Clemency sought in death of al-Qaida terrorist

Michael Behenna

The family of an American soldier serving time in prison after he said he killed a known al-Qaida operative in Iraq in self-defense is gearing up for a coming hearing before a military clemency board on the case against Lt. Michael Behenna.

The hearing scheduled Thursday before the military's Clemency and Parole Board in Arlington, Va., is one of two tracks Behenna's family members and legal representatives are pursuing and is in addition to an appeal of his conviction.

The focal point of the arguments is the statement from a witness for the prosecution that Behenna's own description of how the al-Qaida operative tried to attack him and he shot in self-defense was the only explanation that was supported by the facts.

The issue is raising concerns because of the decision by the prosecution to not only exclude that statement from the case, but withhold it from the defense until after the conviction.

Behenna's story is profiled on the Defend Michael website, and his mother Vicki Behenna, an assistant U.S. attorney, told WND family members are allowed to appear at the clemency hearing and will ask for one of several outcomes in the case.

She said the Army through its clemency board could return the case for a new trial, suspended the sentence during the appeals process or reduce the sentence.

But the family's ultimate goal clearly is a vindication of the lieutenant, who has described how the death of the operative, Ali Mansur, happened.

He said Mansur had been questioned in connection with an attack that had killed members of Behenna's squad in Iraq. Then authorities ordered his release and told Behenna to escort Mansur back to his home.

On the way there, Behenna questioned Mansur again. According to prosecution allegations, Behenna ordered Mansur to sit down on a rock and executed him. Behenna, however, said he had turned to look at an interpreter and glanced back to see Mansur lunging for his gun.

He said he fired one shot as Mansur had his arms raised and was lunging for the gun, and fired a second shot that apparently hit Mansur in the head as he fell.

Michael Behenna, the day before leaving for Iraq

The dispute arose because of the testimony prepared by Herbert MacDonell, a forensics expert who heads the Laboratory for Forensic Science in Corning, N.Y. Called by the prosecution, he concluded that Behenna's account of the situation was the truth, and prosecutors then did not have him testify.

They also declined to inform the defense of MacDonell's observations until after the conviction.

In an e-mail obtained by defense counsel after the trial was concluded, MacDonell wrote he was "concerned" he was not allowed to testify "and have a chance to inform the court of the only logical explanation for this shooting."

He said, "As I demonstrated to you and to the other two prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers, from the evidence I feel that Ali Mansur had to have been shot in his chest when he was standing. As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle.

"Admittedly, this would be an amazing coincidence, however, it fits the facts and … I cannot think of a more logical explanation," he continued.

"This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9 mm flattened out bullet which was tumbling… When I heard Lt. Michael Behenna testify [Thursday] as to the circumstances of how the two shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. 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," he wrote.

"This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence," he said.

American court procedures call for prosecutors to provide any exculpatory information – that is information that could help the defense – to defense attorneys in the case.

But according to reports, defense counsel Jack Zimmerman asked prosecutors if they had any such information and was told no.

"Prosecutors withholding of this evidence allowed them to argue that Lt. Behenna executed Ali Mansur while seated when the forensic experts, including Dr. MacDonnell, agree that Ali was standing with his arms outstretched when shot," according to the lieutenant's advocates.
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Vicki Behenna said she will ask the clemency board for help, and whatever the answer, will continue the appeals track for the case against her son, now serving a multi-year term in Ft. Leavenworth.

A letter has been submitted on behalf of Oklahoma's congressional delegation asking for help in Behenna's case.

Behenna had been deployed to Iraq in September 2007. The next April his platoon was attacked by al-Qaida, and he lost two platoon members and two Iraqi citizens working with him.

On May 5, 2008, "known terrorist Ali Mansur" was detained on suspicion of being involved, but 11 days later, Army Intelligence officers ordered his release. They ordered Behenna to escort Mansur home.