Flag Officers Back Supreme Court Brief Filed on Behalf of Lieutenant Michael Behenna

Thirty-seven retired high-ranking military officers, including a former Chief of Naval Operations, signed an Amicus Brief submitted to the U.S. Supreme Court Feb. 27 in support of Army Ranger 1st Lt. Michael Behenna.  An Edmond, Okla., native, Lieutenant Behenna is serving 15-years behind bars at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., for killing a known Al-Qaeda operative in Iraq.

Army Ranger 1st Lt. Michael Behenna SCOTUS Amicus Brief

Click image to download document (pdf)

Early on, the 31-page brief raises an important question — that is, whether a servicemember in a combat zone categorically forfeits the right to self-defense as a matter of law by pointing a firearm without authorization at a suspected enemy.  In the case of Lieutenant Behenna, he admitted during his court-martial that he shot Ali Mansur in self-defense.  And therein lies the rub.

Behenna SCOTUS Question PresentedThe brief’s conclusion section (below) makes a clear argument, stating that Lieutenant Behenna deserves some punishment, but not what he received, and, more importantly, a new trial:

Lieutenant Behenna’s unauthorized actions in a combat zone were a serious breach of military discipline and for that reason he should be subject to appropriate disciplinary action under the (Uniform Code of Military Justice).  But in so acting without authorization, he did not forfeit his right to self-defense.  This Court should grant the petition for certiorari, reverse the (Court of Appeals of the Armed Forces), and remand to allow a new court-martial panel to consider Lieutenant Behennas’s claim that he acted in self-defense, including evidence unlawfully withheld by the prosecution corroborating that claim.

At the same time as I’m pleased with this document, I remain disappointed that its authors made no mention of the colossal failure of leadership among officers in Lieutenant Behenna’s chain of command.  That failure, a subject I tackled in a post Aug. 20, 2012, allowed him to be put in a position from which nothing good could result.

To read any of the more than 60 posts I’ve written about the lieutenant’s case since June 4, 2009, click here.

EDITOR’S NOTE:  Lieutenant Behenna and Army Sgt. 1st Class Kelly A. Stewart, the man whose life story is chronicled in my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, became good friends behind bars at Fort Leavenworth.

"Three Days In August" by Bob McCarty BobHeadshotSmall NewBookCover LR 2-17-2013

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. It chronicles the life and wrongful conviction of Army Green Beret Sgt. 1st Class Kelly A. Stewart. His second book, THE CLAPPER MEMO, is coming soon.

Hillary Clinton Testifies on Benghazi Debacle

Will Secretary of State Hillary Clinton’s testimony before members of the U.S. Senate Committee on Foreign Relations cast a cloud over President Barack Obama’s second term?  Time will tell.  Meanwhile, the text of her testimony appears below:

Hillary Casts Cloud Over Obama by Political Graffiti

Hillary Casts Cloud Over Obama by Political Graffiti

Mr. Chairman, Ranking Member, Members of the Committee, thank you for this opportunity.

The terrorist attacks in Benghazi on September 11, 2012 that claimed the lives of four brave Americans — Chris Stevens, Sean Smith, Tyrone Woods, and Glen Doherty — are part of a broader strategic challenge to the United States and our partners in North Africa. Today, I want to offer some context for this challenge and share what we’ve learned, how we are protecting our people, and where we can work together to honor our fallen colleagues and continue to champion America’s interests and values.

Any clear-eyed examination of this matter must begin with this sobering fact: Since 1988, there have been 19 Accountability Review Boards investigating attacks on American diplomats and their facilities. Benghazi joins a long list of tragedies, for our Department and for other agencies: hostages taken in Tehran in 1979, our embassy and Marine barracks bombed in Beirut in 1983, Khobar Towers in Saudi Arabia in 1996, our embassies in East Africa in 1998, consulate staff murdered in Jeddah in 2004, the Khost attack in 2009, and too many others.

Click to read Hillary Clinton statement Sept. 11, 2012.

Click to read Hillary Clinton statement Sept. 11, 2012.

Of course, the list of attacks foiled, crises averted, and lives saved is even longer. We should never forget that our security professionals get it right 99 percent of the time, against difficult odds all over the world. That’s why, like my predecessors, I trust them with my life.

Let’s also remember that administrations of both parties, in partnership with Congress, have made concerted and good faith efforts to learn from the tragedies that have occurred, to implement recommendations from the Review Boards, to seek necessary resources, and to better protect our people from constantly evolving threats. That’s what the men and women who serve our country deserve. And it’s what we are doing again now, with your help. As Secretary, I have had no higher priority, and no greater responsibility.

