Tag Archives: Baghdad

Military Injustice: Remembering Michael Behenna’s Story

EDITOR’S NOTE: Though I lost many of the dozens of articles I wrote about a Soldier from my home state of Oklahoma and the tragic situation that consumed his life (See paragraph six of this piece for details about the losses), I managed to save the article below which I share again, only slightly modified since being published three years ago today. Please read and share.

Then-1st Lt. Michael Behenna

Then-1st Lt. Michael Behenna

I’m on the road right now, but when I came across some terrible news this afternoon that I simply had to share:  The U.S. Army Court of Criminal Appeals rejected the appeal of Michael C. Behenna of Edmond, Okla., and upheld his murder conviction and 15-year prison sentence at the U.S. Military Disciplinary Barracks at Fort Leavenworth.

Who is Michael Behenna?  He is the Army Ranger first lieutenant who, on July 31, 2008, was charged with the premeditated murder of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad.  He is the one-time leader of the 18-member Delta Company, 5th Platoon of the Army’s 101st Airborne Infantry Division who, seven months later, was convicted of unpremeditated murder and sentenced to 25 years confinement — later reduced to 15 — at Fort Leavenworth.

Why do I staunchly support Lieutenant Behenna?  Because even the government’s top witness, Dr. Herb MacDonell — a man who wasn’t allowed to testify after new evidence was shared with him and he told prosecutors he believed the young officer was innocent.

Below is an excerpt from a December 2009 post, one of the more than four dozen posts I’ve written about Lieutenant Behenna’s case, that outlines the forensics expert’s position:

An e-mail Dr. Herbert Leon MacDonell sent to Capts. Meghan Poirier, Jason Elbert and Erwin Roberts — Army prosecutors all — just after 4 o’clock in the afternoon Feb. 27, 2009, should have warranted their attention for several reasons, but they opted to treat the information it contained in exactly the same manner as they had treated it when delivered in person a day earlier.

Largely as a result of the prosecutors’ decisions, Army Ranger 1st Lt. Michael Behenna is now serving a 20-year sentence at Fort Leavenworth after being convicted by a seven-member court-martial panel of unpremeditated murder in the shooting death of Ali Mansur, a known Al-Qaeda operative.

Why should the prosecutors have paid attention to what Dr. MacDonell had to share with them?

For starters, they should have paid attention, because Dr. MacDonell is the expert witness in blood stain forensics they had flown to Fort Campbell, Ky. to testify in the case. Now serving as director of the Laboratory of Forensic Science in Corning, N.Y., Dr. MacDonell’s expert forensics career spans five decades and includes such high-profile and complex cases as the assassinations of President John F. Kennedy, Sen. Robert F. Kennedy, Martin Luther King Jr., and the case against O.J. Simpson. In other words, he’s no slouch when it comes to investigations.

For reasons inexplicable, prosecutors opted not to call upon Dr. MacDonell to testify in the case; therefore, he was never able to share with the court something new he had learned about the case — something vital that prosecutors had not shared with him.

Thanks, however, to the fact that he sent that single e-mail, Lieutenant Behenna’s parents, Scott and Vicki Behenna, now hold on to an ever-so-slim hope that they can bring an end to the family nightmare involving their son, now 26.

Read the unedited text of Dr. MacDonell’s e-mail message below and judge for yourself whether you think Lieutenant Behenna deserves, at a minimum, a new trial or, more appropriately, a full presidential pardon:

Friday, February 27, 2009
4:07 p.m.

Dear Captain Poirier:

I came home to an incredible pile-up of work but I shall try to send an invoice to you within a few days. On that issue I should advice you that I may have exceeded what was appropriate because of staying two nights rather then one. My estimate for my total cost was based on one night there but I shall still try to keep the total within your budget even if I have to reduce the number of hours I spent here in preparation for my testimony.

On another issue I am somewhat concerned that I did not testify and have a chance to inform the court of the only logical explanation for this shooting. As I demonstrated to you and to the two other prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers?, from the evidence I feel that Ali Mansur had to have been shot in the chest when he was standing. As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle. Admittedly, this would be an amazing coincidence, however, it fits the facts and as I told you on Wednesday, it fits the facts and I can not think of a more logical explanation.

This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9mm flattened out bullet which was tumbling after leaving Mansur’s head or body. I do not know where this bullet was recovered but I would expect after impact to the concrete wall it fell very close to that wall. The other bullet should have been close to the first and there should have been two impact points on the wall.

On Thursday afternoon when I heard Lt. Michael Behenna testify as to the circumstances of how the shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. I am sure that had I testified that I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant’s story fit the physical facts. This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence so I hope that, in the interest of justice, you informed Mr. Zimmerman of my findings. It certainly appears like Brady material to me.

