Posted on 04/27/2012 9:09:30 AM PDT by Kaslin
To keep former Army 1st Lt. Michael Behenna behind bars until 2024 for the "unpremeditated murder" of an insurgent during the war in Iraq, U.S. military prosecutors have resorted to strange and disturbing twists of law, logic and morality. They were all on display again this week in Behenna's final plea before the military's highest court of appeals in Washington, D.C. It was enough to make the gold eagle on top of the American flag in the courtroom shake and then hang its head.
Or so I imagined while listening intently as questions from the five civilian judges began to drill into a central argument advanced by the military prosecutor: that Lt. Behenna had "lost his right to self-defense" in the war zone when he embarked on an unauthorized interrogation of Ali Mansur, a suspected al-Qaida cell leader.
Lost his right to self-defense? What does that mean to our soldiers at war, where extenuating circumstances are facts of life?
At the hearing's onset, however, questions from the bench peppering Behenna's defense counsel, Jack Zimmerman, made it clear the judges weren't interested in any such circumstances. For the record, these include the fact that: (1) Behenna, as a 25-year-old platoon leader, lost two of his men very likely to Mansur, who was strongly suspected of organizing attacks against Americans; (2) shortly after Behenna's platoon arrested Mansur, he was released again; (3) Behenna himself, deeply affected by the deaths of his men weeks earlier, was ordered to take Mansur home; and (4) Behenna decided one more interrogation would net the confession necessary to find other al-Qaida members and put Mansur back in jail.
Thus, Michael Behenna, a 2006 ROTC graduate of the University of Central Oklahoma, found himself in a culvert in Baiji, Iraq, in 2008 interrogating Mansur, who, stripped naked, sat on a rock.
Military prosecutors argue Behenna executed Mansur then and there. A court-martial panel (jury) called it "unpremeditated murder" in 2009, and Behenna was sentenced to 25 years in Fort Leavenworth military prison. (That sentence has since been reduced to 15 years.)
According to Behenna's own testimony -- and according to the corroborating hypothesis of one of the prosecution's own expert witnesses -- Mansur rose from the rock and lunged for Behenna's gun. Behenna fired two bullets in self-defense, killing Mansur. And therein lie the seeds of appeal.
One: Military prosecutors didn't inform the defense team about their own expert witness's exculpatory evidence, which is required procedure under the rules of discovery. Two: The instructions to the original panel (jury) were so convoluted that one of the appeals court judges said he'd read them four times and still found them confusing.
Maybe more than anything else, though, what made the eagle in the courtroom droop in despair were the lengths to which the U.S. government was prepared to go to strip this soldier, and by extension all soldiers, of their "right to self-defense," even amid the untenable conditions of urban counterinsurgency (COIN) warfare and its restricted rules of engagement.
A lengthy line of questions on a soldier's right to self-defense indicated considerable interest (incredulity?) among the judges on this key position of the prosecution. Lead prosecutor Army Capt. Steven E. Latino argued that by embarking on the unauthorized interrogation with a loaded gun pointed at Mansur, Behenna lost his right to defend himself -- in essence, lost his right to stay alive -- even in the event the al-Qaida op attacked him. Indeed, Latino stressed that there was no condition here under which Behenna could have maintained his "right to self-defense."
How twisted Uncle Sam has become. If we take this position to its shocking conclusion, in our government's eyes, a terrorist with American blood on his hands merits more legal protection than does the U.S. soldier who breached protocol, however severely, in hopes of bringing said terrorist to book for killing Americans.
Free Michael Behenna, yes. And free the rest of the "Leavenworth 10" -- every one of whom is an Iraq War veteran-victim of unseemly prosecutorial zeal (for courtroom victory over justice), from former Master Sgt. John Hatley and Sgt. Evan Vela, to Pvt. Corey Clagett.
It would make the eagle proud.
I agree with her, but for Pete’s sake, it’s “straitjacket.”
Free Michael Behenna and the rest of the “Leavenworth 10”!
Sad but true. Here is a spin off of that treatment:
Army Suicide Pace to Shatter 2011 Record 164 Deaths
http://www.freerepublic.com/focus/f-chat/2877092/posts
Let’s see:
1. New commander in chief at the same time military suicides double.
2. New rules of engagement for soldiers not allowing them to protect themselves.
3. Soldiers discharged for a few criticisms of O’Bummer on their Facebook.
4. Gays in the military (Gay community has an even higher suicide rate than general population or military.)
5. Longer tours of duty. (Older soldiers who have careers and families at home)
6. Inadequate care for soldiers with PTSD (Give them pills and push them out of the service.)
7. Cut military budget and don’t give them the tools to do their job.
8. Have a president that sympathizes with the enemy and back stabs your efforts.
9. Soldiers who have legal problems from mental health issues are treated worse than detainees in Guantanamo.
Please continue this list. It’s really sad what is happening. I beg all veterans to take an active part in turning this trend around. It’s time to pull together and support our soldiers and our veterans.
And on top of that, if you are dishonorably discharged you can no longer own a gun in this country.
What a clusterf****
Every one of our admirals and generals from the past 20 years should be put in straightjackets.
If Behanna got information out of Mansur that could have to the capture or killing of insurgent enemies, would that information have been allowed to be used by his commanding officers - or would it have been thrown out because of how it was obtained? If you want to go for absolutes, then you have to go for absolutes both ways.
