos of almost all the charges. Why? Because they were as guilty as sin.

The IG’s report elucidates that relentless fact. You want to argue about the sentences being too severe? That’s fair. But the report leaves no doubt about guilt. Consequently, in the rare instances when the agents’ partisans talk about the substance of the report at all, they make like the agents. Which is to say, they make it up.

Take, for example, Sara A. Carter of California’s Inland Valley Daily Bulletin. For Ms. Carter, border-enforcement activists’ new favorite reporter, this case has become a national coming-out party. And she is plainly ready for prime-time. She has mastered modern journalism’s craft of taking the talking points du jour from one side of a controversy and weaving them into a “news” story — regardless of how averse to reality they are. And, in this case, no matter how contrary to the take of a prosecutor who is a strong ally of the Border Patrol, of an impartial jury chosen by the agents’ lawyers, and of a neutral judge who heard the whole case and all the testimonials from the agents’ sympathizers before imposing the stiff jail terms required by unyielding statutes enacted by some of the congressmen now complaining loudest.

So here’s what Carter tells readers about the IG report (italics mine):

The Report of Investigation … released Wednesday, concludes that nine other agents at the scene of the shooting did not know it had taken place and thus were not responsible for reporting it. The report states that Border Patrol Agents Ignacio Ramos and Jose Alonso Compean shot smuggler Osbaldo Aldrete-Davila, then tried to cover up the incident by failing to file a report. It also asserts that the other agents on the scene were not aware shots had been fired.

All the names — other than Ramos, Compean and Davila — of those at the shooting scene, as well as several pages of the Border Patrol's firearms policy, were blacked out in the report. “Subsequently, the DHS OIG investigation found no evidence to suggest that (names redacted) had any knowledge of an assault on a BP agent, nor did (names redacted) have any knowledge of a reportable shooting incident …” the report states.

Even by today’s lowly standards, this account is an abomination.

Carter is transparently spinning to bolster the agents’ ludicrous contention that there was no cover-up because nobody really witnessed anything in the first place. (A flier that vies clumsily with the agents’ simultaneous claim that there was no cover-up because everybody knew all about the shooting.) But the report, if Carter had troubled herself to read it, actually establishes that several agents on the scene the day of the shooting not only knew it had taken place but actively took steps to help cover it up.

For the most part, the few agents who did not know a shooting had taken place were late-arriving supervisors, from whom Compean, Ramos and the others on duty at the time of the incident assiduously hid the truth. Inconveniently, this puts the lie to the two convicted agents’ defense that their concealment of the shooting was not obstruction of justice because supervisors were on the scene and must have been in the know.

But Carter’s report is much more shameful than that.

As noted above, she quotes the IG’s report as having found that “the DHS OIG investigation found no evidence to suggest that (names redacted) had any knowledge of an assault on a BP agent, nor did (names redacted) have any knowledge of a reportable shooting incident.” (Emphasis added.) These few lines are mined from page 26 of the 33-page report (77 pages with exhibits). The report, though, doesn’t really say “names redacted.” It just redacts them. It is Carter who asserts that names, plural, have been redacted. If you read the report, however, it turns out that this excerpt does not address multiple agents at all, much less all of the agents involved, as Carter implies.

Rather, the sentence she has mangled deals with a single agent who did not have knowledge of an assault or a shooting incident. The report — consistent with its purpose as an internal affairs probe to determine whether agents should be sanctioned — is explaining that this one agent cannot be criminally prosecuted because the U.S. attorney gave him immunity, but that he is a candidate for administrative discipline because he provided multiple false statements to investigators. It does not remotely suggest that lots of other agents did not know about the shooting. Indeed, by the time we get to page 26, the report has already lavished us with several agents’ knowledge, and deceptions, about the incident.

As if more three-card-Monte from Carter were necessary, she also omits the report’s description of this particular agent’s relevance to the case. Why leave that out? Because it sinks one of our heroes. Compean had falsely alleged that (a) he had told the agent in question that he’d been assaulted by Aldrete-Davila and (b) the agent failed to file a report documenting this purported assault. But the IG’s pointed rebuttal, conveniently skipped by Carter, notes that “[Compean’s] own statements, his trial testimony, as well as statements and testimony from the other [Border Patrol agents] contradicted Compean’s allegation.”

Readers don’t need to take my word for it. They can read the report for themselves. They can observe how agent after agent knew about the shooting and helped Compean and Ramos cover it up. They can see how, at the time of the shooting, the two convicted agents never claimed Aldrete-Davila had a gun (as they now insist); how Compean expressly conceded that he had not been assaulted or injured (as he now claims); and how Compean confessed that he had concealed evidence of the fourteen shots he fired and then lied about what happened because, in his words, “I was afraid I was going to get in trouble.”

Now, you might decide, as my National Review colleague John Derbyshire has, that I am simply doing the bidding of the “guild” of prosecutors past and present, defending a case over which the Justice Department is now feeling the heat. But then what say you of the dispatch filed by the Washington Times's Jerry Seper? No great friend of this prosecution, and in an account that highlights the ire of House Republicans over the substance of the IG’s report, Seper is still enough of a pro to acknowledge that the report said that at least three other Border Patrol agents knew about the shooting, did not report it to supervisors, destroyed evidence or made false statements to IG investigators. The agents agreed to cooperate in the probe after getting letters from federal prosecutors noting their cooperation. At least six other agents knew about the shooting, the report noted.… It bears observing that none of those agents — the agents Carter tells you don’t exist — was prosecuted by Johnny Sutton, the U.S. attorney the agents’ propagandists want you to believe is waging war against effective border enforcement. Sutton didn’t go after agents who “merely” obstructed the investigation. He narrowed his sights on two rogues who turned the rule of law into the law of the jungle, shooting and nearly killing a retreating suspect who posed no threat to them. A suspect who could not be brought to justice for drug-trafficking crimes because those agents chose to cover their tracks rather than slap cuffs on him.

Are you worried about illegal immigration? Are you frustrated beyond words with the government’s failure to defend our borders? Me too. I find the notion of a mass amnesty (or, to be in vogue, “regularization”) for illegal-immigrants to be inane. I think the “comprehensive” way to deal with the millions of illegal aliens currently in our country is very simple: Enforce the law — against the aliens and those who hire them. Do that, and millions will leave, millions more won’t come, and what now seems like an insuperable problem will shrink to a manageable one. And if the Mexican government is making mayhem on the border, I’m all for reading it the riot act.

Nevertheless, those who obsess over illegal immigration need to understand: Humanity is a major issue here. Yes, we want the illegals gone; we want the smugglers and dopers prosecuted, jailed, and then gone. We want our dedicated agents to know we back them when they have to fire at the thugs who truly imperil them, and that we give them the benefit of the doubt their dangerous job demands. But shooting human beings on sight just because they happen to be suspects, or here illegally, is reprehensible. It is inhumane. It is against the principles of honorable law enforcement. It is un-American.

Beneath the bluster, everyone knows that. Compean and Ramos surely knew. That’s why they desperately tried to conceal what they did.

The concealment, however, and the ongoing campaign to portray felons as model agents only make matters worse. These guys are no heroes. Casting them as such is an insult to the thousands of honest federal, state and local agents who put their lives on the line for us everyday. Upholding the law, not shredding it.

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