Soldiers have guns for a reason – to “maintain a tactical advantage, control and dangerous situation, or restrain potential enemies.” So, according to a petition to the United States Supreme Court, they should not be banned from defending themselves if an enemy attacks at that point.
That’s the focus of an appeal filed on behalf of a U.S. soldier convicted and sentenced to prison for shooting and killing a terror suspect in Iraq who, testimony confirmed, lunged at him and tried to grab his weapon.
The U.S. Court of Appeals for the Armed Forces recently upheld a lower court’s decision to convict 1st Lt. Michael Behenna on a charge of unpremeditated murder in a combat zone for the death of “suspected terrorist Ali Mansur.”
The conviction has been affirmed throughout the military court system even though testimony from a man summoned by the prosecution as an expert witness said that the evidence indicated Mansur was lunging at Behenna and probably trying to grab his weapon during an “unauthorized” interrogation.
Behenna’s parents, Scott and Vicki, have worked on behalf of their son with the Defend Michael website.
Now a petition has been filed with the Supreme Court in the case, and it explains that the military court system has ruled that Behenna, during an “unauthorized interrogation” of a terror suspect, gave up his right to defend himself when he used his service weapon to try to control the situation.
The military judges concluded that there was no “escalation” of the confrontation when the suspected insurgent “threw a piece of concrete at Lt. Behenna and ‘lunged for the pistol.’”
“The ruling is wrong,” the petition explains. “It conflicts with ‘basic criminal law concepts’ that the [military court] deemed solely applicable outside ‘an active battlefield situation.’
“Even assuming that a service member becomes an initial aggressor by pointing a firearm at a suspected enemy without authorization, the common law of self-defense does not categorically equate gun pointing with ‘deadly force’ that wholly forfeits the defender’s right to repel a lethal attack,” the brief argued. “Civilian law enforcement officers do not automatically turn into defenseless targets the moment they aim a firearm without authorization at a potential threat.”
That makes the military court’s ruling “dangerous,” the brief argues.
“It puts service members in combat zones in a more vulnerable position than their civilian law enforcement counterparts. Though Lt. Behenna’s interrogation of the suspected terrorist did not occur in a conventional ‘active battlefield situation,’ neither did it involve some brawl in a stateside barroom. It arose from a counter-insurgency operation in ‘the combat theater of operations.’
“There, countless service members point their weapons on a daily basis – as they are trained to do – to maintain a tactical advantage, control a dangerous situation, or restrain potential enemies.”
The military ruling would “put an ever growing number of service members in physical and legal jeopardy as our armed forces confront increasingly unconventional scenarios involving undefined battle lines and deadly threats from disguised enemies,” the petition explains.
Behenna, from Edmond, Okla., was sent to Iraq in 2007 and led a platoon in northern Baghdad on counter-insurgency operations.
On April 21, 2008, soldiers patrolled a hotbed of insurgency called Salam Village. Two suspects were captured, but a bomb tore through the patrol, killing five people. Reports linked a local named Ali Mansur to the attack and claimed he belonged to al-Qaida.
Behenna’s platoon took Mansur into custody on May 4, 2008, when a local leader identified him as a terrorist. Army interrogators questioned Mansur several times, but could not “get answers,” and one questioner told Behenna Mansur was “being deceptive and lying.’”
When told to take Mansur back and release him, Behenna decided to interrogate Mansur first, took him to a location outside the village, removed Mansur’s clothes and handcuffs and told him to sit on a large rock inside the mouth of a culvert.
“At a distance of about two to three feet, Lt. Behenna pointed a handgun at Mansur while questioning him… As Mansur said something in response, Lt. Behenna turned away from Mansur to hear [a translator]. While Lt. Behenna’s head was turned, he heard a chunk of concrete hit the tunnel wall above his left shoulder. Lt. Behenna testified that, when he turned back to look at Mansur, Mansur ‘was reaching up toward my weapon, getting up.’”
He “instinctively” stepped left and fired, because he feared the suspect “was going to take my weapon and use it on me.”
Prosecutors charged him, alleging he simply staged an execution.
During the trial, a government witness, Dr. Herbert MacDonell, told prosecutors that Behenna’s explanation of the shots – one that hit the suspect in the chest and a second that hit him in the head as he was falling – was the “only logical” explanation that was consistent with the evidence.
MacDonell has over 50 years of experience in forensic science and participated in investigations of the Martin Luther King Jr. and Sen. Robert Kennedy assassinations and also testified in the O.J. Simpson murder case. But the government refused to allow MacDonell to testify, and he told the defense counsel when he was told to leave, “I would have made a great witness for you.”
The details of the apparently exculpatory evidence were provided to the defense only after the verdict was delivered.
That included a statement from MacDonell that, “I am sure that had I testified I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant’s story fit the physical facts. This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence…”
The U.S. Court of Appeals for the Armed Forces, however, said Behenna “had lost the right to act in self-defense as a matter of law” – no matter what actions the suspect took.
“Because service members in combat zones are routinely tasked with moving among and seeking out hidden, disguised, and deadly threats – even beyond the ‘active battlefield situation’ – they openly carry and often brandish their weapons outside of their bases, a practice opposite that of police officers in the states. Yet perversely, the [military] decision leaves service members with much less legal room to defend themselves against lethal assailants,” the appeal explains.
In a statement released to supporters, the Behennas said that their son is at peace already.
“He has chosen not to be defined by the bars that keep him from experiencing life as the rest of us know it. Rather he has chosen to have an attitude of gratefulness for his life and those that are in it (both inside and outside of prison), an attitude of relentless seeking of knowledge and understanding, and an attitude of being present to each and every day that God has given him. He is at peace with himself and there is a freedom in that which no judge or jury can take from him.”
Behenna, an Army Ranger, was given a 15-year sentence and now is in Fort Leavenworth.
Behenna’s supporters have released a music video in support of the soldier. It was recorded by the Chad Evan Todd band: