This is the fourth update in the continuing saga of the imprisonment of an American infantry officer for "murdering" a Taliban fighter in Afghanistan. If you are new to this story, you may review my previous postings:

Original Posting: Who is more deserving of justice than the men & women who fight to defend our freedom?

Update 1: Parole hearing scheduled

Update 2: Parole denied

Update 3: Government dragging its feet in responding to Supreme Court

The following was broadcast by Lt Behenna's parents in an email:

To all the thousands of Michael supporters,

Just a quick update to let you know that the Government filed their Response to Michael's Petition before the Supreme Court.  Michael's lawyers now have ten days to file a Reply to the Government's Response. The Supreme Court will then set Michael's case for Conference (hopefully by June) and decide whether to grant Certiorari which means a review by the whole Supreme Court.  For the Supreme Court justices to grant Certiorari from the Court of Appeals for the Armed Forces would be the first time a military petition has reached this stage - so prayers for discernment for these nine Justices are certainly welcomed. 

An encouraging tidbit was that Michael's case was selected by the Supreme Court Blog as the petition of the day for May 1st - http://www.scotusblog.com/2013/05/petition-of-the-day-446/

We ask that you spread this email and please continue to tell Michael's story.  Have your friends and neighbors sign Michael's petition at http://www.petitiononline.com/MBehenna/petition.html .  If they want to further assist, please have them contact their Congressional Representatives and Senators and let them know that Michael has served enough time in prison and deserves the same freedom you and I all enjoy.  To locate your state’s Representative's / Senators click on the following link: http://www.usa.gov/Contact/Elected.shtml

Lastly, Michael will ‘celebrate’ his 30th birthday on May 18th behind the prison walls of Fort Leavenworth.  We’d like Michael to receive no less than 500 birthday cards and well wishes to let him know that despite this being his fifth birthday in prison he is anything but forgotten.  You can mail your cards to:

Michael Behenna  87503

1300 Warehouse Road

Ft. Leavenworth, KS  66027-2304

Bless you all for your support of our son,

Scott & Vicki Behenna

www.defendmichael.com

“The only thing necessary for the triumph of evil is that good men do nothing.”   (John F. Kennedy)

“The only thing that makes life possible is permanent, intolerable uncertainty: not knowing what comes next.”  (Ursula Le Guin)

In this third posting about the plight of Army Lieutenant Michael Behenna, convicted of murder and serving a twenty-five year sentence in a federal penitentiary, we learn that the government is dragging its feet in filing an answer to an appeal now pending before the Supreme Court. The following is the content of an email received from Lieutenant Behenna's family. It includes a link to a amicus brief filed on behalf of several high ranking officers who contend that the decision in Lieutenant Behenna's case sets a dangerous precedent for all armed forces personnel serving in combat.

THE GOVERNMENT HAS received another extension of time to answer Michael’s Supreme Court petition and now their response is not due until the end of April.  We have seen glimmers of hope in our most recent efforts… such as the Supreme Court requesting the Government to answer Michael’s petition, a rare occasion with a military case; or the 37 Generals and Flag Officers signing an Amicus Brief which lent a great deal of credibility to Michael’s argument that a Soldier should not lose his right to defend himself in a war zone.    

Literally thousands of you have stood by Michael and our family these past four years as we fought our way through the military justice system.  It has been a slow, painful, and frustrating process, but you have continued to provide us with strength and hope through your prayers, letters and emails.  As we near the point where the Supreme Court will make their epic decision as to whether they will hear Michael’s case, your prayers and encouragement for Michael are needed more than ever!!! 

The legal battle has been costly in lost time, treasure, and disappointment, but your support has been endless.  Thank you so much for continuing to help fund Michael’s legal battle. The lawyers have done an excellent job in making their argument to the Supreme Court about why Michael’s case is so meaningful, but there are still other potential briefs to be written before the Supreme Court could find the necessity to overturn Michael’s conviction.

To read the incredible Amicus Brief signed by those 37 Generals and Flag Officers, including a former chief of Naval Operations, a recent commander of NATO forces in Afghanistan, a former NATO Supreme Allied Commander, and five retired four-star generals, click on the following link:   www.caaflog.com/wp-content/uploads/Behenna-Brief-of-Retired-Flag-and-General-Officers-et-al-2.pdf

In the coming days and weeks we will keep you informed about the movement of the Supreme Court case and any new developments.  In the meantime please continue to support Michael’s cause, sign his petition, and push your friends to Michael’s web site at www.defendmichael.com.

To close I wanted to share the last lines from one of Michael’s favorite poems - Tennyson’s Ulysses.

Tho' much is taken, much abides; and though we are not now that strength which in old days moved heaven and earth; that which we are, we are; one equal temper of heroic hearts, made weak by time and fate; but strong in will to strive, to seek, to find, and never to surrender.