It was a pleasure meeting you and your team and I learned one thing; the military life is not for me. You guys are getting up about the time we go to bed.

Respectfully Submitted,

Dr. Herbert Leon MacDonell, Director
LABORATORY OF FORENSIC SCIENCE

This photo is one of several Dr. MacDonell examined.

This photo is one of several Dr. MacDonell examined.

The details above offer just a snippet of the injustice that has befallen this young officer and his family.  In another post, Photos Show Scene Where Trail of Injustice Began, I shared photos of the shooting scene as well as the text of the sworn affidavit (below), dated April 21, 2009, in which Dr. MacDonell explains how knowledge he obtained while waiting to testify in the case could have changed dramatically its outcome:

I was retained by the government to testify as an expert witness in bloodstain analysis. On 16 December 2008 I received a FedEx package from Captain Megan Poirier. It contained ten envelopes of photographs and reports as well as a video of the scene. Included was a report by Barbara Liveri, and the autopsy report done by an Iraqi doctor. Prior to trial, I told the government that using only the photographs at the scene and the nature of the surfaces where the bloodstains were located made it difficult to reach any definitive conclusions. I had been contacted before trial by Jack Zimmerman, one of the lawyers for First Lieutenant Behenna and told him the same thing. I was set to travel to Fort Campbell on Wednesday, February 25, 2009, to return on Friday, February 27, 2009. I was called and asked to come a day earlier, which I did. I sat in on the testimony of Dr. Paul Radelat and Mr. Tom Bevel. They testified on Wednesday.

At a recess on Wednesday, I was in the prosecutor’s office in room 13 in the courthouse. While talking with Dr. Berg about the bullet wounds Ali Mansur received, Dr. Berg gave me information I previously did not have. Dr. Berg told me that the wound trajectories for both the chest wound and the head wound were horizontal and essentially parallel.

After thinking about this new information, I did a demonstration to show the only logical explanation which was consistent with the autopsy findings, the bloodstains, the final resting position of the body, and the time between shots. I had Sergeant MacCauley stand directly in front of me, and facing me. I asked him to raise his right arm a little and then I poked my right index finger in to the right side of his chest under his arm and said, “Bang! You have just been shot, so drop down.” The sergeant dropped to his knees and as his head passed in front of my finger, I said, “Bang! You have been shot again.” I remarked that this was consistent with the physical evidence. All three prosecutors, Captains Poirier, Roberts, and Elbert were present when I gave this demonstration and informed them of my opinion.

On Thursday morning during one of the breaks I examined the 9mm bullet and saw it had struck a hard object while traveling backwards. This is consistent with the bullet tumbling as it exited on of Ali Mansur’s wounds. The uniformity of the extruded lead into a disk-like configuration shows it was traveling in a horizontal trajectory if the surface it struck was a flat, very coarse, vertical surface. Logically, that could have been the culvert’s concrete wall.

On Thursday afternoon, the day after this demonstration, I listened to Lt. Behenna testify. I had seen no written statement made by him. This was the first time I learned what he said had happened. After Lt. Behenna described the shooting, I turned to Dr. Berg and told him, “That is exactly what I told you guys yesterday.” There was a recess about 5:00 pm and Lt. Behenna was still on the witness stand. I was told by Captain Poirier that I would not be needed, and a flight was arranged for me for that evening. I told Captains Poirier and Roberts that I could stay another day if necessary. They told me my testimony would not be needed and I could leave to get my flight.

When I went back to room 13 to get my hat, coat, and briefcase the captains on the prosecution team were already in that room. As I gathered my things I reminded them that although the scenario I had presented to them the day before was unlikely, it still was the only theory I could develop that was consistent with the physical evidence. It was also exactly the way Lt. Behenna had described the events. Their reaction was noticeably cold. I went back into the courtroom and went over to Jack Zimmerman. As I was putting on my coat I remarked that I was sorry I was leaving because I would have made a good witness for him. He asked why, and I told him I was a government expert, and could not discuss it with him until after the trial. He asked me not to leave but I did. I did not believe it would have been proper for me to have told Attorney Zimmerman any more than I did. I was not “eager to communicate” with him or I would have told him my concern at that time on Thursday.

I expected that the prosecutors would tell Mr. Zimmerman what I had told them. When I was released without being called as a defense witness, and had returned to Corning, New York, I was concerned. I consulted two friends, a Supreme Court judge and a lawyer, and decided to check with Captain Poirier to ensure she had passed on the opinion I had given the prosecutors Thursday afternoon when I was getting my hat, coat, and briefcase.

