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House GOP challenge Border Patrol agent’s sentence

- The Washington Times - Thursday, November 17, 2011

Thirty-seven Republican House members are challenging the two-year prison sentence being served by a U.S. Border Patrol agent for his conduct in the arrest of a drug-smuggling suspect, while a dozen other lawmakers are pressing Attorney General Eric H. Holder Jr. to explain his role in the botched "Fast and Furious" weapons investigation.

In a letter Thursday to President Obama, the 37 members — led by Rep. Duncan Hunter of California — described the prosecution of agent Jesus E. Diaz Jr. as "unfair and excessively disproportionate" and suggested it set a "dangerous precedent" that could place other agents and the public at risk.

"Border Patrol agents must be able to appropriately and effectively protect our nation´s border without the threat of federal prosecution hanging over their head," the letter said. "We certainly do not condone the use of excessive or unreasonable force, however, the facts in this case do not indicate the drug smuggler was harmed during the arrest or that excessive force was used.

"The prosecution of Agent Diaz by the U.S. Attorney´s Office for the Western District of Texas, also responsible for putting other agents behind bars, is a disservice to the men and women of the Border Patrol and the mission they undertake," it stated.

Diaz was sentenced last month to two years for violating the constitutional rights of a 15-year-old suspected drug smuggler. He was accused of lifting the teenager's handcuffed hands above his head while placing his knee in his back. The prosecution was sought by the Mexican government.

During trial, defense attorneys argued there were no injuries or bruises on the teenager's arms where the handcuffs had been placed nor any bruising resulting from a knee on his back. Evidence presented at trial showed only marks from the straps of his backpack, which authorities said contained the drugs.

Border Patrol agents found more than 150 pounds of marijuana at the arrest site.

In the letter, the lawmakers noted that Diaz had been cleared of any wrongdoing by the Department of Homeland Security's Office of Inspector General and by the Immigration and Customs Enforcement´s Office of Professional Responsibility. It said "only a contradictory report" from the Internal Affairs Division at U.S. Customs and Border Protection provided the basis for prosecution, noting that that report came a year after the agent had been cleared.

The letter also questioned the credibility of the government's main witness, the smuggling suspect, who testified under a grant of immunity. It asked the president to consider whether the two-year sentence was justified and how the case has an impact on an agent´s ability to do his or her job.

Meanwhile, a dozen congressional Republicans are demanding "accountability and transparency" from Mr. Holder in the Fast and Furious weapons investigation, several saying he should resign because of "evasive answers" he has given Congress about the failed operation.

The lawmakers, in a statement this week, said hundreds of weapons that were allowed to be "walked," or transported, from Arizona gun shops to drug smugglers in Mexico have been linked to dozens of crime scenes, including the killing of a U.S. Border Patrol agent and hundreds of deaths in Mexico.

"Attorney General Holder´s refusal to take responsibility for the actions of his department is inexcusable," said Rep. Paul A. Gosar, Arizona Republican. "The American people need answers to how this operation was authorized and assurances that nothing like this can or will ever happen again."

Rep. Trent Franks, also of Arizona, said that to have allowed the weapons, including AK-47 semiautomatic assault rifles, to be walked to Mexico showed "an utter lack of regard for human safety, protocol or common sense."

In calling on Mr. Holder to resign, Rep. Connie Mack of Florida said, "Holder should resign fast and furiously."

An investigation by Sen. Chuck Grassley of Iowa, ranking Republican on the Senate Judiciary Committee, and Rep. Darrell E. Issa, California Republican and chairman of the House Oversight and Government Reform Committee, found that in excess of 2,000 weapons purchased in Arizona were walked to drug smugglers in Mexico — more than 1,400 of which are still unaccounted for.

Two AK-47s purchased at a gun shop in Glendale, Ariz., were discovered at the site of the fatal December 2010 shooting of Agent Brian Terry in a gunfight just north of the border near Nogales, Ariz.

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