How was the Empire’s data security on Scarif? Privacy attorney Jack Yang joined me at Illusive Comics to geek out over Star Wars, discuss Rogue One, how the Doctrine of Fear did not encourage effective information security best practices, and the legal issues with Bring Your Own Droid to work policies.
Jennifer Walters, formerly known as the Incredible She-Hulk, has been struggling ever since the end of the events of Marvel’s Civil War II. At the beginning of the event, Walters is knocked unconscious in a battle royal between a passel of various superheroes and Thanos, the mad Titan; she spends the rest of the event in a coma, sometimes being visited by former teammates, but otherwise missing in action. Although she makes it out of Civil War II alive and with a new solo series (entitled simply, Hulk), it’s clear she’s been changed for the worse.
We see her trauma in the major life changes she decides to make at the start of her new series; she now remains in her human form, forswears crime-fighting, and returns to her legal practice. Whereas she used to remain in her She-Hulk form as both civilian and superhero, that body now brings with it traumatic memories of her last fight. Even thinking about what happened (and the family and colleagues she has lost) causes her to break out in a sweat and double over in pain. She also appears to be separating herself from the people she knew in her superhero life. When Patsy Walker, aka HellCat, texts her to see how she is, Jennifer doesn’t respond. When she leaves work, we see her lock herself away in her apartment alone.
Based on the Mayo Clinic’s helpful website and her own behavior, it appears that Jennifer now suffers from post-traumatic stress disorder (PTSD). Symptoms of PTSD include recurrent, intrusive, memories of the traumatic event (check); avoidance of talking about the event or to anyone related to it (check); changes in emotional reactions, including irritability, overwhelming guilt, shame, or anxiety (check); and negative changes in thinking and mood, including difficulty in maintaining close relationships and a loss of interest in previously enjoyed activities (double-check). Jennifer is plagued by thoughts she cannot control, has cut herself off from the superhero world she once loved, and is anxious and irritable due to this trauma. It certainly looks like PTSD.
Attempting to juggle PTSD and any job is hard enough; trying to do that within a licensed profession is a different ball of wax altogether. Attorney licensure is regulated by the bar of each state. In New York, where Jennifer practices, the appellate division of the supreme court for each geographic division of New York (called “departments”) determines whether a person “possesses the character and general fitness requisite” to practice as an attorney in the first place; they also determine whether to sanction or disbar an attorney from practice. NY CLS Jud §90.
Attorney discipline generally happens through a court case filed by the Departmental Disciplinary Committee (DDC) in the department where the attorney practices law. New York law provides that whenever the DDC petitions the “court to determine whether an attorney is incapacitated from continuing to practice law by reason of physical or mental infirmity or illness […] this court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including examination of the attorney by such qualified experts as this court shall designate.” 22 NYCRR §603.16(b)(1).
The appellate division is “authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice.” NY CLS Jud §90(2).
There’s no allegation that Jennifer lied or hid any information when she became an attorney (she did not gain her powers or experience mental illness until well after she was already licensed, and it appears that her She-Hulk alter-ego has been common knowledge since then). There’s also nothing to suggest that she has engaged in any fraud, deceit, crime, misdemeanor, or any conduct prejudicial to the administration of justice (think: lying to police or blackmailing clients).
The concern for Jennifer lies with the specter of professional misconduct and malpractice. There are not many New York state attorney disciplinary cases involving mental health issues that have reached the appeal stage, and many of the ones that exist seem to purposefully shroud their details to protect the attorneys’ privacy. The few details we have, however, are illuminating: they are either cases where the diseases themselves have made the attorneys incapable of performing legal work (because they were removed from reality, as the attorneys in In re Cohen, 92 AD 2d 139 (1983), In re Colp, 185 AD 2d 43 (1993), and In re Dickson, 196 AD 2d 399 (1994), were) or they are cases where the effort of dealing with the mental illness made it impossible for the attorneys to keep up with their work. This second category of case includes In re Guran, 126 AD 2d 216 (1987), (where the attorney was too mentally disordered to prepare for his own disbarment hearing); In re Jordon, 202 AD 2d 141 (1994), (where the attorney’s severe, chronic, depression and resulting mental fragility caused her to engage in unspecified misconduct); and In re Rochlin, 100 AD 2d 263 (1984), (another severe depression case where the attorney lied to clients and fabricated legal documents because he could no longer keep up with his work).
