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

Posted on March 26, 2013 by BobMcCarty

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.

The 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.

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.

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

Posted on August 20, 2012 by BobMcCarty

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.

Michael Behenna Loses Final Military Appeal

Posted on July 6, 2012 by BobMcCarty

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.

Two Years Down, 13 to Go for Michael Behenna

Posted on March 17, 2011 by BobMcCarty

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:

1st Lt. Michael Behenna

To the thousands of Michael Behenna supporters,

On March 20th it will have been two years since Michael’s freedom was taken away from him. Shortly after that horrific day he was publicly paraded through three airports en route to Ft. Leavenworth to begin serving a 25 year sentence for killing a known al-Qaida terrorist. When Michael first went to prison he was bitter for the incredible injustice that had been done to him by a country he put his life on the line for. But that bitterness was soon replaced by an attitude of inner peace and a desire to discover himself.

Today Michael works 5 days a week in exterior grounds maintenance, lifts weights in the prison gym, reads his numerous cards and letters, and has immersed himself in books sent to him or that he checks out from the prison library. He is treated well at Leavenworth because many of the MP’s know that his situation is vastly different than most incarcerated there. However, it is still a prison with the associated hardships of “groundhog day” monotony, violent flair-ups of inmates, strip searches, full prison lockdowns, and the predictable food menu every week. He lives in his own cell and he finds solace among the other Leavenworth 10 soldiers who have been convicted of similar war crimes. They have been a Godsend for one another as they have a common bond and each are remarkable individuals and soldiers who have been entangled in a bizarre legal quagmire for unknown political purposes. Your generous contributions to Michael’s canteen account enable him to call home regularly and we are lucky enough to live a few hours away from Leavenworth so that either family or friends can visit him almost every weekend.

Michael recently wrote a letter about what he has learned while he has been in prison. We wanted to share it with you now:

1st Lt. Michael Behenna

Since arriving in prison I have begun a journey of continuous refining of both my thought and my action; the way I relate to others, an appreciation for life, and self-understanding. As Emerson once wrote ‘What lies behind us and what lies before us are tiny matters compared to what lies within us’ and I am finding that what lies within us knows no limits.

I have no access to the outside world except through newspapers and magazines and phone calls and weekend visits with my family. Yet I am not confined to my cell so long as I have books that take me to places I have never been. Books have become my avenue to knowledge and it is through them that I have met some magnificent people whose lives have inspired me to not only continue my fight for freedom, but to find freedom behind these bars.

Solitude was necessary for me to know myself. Once I began to truly know myself I began the journey of transformation. I have a notebook where I write down anything that I find meaningful in the books and letters I read. I have learned that it is not how much one knows, but what one does with what one knows.

Michael Behenna and girlfriend Shannon Wahl.

There is a story of an old Cherokee who told his grandson about a battle that goes on inside of every person – it is a battle between two wolves. One wolf is life-taking: it is anger, envy, jealousy, sorrow, regret, greed, guilt, arrogance, self-pity, resentment, inferiority, lies, and ego. The other wolf is life-giving: it is joy, peace, love, hope serenity, humility, kindness, empathy, generosity, truth, compassion, and faith. The grandson thought about it for a minute and then asked his grandfather which wolf won. The old Cherokee simply replied, ‘The one you feed’. I am working on only feeding the wolf who gives life.

One of the most inspiring books I’ve received is called ‘Gives Me Hope’. It is filled with true stories of kindness and generosity and I highly recommend it. When I first came to prison I had very little hope and a whole lot of bitterness. That is no longer the case. To all those who have supported me through this struggle I want you to know from the bottom of my heart that YOU GAVE ME HOPE! And still do…

As you can see, Michael’s attitude through this ordeal remains unbelievably good. His greatest fear going to prison was that he would be forgotten. Quite to the contrary (and to the dismay of the Army) Michael’s case is getting more attention than ever and there are things in the works that are going to put it in the spotlight even more so. Every week we hear from someone who tells us they knew nothing about Michael’s case until they saw a DefendMichael.com wristband or bumper sticker. It is a grass roots effort that keeps getting bigger and bigger.

