The U.S. Supreme Court does not take many military petitions, but 37 retired admirals and generals from all four service branches are strongly urging the justices to review the case of former Army Ranger First Lieutenant Michael Behenna.

Based on their decades of experience in combat zones and leadership at the highest levels, they contend in Behenna v. U.S. that a decision by the U.S. Court of Appeals for the Armed Forces (CAAF) "sets a dangerous legal precedent" for servicemembers that the justices should review and reverse.

Behenna, represented by Stanford Law School’s Jeffrey Fisher, is serving a 15-year sentence in Leavenworth for killing Ali Mansur, an Al Qaeda operative, while serving in Iraq in 2008. Mansur was suspected as being behind a deadly attack on Behenna’s patrol in which two soldiers were killed and others were wounded.

Mansur was picked up and interrogated by Army interrogators who, after failing to get information from him, ordered Behenna to return Mansur to where he had been picked up. Behenna also was ordered not to interrogate him.

During the return trip, Behenna decided to interrogate Mansur, took him to a culvert, removed Mansur’s clothes and handcuffs, and made him sit on a rock inside the culvert’s tunnel. Behenna pointed a handgun at Mansur while questioning him about the attack. What happened next was the subject of conflicting testimony at Behenna’s trial. Behenna claimed that he tried to scare Mansur into giving information by saying he had one last chance or he would die. When Behenna turned towards his translator, he heard a chunk of concrete hit the tunnel wall above his shoulder, and when he turned back, Mansur was reaching up for his weapon and getting up. Behenna fired two shots, hitting Mansur in the head and chest. Behenna testified he acted out of fear that Mansur was going to take his weapon and use it against him or his patrol.

A court-martial panel found Behenna guilty of unpremeditated murder. On appeal, a 3-2 majority of the CAAF found that Behenna "lost the right to act in self-defense as a matter of law" by using "unauthorized and excessive" force in the culvert before the shooting. His unauthorized use of force made him the initial aggressor, said the court, and while an initial aggressor can regain the right to self-defense if the other party escalates the degree of force, that was not the situation with Mansur.

Claiming a right


In the Supreme Court, Behenna asks the justices whether a servicemember in a combat zone categorically forfeits the right to self-defense as a matter of law by pointing a firearm without authorization at a suspected enemy.

"I think this decision just makes no sense," said M. Miller Baker, co-head of the appellate practice at McDermott Will & Emery who filed the amicus on behalf of the admirals and generals and a former Department of Defense official. "With all due respect to the court of appeals, the practical implications of this defy common sense."

Baker’s amicus brief says the court should grant review to clarify the basic right of self-defense by servicemembers in combat zones. "This Court has repeatedly granted review to clarify the defenses to civil liability for claims arising out of the performance of official duties by law enforcement personnel, government officials, and others," writes Baker. "The question presented in this case implicates an interest of servicemembers far more important than a defense to civil liability."

The CAAF, he adds, which assumed Behenna’s account of the incident was true, erred on two levels: "The CAAF’s categorical rule admits of no exception for military exigencies, which can sometimes justify servicemembers acting without authorization or even contrary to orders." And "the CAAF’s categorical rule gives servicemembers in foreign combat zones less latitude for self-defense than this Court’s cases give domestic law enforcement officers in Section 1983 and Bivens cases."

Baker said his clients do not vouch for the veracity of Behenna’s testimony. "But if you assume he’s telling the truth, then what was he supposed to do? That’s why these amici signed on. They’ve been in the real world of combat zones. They can appreciate the dangers this kind of decision creates. We contrast this situation with the Marine sergeant who got the Medal of Honor for defying his orders. That can’t be the test for whether you lose the right of self-defense."

Behenna is the son of an assistant U.S. attorney and an FBI intelligence analyst. His parents have lobbied tirelessly in the media and Congress and before parole panels for their son’s release.

More support

His case also has drawn support from the National Association of Criminal Defense Lawyers. Stephen Vladeck of American University Washington College of Law, who assisted in the organization’s amicus brief, said the Supreme Court has an obligation to exercise more error corrections in military justice appeals because collateral post-conviction review of military convictions in Article III courts is heavily circumscribed. Also, Congress in the Military Justice Act of 1983 expanded the Supreme Court’s appellate jurisdiction to ensure that the justices would exercise more of a supervisory role over the military courts than it does over criminal convictions obtained in federal and state civilian courts.

"If we go back to the time when the Supreme Court had no appellate jurisdiction over the military and it was understood there would be limited civilian oversight, one can understand the court’s reticence [to do more error correction]," explained Vladeck. "The problem is it’s just not the way the law is set up anymore. I don’t think the court’s docket has responded to the shift in the law. This is not what Congress would have expected in 1983.

"Here we have an important question of substantive criminal law that has no constitutional implications and virtually no applicability outside of the military. If ever there was a good vehicle to make our argument, this was it."

Fisher, Behenna’s high court lawyer, knew his client’s mother, the federal prosecutor. She and her husband initially asked Fisher to consult on his case but subsequently asked Fisher to be counsel of record.

One striking development in the last decade or so, said Fisher, has been the court’s willingness to step in and examine the specialized work of the Federal Circuit. "I’m hoping they will view the CAAF in the same way," he said. "Yes, they hear more cases than you [Supreme Court] do, but that doesn’t disqualify you, particularly in this kind of case. The majority’s absolute bar was hotly contested by two judges in dissent in an area of law of such importance. The Supreme Court ought to step in to say this isn’t an issue that’s going to percolate.

"I’m not a military expert myself, but we’re not talking special ops here. This is bread-and-butter criminal law principles that need to be applied to a battlefield situation."

Marcia Coyle can be contacted at mcoyle@alm.com.