ARLINGTON, Va. — The parents of Army 1st Lt. Michael Behenna criticized the military justice system Tuesday and asked a Defense Department advisory board to ensure soldiers have the same rights to a fair trial as those in the civilian system.
Scott and Vicki Behenna, of Edmond, said their son was charged with murder in a combat zone four years ago without any physical evidence to support the charge.
Inexperienced prosecutors failed to disclose evidence that would have helped their son's case, they said, and their son received a sentence far harsher than others convicted of the same crime.
The Behennas' testimony was delivered to the Defense Legal Policy Board, which held a public hearing to examine how the military justice system works in regard to soldiers charged with crimes against civilians in Iraq and Afghanistan.
The board has no power to intervene in individual cases and is instead trying to determine whether federal laws and the military code of justice are adequate to ensure fair trials.
“You will have to fight your son's case individually,” board member John Bellinger told the Behennas. “We will look at systemwide changes if there are things that need to be changed.”
Top leaders of the military's legal branches mostly defended the system, with one saying it had proved reliable and “robust” during the last decade of war.
Vicki Behenna, a federal prosecutor in Oklahoma City, disagreed.
“I'm not asking you to pass judgment on Michael,” she said. “This is my son. I'm asking you to be vigilant in what you decide to do in how the military justice system is used against these foot soldiers that are trying to survive in a very dangerous environment.
“If there's anybody that deserves all the protections that our Constitution provides to the citizens, it should be these soldiers who are fighting and dying and watching their friends die in a combat zone.”
Michael Behenna is serving a 15-year sentence at a military prison in Fort Leavenworth, Kan., for killing an Iraqi man suspected of being involved in a bombing that killed two members of Behenna's platoon.
Behenna apprehended the man, Ali Mansur, and took him in for questioning by other military officials.
Behenna was later told to take Mansur back to his village, but Behenna instead took him to a remote area, ordered him to strip naked and then questioned him at gunpoint. Behenna shot Mansur twice, killing him.
He testified at his court martial that he shot Mansur in self-defense after Mansur threw a piece of concrete at him and lunged for his gun.
Behenna was originally charged with premeditated murder in a combat zone but was convicted of unpremeditated murder in a combat zone.
Scott Behenna, a former investigator for the OSBI who now works as an intelligence analyst for the FBI, said prosecutors presented no physical evidence to support their claim that Mansur was seated when Michael Behenna shot him.
Michael Behenna's conviction has been upheld by two military appeals courts. Attorneys for Behenna have asked the U.S. Supreme Court to review his case.
Should the court decline to hear that appeal, which seems likely given the small percentage of cases taken by the high court, Behenna's only option for a reduced sentence will lie with the U.S. Army Clemency and Parole Board. That board already has given Behenna a five-year reduction; his parents are planning to seek another reduction at a hearing in early February.
The board also heard Tuesday from the heads of the legal branches for the U.S. Army, Marines and Air Force.
Lt. Gen. Dana K. Chipman, the judge advocate general for the U.S. Army, said he welcomed the board's review and suggestions but cautioned against any changes that might recalibrate the system.
“We must always be conscious that a slight adjustment to a system of justice could inadvertently tip the scale in one direction or the other,” Chipman said. “For that reason, adjustments to a code of justice that may deprive an American of his liberty must be done carefully and deliberately.”