“Today, our soldiers and Marines are held not just to the laws of warfare, but to unprecedented standards of criminal law, even though they are operating in a combat environment,” said John Maher, a former Army attorney and current reserve lieutenant colonel who specializes in the defense of military accused. “Incidents that in the past would have been viewed as collateral damage in the ‘fog of war’ are now being prosecuted as war crimes.”
Texas defense attorney Colby Vokey, a retired Marine lieutenant colonel, considers some of these convictions just—as in the case of Robert Bales, for example. In raids on two Afghan villages in March 2012, the Army staff sergeant shot and killed 16 people, half of them children. Other Leavenworth prisoners, Vokey says, have been ground up in the lawfare machine, a bureaucracy that often seems more intent on securing convictions than justice.
In Derrick Miller’s case, for example, a witness independently corroborated his account—until Army criminal investigators threatened to charge him as an accessory to murder, at which point he changed his testimony. The Afghan interpreter who witnessed the shooting also refused to testify against Miller—until the Army offered him a U.S. visa in exchange.
Another case: Army 1st Lt. Clint Lorance. In 2012, on his second-ever combat patrol with the 82nd Airborne, Lorance ordered a gun truck to fire on three Afghans riding on a single red motorcycle toward the platoon’s exposed route of march—a tactic that had been used in the past to attack the platoon, which had recently lost three troopers. The truck’s rounds killed two of the riders while a third escaped. In 2013, prosecutors presented testimony from fellow soldiers who said that Lorance despised Afghans, and he was convicted of ordering the killing of unarmed civilians. After the trial, Lorance’s attorney, Maher, discovered that the DNA of all three riders resided in U.S. intelligence databases and linked them to bombs that had killed American soldiers. Lorance is serving 20 years in Leavenworth, and the case is on appeal.
In 2014, Army Lt. Michael Behenna was released from Leavenworth after serving five years on a 15-year sentence for the murder of Ali Mansur, a known al-Qaeda operative. Army intelligence believed Mansur had organized an attack on Behenna’s platoon in April 2008, killing two U.S. soldiers and injuring two more. Still, they ordered Mansur released. Behenna, who was ordered to return Mansur to his home, decided to field-question him to gain intelligence. According to Behenna, Mansur attacked him. Behenna shot Mansur twice, once under the armpit and once in the head. Army prosecutors charged Behenna with murder, saying he had executed Mansur in cold blood as he sat passively on a rock. But in a private meeting during Behenna’s court-martial, an expert witness told prosecutors that his analysis of the bullet entry wounds corroborated Behenna’s account. Prosecutors withheld this information from Behenna’s defense attorneys until after they had secured a conviction.
“I was infuriated,” said Michael’s mother, Vicki Behenna, who is an assistant U.S. attorney for the state of Oklahoma. “I immediately understood that to be a Brady violation.”