WASHINGTON, D.C. (March 4, 2013) — International law firm McDermott Will & Emery LLP, in its role as pro bono counsel to thirty-seven retired admirals and generals and a former Department of Defense official, has filed an amicus curiae (“friend of the Court”) brief in the Supreme Court of the United States in the case of Behenna v. United States, No. 12-802.
The brief argues that the Supreme Court should grant Army First Lieutenant Michael Behenna’s petition for certiorari to decide whether a servicemember in a combat zone forfeits the right to self-defense through unauthorized conduct.
McDermott partners M. Miller Baker and Paul M. Thompson and associate Clint A. Carpenter represent the amici, which includes a former inspector general of the Department of Defense; a former Chief of Naval Operations; a recent commander of NATO forces in Afghanistan; a former NATO Supreme Allied Commander, Atlantic; a former Central Command commander, and a former Atlantic Fleet commander.
Lieutenant Behenna was court-martialed and convicted of murdering a suspected al-Qaeda operative implicated in an attack that killed two American soldiers under his command in Iraq. Lieutenant Behenna claimed he acted in self-defense, but the Court of Appeals for the Armed Forces (“CAAF”) ruled that he had lost his right to self-defense because the incident occurred while Lieutenant Behenna was conducting an unauthorized interrogation. According to the CAAF, which assumed the truthfulness of Lieutenant Behenna’s claim, Lieutenant Behenna had no right to shoot when the suspected enemy lunged for Behenna’s pistol.
“This brief argues that the Supreme Court should grant Lieutenant Behenna’s petition for certiorari for three reasons,” said M Miller Baker, co-head of the Appellate practice at McDermott Will & Emery, who focuses his practice on appellate and constitutional litigation. “First, the issue of the right to self-defense in combat zones is important to servicemembers. Second, the CAAF’s decision is wrong on the law, because unauthorized conduct—while grounds for other disciplinary action—should not forfeit a servicemember’s right to self-defense in a combat zone. In particular, McDermott’s brief notes that a recent Medal of Honor winner received that award—this nation’s highest military decoration—for conduct in a combat zone that was unauthorized. Finally, the CAAF’s decision is dangerous because it deprives servicemembers of the right to self-defense in combat zones. Under the CAAF’s decision, Lieutenant Behenna had no legal recourse but to flee when an enemy lunged for his pistol. McDermott’s brief argues that this result is nonsensical and would have threatened not only Lieutenant Behenna’s life, but the lives of other nearby soldiers under his command.”
The Supreme Court is expected to act on Lieutenant Behenna’s petition by late April.
The full brief can be viewed by clicking here.
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