Traitors of SHIELD

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April 9, 2014

Agents of SHIELD episode “Turn, Turn, Turn,” was an action-packed tie-in to Captain America Winter Soldier. Best episode to date. As expected, a whole bunch of SHIELD Agents need to face a firing squad for being HYDRA.

Out of the Shadows And Into The Light

Every member of SHIELD who served HYDRA, from working on the Project Insight Helicarriers to killing other agents, is a traitor under the United States Constitution.

Treason is defined under the Constitution as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

The trial of Vice President Aaron Burr held that “levying war” against the United States includes those who “perform a part in the prosecution of the war” commit treason. In re Burr, 1807 U.S. LEXIS 406, 10 (U.S. 1807). This requires that a traitor performs a part of an overt act and be “leagued with the conspiracy.” In re Burr, at *13-14.

Judge Smalley in a Civil War opinion explained that acts of treason include a group of people conspiring to mount an insurrection by force and then carrying out their planned insurrection are guilty of treason by levying war. Charge to Grand Jury-Treason, 30 F. Cas. 1032, 1033 (C.C.S.D.N.Y. 1861).

It is well known that war — civil war — exists in portions of the Union; and that persons owing allegiance to the United States have confederated together, and with arms, by force and intimidation, have prevented the execution of the constitutional acts of congress, have forcibly seized upon and hold a custom-house and post-office, forts, arsenals, vessels, and other property belonging to the United States, and have actually fired upon vessels bearing the United States flag and carrying United States troops. This is a usurpation of the authority of the federal government. It is high treason, by levying war. Either one of those acts will constitute high treason. There can be doubt of it. The fact that any or all engaged in the commission of these outrageous acts under the pretended authority of the legislature, or a convention of the people, of any state, or of the officers appointed thereby, or acting thereunder does not change or affect the criminal character of the act. No man or body of men can throw off their allegiance to their government in that way. Nor can any state, or the people of any state, acting in any capacity whatever, absolve any person therefrom. Neither South Carolina nor any other state can authorize or legally protect citizens of the other states in waging war against their government, any more than can the queen of Great Britain or the emperor of France. If any such power is assumed it is without right, and the deluded individual who acts under it is none the less guilty of treason, and liable to be punished therefor.

Charge to Grand Jury-Treason, 30 F. Cas. 1032, 1033 (C.C.S.D.N.Y. 1861)

All of the HYDRA Agents at the Hub levied war against the United States by 1) Being part of the conspiracy to build flying aircraft carriers that target people by DNA for mass executions; 2) Killing Agents of SHIELD in their take over of the facilities in furtherance of Project Insight; 3) all other actions done in prosecution of the war against the US government.

Murder Without Consideration

Better late than never, Agent Coulson was concerned about firing on SHIELD Agents who were only following orders at the Hub, thus ordered the team to use Icers.

That would have been a good idea at the Guest House.

Any SHIELD Agents who did not know who to trust, who were unknowingly following HYDRA orders, would actually have a valid “I was just following orders” defense.

Orders must be lawful for a soldier to argue the “I was following orders” defense. A test for whether an order is unlawful is whether the “the order is so manifestly beyond the power or discretion of the commander as to admit of no rational doubt of its unlawfulness it cannot be used as a cloak of immunity to render justifiable an act which, but for such order, would be unlawful (40 CJS Homicide, sec 107, p 967; Winthrop’s reprint, pp 296, 297; MCM, 1928, par 148a).” (page 365). US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

SHIELD Agents would have had a hard time in the opening moments of the rebellion to know whether orders were beyond the power or discretion of their commanding officers, because of the mass confusion and not knowing who was who. However, as evidence started becoming clear on who was issuing orders that would levy war against the United States, such as killing unarmed people, would be a clear sign of unlawful orders.

Doctor Patient Privilege on Resurrection

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Josh Gilliland

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April 8, 2014

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The Resurrection episode “Insomnia” provided an example of the doctor-patient privilege in action. In the story, Rachel, the newest person to return from the dead, is examined by the doctor Maggie Langston. The patient is pregnant and instructs the doctor not to tell the baby’s father, who is also a minister.

Would Dr. Langston have to keep that information confidential?

According, to Missouri case law and statutes, yes. However, there might be an exception.

Missouri has codified into statute that a doctor is “incompetent” to testify about “any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient…” § 491.060 R.S.Mo.

