They are the forgotten warriors of the Iraq War, the men whose lives and families and careers blew up in “murder” charges on a vicious battlefield, the pieces coming down in Fort Leavenworth’s military prison where the men serve long sentences. These are the Leavenworth 10, not always at Leavenworth and not always 10, a group of cold-luck cases still working their way up the ladder of appeals and the clemency process.
They got bad news recently when the Army Court of Appeals denied Army Ranger 1st Lt. Michael Behenna, 28, a new trial despite exculpatory evidence originally withheld by the prosecution.
Behenna faces 13 more years of a 15-year sentence for the unpremeditated 2008 “murder” of an insurgent who killed two of his men, an al Qaeda terrorist for whom the Army would issue a kill/capture order before realizing he was already dead.
Why no new trial?
At almost the same time, Assistant Secretary of the Navy Juan Garcia overruled recommendations from the Naval Clemency and Parole Board and from brig officials at Miramar Marine Corps Air Station that Marine Sgt. Lawrence Hutchins, 27, be granted early release.
Hutchins has served more than five years of a 15-year-sentence that was reduced to 11 years. The sentence was once recommended to be cut to five years, and once thrown out (he spent nine months free starting in June 2010).
He faces the balance of the 11-year-sentence for conspiracy and unpremeditated “murder” of a man he believed was the killer of Marines and civilians. Why no parole?
I put quotation marks around “murder” because this was a war zone — a chaotic, urban war zone where counterinsurgency’s restrictive rules of engagement failed to impress jihadists or their clans with America’s good intentions, and the schizoid mishmash of firepower, nation-building, harsh interrogations, bribery, police work, social work made our forces pawns of an untenable policy. These young men shouldn’t be the ones to pay for that policy.
The two cases are different, but they share more than miscarriages of justice. They both stem from a basic counterinsurgency flaw: the notorious process known as catch-and-release in which U.S. forces risked their lives to “arrest” insurgents only to see them released to kill again for “lack of evidence.”
In these two cases (and others), catch-and-release served as a common trigger of events. Behenna had to drive home the very insurgent responsible for the improvised explosive device that recently killed two of his men.
He decided to perform one more interrogation himself during which the insurgent rushed him, at which point Behenna fired. This is the self-defense scenario supported by the prosecution’s own forensics expert. It was suppressed at Behenna’s trial and ignored on appeal.
Hutchins’ case is more complex, involving an eight-man plot to “snatch” and kill a “prince” of the insurgency. Again, it was catch-and-release, and not for the first time, that lit the fuse for his squad.
They later decided to fake an incident in which the released “prince’s” killing would be ROE-lawful. While Hutchins waited in ambush, the wrong man was seized, the squad shot at him and then covered up the incident. No Marine was confined for more than 525 days except Hutchins (11 years).
Hutchins also drew a rebuke from Navy Secretary Ray Mabus, who, while Hutchins appealed and sought clemency, slandered him as a premeditated and indiscriminate murderer.
Hutchins’ lawyer, Maj. Babu Kaza, points out that Hutchins was found guilty of neither allegation and that Mabus’ unprecedented public comments constitute “undue command influence” on the workings of justice.
At least that’s what the military calls these judicial nightmares. Do you?
Examiner Columnist Diana West is syndicated nationally by United Media and is the author of “The Death of the Grown-Up: How America’s Arrested Development Is Bringing Down Western Civilization.”
