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Where Is the Justice for Michael?

The opinions expressed by columnists are their own and do not necessarily represent the views of

Earlier this month, I received an e-mail update from Scott and Vicki Behenna, whose son, Army Ranger 1st Lt. Michael Behenna, is serving 15 years in Fort Leavenworth military prison over the May 2008 shooting of a known killer in Iraq -- a terrorist for whom the Army would actually issue a kill/capture order before realizing he was already dead.

By the way, that last detail ranks as a minor outrage compared to the other outrages in this military disgrace of a case.

As for most Americans, December has been a busy month for the Behenna family. But while most families have been busy with Christmas plans, the Behennas have been seeking justice for their 27-year-old son. On Dec. 2, they and Michael's girlfriend (friends since second grade) went before the Army Clemency Board to ask the Board to suspend the rest of Michael's sentence, or at least significantly reduce it given that it's at least 50 percent longer than other combat-related unpremeditated-murder sentences. On Dec. 9, the Behennas wrote, they would be attending the long-awaited appeal of Michael's conviction in military appeals court in Arlington, Va.

"At this point," the e-mail continued, "it would take a miracle to prevent Michael from spending another Christmas in prison. But we count it among our many blessings that we will be able to spend Christmas with our son in the visitation room. We have much to be grateful for as we head into 2011. The support you have given to Michael and to our family has truly been a gift from God. Michael's story has continued to grow exponentially as has all the stories of the Leavenworth Ten. Please keep the letters coming for all these brave American soldiers."

Ah, the Leavenworth Ten. Readers of this column should be very familiar with these soldiers. Their continued incarcerations remain a moral blight on the U.S. military, which has frequently and recklessly extended clemency to thousands of Iraqi, Iranian, Afghan and other killers from Gitmo to Camp Bucca to Bagram Prison, even as it continues to imprison these men who went to fight them. One of them, PFC Corey Claggett, suffering from severe PTSD, has been in solitary confinement for over four years. (The superior who gave the unlawful order Claggett followed, however, is free on parole.)

How could this be?

I attended Lt. Behenna's appeals hearing, and, listening to the military prosecutor argue to uphold the guilty verdict, it struck me that what drives these prosecutions is less the pursuit of truth through shadow and fire than a free-standing, postmodern kind of righteousness that metastasizes independently from the wartime conditions in which all of these dark and difficult incidents take place.

I urge readers to visit for details (and and for more general information), but the crux is this: While the prosecution originally argued that Michael shot an unarmed, naked and seated victim, Michael Behenna's defense was and is that he shot and killed in self-defense an enemy who had sprung to his feet, chucking concrete and coming at him. That's what Michael said in his trial. And, of crucial importance to Michael's appeals case, that's what the prosecution's own forensics witness, Dr. Herbert MacDonnell, said the forensics evidence supported. But MacDonnell's key evidence was never disclosed to the jury. And, in seemingly glaring violation of due process, this crucial evidence was never disclosed to the defense until after the guilty verdict came in.

No reason to undermine the guilty verdict, the prosecution insisted. Indeed -- and here, an observer of both proceedings told me, came the shift in prosecutorial strategy -- whether standing or sitting, the enemy fighter was fully justified in attacking the fully armed American lieutenant, threatening his life. Further, the military prosecutor claimed the situation was such that the American lieutenant had ... no ... right ... to ... self-defense.

This is twisted beyond twisted. So, too, is the apparent fact that had the terrorist seized the lieutenant's weapon in a scuffle, Lt. Michael Behenna would be innocent in the military's eyes. He would also be dead.

It's time for our appalling military justice system to go on trial.

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