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Royal Captive: The Legality of Princess Leia’s Imprisonment

By
Thomas Harper
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Happy Star Wars Day to all! Today marks the day Star Wars fans are bound by Imperial decree to shove aside all other adult responsibilities to instead focus on the galaxy far, far away. To mark the occasion, we’ll be taking up the case of Princess Leia’s imprisonment in A New Hope.

As the movie begins, we catch up with Princess Leia on her terrible, horrible, no good, very bad day. After narrowly escaping from the Battle of Scarif, Leia’s mission to bring both the Death Star plans and Obi-Wan back to the Rebellion is cut short by her crazed Sith Lord father. After Vader’s Star Destroyer nearly turns her ship into Swiss cheese, Leia is taken captive and imprisoned on the Death Star.

Rebel scum and sympathizers alike have decried Leia’s treatment at the hands of the Empire, but did the Empire really owe her any protections under international law?

Deleted scene dialogue: “Whatever, dad, like I have to listen to anything you say. Bail and Breha said there’s not a snowball’s chance on Mustafar you’re ever getting custody of me, so don’t try to boss me around.”

Leia is often described as being a “prisoner of war,” or POW, while aboard the Death Star. The logic behind it is pretty straightforward: The Rebel Alliance is at war with the Empire; Leia is a part of the Rebel Alliance and gets captured, which means she’s a POW. Easy peasy lemon squeezy, right? Not so fast, flyboy.

“Prisoner of war” isn’t a blanket term used to describe any enemy fighter who gets captured. On real world battlefields, “POW” is a complex designation that carries a lot of legal significance.

Historically, you were in deep bantha poodoo if you got captured during war. Prisoners had no legal protections and became the property of the victor. They could be killed, sold, or even forced to serve drinks on Jabba’s sail barge in humiliating fashion. The progress towards granting legal protections for POWs advanced about as slowly as a rusty Sandcrawler, even in the United States. During the American Civil War, POWs from both sides suffered untold horrors at the hands of their captors, with 26,486 Southerners and 22,576 Notherners dying in POW camps.

Even nearly 80 years later during World War II the law still had not evolved to fully protect POWs. Prisoners of the Japanese were often subjected to infamously heinous treatment. To the Japanese, the concept of humane treatment of POWs was a foreign one, as they viewed surrendering Soldiers as traitors and a disgrace.

I pity the fool who captures Anakin and then tries to tell him that he’s legally a slave again.

It wasn’t until after World War II that international law finally developed a more robust set of protections for POWs. Under the Geneva Conventions of 1949, POWs were entitled to a host of protections, including humane treatment, protection from violence and intimidation, and medical care, to name just a few. Additionally, POWs are generally considered legally immune for their per-capture acts of war (e.g. killing or destroying military equipment). POWs are also protected from torture, coercion, and threats during interrogation.

But those sweeping protections come with a Death Star sized asterisk: They don’t apply to just any ole’ person captured on the battlefield. The POW status is only available to certain persons on the battlefield in certain types of armed conflict. If that sounds like a confusing set of legal hurdles, that’s because it absolutely is. But to make things simple, we’ll presume that it’s possible for Rebels to qualify as POWs.

“But with the blast shield down, I can’t see any of the other potential legal issues!”

Since not everyone captured on the battlefield is considered a POW, Leia’s fate hinges on how she is classified. Grand Moff Tarkin would scoff at the very idea of affording any sort of protection to the traitorous Princess of Alderaan. Tarkin would coolly point out that Leia’s thin veneer as an innocent politician hid her true status as a high-ranking Rebel spy.

Under both Article 29 of the Hague Convention and Additional Protocol I to the Geneva Conventions, spies are not entitled to POW status. The Geneva Conventions and the U.S. Army Law of Warfare Field Manual 27-10 define espionage as “acting clandestinely (or on false pretenses) to obtain information for transmission back to friendly territory.”

But on the other side of the scale, Leia’s dual role might serve her well. Under international law, belligerent diplomats are afforded POW protections (that phrase should immediately conjure images of Padme blasting waves of droids on Geonosis). To qualify for the truly awesome title of “belligerent diplomat,” you have to both hold a political office and be a member of an armed force.

At first blush, Leia seems to be the dictionary definition of a belligerent diplomat (AKA an aggressive negotiator). After all, she’s the youngest elected Imperial Senator and a rising political star in the galaxy. Leia has also been intimately involved with the Rebellion since its earliest days. Even though she is careful to hide her involvement with the group, there is little doubt that Leia is a member of the Rebel Alliance’s armed forces by the time of A New Hope, having just accompanied the Rebel fleet to Scarif in its single largest military strike.

Nothing to see here. Just a diplomatic ship flying casually over the bustling metropolis of Tatooine. We definitely weren’t the same ship you saw blasting away from Scarif 30 minutes ago.

Given how Rogue One ended, Leia’s claim that she was on a diplomatic mission to Alderaan might seem like a ridiculous lie born of pure desperation. However, Leia is no fool. While her lie might have been a long shot, her words were carefully chosen and incredibly selfless given their legal significance.