Case law also has long maintained that a doctor cannot testify about any information they learned while treating a patient as well. See, Holtzen v. Missouri P. R. Co., 159 Mo. App. 370, 376 (Mo. Ct. App. 1911).

The only statutory exception to the doctor-patient privilege in Missouri is in cases of suspected child abuse or neglect. § 210.140 R.S.Mo. and Pilger v. Pilger, 972 S.W.2d 628, 1998 Mo. App. LEXIS 1218 (Mo. Ct. App. 1998).

What does this mean for Dr. Langston whose patient is pregnant and who successfully committed suicide? Would this create a reporting situation to law enforcement of possible risk to the unborn child?

Many states have outlined specific situations where a health care provider can breach their duty of confidentiality where the patient is showing violent behavior that indicate an “imminent danger that the patient will use physical violence or use other means to cause serious personal injury or death to others.” Ind. Code § 34-30-16-1.

In Rachel’s case, she successfully committed suicide while two months pregnant. This puts Dr. Langston in legally untested waters. Missouri does not appear to have the “danger to oneself or others” exception to a doctor’s duty of confidentiality. However, it does have an exception for child abuse or neglect. There is no case law on whether attempted suicide, let alone successful suicide, would qualify as an exception in Missouri to an unborn child.

The closest case on point involved the duty to warn involving a child molestation victim. In that case, the Court held:

Specifically, we hold that when a psychologist or other health care professional knows or pursuant to the standards of his profession should have known that a patient presents a serious danger of future violence to a readily identifiable victim the psychologist has a duty under Missouri common law to warn the intended victim or communicate the existence of such danger to those likely to warn the victim including notifying appropriate enforcement authorities.

Bradley v. Ray, 904 S.W.2d 302, 312 (Mo. Ct. App. 1995).

If Rachel was being treated in California or Indiana, case law would see her as a risk to herself because she had already killed herself once. However, an argument could be made under the Bradley decision that Rachel poses a risk to her unborn child as a readily identifiable victim because of Rachel’s prior successful suicide, thus requiring reporting that a woman who returned from the dead is a danger to her unborn child.

All I know is I am glad the dead do not actually return to life with these very strange issues that our law does not contemplate.

Legal Issues in Captain America The Winter Soldier

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Josh Gilliland

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April 7, 2014

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Major Spoilers!

Jessica Mederson and Josh Gilliland discuss Captain America The Winter Soldier. The discussion focuses on treason, the necessity defense, insanity defense, how SHIELD could be organized, following unlawful orders and geeking out over Captain America.

Hey Captain America, What Could Go Wrong With a Giant Spy Agency?

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Josh Gilliland

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April 4, 2014

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Captain America Winter Soldier was my favorite comic book movie to date. Excellent storytelling, with the not so subtle warning of a massive police state. It also highlights how freedom is best destroyed from within through fear.

It is the best comic book action adventure political thriller for attorneys ever.

[Limited] Spoilers Ahead!

SHIELD’s Organization

We learned SHIELD is headquartered in Washington, DC with a view of the Mall. Moreover, the building is over 41 stories tall, breaking the rule that no building in DC shall be over 5 stories.

SHIELD appeared to be funded by the United States Government with a four person World Council for oversight and project approval. SHIELD had the ability to use data from traffic cameras, access the cellular communication network and online surveillance on the US population. Predictive analytic software was developed to determine who SHIELD should kill from the air prior to an attack being made by the possible threat.

If you do not like Drones, you would really not like Project Insight.

Following Unlawful Orders

Without trying to give away major plot elements, there was a faction within SHIELD trying to achieve goals that would not only be treason, but world domination. There was a significant divide between those following the treasonous orders and those saying “No.”

DC Circuit Judge Washington in 1813 put it the best on being required to follow illegal orders with, “It is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act.” United States v. Jones, 26 F. Cas. 653, 657-658 (C.C.D. Pa. 1813).

No one can be convicted for NOT following an illegal order. United States v. Jordan, 7 U.S.C.M.A. 452, 456 (C.M.A. 1957).

The SHIELD Agents who openly disobeyed illegal orders when confronted with the truth of SHIELD’s plans were in their legal right to do so. Moreover, those who opened fire on the rogue agents properly did so in defense of those they were supposed to protect.

