http://www.chron.com/disp/story.mpl/pol ... 98915.html

March 3, 2007, 10:48PM
Bush in a quandary over border agents' case
Border shooting uproar leaves him no easy option


By MICHELLE MITTELSTADT
Copyright 2007 Houston Chronicle Washington Bureau

WASHINGTON — For weeks, defenders of the two former Border Patrol agents imprisoned for shooting a Mexican drug trafficker have bombarded the White House with calls, e-mails and petitions.

Their demand is straightforward: A presidential pardon for a pair of Texans they view as heroes persecuted for doing their jobs.

"This is a terrible injustice, and I urge you to use your considerable authority and power to pardon these two agents and right this obvious wrong!" reads a petition from Grassfire.org, a conservative Web site that claims more than 337,000 people have signed the online form.

But the issue is far from simple for President Bush, who is being asked to wade into a highly controversial case where even the most basic facts are in dispute. The quandary for the president: Whether to side with former Border Patrol agents Jose Compean and Ignacio Ramos or with the prosecutors who contend they were rogue officers who wounded a fleeing, unarmed man and then concealed evidence.


Outcry from conservatives
During a February 2005 incident near Fabens, Texas, Compean and Ramos pursued Osvaldo Aldrete-Davila and fired 15 rounds at him as he ran back toward Mexico after ditching a vehicle with 743 pounds of marijuana. The wounded trafficker later was given immunity to testify against the agents in a case that has drawn a tremendous outcry from conservatives on and off Capitol Hill, who believe the Bush administration sided with a drug trafficker over its own law enforcement agents.

Though clemency is the one area in which a president has power unlimited by the courts or Congress, Bush thus far has indicated no inclination to sidestep the Justice Department regulations typically followed for pardons cases.

"There is a process in any case for a president to make a pardon decision," Bush said during a Fox News Channel interview in January. "In other words, there is a series of steps that are followed so that the pardon process is, you know, a rational process."

The Justice Department rules require that people petitioning for a pardon wait until five years after they have completed their sentence before filing an application. And the applications must be submitted by the guilty parties themselves.

Compean and Ramos have not applied for a pardon or a commutation of their sentences, Justice Department spokesman Erik Ablin said.

Rep. Ted Poe, a Republican from Humble who has championed the ex-agents' cause, has no use for what he views as needless red tape.

"The bureaucracy is getting in the way," Poe said. "The Constitution gives the president absolute power of pardon and parole, and the president can exercise it whenever he wishes."


'A good shield'
Some clemency experts fret at the rules, saying no president should limit his pardon powers.

Douglas Berman, an Ohio State University law professor who has followed the Texas case, argues that while the Justice rules may protect the president, they also "eliminate some of the virtue" of the pardon power.

By citing the regulations, Bush "may be trying to cushion himself from the public clamoring to do something in this case," Berman said.

But Margaret Love, who headed Justice's pardons office during the Clinton and first Bush administrations, contends that the rules protect the president and the integrity of the process.

"It's been a good shield for the president," she said.

President Clinton sparked congressional hearings and a huge outcry over his pardon of fugitive financier Marc Rich, whose application bypassed the Justice Department and went directly to the White House without following the rules. And President Ford generated a tremendous public backlash with his pardon of Richard Nixon even before the former president had been charged with any crime in connection with Watergate.

Bush has known intense pressure on the clemency front.

He faced international and domestic pressure as governor of Texas in 1998 to save killer Karla Faye Tucker from the execution chamber. Bush refused to spare Tucker's life despite her reformation in prison and pleas from Pope John Paul II, evangelist Pat Robertson and others, making her the first woman executed in Texas since the Civil War.


Limited use
The Tucker case may hold some clues to Bush's thinking in the Border Patrol ex-agents' matter, said Daniel Kobil, a clemency expert at Capital University Law School in Columbus, Ohio.

"That would suggest that he may well not cave to pressure, even from his own supporters on something like this," he said.

Thus far, Kobil and other experts said, Bush has used his presidential clemency power in very limited fashion.

"It's just really very noncontroversial cases," Love said, calling them "a little unusual in their colorlessness."

White House spokesman Scott Stanzel declined to discuss the Texas case, any timeline for making a decision, or even how many e-mails, letters and calls have been received on behalf of the former Border Patrol agents.

Compean and Ramos, sentenced to 12 and 11 years respectively for shooting the trafficker, have filed a notice of appeal of their sentences, which they began serving in January.


Commutation vs. pardon
Supporters argue that the two men deserve, at most, an administrative punishment such as suspension or firing for not reporting the shooting.

Kobil and Berman suggested that the ex-agents' backers might find better success if they argued for commutation of the sentence to time served rather than an outright pardon.

Legally, there is a difference. A pardon wipes the slate clean, forgiving the crime. Commutation reduces the sentence without negating the crime.

"That would be a compromise, obviously," Kobil said. Bush "may well say 'I'm not sure what happened, but they have suffered and they paid a serious price for this crime'," he said.

In light of the controversy surrounding the ex-agents' case, Kobil suggested that Bush might wait until the end of his term before issuing a pardon or commutation for the pair.

Such a stance would not suit Rep. John Culberson, R-Houston, and other conservatives who have rallied to the ex-agents' side.

"This is an utterly unique and outrageous set of circumstances that demands an immediate presidential pardon for the sake of national security and for the sake of the morale of our law enforcement officers on the border," Culberson said.