The U.S. Justice Department told the justices in a brief filed Monday they should turn down the case down because the soldier in question, Army 1st Lt. Michael Behenna, escalated the conflict that led to the 2008 shooting death of Ali Mansur, The Oklahoman of Oklahoma City reported Tuesday.
Behenna's legal team, comprised of constitutional and military law experts, contends a ruling by the military court stripped the lieutenant and other soldiers of a vital right to defend themselves.
Behenna was convicted of unpremeditated murder and sentenced to 15 years in a military prison after prosecutors said he took the Iraqi terror suspect into custody, brought him to a remote location, forced him to strip naked and interrogated him at gunpoint.
Mansur was taken into custody near the scene of an improvised explosive device bombing. He threw a piece of concrete at Behenna and lunged for his gun. Behenna opened fire and killed Mansur.
The Court of Appeals for the Armed Forces, the highest military appeals court, narrowly upheld Behenna's conviction last year.
"Even assuming for a moment that Mansur could have escalated the level of force, we conclude that a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at an initial aggressor in full battle attire, armed with a loaded pistol, and lunges for the pistol," the Court of Appeals for the Armed Forces said in its 3-2 ruling.
The Justice Department brief says Behenna, a native of Edmond, Okla., "forfeited his right to self-defense" when he began the interrogation at gunpoint and forced the man to strip.
The Supreme Court only hears a fraction of the cases for which lawyers seek an audience.
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