“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.”
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.