- The Washington Times - Friday, March 11, 2011

Border Patrol Agent Brian Terry was armed with a pistol and a rifle during the December gunbattle with border bandits that cost him his life, Homeland Security Secretary Janet Napolitano said in a letter last week meant to counter lingering questions about the agent’s death.

And Ms. Napolitano, in a letter addressed to Sen. Charles E. Grassley and obtained by The Washington Times, also said all Customs and Border Protection officers and agents are allowed to use lethal force if they think they are in danger of serious injury or death, and do not have to use nonlethal force first.

“The decision on whether to use deadly force rests with the officers and agents in the field. CBP law enforcement personnel have never been ordered now or in the past to use less-lethal devices before using deadly force,” she said in her letter, dated Friday. “Our officers and agents are empowered to determine the appropriate level of force in defense of themselves, their fellow officers and agents, or innocent third parties.”

With two of its law enforcement personnel slain in the recent months, Homeland Security has come under scrutiny. An Immigration and Customs Enforcement agent was killed in Mexico, and Terry was killed in the December shootout in a remote canyon on the U.S. side of the border.

Both incidents have prompted questions about the department’s policies.

In the case of the ICE agent, Mexican policy prohibits U.S. agents from being armed in Mexico, and though some U.S. officials have said that should change, President Obama and Mexican President Felipe Calderon have ruled that out.

Meanwhile, Terry’s family has said it was told just two agents on his four-person team were armed with lethal rounds, while the others were armed only with beanbag rounds — and that the agents said they were instructed to fire beanbag rounds first.

“To go out there with beanbags against guys with AKs, that makes no sense to me at all,” his brother, Kent Terry, told Fox News Channel earlier this month.

But Ms. Napolitano’s letter makes clear Brian second first reference to distinguish from Kent Terry was armed.

She said agents never go into the field with only a “less-lethal device,” and handguns are standard issue for all CBP law enforcement.

In addition, Terry was part of a Border Patrol Tactical Unit, whose members are armed with Heckler & Koch P2000 handguns and other weapons such as the M4 rifle. Terry was armed with both on the night of his killing, the secretary said.

In a hearing with the Senate Judiciary Committee on Wednesday, Mr. Grassley, the ranking Republican on the committee, asked Ms. Napolitano about the department’s use-of-force policy. She gave some details, but at the time said she was reluctant to get into the specifics of Terry’s case because of the ongoing investigation.

Beth Levine, a spokeswoman for Mr. Grassley, said he is still seeking full details on the Homeland Security use-of-force policy, but she said the senator “is pleased that they are finally releasing information that the family should have had months ago.”

An FBI affidavit filed in the investigation says that the four-person team encountered a group of illegal immigrants carrying rifles on the night of Dec. 14.

The agents ordered the illegal immigrants to drop their weapons, and when the immigrants refused, two agents fired beanbag rounds. At least one of the illegal immigrants then fired, and then two agents fired back, one with his rifle and the other with his pistol.

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