With your help we will continue to strive, to seek, to find….and with absolute determination, to never surrender in our quest to gain Michael’s freedom. 

Sincerely,

Scott and Vicki Behenna

www.defendmichael.com

-----------------------------

Links to:
Original posting : Justice Denied
First Update : Request for Parole
Second Update : Parole Denied

The latest email from the family and freinds of Lieutenant Michael Behenna brought bad news. Let's hope for a better outcome in his appeal to the Supreme Court.

To the thousands of Michael supporters,

With heavy hearts we must inform you that all our efforts to get clemency for Michael this year were for naught.  The Army Clemency and Parole Board listened to our family’s plea concerning the facts and circumstance’s surrounding Michael’s case and decided four years in prison was not enough.  The Clemency Board did not question us about Michael’s case, character, or whether he was a threat to society, so we are left to wait another year for an opportunity to petition for his freedom.

We truly thought this year would be different; that this year we would finally get our son back where he belongs.  It is hard to convey the grief and despair we feel over this latest setback.  It is only the love and support of all of you and our deep abiding faith in a Higher Power that sustains us through these dark days.  I know all of you are equally disappointed and frustrated by the decision of the Parole Board.  We still remain cautiously optimistic regarding Michael’s Supreme Court petition as we await the government’s response which the Supreme Court requested by February 27th.

Please pursue requests to your Congressmen and Senators to contact Oklahoma Congressman James Lankford to seek a path to a Presidential commutation.   To find your Congressional Delegation click on the following link:  http://www.usa.gov/Contact/Elected.shtml.

Finally, please offer a prayer up for Michael and our family as you watch this Ballad written in his honor:  http://www.youtube.com/watch?v=IMbytddDjWI.

With you at our side we will continue this fight until our son is home.

Respectfully,

Scott & Vicki Behenna

Proud parents of 1LT Michael Behenna

http://www.defendmichael.com

I received the following email from the family and friends of Michael Behenna who is currently incarcerated at Fort Levinworth for murdering an Al Queda terrorist. I reported the circumstances of his case in an earlier posting. (See Who is more deserving of justice than the men & women who fight to defend our rights?) They appeared before the Army Clemency and Parole Board. The following is a report of that presentation as well as the continuing effort to have the case retried. Unfortunately, the Army panel can only release him from prison. They cannot clear his name.

To the thousands of Michael supporters,

Last week we traveled to Washington DC to present Michael’s case before the Army Clemency and Parole Board.  Michael’s younger brother Brett, two years out of law school and a county prosecutor in Oklahoma, made the main presentation to the Board. 

Brett opened his presentation with a video of the latest recipient of the Congressional Medal of Honor Dakota Meyer receiving his medal.  He pointed out that Dakota disobeyed four direct orders to stay at his post while his platoon was in a firefight in a nearby Afghan village.  But as Dakota Meyer would later explain, one has to be guided by principle and that more important than following orders is your brotherhood.  Brett told the Board that both Dakota and Michael violated orders, but both men did so to protect their fellow soldiers.  No one knows the outcome of a decision they make, but when Soldiers/Marines are guided by the principle of protecting their troops, the outcome of a decision should not determine if one will be praised as a hero and the other branded a criminal.

Brett told the Board that the four years Michael had already spent in prison was enough given the facts of the case:  1) Ali Mansur was a member of an Al Qaida cell, known to be involved in planting roadside IED’s, 2) that Michael did not kill Mansur out of anger or hatred, but because Mansur lunged for his gun, and 3) that the reason Michael was interrogating Mansur in the first place was he wanted to prevent another IED attack on his men by questioning the very person he believed was responsible for an IED attack that killed two of his soldiers. Brett then walked the Board through the tenants of corrections (Incapacitation, Rehabilitation, Deterrence, and Retribution or Punishment) and stated that Michael had satisfied each of these tenants and that neither society, the Army nor Michael would benefit from further incarceration.  He asked the Board to commute the rest of Michael’s sentence to time served.

The Parole Board, which was comprised of Colonel’s and civilians, was very complimentary of Brett’s presentation.  One Board member even commented that ‘he had done his brother proud.’  He most certainly made his parents proud!  Amazingly the Board also told Brett to thank Michael for his service to his country and how he had conducted himself over these last four difficult years in prison.  That thank you was a first in four years of fighting for Michael’s freedom in the military justice system.

Here is a link to a video interview Brett did after leaving the hearing.  It is worth watching and only takes a minute to load:

http://newsok.com/multimedia/video/2149647165001

Also, here is a copy of a letter from the entire Oklahoma Congressional Delegation in support of Michael:

http://s3.amazonaws.com/content.newsok.com/documents/behennaf7.pdf

And finally, here is a copy of a news article about the Clemency Hearing:

http://newsok.com/mercy-justice-overdue-in-michael-behenna-case/article/3752205/?page=1

We should get an answer from the Parole Board in the next two weeks so please keep Michael in your thoughts and prayers.  As always, thank you for all your support of a young man we are proud to call our son.

