- The Washington Times - Thursday, February 22, 2018

Almost a decade after he killed a terrorism suspect in the Iraqi desert, former Army 1st Lt. Michael Behenna seeks a shot at redemption. It may be a long shot.

Behenna’s cause was launched by his attorney on Jan. 17, but the former Ranger’s bid has picked up a lot of high-ranking support. At various times, Behenna has had the support of dozens of generals and admirals across the four branches of armed forces. This month, Oklahoma Attorney General Mike Hunter wrote President Trump requesting a pardon for a native son of his state.

“I do not believe Lt. Behenna should carry the burden of a miscarriage of justice the rest of his life,” Mr. Hunter said.

As far as the military is concerned, there has been no miscarriage. In 2008, while serving in the Sunni Triangle, an improvised explosive device killed two soldiers in Behenna’s command: Spc. Adam Kohlhaas, 20, of Kentucky, and Spc. Steven Christofferson, 20, of Wisconsin. An Iraqi translator and two other Iraqi soldiers allied with U.S. forces also perished.

Enraged and distraught, U.S. soldiers began combing the enemy-infested villages north of Baghdad. Intelligence pointed them to Ali Mansur, a local identified as an al-Qaeda operative who was found with weapons and a Syrian passport when soldiers arrested him, according to court briefs. After several days of interrogation, however, military intelligence could not crack the suspected terrorist and Behenna was ordered to return Mansur to his home.

That was an inexplicable and significant blunder, said John Richter, a King & Spalding partner handling Behenna’s pardon request. It was a mistake to order an officer still reeling from the loss of valuable soldiers under his command to release the suspect he believed guilty.

“It was an awful management decision to send Lt. Behenna to return the guy,” Mr. Richter said.

The decision went badly awry. In a move even those who support him acknowledge was a ghastly dereliction of duty, Behenna stopped Mansur’s return convoy and took the suspect into a railroad culvert off the main road. There he ordered Mansur to strip and, with an interpreter, began a final interrogation.

Those facts are not in dispute. What happened next, on the other hand, is: When he turned his attention to the translator, Behenna claims, Mansur leaped to his feet and threw a lump of concrete at his captors in an attempt to escape. In what he called self-defense and Army prosecutors an execution, Behenna shot Mansur twice.

Behenna was charged with premeditated murder in a combat zone, but that harsh crime wasn’t proved. In his trial at Fort Campbell, a jury found him guilty of the lesser crime of unpremeditated murder in a combat zone. Behenna received a 25-year sentence in the Leavenworth prison.

It was a crushing blow and ignoble end to what had been an impeccable and promising military career.

Growing up outside of Oklahoma City, Behenna seemed destined to a life of public service. His father was with the Oklahoma State Bureau of Investigation and was shot in the line of duty when his son was 4. Behenna’s mother was an assistant U.S. attorney who was on the prosecution team that convicted Timothy McVeigh in the Oklahoma City bombing.

But something else came out of Behenna’s trial, Mr. Richter said: a prosecutorial error. On the eve of trial, a top forensic investigator hired by the Army concluded that the evidence supported Behenna’s version of events.

Without notifying the defense, Army prosecutors quietly scrubbed the investigator from their witness list. When Behenna took the stand in his own defense, his story lacked any buttressing testimony. That was precisely what the investigator would have offered, he told dumbfounded defense attorneys after the trial.

The U.S. Court of Appeals for the Armed Forces, known as the CAAF, acknowledged that Behenna’s team should have been told that one of the Army’s star witnesses thought the defendant was telling the truth. Yet the error did not influence the trial to the extent that he deserved another one, the appeals judges said in its 3-2 split decision. The appeals court did reduce Behenna’s sentence to 15 years.

The court concluded that Behenna forfeited a self-defense claim as he pointed his sidearm at a suspect outside of “an active battlefield situation.” That was where 37 flag and general officers, including a former member of the Joint Chiefs of Staff, took issue with the court. They said self-defense had to be available to service members in dangerous and unstable situations around the world.

