The Michael Behenna Court-Martial: Self-Defense, Murder, and a Pardon
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Army First Lieutenant Michael Behenna shot and killed an Iraqi detainee, Ali Mansur, in a desert culvert near Bayji on May 16, 2008. He had been ordered to return Mansur to his village. Instead he took him to a remote spot, stripped him, and questioned him at gunpoint. Behenna testified that Mansur threw a piece of concrete and reached for his pistol, and that he fired in self-defense. A general court-martial acquitted him of premeditated murder but convicted him of unpremeditated murder and assault. He was sentenced to dismissal, 25 years of confinement, and total forfeitures. In 2012 the Court of Appeals for the Armed Forces affirmed, 3 to 2. The majority held that even on Behenna’s own account he was the initial aggressor and had lost the right to self-defense as a matter of law. He was paroled in 2014, and President Trump pardoned him on May 6, 2019. The opinion is a detailed appellate statement of how an aggressor loses self-defense under military law. It also shows how a disclosure failure by the prosecution can be found immaterial.
The Behenna Record in Brief
| Item | Record |
|---|---|
| Accused | First Lieutenant Michael C. Behenna, U.S. Army, platoon leader |
| Event | May 16, 2008, a culvert off the desert route near Bayji, Iraq |
| Deceased | Ali Mansur, a detainee ordered released after two interrogations |
| Findings (2009) | Not guilty of premeditated murder; guilty of unpremeditated murder (Art. 118) and assault (Art. 128) |
| Adjudged sentence | Dismissal, 25 years, forfeiture of all pay and allowances |
| Convening authority | Reduced confinement to 20 years |
| CAAF (July 5, 2012) | Affirmed, 3 to 2; Judge Stucky for the majority, Senior Judge Effron and Judge Erdmann dissenting |
| Clemency and parole | Army Clemency and Parole Board reduced the sentence to 15 years; paroled in 2014 |
| Pardon | Full pardon, May 6, 2019 |
What the Record Shows
The facts below come from the opinion in United States v. Behenna, decided by the Court of Appeals for the Armed Forces (CAAF) on July 5, 2012. On April 21, 2008, an explosive device detonated near Behenna’s platoon, and he “saw several individuals in his platoon injured or killed by the blast.” A draft intelligence report linked Mansur to the group believed responsible. Mansur was interrogated twice, and then “Appellant was ordered to return Mansur to Albu Toma.”
On the day of the release, Behenna told Mansur: “If I don’t get that information today, you will die today.” He “admitted the scare tactic was unauthorized”. He ordered the platoon onto the desert route because he wanted “to talk to Ali in a remote, secure location.” At the culvert, Mansur’s clothes were cut off, his zip ties were removed, and he was made to sit on a rock or piece of concrete. Behenna “pointed a loaded pistol at him to frighten him into providing the information.”
Behenna testified that while he looked at the interpreter he “heard a piece of concrete hit over his left shoulder”, turned, and “saw him reaching for the pistol” from two or three feet away. He stepped toward the entrance and fired twice. Mansur was shot once in the head and once in the chest, and “the order of the shots was a contested issue.” The interpreter, outside the culvert, “did not see exactly what happened before the shots were fired.” According to Sergeant Warner, Behenna then told him to “[t]hrow it”, and Warner tossed a thermite grenade toward the body. Behenna later testified that he said nothing immediately after the shots.
How an Aggressor Loses Self-Defense
Rule for Courts-Martial 916(e) allows deadly force when a person reasonably apprehends that death or grievous bodily harm is about to be wrongfully inflicted. The limit is in R.C.M. 916(e)(4). In the current Manual (2024 ed.), the right is lost “if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred.” CAAF stated the doctrine this way: an initial aggressor regains the right “if the other party escalates the degree of force, or if the initial aggressor or the mutual combatant withdraws in good faith and communicates that intent to withdraw.”
The court applied each step to Behenna’s own testimony.
| Question | CAAF's answer |
|---|---|
| Was he the initial aggressor? | Yes. He "deviated from his assigned duty to return Mansur to his home, without authority," then "stripped the detainee naked and forced him to sit on a rock" while interrogating him with a loaded pistol |
| Could Mansur escalate the force? | No. Behenna "had already introduced deadly force", and in any event "a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol" |
| Did Behenna withdraw? | No. Nothing in his testimony "indicated that he clearly manifested an intent to withdraw" |
| Result | "a rational member could have come to no other conclusion than that Appellant lost the right to act in self-defense and did not regain it" |
The court also said what it was not doing. It noted that Behenna “was not in an active battlefield situation” and that his counsel “conceded that Appellant was not seeking a special privilege based on Appellant’s status as a soldier”. The court applied “basic criminal law concepts.”