Necessity Defense & Whistle-blowing

Captain America, Black Widow and Falcon committed multiple felonies in their efforts to stop the evil elements within SHIELD. These actions include destruction of public property, use of weapons in public, stealing government equipment, burglary from a museum, publishing classified material and the destruction of three helicarriers.

All of these actions were done in the defense of the world to stop at least the deaths of 20 million people. Captain America, Black Widow & Falcon could argue everything they did was done out of “necessity.”

The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

For our heroes, there was no legal alternative to violating the law; the harm to be prevent was imminent and there was a casual relationship between their actions and the harm to be avoided.

Treason & Insanity Defense

The Winter Soldier’s story had heavy elements from the comic book, minus any references to Soviet General Alexander Lukin, the Kronas Corporation, or the Cosmic Cube.

The Winter Soldier had a 50 year history of being the used for political assassinations, having his mind erased, and put in suspended animation. Could James Buchanan Barnes be put on trial for treason and acts of war on foreign countries?

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

The Winter Soldier without question committed many acts of treason. However, James Barnes would successfully be able to argue the insanity defense. A defendant is legally insane if:

1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;

AND

2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.

None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.

2-3400 CALCRIM 3450.

The Winter Soldier had his mind erased each time he was deployed. James Barnes was not in control of his own actions, because he was suffering from medical experiments (what looked like high electric shock therapy) and mental conditioning. Barnes was literally a blank slate. It was not until Captain America was able to connect with Bucky’s long buried memories that he started exercising free will. As such, Bucky was incapable of knowing his actions were acts of treason.

Senator Stern on the other hand would get a firing squad after being expelled from the Senate.

There is a Reason Spy Agencies Do Not Do Law Enforcement

SHIELD is part military operation and part spy agency. Those two should never go together and neither does well conducting law enforcement. This was very clear from the warrantless wiretapping of Steve Rogers to Secretary Pierce declaring war on Captain America for “lying” to him.

The 4th Amendment requires a warrant based on probable cause for electronic monitoring of their home. Moreover, what is at best an HR violation is not grounds to mobilize an army to kill one person.

Who Cleans Up the Potomac?

Washington, DC was an environmental mess after three helicarriers crashed landed in the Potomac. Ideally, the ships ran on Stark Arc Reactors instead of nuclear power. Nevertheless, there would be massive amounts of jet fuel, explosives, chemicals and the broken hulls of three aircraft carriers that briefly flew. Who cleans it up?

FEMA and the US military (and specifically Navy Explosive Ordinance Disposal teams) would have to kick into high gear to clean up the hazards. Since the equipment was government owned, the Feds would have to face the clean up bill. Moreover, the damage was so massive only the Federal government would have the resources to handle the clean-up.

Agents of SHIELD & Counting Down to Winter Soldier

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Josh Gilliland

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April 3, 2014

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Jessica Mederson and Josh Gilliland discuss Agent of SHIELD episodes TRACKS, TAHITI, how awesome Lady Sif is, the Constitution, following the 4th Amendment, Marvel Civil War, Nick Fury, Ex-Agent of SHIELD and a whole bunch of other geek issues.

Did the Clairvoyant See the Constitutional Issues?

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Josh Gilliland

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April 2, 2014

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The Agents of SHIELD episode “The Beginning of the End” was a fantastic joyride for comic book fans. The set-up for Captain America 2 and the battle for the soul of SHIELD were geektastic. The only thing the story was lacking was telling Thomas Nash “you’re under arrest” and giving him his Miranda Rights.

Ward killing the paralyzed Nash armed with a tube in his mouth is also extremely problematic.

Let’s break down the legal issues:

Was the Clairvoyant Lawfully Arrested?

Thomas Nash apparently communicated through his computer “I surrender” to Agents Coulson and Garrett after they entered his room with weapons drawn after exchanging fire with Deathlok (whether or no it was Nash operating the computer was not determined). No member of SHIELD actually told Nash “you are under arrest.”

Someone is under arrest when they are kept in custody by legal authority in response to a criminal charge. See, Black’s Law Dictionary, 9th Edition.

We have a little rule called Miranda that states:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

As such, when some is “arrested,” they must be given their Miranda Rights.

Had Nash been arrested? Were the Agents required to give Nash his Miranda Rights?