As I have said many times since September 11, I take responsibility. Nobody is more committed to getting this right. I am determined to leave the State Department and our country safer, stronger, and more secure.

Taking responsibility meant moving quickly in those first uncertain hours and days to respond to the immediate crisis and further protect our people and posts in high- threat areas across the region and the world. It meant launching an independent investigation to determine exactly what happened in Benghazi and to recommend steps for improvement. And it meant intensifying our efforts to combat terrorism and support emerging democracies in North Africa and beyond.

Let me share some of the lessons we have learned, the steps we have taken, and the work we continue to do.

First, let’s start on the night of September 11 itself and those difficult early days. I directed our response from the State Department and stayed in close contact with officials from across our government and the Libyan government. So I saw first- hand what Ambassador Thomas Pickering and former Chairman of the Joint Chiefs of Staff Admiral Mike Mullen called “timely” and “exceptional” coordination. No delays in decision-making. No denials of support from Washington or from the military. And I want to echo the Review Board’s praise for the valor and courage of our people on the ground – especially the security professionals in Benghazi and Tripoli. The Board said our response saved American lives in real time – and it did.

DOS Travel Warning 8-27-12

Click to view Department of State travel warning pre-Benghazi.

You may recall that in that same period, we also saw violent attacks on our embassies in Cairo, Sanaa, Tunis, and Khartoum, as well as large protests outside many other posts where thousands of our diplomats serve.

So I immediately ordered a review of our security posture around the world, with particular scrutiny for high-threat posts. We asked the Department of Defense to join Interagency Security Assessment Teams and to dispatch hundreds of additional Marine Security Guards. I named the first Deputy Assistant Secretary of State for High Threat Posts, so Missions in dangerous places get the attention they need. And we reached out to Congress to help address physical vulnerabilities, including risks from fire, and to hire additional Diplomatic Security personnel.

Second, even as we took these steps, I also appointed the Accountability Review Board led by Ambassador Pickering and Admiral Mullen so that we could more fully understand what went wrong and how to fix it.

I have accepted every one of their recommendations — and I asked the Deputy Secretary for Management and Resources to lead a task force to ensure that all 29 of them are implemented quickly and completely… as well as to pursue additional steps above and beyond those in the Board’s report.

Because of the effort we began in the days after the attacks, work is already well underway. And, as I pledged in my letter to you last month, implementation has now begun on all 29 recommendations. Our task force started by translating the recommendations into 64 specific action items. All of these action items were assigned to specific bureaus and offices, with clear timelines for completion. Fully 85 percent are on track to be completed by the end of March, with a number completed already.

We are taking a top-to-bottom look, and rethinking how we make decisions on where, when, and how our people operate in high threat areas, and how we respond to threats and crises.

As part of our effort to go above and beyond the Review Board’s recommendations, we are initiating an annual High Threat Post Review chaired by the Secretary of State, and ongoing reviews by the Deputy Secretaries, to ensure pivotal questions about security reach the highest levels. And we will regularize protocols for sharing information with Congress.

All of these actions are designed to increase the safety of our diplomats and development experts and reduce the chances of another Benghazi happening again.

Now, in addition to the immediate action we took and the Review Board process, we have been moving forward on a third front: addressing the broader strategic challenge in North Africa and the wider region.

Because Benghazi didn’t happen in a vacuum. The Arab revolutions have scrambled power dynamics and shattered security forces across the region. And instability in Mali has created an expanding safe haven for terrorists who look to extend their influence and plot further attacks of the kind we saw just last week in Algeria.

And let me offer my deepest condolences to the families of the Americans and all the people from many nations who were killed and injured in the recent hostage crisis. We remain in close touch with the Government of Algeria and stand ready to provide assistance if needed. We are seeking to gain a fuller understanding of what took place so that we can work together to prevent terrorist attacks like this in the future.
Concerns about terrorism and instability in North Africa are not new. Indeed they have been a top priority for our entire national security team. But after Benghazi, we accelerated a diplomatic campaign to increase pressure on al Qaeda in the Islamic Maghreb and other terrorist groups across the region.

In the first hours and days, I conferred with the President of Libya and the Foreign Ministers of Tunisia and Morocco. Two weeks later, I met with regional leaders at the United Nations General Assembly and held a special meeting focused on Mali and the Sahel. In October, I flew to Algeria to discuss the fight against AQIM. In November, I sent Deputy Secretary Bill Burns to follow up in Algiers. And then in December, he co-chaired the Global Counterterrorism Forum in Abu Dhabi and a meeting in Tunis of leaders working to build new democracies and reform security services.

