Behenna's legal team — composed of constitutional law professors and experts in military law — say the appeals court decision deprived soldiers of the same right of self-defense afforded to police officers.
“Because the … categorical ruling would apply regardless of whether a service member is an inch or a mile beyond authorization, it will put an ever-growing number of service members 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.
A group of 37 retired generals and admirals filed a brief with the high court urging review of Behenna's petition, as did the National Association of Criminal Defense Lawyers.
But the Justice Department, which represents the administration before the U.S. Supreme Court, said in its response filed Monday that Behenna and the retired generals were seriously over-reading the appeals court decision.
The appeals court decision would not leave soldiers with less leeway than domestic police officers to defend themselves, the department's brief says. The court examined the Behenna case in much the same way as courts do in cases claiming excessive force by police officers and determined whether the force was reasonable under the circumstances, it says.
In Behenna's case, the Edmond soldier disobeyed an order to take Mansur home, then threatened to kill him if he did not provide information, “then took the arrestee to an isolated area in the middle of a field, then stripped the arrestee of all of his clothes, then interrogated the arrestee, then responded to the arrestee's protestations of ignorance by pointing a loaded weapon at his head, and then told the arrestee that he would die if he did not provide the requested information,” the Justice Department's brief says.
“That is what (Behenna) did. Far from reasonable, (Behenna's) use of force was excessive ... (Behenna) was the aggressor and his use of a weapon, viewed in context of all of the surrounding circumstances, deprived him of the right to claim self-defense in the conflict he created.”