Behenna’s Verdict

I (www.jamesphillipslaw.com) was not able to be at Fort Campbell to hear the members read the verdict in US v. Behenna.  My co-counsel in US v. Warner and I had made a few predictions about what we thought the verdict might be.  We both thought since the verdict of guilt had been a compromised verdict and the panel had not convicted LT Behenna of premeditated murder that the panel was looking for a way out of having to sentence LT Behenna to a lot of jail time.  My co-counsel thought the panel would give LT Behenna seven years of confinement.  I thought they would give him twelve years.  We were both wrong. The military panel sentenced LT Behenna to twenty five years of confinement.

I tend to have faith in juries and military panels to make right decisions.  I was surprised that the sentence was so high.  Despite the evidence that Ali Mansur was possibly a member of Al Queada and had involvement in the death of several of LT Behenna’s men, the panel made up of relatively younger officers decided to sentence LT Behenna to a sentence that was appropriate for murder.  They did not back away from the nuances of the case, but instead voted for what they saw.  This sentence shows that they considered the death of Ali Mansur to be a major crime.

In representing SSG Warner, we had considered taking our case to trial.  Since our client was not guilty of premeditated murder or accessory after the fact, this very well could have happened we not be able to come to an agreement with the Government. But, in going to trial, one of our concerns in representing SSG Warner was that the panel may look at the pictures of Ali Mansur’s dead burnt body and not be able to excuse the actions of our client.  We were concerned that looking at the horror of a killing the panel would want to assign blame and we did not want them to mistakenly assign it to our client.  We also didn’t want the panel to sentence our client because they may assign too much culpability.

Jack Zimmerman, Behenna’s lead counsel, was probably concerned about many of the same issues.  In his case, that appears to be what has taken place.  The military panel did not buy the repeated references to Ali Mansur being a “terrorist” and a “bad” man.  There was certainly evidence that this is exactly what he was, but there was also evidence that at the time he was shot, he was naked, in the control of LT Behenna and pleading for his life.

In the end, the panel had to decide whether or not LT Behenna had shot a human being point blank in the forehead or whether or not this was “just an Iraqi.”  The tempation for the defense is to say that this is just an Iraqi.  Who cares?  How many times has an Iraqi been killed in one combat operation or another?

In this case, the Iraqi was under the care and control of the US forces.  As CPT  Poirier, the lead prosecutor in our case, said in her closing argument in US v. Warner, this is the type of crime that requires that “we” send a message to soldiers not to commit these types of battlefield attorcities.  Now, in our case, I believed that she was wrongfully characterizing our client’s conduct, but the point was made nonetheless. Soldiers must follow the rules regardless of their personal vendettas.

In LT Behenna’s case, the panel seemed to send a message that officers cannot decide for themselves how they are going to distribute justice.  If we as a nation are going to occupy and administer justice in Iraq, then we will require our officers to follow the law.  No matter whether you agree with the panel’s decision to heavily sentence LT Behenna or not, there is certainly a requirement that we not lead Iraqi citizens into the desert, strip them naked and then shoot them point blank in the forehead.  The panel has sent that message loud and clear with a twenty five year sentence.

Of course, both US v. Warner and US v. Behenna will continue to play out through the appeal process and to some lesser extent in the media.  Jack Zimmerman and the defense in US v. Behenna have filed a motion for a mistrial, but based on this verdict from this panel, they may want to watch out what they ask for.  This panel looked like the best bet for a jury nullification.  Young officers, with relatively junior rank for a military panel, who were probably fairly independent, and yet in the end, they sentenced Behenna to 25 years.  A more senior officer panel may have given him more time.

12 thoughts on “Behenna’s Verdict

  1. I just hope that ALL of the officers in this ‘panel’ have previously done repeated, consecutive tours of duty overseas and have been ‘in action’ in Iraq or Afghanistan. Yet their description as ‘young officers’ worries me that some have not. If this were true the irony would choke my further thoughts. But not my concerns or prayers.

  2. He was found guilty of murder of an innocent civilian who was unarmed and secured in custody. Behenna stripped the detainee naked, shot him in the head and then watched as Warner tossed an incendiary grenade on the corpse. His own peers witnessed and testified against him. He is extremely lucky he is not being tried by the Iraqi people.

