Soldiers of Misfortune

For as long as the U.S. military has patrolled the border in search of drug smugglers, there has been the possibility that an innocent civilian would be killed. The government insists the chance is worth taking. Tell that to the family of EzequielHernandez, Jr.

August 1997By Comments

ON MOST AFTERNOONS AT THE EDGE OF EL POLVO, the low-water crossing that connects Redford, Texas, with Mexico, a visitor who survives the mind-wilting border heat may hunker beside the Rio Grande and be rewarded with a tableau as pastoral as any in Texas. The vision is preceded by an ethereal tinkling, the barest fingerprint of a sound. Then, spilling down from the northern plain, the goats come into view. There are perhaps forty of them, accompanied by a dog of obscure pedigree. Two of the goats wear bells around their necks. Quietly gnashing at the weeds, they make their unhurried way to the water.

Behind the animals a man and a boy materialize on horseback. Ezequiel Hernandez, Sr., is a solidly built, middle-aged native of Palomas, a pueblo almost visible from here. He wears a cap and a solemn but profoundly weary expression. In silence he surveys the mangy splendor of his world. His ten-year-old son, Noel, sits atop his pony with the slack posture that suggests an easy familiarity with goat herding. In this communion even the boy appears ancient. Meanwhile, the river glints like a shivering sheet of tinfoil. Across the water a lone man stands beside a dusty pickup—staring vaguely at America, waiting.

Simplicity shaded with ambiguity. That is El Polvo (literally, the Dust) and the border as a whole. Its beauty is not the innocent kind. Even the boy knows that. His older brother, 18-year-old Ezequiel Junior, who owned this very flock of goats, was shot to death here on May 20 by U.S. Marines. Likely the inscrutable figure on the other side of the river knows about the killing, and in any case, he is no innocent, as the visitor will later see for himself. But there are crimes and there are outrages. Hernandez’s death at the hands of a 22-year-old California-reared Marine named Clemente Bañuelos was at least the latter, no matter what a jury decides about the former. Newspaper readers all over America now know what tiny Redford (population: 107) always knew—that the soft-spoken, hard-working high school sophomore was as law-abiding and unthreatening as anyone drawing breath could possibly be.

Quite properly, the Texas Rangers are preoccupied with what took place the day Hernandez—carrying his grandfather’s old .22 rifle to fend off a pack of wild dogs that had been ravaging his herd—allegedly fired on four low-to-the-ground shaggy figures that turned out to be heavily armed and camouflaged Marines. The investigators have already voiced their skepticism as they square the soldiers’ statements against the autopsy report, the shooting distance, the position of Hernandez’s body, the time discrepancies, and the evidence gathered at the scene of the incident. District attorney Albert Valadez has intimated his desire to try Corporal Bañuelos for murder, and Hernandez’s parents have hired an attorney to pursue a wrongful death lawsuit against the U.S. military. While his family awaits justice, the rest of the world awaits the truth.

Senseless though the tragedy was, the greater outrage is this: Ezequiel Hernandez’s killing was eminently predictable. We could expect no less, really, from the quiet but growing movement to militarize an area populated by civilians. Just what was the Marines’ mission at El Polvo? Was it, as we have been led to believe, an honorable episode in America’s much-ballyhooed War on Drugs? The evidence plainly suggests otherwise. From inception, the Marines’ mission in Redford was trivial, politically and bureaucratically freighted, and doomed to fail—a blundering bullet, in effect, with Ezequiel Hernandez’s name on it.

FROM WHERE I SAT THE DAY I OBSERVED THE HERNANDEZES and their goats, El Polvo didn’t look like a battlefield. Later, however, as I walked through the scrubby trails paralleling the river, I found abundant evidence of the Marines’ presence there a month before: more than a dozen empty packages of military rations, plastic military utensils, camouflaging burlap and the duct tape used to secure it to the soldiers’ uniforms.

Then, after discovering a piece of wire poking out of the dirt road at the river’s edge, I dug. What I uncovered, about a foot below the surface, was a heavy plastic box, similar to a car battery, with ten-foot wires dangling from each side. “U.S. Government” read the inscription on the box, which turned out to be a sensor used to monitor movements at trafficking areas. A Redford resident I talked to had seen a U.S. Border Patrol vehicle parked at this spot late one night, about a week before Hernandez was shot. I reported this to a senior Border Patrol official. He denied the sensor was theirs and suggested that I ask the military agency that had coordinated the mission at El Polvo. I did, but a spokesperson said the sensor wasn’t the military’s either.

