Hey Captain America, What Could Go Wrong With a Giant Spy Agency?

Captain America Winter Soldier was my favorite comic book movie to date. Excellent storytelling, with the not so subtle warning of a massive police state. It also highlights how freedom is best destroyed from within through fear.

It is the best comic book action adventure political thriller for attorneys ever.

[Limited] Spoilers Ahead!

Josh_Cap_9195SHIELD’s Organization

We learned SHIELD is headquartered in Washington, DC with a view of the Mall. Moreover, the building is over 41 stories tall, breaking the rule that no building in DC shall be over 5 stories.

SHIELD appeared to be funded by the United States Government with a four person World Council for oversight and project approval. SHIELD had the ability to use data from traffic cameras, access the cellular communication network and online surveillance on the US population. Predictive analytic software was developed to determine who SHIELD should kill from the air prior to an attack being made by the possible threat.

If you do not like Drones, you would really not like Project Insight.

Following Unlawful Orders

Without trying to give away major plot elements, there was a faction within SHIELD trying to achieve goals that would not only be treason, but world domination. There was a significant divide between those following the treasonous orders and those saying “No.”

JudgeWashington_8758DC Circuit Judge Washington in 1813 put it the best on being required to follow illegal orders with, “It is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act.” United States v. Jones, 26 F. Cas. 653, 657-658 (C.C.D. Pa. 1813).

No one can be convicted for NOT following an illegal order. United States v. Jordan, 7 U.S.C.M.A. 452, 456 (C.M.A. 1957).

The SHIELD Agents who openly disobeyed illegal orders when confronted with the truth of SHIELD’s plans were in their legal right to do so. Moreover, those who opened fire on the rogue agents properly did so in defense of those they were supposed to protect.

Necessity Defense & Whistle-blowing

Captain America, Black Widow and Falcon committed multiple felonies in their efforts to stop the evil elements within SHIELD. These actions include destruction of public property, use of weapons in public, stealing government equipment, burglary from a museum, publishing classified material and the destruction of three helicarriers.

Cap_Uniform_9167All of these actions were done in the defense of the world to stop at least the deaths of 20 million people. Captain America, Black Widow & Falcon could argue everything they did was done out of “necessity.”

The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

For our heroes, there was no legal alternative to violating the law; the harm to be prevent was imminent and there was a casual relationship between their actions and the harm to be avoided.

Captain_Salute_4848Treason & Insanity Defense

The Winter Soldier’s story had heavy elements from the comic book, minus any references to Soviet General Alexander Lukin, the Kronas Corporation, or the Cosmic Cube.

The Winter Soldier had a 50 year history of being the used for political assassinations, having his mind erased, and put in suspended animation. Could James Buchanan Barnes be put on trial for treason and acts of war on foreign countries?

WinterSoldier_Remember_9025The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

The Winter Soldier without question committed many acts of treason. However, James Barnes would successfully be able to argue the insanity defense.  A defendant is legally insane if:

1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;


2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.

None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.

2-3400 CALCRIM 3450.

The Winter Soldier had his mind erased each time he was deployed. James Barnes was not in control of his own actions, because he was suffering from medical experiments (what looked like high electric shock therapy) and mental conditioning.  Barnes was literally a blank slate. It was not until Captain America was able to connect with Bucky’s long buried memories that he started exercising free will. As such, Bucky was incapable of knowing his actions were acts of treason.

Senator Stern on the other hand would get a firing squad after being expelled from the Senate.

There is a Reason Spy Agencies Do Not Do Law Enforcement

SHIELD is part military operation and part spy agency. Those two should never go together and neither does well conducting law enforcement. This was very clear from the warrantless wiretapping of Steve Rogers to Secretary Pierce declaring war on Captain America for “lying” to him.

The 4th Amendment requires a warrant based on probable cause for electronic monitoring of their home. Moreover, what is at best an HR violation is not grounds to mobilize an army to kill one person.

Who Cleans Up the Potomac?

Washington, DC was an environmental mess after three helicarriers crashed landed in the Potomac. Ideally, the ships ran on Stark Arc Reactors instead of nuclear power. Nevertheless, there would be massive amounts of jet fuel, explosives, chemicals and the broken hulls of three aircraft carriers that briefly flew. Who cleans it up?

FEMA and the US military (and specifically Navy Explosive Ordinance Disposal teams) would have to kick into high gear to clean up the hazards. Since the equipment was government owned, the Feds would have to face the clean up bill. Moreover, the damage was so massive only the Federal government would have the resources to handle the clean-up.