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U.S. Supreme Court appeal filed in case of 1st Lt. Michael Behenna

A new team of lawyers for 1st Lt. Michael Behenna argue that the Oklahoma soldier's case demonstrates need for high court justices to redefine self-defense in changing landscape of war.
by Chris Casteel Published: January 7, 2013

Behenna's attorneys say the position taken by the military courts is going to put service members in jeopardy unless the U.S. Supreme Court intervenes to reset the parameters for self-defense.

“The CAAF decision is dangerously wrong,” Behenna's petition states.

“The majority woodenly treats a confrontation between a servicemember and a suspected terrorist in a combat zone no differently than a barroom brawl between two civilians in the States.”

Self-defense arguments

Through his court martial and military court appeals, Behenna was represented by Houston attorney Jack B. Zimmerman, who pushed Behenna's case on the self-defense claim and related arguments about jury instructions and whether evidence was withheld.

Behenna's Supreme Court petition was written by a team of five lawyers that includes University of Oklahoma law professor Joseph Thai, and Stanford University law professor Jeff Fisher, the co-director of Stanford's Supreme Court Litigation Clinic.

The Supreme Court appeal is both narrower and broader than those in the military courts. It focuses almost exclusively on the definition of self-defense in the context of warfare, but it seeks to engage Supreme Court justices with arguments about the changing nature of warfare and the no-win situation U.S. soldiers are in under the standard used in Behenna's case.

If the self-defense standard is allowed to stand, the petition says:

• Servicemembers who overstep their authority instantly become defenseless targets for deadly enemy attacks.

• If they draw their firearms first, they could lose all right to self-defense “as a matter of law.”

• If they wait for the enemy to attack before drawing their weapons, they could lose their lives.

• Neither “basic concepts of criminal law” nor common sense requires servicemembers to make that Hobson's choice.

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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