The status of Michael’s appeals currently sits with the Army Court of Appeals. They should make a decision on the many legal issues of Michael’s case sometime later this year.

Keep spreading the word about Michael’s case and continue writing letters to your representatives. And please keep sending Michael cards and letters that ‘Give Him Hope’. That is a gift that we will be forever indebted to you for.

Proud Parents of 1LT Michael Behenna

Scott and Vicki Behenna

www.DefendMichael.com

To read nearly four-dozen other posts about Michael, click here.

FYI: 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. Thanks in advance for your support!

Convicted Army Officer Denied Clemency (Update)

Posted on December 23, 2010 by BobMcCarty

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.

Soldier’s Parents Offer Update on Clemency Hearing (Update)

Posted on December 6, 2010 by BobMcCarty

EDITOR’S NOTE: One week ago, I shared news about two Army panels getting ready to review the case of 1st Lt. Michael Behenna, the Army Ranger convicted of unpremeditated murder in the death of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad. Today, I share an update from Scott and Vicki Behenna, the parents of this brave warrior:

1st Lt. Michael Behenna

Merry Christmas to all Michael Behenna Supporters,

We wanted to give everyone an update regarding Michael’s clemency hearing which was held on December 2nd in Washington D.C. The Army Clemency Board gave us ample time to discuss Michael’s case. They seemed genuinely interested in Michael’s story as well as the mitigating circumstances of his case. The Board asked relevant questions which led us to believe they not only knew the narrative, but also were concerned about Michael’s future.

Hearing from Michael’s parents as well as his girlfriend Shannon, the Clemency Board listened to us for almost 50 minutes. We asked the Board to either suspend the rest of Michael’s sentence or to significantly reduce it. Michel’s sentence for unpremeditated murder is now at 15 years; which is still 50% higher than any other combat related unpremeditated murder sentence. In other cases the sentences handed out ranged from 1 to 10 years. We expect to hear a decision from the Army Clemency Board in 1 to 2 weeks.

Next up is the long awaited appeal of Michael’s conviction. The oral arguments will be heard this Thursday, December 9th, at 10am at the Army Court of Appeals, 901 N. Stuart, Arlington, Virginia. The hearing is open to the public and if you are in the area we would love to have your support. The Hearing is expected to last about one hour. If you cannot attend, we would just ask that you say a prayer for a good outcome. It is this court that we hope will finally reverse Michael’s conviction and set him free. We will let you know how it went in our next newsletter.

At this point it would take a miracle to prevent Michael from spending another Christmas in prison. But we count it among our many blessings that we will be able to spend Christmas with our son in the visitation room. We have much to be grateful for as we head into 2011. The support you have given to Michael and to our family has truly been a gift from God. Michael’s story has continued to grow exponentially as has all the stories of the Leavenworth 10. Please keep the letters coming for all these brave American soldiers.

Finally, here is a NewsOK.com video that discusses what we covered in the Clemency Hearing.

We want to wish each of you a wonderful Merry Christmas. Bless you and thank you for all your support.

Scott & Vicki Behenna
www.DefendMichael.com

Stay tuned to this blog for further news from the clemency board and from the appeals process. Until then, be sure to read the more than 40 posts I’ve written and published about Michael Behenna’s case, click here.

UPDATE 12/22/10 at 5:22 p.m. Central: According to a NewsOK.com report today, the Army Clemency and Parole Board denied Behenna’s Dec. 2 request for clemency.

BobMcCarty.com

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Tag Archives: al-Qaeda

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

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

Michael Behenna Loses Final Military Appeal

Two Years Down, 13 to Go for Michael Behenna

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MICHAEL BEHENNA

KELLY A. STEWART

‘TURF WAR: Detecting Lies & Deception’

Convicted Army Officer Denied Clemency (Update)

Soldier’s Parents Offer Update on Clemency Hearing (Update)