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Lessons of Cruel and Unusual Punishment with Agony Booths

The Mirror Universe in Star Trek is known for awesome uniforms and goatees. It is also known for punishing transporter chiefs with Agonizers and throwing people in Agony Booths for torture. Star Trek Discovery’s adventure in the Mirror Universe is where the show embraced the best values of Star Trek, plus legal lessons in corporal punishment.

Enter the Agony Booth

According to Memory Alpha, Agony Booths could stimulate pain centers of the different species, where the inflicted pain was shifted from one nerve cluster to another, in order to keep the victim in a constant state of agony. Think of this like constant flogging, except the victim does not become overrun with pain.

Captain Gabriel Lorca’s revolutionaries were tortured in Agony Booths for over a year as retribution for their attempted overthrow of the Emperor. On the I.S.S. Shenzhou, crewmembers were placed in Agony Booths as punishment for unstated infractions.

In a Hornbook, Darkly

There is an ugly maritime history where crewmembers were flogged for discipline. The practice was done on both Naval warships and merchant ships. The practice was outlawed in the 19th Century. The prohibition on the Cruelty to Seaman states:

Whoever, being the master or officer of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, flogs, beats, wounds, or without justifiable cause, imprisons any of the crew of such vessel, or withholds from them suitable food and nourishment, or inflicts upon them any corporal or other cruel and unusual punishment, shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C.S. § 2191.

The use of flogging was classified and banned under Federal law as cruel and unusual punishment:

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter [10 USCS §§ 801 et seq.]. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

10 U.S.C.S. § 855.

In one case from a whaling ship in 1855, a merchant sailor fell asleep while serving as a lookout for whales. The whaler was flogged as punishment. The Court stated that the flogging violated the law, in addition to other “creative” punishments that included forcing the sailor to “stand on his hands and feet, with his head to leeward; kneeling on the top of the house with his head in the funnel of the galley; and standing on deck, with a rope about his neck.” Payne v. Allen, 19 F. Cas. 11, 11-12 (D. Mass. 1855). The shipping company claimed the punishments were justified for the sailor disobeying orders, personal negligence, and general incompetence in performing his duties. While there could have been ways to reduce compensation for the sailor breaching his contract, there was no justification for the corporal punishment the sailor endured. The court awarded the sailor damages of $125, which today would be $49,555.40. Given how modern jurors would react to someone being flogged for job performance, that number would higher and someone would go to jail.

The Agony Booth is a Most Effective Means of Discipline…

Agony Booths are a rejection to the values of the fictional United Federation of Planets, in addition to the 19th Century prohibition of flogging sailors for discipline. The Terran Empire despised the weak, rejected the concept of mercy, and embraced corporal punishment to ensure efficiency. “Agony Booths” are everything that goes against the values of Star Trek, a show with a bright future where challenges can be overcome.

The USS Discovery in the Mirror Universe is where Star Trek Discovery became great. The initial theme was how being in a system that rejected everything the crew believed could change them for the worse. It was in this toxic environment that the crew demonstrated the value of life by refusing to leave others to die; it was in the Mirror Universe that the crew rejected they were in a no-win scenario; and it was in the Mirror Universe the crew worked as a team to solve multiple complex problems. This was when Star Trek Discovery became Star Trek. And it was damn awesome.

Just keep Saru in the Captain’s Chair, because it is where he belongs.

I just wish the Klingons looked consistent as they did in Enterprise, The Original Series, Next Generation, Deep Space Nine, and original movies. The gold tunics with sashes from Day of the Dove, Errand of Mercy, and The Trouble with Tribbles were a ton of fun.

Did the General Contractor on the Death Star Project Have to Build the Second Death Star for Free?

Rogue One: A Star Wars Story..Death Star..Ph: Film Frame..©Lucasfilm LFL

Anyone familiar with the original Star Wars movies might wonder why the Empire saw the destruction of the Death Star at the conclusion of “A New Hope,” with its massive cost and fatally-flawed construction, and thought, “Hey, let’s build a second one at twice the price?” Given that the Death Star cost the equivalent of $825 quadrillion (according to Forbes), building a second one would seem fiscally irresponsible — if not wholly insane — from a certain point of view. However, revelations in the last two Star Wars films, “Rogue One” (2016) and “The Last Jedi” (2017), cast significant doubt on this long-accepted punchline. Based on some factual revelations from these movies, it’s entirely possible, even likely, that the Empire received a second Death Star free of charge — assuming the Dark Side’s lawyers had an appreciation for construction law contract principles as applied more recently in a galaxy not so far away.

