A U.S. soldier convicted of killing an al-Qaida operative in Iraq in a trial marked by the prosecution's decision to withhold exculpatory evidence has been granted parole.
The announcement comes from Scott and Vicki Behenna, who established the Defend Michael website on behalf of their son, Michael Behenna.
The parents said they had been notified that their son will be released from Ft. Leavenworth on March 14. He will have served five years of a 15-year sentence for the death of al-Qaida operative Ali Mansur in Iraq in 2008.
"With tears of joy in our eyes we are happy to tell all of you that Michael is coming home! … It has been, to say the least, quite a ride," the parents said a statement posted online Wednesday.
"Michael signed up for the Army in order to serve his country and honor the innocent people killed on 9/11. As a lieutenant he led his men in the 'Mad Dog' 5th Platoon into combat in Iraq and with them bravely faced a determined and ruthless insurgency. Then his story took a bizarre turn when he was charged and later convicted of killing a known al-Qaida cell leader who was directly involved in an IED attack that killed two of his soldiers, Steven Christofferson and Adam Kohlhaas," they wrote.
"Life is often not fair, and as we have seen, justice is sometimes hard to come by. For the innocent man who is sent to prison, life can seem especially cruel. To survive that requires strength that comes from deep inside. It also requires the love and support from family and close friends. Michael always knew he could count on his family and friends to be there for him. What has rocked his world is how thousands of people he has never met could will him through his struggle."
The case was profiled last year on a blog that covers the U.S. Supreme Court, SCOTUSblog.com, shortly before the high court rejected a request to intervene.
It describes how soldiers suspected Mansur of being involved in an attack that killed two Americans. But since there was no evidence such as "photographs of the detainee at the crime scene," he was subject to the American military's "catch-and-release" rule.
The court blog notes an intelligence report identified Mansur as an explosives transporter for the local al-Qaida cell, and Mansur was identified by a local sheik as a terrorist.
Behenna conducted an unauthorized interrogation of Mansur and ended up shooting him.
Those circumstances became the subject of appeals and protests. While the prosecution alleged Behenna shot Mansur in cold blood, Behenna said he fired in self-defense because Mansur was trying to attack him.
According to testimony: "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."
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 withheld information 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."
The Behennas said at the time: "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.
"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."
Lower courts eventually said since Behenna was holding the terror suspect at gunpoint, he gave up the right to defend himself, no matter what the suspect did.
The Supreme Court blog noted that the case was far from unanimous against Behenna.
"The two dissenting judges saw things very differently. In their view, to determine whether a self-defense instruction is appropriate, a court must consider whether 'the circumstances justified the use of force to save the service member's life from an attack by a person suspected of supporting the enemy.' The dissent pointed out that Behenna was not charged with violating a specific order or regulation. In considering whether Behenna's verbal and physical threats constituted deadly force or were instead a pretense to get Mansur to talk, the dissenting judges emphasized that the military judge did not conclude, 'as a matter of law or fact, that [Behenna's] interrogation techniques constituted the use of deadly force or that [his] conduct otherwise precluded a self defense instruction.'"