I Was Just Following Orders on the USS Vengeance

The USS Vengeance could have had survivors after its crash landing into San Francisco in Star Trek Into Darkness.

The charges against the Star Fleet/Section 31 officers on the USS Vengeance would include everything from attempted instigation of war against the Klingon Empire, a possible illegal Skunk Works operation to build the USS Vengeance, sabotage of the USS Enterprise, attempted destruction of the USS Enterprise, kidnapping of Carol Marcus, and the deaths of numerous Enterprise crew members. Additionally, those involved in the construction of the USS Vengeance may also have been part of the conspiracy to start a war.

RedShirt_Surprise_WarThey would have one horrible defense: I was just following orders.

This defense did not work at Nuremberg or My Lai.

For the “I was just following orders” defense to be effective, presuming Star Fleet follows a futuristic US Military Code of Justice, the order first had to be a lawful order.

It is time to boldly go and review case law of “I was just following orders.”

A defense JAG officer’s personal log would begin with a supplemental entry. As a preliminary matter, we should know the charge against the officers: Murder.

Murder is defined as follows:

Any person subject to this chapter [10 USCS §§ 801 et seq.] who, without justification or excuse, unlawfully kills a human being, when he–
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson;

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

10 USCS § 918.

IDidNOTVengeanceThe USS Vengeance opened fired on the USS Enterprise at Warp Speed, penetrating the hull, causing the loss of life through the phaser hits and violently launching others into the vacuum of space.

These actions by those manning the ship and firing the weapons all meet elements 1 to 3 of the code.

Would “I was just following orders of Admiral Alexander Marcus when I opened fired” be a valid defense?

Consider the following cited in 1954 from US v Kinder:

In Winthrop’s Military Law and Precedents, Second Edition, Reprint 1920, the defense of justification for a criminal act by a soldier based on obedience to the order of a military superior is treated as follows:

“OBEDIENCE TO ORDERS. That the act charged as an offense was done in obedience to the order — verbal or written — of a military superior, is, in general, a good defense at military law.

“Further the order, to constitute a defense, must be a legal one. It must emanate from a proper officer — a superior authorized to give it — and it must command a thing not in itself unlawful or prohibited by law. In other words, it must be an order which the inferior is bound to obey. While obedience by inferiors is the fundamental principle of the military service, it is yet required to be rendered only to a lawful order. It is ‘the lawful orders of the superiors appointed over them’ that ‘all inferiors’ are, by par. 1 of the Army Regulations, ‘required to obey strictly and to execute promptly;’ and it is the ‘lawful command of his superior officer’ which by the 21st Article of War, ‘any officer or soldier’ may be punished even with death for disobeying. But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond he legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness. Such would be a command to violate a specific law of the land or an established custom or written law of the military service, or an arbitrary command imposing an obligation not justified by law or usage, or a command to do a thing wholly irregular and improper given by a superior when incapacitated by intoxication or otherwise to perform his duty. Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it he can scarcely fail to be held justified by a military court.

“It may be added that an order which might not be regarded as legal in time of peace, may furnish to the inferior obeying it a complete defense in time of war, as being warranted  by the laws and usages of war.” (pp 296-297).

US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954)

The soldier in the Kinder case was ultimately found guilty and his conviction upheld. The soldier was ordered to take a civilian, lying on the floor of a building, outside and execute him. The soldier was following the orders of his superior officer. The Court found the soldier acted with criminal intent, because the soldier knew about the conspiracy between his superior officers to kill the civilian. This made the soldier a co-conspirator, thus making the superior officer’s order unlawful. Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

One court further explained the law as follows:

The general rule is that homicide committed in the proper performance of a legal duty is justifiable. Thus the acts of a soldier done in good faith and without malice in compliance with the orders of a superior are justifiable, unless such acts are manifestly beyond the scope of his authority, and such that a man of ordinary sense and understanding would know them to be illegal. Where, however, the order is so manifestly beyond the power or discretion of the commander as to admit of no rational doubt of its unlawfulness it cannot be used as a cloak of immunity to render justifiable an act which, but for such order, would be unlawful (40 CJS Homicide, sec 107, p 967; Winthrop’s reprint, pp 296, 297; MCM, 1928, par 148a).” (page 365).

Kinder, at *773.

Any surviving officers from the USS Vengeance would be hard pressed to claim Admiral Marcus’ orders were lawful. Their ship had been built in secret; their mission a prelude to war by destroying Star Fleet’s Flagship. There is little evidence to show any lawful orders, but plenty to show a conspiracy to start a war.

As such, any surviving officers could be convicted for the deaths on the Enterprise, because they were part of Admiral Marcus’ conspiracy. It is also likely that the following crash into San Francisco after Khan took control of the Vengeance could also be attributed to them as well.

However, there is an argument when the ship was captured by Khan, Kirk and Scotty, that was a superseding factor effectively limiting all harm from crimes to that point in time, because Khan aimed the crashing ship at Star Fleet Command in San Francisco. The foreseeable actions of the Vengeance would have caused the destruction of the Enterprise or war with the Klingon Empire. Crashing on Alcatraz and into the city would not have been a foreseeable result of the attack on the Enterprise.

Now for the big unanswered questions: What are the laws on performing medical experiments on Tribbles? How often did Dr. McCoy experiment on Tribbles? What award did Bones win for curing death?

TribbleMedicalExperiment

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.