Government drags feet in soldier's freedom fight

Michael Behenna

A routine government appeal brief in a soldier's fight for freedom after being imprisoned for killing a terrorist in Iraq was supposed to be finished in January but now apparently won't be ready until July or longer.

The issue has arisen in the case of Lt. Michael Behenna, who was convicted in the death of al-Qaida operative Ali Mansur.

Behenna will mark his 27th birthday in prison May 18 after a prosecution witness who had been summoned for his trial confirmed Behenna's story of self-defense was the only reasonable explanation for the injuries sustained by Mansur.

The information, however, never was introduced at the trial because prosecutors refused to call the witness to the stand or alert the defense to the exculpatory nature of the testimony.

TRENDING: Take heart, patriots! These 3 House members are the future of the GOP

According to an e-mail to supporters, Behenna's mother, Vicki Behenna, said the defense appeal brief in the case was submitted  Dec. 22, making the prosecution response brief due Jan. 21. However, prosecutors got an extension until April 21.

"Then sometime in early April the military filed for and received yet another three-month extension making their response brief not due until July 22, 2010," she said. "But most amazing of all was that the extension was granted without notice being provided to Michael's attorneys to argue against it."

Vicki Behenna told WND it took four military lawyers, including a full colonel, to sign the request for an extension. She said it could be interpreted as a good sign – that the military is having problems addressing some of the appeal issues in its written arguments.

"From the start of this hell we have tried to put our trust in the military justice system. But time and time again this 'justice' system has failed this young man who defended our liberties in the face of a ruthless enemy," her e-mail alert said.

"First it was the withholding of evidence in Michael's trial and now this. The government will have had seven months to respond to Michael's appellate brief when it should have taken only seven weeks. It appears to us that the Army is deliberately doing everything it can to delay Michael's appeal process.

"And for what end you ask? We may never know, just as we may never know what was really behind the Army prosecuting Michael in the first place. But in the face of these delay tactics we have become even more convinced of the strength of Michael's appeal (which the military is struggling to counter.) As Thomas Paine wrote, 'Tyranny is not easily conquered, but our consolation is that the harder the conflict, the greater the triumph,'" she wrote.

She noted May 18 will be Michael's second birthday behind bars in Leavenworth and those interested could send him a note at: Michael Behenna, No. 87503, 1300 N. Warehouse Road, Fort Leavenworth, Kan., 66027.

Radio talk show icon Michael Savage has generated contributions for Behenna's defense
– the latest for another $50,000.

RELATED: Making laws Obama's way: 'Lawless process'

WND reported on the case when the conviction originally was challenged, when the appeal process was launched, when his supporters sought clemency in the case and when, in a rare move, his sentence was reduced from 20 to 15 years even while his appeal was pending.

Behenna's story is profiled on the Defend Michael website.

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

On the way there, Behenna questioned Mansur again. The prosecution alleges 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.

The dispute arose in Behenna's trial 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 Behenna's account of the situation was supported by the evidence.

But prosecutors then chose not to have him testify and they declined to inform the defense of MacDonell's observations until after the conviction.

In an e-mail obtained by defense counsel after the trial, 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 evidence – 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.

Behenna was 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, Mansur, described as a "known terrorist," was detained on suspicion of being involved. But 11 days later, Army Intelligence officers ordered his release. They ordered Behenna to escort Mansur home.

Savage previously worked in support of those defending Lt. Col. Jeffrey Chessani, who was brought up on charges over the so-called Haditha massacre in Iraq only after Rep. John Murtha publicly denounced U.S. Marines as cold-blooded killers. The prosecution against Chessani ultimately failed.