Focus: Release the Leviathan

Dr. Ivchenko and Dottie Underwood either are terrorists or committed an act of war in the penultimate episode of Agent Carter. The title of the episode “Snafu” highlights that things did not go well for our heroes, but wow, what a great episode. Definitely not a “snafu.”

At least Chief Dooley went out with a bang.

LetsDoItForDooley Leviathan is Coming

Here are the key distilled facts for our legal analysis: Dr. Ivchenko and Dottie Underwood steal Howard Stark’s Item #17 from the SSR Lab, which had already been stolen once presumably by Dottie, then recaptured by Agent Carter, and then taken into custody by the SSR after Jarvis’ “anonymous” tip.

Item 17 was a poison gas that caused people to become enraged and go on a murder rampage. Underwood placed a weaponized version of the gas in a baby carriage and left it in a movie theater. Ivchenko barred the one exit to the theater, leaving the movie goers to butcher each other with their bare hands.

If Leviathan was part of the Soviet Union’s espionage service, their movie theater attack by itself would be an act of war. If Leviathan was a stand-alone organization like HYDRA, then the movie theater attack is an act of terrorism.

When Leviathan Rises Up, the Mighty are Terrified; They Retreat before his Thrashing

Job 41:25

In 1946, we did not use the term “Weapon of Mass Destruction.” At that time, the United States was the only country with atomic weapons. The Soviet Union would not test their first nuclear weapon until 1949. However, by today’s definition, a “Weapon of Mass Destruction” is any weapon that is is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors.” 18 USCS § 2332a(2)(B), emphasis added. WMD’s are also defined as “any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident.” 50 USCS § 1801(p)(1), emphasis added.

The “Gas 17” was intended to cause serious bodily injury that resulted in a mass casualty event. There is no question the gas would be classified as a WMD by today’s laws.

The world of 1946 had a different view of terror. That world had its examples of “poison gas” from both World War Wars. The Geneva Protocol of 1925 was the first to ban the use of gas and bacteriological weapons in war (and ratified by the United States in 1974). 1925 U.S.T. LEXIS 4, 1.

Just because terrorism is different in the 21st Century, does not mean people did not fear terrorism in the first half of the 20th Century. A Defendant was convicted in California in 1920 for “criminal syndicalism and sabotage,” which included disseminating a pamphlet entitled, “Poison Gas and Violence,” plus many other Communist propaganda articles, calling for the violent overthrow of the government with instructions. People v. Malley (1920) 49 Cal.App. 597, 600-6001, 609.

Cases with “poison gas” in the criminal context are limited, but there is an interesting case from 1927. Two criminals in Georgia added a “smoke screen” device to their getaway car. They used this device while a police officer was in pursuit of them. The police officer was poisoned by the carbon monoxide the smoke device emitted and was killed during the pursuit in a crash. Andrews v. State (1927) 37 Ga.App. 95, 96-97 [138 S.E. 923, 923-924].

The Court found that the Defendants were unaware of how much carbon monoxide would be emitted by the smoke-screen device, thus did not have the knowledge that their actions would have been fatal to the police officer, thus they did not have the required “intent to kill” for a murder conviction. Id.

That is not the case for Dr. Ivchenko and Dottie Underwood. The Battle of Finow must have been a field test of the gas. As such, both knew the result would be the victims killing each other.

If Leviathan was operated by the Soviet Union and Stalin issued orders to conduct an attack on the United States, that would be “armed conflict between two or more nations” under 18 U.S. Code § 2331(B). The Soviet Agents had captured weapons of mass destruction, conducted operations to kill Federal Agents, and used said WMD’s on the US population.

A fictional Hawkish President Harry Truman would be within his right to ask the Democratic Congress for a declaration of war in response to these attacks. The US military was at peak strength and the only country with atomic weapons. The Soviet’s mainline of defense was still winter and a disregard for human life. If there was to be a war, this would have been the right time from a strategic view.

It would also have been a bad idea after one already long and bloody war. No question it would end badly for both sides. Just ask President Woodrow Wilson how his invasion of Russian did with the Polar Bear Expedition.

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The alternative approach would be to give the SSR the mission to seek out and destroy Leviathan. It would be a war between militarized intelligence agencies, but Leviathan had conducted a chemical attack on New York City, which could not go unanswered.

There is the chance that Leviathan is a rogue Soviet Agency. The fact there had been an attack on the Soviets during World War II is evidence that someone killed Russians with either the same or similar gas. Leviathan is a possible suspect of the attack. However, history does remember Stalin murdering his own people.

If Leviathan was indeed a rogue Soviet espionage agency, mandating the SSR combat Leviathan would be a sound policy decision. Forming SHIELD with the mission to defend the United States from Leviathan is also a logical result.

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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.