From reading the judge’s ruling, I believe the misunderstanding may have resulted from the way I interpreted the questions asked during my telephone testimony on Saturday, February 28, 2009.

When I testified that I told Dr. Berg, “That is exactly what I told you guys yesterday,” and did not remember telling my reaction to any other person, I meant right there at that moment in the courtroom. There was no one else but Dr. Berg sitting nearby who had witnessed my demonstration the day before. The prosecutors were at counsel table then.

However, at the next recess, when I went to get my hat, coat, and briefcase, I specifically told the three prosecutors in their office in room 13 the same thing I told Dr. Berg. As I testified on February 28, 2009, “And as I was leaving I told the prosecuting group, I said, “That was exactly what I told you.’”

I do not feel that it is fair to put the opinion I related to Dr. Berg and Captains Poirier, Roberts, and Elbert on Thursday in quotation marks. Until Wednesday afternoon I had not been told the wound trajectories for both shots were horizontal and parallel. I had not been provided the bullet to examine. The scientific process required me to consider the physical and medical evidence in reaching my final conclusion. That is why I wanted to see the bullet on Thursday. When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant’s credibility. My expert opinion was based on the fact that the Lieutenant’s description as to how the shooting occurred fit the physical evidence.

I have consulted and testified in many trials, and I know what exculpatory evidence is. I firmly believe the jury should have heard my testimony.

Of course, there’s much more to this story. The good news, however, is that Behenna was released from the U.S. Military Disciplinary Barracks at Fort Leavenworth Friday, March 14, 2014.

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Nonfiction Book Excerpt: ‘Truckloads of Bad Guys’

EDITOR’S NOTE:  Slightly modified for stand-alone publication, the excerpt below from Chapter Six: ‘Truckloads of Bad Guys’ of my second nonfiction book, The Clapper Memo, provides insight into how one non-polygraph technology repeatedly proved its value to warfighters in ways polygraph technology simply has not.

Click on graphic above to order book.

Click on graphic above to order book.

While serving in countries like Afghanistan, Iraq, Kuwait and Qatar, “Joe,” a member of an Army Special Forces Group (SFG) trained in counterintelligence and as an interrogator, used the Computer Voice Stress Analyzer (CVSA) to interrogate various types of people. Among those he questioned were third-country nationals (TCNs) seeking employment at U.S. bases, captured enemy combatants and others deemed to pose possible threats to U.S. and allied troops.

Regularly working 18-hour days during a five-year period beginning in 2004, Joe used CVSA to conduct nearly 500 interrogations — more than any other individual in the U.S. military and nearly half of the total number of exams conducted by Army SFGs during that time period.

Following his retirement from the Army, Joe spoke with me about his firsthand experiences with CVSA on the condition I not reveal his real name. After I agreed to his terms, he shared four true stories.

The first story Joe shared had to do with an old building in the Baghdad area to which Special Forces (SF) operators brought detainees upon returning from a mission. Known as “The Barn,” it got its name, Joe said, by virtue of the fact it had several rooms that looked something like horse stalls.

Located in the same neighborhood as the facility housing the Iraqi Special Operations Forces (ISOF — a.k.a., “Iraqi Commandos”) — and members of the U.S. Special Operations Forces (SOF) from all branches of the military, The Barn operated like a police station in many ways, Joe said. It had a booking room, evidence room, holding cells and interview rooms, thanks largely to doors being added to the stalls to provide some degree of privacy when SF operators brought detainees to the facility.

Joe and his colleagues had to be very careful there, he said, because “as the lawyers got involved in this deal and the more time went on, it was more like trying to convict somebody in court than it was to pull a terrorist off the street, or a bad guy off the street.”

Part of being “careful” involved providing medical treatment.

“The doc would check ‘em out, (because) they got banged up a little bit whenever we came to get ‘em,” he continued. “They would address all (of) their wounds and stuff like that.

“We could hold ‘em there up to a couple of days before we had to make a decision on whether to transfer to our detainee facility, go to (Camp) Cropper, release to the Iraqis, so forth and so on. There were about five different ways we could go with them from that area.”

That was the first place where they used CVSA to interview detainees, he said, adding that they often had “truckloads of bad guys” coming in there and only two counterintelligence or two human intelligence (HUMINT) agents there to handle the load.

“When you’re trying to figure out how not to cut the bad guy loose and keep the good guy in custody, CVSA was an invaluable tool,” Joe said, explaining that CVSA enabled them to answer questions such as, “Do we have the right guy sitting in this cell?”

“We would get their initial statement when we brought them in,” he said. “Then we would come back a day or two later with the CVSA and vet that story.

