Marines Faulted in Own Report on Teen's Death

For 72 hours, they had kept a secret anti-drug sentry, watching for smugglers on the riverbanks of the tiny West Texas hamlet of Redford. Nobody was supposed to see the Marines or even know that an armed military unit was in town. But now, on the final day of their shift, the plan was unraveling.

Somebody had spotted them, somebody with a rifle.

"As soon as he readies that rifle back down range, we are taking him," Banuelos radioed to his superiors, who were 65 miles away at the Marines' Tactical Operations Center in Marfa.

"Roger," the radio operator affirmed. "Fire back." Twenty minutes later, the goatherd was dead--a casualty of "systemic failures at every level of command," according to a scathing Marine Corps investigation that for the first time makes public a detailed chronology of the May 20, 1997, incident.

The report recommends no criminal or disciplinary action against Banuelos, whose decision to use lethal force was reasonable "in light of the training he received for this mission." But in remarkably self-critical language, Marine investigators concluded that Banuelos' training--and almost every other step before and after the Camp Pendleton-based Marine returned Hernandez's fire--was either "inadequate" or "problematic" for a domestic surveillance operation.

"Basic Marine Corps combat training instills an aggressive spirit," wrote retired Maj. Gen. John T.

Coyne, who led a 22-member investigative team that pored over 13,000 pages of interviews and evidence.

While that spirit may be desirable in an armed confrontation with a hostile enemy, Coyne added in a summary of his findings, it is "far removed from the reality of manning an observation post on private property, adjacent to a small community, on United States soil." The shooting rekindled a national debate over what role, if any, the armed forces should play in the war against drugs, with critics condemning the "militarization" of the U.S.-Mexico border and proponents insisting that every available weapon must be used to combat international smugglers. A series of criminal investigations, including two state grand juries and a federal civil rights inquiry, failed to produce any indictments. Nonetheless, the Pentagon suspended armed anti-drug patrols on the border, and the Justice Department paid Hernandez's family $1.9 million to settle a wrongful-death claim.

Military Policies Are Questioned Throughout the ordeal, military officials described the incident as tragic but justifiable, an act of self-defense by one good young man against an inexplicable attack by another. The Marine Corps investigation did reaffirm that basic judgment; in fact, when its completion was announced in June, most news organizations reported only that Banuelos had been cleared, once again, of any wrongdoing. But when the weekly San Antonio Current posted the entire 141-page summary on its Web site this month, it revealed a far more critical document--a catalog of miscues and blunders that calls into question the policies that put the Marines on the border in the first place.

By acknowledging systemic errors, the Marines raised Hernandez's death to "the stature of a war crime," charged Mel LaFollette, a retired clergyman in Redford, Texas, who is trying to organize a class-action lawsuit on behalf of the community's 100 residents. "This is proof of misconduct above the level of the guy who did the shooting. This was an apparatus, a hierarchy, carrying out a policy." A spokesman at Marine Corps headquarters in Virginia, Lt. Col. Scott Campbell, acknowledged that "the findings from Gen. Coyne are very candid." He noted that several officers with direct responsibility for the mission had been "officially counseled in writing" but said no other punitive measures were being taken.

In a dissenting opinion, the commander of Camp Pendleton's 1st Marine Division blasted the report as arbitrary and misleading, full of "unsupported and inconclusive allegations." Gen. John H. Admire conceded that the shooting was a tragedy but one that Hernandez alone provoked.

"We regret his actions and their contributions to his death," Admire wrote.

No Emergency Plans for Marine Mission Before shipping out to Redford, the 1st Marine Division had participated in 118 domestic anti-drug missions. In four of those missions, Marines came under fire. In one of them, a Marine was wounded. Yet according to the investigation, the four Marines in Banuelos' unit were never required to plan or rehearse how they would respond to an emergency. Some of them did not even meet each other until a week before the mission.

"Cpl. Banuelos was not leading a cohesive unit, and the situation which confronted him was different from anything for which he had been trained," the report stated. In fact, the mission itself appears to have been viewed primarily as a training opportunity, not as a "real-world deployment," the report added. "The failure to appreciate the difference had tragic consequences." What little training the Marines received--about three days--was done in Southern California, not Texas. They knew almost nothing about Redford, which lies about 200 miles southeast of El Paso, other than that the drug traffickers operating there represented "an organized, sophisticated and dangerous enemy" and that residents were assumed to be in cahoots. "Not a friendly town," the Marines were briefed.

Hernandez had no criminal record and was never suspected of involvement in the drug trade. He did, however, have one brush with the law a few months before his fatal encounter with the Marines.

On a February night in 1997, two Border Patrol agents heard gunshots on the riverbanks. Later, they came across Hernandez, who apologized to the agents, saying he "thought he had seen someone trying to steal his goats, so he shot to try to scare them off," according to the investigation. Hernandez said he would not have fired his weapon if he had known the agents were in the area. The agents warned him to be more careful but did not report the incident.

That decision ultimately denied the military "an essential element of intelligence," the investigation found, noting that it might have led the Marines to stake out a different location.

Instead, the Marines ended up at the Polvo Crossing, between Hernandez's home and the Rio Grande. They were to remain in a hiding spot during the day, then move to an observation post at night. The first team of Marines went in May 14. On May 17, Banuelos' team--which included Cpl. Roy Torrez Jr., Lance Cpl.

Ronald H. Wieler Jr. and Lance Cpl. James Blood--relieved them. The departing crew had little to report--other than to tell Banuelos' team to "watch out for the goats" that tended to wander into their camp.

