How a Courts-Martial Works

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Here is a video blog that goes through both the procedural process of a Courts-Martial and also advice on how to best handle certain situation in the process.  I have also provided a PowerPoint slide that breaks down the basic process.

Click this link to download the Courts-Martial PowerPoint. Court Martial PP

 

SOF Soldiers under an ever-changing legal fire

I have recently represented several special forces soldiers in tab revocation proceedings. These soldiers were under investigation for misconduct, some real and some perceived.

In the 5th Special Forces group, the commander has a policy letter on tab revocation requirements for misconduct.  As part of the tab revocation, there is a requirement to reclass the soldier out of the 18 series MOS.  So, he loses both the Green Beret and the actual ability to operate in his field.  My response to this is two-fold, (1) I am always saddened to see such highly trained and successful soldiers lose both their MOS and their tab; and (2) I am amazed at the changing landscape of the SOF Community.

Several years ago, I wasn’t hired by many SOF Soldiers.  This has changed radically.  I have represented 18 series Soldiers in many Courts-Martial and Administrative Separation Boards recently.  In the old days, if a Green Beret committed misconduct, the misconduct was swept under the rug and not much was done to the tabbed Soldier.  This developed into an idea of the “big boy” rules, where the tabbed soldiers were expected to be professional, without a lot of supervision.  In the absence of the soldier’s professionalism, many times the command would not know what to do.

Those times have change.  There have been several embarrassing incidents, which have brought unwanted attention to the commands, are causing commanders to reevaluate the “big boy” rules.  Drinking incidents have begun to result in administrative discharges for tabbed soldiers.  Criminal conduct downtown and while deployed the same.

With so much training and expertise, these decisions to end these special careers should be examined carefully by the commands.  We can’t have soldiers who run amuck, but I sure hate to see all that courage and all those tax dollars flow down the drain.

Problems for Deployed Civilian Contractors working for the Military

Recently, I have had several civilian contractors hire me for actions in Afghanistan and Iraq. During their work with the military in these deployed environments they have been the subject to either investigation or suspension.  The interesting thing is that the military officers that have dealt with these contractors seem to be acting without clear guidance from higher headquarters and are very erratic in the way that they treat the civilian contractors.

The Contractors seem to be without much due process in dealing with allegations that are brought against them while being deployed.  A couple of my clients were subject to unwarranted searches and have had personal belongings seized.  Getting these items back has been extremely difficult.

In one of the cases, the FBI is doing the investigation, but has never formally arrested or charged my client.  The investigation seems to have been brought about because of a commander’s suspicions, which at the point are both unwarranted and probably negligent.

In another case, my client brought concerns up to a commander about the safety, both OPSEC concerns and personal safety concerns.  The response was to ignore the problem and send my client home. The commander seemed to believe he had complete discretion.

I would be interested to hear about other experiences like this that contractors may be having in a deployed environment.

LT Behenna’s ongoing defense.

I was on facebook yesterday and strangely enough got a request to be part of a group to defend LT Behenna.  One of my friends sent me the link and I thought it was ironic that he did not know that I represented SSG Warner and had watched the trial of LT Behenna.  I believe part of the request was to sign a petition in order to have LT Behenna pardoned.  With this current administration and their take on the war in Iraq,  I believe that is highly unlikely, but it would be a viable way to mitigate the very heavy sentence in this case.

LT Behenna and SSG Warner were both part of a very tragic story.  Several weeks before the killing of Ali Mansur took place, LT Behenna’s squad had captured Ali Mansur at his home.  They had credible information to believe he was part of Al Qaeda and that he was a terrorist that had been involved in the death of several of LT Behenna’s squad members.  The members of LT Behenna’s squad, along with SSG Warner, showed restrained at that time.  If they had wanted to, they could have easily made up a plausible story that Ali Mansur resisted his capture.  There were illegal weapons at Ali Mansur’s home and it would have been a simple matter to kill him during the armed take down of that home.  But, that is not what happened.

