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Justice Department: Behenna case does not deserve U.S. Supreme Court review

WASHINGTON — The U.S. Supreme Court should not review Army 1st Lt. Michael Behenna's conviction of unpremeditated murder in a combat zone because the Edmond soldier used excessive force in a conflict he created, the U.S. Justice Department said in a brief filed Monday with the high court.

Responding to Behenna's arguments that a ruling by the top military appeals court had deprived him — and other soldiers — of the right to defend themselves in unconventional wartime situations, the Justice Department said the appeals court had not made a broad ruling on self-defense, but had instead looked at all of the circumstances in Behenna's case and tailored its decision to the facts.

“In light of the totality of circumstances, the court correctly held that (Behenna) forfeited his right to self-defense when he became the aggressor against his prisoner,” the Justice Department's solicitor general's office said in its brief. “No broader rule was issued.”

Behenna, in 2008, killed an Iraqi man named Ali Mansur, who was identified in Army intelligence reports as part of a terrorist cell operating in the area where Behenna's platoon was attacked by a roadside bomb. Behenna took Mansur to a deserted area, forced him to strip naked and then questioned him at gunpoint. Behenna testified at his 2009 trial that he shot Mansur twice after the Iraqi threw a piece of concrete at him and lunged for his gun.

Behenna was originally charged with premeditated murder, but was convicted of unpremeditated murder in a combat zone. He has served four years of a 15-year sentence at Fort Leavenworth, Kan.

Behenna's attorneys will now have the chance to respond to the Justice Department's brief before the Supreme Court decides whether to review the case; the high court grants review of only a small percentage of the petitions filed each year.

The Court of Appeals for the Armed Forces, the highest military appeals court, narrowly upheld Behenna's conviction last year, ruling that Behenna had effectively given up his right to self-defense because he was the initial aggressor pointing a gun at an unarmed man.

“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 said in its 3-2 ruling.

Behenna's petition seeking Supreme Court review — filed in January — argued that the appeals court's decision was wrong and “dangerous” to the service members who often must point their weapons while patrolling in war zones.

Behenna's legal team — composed of constitutional law professors and experts in military law — say the appeals court decision deprived soldiers of the same right of self-defense afforded to police officers.

“Because the … categorical ruling would apply regardless of whether a service member is an inch or a mile beyond authorization, it will put an ever-growing number of service members 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.

A group of 37 retired generals and admirals filed a brief with the high court urging review of Behenna's petition, as did the National Association of Criminal Defense Lawyers.

But the Justice Department, which represents the administration before the U.S. Supreme Court, said in its response filed Monday that Behenna and the retired generals were seriously over-reading the appeals court decision.

The appeals court decision would not leave soldiers with less leeway than domestic police officers to defend themselves, the department's brief says. The court examined the Behenna case in much the same way as courts do in cases claiming excessive force by police officers and determined whether the force was reasonable under the circumstances, it says.

In Behenna's case, the Edmond soldier disobeyed an order to take Mansur home, then threatened to kill him if he did not provide information, “then took the arrestee to an isolated area in the middle of a field, then stripped the arrestee of all of his clothes, then interrogated the arrestee, then responded to the arrestee's protestations of ignorance by pointing a loaded weapon at his head, and then told the arrestee that he would die if he did not provide the requested information,” the Justice Department's brief says.

“That is what (Behenna) did. Far from reasonable, (Behenna's) use of force was excessive ... (Behenna) was the aggressor and his use of a weapon, viewed in context of all of the surrounding circumstances, deprived him of the right to claim self-defense in the conflict he created.”
 

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