As everyone knows Jennifer Walters used to be the She-Hulk, it seems unlikely that a psychiatrist interviewing her would think she’d had a break from reality when she talks about the fantastical cause of her pain. With the severity of her panic attacks and the physical manifestations of her stress, however, it seems possible that Jennifer’s trauma may lead to her neglecting her work and engaging in bad behavior to try to keep up. If so, a petition by the DDC and a court order could force her into a psychiatric evaluation and a pause from her life as a lawyer.
Without her superhero or professional identities, who would Jennifer Walters even be? If she’s unwilling or unable to treat her PTSD, we may just find out.
Jyn Erso was introduced in Rogue One trailer with a list of offenses that resulted in her being sentenced to hard labor by the Empire. How much prison time should she have served if in the United States? How much time would she have added for her escape from the Wobani Imperial Labor Camp?
Jyn’s first offense was Forgery of Imperial documents. In California, that would have been one year in prison. Pen. Code, § 473. If the document was an Imperial document akin to a passport that was then used for terrorism, the prison term would have been for 25 years. 18 U.S.C. § 1543.
Erso’s second offense was for possession of stolen property, which could have a prison term of 20 years. 18 U.S.C. app. § 2B1.1.
The offense of aggravated assault could have a term of at least 14 years. 18 U.S.C. app. § 2A2.2. Additional years can be added based upon injuries the victim had, such as another five years for “serious bodily injury.” 18 U.S.C. app. § 2A2.2(b)(B).
Jyn’s charge of resisting arrest could have included a sentence of two, three, or four years, depending on if she used a deadly weapon to resist, if the Empire had laws similar to California. CA Pen. Code, § 417.8.
Jyn’s escape from Wobani would result in a fine and/or an additional five year sentence. 18 U.S.C.S. § 751. Jyn’s prison term could have been 25 years to 69 years, if the Empire had a similar legal system, depending the amount of time sentenced, and if sentences ran concurrently or consecutively. That would be more time than Obi Wan Kenobi spent on Tatooine and Luke Skywalker on Ahch-To combined, if Jyn had the maximum sentence.
The universe was introduced to Cassian Andor in Rogue One murdering an informant named Tivik, so the Empire would not capture the informant. Tivik had in injured arm, which disabled him from climbing to safety from closing Imperial Stormtroopers. If Tivik had been captured, much of the Rebel plans would have been exposed to find Jyn Erso.
Cassian’s actions are highly problematic legally (let alone morally). First, Cassian killed Stormtroopers who asked for his identification. The Stormtroopers only asked for Cassian’s identification, which is highly difficult to justify the use of lethal force as a response. However, the Stormtroopers did not have reasonable suspicion to stop Cassian, as he was not apparently breaking any laws. Perhaps Cassian could have reasonably believed his life was in danger based on past actions of Imperial Stormtroopers, but this would still push self-defense laws well past the norm.
Tivik posed no direct threat to Cassian’s life. Killing Tivik would meet the legal definition of murder, because Cassian killed Tivik with malice aforethought, because there was an “intent-to-kill.”
Tivik had knowledge that could have been fatal to the Rebellion. If the Empire had learned of Galen Erso’s actions, or the existence of Jyn Erso, the Rebels would not have been able to develop a plan to find Jyn and ultimately the Death Star plans. Unfortunately for Cassian, the necessity defense does not cover killing people.
The street fight on Jedha witnessed Cassian shooting one of Saw Gerrera’s “extreme rebels.” Gerrera’s freedom fighter had an explosive device that objectively looked like he was going to throw the explosive at the disabled hover tank. As Jyn Erso was hiding by the tank to protect herself from the fire between Gerrera’s men and Stormtroopers, Cassian could argue he killed Gerrera’s soldier in order to protect Jyn from being killed.
