Bob McCarty Writes

EDITOR’S NOTE: On July 31, 2008, Army Ranger 1st Lt. Michael Behenna was charged with the premeditated murder of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad.  Seven months later, the leader of the 18-member Delta Company, 5th platoon of the Army 101st Airborne Infantry Division was convicted of unpremeditated murder and sentenced to 25 years confinement at Fort Leavenworth. Below is the ninth and final installment of a multi-part investigative series detailing the spurious case against Lieutenant Behenna, now 26, adapted from “The Michael Behenna Story (pdf),” (26 pgs., PDF) by new BMW contributor Carrie Fatigante. It picks up from “The Michael Behenna Story: Part Eight.”

By Carrie Fatigante

Unable to ignore any longer their own expert witness, renowned forensic scientist Dr. Herbert Leon MacDonell, Army prosecutors turned over the previously hidden evidence to 1st Lt. Michael Behenna’s defense team.

The judge then ordered both sides to file briefs relating to a possible mistrial based on a Brady violation, stemming from a 1963 Supreme Court ruling in Brady v. Maryland that ruled suppression by the prosecution of evidence favorable to a defendant violates due process and the accused’s right to a fair and impartial trial.

But on March 20, 2009, ruling in concert with the prosecution, Judge Col. Theodore Dixon denied Behenna’s request for a mistrial and upheld Michael’s conviction of unpremeditated murder, claiming MacDonell’s affidavit was not “credible.”

As a result, Michael was sentenced to 25 years — later reduced to 20 — in prison at the Ft. Leavenworth penitentiary.  A request for a new trial has been denied, and the case is currently under appeal and review for clemency.

When I randomly (and unscientifically) polled persons about their opinions of this case, most were outraged at what they called “liberal” policies implemented to gain favor with Iraqi people for the sake of humanity, regardless of the fact that these terrorists abide by no code of honor, save that of killing themselves in the process of killing as many westerners as possible.

Civilian principles historically do not apply in war, but increasingly the U.S. government insists that our servicemen make combat decisions based on civilian legal issues, despite the fact that they are fighting an enemy that refuses to comply with the Geneva Conventions.

Earlier this year, the Obama Administration ordered the U.S. civilian version of Miranda rights to be read to all war detainees, fatally constricting the ability of soldiers to gain needed intelligence to save further lives.

Throughout the Iraq and Afghanistan wars, soldiers have been faced with imminent life-threatening situations and have had to make combat decisions based on whether they could later be sent to prison.

Today, Michael is one of many soldiers convicted of war crimes for actions they believed were protecting their troops and the interests of the United States.

The Behenna Family: Scott, Brett, Vicki, Michael and Curtis

Michael’s case has consumed the lives of his parents, Scott and Vicki.  They travel each weekend from Oklahoma to Kansas to visit their son and, after work each weeknight they answer hundreds of e-mails, letters and phone calls from supporters and respond to news media requests.

Countless blogs and internet radio shows have covered Michael’s case and local Oklahoma media outlets have featured Michael in print and video.  The only mainstream media source to cover the prosecution’s Brady violation is the Los Angeles Times.  Still, Vicki says the outpouring of public support helps strengthen their resolve to earn Michael a fair trial.  And that’s all they are asking for — a new trial.

They could demand a dismissal of charges outright, but the Behennas are only asking for an open and fair trial for Michael where all evidence is presented.

Dr. Herbert Leon MacDonell

Dr. MacDonell has not forgotten Michael’s case either.  On Oct. 3, the Corning (N.Y.) Star-Gazette reported in an article (no longer online) that, at a recent luncheon sponsored by the Auxiliary of Corning Hospital in New York, the doctor highlighted six of his most important cases.  Michael’s was one of them.  Other articles, like this one, confirm the doctor’s continued interest in the case.

I asked Vicki how Michael is treated by guards and fellow prisoners at Fort Leavenworth.

“They support him 100 percent,” she explained.  “In fact, some of the guards that have been given orders for deployment have come to Michael asking him for advice.”

In a truly telling moment just after his conviction, Michael sat in a chair with his head in his hands as he waited to be escorted to prison.  Vicki recalls that the guard assigned to cover Michael knelt before him, looked him in the eyes and said, “You are an honorable man.  You will always be a soldier.” The guard then stood and saluted him.

As my conversation with the Behenna family came to a close, I asked Scott, “If there is one thing you wish to tell people about Michael, what would it be?”  His answer befits only the finest of U.S. soldiers.

“I want them to know Michael served his country with honor and courage,” he said.  “There has been no evidence presented to taint that courage.  Everything he did was oriented to protect his soldiers, the people of Iraq, and his country.”

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1st Lt. Michael Behenna

To read other BMW posts about Lieutenant Behenna’s case, click here.

To learn more about the case and the legal defense fund set up to help defray costs associated with Lt. Behenna’s defense, visit DefendMichael.wordpress.com.