Respectfully,

Scott & Vicki Behenna

Proud parents of 1LT Michael Behenna

http://www.defendmichael.com

A MISCARRIAGE OF JUSTICE has placed an American soldier behind bars at Fort Leavenworth, Kansas. The Military Justice System has failed him. Now, only you can bring justice to this young man. You need to write and call your Representative in Congress and your Senators, as well as the President of the United States. You have to encourage your friends and family to join you in this desperate fight. Lastly, you should write to this young man. Like the bugle call of cavalry riding to the rescue, your letter will give him the will to remain strong in the hope that his salvation is on its way. 

First Lieutenant Michael Behenna was convicted by a court martial after he killed a suspected terror operative. He is now serving 15 years at Ft. Leavenworth for a crime that many believe was an act of self defense. In a video aired on PJTV, Behenna's parents joined Colonel Allen B. West to discuss their son's trial, and the existence of exculpatory evidence that should acquit their son. 

The interview of Lieutenant Behenna's parents goes well beyond an impassioned plea for justice. Both parents have strong criminal justice backgrounds. His mother is a Federal Prosecutor who worked on the Timothy McVey case in the bombing of the Federal Office Building in Oklahoma City, and his father is an intelligence analyst for the Federal Bureau of Investigation. (Click here to Watch the Interview )

You should also visit the website created by Lieutenant Behenna's family and friends to help publicize this case at Defend Michael. In addition to the evidence of Lieutenant Behenna's innocence, this website offers a petition that you may sign to further help his case.

One of the more disturbing revelations that came to me in a brief email exchange with Lieutenant Behenna's family is that terrorists incarcerated at Guantanamo Bay, Cuba, have access to computers and the Internet that is denied to this American soldier. I had made the offer of sending free copies of my books to help him pass the time in prison while others work to secure his freedom. I suggested that he might appreciate my journals of my own experiences in the military as well as my novel featuring an Airborne Ranger like himself. Unfortunately, my books are only available on e-readers and computers and he is denied access to those while the terrorists are given access to computers and Skype.

One of the principal flaws in Lieutenant Behenna's case was the fact that prosecutors withheld exculpatory evidence provided by their own witnesses. It is hard to blame such behavior on misfeasance or the incompetence of the prosecutors. It is too basic an error. However, it is dangerous to charge the prosecutors with malfeasance at a time when Lieutenant Behenna's best chance of exoneration lies in the hands of their superiors.

Generally, prosecutorial misconduct arises from political pressures. Either the prosecutors themselves or their superiors are seeking some political advantage that may arise from a conviction in a highly visible case involving a heinous crime that has shocked a community or when the defendant can be used as a scapegoat for some political action that has proven unpopular. Certainly, the war on terrorism has become the focus of public discontent and politicians are beginning to look for cover from the fallout that is certain to ensue when Afghanistan returns to Taliban rule. Unfortunately for the current Administration, they now own that war and blaming it on their predecessor, George Bush, has been overused. The Army and its sister services may soon find themselves in the crosshairs.

Again, this is a debate better left for another time. We don't want to deny justice to Lieutenant Behenna by focusing on the political aspects of the case until after he is exonerated.

Click here to Find Your Representative 

Click here to Find Your Senator 

Click here to Contact the President 

Send books, money orders and your letters of support to:

Michael Behenna #87503
1300 N. Warehouse Road
Fort Leavenworth, KS 66027-2304

A MEMORANDUM OF RECORD was the military's instrument of choice for covering your ass with paperwork. I learned its power in my last assignment as the Operations Officer in the Strategic Communications Center for USARPAC (United States Army Pacific) Headquarters while we were automating our terminal to interface more efficiently with ARCNET.

ARCNET was the forerunner of ARPANET (which led to INTERNET). It was a system of switches built and maintained primarily by the U.S. Navy, but used by all branches of the U.S. military and the State Department. Up until that time – the late 1960s – messages were punched on paper tape, the same tape used in TTY (teletype) transmissions. The tapes were slowly fed into a TTY reader and then translated into binary code, dissembled into data packets, and enciphered for transmission over secure circuits. After racing around the world, the data packets were reassembled into complete messages, deciphered, and slowly printed out on paper tape and printed.

The two instances of the adverb “slowly” in the preceding description may have caught your eye. Yes, we had bracketed a high speed computer system with two instances of an archaic one. The goal then was to replace the TTY technology with an automated system in the strategic communications centers.

