This post explores the story of the case of Michael Behenna, whose petition for certiorari the Justices will consider at their May 30 Conference.

Twenty-four-year-old Michael Behenna, a First Lieutenant in the U.S. Army, had been leading his seventeen-man platoon – known as “Mad Dog 5” – for six months.

On April 21, 2008, the men of Mad Dog 5 donned their gear and strapped into three newly issued, seventeen-ton MRAPs – “Mine Resistant Ambush Protected” trucks the color of sand. They had orders to investigate a suspected training camp for insurgents north of Baghdad in Salaam Village, a scrubby desert town spotted with shaggy goats.  The platoon arrived early and accomplished its task without incident. The soldiers interrogated some “questionable” men and detained them in their MRAPs for transport. With the rest of the day still ahead of them, Mad Dog 5 headed east, back towards the main road, in search of goats to chase and children to befriend (a favorite platoon pastime).

Specialist Steven Christofferson, twenty years old and standing just five feet, four inches tall, lost a coin toss and was stuck manning the gunner’s turret on the roof of the third vehicle. His boots were planted on a case of Gatorade to give him the height he needed to peer out of the turret. Below Christofferson, the soldiers in the truck’s main compartment joked and made fun of country music, which three of the men – including Adam Kohlhass, a twenty-six-year-old father and avid turkey hunter from Kentucky – were always singing.

The driver of Christofferson’s MRAP didn’t see the IED. As it detonated, the vehicle somersaulted and crashed down on its roof in a cloud of smoke and dust.  The force of the explosion rocketed an axle off the driveshaft, hurling it into the desert sky where it hung for a moment before slamming down.

The driver of the second vehicle threw it into reverse. Some of the men in that MRAP didn’t even wait for him to stop before jumping out and running towards the explosion. Someone shouted into the radio, “Mad Dog 5 has been hit!” When the wounded MRAP settled to a stop it was empty, with its former passengers – depending on their injuries – either limping out of the smoke or lying in the dust around the wrecked vehicle.

Christofferson had been thrown the farthest away from the wreckage. He landed face up, his mouth and brown eyes agape, hands at his sides with fingers crumpled.   The lower half of his body was gone.  Kohlhass was dead too, although he didn’t look it. He had barely a scratch. His lips were still quivering as the men from the second vehicle got to him. But then he was gone. Internal injuries, they would learn.

After the dead and wounded were removed from the scene and the wind from the medevac helicopters had died down, there was silence.   Michael Behenna paced the area surrounding the blast and collected equipment. Sorting through the debris he found the Iraqi phrasebook he’d lent Christofferson. Not long ago he’d called the young warrior a “padawon,” a Jedi in training.  As far as he knew, no other soldiers had been killed while riding in the new heavy-duty MRAPs. What he did know was that the men were his responsibility.  Now their fear would be too.

***

Behenna grew up in Edmond, Oklahoma, outside of Oklahoma City. The oldest of three sons born to Vicki, a federal prosecutor, and Scott, an Oklahoma Bureau of Investigations officer and former collegiate football player, Behenna was a natural athlete. He idolized Michael Jordan and the Chicago Bulls. He had a poster of Jordan in his room, and Michael Jordan valentines for his schoolmates.  Jordan was the best. And Behenna wanted to be the best too.

But his young life was punctuated by violent trauma. When he was four, his father was shot and injured in the line of duty, and when he was twelve his baseball coach was  killed in the Oklahoma City bombing. When the September 11th attacks occurred, Behenna was still in high school.  He wanted to enlist, but his parents talked him into going to college first, so he enrolled at the University of Central Oklahoma. He didn’t join the Reserve Officers Training Corps (“ROTC”) there right away, but he started working out with them and found that he liked the community.

“At first he wasn’t really all that interested in ROTC but he thought ah, let me give it a shot,” recounts Lieutenant Colonel Tony Taylor, for whom Behenna worked at Fort Campbell in the fall of 2008.  “He enjoyed it, so he immersed himself completely in the profession.  He and I talked and he feels that things would have obviously been a lot different if he didn’t continue to pursue it, he was on the fence about committing to it . . . and, I don’t know,” Taylor paused, before adding, “everything happens for a reason.”

