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Justice Department says Edmond soldier's case does not deserve U.S. Supreme Court review

In brief to the high court, the Justice Department argues an Edmond soldier, 1st Lt. Michael Behenna, was the aggressor in a conflict he created and that military appeals court rightfully upheld his conviction of unpremeditated murder in a combat zone.
by Chris Casteel Modified: April 29, 2013 at 8:26 pm •  Published: April 30, 2013
/articleid/3804637/1/pictures/2039773">Photo - U.S. Army 1st Lt. Michael Behenna
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U.S. Army 1st Lt. Michael Behenna Photo Provided PROVIDED

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.”

by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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