In all these diplomatic engagements, and in near-constant contacts at every level, we have focused on targeting al Qaeda’s syndicate of terror – closing safe havens, cutting off finances, countering extremist ideology, and slowing the flow of new recruits. We continue to hunt the terrorists responsible for the attacks in Benghazi and are determined to bring them to justice. And we’re also using all our diplomatic and economic tools to support the emerging democracies of the region, including Libya, to strengthen security forces and provide a path away from extremism.

The United States must continue to lead… in the Middle East and all around the globe. We have come a long way in the past four years. We cannot afford to retreat now. When America is absent, especially from unstable environments, there are consequences. Extremism takes root, our interests suffer, and our security at home is threatened.

That’s why Chris Stevens went to Benghazi in the first place. Nobody knew the dangers better than Chris, first during the revolution and then during the transition. A weak Libyan government, marauding militias, even terrorist groups… a bomb exploded in the parking lot of his hotel, but he didn’t waver. Because he understood that it was critical for America to be represented in that pivotal place at that pivotal time.

Our men and women who serve overseas understand that we accept a level of risk to protect this country we love. They represent the best traditions of a bold and generous nation. And they cannot work in bunkers and do their jobs.

It is our responsibility to make sure they have the resources they need to do their jobs and to do everything we can to reduce the risks they face.

For me, this is not just a matter of policy… it’s personal.

I stood next to President Obama as the Marines carried those flag-draped caskets off the plane at Andrews. I put my arms around the mothers and fathers, sisters and brothers, sons and daughters.

It has been one of the greatest honors of my life to lead the men and women of the State Department and USAID. Nearly 70,000 serving here in Washington and at more than 275 posts around the world. They get up and go to work every day – often in difficult and dangerous circumstances thousands of miles from home – because they believe the United States is the most extraordinary force for peace and progress the earth has ever known.

And when we suffer tragedies overseas, the number of Americans applying to the Foreign Service actually increases. That tells us everything we need to know about what kind of patriots I’m talking about.    They ask what they can do for their country. And America is stronger for it.

Today, after four years in this job, after traveling nearly 1 million miles and visiting 112 countries around the world, my faith in our country and our future is stronger than ever. Every time that blue and white airplane carrying the words “United States of America” touches down in some far-off capital, I feel again the honor it is to represent the world’s indispensible nation. And I am confident that, with your help, we will continue to keep the United States safe, strong, and exceptional.

So I want to thank this committee for your partnership and your support of our diplomats and development experts around the world. You know the importance of the work they do day-in and day-out, and that America’s values and vital national security interests are at stake. It is absolutely critical that we work together to ensure they have the resources and support they need to face increasingly complex threats.

I know that you share our sense of responsibility and urgency. And while we all may not agree on everything, let’s stay focused on what really matters: protecting our people and the country we all love.

Now I am now happy to answer your questions.

###

I watched the testimony live on C-SPAN.  Updates to follow.

"Three Days In August" Promotional PhotoBob 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.

Is Army Protecting Someone in Officer’s Chain of Command?

Despite having written dozens of pieces during the past four years about the conviction of Army Ranger 1st Lt. Michael Behenna, I only recently came to realize he is a victim of a colossal failure of Army leadership.  On July 19, I set out to find out who’s to blame.

Six days after members of the Court of Appeals of the Armed Forces upheld the conviction that landed Behenna in prison for 15 years, I filed two Freedom of Information Act requests with the U.S. Army as my first step toward finding answers.

In one request, I asked for “Copies of any and all investigation-related reports prepared by Army Criminal Investigation Division (CID) and any other U.S. Government agencies on and/or after 16 May 2008 as part of the investigation into the shooting death of an Iraqi citizen, Ali Mansur, by Michael Behenna, who is now serving a 15-year sentence at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kansas.

I was informed via electronic letter the same day that my request had been forwarded to the Army’s Criminal Investigation Command (USACIDC) in Quantico, Va., for disposition.

Twenty-six days later, I received a packet in the mail from Susan Cugler, director of the USACIDC Crime Records Center.  Inside was a two-page cover letter and 22 heavily-redacted pages representing a fraction of the estimated 874 pages of the Report of Investigation (ROI).

Noteworthy in the Cugler’s response was the fact that three of the pages received indicated that USACIDC is not the release authority for 4 pages contained in the ROI and that I’d have to seek copies of them from the U.S. Army Judiciary Clerk of the Court at Fort Belvoir.  In addition, six other pages were “not reasonably segregable” and, therefore, could not be provided.

