The Edmond Sun

January 24, 2013

Behenna: Military injustice contributed to son's fate

Mark Schlachtenhaufen
The Edmond Sun

EDMOND — Military investigative malfeasance was far worse in his son’s case than anything in civilian criminal justice, Scott Behenna told a Defense Department panel this week.

In July, Defense Secretary Leon Panetta asked the Defense Legal Policy Board to review cases involving soldiers killing civilians in combat zones. The panel is headed by former Defense Department General Counsel Judith Miller and retired Army Maj. Gen. Walter B. Huffman. It provides the secretary of defense with independent advice on military issues, and can propose changes to department policies and goals.

Edmond soldier Michael Behenna is serving a 15-year sentence in Fort Leavenworth after being convicted of unpremeditated murder in the killing of an Iraqi national in 2008.

In July, the Court of Appeals for the Armed Forces ruled the soldier erred by taking the Iraqi, a purported terrorist linked to the deaths of several members of Behenna’s platoon, to a culvert for an unauthorized interrogation. In the process he gave up any right to defend himself no matter what happened, the court ruled.

On Tuesday, Scott and Vicki Behenna, Michael’s parents, testified before the Defense Legal Policy Board.

In his remarks submitted to the panel, Behenna documented his career with the Oklahoma State Bureau of Investigation, which included investigating numerous murders, being a firearms instructor for 20 years and teaching judgmental shooting to law enforcement officers. He currently is an intelligence analyst for the FBI.

Behenna said earlier in the military legal process, after hearing the evidence in their son’s case, he and Vicki, a federal prosecutor, were convinced of Michael’s innocence. They were shocked by the conviction, which led them to do some soul-searching regarding their own criminal justice work.

“After careful reflection, we concluded the blatant disregard for thorough investigations by (Army Criminal Investigation Command), and the unfair and conviction-focused approach by the prosecutors we observed in Michael’s trial, were far worse than anything we observed in civilian criminal justice,” Behenna said.

He said investigators owe the community, victims and any potential suspect the best possible effort to secure all evidence from the scene of the crime, as that evidence should be the mainstay of any viable prosecution.

Forensic evidence, Behenna noted, is used to determine not only who was responsible, but what are the likely scenarios in which the actions could have occurred.

In Michael’s case, the prosecution presented no physical evidence to support their claim that Michael executed Ali Mansur while in a seated position, Behenna stated. In fact, Behenna continued, the only available evidence — bullet trajectories, a flattened bullet shot under Mansur’s right arm — would discredit the government’s theory and lead to only one conclusion, that Mansur had to be standing with his arm outstretched, not sitting when the shooting occurred.

The forensic evidence was largely recovered by a platoon first lieutenant with no crime scene training, Behenna stated. Michael’s defense expert testified that there should have been some fine blood spatter on the walls that would have indicated the height of the shots when fired, he stated.

Defense experts testified they believed there was “a very good chance that there was that evidence (blood spatter on a wall), but it was either not found or not documented,” Behenna stated.

“I also feel the bullets that exited the body would have made an impression in the concrete walls of the culvert possibly providing a height of each shot, but none of this evidence was recovered,” Behenna stated.

Vicki Behenna said she wanted the panel to hear about the course of events that led to the incident in the culvert. They included the earlier organized attack on Michael’s platoon in April 2008, the fact that the Iraqi national was identified in court as a terrorist, a lack of military investigative resources and a lack of fairness in the military justice system, she said.

Behenna said other issues that came up included the possibility of command influence in the decision to prosecute Michael and mandatory sentencing for soldiers. She said she hopes as a result of the hearing related policy will be changed.

The Defense Legal Policy Board will submit advice and recommendations along with a copy of its report on the hearing within 210 days. Prior to that date, the document will be submitted in draft form to the Military Department for comment.

The Behennas recently filed on behalf of their son a petition with the U.S. Supreme Court, the last legal venue available to the soldier. It would be the first time his case would be heard outside the military justice system.

On Feb. 7, the Behennas will be back in Washington for Michael’s fourth clemency hearing. Next year, he will be eligible for parole after serving a third of his sentence, which began in March 2009. Vicki Behenna said other soldiers in similar situations are not getting parole. | 341-2121, ext. 108