And besides, there are such things as battlefield interrogations that are perfectly acceptable. AND you don't have somone who believes he lost men to an enemy escort that enemy back to his home - the officers behind that one should be in prison.
These ROEs are the real enemy. They're atrocities.
It’s hussein and holder—I seriously doubt it’s the army.
Everyone should read this story. It’s about our current presidents drive to demoralize our military. He is destroying it. It’s time for vet’s and others to speak out.
Surely this zealot prosecutor has some skeletons in his closet worthy of digging up.
Thank you Diane for writing this article.
THEY ARE THE ENEMY! WAKE UP
Holder is directing the unJustice department and Hussein bastard boy commie is changing the leadership at the hgihest levels, to reflect the fascist/commie perspective.
I remember when the Army fought.
From history.
Are they not taking “orders” from the CIC?
Time to Nifong the prosecutor.
Here is the link to the appeal and a summary:
http://www.armfor.uscourts.gov/newcaaf/briefs/2011Term/Behenna12-0030AmicusCuriaeNIMJBrief.pdf
TABLE OF AUTHORITIES.................................. iii
ISSUE PRESENTED......................................... 1
WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE FAVORABLE
INFORMATION TO THE DEFENSE DEPRIVED APPELLANT OF HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
ARGUMENT
I. Trial Counsel Violated Their Constitutional and Regulatory Duty to Timely Disclose Favorable Information............. 3
II. The Army Court of Criminal Appeals Erred in Finding That the Prosecution Timely Disclosed Favorable Information.... 8
a. Dr. MacDonell’s Comments to Defense Counsel Did Not
Satisfy the Notice Requirements...................... 9
b. There Was a Specific Request for the Information Made
by Defense Counsel.................................. 14
III. Trial Counsel Breached Their Ethical And Statutory Duty to Disclose Under ABA And Military Rules Mandating Disclosure
of Favorable Information in a Timely Manner.............. 17ii
IV. The Prudent Prosecutor Shall Err on the Side of Seeking and Disclosing Information................................... 21
V. Appellant Was Prejudiced by Trial Counsel’s Argument, in Addition to the Loss of Dr. MacDonell’s Trial Testimony.. 24
CONCLUSION.............................................. 25
Dr. MacDonell’s opinion favored the defense by corroborating the deceased’s position and order of shots. Thus the opinion contradicted the prosecution theory that the deceased was executed while siting on a rock.
Prosecutors make trial decisions based on how they read
appellate cases or how they anticipate an appellate court will view the case.
The prosecutor cannot be permitted to look at the case
pretrial through the end of the telescope an appellate
court would use post-trial. Thus, the government must
always produce any potentially exculpatory or
otherwise favorable evidence without regard to how the
withholding of such evidence might be viewed — with
the benefit of hindsight — as affecting the outcome
of the trial.
United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005).
By finding reversible prejudicial error, this court will
remind prosecutors of their constitutional duty to ensure a fair trial. Appellant was not accorded a fair trial by these trial counsel.
I don’t feel I know enough information to make more than general observations; I will do so by hypothesizing a situation that might not reflect reality.
My assumption is that the military authority had determined that the prisoner was released, free to go, and was therefore not considered an enemy combatant.
If that was the case, and this soldier was instructed to simply drive the guy home, then you are talking about a soldier interacting with what might be considered a civilian.
If a random soldier, without provocation, and without orders, took a random civilian hostage, stripped them naked, and started interogating them at gunpoint, and that civilian, fearing for his life, attempted to grab the gun, and the soldier killed him, it seems at least reasonable to consider that the death was caused by an illegal action of the soldier, and therefore the soldier is guilty.
To put it in another hypothetical — if you are robbing a bank, and someone tries to disarm you, and you fear for your life, so you kill them, you are guilty of murder. You lose the right to “self-defense” if your illegal action put you in harm’s way.
From the story as told in this article, i can’t tell for sure, but it could be read that the soldier was illegally holding the person at gunpoint, and therefore the “risk” to the soldier was totally because of his own actions.
If the situation were different — if the “prisoner” had tried to grab the soldier’s weapon while the soldier was driving him back to his house — I think we would all agree the soldier would have a right to kill him.
I would agree that it was a bad idea to have him escort the prisoner back home. On the other hand, the military operates under the assumption that all soldiers are professionals who will obey orders no matter what their personal feelings, and would at least inform their superiors if they felt incapable of correctly carrying out an order.
“What a clusterf****”
Yes, it is.
This is what happens when you have perverts like Oblama and his ilk running the US Gov’t.
May everyone who had a hand in this ROAST IN HELL.
It’s Nam all over again. Dems are determined to make the same mess, time after time. If they can kill Americans, they can’t resist.
Patriotic Americans should not enlist. They are now making American soldiers into blood sacrifices to the enemy. The brass is not protective of American life. Maybe they can get a gay army together that is into S&M. Plenty of pervert agents at the airports to recruit from.
Amen! Lick Spittles, every one of them. Hassan still holds his commission and as far as I know has not been charged in the work related incident. God come quickly, our fighting men are ready to help you.
Don't kid yourself this cr@p was going on under GW as well, troops on a mission had JAG's in attendance, just waiting to bring some Lawyer Cr@p charge. Who can fight a war like that? No one.
We won WW II decisively by killing more enemy and blowing up more of their stuff, if we hadn't, I doubt we would be able to complain about our working conditions, or health care.
It's only going to get worse now with the fags taking over the JAG offices.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.