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Contributed by The Watchman   
Wednesday, 07 February 2007
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The Border-Patrol Two Deserve Jail
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PROSECUTORIAL DISCRETION
Still, it must be asked: Did the Justice Department overreach in charging it? This is a very close call, but I believe it was a reasonable exercise of discretion.

Yes, the government could have contented itself with lesser charges such as obstruction of justice and false statements, offenses that could probably have been proved without testimony from Aldrete-Davila — thus obviating the need to give him use-immunity in exchange for his testimony. But as Sutton points out, the case would not have been nearly as strong without the testimony of the smuggler. He was the only witness in a position to explain the entire transaction and rebut the agents’ perjurious version of events. If it was important to do this case at all, it was important to present that testimony. Otherwise, the agents would have been positioned to portray themselves as decent men doing a tough job who were being unfairly nickled-and-dimed over mere technicalities — and if you don’t think that was a concern for the prosecutor, you haven’t been listening to what conservatives usually strong on law-and-order have been saying about the Scooter Libby case, or what liberals said through years of defending Bill Clinton.

More significant than strategy, Americans need to know that there are not two justice systems: one for corrupt public officials and one for everybody else. Everybody else, especially upon declining a generous plea offer, gets hit with the most serious offense. Treating these agents differently would have been very difficult to justify.

For what it’s worth, I believe the treatment of the smuggler is more disturbing than the sentences imposed on the agents. The agents got more time than they would have without the mandatory minimum, but what they did here patently merited imprisonment. The alien narcotics smuggler, to the contrary, gets off scot-free, plus, thanks to another congressional statute, he can actually sue the United States — and is reportedly seeking $5 million in damages.

That is ludicrous. We can swallow hard and accept the cold reality that the government needed to make a strong case to get rid of bad agents who would otherwise still be on the job — potentially endangering others, including their fellow agents. We can understand, even though we resent, that the only way to obtain the testimony of Aldrete-Davila, who was in Mexico, was to promise that his statements would not be used against him. We can perhaps even abide that the drug dealer was not prosecuted. He was, after all, shot and wounded (albeit while fleeing to escape justice); he could have stayed in Mexico rather than agreeing to return for the trial; and the agents’ misconduct had left the case against him nigh impossible: the government says that none of the agents could make a physical identification based on their fleeting and chaotic interaction with him, that the marijuana-laden van did not yield forensic evidence tying him to it, and therefore that the only way to establish guilt would have been a confession — which the feds had to provide immunity to get.

Yes, all that is infuriating, but we regrettably realize that’s the way things go sometimes. What cannot be countenanced, however, is that an illegal alien’s criminality is not only excused but rewarded — and rewarded based on the fiction that the trespasser has rights under our Constitution.

Generally speaking, an alien acquires American rights progressively as he weaves himself into the fabric of our society. Here, to the contrary, we are talking about a non-American whose every second inside our country was spent both violating our immigration laws and engaging in an international drug conspiracy. Yet, our courts have seen fit to vest such invaders with Fourth Amendment protection.

The theory is more a check on executive excess than a recognition of alien entitlement — we don’t want doors kicked in without warrants or human beings brutalized just because their presence here is unauthorized. Fair enough. But Congress has piled self-flagellation atop this well-intentioned restraint by providing a legal claim for money damages for anyone, including illegal aliens, whose “civil rights” have been denied.

That is simply too much. Congress should stipulate that only aggrieved U.S. citizens and legal aliens have a right to bring such lawsuits. We can firmly address police misconduct without simultaneously encouraging lawlessness. Making our jackpot justice system yet another attraction for illegal immigration is madness.

Finally, the implications of this prosecution for bonafide border enforcement are far from a baseless concern. Nonetheless, two things should allay our fears. First is the very solid record U.S. attorney Sutton’s office has compiled. The Border Patrol has been given great support. Appropriately, its agents have regularly been given the benefit of the doubt due to their dedication, the uphill battle that is their mission, and our desperate national need to stem the tide of illegal immigration. There is no reason to suspect that, in the future, honest, hard-working agents will be targeted for just doing their jobs.

Second, regardless of the fall-out, law enforcement must police itself with integrity. Americans instinctively think of their agents as heroes because they know most of them are. When we find some who demonstrably aren’t, dispensing with them is not an injustice. It’s a defense of honor.

Defending honor can be a wrenching business. That doesn’t make it any less vital.

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


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