In the other FOIA request, I asked for Copies of any and all U.S. Government, U.S. Department of Defense and U.S. Army, communications — print, broadcast and electronic — related to the U.S. ARMY 15-6 INVESTIGATION REPORT prepared as part of the investigation” of the deadly incident.

Via electronic letter the same day, I learned my request had been forwarded from the Army’s FOIA Office at Fort Belvoir, Va., to the FOIA office at Fort Campbell, Ky.  Fort Campbell is home to the Army’s 101st Airborne Infantry Division, parent command of the 1st Battalion, 327th Infantry Regiment to which Behenna’s 18-member Delta Company, 5th Platoon belonged.

Twenty-nine days later, I received a letter from Valerie M. Florez, Freedom of Information and Privacy Act Officer at Fort Campbell.  Noteworthy in her response, dated Aug. 16, 2012, was the following statement:

This headquarters has conducted a thorough search for the records you described and the search revealed that there were no records responsive to your request.

No records?  Incredible!

Also noteworthy — and a bit confusing — was the fact that the request has been forwarded to the Pentagon for review as explained below:

Your request was referred to the Office of the Judge Advocate General, for a required legal review and release determination.  In accordance with regulatory policy, your request, along with the No Record certifications, has been forwarded to the Initial Denial Authority listed below for a final review and release determination.  You will be provided a direct response from that agency once the review has been completed.

It remains to be seen whether the Pentagon will provide more info.

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.

Why?

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.

Knowing these details, it’s extremely difficult to fault Behenna for wanting to find out the truth about what happened to his men.  At the same time, however, it’s difficult watching as Army leaders “circle the wagons” to protect the person who issued the order to Behenna.

More to come.

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 set for release this fall.

American Warfighters Deserve Same Consideration as Taliban

After being captured on the unmarked battlefields of Afghanistan and Pakistan, members of the Taliban have been granted release after merely pledging not to support or fight for the Taliban anymore.  Why are U.S. warfighters not being granted similar forms of clemency by their own government?

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

Before addressing that question, it’s worth familiarizing yourself with the Islamic concept of Takeyya.  According to an undated article in Islam Review*, the concept allows Muslims who find themselves under the threat of force to act contrary to their faith and to “utter insincere oaths.”

Fourteen months ago, The New York Times ran an article about attempts to reintegrate members of the Taliban – including many responsible for having killed and/or crippled American soldiers — into society as productive citizens.  The prisoners needed only to pledge — think “oath” — that they would not go back to fighting with the Taliban.  There were no guarantees, of course — just promises — and no apparent concerns about whether or not they were employing Takeyya.  Do you think any of the Taliban who uttered pledges did so simply to facilitate their own release?  Of course, they did!

Now, to answer the question of why U.S. warfighters deserve breaks at least as good as the ones received by their former battlefield enemies, I highlight the case of Army Ranger 1LT Michael Behenna.

Michael’s Platoon

While escorting Ali Mansur, a known Al-Qaeda operative, back to his hometown near Baghdad, Lieutenant Behenna admittedly disobeyed an order and decided to interrogate Mansur.  Why?  There were several reasons:

First, Lieutenant Behenna had good reason to suspect Mansur had been involved in an IED attack two weeks earlier that killed two men — Sgt. Adam Kohlhaas, 26, and Spec. Steven Christofferson, 20 — assigned to the lieutenant’s Delta Company 5th Platoon; and

Second, Lieutenant Behenna had learned that four different Army intelligence officers had interrogated Mansur but had never asked him about the IED attack, a previous threatening phone call made to the lieutenant, a confirmed attempted February attack or his trips to Syria.  Instead, they had only asked him about his possession of illegal weapons and his current employment.

Apparently, carrying the name of one of the largest Sunni families in Iraq had made the Al-Qaeda operative untouchable and prompted U.S. officials to release him.

Now, put yourself in the Lieutenant’s position.

Can you fault him for wanting to learn the entire truth about Mansur’s activities that likely resulted in the deaths of two U.S. soldiers?  I cannot.

How do you explain the lieutenant’s decision to strip Mansur naked and kill him at close range in a culvert?  Without going into all of the details of what took place prior to the shooting, I direct those who think Lieutenant Behenna deserves the punishment he received for killing Mansur to an article I published in February 2010.

