Senior Officers Back Supreme Court Brief Filed on Behalf of Lieutenant Michael Behenna

Posted on March 26, 2013 by

Thirty-seven retired high-ranking military officers, including a former Chief of Naval Operations, signed an Amicus Brief submitted to the U.S. Supreme Court Feb. 27 in support of Army Ranger 1st Lt. Michael Behenna. An Edmond, Okla., native, Lieutenant Behenna is serving 15-years behind bars at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., for killing a known Al-Qaeda operative in Iraq.

Army Ranger 1st Lt. Michael Behenna SCOTUS Amicus Brief

Click image to download document (pdf)

Early on, the 31-page brief raises an important question — that is, whether a servicemember in a combat zone categorically forfeits the right to self-defense as a matter of law by pointing a firearm without authorization at a suspected enemy. In the case of Lieutenant Behenna, he admitted during his court-martial that he shot Ali Mansur in self-defense. And therein lies the rub.

The brief’s conclusion section (below) makes a clear argument, stating that Lieutenant Behenna deserves some punishment, but not what he received, and, more importantly, a new trial:

Lieutenant Behenna’s unauthorized actions in a combat zone were a serious breach of military discipline and for that reason he should be subject to appropriate disciplinary action under the (Uniform Code of Military Justice). But in so acting without authorization, he did not forfeit his right to self-defense. This Court should grant the petition for certiorari, reverse the (Court of Appeals of the Armed Forces), and remand to allow a new court-martial panel to consider Lieutenant Behennas’s claim that he acted in self-defense, including evidence unlawfully withheld by the prosecution corroborating that claim.

At the same time as I’m pleased with this document, I remain disappointed that its authors made no mention of the colossal failure of leadership among officers in Lieutenant Behenna’s chain of command. That failure, a subject I tackled in a post Aug. 20, 2012, allowed him to be put in a position from which nothing good could result.

To read any of the more than 60 posts I’ve written about the lieutenant’s case since June 4, 2009, click here.

EDITOR’S NOTE: Lieutenant Behenna and Army Sgt. 1st Class Kelly A. Stewart, the man whose life story is chronicled in my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, became good friends behind bars at Fort Leavenworth.

Bob McCarty is the author of Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, a nonfiction book that’s available in paperback and ebook via most online booksellers, including Amazon.com. It chronicles the life and wrongful conviction of Army Green Beret Sgt. 1st Class Kelly A. Stewart. His second book, THE CLAPPER MEMO, is coming soon.

DoD War on Men: Comparing Messages Sent by Accusers

Posted on March 15, 2013 by

Today, as part of my continuing series about the Department of Defense War on Men, I compare the handling of evidence in military court-martial cases to the handling of similar evidence during the prosecution of a civilian sexual assault case making news in ~~West Virginia~~ Ohio.

ABC News broadcast a story today about the case of two Steubenville, Ohio ~~W.Va.~~, high school football players who stand accused of sexually assaulting a 16-year-old girl while she was drunk at an “alcohol-fueled party” the night of Aug. 11, 2012. If the report is reliable, then it appears prosecutors will rely heavily upon text messages and mobile phone photos exchanged by party attendees — and, perhaps, others — as they pursue guilty verdicts against the 16- and 17-year-old boys who stand accused.

Kelly Stewart returns from a mission in Iraq.

Army Green Beret Sgt. 1st Class Kelly A. Stewart, the man whose life story and wrongful conviction are chronicled in my book, Three Days In August, probably would have benefited from having members of his court-martial panel made aware of some text messages sent by his accuser. But it didn’t happen. Instead, the highly-decorated combat veteran was convicted of a handful of sexual assault-related crimes and sentenced to eight years confinement at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan.

Several months later, however, Sergeant Stewart’s defense team had the rare opportunity to present new testimony during a post-trial hearing in Germany. During that hearing, many people testified, essentially calling out the 28-year-old German woman who had accused the Solider of raping and kidnapping her in his Stuttgart hotel room as a liar.

Did it get him a new trial? No.

Not even the testimony of Tamara Buehler, a woman who had known the accuser for more than 10 years as a friend, housemate and employer, earned him a new trial. She reported receiving a text message from the accuser within 24 hours of the night she spent with Sergeant Stewart.

In the text message, Buehler said, the accuser described a lecherous night during which she “found my master.” Of course, she took this to mean that there was sex of the sadomasochist type and noted that there was no talk of something happening that the accuser did not like. And that wasn’t all! Buehler also stated that the accuser had claimed her encounter with Sergeant Stewart was “great SEX.”

