Desert Invasion - U.S.

U.S. Attorney Protects Mexican Invaders

By Mark Andrew Dwyer, Conservative Voice

I thought I was hallucinating. Two accomplished Border Patrol agents, Ignacio Ramos and Jose Alonso Compean, were convicted by a U.S. court for shooting an illegal alien drug smuggler, Osbaldo Aldrete-Davila, that worked for Mexican drug cartel, I presume, and are facing 20 years to life in prison for doing their job. The smuggler and the main witness in a trial against the agents has been granted by the U.S. Attorney Office full immunity from the prosecution for the crimes he committed, and is already suing the U.S. Border Patrol for five million dollars, which exorbitant amount must include his loss of profit from the sales of illegal drugs he wasn't able to deliver to his American collaborators, I guess. The agents who deserved to be commanded for their superb job of enforcing the American border and the law are headed to jail, instead, and although numerous petitions to pardon them have already been sent to President Bush, I don't expect the Commander in Chief and the main “defender of the American border” to be nearly as merciful in this case as he is for the millions of illegal aliens that gained notoriety for making mockery of the American border and the law.

When I looked into the details of the case and the events that led to agents' convictions, I found the bases on which the charges were brought and the guilty verdict pronounced even more absurd than the outcome of the trial itself. Per Sara A. Carter, Staff Writer (see [1]), Assistant U.S. Attorney Debra Kanof said that Ramos and Compean had no business chasing someone in the first place. "It is a violation of Border Patrol regulations to go after someone who is fleeing," she said. "The Border Patrol pursuit policy prohibits the [high speed] pursuit of someone." (So, how can one apprehend and intruder, I ask, if they run away as quickly as they can?)

"Agents are not allowed to pursue. In order to exceed the speed limit, you have to get supervisor approval, and they did not," Attorney Debra Kanof said, as if breaking the speed limit by the agents was the main thing to worry about when determined, and often violent, foreign criminal that couldn't care less about the posted speed limit made hostile incursion into the U.S. territory. (To make it even more difficult, many state and local law enforcement agencies have been instructed to not interfere with violations of the U.S. border and the immigration laws that, arguably, are federal domain and not within state and local jurisdiction.)

These and other absurdities were thoroughly exposed by several commentators, most notably, by Lou Dobbs of CNN (see [2, 3, 4] for relevant videos with "Lou Dobbs Tonight" clips) who referred (after T.J. Bonner, the president of the National Border Patrol Council) to the conviction as the most outrageous miscarriage of justice he's seen in America. The biggest nonsense, though, comes from the statement of Assistant U.S. Attorney Debra Kanof who said: "The U.S. Supreme Court has ruled it is a violation of someone's [emphasis added] Fourth Amendment rights to shoot them in the back while fleeing if you don't know who they are and/or if you don't know they have a weapon [emphasis added]" (all quotes from [1]), which embarrassingly flawed statement was later supported by her boss, U.S. Attorney Johnny Sutton who wrote (see [5]., last paragraph) that the agents were justly convicted for “willfully [sic!] violating Aldrete-Davila’s Constitutional, Fourth Amendment right to be free from illegal seizure”.

According to such an absurd interpretation of the U.S. Constitution and the Supreme Court ruling by the Assistant U.S. Attorney and her boss, all it takes for someone (say, an enemy’s military) to get under “constitutional protection” while invading the U.S. is to make sure that the U.S. authorities “don't know the invader(s) have a weapon.” And then the Federal government will have to charge and convict each invading soldier in the court of law (which includes appointing an attorney for each and every one of them and granting them the presumption of innocence and other benefits as stipulated by Fourth, Fifth, and Sixth Amendments) before the invasion can be repelled. Can one imagine a nonsense bigger than that?

It’s worth noting that this administration does not think, and justly so, that aliens from countries that harbor terrorists are protected by our Fourth Amendment...

Let's see what the U.S. Constitution, including its amendments, has to say on this subject.

The very first sentence of the Constitution (often referred to as the Preamble) clearly states: “We the People of the United States, in Order to […] secure the Blessings of Liberty to ourselves and our [emphases added] Posterity, do ordain and establish this Constitution for the United States of America.” It doesn't say "in Order to […] bestow various rights and privileges on aliens and their Posterity", nor does it indicate that it intends to protect of the entire world against the excesses and reckless acts of American citizens. To the contrary, the Constitution was passed and ratified in order to protect the American people and their legitimate interests (Declaration of Independence's "Pursuit of Happiness") against the rest of the world (and against abuses of power of their own government), and not the other way around.