    1. “He was found guilty of murder of an INNOCENT civilian…”??? Found guilty of murder, yes, but of “an innocent civilian” not only conflicts with trial testimony to the contrary and a characterization that’s entirely irrelevant to the charge, but appears to be a sheer prejudicial fabrication by this author! Regardless of Ali Monsour’s innocence or (more likely) guilt of horrible crimes against humanity, whatever happened to the “beyond reasonable doubt” and prosecutorial standards for sharing possible exculpatory expert testimony with the defense that would have benefitted Lt Behenna’s defense, and very possibly the verdict in a civilian trial? The UCMJ doesn’t require observing those standards for military defendents?

      1. I was looking through my post to see where I said they found him to be an “innocent” civilian. I didn’t see it, because if it is there, I need to change my language. Certainly, Ali Mansour was not an innocent civilian although I do believe the prosecution was trying to paint him as such. My intention was to analyze the reasons why the verdict was so high. As you can tell from my post, I believed the sentence would be much lighter. I watched the trial and simply reported what I believed happened. Of course, my perception may be tainted by my defense of SSG Warner.

  3. Mr Phillips, although you properly conceded the point that Ali Mansur was hardly an “innocent” in this case, as a licensed attorney who presumably is knowledgeable of any differences between UCMJ vs. civil law, you pointedly still failed to speak to my questions regarding the applicability of either the “beyond reasonable doubt” standard required for conviction in civil trials for murder, nor to the civil prosecutorial responsibility to share possible exculpatory evidence with the defense…neither protections which were apparently afforded to Lt Behenna. Can you shed some light on those concerns?

    Beyond that,

    1) Why would the Army EVER turn over prisoner Monsur for final release to Lt Behenna, of all people…the very officer who was perhaps the LEAST emotionally capable of anyone to carrying out such a mission objectively, when his entire focus could have predictably and understandably have been aimed towards possibly exacting some personal justice for his dead comrades? Doesn’t make sense that they did…UNLESS…was it possibly their intent to use Lt Behenna to hopefully implement a final solution for this murdering terrorist that the Army wasn’t capable of officially doing?

    2) If Lt Behenna in fact had any intention of killing Mansur, why wouldn’t he have done it without bringing along two potential witnesses to accompany him?

    3) Also, if exacting revenge was his intent, why waste time with a phony stripping humiliation and going through the motions of interrogating Monsur rather than just shooting him and be done with it? Doesn’t make sense!

    Were any of those questions pursued during the pre-trial investigations, or brought up by the defense during the trial?

    1. Mr. Whitfield,

      You are absolutely on top of the issues in this case. Obviously, I cannot speak to the panel finding LT Behenna was guilty “beyond a reasonable doubt.” They apparently did not accept that this was self defense. I do agree that there was an “absolute” responsibility” on the part of the government to provide ANY and ALL exculpatory evidence to the defense. The fact that a prosecution witness agreed with the expert testimony of the defense SHOULD have been disclosed. This will certainly be a major issue on appeal and could result in this case be remanded to the trial court.

      To specifically answer some of your other questions:
      1. The Chain of Command was culpable in this killing. The defense of SSG Warner was going to question the motives of the Chain of Command. We did feel as though there was at the very least negligence if not culpability on their part. It seems to me to be common sense that releasing this particular prison to LT Behenna’s squad would result in Ali Mansur’s death.
      2. My personal theory is that LT Behenna did not mean to kill Monsur. The first shot was an accident that meant to scare Monsur into giving him more information about Al Queada and the shot accidentally hit and killed Monsur. Evidence showed this first shot probably killed Monsur. In that case, LT Behenna did not mean to kill Monsur.
      3. I do not believe revenge was the intent. LT Behenna was trying to gather information.

      This was our defense in US v. Warner. This did not seem to be the defense in LT Behenna’s trial. They relied heavily on the self defense argument, which I personally believe did not work. This was the suggestion of the post which described the verdict. I am glad you are clearing up some of the vagueness in that post. I was reporting on what I saw, not what I believed actually happened.

      Obviously, in talking to SSG Warner, (which I remind everyone he has allowed me to share some of this information) and having done the Article 32 investigation in our case, I have my own theories about what actually happened. I intended to use these at trial. In our case though, we were able to get the charges of premeditated murder and accessory after the fact dismissed, therefore, we did not have the opportunity to go to trial on these issues. We were prepared and felt confident in our defense, but did not get to go. Our trial was scheduled the week prior to US v. Behenna and the government probably did not want us to go first. We certainly would have brought up all of the defenses you have suggested. Self defense for us was a defense, but in the sense that releasing a known terrorist back into the community was tantamount to releasing a Cobra into your bed. Not a pure defense, that suggested that Behenna was in fear of his life while Monsur was naked in the culvert.

