WASHINGTON — A new team of attorneys for Army 1st Lt. Michael Behenna has filed a strongly worded petition with the U.S. Supreme Court arguing that the top military appeals court issued a wrong and “dangerous” decision last year confirming the Edmond soldier's conviction of unpremeditated murder in a combat zone.
The attorneys say the Supreme Court should hear Behenna's case because he was deprived of the same right of self-defense afforded to police officers. If allowed to stand, the attorneys say, the ruling by the Court of Appeals for the Armed Forces will prevent U.S. service members from defending themselves in combat zones.
“Because the … categorical ruling would apply regardless of whether a servicemember is an inch or a mile beyond authorization, it will put an ever-growing number of servicemembers 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.
The U.S. Army has not responded to appeal, which was filed last week. The U.S. Supreme Court accepts a very small percentage of the appeals filed.
Behenna, 29, is serving a 15-year sentence at Fort Leavenworth, Kan., for killing a suspected terrorist in Iraq in 2008 during an unauthorized interrogation.
Behenna took Ali Mansur, an Iraqi civilian, to a deserted area, forced him to strip naked and then questioned him at gunpoint. 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.
An Army appeals court and the Court of Appeals for the Armed Forces agreed with Army prosecutors that Behenna had essentially lost his right to self-defense when he pointed the gun at Mansur; moreover, the courts ruled that Behenna couldn't regain a self-defense claim 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 ruled, by a 3-2 vote, in July.
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.”
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.