There is an argument that the Agents finding the paralyzed Nash in the bed were only conducting an interview of the suspect. For example, a Court held that a bomb maker interviewed in a hospital bed after an explosion was not in custody, because the officers did not keep the suspect in the hospital. Things could have been different if the police had transported the suspect, stationed guards, monitored his health or showed restraint amounting to custody. Gonzalez v. Sisto, 2010 U.S. Dist. LEXIS 48812, 28-29 (C.D. Cal. Jan. 13, 2010) citing United States v. Martin, 781 F.2d 671, 672-73 (9th Cir. 1985).

Nash was in a very similar position, in that he was confined to a hospital bed, unable to speak without a computer. The SHIELD Agents did not put him in his near vegetative state, but were questioning a possible suspect.

However, there were at least half a dozen armed SHIELD Agents around Nash with weapons drawn. Moreover, he surrendered. These are facts supporting he was under SHIELD custody and lawfully arrested. As such, Miranda Rights should have been given.

There is a “Public Safety” Exception to Miranda where “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at 651 (1984). Moreover, law enforcement could question someone under arrested without giving Miranda Rights when the “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). These situations have included looking for explosives and guns left out. See, United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007) and United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).

Deathlok running free with the ability to launch small missiles, enhanced strength, and bullet proof, would give the Agents a reasonable belief that they were in danger. This would justify the questioning of Nash without giving his Miranda Rights.

Ward Committed Murder (Again)

Thomas Nash was either being interviewed or under arrested when Agent Ward shot him. There is no way around the fact Ward committed murder, arguably worse than his visit to the Guest House. At least those guys could defend themselves.

The execution of a Canadian citizen in the United States by US law enforcement would be controlled by US law. SHIELD operates within the US Government (don’t forget Agents Hand and Blake being picked up on the USS John C Stennis, CVN 74 at the beginning of the episode. Nimitz class carriers are not coffee shops for hanging out). As such, Ward SHOULD be both subject to a 1983 action by Nash’s family and charged for murder.

What is Hydra’s Legal Status?

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Josh Gilliland

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April 1, 2014

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Captain America The First Avenger features Hydra under the leadership of the Red Skull as the principal World War II villains. Hydra begins as Nazi Germany’s advanced weapons division/cult, which then commits mutiny and declares war on the world.

What is Hydra’s Legal Status? Is it a nation-state? A terrorist organization? Is Germany responsible for any post-war activities of Hydra?

There is no question that [fictional] World War II Era Germany was responsible for all actions done under the direction of Hitler and the 3rd Reich. The Nazis built the first bases, funded the research and provided the troops to support Hydra’s operations. All of these actions could be the subject of a war crimes trial.

Things become legally cloudy after the Red Skull murdered the visiting 3rd Reich officers. Hydra made a total break with the Reich, including plans to destroy Berlin, and their own creepy “Hail Hydra” salute.

There is a strong argument that Hydra post-mutiny would be a terrorist organization, because it was no longer sponsored by a nation (in this case, Germany).

Applying the current law to the World War II Era, the Secretary of State could designate Hydra as a terrorist organization because:

1) Hydra is a foreign organization (formerly German);

2) Hydra engaged in terrorist activity 22 U.S.C. 2656f(d)(2)) in that it conducted premeditated, politically motivated violence perpetrated against noncombatant targets (though not completed thanks to Captain America);

3) Hydra’s activities threatened the security of the United States.

8 USCS § 1189(a)(1)(A) to(C).

Hydra’s actions included building advanced weapons in secret bases across war torn European countries with the intent to destroy the world, starting with the United States. Hydra’s flying wing bomber mother ship was launched with the purpose of destroying the eastern United States within an hour. These actions would violate US law and would constitute terrorist activity to “affect the conduct of a government by mass destruction” 22 U.S.C. 2331(A)(1).

Germany and the United States had mutual declarations of war against each other. Hydra no doubt would have been included under the US declaration of war as a German military unit. However, after Hydra went rogue from Germany, Hydra legally was a terrorist organization, because it was no longer sponsored by Germany and enacted their own political agenda.

Hydra’s post mutiny actions would subject it to legally be treated under anti-terrorism laws, especially if they continued terrorist activity after World War II. Germany would be responsible for any war crimes Hydra committed before the mutiny, but unless attacking the United States was part of Germany’s plan, Hydra was no longer part of the German military and a terrorist organization.