To understand how the liability could have been shifted, we need to take an, ahem, empirical, look at how Imperial construction projects work in the Star Wars galaxy, the Death Star design and construction process, and the common law and statutory principles at play here.

[SPOILERS ABOUND BELOW – DON’T SAY WE DIDN’T WARN YOU]

A. The Death Star May Have Been a Public-Private Partnership.

While it is common in the real world for public projects, including military construction projects, to be completed wholly or in part by private companies, the Star Wars galaxy has always been vague on this issue until recently.

For background, in this galaxy, the current go-to for public works is the use of a public-private partnership (known as “PPP” or “P3”). This construction project delivery method cleverly utilizes a long-term partnership between the governmental owner and a private developer for the design, build, financing, operation, and maintenance of a substantial public improvement work. Typically, a P3 project is built on public land and involves the construction and operation of public infrastructure with a projected revenue stream that is used to help secure and repay the project costs over time. (We assume that the Star Wars galaxy has an Outer Space Treaty similar to ours, providing that space and celestial bodies cannot be claimed by nations, and are thus public spaces). Although P3 projects often involve financing by the private developer (often called “concessionaire”), the final project usually remains under public ownership.  While P3 projects are most commonly associated with infrastructure projects like roads, bridges, tunnels, railways, hospitals, schools, and the like, there have also been military applications — particularly in military housing, transportation, and (in certain instances) tactical vehicles, aircraft, and weaponry.

Plot points in “The Last Jedi” lend further credibility to the conclusion that Luke Skywalker’s galaxy operates just like this, at least with respect to how the galactic government completes public works and military projects.

“The Last Jedi” established how the First Order (as successor-in-interest to the Empire) acquired its ultimate weapons. During the search for a master codebreaker, Resistance fighters Finn and Rose come across the morally ambiguous “DJ”, played wonderfully by Benicio del Toro. In just a few scenes, he reveals that a complex system of private contractors selling raw materials as well as “fully armed and operational” military technology supports the First Order’s military and governmental power. Not only that, but these private individuals and companies are paid for completing these contracts. This is made even clearer when DJ, who betrays Rose and Finn later in the movie, provides some additional software coding to the First Order so that they may detect the Resistance ships through hyperspace in exchange for credits and a new transport ship.

While these are relatively minor plot points, they have immense implications in the structure of the public-private contracts in the Star Wars galaxy. Since the Death Star is effectively a weapons system, a ship, and a moon-sized barracks built in a public space, it has sufficient public-private aspects that it may have been developed as a P3. That said, even if the Death Star was not an explicit public-private partnership, the existence of private military contracting opens up an entire new world (galaxy?) when it comes to contractual responsibility for defects in the final product.

“Rogue One,” the stand-alone anthology film about the Rebellion’s successful theft of the complete plans for the first Death Star, provides some critical revelations about the weapon system’s design and construction. In the opening scene, we learn that Galen Erso had originally been a voluntary private contractor for the Empire to develop the Death Star, though he is ultimately kidnapped and compelled to return and complete the project. Setting aside the coercive nature of the subsequent contract negotiations, the material fact is that Galen Erso was contracted as a private citizen to complete the project, not as an employee of the government.

To understand how this relates to the second Death Star, we have to look at the contractual terms of the first Death Star project.

B. Be Careful Not to Choke on Your Assignment of Risk in Design and Construction of the Death Star.

In typical construction projects, the prime contract documents assign the scope of risk to one or more of three groups of parties: the owner/developer (the Empire), the design professionals (Galen Erso and his team), and the general contractor and its subcontractors. There are usually a wide array of modifications, exclusions, and indemnity provisions that further complicate the obligations of the parties. And when projects become as large and complex as the Death Star, these contracts become similarly large and complex. But rather than try to drill down to all the complexities, we will focus on three key issues that are most relevant: inspections, defect discovery, and warranties.

All construction projects involve both internal and external inspections. External inspections are generally statutory/regulatory in nature, and intended to ensure compliance with building codes and the approved plans. Internal inspections are generally contractual obligations assumed by one or more of the parties based on the contract provisions. Typically, the general contractor is obligated to inspect its work as well as the work of its subcontractors to ensure it meets the construction specifications and comports with the construction drawings. Well-drafted prime contracts require the general contractor to notify the owner of errors, omissions, or other conflicts within the various contract documents. In practice, this encompasses the design documents, specifications, and construction drawings. These duties are limited to such errors and omissions that the general contractor discovers, or should have reasonably discovered, during the construction process. Finally, once work is completed, the general contractor’s work is subject to some form of contractually defined warranty against defective worksmanship, which includes compliance with the other contractual obligations, including inspections and discovery of defects. The warranty period is contract-specific, though generally lasts at least one year.