Abandoned there in the dirt, the devious instrument seemed a forlorn and impotent creature—a fitting symbol for the wayward mission it was intended to serve, and maybe for the War on Drugs as a whole. What was a U.S. government sensor doing out here in the middle of nowhere? El Polvo, just south of Redford, is one of dozens of nearby informal crossings, a relatively shallow stretch of the Rio Grande that can be easily waded across by small-time dealers. The real drug action goes on in ports of entry like Presidio-Ojinaga, sixteen miles away, where notorious smugglers like Pablo Acosta Villareal and Amado Carrillo Fuentes have made millions sneaking drugs into the U.S. The fact is that the War on Drugs, if it is to be won by interdiction, will be won at the ports of entry and not by collaring flunkies who ford the Rio Grande with bundles of pot held over their heads. But like all wars, this one must be fought on all fronts. So while U.S. Customs makes the big busts at the ports, the woefully undermanned Border Patrol must monitor the vast riverbanks, where the odd nickel-and-dimer might pop up.

This is where the story of Ezequiel Hernandez’s tragic demise begins: with the best of intentions. In the early summer of 1996 Border Patrol assistant chief patrol agent David Castañeda met with two informants who alerted him to a drug-backpacking operation in force at El Polvo. The news discouraged Castañeda. “In the past couple of years,” he told me, “we had hurt the organizations in Ojinaga by turning the people we’d caught over to the state, meaning they’d have to spend twelve to eighteen months in jail before even coming to trial. Word got around Ojinaga to the point where the operators had to go all the way down to Durango to recruit new backpackers. But the confidential sources told me they were recruiting in Ojinaga again.”

Specifically, they would later learn, a Cuban-born traficante named El Cubano was signing up so-called mule trains consisting of teams of five that would haul 175 to 200 pounds of pot in backpacks across El Polvo. Each backpacker would be paid about $1,500 and get counterfeit identification papers along with a free ride into the American interior, where they could then seek honest work. El Cubano’s operation was small but steady, and it took place at late-night hours, when the Border Patrol’s skeleton crew was ill-equipped to react. Castañeda knew his agency needed outside help, but he also saw the operation for what it was—hardly a mission requiring immediately deployable troops. “When we need urgent assistance,” he told me, “we call on the Texas National Guard.” In this case the call went out to Joint Task Force 6.

LIKE A GRIMACING CHESHIRE CAT, the military’s presence along the border is both more and less than it appears. For example, Joint Task Force 6 (JTF-6), the agency that coordinates anti-drug activities for the U.S. Department of Defense (DOD), subsists on a minuscule operating budget of $25 million. As its spokesperson, Maureen Bossch, insisted to me, “There has not been a recent increase in the militarization of the border. We’re such a small part of the overall fight against drugs.” Yet from its command post in El Paso, JTF-6 deploys a U.S. military force that is allocated $808 million for use in the War on Drugs—astonishingly, more than Customs, the Border Patrol, the FBI, or even the Drug Enforcement Administration.

More to the point, militarization of the border occurs not simply by funding soldiers to stand shoulder-to-shoulder with guns pointed at Mexico. Instead, a civilian zone becomes militarized when the rules of war are imposed upon it. That is precisely what transpired in May of this year, the moment four JTF-6 Marines set foot on El Polvo.

Created in 1989 by Secretary of Defense Dick Cheney, JTF-6 also owes its existence to Joint Chiefs of Staff chairman Colin Powell, who envisioned a key role for the military in the Bush administration’s National Drug Control Strategy. When one considers the political inclinations of both Powell and Cheney, one can imagine the public-relations value they saw in this maneuver. Others in the military were less sanguine. As one Defense Department spokesperson told me, “We were ordered to get into the counterdrug policy, and believe me, we were dragged in kicking and screaming. There are a lot of hard, complicated issues to be faced when you’re talking about military personnel on U.S. soil. But there was strong pressure for the military to be more involved in the drug fight. For a lot of lawmakers, this is their big political shtick.”

Beneath the rhetorical bravado, however, one finds a war that is being carried out with a near-total absence of urgency. In the dull, workaday setting of vast Biggs Army Air Field, part of Fort Bliss near El Paso, some 169 soldiers and support personnel toil at JTF-6, including its commander, Brigadier General James Lovelace, who, like his predecessors, will serve eighteen months before moving on to the next post. This lack of continuity exasperates other senior colleagues in the federal drug war—including one senior official at another agency who says of JTF-6: “It’s basically a way station where a one-star general gets a second star, and then he moves on.”