Under the rules of Joint Task Force 6, which was created in 1989 to give military personnel a supporting role in domestic anti-drug operations, armed units are allowed only to conduct surveillance.

All contact with suspects and other civilians must be made by a law enforcement agency. In this case, as in most, that meant the Border Patrol.

The Border Patrol agreed to respond within 15 minutes to any emergency call. The Marines believed that meant 24 hours a day. The Border Patrol believed the agreement only applied at night--when the Marines would presumably be on watch.

On May 20, just about the time Hernandez was taking his goats to the river, Banuelos' unit began making its way to the observation post. It was only 6 p.m., and nightfall was still several hours away. But it was the final day of their shift, and the Marines were eager to start packing up. Their commander, Capt. Lance McDaniel, later told investigators that, if he had known how early the Marines had broken camp, "it would have been a cause of concern." As they hiked through the brush, hunched over to avoid detection, the Marines spotted Hernandez. He was about 200 yards away. "He's armed with a rifle, appears to be, uh, herding some goats or something," Banuelos reported on his radio.

Back at the operations center in Marfa, Lance Cpl.

James Steen responded: "You should remain in your position . . . and try not to be seen, but you should know what to do." Just then, according to the report, Hernandez lifted his rifle and fired. Some of the Marines heard one shot, others remembered two. Military officials concede Hernandez could not have known whom he was firing at. But the Marines were nonetheless convinced he could see them, at least well enough to know he was aiming at human targets.

"Lock and load," Banuelos ordered. Then he radioed to the operations center: "We're taking fire." The operations center alerted the Border Patrol, which had three agents within about 15 minutes of Redford. But, believing the Marines would not be in place for several hours, the agents were not equipped for a shootout. Instead of racing to the scene, the investigation found, they returned to the nearest station to pick up semiautomatic rifles and bullet-proof vests--a delay that doubled their response time.

Hernandez, meanwhile, was still trying to figure out who or what was snooping around his four dozen goats.

He was standing on his tip-toes and craning his neck, "bobbing and weaving . . . like when you look at something in the distance," one of the Marines told investigators.

Four minutes after the shots were first reported, Banuelos and Steen had their radio exchange about the use of lethal force. Unbeknownst to Banuelos, however, Steen's authorization to "fire back" had triggered a heated argument in the operations center.

The mission commander, McDaniel, believed the authorization may have been "incorrect," according to the report. He removed Steen from the radio and replaced him with a more seasoned officer, Sgt. Daren Dewbre. But McDaniel did not immediately rescind or clarify the order.

"He remained too passive and deferred to Cpl.

Banuelos' judgment," the investigation contended. "He should have made a more aggressive effort to obtain the facts and control the tactical decision-making process." On the radio, Dewbre also seemed overly cautious.

"Just give us an update," he said.

Banuelos replied: "He knows we're out here. He's looking for us." Finally, after another four minutes, Dewbre elaborated. "You're to follow the ROE [rules of engagement]," he advised.

The rules of engagement, which were printed on small cards and distributed before the mission, permit the Marines to use deadly force to defend themselves or others against an imminent threat. The rules also caution that force should not be used "if other defensive measures could be effective." In an expert opinion solicited by investigators, retired Marine Corps Col. Hays Parks argued that those rules--rules that Banuelos was found to have followed--are inappropriate for a domestic law enforcement mission. "The individual Marine is prepared from prior combat training to understand 'engagement' as presuming a hostile force," Parks wrote. "Accordingly, the admonition within the rules of engagement to de-escalate--where possible--becomes counterintuitive." The officers in the operations center were not even sure whether Banuelos had received their admonition.

He did not acknowledge it. Instead, he handed the radio over to Torrez and motioned to Blood and Wieler to follow him. They began closing the gap on Hernandez, getting to within 140 yards. The Marines never attempted to identify themselves or contact Hernandez; indeed, they were neither trained nor obligated to do so. Under their rules, they could either retreat and wait for the Border Patrol to arrive, or they could shadow Hernandez and defend themselves if the occasion arose.

"Tragically, some of Cpl. Banuelos' actions . . . did not defuse the situation," the report stated.

Banuelos later told investigators that Hernandez raised his weapon again, in the direction of Blood.

Blood was moving and did not see Hernandez. Torrez was also out of view. Wieler initially said he did not see Hernandez lift the rifle but later changed his testimony to indicate that he did.

Banuelos fired his M-16, striking Hernandez once in the upper right chest. At 6:27, about 20 minutes after first reporting Hernandez's shots, the Marines radioed back: "We have a man down." It took the Border Patrol 10 more minutes to arrive.

It took another 10 minutes after that for agents to radio for an ambulance. It took another seven minutes for a medical rescue helicopter to be sent and another 12 minutes for it to land. In all, nearly 40 minutes elapsed from the time Hernandez was shot to the moment a paramedic arrived at his side.

The Marines told investigators they had been hesitant to render aid, afraid at first that Hernandez might be faking his injuries, later that he had broken his neck and could not be safely moved. The investigation found that Hernandez would have died of the gunshot wound anyway. But the report still chastised the Marines for failing to honor "the basic humanitarian responsibility" to provide medical care.

The Marines were taken back to a hotel and given a six-pack of beer, then told to write down their formal statements. Banuelos, who was 22 at the time, left the military this summer. As the only member of his unit not to receive immunity from prosecution, he has declined all requests for an interview.

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