(Obviously, the assignment of much of the risk discussed above plays out in additional insurance policies and indemnity agreements that may or may not be project-specific or based on contractor or owner controlled insurance programs. However, that analysis would require more knowledge about insurance laws in the Star Wars galaxy, something Rian Johnson did not get around to in Episode VIII. Perhaps the Solo film will get into insurance rules when Han drops his shipment at the first sight of an Imperial cruiser, but until then, we will table that issue.)

The big reveal of “Rogue One,” however, was that Galen Erso intentionally designed the Death Star with a fatal structural flaw and made significant efforts to ensure the Rebellion knew about it. Galen Erso was successful in hiding the design flaw and as seen spectacularly at the end of “A New Hope,” neither the general contractor that won the contract for the Death Star project, nor any of the relevant subcontractors, noticed the flaw during construction. And here is where the great disturbance in the work force from “The Last Jedi” changes how the Empire paid for the second Death Star.

C. I Find Your Lack of Liability Exclusions Disturbing.

Construction contracts always contain liability exceptions for things like acts of war (or terrorism, depending on what the legal status of the Rebellion would be). To many project owners, exclusions may be viewed as the path to the Dark Side.

For military contracts, there are certain limitations on liability of private contractors for design and manufacture of military equipment since such equipment is generally subjected to extreme conditions, like say, IEDs, X-wing wingtip lasers and proton torpedoes. See Boyle v. United Technologies Corporation, 487 U.S. 500, 512 (1988); Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 747 (9th Cir. 1997). Similarly, the Homeland Security Act of 2002 created a comparable type of exemption for alleged defects in approved anti-terrorism technologies under the SAFETY Act. See 6 U.S.C. § 442(d). The general underlying principle is that private contractors cannot be held liable for alleged design or construction defects so long as the designs specifications were reasonably precise, the equipment conformed to the design, and the usage dangers associated with the design are disclosed to the government.

Perhaps, in this galaxy, that would be the end of the potential liability. However, there are two unique aspects to the Death Star that change this analysis. First, as Admiral Motti (look him up) pointed out right before getting choked out by Darth Vader, the Death Star is the “ultimate power in the universe.” From this, we can reasonably infer the Death Star had specific design specifications to withstand direct attack by known weapons of the Rebel Alliance once construction was complete (yes, the second Death Star needed a shield generated from the forest moon of Endor, but that space station was not completed, only fully armed and operational). Second, we know that the design defect was placed intentionally and supposedly was “so small and powerful, [the Empire] will never find it.”

Based on these facts, we safely can assume that: (1) the Empire’s specifications would not have agreed to any act of war or terrorism exception post-completion; and (2) the Death Star’s design defect was not part of the Empire’s specifications. Additionally, the warranty provisions in the prime contract likely would have included some explicit statement that the Death Star was warranted to withstand any and all known military weapons available to the Rebel Alliance upon final completion for a certain period of time (any lawyer worth their imperial credits would draft a separate schedule identifying these weapons). Given that the Death Star lasted less than a year, there is little chance that it survived the warranty period. Also, given that the Death Star was destroyed by two proton torpedoes fired from a single X-wing fighter (the primary fighter jet of the Rebel Alliance), it is likely these weapons would have been included in the warranty schedule. With this in mind, we can reasonably conclude that the Empire was not on the hook for the construction costs of the second Death Star.

D. So Who Shot First (in Terms of Final Liability)?

Ultimate liability for the flawed Death Star will depend on who had the final duty to inspect the work and identify design and construction defects during the project, and whether that party should have reasonably identified the fatal defect. Both sides will have an interesting argument.

On the one hand, there is no question that Galen Erso’s design was defective, and intentionally so. Thus, there seems a clear basis for liability against the design professionals. Additionally, since the defect was so small, it would likely qualify as a latent defect if you had the evidence.