The wheezing bureaucracy that directs the military’s drug warriors hardly provokes an image of a lean, mean fighting machine. It takes months for JTF-6 translators to provide a wiretap transcript and usually a year to deploy an operational military unit. Its so-called rapid support unit renders assistance in about a month, according to spokesperson Bossch. In memos distributed to local, state, and federal drug-fighting agencies, JTF-6 regularly promotes what a senior official at another agency terms “services they want you to use, as opposed to what we need.” Canine training, first-aid instruction, fence building, map reading—all useful, but are they unique or simply a way for one agency to spend another’s money?

JTF-6’s biggest federal client is the Border Patrol, an agency whose primary function is not narcotics interdiction, but people interdiction. When I asked a senior Border Patrol official at the Marfa sector about what use he had made of the military through JTF-6, he enthused, “They improved a shooting range out at the Marfa airport and saved us seventy percent of the cost. They also built a radio workshop for us much cheaper than we could’ve done it.”

Compared with such dubious pursuits, the interdiction mission against El Cubano’s backpacking operation must have resembled the invasion of Normandy in the eyes of the officials who reviewed it for merit. In truth, though, when U.S. Border Patrol assistant Marfa sector chief Rudy Rodriguez penned the proposal last June or July, he knew that the request for several LP/OPs (listening posts–observation posts) to be stationed in and around El Polvo wasn’t actually going to snare El Cubano. “The backpacking situation had something to do with the request,” Rodriguez told me recently, “but it wasn’t just that. I knew there wasn’t a pattern I could point them to by the time they got there. Mainly, we wanted to use them here as a force multiplier because of our lack of personnel.” Though Bossch of JTF-6 would later explicitly tell me, “We’re not a force multiplier—they’re not using us for that purpose,” it seems clear that despite all the sophisticated gadgetry offered by the military, Rodriguez called upon JTF-6 for one basic reason. The Border Patrol Marfa sector—having been reminded once again that a small-time smuggling scheme could crop up anywhere within its 115,000-square-mile jurisdiction and operate with impunity—needed more bodies and didn’t care where it got them.

Perhaps an objective review board would have seen through Rodriguez’s request and discarded it. But there is nothing remotely objective about Operation Alliance, the bizarre outfit at Biggs Field that evaluates all agency requests for military assistance. Funded by the very federal agencies (such as the Border Patrol and Customs) that file the lion’s share of the requests, Operation Alliance’s nineteen members happen to work for those agencies as well. Not surprisingly, then, the organization—which, apart from receiving policy guidelines from Washington, answers to no agency—dutifully passes on to JTF-6 85 percent to 90 percent of the requests (or about 1,500 annually), according to Operation Alliance’s senior tactical coordinator, Brian Pledger. Predictably, Operation Alliance rubber-stamped the Marfa sector’s request. The proposed mission, like all others, was then forwarded to one of JTF-6’s four lawyers. What followed was a painstaking, time-consuming review to determine whether the project in any way violated the Reconstruction-era Posse Comitatus statute, which was enacted to ensure that the military does not get into the business of domestic law enforcement. (Though watered down somewhat in the eighties, the statute still limits domestic policing on the part of the DOD in ways that do not apply to the National Guard, the Border Patrol, Customs, the FBI, and the DEA.) In signing off on the El Polvo mission, the JTF-6 lawyers would, in effect, give the lie to the fiery oratory of politicians who promised their constituents, amid the popping of flashbulbs, to wage this war the old-fashioned way.

Shortly after one of the attorneys okayed Rodriguez’s proposal, a JTF-6 message went out to every Army and Marine base in America, soliciting volunteers for an operational mission along the Texas-Mexico border. The message billed the El Polvo mission as a real-world encounter with drug smugglers, a challenge more bracing than the usual numbing base drill. All the same, it was a military exercise. The unit that signed up for the operation would do so not to win the War on Drugs but to satisfy one portion of the unit’s “mission essential task list”—the checklist of duties any outfit must fulfill before becoming eligible for deployment in an actual battle. According to Bossch, the unit that was selected was simply the first that volunteered. That happened to be the 5th Batallion, 11th Marine Regiment, an artillery unit stationed at Camp Pendleton in San Diego County, California.

In October, fully four months after Castañeda had received word about the backpacking operation, the Border Patrol met with JTF-6 and Camp Pendleton officials to plan their mission. In that span of time the backpackers had doubtless altered their route, as smugglers do. Nonetheless, Castañeda, Rodriguez, and the military advisers elected to station an LP/OP unit near El Polvo, with a sensor to be buried at the crossing to signal comings and goings. Meanwhile, the 5th Batallion was transported to Biggs Field, where the troops engaged in situational military exercises, strategy sessions, and Posse Comitatus statute seminars for a few weeks. Following this, the unit returned to Camp Pendleton and intensified its mission planning, which included setting up a prototype operational center. All in all, the Marines engaged in a phenomenal flurry of activity, considering that the initial justification for the mission had long since evaporated.

