The Behenna Pardon Part 1: A False Narrative

Pres. Donald J. Trump

President Donald J. Trump's decision to pardon Army First Lieutenant Michael Behenna is troubling on many levels. In this post, I will outline how the White House press office's portrayal of the case is misleading. It advances a false narrative surrounding the case rather than accurately conveying the evidence adduced at trial, the decisions of the military officials familiar with that evidence, or the true concerns of former military officials.

In a future post, I plan to address how this pardon creates a clear threat to good order and discipline and the rule of law. It is a potential license for service members to place their own views of situational ethics or morality over the law and superior orders. It creates a risk that service members will ignore orders and rules in the hope that they can generate sympathy and convince political leaders to support or grant a pardon.

At his 2009 court-martial, undisputed evidence established that Michael Behenna killed an unarmed, naked Iraqi man, Ali Mansur [A.M.], who Behenna believed to be involved in an insurgent attack against his platoon. Behenna shot A.M. twice, once in the chest and once in the head. Reliable evidence also established that Behenna then ordered a subordinate to toss a thermite grenade near the victim's body and to dispose of the victim's clothes.

Prior to the incident, A.M. had been interrogated twice and, lacking sufficient evidence to hold him, military authorities ordered his release. Earlier on the day of A.M.'s planned release, Behenna had threatened to kill A.M. if A.M. did not provide the information Behenna wanted.

Behenna later violated the release order and decided to interrogate A.M. further. Behenna took his platoon and A.M. to a remote desert area. When A.M. would not provide the information Behenna demanded, Behenna ordered a member of his platoon to help cut off A.M.'s clothes. An interpreter removed A.M.'s hand restraints. Behenna then pointed a loaded pistol at A.M.

At this point, Behenna claimed that he had turned his head and was temporarily distracted by the sound of concrete hitting somewhere near him.  Asserting that he believed A.M. was reaching for his weapon, Behenna shot A.M. in what he argued was an act of self-defense. According to the appellate courts, no other fact witness's testimony supported these assertions. Conversely, witnesses testified that Behenna admitted to shooting A.M. in an act of revenge. Although defense forensic experts argued that the available evidence supported Behenna's version of events, they admitted other explanations were plausible.

After hearing all of this evidence, a panel of military officers convicted Behenna of murder and assault. They sentenced Behenna to 25 years of confinement, forfeiture of all pay and allowances, and dismissal from the service.

On appeal, the Army Court of Criminal Appeals found five issues that "warrant[ed] discussion but no relief." A majority of the Court of Appeals for the Armed Forces also found errors at Behenna's trial to be harmless beyond a reasonable doubt.

The Army Clemency and Parole Board reduced Behenna's sentence to 15 years. It also granted him parole at the earliest opportunity, just 5 years into his sentence.

Despite this strong evidence and affirmation of guilt, the White House press release announcing the pardon claimed that "Behenna's case has attracted broad support from the military, Oklahoma elected officials, and the public."  It added that "[t]hirty-seven generals and admirals, along with a former Inspector General of the Department of Defense, signed a brief in support of Mr. Behenna's self-defense claim." Like many statements from this White House press office, these assertions are deceptive.

First, the White House press office's suggestion that "the military" supports Behenna's pardon is ambiguous and highly misleading. "The military" officials responsible for good order and discipline in Behenna's unit chose to prosecute him for murder. "The military" officers who actually heard the evidence convicted him of murder. "The military" officials and courts up to and including the Court of Appeals for the Armed Forces (CAAF) upheld that verdict. While some members of the military may be sympathetic to Behenna's case as they (perhaps erroneously) understand it, "the military" officials most familiar with the available evidence clearly supported Behenna's conviction and punishment.

Second, the generals and other officials cited by the White House did not "support" Behenna's "self-defense claim." The amicus brief to the Supreme Court (which ultimately declined to hear the case) bearing their signatures twice expressly took "no position" on whether Behenna's claim was "truthful."

Instead, the amicus brief (likely unknown to these officials) misrepresented and then expressed concern about the CAAF's application of self-defense principles to Behenna's situation. The brief falsely claimed that the CAAF reached a "categorical" ruling that would prevent service members from being able to defend themselves on a battlefield any time they violated orders. It hyperbolically asserted that the CAAF decision would, "as a matter of law," require service members "to flee . . . rather than defend themselves." Even a cursory reading of the majority opinion demonstrates the fallacy of this claim.

In fact, the majority opinion clarified: (1) that Behenna's case did not involve "an active battlefield situation," (2) that the victim "was not then actively engaged in hostile action against the [U.S.] or its allies," and (3) "that there were no other military exigencies in play." The CAAF majority also noted that at oral argument Behenna's counsel "conceded that Appellant was not seeking a special privilege based upon Appellant's status as a soldier or presence on the battlefield." Behenna's case involved a detainee who was "hors de combat" or "out of the fight" and therefore protected from violence, not an enemy fighter in battle.

In short, the amicus brief significantly misrepresented the CAAF majority's decision and reasoning. In any event, that brief did not "support" Behenna's self-defense claim, as the White House erroneously claimed.

There is no question that the White House press office misled the public about Behenna's case. Whether it did so intentionally or not is immaterial to the detrimental effect that the decision to grant this pardon could have on good order and discipline and the rule of law. I will address these topics in a future post.