On the other hand, the general contractor almost certainly assumed a duty to inspect and notify the Empire of any design defects it discovered in the shop drawings used for construction. The general contractor would also have a contractual obligation to construct to the Empire’s specifications. Thus, if the defect was something that a reasonably skilled contractor ought to have discovered, the liability shifts to the general contractor. As we know, the design defect is supposedly hidden, which should absolve the general contractor from most liability. However, since Director Krennic killed all the design professionals, and the only other pieces of evidence of the design intent (Galen Erso’s message and the full Death Star schematics) were ironically destroyed by the Death Star during its first firing test on Jedha and subsequent destruction of the Imperial records installation on Scarif, it might be difficult to prove intent, or even the existence of a design defect. Obviously both sides would seek out expert opinions, but faced with the dearth of design evidence, the likely outcome would be liability against the general contractor.

E. Imperial Law Is Not As Forgiving As Darth Vader.

As for the appropriate remedy, given that the Death Star did not conform to the Empire’s specifications and did not survive its warranty period, the general contractor would likely be liable. However, the Empire might have multiple remedies. The most straightforward remedy would be an award of damages. Alternatively, depending on the contractual language, the Empire might be able to get a judgment compelling specific performance, including construction of the second Death Star. (Of course, contractual provisions in the real world cannot compel actual labor as a constitutional prohibition on indentured servitude and contracts provide for an alternative remedy if the general contractor refuses to complete the corrective or warranty work.) That said, the Empire does not appear to have the same constitutional limitations and it is entirely possible that an Imperial court would order the Death Star general contractor to satisfy its contractual obligations. In either case, assuming there were sufficient physical resources, the Empire got its second Death Star for free.

As for the later Starkiller Base developed by the First Order as the sole surviving faction of the Empire, that project would likely have bigger issues dealing with environmental groups after revealing that the First Order literally destroyed stars to fuel that weapon. But whether that project passes muster is a question for another episode.

 

 

Michael Hogue

Michael R. Hogue is a senior associate with Greenberg Traurig’s San Francisco and Las Vegas offices and focuses his practice on construction and real estate law, representing owners and commercial developers in contracting, litigation, and debt restructuring and bankruptcy matters for medium and large-scale projects. He is also an unapologetic devotee to the geek triumvirate: Star Wars, Doctor Who, and Batman. Although only occasionally one with the force, he is definitely a madman with a box. When necessary, he is also a night-stalking, crime-fighting vigilante, and a heavy metal rapping machine.

 

Katherine Malone
Special Thanks to Katharine Malone, Esq., for her help in preparing this article.

Katharine is a litigation associate in Greenberg Traurig’s San Francisco office. Her practice focuses on commercial litigation matters,  particularly contract, fraud, breach of fiduciary duties, and employee mobility issues.  She is an avid fan of Star Wars, Lord of the Rings, Game of Thrones, and a Wrinkle in Time.  She spends her free time hoarding books, taking her dog, Abby, to the beach, and working out the rules of True American and Cones of Dunshire.  She is still upset about midi-chlorians.

Frankenstein Mock Trial at San Diego Comic Fest

Would Frankenstein’s Monster be legally competent to stand trial for the death of Little Maria in the 1931 Universal Classic Frankenstein? Should the Monster be held to the standard for an adult or a child?

San Diego Comic Fest is celebrating the bicentennial of Mary Shelley’s Frankenstein over the weekend of April 20-22, 2018 at the Town and Country Resort and Convention Center. The Creature has the honor of being one of the first pop culture references in a court opinion, by Chief Justice William Pryor, of the Court of Appeals of Kentucky, in the 1896 case Todd v. Dunlap.

People v. Frankenstein’s Monster and Dr. Henry Frankenstein  

We are seeking law students to argue a two-part motion hearing. In the 1931 film, the Creature befriended a young girl named Maria. Both Maria and the Creature tossed flowers in a lake to watch them float. The Creature tossed Maria in the water, thinking the girl would float like one of the flowers. To the Creature’s horror, Maria drowned.

Is the Creature Legally Competent to Stand Trial? 

The Creature is charged with the murder of Little Maria. Does the Creature legally have the mental capacity of a child? Or should the Creature be held to the standards of an adult? Attorneys for the Creature will bring a motion that the Creature is not legally competent to stand trial as a minor, because the Creature lacks sufficient present ability to consult with counsel and assist in preparing his defense with a reasonable degree of rational understanding under Cal. Welf. & Inst. Code § 709(a). The Prosecution opposes, challenging the application of the standard for minors, as the Creature is nearly seven feet tall with the body of an adult. The Prosecution will argue the Creature is a competent adult with competency needing to be based upon the requirements and procedures outlined in Cal. Penal Code § 1367.

Is Dr. Frankenstein Criminally Responsible for the Creature’s Actions? 

