Traitors of SHIELD

Agents of SHIELD episode “Turn, Turn, Turn,” was an action-packed tie-in to Captain America Winter Soldier. Best episode to date. As expected, a whole bunch of SHIELD Agents need to face a firing squad for being HYDRA.

Out of the Shadows And Into The Light

Every member of SHIELD who served HYDRA, from working on the Project Insight Helicarriers to killing other agents, is a traitor under the United States Constitution.

Treason is defined under the Constitution 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 trial of Vice President Aaron Burr held that “levying war” against the United States includes those who “perform a part in the prosecution of the war” commit treason. In re Burr, 1807 U.S. LEXIS 406, 10 (U.S. 1807). This requires that a traitor performs a part of an overt act and be “leagued with the conspiracy.” In re Burr, at *13-14.

SHIELD_AaronBurrJudge Smalley in a Civil War opinion explained that acts of treason include a group of people conspiring to mount an insurrection by force and then carrying out their planned insurrection are guilty of treason by levying war. Charge to Grand Jury-Treason, 30 F. Cas. 1032, 1033 (C.C.S.D.N.Y. 1861).

It is well known that war — civil war — exists in portions of the Union; and that persons owing allegiance to the United States have confederated together, and with arms, by force and intimidation, have prevented the execution of the constitutional acts of congress, have forcibly seized upon and hold a custom-house and post-office, forts, arsenals, vessels, and other property belonging to the United States, and have actually fired upon vessels bearing the United States flag and carrying United States troops. This is a usurpation of the authority of the federal government. It is high treason, by levying war. Either one of those acts will constitute high treason. There can be doubt of it. The fact that any or all engaged in the commission of these outrageous acts under the pretended authority of the legislature, or a convention of the people, of any state, or of the officers appointed thereby, or acting thereunder does not change or affect the criminal character of the act. No man or body of men can throw off their allegiance to their government in that way. Nor can any state, or the people of any state, acting in any capacity whatever, absolve any person therefrom. Neither South Carolina nor any other state can authorize or legally protect citizens of the other states in waging war against their government, any more than can the queen of Great Britain or the emperor of France. If any such power is assumed it is without right, and the deluded individual who acts under it is none the less guilty of treason, and liable to be punished therefor.

Charge to Grand Jury-Treason, 30 F. Cas. 1032, 1033 (C.C.S.D.N.Y. 1861)

All of the HYDRA Agents at the Hub levied war against the United States by 1) Being part of the conspiracy to build flying aircraft carriers that target people by DNA for mass executions; 2) Killing Agents of SHIELD in their take over of the facilities in furtherance of Project Insight; 3) all other actions done in prosecution of the war against the US government.

Murder Without Consideration

Better late than never, Agent Coulson was concerned about firing on SHIELD Agents who were only following orders at the Hub, thus ordered the team to use Icers.

That would have been a good idea at the Guest House.

Any SHIELD Agents who did not know who to trust, who were unknowingly following HYDRA orders, would actually have a valid “I was just following orders” defense.

SHIELD_ShootOrders must be lawful for a soldier to argue the “I was following orders” defense. A test for whether an order is unlawful is whether the “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). US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

SHIELD Agents would have had a hard time in the opening moments of the rebellion to know whether orders were beyond the power or discretion of their commanding officers, because of the mass confusion and not knowing who was who. However, as evidence started becoming clear on who was issuing orders that would levy war against the United States, such as killing unarmed people, would be a clear sign of unlawful orders.

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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.