Instead, the court had “treated an American soldier’s confrontation with a suspected al-Qaeda operative in a combat zone as no different in principle than a soldier’s stateside barroom brawl,” the generals and admirals wrote. “That makes no sense because the everyday risks to servicemembers in far-flung combat zones around the world are different in kind from the risks inherent in stateside altercations.”

The high-ranking officers argued that Behenna’s conviction would in fact put U.S. service members in peril.

“Under the CAAF’s categorical rule, servicemembers who point their weapons without authorization at suspected enemies in a combat zone lose their right to self-defense, and hence must flee if attacked. In this case, if Mansur had overpowered Lieutenant Behenna and seized his weapon, not only Lieutenant Behenna’s life but also the lives of nearby soldiers under his command could have been lost,” the officers wrote. “If Lieutenant Behenna’s testimony is truthful — as the decision of the CAAF assumes and this Court must assume — then Lieutenant Behenna would have been derelict of duty not to use his weapon to defend himself.”

The Supreme Court declined to hear Behenna’s case, but the self-defense precedent is germane to the request for pardon, both Mr. Richter and Mr. Hunter say.

Although he believes the Brady violations at Behenna’s trial were significant, Mr. Richter stressed that his goal is not to relitigate the case. Behenna, who through Mr. Richter declined to be interviewed, isn’t trying to do that, either.

The reason for the pardon is to lift the cloud on Behenna. A presidential pardon would “not change the nature of a discharge or expunge a record of conviction,” according to military regulations.

“He seeks forgiveness; the pardon is ultimately a form of forgiveness,” Mr. Richter said. “It doesn’t mean he didn’t commit any crime; this is not an exoneration.”

By all accounts, Behenna has handled his burden well. After his first parole hearing in March 2014, he walked out of Fort Leavenworth, where he was a model prisoner who read voraciously and learned Spanish. Now, he is building a familiar and comfortable Sooner life: working on a 4,000-acre ranch in Medford and regularly visiting his folks in Edmond.

Mr. Richter said it’s absurd to think there is any risk to the public or of recidivism as Behenna completes his probation, yet he has to register as a violent offender and is forbidden from many lines of work because of his status as a felon.

Mr. Hunter said he has encountered nothing but enthusiastic support from fellow Okies for Behenna’s cause. If there are opposing groups, “I haven’t heard of them,” Mr. Hunter said. Local press has also followed Behenna’s saga, often with a largely sympathetic tone.

Indeed, The Oklahoman, the state’s largest newspaper, said in a January 2014 editorial that it was “convinced politics played a role in his sentence” and urged Behenna be paroled.

The Washington Times sought reaction to the pardon request from several international human rights groups, which all declined to comment on the case.

The Pentagon and the Justice Department declined requests for comment. Mr. Richter said the military has acknowledged receipt of the pardon request, though it remains unclear if any formal review has been initiated.

The normal process in this case would be for the Pentagon to send its recommendation to the Justice Department, whose decision would be sent to the White House for presidential review. The president has unilateral authority to issue a pardon at any time, however.

The White House did not respond to a request for comment.

Mr. Trump has issued one pardon so far, to former Sheriff Joe Arpaio of Maricopa County, Arizona. The president didn’t even wait for Mr. Arpaio’s criminal contempt of court conviction to be finalized before offering clemency to his prominent political ally.

The president also has commuted a sentence for the former owner of a kosher slaughterhouse in Iowa who had been convicted of financial crimes.

Behenna’s request presents a different type of case, and history is hardly replete with military pardons.

While it is not unheard of for a president to exercise his executive power under Article II, Clause 1 of the Constitution on a convicted service member’s behalf, it is rare and most cases involved more high-profile incidents than Behenna‘s.

After the Civil War, President Johnson extended a pardon to all former Confederates on Christmas Day 1868. Lt. William Calley, found guilty on 22 counts of premeditated murder for his role in the My Lai massacre in Vietnam, was pardoned by President Nixon.

CLARIFICATION: Behenna was Ranger qualified, but his platoon was part of the 101st Airborne Division.

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