WASHINGTON — The U.S. Supreme Court should not review Army 1st Lt. Michael Behenna's conviction of unpremeditated murder in a combat zone because the Edmond soldier used excessive force in a conflict he created, the U.S. Justice Department said in a brief filed Monday with the high court.
Responding to Behenna's arguments that a ruling by the top military appeals court had deprived him — and other soldiers — of the right to defend themselves in unconventional wartime situations, the Justice Department said the appeals court had not made a broad ruling on self-defense, but had instead looked at all of the circumstances in Behenna's case and tailored its decision to the facts.
“In light of the totality of circumstances, the court correctly held that (Behenna) forfeited his right to self-defense when he became the aggressor against his prisoner,” the Justice Department's solicitor general's office said in its brief. “No broader rule was issued.”
Behenna, in 2008, killed an Iraqi man named Ali Mansur, who was identified in Army intelligence reports as part of a terrorist cell operating in the area where Behenna's platoon was attacked by a roadside bomb. Behenna took Mansur to a deserted area, forced him to strip naked and then questioned him at gunpoint. Behenna testified at his 2009 trial that he shot Mansur twice after the Iraqi threw a piece of concrete at him and lunged for his gun.
Behenna was originally charged with premeditated murder, but was convicted of unpremeditated murder in a combat zone. He has served four years of a 15-year sentence at Fort Leavenworth, Kan.
Behenna's attorneys will now have the chance to respond to the Justice Department's brief before the Supreme Court decides whether to review the case; the high court grants review of only a small percentage of the petitions filed each year.
The Court of Appeals for the Armed Forces, the highest military appeals court, narrowly upheld Behenna's conviction last year, ruling that Behenna had effectively given up his right to self-defense because he was the initial aggressor pointing a gun at an unarmed man.
“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 said in its 3-2 ruling.
Behenna's petition seeking Supreme Court review — filed in January — argued that the appeals court's decision was wrong and “dangerous” to the service members who often must point their weapons while patrolling in war zones.