Notably, the article includes the text of the sworn affidavit, dated April 21, 2009, in which Dr. Herb MacDonell — a government witness who was never allowed to testify during the lieutenant’s trial — explains how knowledge he obtained while waiting to testify in the case could have changed dramatically its outcome.  For good measure, I share the text of that affidavit again below:

I was retained by the government to testify as an expert witness in bloodstain analysis.  On 16 December 2008 I received a FedEx package from Captain Megan Poirier.  It contained ten envelopes of photographs and reports as well as a video of the scene.  Included was a report by Barbara Liveri, and the autopsy report done by an Iraqi doctor.  Prior to trial, I told the government that using only the photographs at the scene and the nature of the surfaces where the bloodstains were located made it difficult to reach any definitive conclusions.  I had been contacted before trial by Jack Zimmerman, one of the lawyers for First Lieutenant Behenna and told him the same thing.  I was set to travel to Fort Campbell on Wednesday, February 25, 2009, to return on Friday, February 27, 2009.  I was called and asked to come a day earlier, which I did.  I sat in on the testimony of Dr. Paul Radelat and Mr. Tom Bevel.  They testified on Wednesday.

At a recess on Wednesday, I was in the prosecutor’s office in room 13 in the courthouse.  While talking with Dr. Berg about the bullet wounds Ali Mansur received, Dr. Berg gave me information I previously did not have.  Dr. Berg told me that the wound trajectories for both the chest wound and the head wound were horizontal and essentially parallel.

After thinking about this new information, I did a demonstration to show the only logical explanation which was consistent with the autopsy findings, the bloodstains, the final resting position of the body, and the time between shots.  I had Sergeant MacCauley stand directly in front of me, and facing me.  I asked him to raise his right arm a little and then I poked my right index finger in to the right side of his chest under his arm and said, “Bang!  You have just been shot, so drop down.”  The sergeant dropped to his knees and as his head passed in front of my finger, I said, “Bang!  You have been shot again.”  I remarked that this was consistent with the physical evidence.  All three prosecutors, Captains Poirier, Roberts, and Elbert were present when I gave this demonstration and informed them of my opinion.

On Thursday morning during one of the breaks I examined the 9mm bullet and saw it had struck a hard object while traveling backwards.  This is consistent with the bullet tumbling as it exited on of Ali Mansur’s wounds.  The uniformity of the extruded lead into a disk-like configuration shows it was traveling in a horizontal trajectory if the surface it struck was a flat, very coarse, vertical surface.  Logically, that could have been the culvert’s concrete wall.

On Thursday afternoon, the day after this demonstration, I listened to Lt. Behenna testify.  I had seen no written statement made by him.  This was the first time I learned what he said had happened.  After Lt. Behenna described the shooting, I turned to Dr. Berg and told him, “That is exactly what I told you guys yesterday.”  There was a recess about 5:00 pm and Lt. Behenna was still on the witness stand.  I was told by Captain Poirier that I would not be needed, and a flight was arranged for me for that evening.  I told Captains Poirier and Roberts that I could stay another day if necessary. They told me my testimony would not be needed and I could leave to get my flight.

When I went back to room 13 to get my hat, coat, and briefcase the captains on the prosecution team were already in that room.  As I gathered my things I reminded them that although the scenario I had presented to them the day before was unlikely, it still was the only theory I could develop that was consistent with the physical evidence.  It was also exactly the way Lt. Behenna had described the events.  Their reaction was noticeably cold.  I went back into the courtroom and went over to Jack Zimmerman.  As I was putting on my coat I remarked that I was sorry I was leaving because I would have made a good witness for him.  He asked why, and I told him I was a government expert, and could not discuss it with him until after the trial.  He asked me not to leave but I did.  I did not believe it would have been proper for me to have told Attorney Zimmerman any more than I did.  I was not “eager to communicate” with him or I would have told him my concern at that time on Thursday.

I expected that the prosecutors would tell Mr. Zimmerman what I had told them.  When I was released without being called as a defense witness, and had returned to Corning, New York, I was concerned.  I consulted two friends, a Supreme Court judge and a lawyer, and decided to check with Captain Poirier to ensure she had passed on the opinion I had given the prosecutors Thursday afternoon when I was getting my hat, coat, and briefcase.

From reading the judge’s ruling, I believe the misunderstanding may have resulted from the way I interpreted the questions asked during my telephone testimony on Saturday, February 28, 2009.

When I testified that I told Dr. Berg, “That is exactly what I told you guys yesterday,” and did not remember telling my reaction to any other person, I meant right there at that moment in the courtroom.  There was no one else but Dr. Berg sitting nearby who had witnessed my demonstration the day before.  The prosecutors were at counsel table then.

