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.