The Michael Behenna Court-Martial: Self-Defense, Murder, and a Pardon

Self-defense is the most intuitive defense in all of criminal law: a person who reasonably fears for his life may use force to save it. The Michael Behenna case asks the harder question buried inside that rule. What happens when the person claiming self-defense is the one who created the danger in the first place? An Army officer pulled a detainee off an authorized route, marched him into the desert, stripped him, removed his handcuffs, and held him at gunpoint during an interrogation he had no authority to conduct. When the detainee was shot, the officer said he fired only because the man lunged for his weapon. The law’s answer, affirmed all the way up the military appellate chain, is that a person who provokes a deadly confrontation cannot then invoke self-defense to excuse the killing he made necessary. The case is also a lasting lesson in a prosecutor’s duty to hand over evidence that helps the accused, and in the presidential pardon power that ultimately erased the punishment without disturbing the verdict.

What happened

First Lieutenant Michael Behenna was a platoon leader in Delta Company, 1st Battalion, 327th Infantry Regiment of the 101st Airborne Division, deployed to Iraq in 2007 (Wikipedia, “Michael Behenna”). On April 21, 2008, his platoon was struck by a roadside bomb that killed two of his soldiers, Specialist Adam Kohlhaas and Specialist Steven Christofferson, and wounded others (NPR, May 7, 2019). Military intelligence linked an Iraqi man named Ali Mansur Mohamed to al-Qaeda in Iraq and to the attack, and Behenna’s platoon detained him. Within roughly two weeks, intelligence officers concluded the evidence was insufficient, and Behenna was ordered to return Mansur to his home village (SCOTUSblog, “The story of Michael Behenna and Mad Dog 5,” May 2013).

On May 16, 2008, instead of returning the prisoner as ordered, Behenna diverted the convoy and stopped at a railroad culvert near the oil town of Baiji (Wikipedia, “Michael Behenna”). There he conducted an unauthorized interrogation. According to the evidence at trial, Behenna stripped Mansur naked, removed his handcuffs, and questioned him at gunpoint about the IED attack while an interpreter relayed the exchange (SCOTUSblog, May 2013). Mansur was shot twice, in the head and the chest, and his body was left at the scene; a staff sergeant who was present later attempted to conceal the killing (NPR, May 7, 2019). Behenna’s account was that Mansur, sitting and unrestrained, threw a piece of concrete at him and reached for Behenna’s sidearm, and that he fired in self-defense. The prosecution’s account, supported by the interpreter, was that Mansur was being executed.

Behenna was charged with premeditated murder. At a court-martial that opened on February 23, 2009, a panel acquitted him of premeditation but convicted him of unpremeditated murder under Article 118 of the Uniform Code of Military Justice and sentenced him to 25 years of confinement (Wikipedia, “Michael Behenna”).

The legal lesson

The doctrine at the center of this case is self-defense and its limits. Military law, like civilian law, recognizes that a person who reasonably apprehends death or grievous bodily harm may use deadly force to protect himself. But the right is forfeited by the person who starts the fight. A service member who is the initial aggressor, or who through his own wrongful conduct provokes the confrontation, cannot claim self-defense for the force he then uses, unless he first withdraws and clearly communicates that withdrawal. This is the same family of reasoning that governs the wartime-killing cases collected around the rules of engagement.

What made Behenna’s self-defense claim legally untenable was that everything about the encounter was his own creation. He had authority only to release Mansur, not to interrogate, threaten, or detain him at gunpoint in a desert culvert. The military judge ruled, and the U.S. Army Court of Criminal Appeals and the U.S. Court of Appeals for the Armed Forces agreed, that by conducting an unauthorized and unlawful interrogation at gunpoint Behenna became the aggressor and lost the right to self-defense as a matter of law (United States v. Behenna, CAAF, July 5, 2012). As the appellate analysis framed it, Behenna “brought about the situation” that supposedly required him to kill, and a defendant in that position cannot point to the danger he manufactured as a justification (SCOTUSblog, May 2013). Whether Mansur was sitting or standing, and whether he reached for the weapon or not, the court held that the answer did not matter once Behenna was established as the initial aggressor in an interrogation he had no lawful authority to conduct. The CAAF affirmed the conviction in a 3 to 2 decision (Wikipedia, “Michael Behenna”). The lesson is that self-defense is a shield for the person who is attacked, not for the person who escalates an unlawful confrontation and then shoots his way out of it.