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With all the moving pieces in Rogue One, don’t feel bad if you came away a little confused about how exactly the Rebel Alliance is composed. After all, even Jyn Erso had trouble making sense of it when she first arrived at the Rebel base. In the original trilogy films the good guys were really easy to tell apart from the bad ones—partly because of the Empire’s affinity for white, black, and various tones of grey. Rogue One muddied those waters.
In the original trilogy, the Rebellion was portrayed as a singular entity: a rag tag force that ducked, bobbed, and weaved around the galaxy. Rogue One changed that by showing us a fragile Rebel Alliance beset by divisiveness and extremist factions.
In this way Rogue One mirrors the real world, as conflicts have rarely been limited to two factions duking it out on the battlefield. The US experienced this in its own history, with irregular forces playing a role in almost every conflict from the American Revolution to operations in Afghanistan. Militias, extremists, and other irregular military forces often present complications that extend far past any single battle. Most recently, the “War on Terror” and Syrian Civil War have brought these complications into sharp focus as nations grapple with how to deal with different types of fighters.
Rogue One presents many of those same issues. While the larger Rebel Alliance struggles to throw off the Empire’s yoke, splinter elements like Saw Gerrera’s ruthless militia frustrate their efforts. The interplay between the Alliance and Saw’s forces poses an interesting question: What sort of legal status do the fighters in Rogue One have?
Fortunately, we don’t need K-2SO’s skills in strategic analysis to answer this one. Under the law of war, those who take direct part in fighting are considered combatants. But not all combatants are created equal under the law of war. “Privileged” (or “lawful”) combatants are those who meet certain traditional criteria established, in part, by The Hague and Geneva Conventions. Those requirements include (1) wearing a fixed distinctive sign or uniform; (2) operating under a military command; (3) carrying arms openly; and (4) abiding by the laws of war. Someone who fights but does not meet one or more of those requirements is considered an “unprivileged” (or “unlawful”) combatant. There is a big distinction between the two, as “privileged” combatants are entitled to prisoner of war (POW) status if captured and bear no criminal responsibility for acts within the bounds of the law of war.
Luckily for the Rebels, they fit the criteria for privileged combatants. First, while they may lack the polished white armor of Imperial stormtroopers (or the supremely badass Death Troopers’ black kits), the Rebels wear their own brand of uniform. We see a mix of these throughout Star Wars, from the iconic blaze orange flight suits of Red and Gold squadrons to the dapper button down and vest-wearing fleet troopers. Many Rebel pilots’ helmets are also emblazoned with the Rebellion’s iconic starbird symbol.
The Rebel Special Forces (SpecForces) Soldiers who volunteered for the Scarif infiltration may not have REBELLION stitched on their backs, but they were still equipped in uniforms. Much like their brethren on Han Solo’s Endor strike team, their uniforms were meant to be utilitarian. Their shirts, vests, cargo pants, and combat boots are roughly similar to each other. The Continental Army faced similar circumstances during the American Revolution. American troops generally wore similar uniforms, but not every soldier had access to the same supplies, which sometimes resulted in ragtag-looking battle formations. As a whole, the Alliance’s uniforms are distinctive, which serves an important underlying purpose: It helps distinguish them from civilians on the battlefield.
Saw Gerrera’s militia force on Jedha provides a stark contrast. His forces forgo any type of uniform. This is best exemplified in the scene where Saw’s forces ambush an Imperial tank in the middle of Jedha City. His forces dress in clothing similar to Jedha civilians, wearing no type of uniform or distinctive insignia. Doing this surprises the Imperial troops when they hit the tank. After the ambush they again take advantage of their civilian appearance to melt back into the civilian population as Imperial reinforcements arrive.
Second, Alliance fighters operate under a military command. The Rebels in Rogue One have a clearly established chain of command, from lower enlisted troops like Corporal Bistan (everyone’s favorite space monkey door gunner on the U-Wing) all the way up to officers like crotchety General Draven and loveable Admiral Raddus. While one can certainly question the Alliance’s military decision-making (ahem, Admiral Raddus—we all saw you cowboy off to Scarif), there is no question that their forces are organized in roughly a traditional command structure. Those in authority maintain control over their forces and bear responsibility for their actions.
