The Edmond Sun

May 21, 2013

Witnesses missing; Behenna case could be heard at Supreme Court

William F. O'Brien
Special to The Sun

EDMOND — The film “Breaker Morant” was nominated for an Oscar for the best screenplay in 1980. It told the story of Harry “Breaker” Morant, an Australian who served in the British Army and was court-martialed for alleged war crimes during the Boer War in Southern Africa in the early years of the last century.

That conflict pitted the British Army against the descendants of the Dutch settlers who had migrated to what is now South Africa in the 17th and 18th centuries. The majority of them were farmers and in their language of Afrikaans were known as “Boers.”

As documented in that movie, the conflict took on many aspects of a guerilla war and the line between civilians and combatants in the Boer community was blurred as a result.

Morant and two of his fellow soldiers were tried before a military tribunal convened by the British Army for shooting several Boer soldiers who were not in military uniform, as well as a German missionary who had witnessed the shooting of the Boer combatants.

The commanding British officer is South African during the conflict — Lord Kitchener — had issued an order that authorized the killing of enemy combatants who were not in uniform, and the officer who defended Morant sought to subpoena as witnesses several British military officers who could testify that Morant had received a copy of that order and that his actions were in compliance with it.

But those witnesses were suddenly unavailable, and Morant and his two co-defendants were convicted of murder and ultimately were executed.

The film makes clear that Kitchener and the British authorities in Southern Africa wanted to negotiate an end to the war, and that the execution of Morant was part of an effort to encourage the Boer leaders to enter into peace talks.

Future historians may see parallels between the experiences of Breaker Morant and Michael Behenna, an Edmond native and U.S. military officer who was convicted of murdering an Iraqi civilian in 2008 in a court-martial convened by the U.S. Army.     

His court-martial took place at a time in which the U.S. military was negotiating a “status of forces” agreement with the Iraqi government that recently had been installed, and his conviction may have served as a way to assist the U.S. government in obtaining that agreement.  

A Pentagon official has indicated privately to Behenna’s attorneys that he probably would not have been charged if those negotiations had not been ongoing at that time.

Behenna also was operating in a theater of war in which the distinction between enemy combatants and the civilian population was not always clear. Behenna testified that he shot the Iraqi in question, whom the U.S. Army has confirmed was an Al Queda operative, after the Iraqi threw a piece of concrete at him and tried to take his weapon.

Behenna’s mother, Assistant U.S. Attorney for the Western District of Oklahoma Vickie Behanna, reports that at his court-martial there was forensic expert Dr. Herbert MacDonell, who was prepared to testify that Michael Behenna’s account of how the shooting of the Iraqi occurred was the most plausible explanation of what happened.

But, the military prosecutors failed to call Dr. MacDonell as a witness, and the officers who decided that Behenna was guilty of murder did not have the benefit of his testimony. Behenna is currently serving a 15-year sentence in Fort Leavenworth, Kan.

His conviction was affirmed by the Court of Appeals for the U.S. Armed Forces by a vote of three judges with two judges dissenting. A request has been filed with the U.S. Supreme Court asking that it review that decision, and that tribunal will be considering that request later this month.

Vickie Behenna believes that regardless of the decision that the Supreme Court makes, her son is a patriot who served his country in an admirable manner.

WILLIAM F. O’BRIEN is a retired Oklahoma City attorney.