Behenna can appeal to the U.S. Supreme Court. She said she has had preliminary discussions with Houston attorney Jack Zimmerman, who handled Behenna's case at the court martial level and before two military appeals courts.
She said there also has been some consideration of hiring Washington attorneys that specialize in the Supreme Court.
However, she acknowledged that the Supreme Court takes very few cases.
According to CAAFlog, a blog devoted to the U.S. Court of Appeals for the Armed Forces, another case from that court has been appealed to the U.S. Supreme Court with a question similar to one heard in Behenna's case.
That question is whether “an individual who brandishes a firearm loses his entitlement to lawfully defend himself and third parties against the subsequent use of deadly force by those on whom the weapon was brandished.”
Behenna had taken Ali Mansur, an Iraqi civilian whom Behenna suspected of terrorist activities, to a deserted area for questioning. The interrogation was unauthorized; Behenna was supposed to have taken Mansur home. Instead, he forced Mansur to strip naked and sit on a rock; Behenna pointed a gun at him and threatened to kill him if he didn't give him information.
In his court martial, Behenna claimed self-defense, saying he shot Mansur twice after the Iraqi threw a piece of concrete at him and lunged for his gun.
The military appeals courts, agreeing with Army prosecutors, ruled that Behenna couldn't claim self-defense unless Mansur escalated the conflict or attacked as Behenna tried to withdraw.
“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 decided this month.
Two of the five judges argued that the judge in the court martial gave a confusing jury instruction that hindered the jury's ability to make its own determination about the self-defense claim. But the court's majority ruled that the jury ultimately rejected Army prosecutors' case by convicting Behenna of unpremeditated murder; prosecutors had accused Behenna of premeditated murder.
Still perplexed by ruling
Vicki Behenna said she has read the opinion and remains perplexed “about how a soldier loses his right to defend himself against an enemy combatant.”
She said the family would continue to make annual appearances before the Army clemency board and that she may ask Army Secretary John McHugh “for his mercy” in the clemency process.
Behenna said she and her husband also are working on more letters to elected officials.
Sen. Jim Inhofe, R-Tulsa, a senior member of the Armed Services Committee, said: “I know this is a very difficult time for the entire Behenna family. Clearly they have put much time and effort into this case, and had hoped for a different outcome. My prayers are with him and his family during these challenging times.”