LT Behenna and the members of his squad decided that they would let the “authorities” investigate Ali Mansur.  They dropped him off at a detention facility with all of the information that they knew about his terrorist activities and hoped that justice would prevail.  Instead, within a matter of weeks, LT Behenna and his squad were asked to return Ali Mansur to his home and his village.  Military Intelligence determined that they didn’t have enough to hold Ali Mansur despite the RPGs, weaponry and illegal passports from Iran that were found at his home.  Clearly, Ali Mansur was involved in nefarious activities and LT Behenna believed he had credible evidence to prove that.

LT Behenna’s frustration at the release of Ali Mansur back to his family was understandable.  After witnessing the death of the men in his squad, in what he believed was directly related to the activities of Ali Mansur, was surely a motivating factor in driving Ali Mansur to the desert and stripping him naked.

These events are very much a picture of what is occurring in both Iraq and Afghanistan.  We ask our soldiers to toe the line, and to deal with whatever decision comes from higher, even if they don’t understand the wherefore’s and the why’s.  For many, the resulting death of Ali Mansur, is no tragedy.  For them, the resulting incarceration of LT Behenna for avenging his men, is the true tragedy.

As a former JAG, I understand the need for the laws of war.  I just don’t believe ultimately that the decisions that are made on the battlefield are so easily codified and analyzed as to fit in the Geneva Conventions.  If SSG Warner and LT Behenna had deliberately decided to kill Ali Mansur when they picked him on that first day, would that have gotten LT Behenna 25 years of jail?  Probably not.

Behenna Mistrial Denied

LT Behenna was convicted and sentenced to 25 years of confinement by a military panel in mid February.  The Defense, through Attorney Jack Zimmerman, made a claim that the trial was inherently unfair because a prosecution expert agreed with the defense experts that the forensic evidence suggested that Ali Mansur was probably standing at the time that he was shot.  This was the central theme of the defense throughout the trial.  That Ali Mansur, although naked, had made a threatening move by standing up before he was shot by LT Behenna.  This, combined with the fact that Ali Mansur was a suspected terrorist, should have lead the military panel to find that LT Behenna was legally justified in killing Ali Mansur.

Judge Dickson during the mistrial motion and the military panel during the finding of fact had to weigh the direct testimony of witnesses against the expert testimony.  In this case, the experts of both the defense and apparently one from the prosecution were in direct conflict with the eyewitnesses, Harry the interpreter and SSG Mitch Warner.  In this case, there may be a reason that there was such a big discrepancy.

When this case was initially investigated, the Iraqi police were not the first on the scene.  Members of Ali Mansur’s family and friends initially arrived to inspect the body.  They tampered with the evidence, moved the body and moved the forensic evidence.  The main police video was taken on a handheld cell phone.  The evidence of the grenade fragments were turned over to the the Army’s Criminal Investigation Division by the Iraqi police after they had retrieved them from Ali Mansur’s family.  There was literally no chain of custody on much of the evidence.  At the Article 32 hearing, the Iraqi Pathologist misidentified Ali Mansur’s body and much of his autopsy seemed questionable.  And, finally, SSG Warner’s testimony was not fully explored until less than a week prior to LT Behenna’s trial.  Most of the experts, who rely on some eyewitness testimony to recreate their crime scenes, had little or not reliable evidence to work with.

This unreliable evidence, couple with conflicting eyewitness testimony, made it extremely difficult for the military panel to use experts as the basis for their final verdict.  Unfortunately for LT Behenna, the military panel was in a position where they had to use their own judgment to determine whether or not to believe the defense’s expert witnesses. 

This is why it may be difficult to determine whether or not the prosecution was out of line in not calling their own expert witnesses to the stand after the defense expert witnesses testified that Ali Mansur was probably standing at the time he was shot.  This evidence was already before the military panel and was in direct contradiction to the eye witness accounts of what happened.  For the purposes of the prosecution, they had a good faith basis to argue that Ali Mansur may not have been standing, unfortunately, this was due to the inept investigation of this case and the crime scene.  The Iraqi’s created much of the problem through their inability to secure the crime scene, create a solid chain of custody on all evidence and to properly label and photograph the crime scene.  This, in and of itself, may have hurt the defense more than anything else.

Judge Dickson’s recommendation that LT Behenna should have a reduced sentence should probably be appreciated by both the defense and the prosecution in this case.  As a Military Judge, Dickson is both experienced and wise.  By compromising the verdict, he has recommended a reasonable sentence, in the face of the military panels verdict, and the difficulties in compromised evidence.