The state will charge Dr. Henry Frankenstein with contributing to the delinquency of the Creature under Cal. Penal Code § 272, due to his failure as the Monster’s legal guardian to exercise reasonable care, supervision, protection, and control over the Creature, resulting in the deaths of Little Maria, Fritz, and Dr. Waldman. Dr. Frankenstein is also charged with Murder in the Second Degree pursuant to Cal. Penal Code § 187.

Attorneys for Dr. Frankenstein will bring a motion to set aside the indictment under Cal. Penal Code § 995, because the charge is not found, endorsed, and presented as prescribed under the California Penal Code, because the law does not speak to contributory delinquency for reanimated human remains. Cal. Penal Code § 272 applies to children and the Monster is not a child. Moreover, there is no probable cause for charging Dr. Frankenstein for the Monster’s actions resulting in Little Maria’s death. The Prosecution will oppose the motion and argue that Dr. Henry Frankenstein’s failure to exercise the reasonable care, supervision, protection, and control over the Monster, resulted in the deaths of three people.

Purpose of the Mock Trial 

The purpose of the mock hearings are to explore what it means to be human. Should the Creature be viewed as a “person,” with legal rights, or as something artificial, like a machine? If the Creature is a human being, what is his relationship to his original bodies and brain, or is he a completely new individual? Is Dr. Frankenstein the Creature’s “father” under the law, or a different legal relationship, like a creator of a product?

Law students will be able to prepare arguments, conduct the direct and cross-examination of expert witnesses, have attorney mentors, and argue their case before California Judge Carol Najera over whether Frankenstein’s Monster could stand trial for murder of Little Maria and Dr. Frankenstein’s criminal liability. Interested law students should apply below.

When Star Wars Loving Lawyers Go to Disneyland

What do two lawyers who love Star Wars do when they go to Disneyland? They ride Star Tours and discuss the common carrier issues.

I had the privilege of joining Thomas and Marissa Harper at Disneyland on their grand tour of California. After racing around the park, we sat down by the Matterhorn to discuss the legal issues of C-3PO and R2-D2 taking passengers into combat with a Rebel spy onboard an interplanetary shuttle.

 

Was Rey Negligent in Causing a Boulder to Crash on the Caretakers’ Cart?

Rey did not ingratiate herself to the Lanai Caretakers during her time on Ahch-To. First Rey shot out a wall during a Force vision with Kylo Ren and then caused a large rock to crash on a Caretaker’s cart. Did Rey’s actions constitute negligence in the destruction of the Caretaker’s cart?

Negligence is the failure to use reasonable care to prevent harm to oneself or to others. Rey first engaged in aerobic staff/rock workout, followed by Samurai lightsaber exercises. While this workout could both sharpen one’s skills with a laser sword, a person is negligent if they do something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. See, 1-400 CACI 401 (2017). The act of cutting a rock off the edge of a cliff above a trail arguably is not how a reasonably careful Jedi would have acted in Rey’s situation. However, was there a foreseeable risk that a falling rock could crush someone passing by below?

Rey could have had a duty to not engage in lightsaber cutting exercises if there was foreseeable risk that she could cut the rock off the face of the cliff, causing it to crash on others. The law states that foreseeability is not enough to create an independent tort duty. “… [The] existence [of a duty] depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” Vasilenko v. Grace Family Church, 3 Cal. 5th 1077, 1086-87, (2017), citing (Erlich v. Menezes 21 Cal.4th 543, 552 (1999).

These policy considerations include whether “the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Vasilenko, at *1086 citing Cabral v. Ralphs Grocery Co., 51 Cal. 4th 764, 781 (2011). “A duty of care will not be held to exist even as to foreseeable injuries … where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.” Vasilenko, at *1086 -1087, citing Merrill v. Navegar, Inc. 26 Cal.4th 465, 502 (2001).

The issue of whether there was foreseeable risk would turn on the likelihood of being able to cut a large rock off of the Ahch-To cliff, causing it to crash below. From a certain point of view, this issue of foreseeability is straight out of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Palsgraf, train employees helped a passenger with a package board a moving train with the door closing. The package was dropped. Unknown to the train employees, the package contained fireworks, which exploded. The explosion caused a large scale to fall on the Plaintiff.

The Court held that negligence does not exist in the air and that the Plaintiff’s injuries were not the probable consequence of someone boarding a train with a package. As such, there was no duty to the Plaintiff, an unforeseeable victim.

