Someone to Watch Over the SSR

The Agent Carter episode “Time and Tide” carried a rising tide of legal issues, from a woman being evicted from an all female apartment for having a man over (who did scale the building), to custodial interrogation of Jarvis without an arrest, to charges of treason for Jarvis forging a general’s signature to help his future Jewish wife escape before World War 2, and threats of deportation.

SSR-TugboatOn a very welcome note, Agent Carter conducts an investigation in coveralls. This is a welcome break from comics where female characters often fight evil in Kevlar lingerie. Bikinis are not bulletproof and provide minimal protection from the environment (Even the Sub-Mariner has ditched his green speedo for the 1970s costume). Coveralls make a heck of a lot more sense for climbing down a sewer.

And Agent Carter’s coveralls do not get ripped in the fight.

Does the SSR Conduct Law Enforcement?

The Strategic Scientific Reserve (SSR) in Agent Carter conducts domestic law enforcement with searches of property and arrests of individuals. In the real world, investigating Howard Stark and foreign spies would have been under the purview of the Federal Bureau of Investigation.

The SSR conducting law enforcement is a huge shift from its role in Captain America The First Avenger. In the agency’s original form, it was clearly a branch of the Army to develop advanced weapons to fight the Axis powers in World War 2 and fighting HYDRA. In Marvel’s version of 1946, we see SSR Agents in a secret New York office, arresting people, conducting interrogations, and throwing around the need to get search warrants. These actions are clearly law enforcement responsibilities that would be subject to judicial oversight to ensure compliance with the Constitution.

There is a huge issue with the military conducting law enforcement. Congress enacted the “Posse Comitatus Act,” to specifically prohibit the military conducting law enforcement. The Act states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

It is highly likely that the fictionalized President Truman and post-World War 2 Congress re-purposed the SSR to deal with the “wonder threats” directly threatening the United States. While it is very odd to see a law enforcement agency also conducting espionage, this is the likely structure for the SSR’s operation.

That being said, the fact the SSR Agents boarded the tugboat Heartbreak without a search warrant would be an Unconstitutional search. Getting a tip from “a pal” is not exactly enough of a reason to side step complying with the 4th Amendment. One could argue there was an Exigent Circumstance because someone called a secret phone number for a secret law enforcement agency that the public was not supposed to know about. While that definitely is something to consider, there was no visible evidence from seeing the docked tugboat of any danger of sinking or possible destruction of evidence. A SSR lawyer could argue that the danger of Stark’s missing weapons justified such a search without a warrant, however, it would be a very problematic argument.

And suppressing any evidence against Howard Stark from the tugboat would be a real heartbreak for the SSR.

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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.