The Navy, of course, felt they should take the lead in the project to automate the terminals inasmuch as they already “owned” the backbone of the system. The State Department as well as the sister services felt it was their turn to lead the way. The result was a competition.

I came to the project in 1969 when it was on the verge of failing. The Army's Automated Communications and Message Processing System (ACAMPS) was failing its tests. So too were the systems built by the Navy and the Air Force. The problem we discovered in our case was that the systems analysts had been cut along with the budget and the separate programs refused to integrate. (For the computer illiterate: the pieces of the system worked but not together.) The new management team (of which I was a member) decided to patch the pieces together rather than starting all over – an effort for which we did not have the budget. Surprisingly, it worked and we put it on line successfully in 1970.

Before we launched it, however, I discovered a small glitch – ACAMPS was programmed to send all Flash messages regardless of security classification to a printer in the Tactical Operations Center. Stop! Before your eyes roll up in their sockets and you pass onto another web page, let me define some terms so that you may understand the rest of this story.

Precedence: All strategic communications are handled in order of their importance.

• FLASH – Messages that take precedence over all others requiring immediate attention, including those containing information regarding imminent peril to the nation, its citizens or armed forces.
  
  
• IMMEDIATE – Messages that require immediate attention, but not so much that a delay would involve peril to the nation or its citizens or armed forces.
  
  
• PRIORITY – Messages usually containing information, usually of an administrative nature, taking precedence over routine messages.
  
  
• ROUTINE – Self described.
  
  

Prior to ACAMPS, FLASH messages were hand-carried to the Tactical Operations Center as soon as they were received. Obviously, is seemed advantageous to have these self-print in the TOC as soon as they arrived. However, this could raise problems if the FLASH messages contained information for which TOC personnel were not cleared.

Classification: All strategic communications are handled by authorized personnel only. Thus, all are clearly marked for their level of clearance.

• UNCLASSIFIED: May be viewed by anyone.
  
  
• FOUO: (For Official Use Only) Not to be communicated outside official channels or offices. May be viewed by anyone in those channels or offices.
  
  
• CONFIDENTIAL: Restricted to those persons cleared for Confidential information and having a need to know.
  
  
• SECRET: Restricted to those persons cleared for Secret information and having a need to know.
  
  
• TOP SECRET: Restricted to those persons cleared for Top Secret information and having a need to know.
  
  

Acronyms such as SIOP-ESI, CRYPTO, SPECAT, NOFORN, etc are not security classifications, but rather special instructions limiting access to persons cleared for them. EYES ONLY is a special example of special handling. Although the personnel manning our Tactical Operations Center all had TOP SECRET clearances, none of them had pre-approved access to documents designated for such special handling.

Here is the problem that I identified. ACAMPS was programmed to send all FLASH messages to the Tactical Operations Center without blocking any requiring special handling.  

When I raised this issue I was asked if I had ever seen a FLASH message so classified and I said “no.” Inasmuch as we were significantly over budget and out of time, my betters decided to ignore the problem. 

When I persisted with my objection, I was told to write a Memorandum for Record and I did.

Now, if you have stayed with me this long, you deserve a reward and here it is. You have reached the interesting part of the story.

I was awakened in the middle of the night by a call from my NCOIC at the Communications Center requesting my immediate presence. I dressed and hoped on my bicycle and was there in minutes to find that a FLASH message had arrived, EYES ONLY CINCPAC (Commander-in-Chief, Pacific) – that was Admiral John McCain. Ordinarily, his messages all went through the Navy's Communication Center, but they were off line for repairs. Although the switch held all messages for an off-line terminal for several hours, they forwarded FLASH messages to the alternate – my Communications Center.

I immediately went to the Tactical Operations Center and asked for admittance to recover the message and “sanitize” the printer (clear all copies and replace the ribbon). Although I had authority to enter their facility (my clearances were vastly superior to theirs) and I had a need, I was refused. The officer on duty claimed that he had already destroyed the message. When I insisted on retrieving the ashes and sanitizing the printer, he took umbrage. I went back to my office and wrote out a form request which he also denied. He also refused to respond in writing to my formal request.

As it was getting close to morning, I decided to wait for my commanding officer and we went through the whole thing again with the same results.

I can't divulge the contents of the message, but I was not surprised to learn of a dust up that occurred at Admiral McCain's morning briefing when the Army's representative, a major general, mentioned to the CINCPAC his regrets at hearing the news of his son.

Admiral McCain didn't become CINCPAC by being slow-witted. “What news?” he is reported to have asked.

Of course, the praetorians went looking for someone to crucify – someone with responsibility for maintaining the security of classified messages and having the lowest rank – me. Unfortunately for the next person up the chain of command, I was armor-plated. I had covered my ass with paperwork.

Surprisingly, the general who took the brunt of McCain's displeasure was man enough to admit that he should have listened to me.