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Lawmakers Review Homeland Security Report on Border Agent Shooting of Drug Runner

The House Homeland Security and Governmental Affairs investigations subcommittee is reviewing a report on the investigation of two former Border Patrol agents in prison for the shooting of a Mexican drug runner at the southern border.

Meanwhile, the attorney who presented the government's case told FOXNews.com that despite successfully prosecuting the two agents, their prison sentences may be too severe.

And President Bush told FOX News in an exclusive interview Wednesday that while he will review the border agents' case, "as thing stand now, they'll serve their sentences."

Many lawmakers have been calling for Bush to grant the pardon, which would free the two former agents from prison.

"There's a procedure in place and what I told members of Congress who have written me or called, is 'just look at the case. Look at the facts in the case,'" Bush told FOX News' Neil Cavuto. "People need to understand why these folks were sent to trial and why a jury of their peers convicted them."

Bush stressed that there's a "process" in place for any pardon decision, and that includes the case being reviewed by the Justice Department, which then decides whether to recommend a pardon.

While he said he would "look at all the facts" of the case, the president said "we're not there yet," in reference to whether the Justice Department has completed its review.

A spokesman for Rep. Michael McCaul, R-Texas, the former chairman of the House Subcommittee on Management, Investigations, and Oversight, said the committee received the redacted report on the investigation from the DHS inspector general late Monday afternoon.

The report is a DHS overview of the probe into ex-Border Patrol agents Igancio Ramos and Jose Compean, who entered prison earlier this month after a jury last year found them guilty of the non-fatal shooting of Osbaldo Aldrete-Davila near the U.S. border in Fabens, Texas, about 30 miles east of El Paso. Ramos and Compean are serving 12 and 11 years, respectively, for the February 17, 2005 non-fatal shooting.

Lawmakers have been waiting months for the report. Rep. Ted Poe, R-Texas, filed a Freedom of Information Act request last week to get the document.

Video: Rep. Dana Rohrabacher, R-Calif., defense border agents

Last March, McCaul — then chairman of the subcommittee —- convened a meeting with the inspector general and three other members of Congress for an official briefing on the report. During that meeting, said his spokesman, Jack Hirschfield, representatives from the IG's office made five major allegations they say were the basis for the prosecution's case against Compean and Ramos, including that they had said they wanted to "shoot a Mexican" that day, that they intentionally covered up the shooting and that they failed to accurately report the incident.

"Congressman McCaul's not saying these guys are guilty or innocent," Hirschfield said. DHS has "come up with excuse after excuse after excuse and it's unacceptable" as to why it's taken this long to produce the report.

"Now that we have it, we're trying to move forward and see what it says," he added.

The U.S. Attorney in El Paso who is prosecuting the case, Johnny Sutton, told FOXNews.com on Tuesday that that report was written by the agent in charge of the investigation.

"I'm 99 percent sure the jury didn't see that report but the jury heard the evidence from people who were actually there" when they convicted Ramos and Compean, Sutton said. "If the report is helpful to somebody, fine, then I'm glad it's available to Congress."

The report is being viewed by select members in what's known as the "SCIF" — the Sensitive Compartmented Information Facility — and is not allowed to be removed.

Ballistic Over Ballistics

Compean and Ramos were convicted by a jury last March of violating the civil rights of Aldrete when they shot him, then tampering with evidence by picking up shell casings from the shooting. The ex-agents say they thought Davila had a gun but a gun was never found.

It was later found Aldrete was transporting over 700 pounds of marijuana — valued at more than $1 million — while in the U.S. illegally. U.S. officials gave immunity to Aldrete for that drug run in exchange for his testimony against the two agents. He was treated in a U.S. hospital, where the bullet was removed. He is now suing the federal government for $5 million.

Friends of the Border Patrol is disputing ballistics reports and prosecution arguments that the bullet found in the drug runner's buttocks came from a gun in Ramos' possession that day.

