WASHINGTON — A national group of criminal defense attorneys has joined the effort to gain U.S. Supreme Court review of 1st Lt. Michael Behenna's conviction of unpremeditated murder in a combat zone.
The National Association of Criminal Defense Lawyers filed a friend-of-the-court brief with the Supreme Court, saying Behenna's case offers a prime opportunity for the justices to review a decision from the military justice system.
A group of 27 retired generals and admirals, along with a former Defense Department official, have also urged the Supreme Court to take the case. A team of attorneys, including law professors and military justice experts, filed the petition on Behenna's behalf. The U.S. Justice Department has been given until late this month to respond.
Behenna, of Edmond, is serving a 15-year sentence at Fort Leavenworth, Kan., for killing an Iraqi man while questioning him in 2008. Behenna suspected that the man, Ali Mansur, had a role in planting a roadside bomb that killed two members of his unit.
Behenna, 29, testified at his court martial that he killed Mansur in self-defense after the Iraqi threw a piece of concrete at him and lunged for his gun.
The Court of Appeals for the Armed Forces ruled 3-2 that Behenna had essentially lost his right to self-defense by pointing his weapon at the unarmed man outside of a battlefield situation.
Behenna's attorneys argued to the U.S. Supreme Court that the narrow decision would make more soldiers vulnerable as they increasingly confront unconventional scenarios outside the bounds of traditional battlefields.
The brief filed by the defense attorneys says the self-defense question presented in Behenna's case is the kind of issue that merits the Supreme Court's attention even though it's normally outside of its purview since it doesn't raise constitutional questions and is applicable only in the military justice system.
The narrow decision by the Court of Appeals for the Armed Forces “on such a significant and far-reaching question” of military law underscores the significance of giving the final say to a court created by the U.S. Constitution, the attorneys' brief says.