I’m not an attorney, but it appears a new team of those legal experts has filed a petition with the U.S. Supreme Court on behalf of former Army Ranger 1LT Michael C. Behenna, an Edmond, Okla., native about whose case I’ve written more than 60 posts since June 4, 2009.
Today, according to a report at NewsOK.com, the five-attorney team’s petition argued that the Court of Appeals for the Armed Forces, the top military appeals court, issued a wrong and dangerous decision last year when it confirmed Lieutenant Behenna’s conviction of unpremeditated murder in a combat zone. If the report is accurate, the attorneys appear to have overlooked and/or ignored at least three key items crucial to this officer’s defense.
GENERAL AUSTIN’S MEMO
Apparently ignored was a two-page memo I obtained from a confidential source in December 2009. It concerns the declassification of information that was to be used in two courts-martial, one of which was U.S. vs. Behenna, that contained information about Ali Mansur, the Iraqi man Lieutenant Behenna admitted killing in self-defense.
Dated Oct. 28, 2008, and marked “For Official Use Only,” the memo was signed by Army Lt. Gen. Lloyd J. Austin III, then-commanding general of the Multi-National Force-Iraq, and outlined specific intelligence information about Al-Qa’ida operatives in Iraq. It contains two descriptive sections of information as well as a “recommendation” section.
The first descriptive section (below) is dated April 27, 2008. Because it contains portions of other documents, it appears to not follow in alphabetic or numerical order:
SUMMARY: ON 20 APRIL 2008, MEMBERS OF THE AL-QA’IDA IN IRAQ IMPROVISED EXPLOSIVE DEVICES CELL CONDUCTED AN IMPROVISED EXPLOSIVE DEVICE ATTACK ON THE COALITION FORCES CONVOY IN THE VICINITY OF SALAM VILLAGE, SALAH AD DIN PROVINCE, IRAQ.
TEXT: 20 APRIL 2008, ADIL ARAK ((DAHIR)) TNU, SA’ID ARAK ((DAHIR)) TNU. KANAN FANNR ((THARTHAR)) TNU, SAHAB THARTHAR ((MUTLAK)) TNU, AND ARIF HAMID (AFFAN)) TNU EMPLACED AN IED AT SALAH AD DIN PROVINCE, IRAQ.
2. THE FOLLOWING INDIVIDUALS ARE MEMBERS OF THE AL-QA’IDA IN IRAQ IED CELL OPERATING IN SALAM VILLAGE, AND ALBU TOMA SALAH AD DIN PROVINCE –
A. ADIL ARAK IS THE LEADER THE AL-QA’IDA IN IRAQ IED CELL. ADIL MAKES AND EMPLACES IEDS. ARAK RESIDES IN SALAM VILLAGE.
F. ALI MANSUR TRANSPORTS EXPLOSIVES AND INFORM ADIL ABOUT THE CF PRESENCE IN THE AREA. ALI IS AN IRAQI POLICEMAN WORKING AT THE THP IRAQI POLICE STATION IN ALBU TOMA.
It’s important to note that Mansur’s name appears in paragraph “F” above. Beginning at the bottom of page one of the memo and continuing at the top of page two, Mansur is identified as one who transports explosives and informs Adil Arak, the leader of the Al-Qa’ida In Iraq IED Cell.
The second section is dated May 18, 2008, and contains a subject line — “INSURGENT CELL IN ALBU TOMA, SALAH AD DIN PROVINCE, IRAQ (U)” — followed by two paragraphs of text that appear not to be directly related to Lieutenant Behenna’s case. They are followed by two sections in which it is explained that numerous intelligence and security officials recommended the information listed above be declassified.
THE FORENSIC EXPERT IGNORED
Also apparently ignored by the attorneys was the military justice system’s serial refusal to consider the input of a forensic expert who examined the evidence in the deadly shooting incident and concluded that, yes, Lieutenant Behenna acted in self-defense.
Details of his never-heard-in-court testimony can be found in two articles — Army Officer Kills Al-Qaeda Operative, Imprisoned After Prosecutors Ignore Own Expert Witness and Photos Show Scene Where Trail of Injustice Began — I published Dec. 7, 2009, and Feb. 10, 2010, respectively.
A COLOSSAL FAILURE OF LEADERSHIP
Finally, the attorneys appear to have ignored a colossal failure of Army leadership that allowed Lieutenant Behenna to be put in a position from which only bad outcomes could, and did, result.
I highlighted details of that failure in an Aug. 20, 2012, post, Is Army Protecting Someone in Officer’s Chain of Command? An excerpt appears below:
While I realize Army officials cannot allow junior officers to get away with willfully disobeying lawful orders, I also realize someone in Lieutenant Behenna’s chain of command dropped the ball when he ordered the then-24-year-old officer to escort Mansur back to his hometown.
Because the Iraqi policeman was a prime suspect in an improvised explosive device attack two weeks earlier that had killed two members of Behenna’s platoon. But that’s not all!
When Mansur was in custody and being questioned about his terror activities, four different Army intelligence officers reportedly failed to ask the Iraqi about the IED attack, about a threatening phone call he allegedly made to Behenna, about another attempted attack months earlier, and about several trips he had made to Syria.
While consideration of any one of the three items listed above should have derailed the prosecution’s case against Lieutenant Behenna, the combination of the three should have slammed the door on efforts to railroad this young officer. Instead, he sits behind bars at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., serving a 15-year sentence.
UPDATE: Since July 19, 2012, I’ve tried to use the federal Freedom of Information Act to obtain a copy of the Army Regulation 15-6 Investigation Report (AR 15-6) from the Army about the incident involving Lieutenant Behenna. As of this morning, when I contacted FOIA officials at Army Central Command, I am still waiting for a copy of the report. Sadly, it seems, no one in the Army can find a copy of the report. More details appear in the post mentioned in the second paragraph of the “LEADERSHIP FAILURE” section above.
UPDATE 1/08/2013 at 10:14 a.m. Central: I owe an apology to the attorneys representing Lieutenant Behenna at the Supreme Court level. It appears I jumped the gun and assumed that NewsOk.com’s failure to mention the crucial elements highlighted above, which I deemed necessary for the petition to succeed, meant that the attorneys also failed to include them in the petition. Since publishing this post, I was able to obtain a copy of the petition and see I was wrong when I doubted the attorneys.
UPDATE 1/29/2013 at 5:30 p.m. Central: The U.S. Supreme Court has asked the U.S. Justice Department to respond to the appeal filed by 1st Lt. Michael Behenna, who is seeking to have his conviction of unpremeditated murder in a combat zone overturned, according to a news report today.
Bob McCarty is the author of Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, a nonfiction book that’s available in paperback and ebook via most online booksellers, including Amazon.com. His second book, The CLAPPER MEMO, is coming soon.