While Benjamin Cardozo did not believe liability followed through the air, Ben Kenobi knew the Force flowed through all living things. Fortunately for the Lanai Caretakers, most jurisdictions have a broader view of foreseeability. Cutting through a rock with a lightsaber is a foreseeable harm, compared to an unknown package with fireworks exploding.

The law would attach moral blame to Rey’s conduct of cutting a rock off the face of a cliff. There is a societal policy to prevent giant rocks from crashing on people (or Lanais). Moreover, there is a low burden to exercise a duty of care to prevent such accidents, by simply not cutting giant rocks off of cliffs. Furthermore, “[t]he overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.” T.H. v. Novartis Pharm. Corp., 2017 Cal. LEXIS 9636, at *33 (Dec. 21, 2017), [Ciations omitted].

Establishing Rey acted negligently is the first lesson in determining whether the Caretaker’s could recover. The second lesson is whether Rey was the proximate cause of the destruction of the cart. The third is the Caretakers were foreseeable victims of aerobic lightsaber exercises on the rock. As Rey engaged in an activity that a reasonable prudent person would not do, the Caretakers should recover for the destroyed cart. This would deter future rock cutting conduct that could harm others.

Now, whether lightsabers require a warning they can cut rocks off cliffs is a separate issue.

Poe Dameron: Ace Pilot & Resistance Criminal? (Part 1)

Captain Poe Dameron (it is Captain now, isn’t it?) has quite a bit going for him: He’s the best pilot in the Resistance, he commands an elite group of starfighters, and he’s recently been nominated for the coveted Most Handsome Rebel Scum in the Galaxy award for the 5th straight year.

Despite Poe’s great accomplishments and skills in the cockpit, we see him truly struggle in The Last Jedi. While the film uses his missteps as a way to evolve his character, Poe manages to commit some serious crimes in the process. In this article we’ll focus on Poe’s decision to disobey Leia’s orders. In the next article, we will break down his *alleged* mutiny.

If Biggs Darklighter were here, he would give Poe a stern disapproving look that only his magnificent mustache could deliver.

CHARGE I: WILLFUL DISOBEDIENCE OF A SUPERIOR OFFICER IN VIOLATION OF ARTICLE 90, UNIFORM CODE OF MILITARY JUSTICE

Poe Dameron missed setting the record for fastest crime committed in a Star Wars movie, having been narrowly edged out by Jango Fett and Nute Gunray. With the Resistance in full retreat and the First Order fleet bearing down, Poe is sent to distract General Hux and give the last few transports time to make it off planet. As the evacuation finishes, Poe starts an attack on the First Order dreadnought to clear the way for the Resistance bombers. Realizing the danger of his plan, Leia orders Poe to immediately break off his attack and return to the Raddus. Poe then pays his respects by immediately cutting off his comm unit and continuing his assault.

Poe’s deliberate disobedience would undoubtedly constitute a serious crime under the military’s criminal code, the Uniform Code of Military Justice (UCMJ). Article 90 of the UCMJ outlaws willful disobedience of a superior officer’s orders and is perhaps one of the most important crimes in the code.

Obedience to orders is one of the core components of military service. All service members are morally and legally bound to obey the lawful orders of their superiors, regardless of their personal beliefs or opinions. That concept is enshrined in the oath taken by all service members upon donning the uniform:

“I, [state your name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

The ability to enforce orders forms the foundation for good order and discipline. Without it, no branch of the military could properly function and lives would be put into jeopardy. Military courts have ruled that just about any type of lawful order, large or small, can be enforced under the UCMJ. These range from a directive to “shut up” to an order for a soldier to “double time” (run) to the barracks to get his equipment, and even an order for HIV-positive Airman to inform partners of his disease and practice safe sex. (United States v. Claytor, 34 M.J. 1030 (N.M.C.M.R. 1992); United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992); United States v. Womack, 29 M.J. 88 (C.M.A. 1989)).

Jek Porkins was infamous for ordering his subordinates to make late night Taco Bell runs.

This rule is especially important during wartime, when commanders often issue orders that put their subordinates in harm’s way. Simply put, a refusal to follow orders on the battlefield can cost lives. Willful disobedience of orders during wartime is therefore considered a very serious crime. For example, during the Korean War, the Army court-martialed a soldier who refused to join a combat patrol. Even Desmond Doss, the phenomenally courageous medic whose story was portrayed in Hacksaw Ridge, was threatened with a court-martial if he refused to obey his commander’s order to train with a rifle during World War II. To fully drive home the seriousness of the offense, soldiers who willfully disobey a superior officer in a time of war can be sentenced to the death penalty.