However, at the next recess, when I went to get my hat, coat, and briefcase, I specifically told the three prosecutors in their office in room 13 the same thing I told Dr. Berg.  As I testified on February 28, 2009, “And as I was leaving I told the prosecuting group, I said, “That was exactly what I told you.’”

I do not feel that it is fair to put the opinion I related to Dr. Berg and Captains Poirier, Roberts, and Elbert on Thursday in quotation marks.  Until Wednesday afternoon I had not been told the wound trajectories for both shots were horizontal and parallel.  I had not been provided the bullet to examine.  The scientific process required me to consider the physical and medical evidence in reaching my final conclusion.  That is why I wanted to see the bullet on Thursday.  When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant’s credibility.  My expert opinion was based on the fact that the Lieutenant’s description as to how the shooting occurred fit the physical evidence.

I have consulted and testified in many trials, and I know what exculpatory evidence is.  I firmly believe the jury should have heard my testimony.

After reading everything above, can you really fault Lieutenant Behenna for his actions?  I can’t.

Do his actions deserve 15 years in prison?  I think not.

Unfortunately, members of the Court of Appeals of the Armed Forces voted, 3-2, in favor of upholding his conviction.  So what’s next?

Americans who disagree with the CAAF decision should implore the presidential candidate who wins the privilege of serving as our next Commander-In-Chief should make it his top priority to grant clemency to Lieutenant Behenna.  I’m willing to be Lieutenant Behenna will pledge never to kill Ali Mansur again.

For more details about Lieutenant Behenna’s case, read Carrie Fatigante’s nine-part series that I published in December 2009.  To read about the more recent developments (newest to oldest), click here.

*I know the article was published at least three years ago, because I cited it in a piece published June 4, 2009.

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 set for release this fall.

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.

Flight 93 Memorial Still Resembles Victory Mosque As 10th Anniversary of 9-11 Attacks Draws Near

60%SizeMeccaOrientationGraphicOn Oct. 6, 2007, I wrote and published my first post about the controversial memorial to be constructed at the site where United Airlines Flight 93 crashed into the Western Pennsylvania countryside Sept. 11, 2001.

On Feb. 26, 2009, I shared news of Beverly Burnett’s heartfelt letter in which she called for a full, transparent review of the Flight 93 Memorial Project ostensibly being built to honor people who died in the crash, including her adult son, Tom Burnett Jr.

The above posts were but two of nearly a dozen postsI published on the subject.

Today, I share yet another one, courtesy of Alec Rawls and others who are working with Beverly Burnett and her husband, Tom Burnett Sr., to keep this matter in the spotlight as the 10th anniversary of the Sept. 11 tragedies nears.

* * *

We all know who broke the circle of peace on 9/11.

It was 19 Islamic terrorists. That makes the broken-circle memorial to Flight 93 a memorial to the terrorists, who are depicted not only as smashing our circle of peace, but as leaving a giant Islamic crescent-and-star flag in its place:

Photobucket

They call it a broken circle now, but the unbroken part of the circle, what symbolically remains standing in the wake of 9/11, is just the original Crescent of Embrace: a giant Islamic-shaped crescent, pointing to Mecca.

The damned thing is actually an al-Qaeda victory mosque, with the Mecca-oriented crescent as its mihrab: the Mecca-direction indicator around which every mosque is built.

That is the short version of an advertisement that started running in western Pennsylvania newspapers last week. Alec Rawls sends along this update on the effort to stop the crescent mosque.

10th anniversary ad campaign now underway

The Pittsburgh Tribune-Review recently solicited Tom Burnett Sr.’s response to some new design images for the Flight 93 memorial. When he said that the so-called redesign leaves all of the terrorist memorializing features intact, editors instructed reporter Kari Andren to leave his remarks out. They preferred un-interrupted praise from the same few family members who always speak up for the broken-circle design.

The people of Pennsylvania deserve to see what their information gate-keepers don’t want them to know, so Mr. Burnett and his backers decided to begin their 10th anniversary ad campaign a few weeks early. The first full-page color ad just ran in the Somerset Daily American and will appear in two other local papers next week.

For a PDF of the ad copy, click here or on the thumbnail below, or scroll down for the same content formatted for browsing. If anyone wants to help fund additional advertising, a very generous soul has offered to match all donations up to a total of $5,000.