  4. Jim…I’ve just today caught up with the several blogs you’ve posted previously regarding the trials and convictions of both Lt Behenna and SSG Warner (another tragic miscarriage of justice!)…and see that we’re on the same page (from your March 7th post):

    “The blame for the shots being fired can be laid at LT Behenna’s feet, but the death of Ali Mansur and the conviction of two US Infantrymen can be laid at the feet of the chain of command.”

    Can’t say as I agree with your possibly hasty choice of words, “…blame for the shots…,” as one could reasonably argue that Mansur was ultimately to blame himself (if indeed any “blame” was involved at all), plus the apparently un-disproved possibility of shots actually being triggered in self-defense from an attack by a terrified desperate man who’s convinced of his own impending death. But we couldn’t agree more on the rest. What a shame that the “chain of command” is rarely held accountable for their precipitating stupid (if not calculated) decisions!

    Some more questions for you (hoping you have the time and patience to address them):

    1) Was Behenna allowed to take the stand in his own behalf? If not, should he have in your view?

    2) You’ve mentioned two eye-witnesses for the prosecution – your client, Sgt Warner (who could only have testified to the surrounding events, but not to the actual shooting), and “Harry” the interpreter, where we don’t know what he testified to nor about the translation accuracy of his fellow – prosecution supplied – Iraqi interpreters (did the defense use their own interpreters too?)

    3) If you were present for the court’s instructions to the panel regarding the “beyond all reasonable doubt” standard for conviction as required by UCMJ Art 51, were the court’s words in your opinion sufficient and fully meet both the letter and spirit of the UCMJ words?

    4) Since UCMJ (Art 52) requires at least 3/4 of the panel to agree on a greater than 10 yr sentencing verdict, I guess we essentially lay reader have to assume that that requirement was met for Behenna’s verdict, but just curious – were there any dissenters on the panel?

    5) The trial record should be able to answer all of those, but is that available to the public without someone having to invoke the Freedom of Information Act to enable access to it? If so, I would appreciate any advice you may be able to offer on how to go about doing it.

    6) Lastly…I understand that lie-detector results aren’t generally admissible as evidence in court, but to your knowledge, do the services ever administer such to defendants, prospective witnesses, etc., during the pretrial investigative phases as one means to pursue what should be an objective “search for the truth?” If so, do you know if it was used, with whom, and what the results may have been for these cases?

    Finally, will you be keeping us informed regarding the ongoing appellate process as it occurs? I hope you do as you’ve been a terrific advocate for these guys so far! I also hope you’re safe from being recalled to active duty so the Army can charge you with “conduct unbecoming” or some other fabricated impropriety. Take care…

  5. Gentlemen, Mr. Whitefield and other participants

    I’ve just learned of the Behenna case as it had been reviewed on conservative radio and have read all the preceding posts. I believe the defendant is an individual of integrity and honor with a strong sense of duty. Noteworthy are his mother, a federal attorney involved in the Oklahoma City Court House bombing and his father, a career agent for the FBI. As such the outcome for 1st.Lt. Behenna is particularly tragic. Certainly, it is unexcusable for the proscution to withhold excupatory information form the defense, regardless of political agendas; and hopefully, further investigation will shed light on those motivations; and appropriate censure will follow as warrented.
    Understanding the events of this case is difficult because many questions have remained unaddressed in the public forums that serve as a source of information. I would be particularly appreciative if any readers could better help me understand the following issues:
    1.How did the burnt body of Ali Mansur come to the attention of the authorities?
    2.What was the emotional state at the time and motivation or justification for setting the body ablaze?
    3.How many shots were fired from the defendents weapon?
    4.What was the testimony of the two eye witnesses pertaining to the event of the shooting?

    1. 1. The burned body was found by Iraqis and the Iraqi police notified US Forces upon finding evidence of US soldier involvement.
      2. Unknown.
      3. Two shots were fired. One hit Ali Monsur in the side/chest and one hit him in the forehead.
      4. Three eyewitnesses testified. Harry the interpreter, SSG Warner and LT Behenna. The issue was weather or not LT Behenna was acting in self-defense.