The elements of the crime are:

  1. That the accused received a certain lawful command from a certain commissioned officer;
  2. That this officer was the superior commissioned officer of the accused;
  3. That the accused knew that this officer was the accused’s superior commissioned officer; and
  4. That the accused willfully disobeyed the lawful command.

In Poe’s case, prosecutors would have ample evidence to prove all four of those elements. As Poe gleefully blew up the dreadnought’s cannons, Leia very clearly came over the radio to issue him a command to immediately break off his attack.

As a General, Leia held a military commission that gave her the legal ability to issue Poe orders. As a General, she no doubt outranked Poe, even before he was slap-demoted. There is no question that Poe knew that Leia was his superior officer, as he had served under her for years.

The next question is whether Leia’s order was a lawful one. Under the UCMJ, a lawful order is one that relates to military duty, including all activities reasonably necessary to accomplish a military mission. Orders may not interfere with private rights or personal affairs without some valid military purpose. Here, the Resistance’s sole objective was to safely evacuate its personnel and escape the First Order fleet. Leia’s order to stop attacking went hand-in-hand with that larger mission, as she was desperately trying to get the fleet to hyperspace before the dreadnought fired again.

Poe had no personal or private right to continue fighting as he saw fit. As a military officer, he is duty-bound to obey Leia’s orders, even if he disagreed with her tactics. The fact that the fleet had a shot at destroying the massive ship didn’t make Leia’s order any less lawful, and it wouldn’t constitute a defense against the crime. The fly boy part of Poe may not have agreed with Leia’s order, but the order was nevertheless a lawful one.

Leia demonstrates the appropriate response when a subordinate attempts to disobey your orders.

An order must also be a clear, narrowly drawn mandate to do or not do a specific act. For example, military courts have found that an order to “shut up” to be a specific mandate to stop speaking, but on the other hand, an order to “settle down and be quiet” was found to be ambiguous.

In the case of Leia, she was crystal clear in her order to Poe. He was to stop attacking the dreadnought and return to the Raddus at once. Poe’s act of abruptly cutting off his comm unit as Leia gave the order shows that he fully understood Leia, but simply wanted to substitute her judgment with his own. Likewise, in the aftermath of the attack, Poe demonstrated his understanding of the order as he tried to justify the attack to Leia.

Finally, Poe’s disobedience was absolutely willful. Under Article 90, “willful disobedience” is an intentional defiance of authority. Failure to follow an order through heedlessness, forgetfulness, or recklessness does not amount to willful disobedience. Poe deliberately defied Leia’s order to stop his attack. When ordered to stop and return to the Raddus, he instead cuts Leia off and continues on, issuing orders to the rest of the squadron that directly contravened Leia’s intent. Poe wasn’t confused or forgetful as he disobeyed Leia; he simply didn’t like her strategy of retreat and got caught up in the tantalizing opportunity to destroy one of the First Order’s largest warships.

BB-8’s programming forced him to beep out the truth, the whole truth, and nothing but the truth when called to testify against Poe.

The devastating results of the battle above D’Qar show are a stark reminder of this rule is so important. By disobeying Leia’s order, the Resistance lost its entire fleet of bombers and their crews—precious lives and resources that could not be easily replaced. Poe’s shortsightedness not only cost the lives of dozens of Resistance personnel, but he put the entire fleet in jeopardy as they delayed the retreat. Were it not for Paige Tico’s heroics aboard the last remaining bomber, the entire Resistance fleet probably would have been destroyed as a direct result of Poe’s insubordination.

Poe’s actions also had ripple effects beyond those losses. Poe’s open defiance unacceptably undermined the chain of command, eroding General Organa’s command authority and damaging good order and discipline within the fleet. Resistance service members who overheard his defiance on the radio could easily think that if Poe Dameron didn’t have to obey Leia, why should they have to? That kind of dangerous mentality can spread quickly, especially under the sort of dire circumstances the Resistance faced at the time.

In the end, Poe got off pretty easily by being publicly slapped and demoted in humiliating fashion. Under normal circumstances, Poe probably would’ve found himself learning his new job as Resistance janitor from Finn, or worse.

Extrajudicial Murder by Stormtrooper Executioners

The First Order used internally conscripted Stormtroopers for at best summary executions and at worse extrajudicial killing for capital punishment. The status as a Stormtrooper Executioner was denoted by a David Bowie Aladdin Sane-style black mark across the helmet, along with carbon-finish on the shoulders. According to The Last Jedi Visual Dictionary, Executioners could be any Trooper assigned to the duty of carrying out capital punishment. The helmets disguised their voices and personal identification number was not broadcast to other Stormtroopers.

