WASHINGTON — A new team of attorneys for Army 1st Lt. Michael Behenna has filed a strongly worded petition with the U.S. Supreme Court arguing that the top military appeals court issued a wrong and “dangerous” decision last year confirming the Edmond soldier's conviction of unpremeditated murder in a combat zone.
The attorneys say the Supreme Court should hear Behenna's case because he was deprived of the same right of self-defense afforded to police officers. If allowed to stand, the attorneys say, the ruling by the Court of Appeals for the Armed Forces will prevent U.S. service members from defending themselves in combat zones.
“Because the … categorical ruling would apply regardless of whether a servicemember is an inch or a mile beyond authorization, it will put an ever-growing number of servicemembers in physical and legal jeopardy as our armed forces confront increasingly unconventional scenarios involving undefined battle lines and deadly threats from disguised enemies,” Behenna's petition says.
The U.S. Army has not responded to appeal, which was filed last week. The U.S. Supreme Court accepts a very small percentage of the appeals filed.
Behenna, 29, is serving a 15-year sentence at Fort Leavenworth, Kan., for killing a suspected terrorist in Iraq in 2008 during an unauthorized interrogation.
Behenna took Ali Mansur, an Iraqi civilian, to a deserted area, forced him to strip naked and then questioned him at gunpoint. 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.
An Army appeals court and the Court of Appeals for the Armed Forces agreed with Army prosecutors that Behenna had essentially lost his right to self-defense when he pointed the gun at Mansur; moreover, the courts ruled that Behenna couldn't regain a self-defense claim 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 ruled, by a 3-2 vote, in July.