Devastating: Michael Behenna's Conviction Upheld
by: Diana West Friday, July 06, 2012 from joseffy
By a 3-2 majority, the highest military appeals court has upheld Army Ranger 1st Lt. Michael Behenna's conviction for the unpremediated murder of a detainee and al-Qaeda-operative in Iraq named Ali Mansur. While Michael still could receive clemency, his legal appeals are now officially exhausted. Barring clemency, Michael will remain at Leavenworth military prison until 2024.
What a blow. What a disgrace.
I just finished reading the majority opinion. It is a chilling document. It contains analysis of whether Michael had "the right to act in self-defense" when the detainee he was questioning about IED attacks that had recently killed two men in his platoon, suddenly lunged for Michael's gun, and Michael shot and killed him.
This was one of several issues before the court. As the "initial aggressor" for engaging in an unauthorized interrogation of a naked detainee, Michael, the court upheld,had lost his right to self-defense. Under consideration was whether at any point in the split seconds during which the detainee hurled a piece of concrete at Michael and rushed for his gun, and Michael fired in return at the detainee, Michael ever regained it.
Three judges in the calm of their chambers in Washington, D.C., determined that he did not.
Or, as they wrote: "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 the initial aggressor in full battle attire, armed with a loaded pistol, and lunges for his pistol."
Oh yeah? Maybe it's simplistic of me, but I'd like to see them step into Michael's combat boots and see how it felt out there in the night, after a hard day's "catch-and-release," after military intelligence shockingly set Mansur free and ordered Michael to drive him home -- the very man Michael suspected of knowing all about the attacks that had recently killed two of his men. Michael thought he could get the necessary evidence in one more interrogation, just him and Mansur. But it didn't work out as Michael hoped.
Ultimately, even if we assume that Mansur lunged for Appellant's pistol and Appellant feared that Mansur would use the pistol if he was able to seize it, because Appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member [juror] could have come to no other conclusion than that Appellant lost the right to act in self-defense and did not regain it.
I'm afraid that this court's idea of a "rational member" also could have come to no other conclusion than that Michael, "initial aggressor," bereft of the "right" to self-defense, should have permitted Mansur to snatch his gun from him and then shoot him dead.
Maybe then the three judges would have sighed with a satisfied kind of regret over the poor lieutenant who had given his all for their, frankly, demonic reading of the law. Instead, for having defended himself, for not having sacrificed himself to a charging terrorist, Michael and his family pay the price of Michael's freedom.
America: Is that justice?
Here's what you get for putting your life on the line.....Rules of Engagement (ROE) that send you to prison. Outrage is beyond measure........
You know as well as I do, JAG has been infiltrated by Muslim and pro-Muslim lawyers. The chances of prevailing in a case involving [any] Muslim are slim to none ... closer to none.
These folks need to be rooted out and fired. The sitting Judge in this case needs to be fired.
Only we have (ROE) Is this because we are a civil society or are we being defeated from within?
Make me Commander in Chief and I would have the three genius judges, who have probably never even held a weapon, outfitted in battle gear and sent to the front lines in Afghanistan. Let them dodge bullets and IEDs for about a year and then they can reconsider their opinion. If they still found as they recently did, I would send them back, because that is the type of U.S. warrior that the Taliban needs. Ones that will not shoot back, but be a bullet catcher.
WASHINGTON — The nation’s highest military court on Thursday narrowly upheld 1st Lt. Michael Behenna’s conviction of unpremeditated murder in a combat zone, rejecting the Edmond soldier’s claims that he had been denied a fair trial.
The 3-2 decision by the United States Court of Appeals for the Armed Forces marked the second time in the past year that a military appeals court has upheld Behenna’s conviction for killing an Iraqi civilian during an interrogation in 2008.
Behenna, 29, who is serving a 15-year sentence at a military prison in Fort Leavenworth, Kan., can appeal to the U.S. Supreme Court.