On the other hand, Saw’s forces are merely a loosely cobbled collection of denizens aligned around a similar goal. Saw is undoubtedly the leader of the group, but his position bears little resemblance to the type of military command contemplated by the law of war. To Saw Gerrera, this presents an advantage—the lack of rigid military command, control, and accountability gives his forces moral and tactical flexibility to more quickly achieve their objectives.
Third, Alliance troops carry their arms openly. The requirement that privileged combatants carry arms openly helps distinguish them from civilians, just as with the uniform requirement. In Rogue One, the Rebel SpecForces on Scarif openly carried blasters as they maneuvered, fired, and displaced. The same went for the unfortunate Rebel troopers who rushed to download the Death Star plans before getting cut to ribbons by Darth Vader in quite possibly the most amazing Star Wars scene ever.
In comparison, Saw’s band of fighters only did so when it suited them. While some of his men are seen openly armed during the prisoner exchange with Bodhi, those involved in the Jedha City ambush conceal their arms until the last second. This quickly causes chaos, as the Imperials have trouble telling combatants apart from civilians in the fray. This confusion unnecessarily put civilians in harm’s way.
Finally, although some of their actions were questionable, the Alliance abides by the law of war throughout Rogue One. For instance, they do not kill indiscriminately or target civilians. The Rebels contain their strikes to legitimate military targets, using force only when necessary. Conversely, Saw Gerrera’s forces appear to be at peace with violating the law of war if it helped achieve their objectives. The Jedha City ambush is a prime example, as many of Saw’s men disguise themselves as civilians before firing on stormtroopers. Under the Geneva Conventions Additional Protocol I, feigning protected civilian status to kill enemy combatants is considered perfidy, a treacherous act and breach of the law of war. Similarly, Saw’s use of the tentacled bor gullet creature to interrogate Bodhi Rook arguably constituted torture, which would violate tenets of international law such as the 1984 Convention Against Torture.
Unlike Rebel Alliance soldiers, Gerrera’s band bears a striking resemblance to groups like the World War II French resistance groups Franc-Tireur and Francs-Tireurs et Partisans. These groups operated in small cells, wore no uniforms, and aimed to disrupt German occupation of France at all costs, much like Saw’s forces sought to do on Jedha. In the post-World War II Nuremberg Trials, many of the partisan fighters aligned with those groups were found to be unprivileged combatants. Saw’s forces would likely be treated the same given their composition.
In contrast, Rebel Alliance soldiers are classified as privileged combatants. This distinction is critically important to the Alliance because of the protections privileged combatants enjoy under the law. First and foremost, any captured Alliance soldiers would be entitled to POW status and granted the protections outlined in the Third Geneva Convention. Without this sort of protection captured Alliance forces would face a grim fate upon capture, including inhumane treatment, neglect, and summary execution. Although POW status would not magically prevent the Empire from committing abuses, it is nonetheless a vital right of lawful combatants.
Additionally, as lawful combatants, Alliance forces would bear no criminal responsibility for killing enemy personnel or destroying enemy property, provided the acts were done within the bounds of the law of war. Given the Alliance operations we see in Rogue One, this protection is critical. For example, Alliance pilots could not be held responsible for killing Imperial forces during their bombing run on Eadu. Similarly, had Scarif not been swatted by the Death Star, the Rebel SpecForces would be immune for their destructive efforts on the planet.
In the end, the Alliance’s concern for distinguishing itself from Saw’s band of fanatics goes far beyond the need for legal protections. Much like American forces during the Revolution, the Alliance’s struggle for legitimacy was just as important as any of their combat operations. Splinter factions like Saw Gerrera’s severely undermine the larger cause, as their extreme tactics helped the Empire’s effort in casting the Rebellion as a collection of terrorists and insurrectionists who deserve no quarter. It is therefore essential that the Alliance distance itself from those kinds of splinter groups by conducting its combat operations appropriately—even if the bad guys are led by a psychopathic Sith lord and his youngling-murdering half robot apprentice.