The second doctrine the case teaches is the prosecution’s constitutional duty to disclose favorable evidence, the rule that traces to Brady v. Maryland. The government had retained Dr. Herbert MacDonell, a nationally known bloodstain-pattern analyst, as a consulting expert. After reviewing the forensic evidence, MacDonell concluded that the wounds were most consistent with Mansur being shot in the chest while standing with an arm outstretched, and then in the head as he fell, a reconstruction that matched Behenna’s self-defense account rather than an execution (SCOTUSblog, May 2013). MacDonell did not testify, and his opinion was not turned over to the defense before he left the trial, where he told defense counsel he would have made a good witness for them (Wikipedia, “Michael Behenna”). The defense moved for a mistrial. The military judge denied it, and the CAAF later held that the failure to disclose, while a Brady concern, was not material enough to require reversal because the defense had presented its own forensic experts to similar effect (United States v. Behenna, CAAF, July 5, 2012). The case became a widely cited example of how the disclosure duty operates, and where courts draw the line between a violation and a reversible one.

Outcome and why it matters

After his conviction, the Army Clemency and Parole Board reduced Behenna’s sentence from 25 years to 15, and he was granted parole and released on March 14, 2014, having served less than five years (Wikipedia, “Michael Behenna”). His appeals, including a petition the U.S. Supreme Court declined to hear, were exhausted, and the conviction stood.

On May 6, 2019, President Donald Trump granted Behenna a full pardon (CNN, May 6, 2019). The White House cited the Army appellate court’s stated “concern about how the trial court had handled Mr. Behenna’s claim of self-defense,” the sentence reduction and early parole, his record as a model prisoner, and a brief signed by 37 generals and admirals supporting him (NPR, May 7, 2019). Civil-liberties groups objected; the American Civil Liberties Union called the pardon “a presidential endorsement of a murder that violated the military’s own code of justice” (NPR, May 7, 2019). The Behenna pardon was the first in a sequence of clemency actions Trump took in 2019 for service members convicted or accused of wartime offenses, a group that also included Lorance and Gallagher.

The case matters for two reasons that outlast the controversy over the pardon. First, it is one of the clearest modern statements of where self-defense ends. The defense fails not because the fear was unreal, but because the law refuses to let a person profit from a deadly situation he wrongfully set in motion, and that principle applies on a battlefield interrogation no less than on a street corner. Second, a pardon does not unmake a verdict. The finding that Behenna unlawfully killed Ali Mansur, and the appellate rulings that he had forfeited self-defense, remain on the record as a matter of law; what the pardon forgave was the punishment, not the conviction. The legal lesson the court-martial wrote is still standing.

Sources

• Wikipedia, “Michael Behenna,” https://en.wikipedia.org/wiki/Michael_Behenna
• Tom Dreisbach, “Trump Pardons Michael Behenna, Former Soldier Convicted Of Killing Iraqi Prisoner,” NPR, May 7, 2019, https://www.npr.org/2019/05/07/720967513/trump-pardons-former-soldier-convicted-of-killing-iraqi-prisoner
• “The story of Michael Behenna and Mad Dog 5: ‘Self-defense’ in war,” SCOTUSblog, May 2013, https://www.scotusblog.com/2013/05/the-story-of-michael-behenna-and-mad-dog-5-self-defense-in-war/
• United States v. Behenna, U.S. Court of Appeals for the Armed Forces, July 5, 2012, https://www.armfor.uscourts.gov/newcaaf/opinions/2011SepTerm/12-0030.pdf
• “Trump pardons former Army soldier sentenced for killing Iraqi prisoner,” CNN, May 6, 2019, https://www.cnn.com/2019/05/06/politics/trump-pardon-us-soldier-iraq

This article is an educational overview of a historical court-martial and is not legal advice.