Lt. Michael Behenna's Day in Appeals Court

US Army 1st Lt. Michael Behenna

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Just came back from a tense morning in the Army Court of Criminal Appeals in Arlington, Virginia, where long-awaited oral arguments appealing US Army 1st Lt. Michael Behenna’s surreal conviction for “unpremeditated murder” while fighting the war in Iraq were heard. Lt. Behenna, 27, is currently serving 15 years in military prison (reduced from 25 years) for killing a known al Qaeda operative named Ali Mansur believed to have been responsible for attacks on Behenna’s platoon in 2008. Michael is one of the Leavenworth Ten we must not forsake.

Fifteen years is a harsh (insane) sentence, and harsher than other such sentences handed down for the same “crime,” as Michael’s father Scott Behenna explained to a Clemency Review Board on December 2. At todays appeal, civilian defense attorney Jack Zimmerman of Houston argued, quite convincingly I thought, two main points: 1) that key forensic evidence from a government witness in support of Lt. Behenna’s claim of self-defense was not heard during the trial; and 2) that, on a more arcane legal point (as I understood it), crucial instructions to the jury were unclear.

By now, Michael’s nightmare is a familiar tale of the Iraq war: Sunni/Al Qaeda attacks. IEDs. Casualties. “Catch-and-release,” with Lt. Behenna ordered personally to release Mansur — actually, to drive him right to his home. One more unauthorized try at interrogation. Mansur attacks Behenna. (US Government says Mansur didn’t attack, was seated on a rock the whole time; unheard forensic evidence mentioned above supports Michael’s story.) Two shots. Self-defense or murder?

I still find myself balking at the whole “murder” charge thing just as though this had been a barroom brawl. Indeed, there was a side discussion between one of the three judges and the defense attorney about a hypothetical example of murder involving two soldiers that seemed to take us to an alternate universe, albeit briefly. Strange, too, was the prosecutor’s discussion assigning “provocation” to Lt. Behenna — namely, that Behenna, a soldier in a war zone with the untenable mission of driving home a man Army Intelligence believed was responsible for recent attacks on his platoon that had killed two soldiers, had provoked Ali Mansur to throw a chunk of concrete at him and then lunge for his gun so Behenna therefore couldn’t claim self-defense. Sometimes the law is beyond baffling.

The hearing room was full — not full of reporters, alas, although I understand an Oklahoma media outlet was there. The Behennas are quite illustrious Oklahomans, with mother Vicki Behenna an Assistant United States Attorney who helped prosecute Oklahoma City Bomber Timothy McVeigh, and father Scott Behenna a former investigator with the Oklahoma Bureau of Investigation and current intelligence analyst with the FBI.

The judges promised a verdict “in due course.”