As stormtroopers marched her in front of Vader, Leia faced a terrible choice. On one hand, she could admit to being part of the Rebel Alliance. She could have then demanded POW status as a belligerent diplomat. She would have still been imprisoned, but her personal safety would have been guaranteed under the legal protections afforded to POWs.

But Leia fully realized that securing her own safety would in turn risk the lives of countless others. Had she openly admitted to being a Rebel, the Empire would have had damning proof that Alderaan was intertwined with the Rebellion at the highest levels of its government. If Leia–a member of House Organa and the daughter of two of Alderaan’s highest officials–admitted to being a Rebel, the Emperor could easily declare the entire planet as traitors to the Empire. Leia knew that if she handed Palpatine that kind of smoking gun, he could justify any number of hostile actions against Alderaan, from a blockade to a full occupation force.

Instead, Leia chose to gamble with her own life. By playing up the thin façade that she was an innocent diplomat, Leia risked being branded as a spy. In the real world, the Geneva Conventions offer no protection for acts of espionage and spies may be tried under the laws of the capturing nation. Given the Empire’s distaste for Rebels, that likely meant a swift execution. Leia absolutely knew that risk as she stepped in front of Vader.

Leia also undoubtedly realized that getting caught ferrying the Death Star plans under the cover of a diplomatic mission would be the literal textbook definition of espionage. As Leia sent R2-D2 off to the escape pods, Leia had no illusions about her fate. She made no plea for Obi-Wan to come rescue her and had no plans to avail herself of POW protections, given the dear price Alderaan would likely pay as a result.

Leia therefore lied to Vader’s face not because she honestly thought he would buy it, but because it was part of her last full measure to protect her people and the Rebellion.

In the end, Leia didn’t peddle some silly pointless lie after being captured; her words were carefully chosen and had serious legal significance and consequence for her. While Vader and the rest of the Imperials were playing checkers, Leia was playing chess (or Dejarik, if we’re staying in-universe with all references) by using the law of war to protect the Alderaanian people and to help the Rebellion fight another day.

Star Wars Law at Nerd Nite Bethlehem!

By
Thomas Harper
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The Legal Geeks recently invaded Nerd Nite in Bethlehem, PA.  Check out my entire talk on Star Wars & the law below!

Poe Dameron: Ace Pilot & Resistance Criminal? (Part 2)

By
Thomas Harper
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Poe Dameron, the intrepid Resistance hero, didn’t exactly start off The Last Jedi on the best of terms. In fact, Poe seems to have a hard time grappling with the concept of military authority throughout the entire movie. Poe’s open defiance of Leia’s retreat order would have been enough to put him in deep bantha poodoo. But Poe, not content to stop at just one death penalty crime, decides to lead an uprising against Vice Admiral Amilyn Holdo later in the film.

For those in need of a refresher, Poe becomes increasingly frustrated with Admiral Holdo’s leadership as the Resistance flees the First Order fleet. Unable to safely jump to light speed, Holdo keeps the fleet just out of range, but makes no apparent move to escape or engage the threat. After realizing that Holdo has ordered all personnel to evacuate aboard unarmed and unshielded escape craft, Poe decides he’s seen enough. He and several other pilots draw blasters on Holdo and take over the ship.

Poe’s actions stirred up a fierce fan debate in the weeks after the movie. Some fans stood with C-3PO and declared his actions to be an unacceptable mutiny, while others decried Holdo’s leadership and thought it justified Poe’s efforts. Despite my hopes and dreams, we probably won’t get to see a deleted TLJ scene where a Resistance JAG officer analyzes the legality of Poe’s mutiny. That sad omission leaves us to break down his actions amongst ourselves.

Seriously, do NOT give Holdo an excuse to ram a MC-85 star cruiser into you at light speed, because she will do it in a heartbeat.

The Last Jedi represents the very first Star Wars film to mention not one but TWO military crimes specifically by name: mutiny and desertion (you can imagine my beaming smile as I sat in the theater).

Mutiny is a crime unique to the military, with no real parallel in any other criminal code. Generally, a mutiny is a forcible or passive resistance to lawful authority, including a revolt against a superior officer. Both the act of mutinying and the efforts to criminalize it have a long history. Virtually every military on the planet has dealt with mutiny, from Great Britain to the United States. Poe Dameron certainly was no trailblazer in this field, because there has even been a mutiny in space.

Coincidentally, C-3PO said the same exact thing when he reported Poe Dameron to authorities.

For centuries England regulated mutiny through “Articles of War,” which codified military conduct in times of war. Today, the U.S. military regulates mutiny through the Uniform Code of Military Justice (UCMJ), which is enforced both in peacetime and wartime.

Mutiny can take several forms under the UCMJ. Under Article 94, mutiny can be committed not through violent means, but also by refusing to obey orders or refusing to perform a duty. Historically, some mutiny codes required that there be some sort of conspiracy amongst more than one service member. That is not the case under the UCMJ, as a single soldier can commit a mutiny under certain circumstances.

