Agents of S.H.I.E.L.D. Is a Joy Ride, Just Not For The Constitution

It is time to take your Infinity Serum and put on your eyepatch. Agents of S.H.I.E.L.D. is an absolute delight to have on TV.

Just one little thing: those spies had no clue about upholding the Constitution. They need a lawyer on the team. I have a law degree, bow tie and eyepatch if you need me.

I have loved S.H.I.E.L.D. since there were two Germanys and the fear of a nuclear war. Back in the “good old days,” S.H.I.E.L.D. villains included Hydra, AIM, terrorists and…..Godzilla.

No, seriously, in the 1970s S.H.I.E.L.D. fought Godzilla. I have the comics. Honest.

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S.H.I.E.L.D. has also been its own worse enemy, such as in Nick Fury, Ex-Agent of S.H.I.E.L.D.; to Fury’s private little war that branded him a traitor; to going in the wrong direction in Marvel’s Civil War; to being heavily compromised in Secret Invasion; and to being the tool of Norman Osborn’s police state in Dark Reign.

Let’s get back to the TV show.

Agents of S.H.I.E.L.D. is one heck of a fun ride. However, I was rather concerned with the lack of any respect for the US Constitution in the first episode.

Here is what bothered me:

Skye is exercising her First Amendment rights to blog/podcast about her concerns of the treatment of “super-heroes” in what she called the “Rising Tide.”

Agents Coulson and Ward find Skye’s location in a parked van, place a bag over her head and take her into custody. No mention of whether they had a warrant to track her.

There was no, “you are under arrest” or even a hint of what laws she violated. Furthermore, Miranda Rights were not read to her.

Leslie_SHIELD_2813Skye’s arrest looked more like a kidnapping by a government spy agency for a citizen exercising her First Amendment rights.

The ACLU, Libertarians, and anyone with a law degree should be saying, “WWWWWAIIIITTT a minute.”

No one in the United States is arrested with a bag over their head, no statement on why they are being arrested and no mention of rights. That is how the KGB and Gestapo used to do business.

Coulson and Ward could have properly arrested Skye for hacking into S.H.I.E.L.D., obtaining classified information and possibly broadcasting that information.

Hacking into a top secret government agency would justify an arrest for violating a phone book worth of laws. S.H.I.E.L.D. had valid reasons for arresting Skye, but the arrest instead had all the hallmarks of a kidnapping that violated the 4th, 5th and 6th Amendments to the US Constitution.

S.H.I.E.L.D. [in the TV show] stands for Strategic Homeland Intervention, Enforcement and Logistics Division. If S.H.I.E.L.D. is a law enforcement agency, they need to comply with getting search warrants on US Citizens and must conduct proper arrests pursuant to the US Constitution. If S.H.I.E.L.D. is functioning more as a the spy agency, that raises all sorts of issues of domestic espionage.

By way of comparison, the CIA is specifically prohibited from conducting domestic spying. Here is the statement from the CIA website:

CIA’s mission is to collect information related to foreign intelligence and foreign counterintelligence. By law, the CIA is specifically prohibited from collecting intelligence concerning the domestic activities of U.S. citizens. By direction of the President in Executive Order 12333, as amended, and in accordance with procedures approved by the Attorney General, the CIA is restricted in the collection of intelligence information directed against U.S. citizens. Collection is allowed only for an authorized intelligence purpose; for example, if there is a reason to believe that an individual is involved in espionage or international terrorist activities. The CIA’s procedures require senior approval for any such collection that is allowed, and, depending on the collection technique employed, the sanction of the Director of National Intelligence and Attorney General may be required. These restrictions on the CIA, or similar ones, have been in effect since the 1970s.

Level 7 Clearance and the Constitution

I absolutely loved the first episode of S.H.I.E.L.D. Great pace, fun characters and it is a treat to see a comic book come to life. The fanboy in me believes that Agent Coulson is really a Life Model Decoy (LMD), but we will see how that plays out.

More importantly, we had the classic Nick Fury flying car, which I believe long predates Doc Brown’s in Back to the Future by 20 years.

Just please, have the good guys follow the Constitution. I will waive my hourly rate and sign an NDA if you want to bounce a Con Law question off of me.

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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, the ABA Web 100 for Best Legal Blog and Podcast categories, 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.