Incredibly, the military judge ignored the testimony of Buehler and several others who combined to paint a portrait of the accuser as a woman who had had sex with at least two more men between the day she met Sergeant Stewart and the start of the court-martial proceedings. Her testimony takes on additional weight when one realizes the accuser had testified during the trial that she could no longer be around men after her night with the Soldier. More details here.

U.S. Army Brig. Gen. Jeffrey A. Sinclair, the deputy commanding general of support with the 82nd Airborne Division and Regional Command-South, speaks with Afghan media outside of a school near Forward Operating Base Howz-e-Madad in Kandahar, Afghanistan, Nov. 16, 2011. (U.S. Army photo by Sgt. Amanda Hils/Released)

Now to a more recent case — that of Brig. Gen. Jeffrey A. Sinclair; if he receives the same treatment as Sergeant Stewart, he’s likely to receive an even longer prison sentence.

In what appears to be a smart move, however, General Sinclair’s defense team has gone on the offensive, launching a website, Sinclair Innocence, where one can read important details about the case which, for the most part, seems to be going unreported by mainstream news media outlets.

Under the tab, The Truth Behind the Case, several questions appear along with answers that tilt in favor of the accused general. Two paragraphs from the bottom of the page, links to journal entries and text messages — described as having been sent by the accuser to General Sinclair — appear to reveal much about the consensual nature of their relationship. If genuine, the documents also seem to shed much light on the mental state of the general’s accuser.

While it will be interesting to see how the case of the high school football players turns out, I will be more interested in General Sinclair’s case, hoping to see evidence of fairness and truth in the midst of DoD’s War on Men.

Bob McCarty is the author of Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, a nonfiction book that’s available in paperback and ebook via most online booksellers, including Amazon.com. His second book, THE CLAPPER MEMO, is coming soon.

German Police Detective Has Memory Issues Like Accuser

Posted on December 23, 2012 by

Unlike most people who read reporter Nancy Montgomery‘s article published Saturday in Stars and Stripes, I noticed something terribly wrong in some of the comments attributed to German police detective Daniel Lorch. His words conflicted with the real-life events chronicled in my book, Three Days In August, which chronicles the life story of former Army Sgt. 1st Class Kelly A. Stewart and the military justice debacle that ended his stellar career as a Green Beret and landed him behind bars at Fort Leavenworth.

Kelly A. Stewart with copy of book.

About halfway into the Stripes article, Montgomery shared comments made by Detective Lorch about his experience as an investigator and his personal opinion “that (Stewart) was guilty” of a variety of sexual assault-related charges stemming from a one-night stand involving the highly-decorated Special Forces soldier and a 28-year-old German woman. The reporter did not, however, include any comments by the detective about the complete lack of physical evidence and eyewitnesses to the alleged crimes.

Next, Montgomery attributed a statement to the detective about a taxi driver being among the people (plural) who had allegedly seen Stewart’s accuser the morning she left his hotel and later provided corroborating trial testimony. Apparently, the reporter did not ask the detective for details about those people. Nor did she ask about their testimony during the trial. Why? Because, contrary to what the detective said, only the taxi driver testified as a witness during the trail. Additional witnesses to her departure from the hotel could not be found.

Finally, Montgomery quoted Detective Lorch on the matter of what the taxi driver allegedly saw when she picked up the accuser outside Stewart’s hotel:

“He described, very detailed, very clearly, her physical damage,” Lorch said. “He was sure something very bad had happened to this woman.”

The detective repeatedly referred to the taxi driver in the masculine sense when, in reality, the taxi driver was a middle-age woman with memory issues. I highlighted those issues in the book and in an Oct. 7, 2011, post. An excerpt from the post appears below:

During questioning six months before the trial, according to official court documents, the taxi driver told German police officials, “I’m sorry I don’t see her in front of my eyes anymore right now,” later adding, “I believe she had blonde dyed hair. I don’t remember her clothing or age right now anymore.”

During the trial one year after she had allegedly picked up Stewart’s 28-year-old accuser in front of the Stuttgart-Marriott Hotel in Sindelfingen, Germany, the taxi driver was able to remember accurate details about Stewart’s accuser (i.e., that she was wearing knee-high boots, had long black hair, etc.) that she wasn’t able to remember when it should have been fresh on her mind. A miracle perhaps or was it coaching by prosecutors that helped her “improve” her memory?

Montgomery’s article came 24 days after she had contacted me via email, informing me that she was interested in doing a story about the latest development in the Stewart case, had read my website and wanted to talk.

In a written reply to Montgomery, I told her I had spent a lot of time one year earlier with John Vandiver, a Stuttgart-based Stripes reporter, and that the effort — via phone and email — had yielded not a single story. Furthermore, I told her, I wasn’t excited about speaking with Stripes again and shared a link to a story I published April 19, 2012.

