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Attorneys for Army 1st Lt. Michael Behenna argue for Supreme Court review

By CHRIS CASTEEL | The Oklahoman, Oklahoma City | Published: May 15, 2013

WASHINGTON — The U.S. Supreme Court must clear the “cloud” over the right of U.S. soldiers to defend themselves by reviewing the unpremeditated murder conviction of Army 1st Lt. Michael Behenna, the Edmond soldier's attorneys told the high court in a filing this week.

Making their final appeal before the justices decide whether to accept Behenna's case for review, the attorneys argued strenuously against the U.S. Justice Department's view that the Supreme Court should reject the case because it had no broad implications for soldiers in dangerous situations.

The military's highest appeals court has effectively established a “rule,” Behenna's attorneys say, that says soldiers forfeit their right to self-defense when they point a weapon without authorization at a suspected enemy.

Service members “caught in ambiguous, dangerous, and rapidly evolving situations in combat zones — and who may have exceeded their authority by inadvertence, necessity, or even a lapse in judgment — should not have to second-guess whether aiming their weapons at potentially deadly enemies would put them in grave legal peril,” the brief filed late Monday says.

“The cloud on service members' right to self-defense in combat zones should be cleared by this Court now.”

Behenna, 29, is serving a 15-year sentence at Fort Leavenworth, Kan., for killing an Iraqi who had been identified by Army intelligence as part of a terrorist cell operating in the area where two of Behenna's platoon members were killed.

Behenna was ordered to take the man, Ali Mansur, back to his village but instead took him to a remote area, forced him to strip naked and then questioned him at gunpoint before shooting him twice.

At his trial in 2009, Behenna said he shot Mansur in self-defense after the Iraqi threw a piece of concrete at him and lunged for his weapon.

Two military appeals courts have upheld Behenna's conviction of unpremeditated murder in a combat zone. The Court of Appeals for the Armed Forces, the highest military appeals court, ruled last summer that Behenna had effectively lost his right to self-defense in the situation.

“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, by a 3-2 vote.

Behenna is asking the U.S. Supreme Court to review that ruling, which, Behenna's attorneys argue deprives soldiers of the right to defend themselves.

The court has scheduled the Behenna case for its May 30 conference to determine whether to grant review. The high court takes only a small fraction of the cases presented.

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