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Duncan Hunter: Amnesty for Border Patrol Agents Dave Eberhart WASHINGTON -- U.S. Rep. Duncan Hunter, R-Calif., who may seek the GOP nomination for president in 2008, has called for a congressional pardon of two U.S. Border Patrol agents convicted of federal offenses in the shooting of a Mexican drug smuggler.
The two agents, convicted and sentenced on several charges — including assault with a deadly weapon, obstruction of justice and a civil rights violation — are serving 12 and 11 years respectively. They have been the subject of a general hue-and-cry over their fate in the media, the blogs, and on Capitol Hill that has been heard loud and clear at the White House.
"People need to take a tough look at the facts, the evidence a jury looked at, as well as the judge. And I will do the same thing," was President Bush's latest word on the controversial case.
But that "tough look at the facts" may not bode well for Compean and Ramos.
At trial, the agents' lawyers argued that the agents, who fired on suspected drug smuggler Osbaldo Aldrete-Davila after a foot chase along the Texas-Mexico border in February 2005, did so because they thought he had a gun in his hand. Aldrete-Davila was struck by one round in the buttocks, but nonetheless was able to escape across the Rio Grande River.
Story Continues Below
The shooting occurred after Aldrete-Davila had fled a van the agents were pursuing. It was later revealed that the van held more than 700 pounds of marijuana, worth nearly $1 million. The trial transcript, however, indicates that the west Texas jury heard lots of aggravating facts and circumstance that perhaps turned the corner on their final judgment of the credibility of the agents, both of whom testified in their own defense. A Border Patrol agent by the name of Juarez was at the scene and testified as to what he observed. Coaxed back from Mexico with assurances of immunity and medical treatment, Aldrete-Davila also testified — as did the agents' supervisors who heard the critical after-action reports from the convicted agents.
Included in the transcript:
It should be noted that Ramos' attorney, Mary Stillinger, maintains that the court record does not expressly show that Ramos personally destroyed evidence, even though there was evidence at trial that Compean did. She also maintains that Ramos wasn't questioned about the incident by anyone and never offered a false official report about the incident, because he didn't write any report.
In the final analysis, prosecutors were able to illustrate to the jury that Aldrete-Davila did not have a gun; that the agents could not have known at the time (before the search of the van) that he was a drug smuggler; and that the agents had not obtained the permission of their seniors to pursue — as set forth in regulations.
As to the sentence, which so many find draconian, hands were tied by federal statute, which is very clear that if someone uses a firearm to commit a crime of violence, it is a 10-year mandatory-minimum sentence. Law enforcement officers are not exempted from the zero-tolerance law.
Meanwhile, the long final transcript of the trial remains unavailable, according to Shana Jones, spokeswoman for Western District U.S. Attorney Johnny Sutton who was responsible for the prosecution of the case.
Other documents that could reveal the particulars of the facts and circumstances have also been slow to emerge.
Rep. Michael McCaul, R-Texas, has been on a frustrating quest for all the details, including any information in the hands of the Department of Homeland Security inspector general and the U.S. Department of Justice. Such information, although not available to the general public, could be released to the Congress.
Despite the apparent dearth of details, the general plight of the two agents has prompted more than 20 lawmakers from both parties to send a letter to U.S. Attorney General Alberto Gonzales voicing their concern about the convicted agents.
Furthermore, 12 members of Congress have already sent a letter to President Bush that said among other things: "We ask that a full investigation of this case be ordered immediately. We are confident that during such an investigation you will find that these Border Patrol agents were acting within the scope of their duty and were unjustly prosecuted."
But the point of the spear is Rep. Hunter's Congressional Pardon for Border Patrol Agents Ramos and Compean Act. And it may be blunted by a lack of clear legal precedent.
A Long Shot
Joe Kasper, communications director and legislative assistant to Rep. Hunter, told NewsMax, "Our research indicates that Congress has never enacted legislation purporting to grant an individual pardon. However, it does appear that legislation contemplating such action was introduced in the 72d Congress."
However, the bad news for the imprisoned agents is that the U.S. Supreme Court has not yet specifically ruled on the constitutional authority of Congress to grant individual pardons.
Furthermore, conceded Kasper, it could be argued that the vesting of pardon authority in the president in Article II of the Constitution gives rise to the negative implication that Congress is precluded from exercising such authority.
On the other hand, although the Constitution vests in the president power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, this power has not been held to take from Congress the power to pass acts of general amnesty, according to language in Brown v. Walker, a 1896 Supreme Court case.
Says Kasper: a legal memo received by Rep. Hunter on the subject has noted that this statement in Brown could be viewed as lending support to the view that the pardon power is not vested exclusively in the President and may be exercised by Congress as well.
"However, it could be argued conversely that the holding in Brown does not in fact support such a conclusion, as the act at issue did not attempt to grant a pardon to anyone already convicted of a crime, or who had already committed a crime . . ." noted language in the memo.
Bottom line: It is not clear that Brown may be taken to support the assertion that Congress may grant a pardon to an individual of the same type that may be made by the president.
On a Glenn Beck program aired on Jan. 12, Rep. Hunter said, "I've watched a lot of cases in which our Marines and soldiers were involved, where they were charged or not charged with incidents like this under the Uniform Code of Military Justice. And I've never seen a case in the military where they have treated people as unfairly as these Border Patrol agents were treated.
"And I think the real bizarre piece of this is what happened in that jury room — because the idea that you had a guy who was this partner, who was prostrate and bleeding on the ground. The other agent ran past him, thought that the guy who was running away, the drug dealer, turned back, looked like he had a gun, and hit him in the rear end. And for that they got this monster conviction and sentence is — it's just strange."
Testimony in the transcript, however, indicated that Compean was bloodied only between his thumb and fingers, a slight injury from improperly grasping his firearm.
As more and more facts and circumstances emerge, it remains to be seen if the groundswell of support for a pardon coming from Capitol Hill will wane.
As of this writing, a NewsMax inquiry to the office of Rep. Hunter as to whether his enthusiastic support for a pardon has been diminished by the emerging aggravating circumstances has gone unanswered.
The Presidential Pardon Process
As to the president's timetable for action and his alternatives, it should be noted that according to statute, the chief executive may not only pardon outright but may let the underlying conviction stand and commute (shorten) the sentence.
Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding. (The two agents have appealed based upon apparent jury confusion as to whether they were privileged to deadlock in their findings.)
In general, under the statute, a presidential pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. The Justice Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement before filing a pardon application.
However, the regulations pertaining to Presidential pardons are considered only advisory and for the internal guidance of the Department of Justice — the president does not have to follow them.
The presidential pardon granted to former President Richard M. Nixon did not go through the standard process, and neither did President Bill Clinton's pardon for Marc Rich.
Hunter, who had previously formed an exploratory committee, made his presidential bid official Jan. 25 in South Carolina.
"My fellow Americans, with the support of our families, with faith in God and with the goodness of the American people, let's begin this race for the American presidency and let's win," Hunter said at a breakfast event in Spartanburg.
© NewsMax 2007. All rights reserved.
Editor's note:
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