Broken circle ad 1, large thumbnail

More explicit than a giant Islamic crescent-and-star flag?  As the ad-headline notes, the Circle of Embrace “redesign” only accentuates the circle-breaking crescent-creating theme of the original Crescent of Embrace. Mr. Burnett’s full remarks explain:

The only visible change is the addition of an extra arc of trees that explicitly represents a broken off part of the circle. The unbroken part of the circle, what symbolically remains standing in the wake of 9/11, is just the original Crescent of Embrace: a giant Islamic-shaped crescent, still pointing to Mecca.

People also need to know that a Mecca-direction indicator is the central feature around which every mosque is built. It is called a “mihrab,” and the classic mihrab is crescent shaped.

So the terrorists broke our circle of peace on 9/11, and all that remains standing is the central feature of a mosque. The inclusion of a broken-off part of the circle only accentuates this terrorist-memorializing symbolism. It bastardizes what my son, Tom, and the other heroes of Flight 93 accomplished. The crescent/broken-circle design is a desecration of sacred ground.

Tom Burnett Sr., Northfield, Minn.

Park Service Calls the Circle ‘Broken’

A proper newspaper would ask the National Park Service if the extra arc of trees really does represent a broken-off part of the circle. Still, people can easily verify this crucial fact for themselves. It is right on the park service’s own website. Their “questions about the design” page asks “Is this circle ‘broken’ at all?” Their answer is yes:

… the circle is symbolically “broken” or missing trees in two places, depicting the flight path of the plane, and the crash site.

The locations of these two breaks in the “circle of embrace” are spelled out:

…first, where the flight path of the plane went overhead (which is the location of the planned memorial overlook and visitor center), and second, where the plane crashed at the Sacred Ground (depicted by a ceremonial gate and pathway into the Sacred Ground).

These are the two ends of the extra arc of trees, which starts near the original upper crescent tip and continues down to the crash site. So Mr. Burnett is right. Both ends of the new arc of trees are explicitly broken off. The unbroken part of the circle—what symbolically remains standing in the wake of 9/11—is just the original Islamic-shaped Crescent of Embrace that the park service promised to change.

To illustrate, the ad includes a side-bar of graphics, showing just what is changed and what is not changed in the memorial. This is slightly complicated by the fact that the park service pretended that they were going to make one very big cosmetic change that they are not actually making, but a few pictures easily tell the tale.

The National Park Service pretended the outside of the crescent would be filled in with a forest of trees

A publicity shot of the original Crescent of Embrace design shows what appears to be a bare-naked Islamic crescent-and-star flag planted atop the crash site:

Crescent of Embrace publicity shot

When this blatant Islamic symbolism caused an uproar, architect Paul Murdoch re-worked his mock-up to show a forest of additional trees surrounding the outside of the original crescent:

Circle/Bowl of Embrace publicity shot

Only the inner arc of the crescent remains visible, making the new Circle of Embrace name seem reasonable. But none of these surrounding trees made it into the actual Circle of Embrace design drawings. (The “Stage 1″ drawings, encompassing the area seen in these images, were released in 2009.)

The park service may eventually let the bare field grow in with trees, but this is not a change in the design. The only actual change is the extra arc of trees, seen below in orange. It explicitly represents a broken off part of the circle:

What Circle of Embrace will actually look like

What the Circle of Embrace actually looks like. The original giant crescent still sits naked on an open field and the flight path still “breaks the circle” at the upper crescent tip.

Remove the explicitly broken off part of the circle (in orange), and what symbolically remains standing in the wake of 9/11 is the same giant Mecca-oriented crescent the Park Service promised to change. It constitutes a classic “mihrab,” the Mecca-direction indicator around which every mosque is built, and will form the centerpiece for the world’s largest mosque.

Who broke the circle of peace on 9/11?

When the “Crescent of Embrace” was unveiled as the winning design, architect Paul Murdoch explained the crescent name and the crescent shape by saying that the circle was broken on 9/11, leaving only a part of the circle still standing: the giant crescent. The fact that this circle-breaking crescent-creating theme remains completely intact in the broken-circle design demands the question of WHO is being depicted as breaking the circle of peace on 9/11.

The final section of the ad points out that there can only be one answer. We all know who broke the peace on 9/11. Thus the memorial can only be depicting the actions of the terrorists, who are seen not only as smashing our circle of peace, but as replacing it with their own crescent and star flag.

With the media censoring all criticism, people who don’t like all this blatant Islamic symbolism need a way to signal each other directly, so the ad finishes with a handy-dandy flyer that readers can post on windows, walls, bulletin boards, etc:

Who broke the circle, click for PDF

If you want to put a few up yourself, click the image above for a printable PDF, complete with URLs for our petition to stop the memorial and for more information. And here is an ad-copy version that anyone can run in their own local paper (the free weeklies can be pretty reasonable).

