Joan Swirsky
Something terrible has happened to Michael
By Joan Swirsky
May 26, 2009

Imagine that you've learned in your local newspaper and on TV that a serial murderer is stalking and killing people in your community. Anxious and concerned for the safety of your family, you buy a gun.

Then your worst nightmare happens. Lying in bed and drifting off to sleep, you hear a loud sound downstairs — the unmistakable explosion of your front door being battered down and the menacing footsteps of an intruder climbing the stairs to your bedroom. You cock your already-loaded gun, and when the thug lunges at you, you shoot.

Now dead, he is positively identified as the man who murdered the other people in your town... and you are hailed as a hero.

You don't consider yourself a hero at all, but simply a regular citizen protecting his family. When polls are taken about what you did, 90 percent of people say they would have done the same thing, six percent say they would have "reasoned" with the intruder, and another four-percent said, "I don't know."


The contempt liberals and leftists have for physical self-defense is wedded to their rigid obeisance to non-violence. Last December, when my next-door-neighbor's 48-year-daughter and mother of three was gunned down in her own home in Missouri by two teenagers, her Leftist parents thought the solution to this kind of violence was gun control. When I told them that I wished their daughter had had a gun and "blown those thugs away," they said — in defense of their indefensible position — that "she couldn't have gotten a gun out fast enough." Huh?

But theory has no place in the real world of American soldiers who have volunteered to protect and defend our country and are faced not with neighborhood thugs but with Al Qaeda terrorists who have told the entire world that their Number One mission is to kill all the "infidels" — particularly Americans — who disagree with their Islamist agenda of establishing a Muslim-driven Caliphate of Islamic "law" in the Western world.

We saw this in all-too vivid action when 19 Saudi Arabian jihadists murdered nearly 3,000 people on September 11, 2001, in the World Trade Center Twin Towers in New York City. We saw this when we witnessed our enemies dancing in the streets as New Yorkers were burned alive or leapt to their ghastly deaths from the highest floors. We saw this as the stalwart defenders of American freedom were annihilated in the Pentagon, and as hundreds of innocent airline travelers plunged to the ground in Pennsylvania.

And we applauded the heroism of the men and women who immediately enlisted to fight this threat to our country, and continue to do so today.

One of those volunteers was Michael Behenna, who heard the call in 2006 while attending the University of Central Oklahoma. From a prominent family of public servants — his mother Vicki is an Assistant United States Attorney and his father Scott a retired Special Agent with the Oklahoma State Bureau of Investigation — Michael arrived in Iraq in 2007 and quickly rose to the rank of First Lieutenant.


But there are rare instances in which a member of our military is punished for doing what he was trained to do — subdue or, if necessary, kill the enemy. This is what happened.

In May 2008, a known member of an al Qaeda cell, Ali Mansur, was suspected of having organized an attack on the young Army Ranger's platoon, which killed two U.S. soldiers and injured two more under Lt. Behenna's command. For some unfathomable reason, Army intelligence ordered that Mansur be released and ordered Lt. Behenna, who was then 24, to escort the terrorist to his home.

On the way, Behenna questioned Mansur in an effort to learn additional information about other members of the terrorist cell, as well as who was financing it. During the interrogation, Mansur attacked Lt. Behenna, who killed the terrorist in self-defense.

But instead of expressing relief that one of their own had survived the attack, the government cast Mansur as the "victim" and prosecuted Lt. Behenna for premeditated murder! The following timeline was taken, in part, from the website that has been established in support of Lt. Behenna — — and confirmed by his mother, Vicki.

On February 23, 2009, Behenna went on trial. During the trial:

  • The government argued that Behenna executed Mansur while he was sitting on a rock, while Behenna said that he shot in self defense after Mansur stood up and tried to reach for the Lieutenant's gun during the interrogation.