Montgomery persisted, however, and wrote that her story would be about the “latest legal step, the request for reconsideration” from the Court of Appeals for the Armed Forces.

“Be On The Lookout” poster issued Aug. 20, 2009.

Because I had written about the CAAF-level step in the appeals process Nov. 27, 2012, I decided to make an offer to the reporter.

“Shoot me all of of your questions and let me know your deadline,” I wrote, “then I’ll do my best to answer them by your deadline while allowing time for follow up.”

Rather than shoot me a list of questions, however, Montgomery informed me that she was going to review some of what Vandiver had gathered when he had talked with me a year earlier. She said she didn’t want to “duplicate some of the work he already did with you and ask questions you’ve already answered. But I am wondering how you got involved in the case. I don’t have a deadline yet.”

Montgomery was, of course, referring to a Nov. 21, 2011, phone interview I gave to Vandiver. It was followed by several email messages and resulted in three articles — #1, #2 and #3 — being published early in 2012. Unfortunately, all were published by yours truly, not Stripes.

“Nancy, I talked with John about how and why I became interested in the case,” I replied. “I also wrote a piece about it: http://threedaysinaugust.com/?p=1136.”

And that was that.

Montgomery did not forward any more questions or make any further attempts to obtain my input. In fact, her name did not appear on my radar again until today when Stripes published her report about the status of Stewart’s appeals process — a report from which she not only omitted my name and the name of my book, but failed to share critical details I had published Thursday in an update to my Nov. 27 piece, Green Beret’s Defense Attorneys Cite Ineffective Counsel During Trial, Ask Court to Reconsider:

UPDATE 12/20/2012 at 8:30 a.m. Central: Bad news received from the Court of Appeals for the Armed Forces: “On consideration of Appellant’s petition for reconsideration of this Court’s order issued November 15, 2012, it is, by the Court, this, 19th day of December, 2012, ORDERED: That said petition for reconsideration is hereby denied. For the Court, /s/ William A. DeCicco, Clerk of the Court.”

To read the never-before-published details about Stewart’s wrongful conviction, read the book, Three Days In August. Based on 18 months of research, interviews with the key players and access to the actual Record of Trial, this book is available in paperback and ebook via most online booksellers, including Amazon.com.

UPDATE 12/28/2012 at 9:42 a.m. Central: Five days ago, I shared a new observation about the latest Stripes article on Stewart’s case. It’s a doozie. See German Police Detective Has Memory Issues Like Accuser.

Yes, I Had Lunch With A Sniper

Posted on December 3, 2012 by

Today, I had the good fortune of being able to enjoy a good meal and good conversation with Kelly A. Stewart, a former Army Green Beret medic and sniper whose life story — including a wrongful conviction in a military court-martial — is chronicled in my book, Three Days In August.

L-R: Kelly A. Stewart and Bob McCarty.

Though I had communicated with Stewart countless times during the past three years, today’s meal at a Cracker Barrel Country Store in the St. Louis area marked the first time Stewart and I were able to meet in person. It became possible as a result of Stewart passing through Missouri on the return leg of a cross-country trek to visit family.

Worth noting: After spending more than two hours across the table from him, I’m convinced more than ever before that he is the victim of military justice gone awry.

Green Beret’s Defense Attorneys Cite Ineffective Counsel During Trial, Ask Court to Reconsider

Posted on November 27, 2012 by

Since publishing news almost two weeks ago about the Court of Appeals for the Armed Forces denying former Army Green Beret Sgt. 1st Class Kelly A. Stewart’s appeal, a new development has surfaced: William E. Cassara and Philip D. Cave, the attorneys handling Stewart’s appeals, have filed a Petition for Reconsideration with CAAF, the nation’s highest military court.

Notably, the petition cites ineffective assistance of counsel — an item mentioned in the July 26 decision of the Army Court of Criminal Appeals to affirm Stewart’s 2009 conviction and sentence on sexual assault charges — and requests CAAF reconsider Stewart’s case.

In plain English, Stewart’s new defense attorneys argue that the defense attorneys who represented the highly-decorated combat veteran during his court-martial didn’t follow the legal steps necessary to compel — or attempt to compel — the German government to produce the accuser’s mental health records. Those records, many believe, would have provided the court with a great deal of insight about the accuser and may have convinced members of the court-martial panel that the accusations against Stewart were baseless.

