The Behenna Pardon Part 2: A Threat to Good Order and Discipline

The White House

In an earlier post, I exposed the false narrative that the White House press office advanced to support the President's decision to pardon Michael Behenna. Since then, Gene has uncovered information that indicates the basis for the pardon might have been prosecutorial misconduct. I may publish another post responding to that claim. I have serious doubts about its accuracy (as the reason for the pardon) and sufficiency (as a justification for the pardon), as indicated in my comment to Gene's post.

In this post, I want to address the serious threat to good order and discipline that this pardon creates. Although I summarized the essential evidence necessary to understand the case against Behenna, this post will explore this evidence (as summarized in the appellate decisions) in greater detail.

To support the pardon decision, the White House claimed Behenna had been a model prisoner. Behenna's actions related to the death of Ali Mansur [A.M.] were not those of a model officer or soldier. Indeed, the amicus brief signed by former military leaders stated: "Lieutenant Behenna's unauthorized actions in a combat zone were a serious breach of military discipline and for that reason, he should be subject to appropriate disciplinary action under the UCMJ." Although Behenna served significant prison time, the stigma of his conviction (but not the conviction itself) has been removed by the pardon. It is important to consider whether that was an appropriate result given his conduct.

Prior to the death of A.M., on April 21, 2008, insurgents attacked Behenna's platoon with an explosive device. Several members of the platoon were wounded. Two platoon members, a translator, and Iraqi civilians were killed.

On May 8, 2008, a local Iraqi leader told Behenna that A.M. was a terrorist. Behenna went to A.M.'s house, ordered him to lie on his stomach, and struck A.M. in the back repeatedly with his helmet. Behenna's platoon sergeant (PSG) entered the room and saw Behenna strike A.M.

Behenna eventually turned A.M. over to interrogators. After reviewing the report from the first interrogation, Behenna was unhappy with the information obtained. Because he believed A.M. had information about the insurgents that attacked his platoon, Behenna insisted that A.M. be interrogated again. Behenna was permitted to observe but not participate in the second interrogation.

On May 16, 2008, Behenna was ordered to return A.M. to Abu Toma and release him. Before departure and through an interpreter, Behenna told A.M. that they would talk later and that Behenna wanted three pieces of information from him. Behenna concluded by saying "If I don't get that information today, you will die today." At trial, Behenna claimed he was only trying to scare A.M.

Behenna's platoon traveled through Abu Toma without releasing A.M. He ordered the platoon to take a desert route back to their base because he wanted "to talk to [A.M.] in a remote, secure location." When Behenna found what he thought a good location, he ordered his platoon to stop. With his interpreter, Behenna retrieved A.M. from his PSG's vehicle. He asked the PSG if he had a thermite grenade. The PSG did not at that time, but later returned with one.

Behenna took A.M. to a deep railroad culvert over 100 meters from where the platoon convoy was stopped. He then engaged in the actions described in my earlier post: first pointing his weapon at and then shooting A.M. twice.

The interpreter testified that he did not see exactly what happened, but that he believed A.M. was still seated when the first shot was fired. The PSG moved toward the culvert after the first gunshot and saw the muzzle flash of the second. When the PSG reached the culvert, he testified that Behenna ordered him to throw a thermite grenade, which the PSG did. Behenna then told the PSG to take care of the clothes.

The autopsy revealed that the gunshot wound to A.M.'s head entered the right temple and came out the left side of his head on a level trajectory. The chest wound was under the right arm and also exited near the spine on a level trajectory.

After returning to the base with his platoon, Behenna asked the PSG if he was "cool." The PSG indicated he was. Behenna also discussed the difference between the moral and legal right to kill.

The interpreter later asked Behenna why he shot A.M. Behenna said it was because A.M. was involved in planting explosives. When two soldiers in the mess hall asked Behenna if he shot A.M., Behenna said that he had because he felt his platoon was in danger that night. Behenna also stated he would do it again and did not feel bad about it because he had lost two men.

At trial, Behenna claimed he shot A.M. because he thought A.M. was reaching for his weapon. He insisted that despite his earlier words and actions, he never intended to kill A.M., only to scare him.

By convicting Behenna of murder, the court-martial panel must have concluded his testimony was unreliable. Given the testimony of the other witnesses, it is easy to understand why.

To summarize, the evidence admitted at trial established that without lawful authority, Behenna assaulted an Iraqi civilian and later threatened that detainee--who had been cleared for release--with death if he did not provide certain information. Later, with his platoon watching and waiting, Behenna violated an order to release the detainee and instead took him to a remote location out of the platoon's sight.

In the presence of an interpreter and his PSG, Behenna threatened the detainee again, forcibly removed the detainee's clothing (ordering the PSG to help), and, even though the detainee offered no physical resistance, threatened a naked, docile detainee with a loaded gun. Behenna himself was in full battle gear, including his helmet, M-4 rifle, and Glock pistol. Behenna then shot the detainee twice, once in the right temple.

Behenna later justified his actions to his PSG, the interpreter, and to two soldiers in the mess hall using language consistent with revenge rather than self-defense. To be clear, even if it mattered as a moral or legal matter, the record does not establish that Behenna's beliefs about A.M. were accurate. Although there was plenty of reason for suspicion, there was apparently no direct information or evidence that A.M. was a terrorist or insurgent, or otherwise actually possessed the information Behenna sought.

Behenna's behavior was totally unacceptable conduct for any military officer. Leaders cannot claim authority to violate orders and laws based on their understanding of situational morals or ethics. They cannot act as judge, jury, and summary executioners when the law and unit policy require a different process. Leaders must set an example of honorable conduct, especially in battle.

This is why the former military officials stated that his actions were a "serious breach" of military discipline and required appropriate punishment. Through his actions, Behenna taught his subordinates that ignoring orders and the law is permissible when, in their individual view, it is the morally or ethically right thing to do.

Behenna's pardon sends a similar dangerous message that threatens good order and discipline. This is not the first time this President has indicated that he will support troops who face criminal sanctions for improper battlefield behavior so long as he agrees that their actions were justified or appropriate. Coming from a president who repeatedly stated that he thinks torture works and that the family members of terrorists should be killed, this is a serious concern. A pardon for clear battlefield misconduct undermines the authority of commanders who are responsible for controlling the actions of their troops in battle.