The Manual’s Discussion to R.C.M. 916(e)(4) draws the contrast. “A person does not become an aggressor or provocateur merely because that person approaches another to seek an interview, even if the approach is not made in a friendly manner.” The Discussion adds that the right is not lost “If the approach is made in a nonviolent manner”. Behenna’s approach was a threat of death delivered over a loaded pistol, and CAAF cited the Manual’s example of an offer-type assault: “if Doe points a pistol at Roe and says, ‘If you don’t hand over your watch, I will shoot you.’ Doe has committed an assault upon Roe.”
The Instruction Error That Did Not Matter
The military judge gave an instruction on losing and regaining self-defense that CAAF held was wrong. It linked lawful force and escalation with “and” when the law requires “or”. The court found the error “harmless beyond a reasonable doubt because escalation was not in issue.” The instruction was, in the court’s words, “superfluous”, because Behenna had lost the right to self-defense as a matter of law.
The two dissenting judges disagreed with that approach. Senior Judge Effron wrote that “The responsibility for determining what actually happened — the crime of murder or justifiable self-defense — rested with the members of the court-martial panel.” The disagreement is about who decides: the panel under a correct instruction, or the appellate court applying the law to the defendant’s own version of events.
The Undisclosed Expert
The prosecution had retained Dr. Herbert MacDonell as a consulting expert and did not call him. After hearing Behenna testify, MacDonell came to believe Behenna’s account. As he left for his flight, “he told defense counsel he would have been a great witness for them.” On the day the members returned their findings, he emailed prosecutors: “It certainly appears like Brady material to me.” The defense moved for a mistrial.
CAAF assumed the information was favorable and not properly disclosed, and held it immaterial. Evidence is material when “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” The court gave three reasons it was not. The members had already rejected premeditation. Self-defense was lost as a matter of law even on Behenna’s version. And MacDonell’s opinion overlapped with two defense experts who testified that Mansur was standing when shot. “The difference between Dr. MacDonell’s opinion and the other experts’ opinions was negligible.”
Parole and Pardon
CNN reported that the White House statement announcing the pardon said “the Army Clemency and Parole Board reduced his sentence to 15 years and paroled him as soon as he was eligible in 2014”. The statement also said “the U.S. Army’s highest appellate court noted concern about how the trial court had handled Mr. Behenna’s claim of self-defense”. NPR reported that the pardon meant Behenna “no longer faces the restrictions that would have come with being on parole through 2024.”
The American Civil Liberties Union’s Hina Shamsi, quoted by CNN, called it “a presidential endorsement of a murder that violated the military’s own code of justice.” She said “The military appeals court found Behenna disobeyed orders, became the aggressor against his prisoner, and had no justification for killing a naked, unarmed Iraqi man in the desert, away from an actual battlefield”.
Self-Defense Belongs to the Person Attacked
Self-defense protects the person attacked, not the person who created the danger by unlawful force. A service member who points a loaded weapon at a detainee and threatens to kill him is an aggressor under R.C.M. 916(e)(4). A desperate grab by an unarmed, naked man does not restore the right, because the aggressor had already introduced deadly force. Nor does a step toward the exit, unless it clearly communicates withdrawal. On disclosure, the case shows the materiality test at work. Withheld evidence must create a reasonable probability of a different result, and an opinion that adds little to what the defense already presented does not meet it. The pardon removed the remaining punishment and the parole restrictions. The appellate holding on aggressors remains the court’s statement of the law.
Sources
- United States v. Behenna, No. 12-0030 (C.A.A.F. July 5, 2012) (PDF)
- CNN, “Michael Behenna: Trump pardons former Army soldier sentenced for killing Iraqi prisoner”, May 6, 2019
- NPR, “Trump Pardons Michael Behenna, Former Soldier Convicted Of Killing Iraqi Prisoner”, May 7, 2019
- Manual for Courts-Martial, United States (2024 ed.), Part II, R.C.M. 916(e) and Discussion.
This case study describes a public court-martial record, the appellate opinion that reviewed it, and the pardon that followed. It is educational information, not legal advice.