You can read more about these issues in my post, Army Judge Violates Soldier’s Constitutional Rights, published May 11, 2011. To read the complete, never-before-published details of this case, obtained through interviews with the key players and access to the actual Record of Trial, order a copy of the book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.

Highest Military Court Denies Green Beret’s Appeal

Posted on November 15, 2012 by

The Court of Appeals for the Armed Forces has denied former Army Green Beret Sgt. 1st Class Kelly A. Stewart‘s appeal of the wrongful conviction and sentence handed down by a court-martial panel in Germany almost 39 months ago.

The CAAF decision came today, almost four months after the Army Court of Criminal Appeals affirmed the soldier’s conviction and sentence. Stewart’s sentence came at the end of a two-day military trial in August 2009 during which Stewart was found guilty of a handful of sexual assault charges after a German woman alleged she had been raped and kidnapped by the soldier.

Now, unless the highly-decorated combat veteran receives a presidential pardon, he will likely bear the “sex offender” label for the rest of his life.

To gain an understanding of how Stewart’s prosecution went down, read “THE BASICS” of his case.

To read the never-before-published details obtained through interviews with the key players and access to the actual Record of Trial, order a copy of the book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice. a

Three Days In August is available in paperback and ebook via most online booksellers, including Amazon.com.

Facebook Censors Special Operations Veterans

Posted on October 31, 2012 by

Mark Zuckerberg‘s social networking gurus at Facebook seem to think the men and women of Special Operations Speaks, who’ve spent much of their lives fighting on behalf of their fellow Americans do not deserve the freedom to exercise the rights guaranteed them under the First Amendment — at least, not when that exercise involves criticizing President Barack Obama days before an election about his mishandling of and lying about Sept. 11 events in Benghazi, Libya.

On Saturday, a Benghazi-focused meme (above) was posted on the organization’s website by Political Media Inc. President Larry Ward, the man who handles SOS social media and publicity efforts. It’s message: “Obama called the SEALs and they got Bin Laden. When the SEALs called Obama, they got denied.”

Twenty-four hours later, Ward was informed by Facebook monitors that he had violated Facebook’s Statement of Rights and Responsibilities with the meme. As a result, the SOS account was suspended for 24 hours. At last check, the meme is back up on the SOS Facebook page.

Before the election next Tuesday, please consider donating to Special Operations Speaks and spread the word about how Obama denied assistance to people on the ground, including one U.S. ambassador and two former Navy SEALs, in Benghazi.

FYI: I applaud the guys at Special Operations Speaks for taking a courageous stand on this issue and also for endorsing my book, “Three Days In August,” which chronicles the life and wrongful conviction of former Army Green Beret Sgt. 1st Class Kelly A. Stewart. To learn more about the book, read this post on the SOS Noble Warriors webpage.

Bob McCarty is the author of “Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice,” a nonfiction book that’s available in paperback and ebook via most online booksellers, including Amazon.com. His second book, “The CLAPPER MEMO,” is set for release this fall.

‘Three Days In August’ Marks One-Year Anniversary as Second Book Nears Completion

Posted on October 20, 2012 by

Chronicling the life story and wrongful conviction of Army Green Beret Sgt. 1st Class Kelly A. Stewart, “Three Days In August” turned one-year old this week. At the same time, my second book, “The Clapper Memo,” is inching closer and closer to publication.

During the past 12 months, I’ve had many opportunities to share the basics of Stewart’s story and have found many Americans nod their heads and empathize with the highly-decorated combat veteran’s plight but refuse to engage — by reading the whole story, that is — and speak out on behalf of those in uniform who have been victimized by the military justice system. I hope that changes.

Regardless, I will continue to tell Stewart’s story and to tell the stories of others who, after reading “Three Days In August,” have approached me with stories of their loved ones — usually husbands and sons — that are eerily similar to Stewart’s. In addition, I will begin sharing details of another story.

My second nonfiction book, “The Clapper Memo” is set for release this fall and tells the story of a 40-year-old turf war few Americans even realize is taking place.

What started out in April 2009 as a 27-day effort to obtain answers from the Pentagon about the deployment of new interrogation technology to combat zones turned into almost four years of research, investigation and interviews during which I learned more than I ever imagined I might about the people, products and problems inside the interrogation area. And, trust me, it contains details high-ranking government officials would rather not see made public.

Most importantly, I learned how wrong decisions made by some of those aforementioned government officials have resulted in dozens of American soldiers and citizens being injured or killed in Afghanistan, the victims of so-called “insider” or “green-on-blue” attacks. One of those people bearing some responsibility is Director of National Intelligence James R. Clapper Jr.

People from all walks of life shared insights, insider information and occasional doses of insanity related to their personal experiences in the arena.

