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.
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.