Comments by Rep. Lamar Smith on the death fo Ezekeiel Hernandez
Law and Public Documents - Congress
THURSDAY, MAY 21, 1998House of Representatives,
Subcommittee on Immigration
and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:27 a.m., in Room 2237, Rayburn House Office Building, Hon. Lamar S. Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar S. Smith, Elton Gallegly, William L. Jenkins, Edward A. Pease, Chris Cannon, Ed Bryant, James E. Rogan, Melvin L. Watt, Howard L. Berman, and Zoe Lofgren.
Staff present: Jim Wilon, Counsel; Laura Baxter, Counsel; Judy Knott, Staff Assistant; and Martina Hone, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN SMITH Mr. SMITH [presiding]. The subcommittee on Immigration and Claims will come to order.
We have some business to conduct initially in regard to subpoenas and we're going to go to a hearing on the reorganization of the INS. I have an opening statement, then I'll turn to Mr. Watt for his opening statement, and then we will await the appropriate number of members to vote on the subpoenas.
A year ago this week, a terrible injustice occurred near the west Texas town of Redford. Ezekiel Hernandez, Jr., an 18-year-old high school student, was shot and killed while he was tending his herd of goats. The public has never been told the whole story.
All we know is that on May 20, 1997, four United States Marines were on patrol near the Texas-Mexico border to watch for suspected drug smugglers. This was part of an operation overseen by the United States Border Patrol. The Marines observed Hernandez herding his goats about 200 yards away, carrying a 22 rifle to protect himself from thieves, wild dogs, and rattlesnakes.
At one point, Hernandez may have raised his rifle and fired one or two shots in their direction. Because the Marines were fully camouflaged and concealed, Hernandez probably didn't recognize them and he may not have seen them at all.
For 20 minutes, Hernandez moved slowly along a ridge exposed from all sides. The Marines shadowed him, maintaining their concealment. They radioed their command center and said that they were, ''taking him if he raised his gun again.'' The response was, ''roger, fire back.''
Finally, Hernandez stopped by an old well filled with dirt and raised his rifle again. One hundred and fifty yards away, the Marine team leader put the cross hairs of his scoped M-16 on the youth's chest and pulled the trigger. The bullet hit him with enough force to lift him off his feet and throw him backwards into the well. The Marines approached the motionless body. No one attempted to administer any type of aid. They watched, not knowing whether Hernandez was dead or alive. Hernandez bled to death in a few minutes.
The Border Patrol was supposed to respond to emergencies within 15 minutes. If they had done so, they would have arrived on the scene 5 minutes before Hernandez was shot. Instead, it took them 38 minutes to get there, and by then, he was dead.
The shot that killed Hernandez started a battle in west Texas. This battle turned out to be just as lopsided as the encounter between Hernandez and the Marines. On one side were a family and a community that lost a son and a brother. The Texas Rangers investigated the killing and the district attorney called a grand jury. They wanted to know why Hernandez was killed and they wanted justice.
On the other side were two of the most powerful government agencies in the world, the United States Department of Defense and the United States Department of Justice. People in those agencies didn't want criminal trials, or damaged careers, or public embarrassment. They had an army of government lawyers to fight for them, and so far, they have won the battle.
The killing of Ezekiel Hernandez raises many troubling questions. Who decided to put the Marines in Redford and did they have the authority to be there? How could a team of United States Marines have killed a young man herding goats? How were those Marines trained by the Border Patrol? Were they truly prepared for their mission? Did someone really believe that a youth with a 22 rifle had decided to conduct a frontal assault on a team of United States Marines? Did they think that their only option was to shoot him?
The Marines had been requested by the Border Patrol. The Border Patrol was supposed to brief the Marines, supervise them, and respond to emergencies. But that didn't help Ezekiel Hernandez. Why hasn't anyone been held accountable for this shooting? Why hasn't anyone been suspended, sanctioned, or penalized for their actions? Most importantly, where is the justice when an innocent young American is killed by his government?
Shortly after the killing, I initiated congressional investigation. And as you can see from the timelines that we have provided, I spent a year trying to obtain the most basic information, like the written statements made by the Marines and Border Patrol agents involved in the killing. For a long time the Justice Department was conducting a criminal investigation, but the criminal investigation has been over for more than 3 months.
Late yesterday afternoon, the Justice Department finally delivered a folder containing some requested documents, apparently in an effort to avoid subpoenas. Even a cursory examination of the new material revealed that the Justice Department has not yet provided what Congress has asked for.
The Justice Department has refused to provide any documents in their custody that originated in the Defense Department, although there is no basis in the law for this refusal. The Department has also refused to describe the nature and content of these withheld documents. The Justice Department has failed to provide statements from all the Border Patrol agents who were at the scene of the killing, as I requested. Finally, I am troubled by the fact that the sequentially numbered documents provided by the Justice Department—there are 143 numbered documents missing, which the Department has not yet explained.
Congress and the American people have waited too long for the truth about the death of Ezekiel Hernandez. I will move that we subpoena the Justice Department for all the documents that are relevant to his death, so that the truth can finally come out. That the death of Ezekiel Hernandez resulted from poor training or poor judgement, then we have a responsibility to hold people accountable and learn from this tragedy so that it is not repeated.
I will also move for an identical subpoena to be served on the Defense Department so that we can obtain all the relevant documents without delay. This is not because of any obstruction by the Defense Department, but a full year has passed since Ezekiel Hernandez died, and we cannot in good conscience wait any longer.
Let me say to my colleagues whose vote I will be asking for that I do not take this issuing of subpoenas lightly. In fact, it's the first time as a subcommittee that we've requested that. But I think it is important for us and for the American people to have the facts, to have accurate information, and to have the truth, and nothing less than that is acceptable.
Let me also thank my colleagues for their presence at this meeting of the subcommittee. I know they have had to leave another hearing that is very, very important to be here, and I appreciate their attendance.
http://commdocs.house.gov/committees/judiciary/hju58801.000/hju58801_0.HTM
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