Retired officers seek court review of self-defense in combat zones
The Oklahoman, Oklahoma City
WASHINGTON — A group of retired U.S. military generals and admirals is urging the U.S. Supreme Court to grant the appeal of 1st Lt. Michael Behenna, arguing that the high court must clarify the right of soldiers to defend themselves in combat zones.
The Edmond soldier's case, according to a brief filed on behalf of 37 retired officers and a former Defense Department official, warrants review by the high court because a ruling against Behenna by the military's top appeals court “defies common sense” and endangers service members.
Among those signing the brief are a former chief of Naval Operations; a recent commander of NATO forces in Afghanistan and a former NATO Supreme Allied Commander; five retired four-star generals signed the brief, as did retired Air Force Maj. Gen. Jay T. Edwards, the former commander of the Oklahoma City Air Logistics Center.
Behenna is serving a 15-year sentence in Fort Leavenworth, Kan., for killing a suspected terrorist in 2008 in Iraq. Behenna was ordered to take the Iraqi man — Ali Mansur — home, but took him instead to a remote area, forced him to strip and then questioned him at gunpoint. Behenna said at his court-martial that he shot and killed Mansur in self-defense after the Iraqi threw a piece of concrete at him and lunged for his gun.
Behenna was convicted of unpremeditated murder in a combat zone, a sentence that was upheld by the Army's court of criminal appeals and, in a 3-2 decision last summer, the U.S. Court of Appeals for the Armed Forces.
The court ruled that Behenna essentially lost his right to self-defense when he pointed the gun at Mansur and couldn't regain it unless Mansur escalated the conflict or attacked as Behenna tried to withdraw.
“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 ruled.
A team of attorneys that includes constitutional and military justice experts filed an appeal with the U.S. Supreme Court on Behenna's behalf to argue the self-defense issue, and the court asked the Justice Department to respond.
The department has been given a deadline of March 29.
The friend-of-the-court brief of the retired officers, filed by attorneys with the international law firm McDermott Will and Emery, states Behenna shouldn't have lost the right to self-defense simply because he was conducting an unauthorized interrogation at gunpoint and wasn't in a battlefield situation.
“A service member's pointing of a weapon at a suspected enemy in a combat zone is not the same as actually using deadly force,” the brief states.
“Pointing a firearm allows a service member to control the suspected enemy, and more importantly, to protect U.S. service members and others in combat zones, which by definition entail hazards not present in other settings.”
If Mansur had wrestled away the weapon, Behenna and troops under his command would have been endangered, the brief states.
“Thus, assuming that Lieutenant Behenna's claim that Mansur lunged for his weapon is truthful … it would have been a dereliction of duty for Lieutenant Behenna not to fire in self-defense,” the brief states.
Behenna could have avoided the whole situation by following orders and taking Mansur home, the brief notes.
“But a bad situation created by Lieutenant Behenna's own folly would have become even worse had he allowed Mansur to seize his pistol,” the brief states.