Included in their standard military training was something known as the Joint Chiefs of Staff Standing Rules of Engagement. In essence, the rules of engagement dictate that when a soldier perceives an imminent threat to the lives of his fellow soldiers, he responds not as a police officer would—with a warning or with intent to disarm or wound—but instead as a warrior would on a battlefield. As Marine colonel Thomas Kelly explained in a press conference two days after the death of Ezequiel Hernandez, “If you reach the point where you fire for fear of your lives, then you usually fire to kill.”

Rudy Rodriguez of the Border Patrol knew, as he put it, “In times of stress, you revert to your training.” According to Rodriguez, “I mentioned to the planners when they were making their threat assessment, ‘You’ll see guns everywhere all along the border.’ I told them, ‘In daytime, a guy with a gun is not a threat.’”

Apparently, the planners forgot to pass this information on to U.S. Marine corporal Clemente Bañuelos.

BY LAW, THE MILITARY IS REQUIRED to gain permission from a landowner to conduct an exercise on private property. Unlike the other border states, Texas is composed of very little public land, and the difficulties involved in securing landowner permission therefore help explain why less than 10 percent of JTF-6’s approximately 3,300 missions have taken place in our state, according to Bossch. The mission at El Polvo presented the worst of all possible scenarios. The military indeed received permission to encamp on acreage just downriver from the crossing. Unfortunately, the landowner resided in Kermit, 221 miles north of Redford, and seldom visited his border property. The other townsfolk had no way of knowing that the Marines would be descending on El Polvo. For that matter, the Presidio County Sheriff’s Department didn’t know either. And because there was no one to tell Redford about the Marines, no one, conversely, told the Marines about Redford. Colonel Kelly of the Camp Pendleton unit would later tell the press, “We key off of law enforcement. They have a good feel for the community. They live it, they breathe it, and they’re part of it. So we depend upon law enforcement’s judgment as to what there is to find.” This kind of communication did not occur. Kelly also said that military intelligence gatherers actually visited El Polvo three to four days before the unit was deployed there. And, of course, either JTF-6 or the Border Patrol visited the crossing and buried a sensor. Yet throughout all this preparation, the military never gathered the one bit of information that everyone in Redford knew, the one kernel of intelligence that would have saved both the mission from being aborted and, incidentally, a life—nearly every afternoon from about five to six, a young man named Ezequiel Hernandez, Jr., brought his flock of goats to the riverbank.

On May 12 an advance team of Camp Pendleton officials arrived in Marfa and set up shop in a mobile home on a lot behind the sector headquarters of the Border Patrol. Two days later a C-130 airplane conveyed the remainder of the 5th Batallion to Marfa. Of the 120 or so soldiers, about 10 would remain at the command center on the Border Patrol lot—where, among other things, they would receive signals of movement from the sensor buried by El Polvo. Sixteen of the remaining Marines would be deployed at four designated LP/OP sites, 4 soldiers per location, rotating every few days to keep the troops fresh. The following day, May 15, 16 Marines were sent to their posts, officially, if secretly, inaugurating the military’s fourteen-day mission.

Unit 513, stationed near El Polvo, consisted of four noncommissioned Marine corporals: Ronald Wieler, Jr., Ray Torres, Jr., James Matthew Blood, and the team leader, San Francisco–native Clemente Bañuelos. For the next five days, the four young men (all of them between the ages of 19 and 22) lived day and night in the mesquite brush of a country where temperatures routinely soar into the triple digits. Each wore a ghillie suit, camouflage that covered him from head to toe in stringy brown and green burlap strips, their M-16 rifles similarly obscured, with their faces darkened, so that the Marines looked like nothing so much as large blobs of foliage—or, as some would later suggest, Bigfoot. While living on military rations and sweltering in their bulky garb, they looked through their binoculars, listened to the sensor reports on their radios, and in general came to know the world of the border through the eyes and ears of trained warriors.