“We weren’t determining guilt or innocence,” he continued. “What we were determining was, ‘Does this guy need any further work or warrant any further effort on our part to try and extract any intelligence from him?’”

Though he was involved in bringing detainees in from target sites, Joe noted that military intelligence people processed detainees through, got their initial stories and so forth.

“I didn’t want to be involved with the processing of them, because I would run into them again later if they were to be developed into a source; then I would run them for further targeting.

“So I didn’t want them to know who I was. I was just some dude with a mask that came to their house. They didn’t have any clue who I was in case I had to meet them later in a different capacity.”

Upon detecting my interest in his stories about happenings at The Barn, Joe made a point of clearing up some of the lies circulating in the press about mistreatment of detainees by U.S. forces.

“The very first thing that they get after they come in and they get their photos — and, of course, we make sure that they’re absolutely clean for our own safety — (is) they go to their stalls, they’re given water, the Iraqi soldiers feed ‘em Iraqi food,” he said. “They’re able to be escorted to the bathroom, they’re no longer blindfolded, the whole deal.”

Click image above to read more about the book.

Click image above to read more, including several endorsements, about the book.

As for the rumors that inspection teams were not being allowed into the facility because detainees were being beaten there, Joe said The Barn wasn’t inspected because it was a holding facility for further transfer and, as such, wasn’t subject to inspection.

The reason they were successful at getting information from detainees wasn’t because they tortured them, he explained, it was because they did the opposite as a condition for using CVSA with success.

“I couldn’t even put a number to the man-hours CVSA has saved me,” Joe said. “There’s no way to check or vet or verify any information in a country where every ID is fake, all the government systems are down, people who are enrolling in government systems aren’t enrolling under true names in case (someone) ever digs up their old names — you know, they’re trying to get a new start at life.

“There’s just no way to check anything over there other than some type of truth-verification system.”

On more than one occasion, Joe said, CVSA played a direct role in saving American and Iraqi soldiers’ lives.

On one such occasion, Joe used CVSA to help identify an infiltrator.

“We were getting ready to hit a target,” Joe said. “It was a time-sensitive target.”

Joe explained that two Iraqi brothers were playing key roles in the operation. One was with Joe and his men, while the other was on target with the bad guys and reporting back as to their location, the exact time when a meeting was to take place and when the “good guys” could go in and snatch up some key players on the other side.

While they were waiting, Joe said, a call came in, advising them that the meeting was going to take place in one hour.

“Everybody scrambles, and the only people that knew, up until this briefing, that this was even on the target deck and that these sources existed, were Americans,” Joe explained. “Once we briefed the target to the Iraqi leadership, they broke away and they went and briefed their guys.”

From the time Joe’s team was notified, briefed the Iraqi leadership and released them so they could brief their own guys about the mission, he said, 40 minutes had elapsed.  Then, another phone call came in from the brother working in the enemy camp, Joe said. His message was urgent: “Hey, man, they know you’re coming! They’re hauling ass right now! Somebody called ‘em and told them!”

“So we lock everybody down that had knowledge to that point,” he explained. “When we locked everybody down that had knowledge to that point, you’ve gotta remember, it’s me and another guy that are getting ready to go and investigate this.

“So, we’re sitting there, and they blow this,” Joe said. “At this point, I go to find out who knows, and the pool of individuals who could possibly tip the target was 96 individuals.”

Joe said they decided to lock down all 96 potential turncoats in the conference room at the theater. Working without sleep during the next 48 hours, they “CVSA’d” every one of them, asking if they had attended the briefing or made any unauthorized phone calls.

At the end of that, we had three people that couldn’t clear the charts,” Joe said, “It was the lieutenant colonel, the sergeant major, and his driver.

The only reason the driver was snared, Joe said, was because of the rule that, once the target is called, nobody was supposed to have a cell phone.

“The colonel told the sergeant major to call the people on the target and let him know that we were coming,” Joe explained. “The sergeant major told the driver to go get his phone and bring it to him. The driver didn’t know what he was using it for.

“Basically, we took a 96-man suspect pool, narrowed it down to three individuals, and then confirmed… that the results of the CVSA were correct by breaking those guys in interrogation afterward.”

Despite the fact that thousands of examples like the one above prove CVSA far more accurate and effective than the century-old polygraph as an interrogation tool, the Department of Defense banned its use for the third and final time in 2009. During an exhaustive four-year investigation, I tried to find out why it was banned. I share my findings inside The Clapper Memo.

To read more about Joe’s experience with CVSA and what I uncovered during my investigation, order a copy of The Clapper Memo.

Click on image above to order Bob's books.

Click on image above to order Bob’s books.

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