On May 16, 2008, just a few weeks after the IED attack, Michael Behenna shot and killed an Iraqi man named Ali Mansur. A draft intelligence report from April 27 of that year identifies Mansur as an explosives transporter for the local Al Qa’ida cell, and as an informant to the cell leader.  Some weeks before the attack, Behenna had received a call from someone named Ali warning him to avoid Albu Toma or else harm would come to his platoon. Additionally, a source that had tipped Behenna off to an explosive device planted along the road the platoon used (which was avoided) had also mentioned Mansur’s name in connection with those plans. On May 5, 2008, Behenna met with the local sheikh, with whom he was friendly, and the sheikh identified Mansur as a terrorist.  Based on this intelligence, Mad Dog 5 subsequently went to Mansur’s house, where Behenna isolated Mansur in a room and ordered him to lie down on his stomach. Mansur cooperated. Mansur did not, however, provide the information that Behenna asked for when Behenna began questioning him.

Mansur was turned over to Army intelligence officers, who interrogated him – although not about the IED attack.  Mansur was detained for ten days, during which he said little of interest; the declassified report from the interrogation describes his hobby of buying and selling cars.  Behenna was frustrated with the lack of information gleaned about the attack when he reviewed a transcript of the initial interrogation and requested that Mansur be interrogated again.  Intelligence officials agreed, and Behenna was present for the second interview, although he was not allowed to directly question Mansur. The second interview did not yield any additional information about the source of the attack.

The ground rules for detaining insurgents at the time, the so-called “catch-and-release” policy, allowed the U.S. military to detain and hold an individual for a long period of time only if it had solid evidence – such as “photographs of the detainee at the crime scene” or “statements written by first-hand witnesses to the criminal activity.”  Because there was no such evidence against Mansur, he was released.  In a fateful turn of events, Behenna’s platoon was ordered to return Mansur and another detainee to their homes.

Behenna steadfastly believed that Mansur had information about the attack on his platoon that the interrogations had failed to extract. After Behenna had received the order to release Mansur, but before he had loaded the trucks to leave, Behenna told Mansur that he would be questioning him again later that day and that Mansur would die if he didn’t give Behenna the information he was looking for. This scare tactic was a direct violation of his orders.

The convoy dropped off the other detainee and continued on to Albu Toma, where Mansur lived. The convoy did stop there, but not to drop off Mansur. Instead, Behenna met with the local sheikh, who had previously identified Mansur as a terrorist.  After leaving the sheikh’s, in violation of his orders, Behenna redirected the platoon back into the desert.

Behenna stopped the convoy in an isolated area of the desert and led Mansur, blindfolded, away from the rest of the platoon. A translator and the platoon sergeant accompanied Behenna and Mansur to a railroad culvert roughly three hundred feet away from where the platoon was waiting. At the culvert, Behenna told Mansur once again that he wanted information about the IED attack. When Mansur once again pleaded ignorance, Behenna and the sergeant stripped Mansur naked except for his sandals; Behenna removed Mansur’s zip-tie handcuffs with a knife, cutting Mansur as he did so and prompting the translator to offer his help.

Behenna ordered Mansur to sit on a slab of cement and began interrogating him. After one to two minutes of questioning with no answers to his liking, Behenna took out his Glock pistol and pointed it at Mansur, an action that a military judge would later call an “assault.”  Sensing the imminent threat of shots, and fearing that he might be in the line of a ricocheting bullet, the translator moved outside of the culvert, about thirty feet away from Behenna and Mansur.   With his gun trained on Mansur, Behenna told Mansur again (in Arabic) that he would die that day unless he told Behenna who was responsible for the IED attack that killed his men, “This is your last chance,” Behenna told him, although at that moment he only had the authority to release Mansur, and not to intimidate, question, or kill him.

“I will talk,” Mansur said in Arabic.  Behenna was unfamiliar with the words Mansur used and turned to the translator standing outside the culvert for an explanation. As he turned, Behenna heard a piece of cement strike the culvert behind him.

At this point, Behenna’s story departs from the account provided by his translator. At his trial, Behenna testified that after he heard the concrete strike the culvert, he turned back to Mansur, who had stood up and was reaching for Behenna’s handgun. According to his translator, however, Mansur remained seated and made no sudden movements, although he said in trial that he “didn’t see exactly” what happened.  Either way, before Behenna could get the translation of what Mansur said, he fired two lethal shots – one to the chest, one to the head – into Mansur.

1.5 inches = approximately 5 miles. "FOB Summerall" refers to Behenna's base. "Mansur found" refers to the culvert. "Mesra" is an Army check point. The red dot above "Mansur's house" is Albu Toma.

1.5 inches = approximately 5 miles. “FOB Summerall” refers to Behenna’s base. “Mansur found” refers to the culvert. “Mesra” is an Army check point. The red dot above “Mansur’s house” is Albu Toma.

Behenna was court-martialed and charged with premeditated murder.  He was subsequently convicted of the lesser offense of unpremeditated murder and sentenced to twenty-five years in prison.

