To keep former Army 1st Lt. Michael Behenna behind bars until 2024 for the "unpremeditated murder" of an insurgent during the war in Iraq, U.S. military prosecutors have resorted to strange and disturbing twists of law, logic and morality. They were all on display again this week in Behenna's final plea before the military's highest court of appeals in Washington, D.C. It was enough to make the gold eagle on top of the American flag in the courtroom shake and then hang its head.
Or so I imagined while listening intently as questions from the five civilian judges began to drill into a central argument advanced by the military prosecutor: that Lt. Behenna had "lost his right to self-defense" in the war zone when he embarked on an unauthorized interrogation of Ali Mansur, a suspected al-Qaida cell leader.
Lost his right to self-defense? What does that mean to our soldiers at war, where extenuating circumstances are facts of life?
At the hearing's onset, however, questions from the bench peppering Behenna's defense counsel, Jack Zimmerman, made it clear the judges weren't interested in any such circumstances. For the record, these include the fact that: (1) Behenna, as a 25-year-old platoon leader, lost two of his men very likely to Mansur, who was strongly suspected of organizing attacks against Americans; (2) shortly after Behenna's platoon arrested Mansur, he was released again; (3) Behenna himself, deeply affected by the deaths of his men weeks earlier, was ordered to take Mansur home; and (4) Behenna decided one more interrogation would net the confession necessary to find other al-Qaida members and put Mansur back in jail.
Thus, Michael Behenna, a 2006 ROTC graduate of the University of Central Oklahoma, found himself in a culvert in Baiji, Iraq, in 2008 interrogating Mansur, who, stripped naked, sat on a rock.
Military prosecutors argue Behenna executed Mansur then and there. A court-martial panel (jury) called it "unpremeditated murder" in 2009, and Behenna was sentenced to 25 years in Fort Leavenworth military prison. (That sentence has since been reduced to 15 years.)
According to Behenna's own testimony -- and according to the corroborating hypothesis of one of the prosecution's own expert witnesses -- Mansur rose from the rock and lunged for Behenna's gun. Behenna fired two bullets in self-defense, killing Mansur. And therein lie the seeds of appeal.