People from across the United States as well as around the world — in places like Afghanistan, Guantanamo Bay, Iraq and Mexico — shared. They shared during scheduled and unscheduled interviews. Through official and unofficial channels. By phone, email message, Facebook message, Twitter and “snail mail.”

Some shared without being asked. Most told the truth. Some did not.

Some were forthcoming with information. Others forced me to use the federal Freedom of Information Act and state “sunshine” laws as tools for flushing out answers.

More than anything else, it was old-fashioned detective work that produced results.

I hope you’ll make plans now to read it. Meanwhile, you can still order a copy of “Three Days In August.” It’s available in paperback and ebook via most online booksellers, including Amazon.com.

Note: “The Clapper Memo” is the working title of this book but, for reasons I will explain in the near future, will change upon publication.

Some Guys Have All the Luck — Version 3.0

Posted on September 27, 2012 by

When I published Some Guys Have All the Luck back in June, I suspected it wouldn’t be the last time I shared news of a military officer receiving better treatment than one of his enlisted subordinates — and I was right. Forty-five days later, I published Some Guys Have All the Luck — Version 2.0, and, today, I have yet another similar story.

Shown in this Nov. 16, 2011, U.S. Army Brig. Gen. Jeffrey A. Sinclair, then-deputy commanding general of support with the 82nd Airborne Division and Regional Command-South, speaks with Afghan media outside of a school near Forward Operating Base Howz-e-Madad in Kandahar, Afghanistan. (U.S. Army photo by Sgt. Amanda Hils)

A Special Forces friend sent me a link to a CNN article about an Army general facing possible court-martial on sexual misconduct and other charges. From the article:

Brig. Gen. Jeffrey Sinclair has been charged with “forcible sodomy, wrongful sexual conduct, attempted violation of an order, violations of regulations by wrongfully engaging in inappropriate relationships, misusing a government travel charge card” and several other counts, said Col. Kevin Arata, a spokesman for the Fort Bragg-based 82nd Airborne Division, which since its creation during World War I has been one of the most celebrated units in the Army.

At this point, I have no idea whether or not the charges against General Sinclair are legit. I will, however, keep my eye on this case and others like it. Why? Because I hate to see officers — and I was one — receive more-favorable treatment than their enlisted subordinates — people like Green Beret Sgt. 1st Class Kelly A. Stewart, the man whose life and wrongful conviction are chronicled in my book, Three Days In August, endorsed by some very special Special Operations veterans. At the same time, I hate to see good officers railroaded the way Stewart was.

Stay tuned!

UPDATE 10/08/2012 at 8:53 a.m. Central: The question is now being asked, “Is retirement an option for general accused of forcible sodomy? Stewart never got that option.

UPDATE 10/27/12 at 8:56 p.m. Central: An Article 32 hearing has been set for Nov. 5.

FYI: Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice is available in paperback and ebook via most online booksellers, including Amazon.com. Also, my second book, THE CLAPPER MEMO, is set for release this ~~fall~~ spring.

Keep Political Correctness Out of Military Justice System

Posted on September 19, 2012 by

The last thing the military needs is for more political correctness to be injected into the military justice system, but that seems to be what’s happening, according to a Military.com article published today:

Congress has floated a bill that would take ruling authority away from commanders in sexual assault cases and hand it over to an independent panel.

The bill comes as Pentagon leaders scramble to tackle a rising number of sexual assault cases spreading through the military. In 2011, servicemembers filed over 3,000 sexual assaults reports.

While I’m all in favor of prosecuting cases of sexual assault against women in the military, the quest by prosecutors to meet artificially-set goals for successful prosecutions has resulted in an emphasis being placed on the prosecution of male soldiers even when no evidence or eyewitnesses can be produced!

As evidence of this, I point to the case of Army Green Beret Sgt. 1st Class Kelly A. Stewart, the man whose life story and wrongful conviction are the subject of my book, “Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.”

During the first two days of his court-martial on sexual assault and kidnapping charges, prosecutors presented no physical evidence and/or eyewitnesses to the alleged crimes. Instead, their case was based almost entirely on the testimony of the accuser, a one-time mental patient who, with the backing of the German government, refused to allow her medical records to be entered as evidence. As a result, members of the court-martial panel found Stewart guilty on several counts and sentenced him, among other things, to eight years in prison and branded him a sex offender.

Read the reviews.

Based on extensive interviews and never-before-published details taken from the actual Record of Trial, “Three Days In August” paints a portrait of military justice gone awry that’s certain to make your blood boil.

“Three Days In August” is available in paperback and ebook via most online booksellers, including Amazon.com.

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