“Every night they saw vehicles crossing,” Rodriguez told me. Of course, this wouldn’t surprise Redford residents, most of whom had family on the other side and routinely crossed over themselves. Furthermore, El Polvo has long been a corridor for contrabandistas—though the goods in question tend to be clothes, electronic wares, or frozen chickens being ferried into Mexico. So what, exactly, was there for the Marines to see? According to Rodriguez, on the third or fourth night, Unit 513 observed the crossing of ten illegal aliens, who were subsequently apprehended by the Border Patrol. But they weren’t carrying drugs, and they bore no connection to El Cubano’s smuggling scheme. According to David Castañeda, the Marines never once observed any backpackers; and though El Cubano was arrested a month later, credit for his apprehension would go to the Mexican police rather than anyone on the American side of the river.

In short, Unit 513 saw and did nothing during its five-day observation period at El Polvo to fulfill anyone’s notion of an anti-drug mission. But on the afternoon of Tuesday, May 20, while encamped at their “hide site” near the banks of the Rio Grande, the four Marines did see someone. It was a Mexican man on horseback, across the river, gazing at America and waiting.

THERE IS NO WAY TO KNOW FOR CERTAIN whether the horseman was the same man beside a parked truck I saw 22 days later, when I visited El Polvo and watched the father and brother of Ezequiel Junior take the goats to the water. There is also probably no way to know for sure what he was up to. We do know that he unwittingly triggered the calamitous accident that was waiting all along to happen. The sighting of this man prompted the four Marines to move to higher ground—within view of Hernandez, who stood watch over his flock with a rickety .22 in hand, prepared to fire on the pack of wild dogs from town that had recently mutilated one of his goats.

The world of fact grows murky here. Did the teenager see the Marines? And if so, could he tell who or what they were? (Said Colonel Kelly at the press conference: “It is the team’s impression that there is no mistake that they were identified as humans.”) Or, considering their bushy camouflage and the standard duck-walking movements of stalking Marines, did he believe them to be dogs? Border Patrol officials confirm that a Marine radioed word that they had been fired upon—twice, according to two Marines in their statements. The Marines say that they then shadowed Hernandez (for how long is unclear) and that he not only did not retreat but eventually raised his .22 to fire at one of them. The Rangers have already expressed doubt over this scenario, considering that Bañuelos shot the right-handed Hernandez in the right side, which would not have been exposed to the team leader if Hernandez had been aiming in the other Marine’s direction. Instead, judging from the entry point of the single lethal bullet, one might conclude that Hernandez was turning to go back home with his goats.

Regardless, Bañuelos fired his M-16 once. According to the Marines, Hernandez staggered, then fell backward into a three-foot fire pit. That, at least, is where the Border Patrol found him 22 minutes later. The Marines made no attempt to revive Hernandez, though, as the autopsy would later establish, he bled to death; in other words, he did not die instantly. Did the Marines let him die because they were not required to save his life? Or was it in their best interests, judging by what happened at El Polvo, that Ezequiel Hernandez be prevented from describing his version of the events?

We know this: The Marines at no time told him, as a lawman might, who they were and what their business was. Citing the windy conditions of that afternoon (though that, too, is a matter of dispute) that would have made verbal communications difficult, Colonel Kelly told the press, “In order to get the attention of the individual, they would’ve had to expose themselves. And there was no requirement under the rules of engagement about having to do that.”

We also know this: Though at the time of his death Ezequiel Hernandez actually had a U.S. Marines recruiting poster tacked to the wall of his bedroom, he did not know that the Joint Chiefs of Staff Standing Rules of Engagement applied to the world that was his back yard.

HERE IS THE REST OF ALL I KNOW. Twenty-two days after Ezequiel Junior was shot to death, I sat on a rock beside El Polvo and said, “Buenos tardes” to his father as he passed me on horseback. “Buenos tardes,” replied Ezequiel Senior, as did Noel, and then they followed their goats uphill toward home. But the man across the river on the Mexican side continued to stand beside his truck for almost an hour. He looked at me, and I looked at him. Neither of us seemed to be in any imminent danger.

Then, at about six-thirty, I heard the sound of an engine coming from the north. Looking up, I saw a large vehicle slash and jiggle its way through the brush-clogged dirt road. It was a large flatbed truck, piled at least six feet high with contraband—which, I could plainly see, consisted of nothing more than some seventy automobile tires precariously tied to the bed. Slowly, inexorably, the truck advanced upon El Polvo. It plowed noisily through the river, spraying water everywhere. A minute later it was across. Only then did the lone man beside the truck move. He waved to the driver of the contraband, hopped into his own vehicle, and drove off after him.

While watching the tire contrabandistas vanish into the Mexican interior that afternoon, it occurred to me that somewhere in somebody’s headquarters, a sensor signal had been transmitted. Maybe somebody would hear the signal. Even if he did, the battle would be joined too late.

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