The possible general courts-martial of two soldiers from the 101st Airborne Division accused of murdering a suspected Iraqi terrorist out of revenge may take place in the United States instead of an isolated outpost in northern Iraq, Newsmax has learned.
First Lt. Michael C. Behenna, 25, and Staff Sgt. Hal M. Warner, 26, are charged with premeditated murder, assault, and making false statements in the death of Ali Mansur Mohammed on May 16. Warner, a career infantryman on his third tour of duty in Iraq, also is accused of obstruction of justice.
Mohammed was an Iraqi police officer, a member of the local anti-al-Qaida “Sons of Iraq,” and a suspected terrorist who allegedly helped plant a roadside bomb that killed two soldiers in Behenna’s platoon on April 21.
Evidence from pre-trial hearings in September indicated that Behenna allegedly received information from intelligence sources and the local sheik who headed U.S.-supported Awakening Council in Baiji that Mohammed was an insurgent.
On May 5, Behenna detained Mohammed in his home with illegal weapons in his possession, only to be told on May 16 that Mohammed was to be released and returned home. Behenna was to take him there.
The next day, area residents discovered Mohammed’s body and notified Iraqi police. He had been shot twice and appeared to have burns on his neck, face, and shoulders, according to evidence.
Two months later, 1st Armored Division prosecutors charged Behenna and Warner with killing him and attempting to conceal his identity by destroying his corpse with a grenade.
In the meantime, members of the 1st Brigade of the 101st they are assigned to in Iraq started packing their bags to head home at Fort Campbell, Ky., after an extended 14-month tour in Iraq.
Unless the Army changes its protocols and decides to hold the men in Iraq, they will be out of Iraq before their anticipated courts-martial begin, which Warner’s civilian lawyer, James Phillips, said is unlikely.
The two hearing officers who examined the evidence have yet to make their recommendations regarding court-martials. Phillips said the Army wants to ensure that the men were charged before they left Iraq.
“Now I think they are looking at other issues, going home, getting ready to move,” said Phillips, a former Army JAG lawyer with an office near Fort Campbell in Clarksville, Tenn. “There is no way we can be ready for court-martial in six weeks or so before they come home. We are still waiting to find out if they are going to be court-martialed, although I expect it.”
Maj. Peggy Kageleiry, an Army spokeswoman Iraq, said she doesn’t know when the investigating officers will release their findings and recommendations to Maj. Gen. Mark P. Hertling, commander of the Multinational Division North and 1st Armored Division, headquartered in Wiesbaden, Germany. As the “convening authority” in the investigation, Hertling ultimately will decide whether Behenna and Warner will stand general court-martial.
Kageleiry also confirmed that the two should be coming home if their unit completes its tour before a court-martial is convened.
“If there is a court-martial and it does not happen before they leave, it could take place at Fort Campbell, but all that is not yet decided,” she said in an e-mail.
Behenna’s civilian attorney, Jack Zimmermann, and Phillips said they expect their clients to be tried at some point. They could face life in prison without parole, if convicted.
Zimmermann, of Houston, Tex., is a noted military lawyer and former Marine Corps prosecutor and military judge who successfully defended Marine Lance Cpl. Stephan Tatum against charges of murder at Haditha, Iraq, last spring.
Behenna and Warner allegedly executed Mohammed immediately after participating in a two-hour meeting with the unidentified, but influential, sheik in Baiji while Mohammed awaited his fate in an armored vehicle, the Army’s investigation has shown.
The Iraqi interpreter who accompanied the soldiers during the incident told investigators that soldiers under Behenna’s command then drove Mohammad to an isolated location. Out of his subordinates’ view Behenna allegedly shot Mohammed twice with his pistol.
Afterward, Warner tried to dispose of his corpse with an incendiary grenade, the Iraqi testified at the pre-trial hearings.
The motive behind Mohammed’s death and who the sheik might be still are shrouded in mystery.
The interpreter, identified during the hearings as “Harry” to protect him from retribution from his countrymen, claimed that Behenna told Mohammed he was going to kill him before meeting with the sheik.
“I am not in a position of comment about the case right now,” Phillips said during a telephone interview with Newsmax. “This case is going to radically change after there is a court-martial.”
Zimmermann, who declined to comment about specifics, said he was pleased with the manner in which the hearing was conducted and the content of the testimony.
One source close to the investigation said Behenna was responsible for protecting a large area in the Beiji District with a complement of 18 men, 22 soldiers short of its his normal strength. The area includes the village of Al Butoma, which was home to both the supposedly pro-American Sons of Iraq and anti-American insurgents where Mohammed lived.
“Those distinctions often were blurred, and casualties from IED explosions and other attacks on American forces were of continual concern,” the source said. Behenna “was devoted to his platoon, and determined to rid his area of responsibility of the influence of terrorists.”
Behenna and Warner are being held at Camp Speicher, an isolated U.S. base near Saddam Hussein’s hometown of Tikrit, the Army says. Although not under arrest, they have been reassigned to noncombat duties while the case grinds forward.
“Warner is just sitting around in a tent,” Phillips said.
Behenna is the son of Vicki Behenna, an assistant U.S. attorney in Oklahoma City who helped convict Timothy McVeigh for his role in the 1995 Oklahoma City bombing. His father, Scott, a retired Oklahoma Bureau of Investigation agent, helped prosecute former Democratic Oklahoma Gov. David Walters in 1993 for handing out state jobs in exchange for campaign contributions, according to Oklahoma newspaper accounts.
Behenna joined the Army after obtaining his commission through ROTC at the University of Central Oklahoma. After graduation, he became an airborne Ranger and an infantry platoon leader in the elite “Screaming Eagles” in Iraq. He has been in Iraq since September 2007.
Warner, 26, is a career infantryman from Braggs, Okla. He is single and makes his home at Fort Campbell when not overseas, Phillips said.
“He is a good soldier, direct and honest. His role in all this is going to be much different when the facts are known. It was a case of a good soldier being in the wrong place at the wrong time,” Phillips said.
During the April 21 bombing that Mohammed was accused of participating in, a roadside bomb killed Spec. Steven J. Christofferson, 20, of Cudahy, Wis., and Sgt. Adam J. Kohlhaas, 26, of Perryville, Mo. Behenna allegedly believed Mohammed helped plant the device.
Why Mohammed was held for 11 days and then released wasn’t revealed during the defendants’ September preliminary hearings in Iraq. The government’s case merely suggests that Behenna and Warner killed Mohammed in retaliation for the bombing deaths of their men.
Phillips said there is much more to the case than simple revenge.
“I think the prosecution has got it wrong,” Phillips said.
At Behenna’s hearing, the Iraqi witness testified that he saw Behenna shoot Mohammed twice while they were concealed from the rest of their men in a railway tunnel. Afterward, Warner allegedly placed an incendiary grenade under the victim’s head to destroy his identity. Several soldiers who were either in the armored truck that took Mohammed to the execution site or on guard in nearby vehicles substantiated part of the interpreter’s story.
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