Apache Attack near Karbala

I (www.jamesphillipslaw.com) was on the Assault Command Post (ACP) with the 101st Airborne Division during the ground offensive during Operation Iraqi Freedom. For a JAG Officer, I couldn’t imagine a better position.  I was a relatively junior officer, a first term captain, and I had landed a gig where I was doing what almost every JAG Officer dreams about.  I was with the 101st, calling the legality of fires in combat and working in the Command Post with MG Petraeus.

The 101st, commanded by MG Petraeus at the time, had two command posts.  The more mobile post was the ACP which moved quickly from one position to another.  The ACP was designed to be a tactical command post that was minimally staffed, but able to command the 101st for a day or two, while the Main CP set up.  The less mobile main command post followed closely behind, but was harder to set up and took a longer time to position. So, MG Petraeus was with us for most of the actual fighting.

The ACP had one staff member for each section of the command.  S-1, S-2, fire team, etc…, were all represent by a relatively junior officer in the ACP. The artillery officer that briefed the fire missions in the ACP was appropriately name Maj. Gunn.  He was a barrel chested Hispanic man, who took some time to warm up to me initially.  Typical of any artillery officer, he couldn’t understand how a JAG a place in a combat command post.  I had to agree with him and eventually, he and I became friends. Over time, I became “Harm” named after the character on the TV show JAG.

After the first ten days of the war, we had convoyed up into Southern Iraq.  The 101st was following closely behind 3rd ID and we had set up our ACP  somewhere outside of the city of Karbala. 

Now, before we left Kuwait, my mom had sent me a care package and in that package was chocolate gold.  I had approximately two hundred chocolate covered coffee beans.  Since we were not allowed the normal stimulants, I was forced to use the magic beans to keep me awake, and that they did.  I kept them safely hidden away during our assault on Iraq, because I knew that at some point I would have to stay awake for a very long period of time.

I started a 48 hour shift in the ACP the day before the 101st was going to do a helicopter assault on Karbala.  The day before, an attack helicopter assault had taken place, and during the assault of their 32 helicopters, 29 had come back filled with holes.  I believe two of the helicopters were actually shot down and the others were inoperable after the attack.

The Apaches had been all hit by small arms ground fire.  The issue was that during the First Gulf  War, Saddam Hussein had learned a little trick.  When our helicopters were passing over, if everyone on the ground fired their weapons into the air, they could fill the sky with lead.  Shear volume of bullets was bound to cause damage to many of our Apaches.  This is what had happened to the first air assault.

The problem was that the reading of our Rules of Engagement (ROE) passed down from the all knowing CENTCOM command seemed to suggest that the only way we could fire on civilians or areas with civilian on the ground was in self-defense.  Now, I did not then or now believe that that was the only analysis that could be used.  The helicopter pilots during their tactical briefing prior to flying into Karbala believed that they could not fire their HELLFIRE missiles because it was a disproportionate response to the small arms fire from the ground.  I did not agree with this interpretation of the ROE.

When we planned our air assault mission, I was asked by MAJ Gunn what was the legality of a SEAD fire mission.  The purpose of a seed fire mission is to create a firing corridor for the Apache helicopters.  The essential idea is that artillery and air strikes are laid down just a couple of minutes prior to the air attack.  The blast from the artillery and the air strikes keeps all enemy combatants in their holes and heads down so the helicopters can pass overhead.  MAJ Gunn was unsure of the legality of a SEAD fire mission but he felt it was essential to the ultimate success of the mission.

I agreed that it was both necessary and legal.  Part of this analysis was helped by the fact that by the time I had to make the call, I had been eating chocolate covered coffees beans, one after another for over two hours.  I was wired. But for me, the basic idea was that for a helicopter, laying down SEAD fire was a measure of self defense.  If a helicopter, which is a fairly vulnerable weapon platform is moving to contact with the enemy, there is a necessity to getting it safely to position.  If it is known that the enemy will fire prior to them getting into position, there is an argument that a SEAD mission is a mission of self-defense.  There is also another argument and that is that SEAD missions are not designed to kill enemy combatants or civilians, although this may be collateral damage and had to be balanced with the need for the mission, the SEAD fire itself is only designed, at least for this particular mission, to keep the enemy combatants from being able to fire upward.  In the ROE, this was neither self-defense nor an anticipatory attack and had fallen into a loophole in the ROE analysis.  Now, this may have been fixed later, but at that time, the JAG lawyers had not resolved the problem.