There is a galactic problem with summary executions: there is no due process of law. No right to counsel. No trial. Nothing. Just an extrajudicial murder to instill loyalty into Stormtroopers.

In The Last Jedi, Finn and Rose were captured in First Order uniforms in the midst of committing an act of sabotage on Supreme Leader Snoke’s ship the Supremacy. Captain Phasma ordered their immediate execution by laser ax with a monomolecular energy ribbon with cycling power. This form of execution was selected because “it would hurt.”

There are multiple problems with ordering the immediate deaths of the Resistance prisoners. The first is the lack of a trial, even for someone committing an act of espionage and the second is whether the First Order is actually a nation-state.

Execution without a Trial

Military usage has permitted the execution of spies, both as a means of punishment and prevention. United States ex rel. Wessels v. McDonald, 265 F. 754, 762-63 (E.D.N.Y. 1920). The traditional definition of a spy is someone “individual acting clandestinely or on false pretenses, who obtains, or seeks to obtain, information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.” Convention Respecting the Laws and Customs of War on Land, The Hague, July 29, 1899, 32 Stat. vol. 2, pp. 1818, 1819. However, spies dating back to the Revolutionary War were tried by military tribunal or court-martial. Ex parte Quirin, 317 U.S. 1, 42, fn 14 (1942).

The First Order had nothing remotely resembling a military tribunal or court-martial for Finn and Rose. Captain Phasma ordered their deaths on the hanger deck of Snoke’s ship with the intent to cause them pain.

International law recognizes four acts that are subject to unequivocal international condemnation: torture, summary execution, genocide and slavery. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791 (1984), citing Blum & Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 HARV. INT’L L.J. 53, 90 (1981); see also P. SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 48 (1983). Moreover, summary executions are “murder conducted in uniform,” as opposed to lawful, state-imposed violence. Id.

The First Order could have tried Finn was for treason (assuming the First Order is a nation-state), specifically for helping Poe Dameron escape the Finalizer and desertion. Finn should have had the opportunity to argue he had been ordered to commit a war crime on Jakku and offer a defense to the charges against him.

The First Order could have charged Finn, Rose, and DJ, with conspiracy, espionage, and sabotage, for their plan on the Supremacy. Instead, the First Order planned to carry out immediate executions in the most painful manner possible with laser axes with a monomolecular energy ribbons with cycling power.

An execution is cruel and unusual punishment if the method presents a “substantial” or “objectively intolerable” risk of serious harm. Baze v. Rees, 553 U.S. 35, 40 (2008). Other courts have articulated the legal standard for determining whether a form of execution violations the prohibition of cruel and unusual punishment as follows:

1) Presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution; 

2) Violates the evolving standards of decency that mark a mature society, and

3) Minimizes physical violence and mutilation of the prisoner’s body.

State v. Mata, 275 Neb. 1, 48, 745 N.W.2d 229, 266 (2008).

The United States has allowed executions, starting with hangings at the founding of the country, later firing squads, to finding the most “humane and practical” methods for executions “known to modern science.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). These methods have included electrocution, because it was thought to be less painful and more humane than hanging, to the gas chamber, to lethal injection. Id.

Traitors at common law were punished for treason by death with a vengeance. The punishment included being publicly dragged to the place of execution and there drawn, quartered and beheaded. See, United States v. Kawakita, 96 F. Supp. 824, 860 (S.D. Cal. 1950).

Beheading Finn and Rose with laser axes would meet the textbook definition of “objectively intolerable” risk of serious harm. This form of execution would be cruel and unusual punishment in gross violation of human rights.

The First Order is Not a Nation-State

The First Order is a political movement of Neo-Imperials who wish to rule the galaxy like the Empire. They do not have a home planet, instead operating on the Supremacy as their capital. Their plan was to take over the galaxy after destroying the Republic. As such, the act of destroying the Hosnian system was itself an act of terrorism. All subsequent acts against the Resistance were nothing short of murder in the name of politics.

Since the First Order is not a nation-state, they do not have the legal right to treat Finn and Rose as spies attempting to commit an act of sabotage. The Resistance was rightfully exercising their right to self-defense by a terrorist organization attempting to take over the galaxy. As such, Stormtrooper Executioners best rethink their life choices before they behead anyone, unless they wish to be prosecuted for extrajudicial murder.

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