One: Military prosecutors didn't inform the defense team about their own expert witness's exculpatory evidence, which is required procedure under the rules of discovery. Two: The instructions to the original panel (jury) were so convoluted that one of the appeals court judges said he'd read them four times and still found them confusing.
Maybe more than anything else, though, what made the eagle in the courtroom droop in despair were the lengths to which the U.S. government was prepared to go to strip this soldier, and by extension all soldiers, of their "right to self-defense," even amid the untenable conditions of urban counterinsurgency (COIN) warfare and its restricted rules of engagement.
A lengthy line of questions on a soldier's right to self-defense indicated considerable interest (incredulity?) among the judges on this key position of the prosecution. Lead prosecutor Army Capt. Steven E. Latino argued that by embarking on the unauthorized interrogation with a loaded gun pointed at Mansur, Behenna lost his right to defend himself -- in essence, lost his right to stay alive -- even in the event the al-Qaida op attacked him. Indeed, Latino stressed that there was no condition here under which Behenna could have maintained his "right to self-defense."
How twisted Uncle Sam has become. If we take this position to its shocking conclusion, in our government's eyes, a terrorist with American blood on his hands merits more legal protection than does the U.S. soldier who breached protocol, however severely, in hopes of bringing said terrorist to book for killing Americans.
Free Michael Behenna, yes. And free the rest of the "Leavenworth 10" -- every one of whom is an Iraq War veteran-victim of unseemly prosecutorial zeal (for courtroom victory over justice), from former Master Sgt. John Hatley and Sgt. Evan Vela, to Pvt. Corey Clagett.
It would make the eagle proud.
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