As the mission started, I watched as each helicopter was in position and flew toward Karbala.  The SEAD mission blasted holes in the corridor and the helicopter pilots reported back that they were not receiving any ground fire.  All of our helicopters came back that night.  We lost no pilots, no aircraft and there were only a few bullet holes to fix.  As a JAG, I knew that the call I made was correct and essential.

I just didn’t sleep for the next week.

SSG Warner heads home

I (www.jamesphillipslaw.com) spoke to SSG Mitch Warner’s family on Monday morning.  They solidly stand behind Mitch and are now beginning to gather the evidence required for us to put on an appeal for SSG Warner.  In speaking to them, they spoke of their disappointment with the US Army and the decision-making that lead to the death of detainee Ali Mansur by LT Behenna.

SSG Warner is now headed to Fort Sill, OK, where he will serve the balance of his seventeen month sentence.  He will be close to home and at least he will finally be finished with his combat tours.

One of the questions taht I have never gotten an answer for in this case is Why did LT Behenna’s higher headquarters and unit release Ali Mansur to 5th platoon?  This seemed extremely odd to me.  5th platoon had lost soldiers and had several wounded just a couple weeks prior.  Ali Mansur was a suspect in those killings and that IED attack.  5th platoon had gone out and picked Ali Mansur and took him into the detainee detention facility as a suspect in the death of the soldiers.

So, why in the world, when the higher ups had decided that Ali Mansur had no information and couldn’t be held for the attack, did the chain of command use the same platoon that picked him up as a suspected terrorist to drop him off to the local population?  There are no good answers.  One answer would be that the Chain of Command wanted LT Behenna to have someone kill Ali Mansur.  If there was a deliberate and conscious knowledge of Ali Mansur’s alleged AQI association, the COC may have thought that LT Behenna would find a way to have Ali Mansur killed.  They could have dropped him off with those Iraqis that wanted him dead.  They could have faked an incident or escape.  The expectation may have been that 5th platoon would find a way to get the job done.

But, I am not much of a conspiracy theorist.  The more likely answer is that this was just stupid negligence.  The Chain of Command should have known that there would be an issue with the drop off of this detainee, but they were just too busy or distracted to think of the clear implications of this drop off.

Either way, this was an event that should have been avoided.  The command had a responsibility to know that soldiers that have been under attack and have suspected terrorist in detention for those attacks are not the soldiers that should drop that detainee off to the local populace.  This is a no brainer.

SSG Warner and LT Behenna are now both serving time for a death of a detainee.  The trials of both men were complicated by the fact that they each knew that Ali Mansur was a suspected AQI member.  LT Behenna did have justification for the killing, but it probably wasn’t the justification that the US Army wants to hear.  Regardless, this whole event should have been stopped before it ever got started.  Another platoon should have done the drop off.  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

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.

Day Three LT Behenna Trial

I (www.jamesphillipslaw.com) had another opportunity to go out to watch today’s trial at Fort Campbell in US v. LT Behenna.  Today was in some ways a clear turning point for both the government case and for the defense. 

The government case concluded today with three very strong witnesses.  “Harry” the interpreter testified this morning and through his own interpreter came across as a fairly strong witness.  “Harry” went through the events which took place on 16 May 2009, describing the how 1LT Behenna shot and killed Ali Mansur in the desert outside of FOB Summerall.

Lead defense counsel Jack Zimmerman had a very good methodical cross on “Harry.”  He got Harry to say that Ali Mansur was a “Bad Man” or a “terrorist” numerous times.  He also was able to create a defense opening in the fact that Harry did not see several critical moments during the shooting.

Next, the Government called SSG Seate.  His testimony established that LT Behenna had spoken about the killing in the DFAC sometime later.  The conversation seemed to acknowledge the illegality of the act.  Zimmerman was able to get SSG Seate to say that LT Behenna was changed after the death of his men in April 09. This will later help establish that LT Behenna was very emotionally effected by the loss of his men in the April IED attack.

