During media interviews about the just-released book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight for Military Justice, author Bob McCarty is often asked why ordinary Americans should be interested in the story of former Army Green Beret Sgt. 1st Class Kelly A. Stewart and his fight to clear his name after being wrongfully convicted by an Army court-martial panel. Taken from the foreword of the book, the excerpt below goes a long way toward answering that question:
In recent years, America’s fighting men and women have faced an ever-increasing barrage of legal battles stemming from their actions on battlefields and in combat zones around the world. Perhaps most notable is the case of Army Ranger First Lieutenant Michael Behenna.
On July 31, 2008, Lieutenant Behenna was charged with the premeditated murder of Ali Mansur, a known Al-Qaeda agent operating near Albu Toma, an area north of Baghdad. Seven months later, the leader of the 18-member Delta Company, 5th platoon of the U.S. Army’s 101st Airborne Infantry Division was convicted of unpremeditated murder and sentenced to 25 years confinement—later reduced to 15—at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kansas.
One expert called to testify during Lieutenant Behenna’s court-martial contends to this day that Army prosecutors committed a Brady violation when they suppressed evidence favorable to the lieutenant’s defense and, in doing so, violated due process and his right to a fair and impartial proceeding. The real “kicker” in the case lies in the identity of the person from whom the allegation of prosecutorial misconduct came. Surprisingly, it wasn’t someone on the defense side of the courtroom. Instead, it was the Army’s own witness, a renowned forensics expert.
Prosecutors flew Dr. Herbert Leon MacDonell from Corning, New York, to Fort Campbell, Kentucky, for the trial, but never allowed him to testify. Why? Because, during the trial, he had the opportunity to examine key pieces of evidence prosecutors had not shared with him prior to his arrival at the proceedings. When he told prosecutors that his examination of that evidence had caused him to change his mind and believe Lieutenant Behenna was telling the truth, they opted against having the court hear his testimony—words that likely would have resulted in a favorable outcome for the young officer.
As this book went to press, the lieutenant, his friends and members of his family were awaiting the final ruling in his appeal process. Worst-case scenario: He’ll be released from prison March 19, 2024—at age 40.
Sadly, Lieutenant Behenna is not alone when it comes to unjust prosecution of men and women in uniform.
Another case involved a group of men who came to be known as the “Haditha Marines.”
Lieutenant Colonel Jeffery Chessani, commander of 3rd Battalion, 1st Marines, was responsible for approximately 2,000 American and Iraqi forces. At about 7:15 in the morning November 19, 2005, a squad of Colonel Chessani’s Marines was leading a convoy when it was ambushed by an enemy using a roadside bomb and small arms fire from nearby houses. The bomb detonated under a Humvee, killing one Marine and injuring two others. An ensuing house-to-house battle between insurgents and an outnumbered Marine “fire team” resulted in the deaths of 24 Iraqis, including 15 civilians.
After Colonel Chessani and seven Marines in his unit were charged with murder, U.S. Rep. John Murtha (D-Pa.)—a now-deceased former Marine—proclaimed the Marines overreacted and killed 24 Iraqi civilians “in cold blood.” A costly, yearlong legal battle followed.
On March 26, 2008, Richard Thompson, president and chief counsel of the Thomas More Law Center, an Ann Arbor, Michigan-based nonprofit group that represented Colonel Chessani, summed up the environment within which the Haditha Marines were caught:
“The hysteria and media firestorm over Abu Ghraib and the Pat Tillman investigations lead to fear of a similar media reaction to the Haditha incident, causing the military’s civilian bosses to set up this shadow oversight body,” Thompson said in a news release. “This extraordinary action politicized the military justice system and was a clear signal to top generals that they were expected to hold individuals criminally responsible. The investigation turned into a quest for a prosecution—not justice.”
Eighty-three days later, a military court found Colonel Chessani not guilty on all charges. Charges against six others were dropped, and the outcome of proceedings against one remaining Marine remained uncertain as this book went to press. The Marines and members of their families paid a heavy emotional price—not to mention being out hundreds of thousands of dollars in legal fees—for service to their country.
More recently, three U.S. Navy SEALs—Julio A. Huertas, Jonathan E. Keefe and Matthew V. McCabe—faced assault charges related to their capture of Ahmed Hashim Abed, the alleged planner of the March 2004 ambush, killing and mutilation of four Blackwater contractors in Fallujah, Iraq. Abed alleged he was punched in the gut and received a fat lip while being apprehended.
Offered administrative punishment, all three warriors refused that option. Instead, they chose—at great cost to themselves and their families—to face court-martial proceedings. It was the only way to clear their names entirely of the charges against them.
Fortunately, all three were found not guilty on all counts during courts-martial in the spring of 2010.
There are, of course, many more cases of U.S. service members facing charges stemming from their actions on the battlefield.
Three Army noncommissioned officers—Master Sergeant John Hatley, Sergeant First Class Joseph Mayo and Sergeant Michael Leahy—stand as but a handful of those now serving time in military prisons. Convicted of war crimes. For killing enemy combatants. On battlefields awash with bureaucratic rules of engagement.
In this book, however, I share the appalling details of another wrongful-conviction case in which an Army Special Forces soldier was convicted of alleged crimes that took place far from the combat zones of the Middle East where he had already witnessed firsthand the horrors of war. I share the travesty of military justice embodied in the case, United States vs. Kelly A. Stewart, a case decided during three days in August.