  • A government expert, an Iraqi doctor who performed the autopsy, said that the bullets had a horizontal trajectory, suggesting a direct confrontation and not a scenario in which a defenseless Mansur sat helplessly on a rock while a standing Behenna shot him at a downward angle. In fact, both government and defense experts agreed on the trajectory of the bullets that killed Mansur.

  • In short order, the prosecution decided not to call to the stand another government expert, Dr. Herbert MacDonnell, but instead sent him home. But not before Dr. MacDonell told Behenna's defense attorney that he would have been a good witness for the defense.

  • While Dr. MacDonnell was picking up his coat in the prosecution room on his way out of the courthouse, he told the three prosecutors: "The explanation that Lt Behenna just testified to was the exact same scenario I told you yesterday. Lt Behenna is telling the truth."

  • Referring to Dr. MacDonnell's statement that he would have been a good witness, the defense counsel, Jack Zimmermann, asked the prosecutors if they had any exculpatory evidence that should be provided to the defense. (This is evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt.) But the prosecutors denied having any such evidence despite having been told by their own expert witness that Lt Behenna's explanation was the only logical explanation of the events that had transpired.

  • Because this evidence was withheld, the prosecutors were able to argue that Lt. Behenna executed Ali Mansur while the "victim" was seated on a rock — in spite of the testimony of forensic experts, including Dr. MacDonnell, who agreed that Mansur was standing with his arms outstretched when he was shot.

  • On February 27, 2009, Lt. Behenna was convicted of unpremeditated murder and assault by a military panel of seven officers — none of whom were combat arms.

  • Following the trial, Dr. MacDonnell contacted the prosecutors again, asking that the information he provided them be given to the defense.

  • After Dr. MacDonnell's e-mail was provided to the defense counsel, Mr. Zimmermann moved for a mistrial.

  • Judge Theodore E. Dixon promptly ordered both sides in the case to file briefs relating to a possible mistrial, and, after reading the briefs, set a date for an additional hearing and ordered additional briefs, including one from the defense requesting a new trial.

  • But on March 20, Judge Dixon denied the defense motions to declare a mistrial and to order a new trial and sentenced Lt. Behenna to serve 25 years in Leavenworth penitentiary.

Lt. Behenna's attorneys are appealing the verdict. It is Vicki Behenna's understanding that the General of the 101st Airborne will review Michael's case in the next several weeks, in which case he can set aside the findings of guilt, order a new trial, or reduce Michael's sentence. After the General's decision, Michael's case will be docketed in the appellate court, a process that can take from one-to-three years for the appeal to be heard.


There are those who believe that Michael was "sacrificed" for political reasons. Is it possible that the motive for failing to provide the exculpatory information had anything to do with our military's desire to be able to tell the Iraqi government that they had convicted an officer, the better to actualize some kind of quid pro quo arrangement or smooth over some ruffled feathers?

In my opinion, it's a miscarriage of justice for a soldier who is fighting for the Constitutional rights we hold dear — the right to due process and a fair trial — to be denied those rights in his own trial! And what about the demoralization this causes other U.S. troops, who continue to fight on behalf of the freedom and security of our nation? Whether they are U.S. border patrol agents, members of the armed forces, or FBI agents, no individual who is serving on the frontlines in the War on Terror should be afforded anything less than a fair trial.

The Behennas and their many supporters have mobilized to help Michael and they urge everyone to contact his or her elected official to make sure that justice is done. And because the government has limitless resources but they don't, they've established a Legal Defense Fund to help their efforts.

1LT Michael Behenna Legal Defense Fund
c/o Jack Dawson, co-trustee
100 Park Avenue, Second Floor
Oklahoma City, Oklahoma 73102-8099

Rachel Lawrence Mor, co-trustee
3037 N.W. 63rd Street, Suite 251
Oklahoma City Oklahoma 73116

Please read Legal Disclosure before donating.

They've also promised to send a Defend Michael Wristband for any donation of $20 or more.

© Joan Swirsky


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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