As Flight 93 showed, just because the hijacker has control of the cockpit doesn’t mean he can’t still be stopped.

If you enjoy this blog and want to keep reading stories like the one above, show your support by using the “Support Bob” tool at right. Follow me on Twitter @BloggingMachine. Thanks in advance for your support!

Convicted Army Officer Denied Clemency (Update)

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.  Though his sentence has been reduced to 15 years, Behenna remains behind bars for a killing that should have been deemed self-defense.  Today, I share the latest update from Michael’s parents, Scott and Vicki Behenna:

To the thousands of Michael Supporters,

God bless each of you.  We have been in this fight together for the past two years and your encouragement and support has been the driving force behind all we have been able to accomplish.  Last year, the Clemency Board gave Michael a reduction of 5 years off his 20 year sentence.  On December 2nd we again pleaded Michael’s case before the Army Clemency Board.  We pointed out to them that Michael’s sentence was 50% larger than the highest sentence given to any soldier convicted of unpremeditated murder in a combat zone.  We also addressed Michael’s unblemished record in prison for the past two years, his many accomplishments while incarcerated, and his unblemished civilian record. We stressed that he was not a threat to anyone and offered many letters of reference including those from the Governor of Oklahoma, the Oklahoma Attorney General, Law Enforcement Agency Heads, and all of the supporters who took the time to write letters of support for Michael.  In addition, the entire Oklahoma Congressional Delegation offered their support for Michael’s clemency. We also had three letters of immediate employment for Michael upon his release.  After our arguments to the Clemency Board, the Board had no additional uncompleted factors for Michael, and the Chairman of the Clemency Board stated that Michael had “turned the corner.”  Unfortunately, on December 22nd, Michael was notified that all of our efforts fell on deaf ears and he was denied even ONE day of clemency by the Clemency Board and the Secretary of the Army John McHugh.  We have no idea why they denied Michael’s clemency request and can only surmise that the Secretary of the Army desires Michael to spend a substantial amount of time in prison.

Michael’s Appeal Hearing before the Army Appeal Court took place on December 9th in Washington, DC and was well attended by Michael’s family and a courtroom full of supporters who drove many hours to attend the hearing.  In the Appeal’s Hearing the Army seemed to be taking a new position on the facts of the case.  During Michael’s trial in February 2009 the crux of the entire case revolved around whether Ali Mansur was sitting and executed or standing and reaching for Michael’s gun.  The Army prosecutor’s theory was that Michael executed Mansur while Mansur sat on a rock in a culvert.  Michael’s testimony was that he was questioning Mansur in the culvert when Mansur stood up and lunged for his weapon.  The Army prosecutors claimed Michael’s testimony was “impossible” and “self-serving” despite all the forensic evidence supporting Michael’s version (including their own expert witness who they sent home rather than have testify.)  During the appeal’s hearing the Army seemed to back away from its original theory stating that even if Mansur was standing and reaching for Michael’s weapon Michael would still be guilty of murder because he lost his right to defend himself by pointing a loaded gun at Mansur.   Telling a soldier that they lost their right to defend themselves in a war zone….against a known terrorist… is just plain crazy talk by people who have never been in harm’s way.  It reinforces the point made by a newly elected Congressman who said that soldiers have to watch their back against JAG officers even more than an enemy that is trying to kill them.  But the most disappointing thing we learned at the hearing was that a decision on Michael’s appeal could take as long as 15 months.

I promise you as we have promised Michael:  we will never cease fighting for Michael’s freedom no matter how high or how hard the climb.  When we spoke to Michael this week he wanted us to wish each of you a blessed Merry Christmas and a Happy New Year; and to let you know his spirit is as strong as ever because of all YOUR support – for that, we Thank You!

We appreciate the many letters to Michael inspiring him to fight through this ordeal.  We encourage you to continue to write to him with your kind words of support (his prison address can be found on the website, DefendMichael.com.)  Also please continue to write to your Congressmen and Senators to ensure that they are aware of your feelings about our government treating its enemies better than we treat our bravest heroes.

Here are some articles by two writers who attended the Appellate Hearing:

DianaWest.net

NewsOK.com

Peace to you and your families,

Scott & Vicki Behenna

www.DefendMichael.com

To learn more about Michael’s story, read the three-dozen posts I’ve written about him during the past 18 months or download the unofficial brochure about his case (right) that is current as of March 2010.

UPDATE 12/26/10 at 3:35 p.m. Central: Cross-posted at Andrew Breitbart’s BigPeace.com.