Any attempts to use the Constitution, as well as the Bill of Rights and other Amendments, contrary to its clear intent, like the attempts of making it easier for the invaders and intruders of all trades to infiltrate the American nation and to disable this nation's ability to resist incursions into its territory, sovereignty, and integrity, are legally invalid and clearly unconstitutional. They can be compared to using of First Amendment as an instrument to silence somebody, suppress a religion, or to justify censorship. (Unfortunately, some Liberal activist judges seem to engage in this kind of administration of “justice".) Moreover, the language of Fourth Amendment begins with “The right of the people” which clearly indicates that its protections apply only to “We the People”, or, in other words, to the citizens of the U.S. (some constitutional scholars include lawful permanent residents in this category) but not to illegal aliens and foreign border violators.

For instance, Judge Samuel Alito, a renowned constitutional scholar and a Supreme Court Associate Justice, during his nomination hearings expressed his strong opinion that illegal aliens do not automatically acquire “constitutional right” while on the U.S. soil (see [6] for a brief report of Alito’s earlier statements in this matter). In 1986, he made a case that nonresident aliens, which category includes illegal aliens and foreign border violators, do not enjoy protections offered by Fourth Amendment, contrary to what Assistant U.S. Attorney Debra Kanof said and U.S. Attorney Johnny Sutton wrote in [5]. Obviously, Alito’s position, as opposed to Kanof/Sutton’s simplistic and naive misinterpretation, is fully consistent with the preamble to the U.S. Constitution. In particular, the fleeing smuggler of foreign nationality that illegally crossed the American border does not have Fourth Amendment rights, unless, perhaps, he can prove his lawful permanent residence in the U.S., and, contrary to what Kanof said, the Supreme Court never ruled that he does.

I argue that a foreign national who illegally crossed the American border is not protected by the Fourth Amendment any more than a member of foreign military force that invaded the U.S. is, and, therefore, he is not protected against “unreasonable searches and seizures”. I can imagine an ACLU or SPLC lawyer claiming, in his attempt to dismiss the above argument, that military aggression, unlike illegal border crossing by a foreign criminal, is an act of war that excludes the invading army from the jurisdiction of the invaded, but not withstanding extra-constitutionality of such a claim, there is no acceptable criterion, consistent with the Constitution, as to when a border violation subjects someone to the jurisdiction of the state he/she invaded and when it does not.

For instance, if the requirement is that the aggression (war) must be declared, then we would have to offer constitutional protection the foreign invading army if they launched an undeclared aggression of American territory. (Nonsense.) If being armed (with a proviso that the defenders must know that the invaders are armed, if one were to follow the legal opinion of Assistant U.S. Attorney Debra Kanof ) is such a requirement then attacking America with millions of unarmed soldiers (who can later arm themselves in the U.S., perhaps claiming their 2nd Amendment rights), or with all the arms well hidden so that the U.S. authorities have no way of knowing that the invaders are armed, will make the aggressors eligible for constitutional protection and de facto torpedo (at least in the legal sense) any serious attempts of defense. (Nonsense, again.) If wearing military uniforms is such a requirement then the foreign invading army will masquerade as bunch of civilians and gain support of ACLU and SPLC in their demands for equal protection. (Nonsense, too.) And so on. These are but a few examples - for each imaginable "criterion" there is a scenario of aggression of foreign power "eligible" for "constitutional protection" in the eyes of those who buy the above invalid argument that the Bill of Rights and equal protection clause of the 14th Amendment uniformly applies to any one physically present on the American soil.

Unfortunately, neither the presiding judge nor the prosecutor (assistant U.S. attorney) were sophisticated or knowledgeable enough to realize the above facts – my guess is that they simply didn’t have a clue. As a result, the unjust verdict to convict the Border Patrol agents was based, at least partially, on the invalid presumption that anyone (not just, say, an American citizen), in particular a Mexican illegal border crosser, has the Fourth Amendment right to be safe against unreasonable searches and seizures without probable cause, that right the agents violated.

We must not forget that the “Blessings of the Liberty” are reserved in the U.S. for American citizens (not withstanding the fact that we generously but voluntarily offer them to some other individuals, like political refugees and resident aliens) and not for the invaders and border violators. So are the civil liberties, as the meaning of the word “civil” (related to citizens) clearly indicates, despite that ACLU, SPLC, and other self-appointed defenders of these liberties would like to bestow them on the foreign intruders. No twisted logic, simplistic interpretation of the Constitution, or taken-out-of-context clauses of its Amendments will change that.


[1] Breaking the silence

[2] Lou Dobbs Tonight: CNN Aug. 9, 2006 (video clip)

[3] Lou Dobbs Tonight: CNN Aug. 10, 2006 (video clip)

[4] Lou Dobbs Tonight: CNN Aug. 11, 2006 (video clip)

[5] Statement of United States Attorney Johnny Sutton Regarding The Conviction of Former Border Patrol Agents Compean and Ramos

[6] '86 Alito Memo Argues Against Foreigners' Rights

[7] Cedillo Proves Children of Illegal Aliens Are Not U.S. Citizens

NOTE: This is an abridged and edited version of Author’s longer essay “The Blessings of Liberty” posted at:


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