The federal government has been given another extension of time for officials to develop an explanation of a prison sentence for an Army Ranger who is in jail for the death of an attacking terror suspect.
WND reported earlier when the U.S. Supreme Court asked the government to explain its punishment for the U.S. soldier convicted of shooting and killing a suspected terrorist who was attacking him.
Now the parents of Army 1st Lt. Michael Behenna, Scott and Vicki Behenna, who have been raising awareness of their son’s case through the Defend Michael website, say in a newsletter about their son’s case that the federal prosecutors have asked for and have been given additional time to develop their answers.
The government’s submission to the high court now is not due until the end of April.
“We have seen glimmers of hope in our most recent efforts… such as the Supreme Court requesting the government to answer Michael’s petition, a rare occasion with a military case; or the 37 generals and flag officers signing an amicus brief which lent a great deal of credibility to Michael’s argument that a soldier should not lose his right to defend himself in a war zone,” the email said.
Lower courts have concluded that since Michael Behenna was holding the terror suspect at gunpoint, he gave up the right to defend himself when the suspect allegedly lunged for his service weapon.
The suspect, Ali Mansur, was thought to be involved in a series of attacks on American troops. The judges determined Behenna was conducting an “unauthorized” interrogation when Mansur lunged for Behenna’s weapon and he fired.
Behenna, an Army Ranger, was given a 15-year sentence and now is in Fort Leavenworth.
It’s still uncertain whether the high court will decide to hear Behenna’s case, which has exhausted its avenues in the military court system. But his supporters are optimistic because of the fact the Supreme Court told the government prosecutors to respond.
Behenna’s appeal brief to the high court argues soldiers have guns for a reason – to “maintain a tactical advantage, control and dangerous situation, or restrain potential enemies.”
Therefore, the petition states, soldiers should not be prevented from defending themselves if an enemy attacks.
Behenna’s conviction has been affirmed in the military court system even though an expert witness testified that the evidence indicated Mansur was lunging at Behenna and probably trying to grab his weapon.
“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 argues. “Civilian law enforcement officers do not automatically turn into defenseless targets the moment they aim a firearm without authorization at a potential threat.”
The military court’s ruling is “dangerous,” the brief contends.
“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.”
Behenna, from Edmond, Okla., was sent to Iraq in 2007 and led a platoon in northern Baghdad that conducted 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 May 4, 2008, when a local leader identified him as a terrorist. Army interrogators questioned Mansur several times but could not “get answers.” 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. He took Mansur 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.'”
Behenna “instinctively” stepped left and fired, because he feared the suspect “was going to take my weapon and use it on me.”
Prosecutors charged him.
During the trial, a government witness, 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. He also testified in the O.J. Simpson murder case. But the government refused to allow MacDonell to testify. MacDonell 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.
The information held back included a statement from MacDonell.
“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,” MacDonell said. “This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence.”
Military courts, however, ruled Behenna “had lost the right to act in self-defense as a matter of law” – no matter what actions the suspect took.