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.