Soldiers in combat zones not permitted the same right to self-defense as police officers.
Last month, a final appeal to the U.S. Supreme Court was filed on behalf of former Airborne Ranger 1st Lt. Michael Behenna. Behenna has been locked up in Leavenworth since 2009. He’s serving a sentence of 25 years (he’s eligible for parole after 15) in the homicide of Ali Mansur Mohamed in Iraq in 2008. This ruling, said Behenna’s lawyers, will decide whether service-members will have the same right to self-defense in a combat zone that police officers have every day on duty.
Mohamed was a suspected terrorist with links to Al Qaeda in Iraq. On April 21, 2008, Behenna and his platoon were returning to their base in the Salahuddin Province in Iraq when their convoy was hit by an Improvised Explosives Device (IED). Two of his men, Specialists Adam Kohlhaas and Steven Christofferson, were killed.
On May 5, 2008, Behenna received a tip that a terrorist linked to Al Qaeda in Iraq and to the IED attack was staying in a house in the town of Butoma. Behenna and his men arrested Mohamed that evening and they found a cache of ammunition, a RPK light machine gun, and a passport with Syrian visas.
Mohamed was returned to base and turned over for questioning. On May 16, 2008, Mohamed was set to be let go because the military said there wasn’t enough evidence to hold him. Behenna and his team were tasked with returning him home. According to an article in the Oklahoman, here’s what happened next.
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 Iraqi translator who accompanied Behenna testified at Behenna’s court-martial that he murdered Mansour in cold blood.
Behenna was court martialed for Mohamed’s murder on July 31, 2008. Opening statements in his trial started on February 23, 2009. On February 28, 2009, he was convicted of murdering Mohamed and sentenced to 25 years in Leavenworth.
So far, all appeals courts have sided against Behenna, claiming that he lost all rights to self-defense once Behenna pointed his gun at Mansour. Behenna’s attorneys believe that if these rulings stand, this would have serious ramifications for our military service people serving in combat zones. Their petition to the U.S. Supreme Court read in part:
The majority woodenly treats a confrontation between a service-member and a suspected terrorist in a combat zone no differently than a barroom brawl between two civilians in the States.
The petition then goes on to make these four points about the ramification of the Appeals Court decision.
• Service-members 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 service-members to make that Hobbesian choice.
Dr. Herbert MacDonell is a forensic scientist that testified at Behenna’s court-martial as a prosecution witness. He told prosecuting attorneys during that court-martial that in his estimation, Mansour was reaching for Behenna’s gun when Behenna shot the suspected terrorist. Here’s how Dr. MacDonell explained it in an interview with the Washington Times.
I believe his (Behenna’s) testimony fits the known physical facts. If Ali Mansur was standing and reaching for Behenna's gun and was, at that moment shot, it would explain the horizontal trajectory of Ali Mansur's chest wound. If he dropped straight down and was shot in the head as his head passed in front of the muzzle of Behenna's gun that would be consistent with the horizontal trajectory of the head shot and the near parallel trajectories of both shots.
The US government has yet to respond to this latest petition. If the U.S. Supreme Court doesn’t take on the case, all that Behenna could hope for is a presidential pardon. If not, he’ll be forty years old before he leaves prison.
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