Among other things, the group claims the ballistics evidence does not conclusively prove that the bullet that allegedly entered Aldrete's backside came from Ramos' gun. Compean apparently shot at Aldrete 14 times and missed, but prosecutors said the single shot Ramos fired off hit its target.

"They want this case to stick. They don't care what lies they create ... they will do anything to make this stick," said Friends of the Border Patrol Chairman Andy Ramirez. "Well, there's only one thing left to do. It's time to expose this."

FOXNews.com obtained a copy of the preliminary ballistics report performed by the Texas Department of Public Safety on the bullet extracted from Aldrete.

The bullet was removed from a U.S. Army doctor around March 16, 2005 — a full month after the shooting. A Homeland Security agent went to Mexico to find Aldrete and bring him back to the United States to testify against Ramos and Compean.

The complaint against Ramos and Compean says Ramos had a 96D Beretta 40-caliber automatic pistol, serial number BER067069M, which fired a 40-caliber Smith & Wesson jacketed hollow point bullet into the left buttocks of Aldrete.

But the ballistics report states: "The copper-jacketed bullet was fired from a barrel having six lands and grooves inclined to the right. The manufacturer of the firearm that fired the copper-jacketed bullet is unknown, but could include commonly encountered models of 40 S&W (Smith & Wesson) caliber FN/Browning, Beretta, heckler & Koch, and Ruger pistols."

Meaning, while the report did not rule out the possibility that Ramos gun could have fired that particular bullet, it did not conclusively say it did.

Sutton's Defense

But Sutton said a later ballistics report confirmed that the bullet came from Ramos' gun.

Sutton said that despite Compean and Ramos' more recent claims that they didn't know they even hit Aldrete because he kept running away from them toward Mexico, a handwritten statement by Compean acknowledges that Aldrete began limping after Ramos shot at him.

"It's important to understand that not only was there a really consistent match of the bullet taken from the smuggler's butt to Ramos' gun, but Ramos said, 'I did shoot him,'" Sutton told FOXNews.com.

Ramirez said that during that month between the alleged shooting and the time Aldrete had the bullet removed by the American doctor, the drug dealer could have been shot by someone else — particularly because the bullet, according to the prosecution, "ruptured the victim's urethra causing a complete posterior urethral obstruction."

"I'm not buying it — I think he got shot south of the border for not delivering his load," Ramirez said of the marijuana Aldrete was supposedly delivering that day.

He blasted Mary Stillinger, the attorney representing Ramos, for not putting up a fight and accepting that the bullet came from Ramos' gun.

"There are so many violations in procedure that have not been out there publicly and this administration is keeping it all covered up. Any policy, every protocol is violated," Ramirez claimed.

Although Ramirez also questioned why the bullet and other evidence was examined by local authorities, and not the FBI, Sutton said it's common practice for the FBI to allow Texas authorities to conduct ballistics tests.

Sutton also disputed the idea that there was enough evidence to put Aldrete away on drug charges while he was prosecuting Ramos and Compean.

"We had no evidence linking him — linking anybody to the dope load," Sutton said, noting that although fingerprints of the van were taken, the fingerprint examiner said there were no usable prints to nail Aldrete with the van of marijuana in question. He also said the "cover-ups" of the agents — including the fact they said they couldn't identify Aldrete — didn't help, either.

"I am in the business of putting dope dealers like Aldrete in prison and I would much rather be having a discussion [about that] … if I can get the catch any other way, I'd be happy to put him in prison," he said.

Sutton said he is frustrated with all of the "conspiracy" theories surrounding the case and said the 'cover up' by Ramos and Compean have distorted the real facts.

"These guys did very serious crimes and once anybody who knows all the facts of this case — the fact that they shot at an unarmed guy 15 times, lied about it, covered it up, destroyed the evidence ... it's hard for me to imagine a prosecutor would look the other way," he said.

But Sutton does agree that 11 to 12 years in prison for their crimes may be too much.

"I do think reasonable people can disagree whether 11 or 12 years is reasonable," he said. "I agree that those are harsh sentences but that's the law. That judge followed the law."