Michael Behenna Loses Final Military Appeal

Short of a presidential pardon or Supreme Court decision in his favor, which isn’t likely in this day and age, it appears Army Ranger 1LT Michael C. Behenna will remain behind bars at Fort Leavenworth, Kan., until he turns 40 years old.  The Court of Appeals of the Armed Forces in Washington, D.C., has upheld the 29-year-old Edmond, Okla., native’s conviction stemming from a May 16, 2008, shooting in Iraq.

Clockwise from upper left: Michael’s family; Michael; Michael as a youngster; and Michael and his girlfriend, Shannon.

The sad news arrived shortly after 6 p.m. Central Thursday, almost 11 weeks after the five-member CAAF panel heard Lieutenant Behenna’s final appeal of the verdict that found him guilty of unpremeditated murder in the shooting death of Ali Mansur, a known Al-Qaeda operative in Iraq.

It is beyond comprehension how multiple levels of the military justice system were able to reconcile the lieutenant’s conviction with the fact that the government’s own expert witness reached the conclusion that the lieutenant acted in self defense — see this post and this post for more details — but they did.  And by a 3-2 margin.

Below is the cruxt of the majority opinion in the decision:

We granted review in this case to determine whether the military judge provided complete and accurate self-defense instructions, and whether the Government failed to disclose favorable and material information to Appellant’s prejudice. We hold that, although the military judge’s instruction on escalation was erroneous, it was harmless beyond a reasonable doubt because escalation was not in issue. Moreover, contrary to Appellant’s arguments, withdrawal also was not in issue. We further hold that, even assuming that the information Appellant asserts the Government failed to disclose was favorable, it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts, Appellant was not entitled to an escalation instruction, and the members clearly rejected the Government’s theory of premeditated murder. We, therefore, affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

Next, the dissenting opinion:

A death occurred in the theater of operations. A soldier has been convicted of murder. Was it murder or self-defense? By law, the responsibility for making that factual determination rested with the court-martial panel, not with this Court. The ambiguous, confusing, and incorrect instructions from the military judge deprived Appellant of the right to have a panel of officers make that decision. The military judge compounded that error by failing to take corrective action with respect to the Government’s failure to provide timely disclosure of exculpatory evidence. This Court should reverse the decision of the Court of Criminal Appeals and authorize a rehearing.

The entire document, warts and all, can be found here.

Since June 4, 2009, I’ve written more than 60 posts about Lieutenant Behenna and fight for military justice.  This certainly will not be the last.

CORRECTION 7/6/12 at 10:57 a.m. Central:  After publishing this post, I was informed that Behenna can appeal his case to the United States Supreme Court; therefore, I amended the lead paragraph to reflect that change.

This entry was posted in Al-Qaeda, Iraq, Michael Behenna and tagged , , , , , by BobMcCarty. Bookmark the permalink.

About BobMcCarty

A native of Enid, Oklahoma, Bob McCarty graduated from Oklahoma State University with a degree in journalism in 1984. During the next two decades, he served stints as an Air Force public affairs officer, a political campaign manager, a technology sales consultant and a public relations professional. Today, Bob spends most of his time researching topics, writing about them and publishing those writings. When he’s not writing online, he’s working as an author. Bob’s first published book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice (October 2011), chronicles the life story and wrongful conviction of Sgt. 1st Class Kelly A. Stewart, a highly-decorated Green Beret combat veteran. In his second book, THE CLAPPER MEMO (May 2013), Bob connects the dots between a memo signed by James R. Clapper Jr. — the man now serving as our nation’s top intelligence official — and the deaths of dozens of Americans in Afghanistan at the hands of our so-called Afghan “allies” wearing the uniforms of their nation’s military, police and security forces. Bob is married, has three sons and lives in the St. Louis area. Bob is available for media and blogger interviews. Simply drop a comment here, leaving your name, organization, phone number, e-mail address and area of interest. He’ll try to respond as soon as possible.

17 thoughts on “Michael Behenna Loses Final Military Appeal

  1. Pingback: Michael Behenna Loses Final Appeal

  2. Perhaps the Lt. should convert to radical islam, join AQ and he would be out in a few months.

  3. How does the army expect to get anybody to join (our all volunteer army) if the DOD throw’s them into combat and then prosecutes them when the battle is over. It doesn’t make any sense.

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  9. Corrected:

    Perhaps you can clarify the story for me.

    It was my understanding that Micheal Behenna was ordered, by his superiors to return the suspect to his home.

    Instead, he decided to disobey orders and do his own interrogation by stripping the suspect naked and taking him to another location and doing “his own” interrogation, which went horribly wrong.

    Couldn’t have this all been avoided if Micheal Behenna ahd simply followed orders?

    Under what right did feel he could ignore those orders?

  10. And how many times have you engaged an enemy in a battle situation that didn’t involve a video game, “GoBillGo”? You have probably never even fired a bb gun in your life. Now turn off NPR, step away from the Kool Aid, and go for a nice long jog to clear your head.

  11. Thanks for the reply,

    But you did not address the question.

    Micheal Behenna was not in a “combat” situation.

    He was “interrogating” an unarmed naked man against orders.
    I ask again, what gave him the right to disobey orders?

    Can you imagine what would happen to the military if every soldier made their own rules?

    My Lai comes to mind.

    Now, turn off Fox news and answer the question in an honest manner.

  12. Pingback: Deplorable Injustice Continues for Lt. Michael Behenna

  13. Pingback: Shame on the nation: American Hero Michael Behenna Loses Final Appeal

  14. Have been following this case for a while and it is shame how our soldiers are treated worse than the pow’s. I have urged my nephew who is with USAF to get out before he ends up at Leavenworth

  15. Michael will find justice, unfortunately it will have to come when Obama is finally out of office and a Presidential pardon can take place. I pray that happens. Ali Mansur unfortunately will not find his virgins in heaven, for he is rotting in hell.

  16. The military holds its employees to a higher standard of discipline than civilian employees – for good reason. Military Regulations are in place to control the behavior of the troops. UCMJ is in place to punish those who fail to follow the regulations. The LT put himself in this situation through indisciplined decisions and failure to follow orders. Then he tried to cover up the incident by not informing the chain of command. If it were truly self-defense, why would he not come clean as others did in similar circumstances?

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