Devastating News: Lt. Michael Behenna's Final Appeal Is Denied, Will Remain In Leavenworth Until 2024

I am absolutely heart broken here.  I really thought that the civilian appeals court would overturn the sentence of 1st Lt. Michael Behenna but in a 3-2 decision the sentence has been upheld.  Michael Behenna is out of chances.  He will sit in that prison cell until 2024 - twelve more years in isolation for the self-defense killing of an al Qaeda terrorist.

My heart goes out to Michael Behenna and to his family who have devoted their lives to freeing their son.  I have excerpted below the announcement by Michael Behenna's family on the DefendMichael site and also have included the article on this from Diane West.

That's all I got for now folks.  I can't see through the tears.

Michael Loses CAAF Appeal


On July 5th, 2012, we learned that the majority on the Court of Appeals for the Armed Forces (CAAF), in a 3-2 split, upheld the unpremeditated murder conviction of our son 1LT Michael Behenna. Needless to say, we are very disappointed in the decision of the CAAF.

The CAAF had accepted two issues in Michael’s case (1) the improper self-defense instruction, and (2) Governments failure to disclose exculpatory evidence to the defense, ie. MacDonell’s expert opinion. We know from reading the 2 dissenting judges opinion that the arguments by Michael’s lawyers were very compelling. In fact, the entire court agreed that the self-defense instruction was erroneous. However, the majority court ruled Michael used deadly force by threatening the terrorist with a gun and had no right to self-defense in his given situation – a fact strongly disputed by the dissenting judges – so the majority ruled the self-defense instruction written by trial judge Steven Dixon, even though incorrect, did not prejudice Michael’s defense. The entire court agreed the expert opinion of Dr. MacDonell should have been turned over to the defense, but the majority dismissed the potential Brady violation as irrelevant to Michael’s defense, as MacDonell’s opinion only strengthened Michael’s version that he was attacked, but Michael had no right to defend himself.

The CAAF basically ruled that Michael made a mistake by taking the terrorist to a culvert for an unauthorized interrogation and in the process gave up any right to defend himself no matter what happened in the culvert (note that no police officer in America loses their right to defend themselves in similar situations.) If you recall, the military prosecutors originally prosecuted Michael for executing the terrorist in the culvert, and no evidence or even any mention of Michael losing his right to self-defense was presented to the jury (panel). Michael had no opportunity to present a defense to an allegation of loss of right of self-defense, because that was never the theory presented by the prosecutors. As stated in the dissenting opinion, “was it murder, or was it self-defense.”

Obviously we were one vote away from having Michael back home with us, and the dissenting CAAF judges widely diverged from the majority, which gives us hope that perhaps Michael’s legal battle is not over. Michael remains in prison today for a mistake he made in a combat zone while facing a terrorist who had killed at least two American soldiers and for whom the military had issued a kill/capture order. The court did not believe that Michael executed Mansur as originally charged and for which he was convicted. We will continue to pursue all legal avenues including the Supreme Court, and in search of relief for Michael, we will also contact officials who can understand the perspective of what Soldier’s encounter in a war zone and how dealing with terrorists cannot be equated to a drug deal gone bad in America.

Michael and our entire family want to thank all of those supporters who have taken their valuable time and effort to help Michael’s cause and we know that your continued support will lead to Michael’s ultimate release. We will begin a campaign to contact President Obama and presidential candidate Mitt Romney to take notice of Michael’s case and request they use their influence to pardon Michael or reduce his sentence. The people’s voice must be heard in a case where a Soldier faced his enemy in a war zone. Although Michael has told us he was disappointed in the ruling, he remains a man of integrity and character, and will not be broken by this latest setback. He said that when he walks through the doors of Ft. Leavenworth military prison to freedom he will be a much wiser man than when he first went in.


Devastating: Michael Behenna's Conviction Upheld

By a 3-2 majority, the highest military appeals court has upheld Army Ranger 1st Lt. Michael Behenna's conviction for the unpremediated murder of a detainee and al-Qaeda-operative in Iraq named Ali Mansur. While Michael still could receive clemency, his legal appeals are now officially exhausted. Barring clemency, Michael will remain at Leavenworth military prison until 2024.




What a blow. What a disgrace.


I just finished reading the majority opinion. It is a chilling document. It contains analysis of whether Michael had "the right to act in self-defense" when the detainee he was questioning about IED attacks that had recently killed two men in his platoon, suddenly lunged for Michael's gun, and Michael shot and killed him.


This was one of several issues before the court. As the "initial aggressor" for engaging in an unauthorized interrogation of a naked detainee, Michael, the court upheld, had lost his right to self-defense. Under consideration was whether at any point in the split seconds during which the detainee hurled a piece of concrete at Michael and rushed for his gun, and Michael fired in return at the detainee, Michael ever regained it. Three judges in the calm of their chambers in Washington, D.C., determined that he did not.


Or, as they wrote: "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 the initial aggressor in full battle attire, armed with a loaded pistol, and lunges for his pistol."


Oh yeah? Maybe it's simplistic of me, but I'd like to see them step into Michael's combat boots and see how it felt out there in the night, after a hard day's "catch-and-release," after military intelligence shockingly set Mansur free and ordered Michael to drive him home -- the very man Michael suspected of knowing all about the attacks that had recently killed two of his men. Michael thought he could get the necessary evidence in one more interrogation, just him and Mansur. But it didn't work out as Michael hoped.


The majority:


Ultimately, even if we assume that Mansur lunged for Appellant's pistol and Appellant feared that Mansur would use the pistol if he was able to seize it, because Appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member [juror] could have come to no other conclusion than that Appellant lost the right to act in self-defense and did not regain it.


I'm afraid that this court's idea of a "rational member" also could have come to no other conclusion than that Michael, "initial aggressor," bereft of the "right" to self-defense, should have permitted Mansur to snatch his gun from him and then shoot him dead.


Maybe then the three judges would have sighed with a satisfied kind of regret over the poor lieutenant who had given his all for their, frankly, demonic reading of the law. Instead, for having defended himself, for not having sacrificed himself to a charging terrorist, Michael and his family pay the price of Michael's freedom.


America: Is that justice?