Defending War Machine for Not Following the Secretary of State’s Arrest Order

[Fictional] Secretary of State Thaddeus “Thunderbolt” Ross ordered Colonel James “Rhodey” Rhodes to arrest Captain America, Falcon, Black Widow, and Scarlet Witch for violations of the Sokovia Accords. Colonel Rhodes hung up on the Secretary of State and said “that’s a court martial” for violating the order. How could a defense attorney defend War Machine for not following orders?

Secretary of State Ross is Not in the Military Chain of Command

Colonel Rhodes’ first argument is that Secretary of State cannot give a lawful order to an Air Force Colonel based on the military chain of command. A lawful order would need to originate from the President, Secretary of Defense, the Joint Chiefs of Staff, Secretary of the Air Force, Air Force Chief of Staff, U.S. Northern Command, or whoever is Colonel Rhodes’ commanding officer or superior in rank. The Secretary of State is NOT in the military chain of command, thus cannot give an order to Rhodes.

Secretary of State Ross spent his professional life in the Army barking orders amounting to unlawful surveillance of U.S. Citizens in his search for Bruce Banner. While Ross is used to giving orders people follow from his days as an Army General, he was no longer on active duty while serving as the Secretary of State. Moreover, there is no one he could “order” in the military chain of command to have Captain America’s Avengers arrested.

It is possible the Avengers reported directly to the Secretary of State pursuant to legislation enacting the Sokovia Accords as law. If that is the case, Colonel Rhodes still has other valid legal defenses.

The Air Force Cannot Conduct Law Enforcement

Secretary Ross’s order to arrest Captain America’s Avengers would violate the Posse Comitatus Act. The Act expressly prohibits the Air Force from conducting law enforcement:

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.

As an Air Force officer, Colonel Rhodes is barred by law from conducting law enforcement activities. There is no better example of law enforcement activities than performing arrests. As such, ordering Rhodes to perform an arrest would violate the law, thus be an “illegal order,” which Rhodes would not have to follow.

Steve Rogers and Sam Wilson were the only team members with military service. Sam Wilson was no longer on active duty. There is no evidence that Steve Rogers was AWOL from active duty, providing Colonel Rhodes legal authority to have Captain America arrested. Rogers was frozen in ice before the end of World War II for over 70 years. His service period would have ended sometime after the war, however, there are good legal questions on how much back pay Captain America is owed by the U.S. Government. Regardless, it would be a stretch to say Colonel Rhodes was a military superior of Steve Rogers and legally required to arrest the greatest soldier of all time.

The Order to Arrest Violated the Fourth Amendment

General Ross only ordered Colonel Rhodes to “arrest them.” There were no specific charges against the Avengers, besides Ross being upset.

The Fourth Amendment to the United States Constitution requires that arrest warrants will not be issued without probable cause supported by an affirmation that describes the person to be seized (arrested). USCS Const. Amend. 4. The Federal Rules of Criminal Procedure further state that criminal complaint and supporting affidavits must “establish probable cause to believe that an offense has been committed and that the defendant committed it.” USCS Fed Rules Crim Proc R 4.

Secretary Ross ignored the probable cause requirements for an arrest warrant and ordered the arrest of Captain America’s Avengers. As the charges against the Avengers were not stated and without an arrest warrant supported by probable cause, Rhodes was correct in not following the order.

The Arrest Order Was an Illegal Order Because the Sokovia Accords Are Unconstitutional

The Hail Mary argument for War Machine is that the Sokovia Accords are Unconstitutional, thus arresting anyone for violating them would be an unlawful act. Colonel Rhodes only has a duty to follow LEGAL orders, because an order “must command a thing not in itself unlawful or prohibited by law.” US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

U.S. citizens since the adoption of the Sokovia Accords were held without trial on a submarine prison known as the Raft. All were denied the right to counsel. Moreover, the entire concept of a “prison ship” has been rejected in the United States because of events during the Revolutionary War. Colonel Rhodes could argue with a straight face that arresting people in violation of the 4th, 5th, 6th, and 8th Amendments would amount to an illegal order, thus he was not legally bound to follow it.

Just Say No to Illegal Orders

Colonel James Rhodes was correct in not following Secretary of State’s order, because it was not in the military chain of command, violated the 4th Amendment on its face, and was based on a treaty or enabling laws that violated the United States Constitution. Colonel Rhodes took an oath to upload and defend the Constitution, not desecrate it.