Finally, the government closed with SSG Warner.  I don’t want to comment too much on my client and his testimony other than to say that he was problematic for both the government and the defense.  Based on the questions that were asked by the panel of SSG Warner, they definitely considered much of what he said as substantive, despite Jack Zimmerman’s excellent cross, establishing SSG Warner’s potential biases.  Also, Jack Zimmerman cleverly was able to get SSG Warner to talk about the mandatory minimum of Life Imprisonment without parole for the offense of premeditated murder.  For the defense, this was an opportunity to remind the panel of their heavy burden in this case and to remind them that if they convict LT Behenna he will face the same mandatory minimums.

After SSG Warner’s testimony, the government closed.  They have presented a strong case, but left several doors open for the defense.  One of them being that Ali Mansur’s actions at the time of the shots being fired have not clearly been defined.

The defense presented two expert witnesses today.  The first expert witness was a pathologist out of Texas.  Essentially, he tried to establish that Ali Mansur was standing at the time he was hit with the first shot. The second expert witness was a crime scene re-constructionist.  He also attempted to establish that Ali Mansur was standing at the time he was hit with the first shot.  This was important because it would show that the physical evidence contradicts the testimony of  SSG Warner and Harry.

CPT Erwin Roberts crossed examined both expert witnesses effectively.  He was able to call into question their expert opinions by demonstrating that they may not have had enough crime scene date to make a correct opinion that was in direct contravention to the witnesses that testified. 

The panel seemed to pick up on CPT Robert’s cross, because their written questions to the expert witnesses were very much concerned which crime scene data was used for the expert opinions.

Update on LT Behenna Trial

I (www.jamesphillipslaw.com) was at Fort Campbell today and watched a portion of US v. Behenna.  The prosecution is three quarters of the way through their case.  The case so far has consisted of laying the foundations for proving the murder. The case seems strong, but the defense has yet to present their evidence and that will probably not begin until early Thursday morning. 

The panel members (or the civilian equivalent to a military jury) were fully engaged and very attentive today.   1LT Behenna’s panel consists of seven officers on the panel.  One woman and six  men have been selected for Behenna’s panel.  Four members of the panel are captains.  The other three are field grade officers.  A majority of the panel appears to have combat experience.

The prosecution will present the meat of their case tomorrow.  “Harry” the interpretor, who was with 1LT Behenna at the time of Ali Mansur’s death, is expected to testify.  He is expected to testify to witnessing Ali Mansur getting shot.  Strange as it may seem, if “Harry” follows his pattern from the Article 32 hearing, he will testify as the interpretor through an interpretor.  After “Harry” is done testifying, SSG Mitch Warner is expected to be the final witness in the prosecutions case.  He will also testify as an eye witness to the events that took place in the desert.

Jack Zimmerman, the civilian defense counsel for 1LT Behenna, vigorously fought any characterization of Ali Mansur’s death with the words “homicide” and “crime” today.  His defense team lodged several objections to the prosecutions characterizations of the death with any words that resembled a crime.  The argument may have seemed to be one of semantics to the panel, but the defense clearly was sending a message with the objections that they were objecting to the prosecutions entire case.  They are trying to focus the panel on the idea that this may have been a lawful killing.  They also do not want to have the panel  prejudge Behenna prior to them being able to put on their defense.

The defense will begin presenting evidence probably this Thursday.  They will probably follow up with their promises made during opening arguments, which will mean that they will put evidence on that will demonstrate that 1LT Behenna was not thinking clearly at the time of the killing.  They will also probably put on evidence showing that Ali Mansur may have been a suspected terrorist.

CPT Johnston, 1LT Behenna’s acting commander during the investigation, testified today regarding his preliminary investigation into the death of Ali Mansur. After his testimony, the panel presented the military judge with several written questions.  The questions presented by the panel were very thoughtful and seemed defense oriented.

The prosecution brought several witnesses to testify from Iraq.  The Iraqis testified through an interpretor. 

There were several journalists in the audience, but overall, the case has not drawn the media attention it probably deserves.