A year ago, syndicated columnist Diana West attended a hearing at which Army 1st Lt. Michael Behenna tried (unsuccessfully) to get the military's highest court of appeals to overturn his conviction on unpremeditated murder. West said what she witnessed during Behenna's Washington, D.C., hearing last April “was enough to make the gold eagle on top of the American flag in the courtroom shake and then hang its head.”
Behenna, an Edmond native, has been held in the military prison at Fort Leavenworth, Kan., since 2009 for killing a man with terrorist ties in Iraq. That man, Ali Mansur, was part of a terrorist cell operating in the area where an attack in 2008 had killed two of Behenna's men. Mansur was detained for a short time and then released, with Behenna ordered to escort him back to his village. Instead, Behenna took Mansur to a deserted area for one more interrogation. He forced Mansur to strip and questioned him at gunpoint. The soldier said he shot Mansur twice after the man threw a piece of concrete at him and lunged for Behenna's weapon.
Perhaps most distressing about the case, West wrote, “were the lengths to which the U.S. government was prepared to go to strip this soldier, and by extension all soldiers, of their ‘right to self-defense,' even amid the untenable conditions of urban counterinsurgency warfare and its restricted rules of engagement.”
The Obama administration continues that assault with its response to Behenna's request for a review of his case by the U.S. Supreme Court. Behenna's attorneys argue that the ruling by the top military appeals court deprives soldiers of the right to defend themselves in unconventional wartime situations. The Justice Department says Behenna forfeited his right to self-defense when he ordered Mansur to strip and pointed a gun at his head. It noted that Behenna disobeyed an order when he chose to interrogate Mansur on his own instead of taking him home, pointed his loaded weapon at Mansur's head and threatened to kill him.
The soldier's use of a weapon, the Justice Department says, “viewed in context of all of the surrounding circumstances, deprived him of the right to claim self-defense in the conflict he created.”
A conflict he created? Mansur had potentially helped kill two of Behenna's men! And just a few weeks later, he was being sent home to kill again. Any number of other soldiers and Marines convicted of unpremeditated murder in Iraq received sentences that were consider-ably less than Behenna's 25 years behind bars (subsequently reduced to 15). But they weren't convicted during a time when the United States was trying to get a Status of Forces Agreement signed with the Iraqis. One way to seal that deal was to make examples of some of our own fighting forces.
The Supreme Court reviews only a handful of petitions filed each year. Behenna's case should be one of them. Thirty-seven retired generals and admirals feel the same way, as does the National Association of Criminal Defense Lawyers. The administration, meantime, says justice has been served and no review is merited.
True justice would involve allowing Behenna, now four years behind bars, to come home to Edmond. A hearing before the nation's highest court might put that in motion, while providing some mercy for Behenna and clarity for soldiers faced with challenging situations in a war zone like no other.