      Hope this helps.

  6. Jim: Thank you for the assist in providing the background information!
    Admittedly, my expertise is not in the legal arena but in the health care field. Considering the circumstances regarding the presumed execution of Ali Monsur, I’m having difficulties comprehending the criteria used by the youthful panel in initially concluding the so-called murder involved premeditation. As far as the body being nude, I believe this is not an uncommon practice when interrogating subjects in Iraq and Afghanistan, and may be a routine protocol practiced by military intelligence agencies when dealing with the Muslim culture. In this setting, I fail to understand the rational for setting the body ablaze. Certainly, Lt Behenna is representative of our military’s highest level of combatant proficiency and skill; and as such, one would presume a more sophisticated and skillful execution if premeditation were a factor; i.e. as with the Mafia, the body would be dismembered to avoid identification and there would be no living witnesses. As this was not the case, it is reasonable to conclude the defendant was not in a rational state of mind. So, my question is would the defendant have been better served by pursuing a defense based on significant psychiatric impairment versus the issue of self-defense. Under the circumstances, psychiatric evaluation would support a diagnosis of post-traumatic stress disorder, and considering the military’s rules of engagement and the unusually high rate of suicide within our combatant military, significant psychiatric impairment could be readily substantiated. Once substantiated, ordering Lt. Behenna to take responsibility for returning Ali Monsur to his home would be more than negligent
    Considering the military’s prosecution and persecution of its own combatant forces over the past five years or so, concluding the panel would be more sensitive to a self-defense argument may have been a bit too presumptive. Obviously, Lt. Behenna would be reluctant to pursue a defense based on psychiatic impairment; hovever, once giving serious consideration to issues of either defense, motivation for realignment might occur. As this case is sketchy at best regarding the events that led to the death of Ali Monsur, the defendant may be in denial, and unable to recall the events as they actually occurred. Considering his parenting and, likely, high expectations for performance in the military, denial would be a realistic psychiatric mechanism to facilitate survival.
    In conclusion, I would appreciate any information regarding the implications of a defense based on psychiatric impairment withing the military judicial system. Is such a defense recognized withing that system?

  7. The below entry is a revision for the entry dated January 27, 2010

    Jim: Thank you for the assist in providing the background information!
    Admittedly, my expertise is not in the legal arena but in the health care field. Considering the circumstances regarding the presumed execution of Ali Monsur, I’m having difficulties comprehending the criteria used by the youthful panel in initially concluding the so-called murder involved premeditation. As far as the body being nude, I believe this is not an uncommon practice when interrogating subjects in Iraq and Afghanistan, and may be a routine protocol practiced by military intelligence agencies when dealing with the Muslim culture. In this setting, I fail to understand the rationale for setting the body ablaze. Certainly, Lt Behenna is representative of our military’s highest level of combatant proficiency and skill; and as such, one would presume a more sophisticated and skillful execution if premeditation were a factor; i.e.. as with the Mafia, the body would be dismembered to avoid identification and there would be no living witnesses. As this was not the case, it is reasonable to conclude the defendant was not in a rational state of mind. So, my question is would the defendant have been better served by pursuing a defense based on significant psychiatric impairment versus the issue of self-defense. Likely, psychiatric evaluation would support a diagnosis of post traumatic stress disorder and considering the military’s rules of engagement and the unusually high rate of suicide within our combatant military, significant psychiatric impairment could be readily substantiated. Considering the level of impairment, ordering Lt. Behenna to take responsibility for returning Ali Monsur to his home would be more than negligent.
    Considering the military’s prosecution and persecution of its own combatant forces over the past five years or so concluding the panel would be more sensitive to a self-defense argument may have been a bit too presumptive.
    Obviously, Lt. Behenna would be reluctant to pursue a defense based on psychiatic impairment; however, once giving serious consideration to the issues of each defense, motivation for realignment might occur. As this case is sketchy, at best, regarding the events that led to the death of Ali Monsur, the defendant may be in denial, and unable to recall the events as they actually occurred. Considering his parenting and, likely, high expectations for performance in the military, denial would be a realistic psychiatric mechanism to facilitate survival.
    In conclusion, I would appreciate any information regarding the implications of a defense based on psychiatric impairment within the military judicial system. Is such a defense recognized withing that system?

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