Behenna claimed at his 2009 court martial that he shot Ali Mansur, a suspected terrorist, in self-defense after Mansur threw a rock at him and reached for Behenna’s gun; in his appeal, Behenna said the judge in the court martial mangled the instructions to the jury and deprived him of his self-defense claim.
Behenna also argued that prosecutors violated his rights by not telling him that their expert witness on crime scenes, who was never called to testify, would have supported his version of events.
The decision issued Thursday in the closely watched case agrees that the judge gave an erroneous instruction on the self-defense claim, but says it was irrelevant to the outcome because Behenna, who was pointing a gun at an unarmed and naked prisoner, had given up his right to self-defense.
Moreover, the four judges ruled that the expert witness would have had little impact on the outcome had he testified.
Ultimately, the court said, the jury “clearly rejected the Government’s theory of the case — a premeditated, execution-style killing — when they returned a verdict that (Behenna) was guilty of unpremeditated murder.”
In a strongly worded dissent, two judges on the court argued that Behenna should get a new trial.
“A death occurred in the theater of operations,” the dissent says. “A soldier has been convicted of murder. Was it murder or self-defense?
“By law, the responsibility for making that factual determination rested with the court-martial panel, not with this Court. The ambiguous, confusing, and incorrect instructions from the military judge deprived (Behenna) of the right to have a panel of officers make that decision.
“The military judge compounded that error by failing to take corrective action with respect to the Government’s failure to provide timely disclosure of exculpatory evidence.”
Behenna’s case has attracted national attention, and his parents, Scott and Vicki Behenna, have mounted a tireless effort to get their son’s sentence reduced and to raise money for his appeals. Vicki Behenna is a federal prosecutor in Oklahoma City, and Scott is a former investigator for the Oklahoma State Bureau of Investigation.
Neither could be reached for comment Thursday.
The decision issued Thursday confirms the one from the U.S. Army Court of Criminal Appeals, which came down last July.
The court said Thursday that Behenna couldn’t claim self-defense under the circumstances unless Mansur escalated the conflict or Behenna tried to withdraw from the situation and was then attacked by Mansur.
“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 said.
There was no evidence that Behenna indicated he wanted to withdraw from the situation or that he made a good-faith effort to withdraw, the court said.
However, the dissenters on the court said Behenna didn’t sacrifice his right to self-defense just because he may have been conducting “an improper and abusive interrogation.”
Because the judge in the court martial gave the jury confusing and erroneous instructions regarding self-defense, the jury wasn’t able to consider the issue properly, the dissenting judges said in arguing for a new trial for Behenna.
That is what happens when you allow a group to establish a method to circumvent Common Sense, with this Politically Correct mentality. Since the 1960s people have ben taught to excuse all kinds of infractions to avoid exhibiting behavior unacceptable in any mans Army. Maybe someone should have given that crew an exhibit of what happens when ypu ar struck with a piece of concrete, and what happens when the nude jerk now has your weapon. Ignorance is curable, the stupidity exhibited is terminal.
This is a travesty in justice. I am glad that I no longer am in the military after serving 29 years and 10 months. I could not recommended going into the military for anyone today. I highly recommend that anyone in the U.S. Military get out when your enlistment is up.
IMO, badd move!!! We need people in place, Enlisted and Commissioned, ready to step in when it's time to take over.
My kid's been in for 24 years now, and I find myself praying he'll get out when this commission is up. Right now it looks like there's a goal to take all officers and charge them with something to make them forfeit their retirement account and any other benefits they have earned.
My question, if God is merciful, and we get our country back, how will we do away with all the subversives and anti-Americans they seem to be planting within the Military, Pentagon and Justice Department? It almost looks like we'll need to dissolve everything and recall retired veterans to once again serve their country. (We may have to get a lot of them out of prison first!)
Boykin, Vallely, Lakin, Behenna, Fitzpatrick, Riley I'm sure few more names of honor will come to others here.
Me too Steven.
sickening, and disgusting of the court.