Prosecutors silenced a key witness who would have supported a U.S. soldier’s claim he acted in self-defense in the killing of a terror suspect, but U.S. Supreme Court justices are unwilling to hear an appeal of the case.
The parents of Michael Behenna, who was convicted of killing a known al-Qaida member in 2008, say they will now turn to members of Congress and the White House for help for their son.
Scott and Vicki Behenna, who have established the Defend Michael website, explained to supporters in an email today the U.S. Supreme Court’s denial leaves standing a military court’s decision that their son had no legal right to defend himself from a possibly lethal attack from the terror suspect.
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. 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 that 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.
The Supreme Court decision ends the legal case, the Behennas confirmed.
“This effectively ends the possibility of a jury hearing from Dr. Herbert MacDonell, the expert witness for the Army prosecutors who told them in private during the original trial that he believed the evidence supported Michael’s version of the events,” the Behennas said.
“As most of you know the prosecutors sent Dr. MacDonell home rather than have him provide testimony that would have corroborated what Michael said happened in that Iraqi culvert. We will never know why the prosecutors wantonly withheld this evidence, or why the military chose to release a known terrorist whom Army Intelligence knew participated in the killing of Michael’s soldiers (and for whom the Army had issued a kill/capture order on), or why Michael’s platoon was designated as the unit to return the very man responsible for the IED attack on Michael’s soldiers back to his home.”
The parents’ statement said their son was in good spirits.
“I know many of you who contacted your congressional delegations in the past had been told that they can’t do anything while Michael’s case works its way through the courts. Well those excuses are no longer valid and we want all those in charge – the president, the Secretary of Defense, the Secretary of the Army, the Army Clemency and Parole Board, the Congress – to finally stand up for what’s right and allow Michael to return home to his family and start a new life.”
WND reported in April prosecutors repeatedly were given extensions of time to develop their arguments before the courts. The Supreme Court, in fact, had asked the government to explain its punishment for the Army Ranger.
Lower courts ruled 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.