During the trial, an expert witness hired by the prosecution told the Army lawyers that, based on his forensic analysis, he agreed with the sequence of events presented by the defense. But the expert did not testify at trial, nor was his view provided to the defense as part of the prosecution’s obligations to disclose favorable evidence.  However, the expert contacted the defense to let them know that he agreed with Behenna’s version of events, prompting the defense lawyers to move for a mistrial.

The conviction and sentence nonetheless stood, because a divided panel of the U.S. Court of Appeals for the Armed Forces held that, regardless of the sequence of events and whether Mansur was sitting or standing when Behenna shot him, Behenna was the initial aggressor in the conflict and therefore had given up his right to self-defense.  That court found that in the moments before the shooting, Behenna’s use of force was “unauthorized and excessive”;   Behenna “brought about the situation that resulted in the necessity to kill another.” Thus, even if Mansur did throw a chunk of concrete at Behenna and then try to take his gun, the majority reasoned, because Mansur was merely reacting in a situation in which Behenna had all the power, Behenna was not entitled to a self-defense instruction for what he had done.

The two dissenting judges saw things very differently.  In their view, to determine whether a self-defense instruction is appropriate, a court must consider whether “the circumstances justified the use of force to save the service member’s life from an attack by a person suspected of supporting the enemy.”  The dissent pointed out that Behenna was not charged with violating a specific order or regulation. In considering whether Behenna’s verbal and physical threats constituted deadly force or were instead a pretense to get Mansur to talk, the dissenting judges emphasized that the military judge did not conclude, “as a matter of law or fact, that [Behenna’s] interrogation techniques constituted the use of deadly force or that [his] conduct otherwise precluded a self defense instruction.”

Behenna is in Kansas now, at the disciplinary barracks at Fort Leavenworth, waiting for the Court to announce whether it will review his case.  In his petition for certiorari, Behenna’s lawyers argue that his case sets a dangerous precedent for other soldiers fighting insurgents, and they warn that the categorical curtailment of a right to self-defense in combat zones gives members of the armed forces less protection to respond to deadly threats than civilian police officers.

Opposing review, the government argues that the lower court’s ruling did not create a categorical rule barring soldiers from relying on the self-defense theory; rather, it merely held that based on the facts of his case, Behenna “forfeited his right to self-defense when he became the aggressor against his prisoner.”  The government contends that at the time of the May 16 shooting, Behenna and Mansur were not in an “active battlefield situation.”  For Behenna’s shots to qualify as self-defense, the government argues, Mansur would have needed to “escalate” the level of force in his conflict with Behenna.

According to the government, it is a settled legal principle that the question of escalation of force arises in the self-defense context when the initial aggressor uses non-deadly force and the victim responds with deadly force. But escalation would have been impossible in this circumstance, the government maintains:  how could a lone naked man possibly escalate a conflict with an armed soldier who had told him that he would kill him if he didn’t get what he was after?  Moreover, the government notes, Behenna did not argue that Mansur escalated the level of conflict and did not ask for an escalation instruction during the court-martial.

Petitions for certiorari are rarely granted; last year, the Court took only seventy-four of the more than ten thousand cases it was asked to hear.  Petitions seeking review of a decision by the U.S. Court of Appeals for the Armed Forces face even longer odds.  Even rarer than cert. grants, however, are murder convictions against U.S. soldiers in a combat zone.  Given that, it’s worth asking how Behenna found himself imprisoned.

Between 2007 and 2008, nine servicemen, including Behenna, were convicted of unauthorized killings. CNN investigated one such incident, which occurred in Iraq in 2007:  three decorated officers were convicted of the premeditated murders of four detainees. In the interrogation tapes that CNN obtained, one of the convicted men explains to an army interrogator that the policy of catching suspected terrorists, only to release them when photo evidence or witness statements against them weren’t available, was not working: “Seems like, even if you do your job and take these guys to the detainee center, they just come right back . . . The same [expletive] guys shooting at you.” CNN reported that of the 87,011 detainees captured during the Iraq war, 76,985 were released.

The Justices will consider Behenna’s petition at their May 30 Conference.

Special thanks to Michael Wilkerson, who graciously allowed me to see an advance copy of his documentary about Mad Dog 5.

Posted in Behenna v. U.S., Cases in the Pipeline, Featured

Recommended Citation: Kali Borkoski, The story of Michael Behenna and Mad Dog 5: “Self-defense” in war, SCOTUSblog (May. 29, 2013, 5:49 PM), http://www.scotusblog.com/2013/05/the-story-of-michael-behenna-and-mad-dog-5-self-defense-in-war/