WASHINGTON — “I was stunned. I was knocked back on my heels. If I hadn't had some pressing deadlines at work, I might have fallen into a depression.”
Vicki Behenna had been counting on the U.S. Court of Appeals for the Armed Forces to give her son a new trial.
But in a decision handed down on July 5, the military's highest appeals court upheld 1st Lt. Michael Behenna's conviction of unpremeditated murder in a combat zone for killing a suspected terrorist in Iraq in 2008 during an interrogation.
In an interview last week, Vicki Behenna, of Edmond, said she had been convinced the court would find her son's 2009 court martial had been marred by errors.
The court did find that the judge in that court martial had given an erroneous instruction regarding the Army soldier's right to self-defense; but, in a 3-2 decision, the court ruled that the error wouldn't have affected the outcome of the trial.
Vicki Behenna said that, after the decision came down, she visited her son at the military prison at Fort Leavenworth, Kan., where he is 31/2 years into a 15-year sentence.
“He said, ‘Mom, I'm in a good place mentally, physically and spiritually,' she said. “It lifted me up like you wouldn't believe to see it hadn't changed him and made him bitter. He inspires me to keep fighting.”
Vicki Behenna, who is a federal prosecutor in Oklahoma City, and her husband, Scott, a former investigator for the OSBI, have been doing everything they can think of to help their son.
They have raised money to pay the private attorney, met with numerous members of Congress to bring attention to the circumstances, started a website, pleaded for clemency before an Army panel and have written to everybody they hoped could have some influence.
Some members of Oklahoma's congressional delegation have been tracking the case — which has received national attention — and have sent staff members to court arguments and clemency hearings.
Rep. Tom Cole, R-Moore, said: “Having met with Lt. Behenna's family and reviewed his case, I profoundly disagree with the appeals court's failure to overturn his conviction.
“The U.S. government has placed soldiers like Lt. Behenna under extremely difficult circumstances in places like Iraq and Afghanistan. When there is any uncertainty about the facts of a particular case, soldiers in uniform, under the stress of long combat, ought to be given the benefit of the doubt.
“I will continue to explore whatever alternatives may be available to assist in this tragic case. Lt. Behenna and his family continue to have the support and prayers of literally thousands of Oklahomans as they endure this awful ordeal.”
Rep. James Lankford, R-Oklahoma City, said: “Vicki and Scott Behenna have demonstrated inspiring levels of love, courage and tenacious advocacy on behalf of their son Michael throughout this long process, as they should.
“Throughout this challenging time for the Behenna family, I remain respectful of the Army's adherence to protocol within the legal system. I will continue to honor and pray for the entire Behenna family during this difficult time.”
Vicki Behenna said the family is still considering “a lot of options right now.”
Behenna can appeal to the U.S. Supreme Court. She said she has had preliminary discussions with Houston attorney Jack Zimmerman, who handled Behenna's case at the court martial level and before two military appeals courts.
She said there also has been some consideration of hiring Washington attorneys that specialize in the Supreme Court.
However, she acknowledged that the Supreme Court takes very few cases.
According to CAAFlog, a blog devoted to the U.S. Court of Appeals for the Armed Forces, another case from that court has been appealed to the U.S. Supreme Court with a question similar to one heard in Behenna's case.
That question is whether “an individual who brandishes a firearm loses his entitlement to lawfully defend himself and third parties against the subsequent use of deadly force by those on whom the weapon was brandished.”
Behenna had taken Ali Mansur, an Iraqi civilian whom Behenna suspected of terrorist activities, to a deserted area for questioning. The interrogation was unauthorized; Behenna was supposed to have taken Mansur home. Instead, he forced Mansur to strip naked and sit on a rock; Behenna pointed a gun at him and threatened to kill him if he didn't give him information.
In his court martial, Behenna claimed self-defense, saying he shot Mansur twice after the Iraqi threw a piece of concrete at him and lunged for his gun.
The military appeals courts, agreeing with Army prosecutors, ruled that Behenna couldn't claim self-defense unless Mansur escalated the conflict or attacked as Behenna tried to withdraw.
“Even assuming for a moment that Mansur could have escalated the level of force, we conclude that a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol,” the Court of Appeals for the Armed Forces decided this month.
Two of the five judges argued that the judge in the court martial gave a confusing jury instruction that hindered the jury's ability to make its own determination about the self-defense claim. But the court's majority ruled that the jury ultimately rejected Army prosecutors' case by convicting Behenna of unpremeditated murder; prosecutors had accused Behenna of premeditated murder.
Still perplexed by ruling
Vicki Behenna said she has read the opinion and remains perplexed “about how a soldier loses his right to defend himself against an enemy combatant.”
She said the family would continue to make annual appearances before the Army clemency board and that she may ask Army Secretary John McHugh “for his mercy” in the clemency process.
Behenna said she and her husband also are working on more letters to elected officials.
Sen. Jim Inhofe, R-Tulsa, a senior member of the Armed Services Committee, said: “I know this is a very difficult time for the entire Behenna family. Clearly they have put much time and effort into this case, and had hoped for a different outcome. My prayers are with him and his family during these challenging times.”