Answer: Neither.
The reason neither SHIELD is legal is simple: Neither Director Coulson nor Commander Gonzales are operating under authority of the United States Government. No one is working with the Attorney General for law enforcement operations in the United States or the Secretary of Defense for the USS Iliad, possibly the last helicarrier at sea. Certainly no one is following the President’s orders. In short, Commander Robert Gonzales’ SHIELD operates like a military junta outside of the US chain of command.
The Day SHIELD Fell
The US military, under the command of Air Force General Talbot led an assault on the SHIELD Hub after the events of Captain America The Winter Soldier. As seen in the last episodes of season one of Agents of SHIELD, SHIELD was ordered to surrender. Multiple non-fatal confrontations have taken place between Coulson’s SHIELD Agents and the Talbot’s troops. A détente has been reached between Coulson’s SHIELD and Talbot, giving Coulson the air of legitimacy as quasi-government contractors conducting military activities.
The same cannot be said of Robert Gonzales. It is tempting to compare the Iliad to the Battlestar Galactica, but that comparison would be in error. Admiral Adama had President Laura Roslin and ultimately a new Quorum of Twelve. The stands in total contrast to the surviving SHIELD Agents onboard the Iliad, who apparently are not in communication with the United States Government. The Iliad seems to have more in common with the CSS Shenandoah, the last Confederate warship that unknowingly continued raiding Union shipping for months, unaware the Civil War was over. All of those Confederate sailors should have been hung for piracy. [Last Flag Down by John Baldwin and Ron Powers is a great telling of the CSS Shenandoah’s story].
Commander Gonzales and his SHIELD Agents recaptured the Iliad after HYDRA came out of the shadows and into the light. However, the fact Gonzales told Agent May that he had been “out voted” is evidence that Gonzales is not taking orders from the President, Secretary of Defense, Attorney General, or anyone in the military chain of command. This means a nuclear powered flying aircraft carrier with WMD is cruising the Seven Seas on their own orders.
This would not be acceptable after the events of Captain America The Winter Soldier. If a helicarrier were “lost” and not responding to orders, the Navy would have orders to sink the Iliad. There is too much risk in having a rogue flying ship that can level cities at sea that is outside of the military chain of command.
The “Real” SHIELD Would Follow the Constitution
The fact Gonzales’ SHIELD Agents captured Coulson’s SHIELD base without any other Federal law enforcement agencies, that no one was arrested was given Miranda Rights, and the total subversion of the Writ of Habeas Corpus, is further evidence that Gonzales’ SHIELD is not the “real SHIELD.”
There is another issue with the SHIELD Junta onboard the Iliad: they are violating the Posse Commitatus Act, 18 USCS § 1385. The Army and Air Force is expressly prohibited from conducting law enforcement. The Navy and Marine Corps are bound by the Posse Comitatus Act, pursuant to Department of Defense regulations promulgated under 10 USCS § 375, DOD Directive 5525.5(c), SECNAVINST 5820.7B. However, the Navy can provide passive participation to the Coast Guard in conducting drug boardings, arrests, interrogations and ensuing investigations. United States v Mendoza-Cecelia (1992, CA11 Fla) 963 F2d 1467, cert den (1992) 506 US 964.
SHIELD is a strange comic book agency where law enforcement is merged with espionage and military operations. These functions are separate in the real world. Commander Gonzales could argue his assault on Coulson’s SHIELD was a military operation on US soil, however this argument would fail. Claiming law enforcement activities are military operations to get around the Posse Commitatus Act would not fly, because that violates the entire purpose of prohibiting the military from conducting law enforcement.
There is no doubt that the attack and capture of Coulson’s SHIELD was done without warrants, reading Miranda Rights to those arrested, and ignored the Writ of Habeas Corpus. All of these events demonstrate the “real SHIELD” is not operating legally. Gonzales’ SHIELD agents are mutineers at best for not following orders after SHIELD fell and pirates at worse for illegally abducting Hunter and May to the Iliad.
[Noted: Corrected on April 15]