Since Poe and Friends™ decided to use blasters in their escapades, we’ll focus on the part of Article 94 involving mutiny through violence. Surprisingly, only two elements need to be satisfied to commit the crime:

(1) That the accused created a violence or disturbance; and

(2) That the accused created the violence with intent to usurp or override lawful military authority.

Unfortunately for Poe, he managed to commit a textbook mutiny during The Last Jedi. As to the first element, Article 94 defines “violence” simply as the exertion of physical force. The Code defines “disturbance” as the interference with a state of peace or order.

Poe might argue that no violence happened because no one shot, touched, or harmed Holdo. While Poe might dodge that part of the statute, his actions undoubtedly caused a disturbance. Drawing down on your superior officers O.K. Corral style in front of an entire landing bay of personnel is one of the purest ways to meet that element. His actions halted the evacuation efforts and prevented a number of superior officers, including Commander D’Acy, from performing their duties.

Little known Star Wars fact: Obi-Wan was also referencing feeling the legal disturbance caused by Poe’s mutiny.

As for the second element, proof would need to exist that Poe intended to create the disturbance to seize and hold military authority by force or without right. Prosecutors sometimes face an uphill battle proving intent because it can be incredibly hard to prove what was going on in someone’s head. Here, Poe wasn’t exactly the galaxy’s most brilliant criminal, as his loud mouth put everyone on notice about exactly what he intended to do.

Poe managed to telegraph his intent long before he drew a blaster on Holdo. While other officers accepted Holdo’s new rightful role as commander, Poe made no secret of his displeasure with her authority, openly questioning her decisions. After realizing Holdo was evacuating personnel, Poe declares that she is a coward and a traitor in front of other personnel. His words collectively establish his displeasure with Holdo, which help prove that he intended to seize military authority from her.

Poe also makes the mistake of openly discussing his plan to take over the bridge in front of C-3PO, AKA the galaxy’s biggest snitch. As if all that weren’t enough, Poe declares exactly what’s on his mind as he seizes control from Holdo (in front of dozens of other witnesses, no less).

Poe Dameron, a newly demoted Captain, was vastly outranked by Vice Admiral Holdo and therefore had no inherent authority to take over the ship. Poe also had no command authority, as Holdo was the rightful successor in command to General Organa. By holding Holdo hostage to take over the Raddus, Poe’s actions therefore absolutely met the second element of the crime.

Leia goes into a coma for all of 5 minutes and Poe goes off and pulls a blaster on her successor.

 

Unfortunately for all the Poe-Bros™ out there, Captain Dameron has little in the way of a defense for his actions. The UCMJ doesn’t allow subordinates to violently overthrow their commanders just because they disagree or don’t like the strategy. Chaos would reign supreme if that sort of thing were allowed in the ranks.

At its core, Poe was upset because Holdo didn’t keep him in the loop on military decision-making like General Organa had done. Based upon very limited information, Poe ultimately jumps to conclusions about her overall plan and its danger to the Resistance. In the real world, subordinates aren’t entitled to all the details of a military operation. Security concerns often demand that information be compartmentalized—the fewer people who know all details of a plan, the less risk to the entire mission.

For all of Poe’s greatness in a cockpit, his actions were incredibly reckless. Holdo kept the details of the evacuation secret for good reason. Serious consequences flowed from Poe’s actions, as the Resistance plan ultimately leaked to the First Order, leading to the destruction of nearly all of their escape craft. Poe may not have liked how Holdo was leading, but that was not a legal defense to his actions.

In the end, Poe is probably in the clear for other reasons. After all, the 8 or so people left in the Resistance are barely enough to fill a space cruiser, much less convene a court-martial. In the absence of true justice, we can assume that Leia delivered another resounding slap and let Chewie issue him a scathing reprimand (in Shyriiwook, of course).

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

By
Thomas Harper
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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.

The Case Against Finn

By
Thomas Harper
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Following his violent escape from the First Order Star Destroyer Finalizer, FN-2187 (or “Finn,” as he is called by the Resistance terrorists) was tried by court-martial in absentia for a litany of alleged crimes under the First Order Uniform Code of Military Justice.

The following is an excerpt from the transcript of closing arguments dealing with FN-2187’s alleged desertion in First Order General Court-Martial TC-3263827, FIRST ORDER v. FN-2187.

MILITARY JUDGE: Prosecution, do you wish to present a closing argument?

PROSECUTOR: Yes, your Honor.

MILITARY JUDGE: You may proceed.

PROSECUTOR:

A cowardly betrayal. Rather than stand and do his duty, FN-2187 was a coward who ran, betraying the First Order and all it stands for.

Cowardice and betrayal are the two cornerstones of this case. Over the course of this trial you have heard ample evidence of each. The empty chair at the defense table should be a powerful image that stays with each of you throughout your deliberations. That chair has been empty throughout this trial because FN-2187 remains a fugitive…a fugitive who is unwilling to face the consequences for his actions to this very day. The weight of the evidence before you demands but one conclusion: FN-2187 is guilty of desertion beyond any shadow of a doubt.

FN-2187’s motive for betraying the First Order was a simple one: pure, unadulterated cowardice. You heard testimony from several of the stormtroopers that accompanied FN-2187 to the surface of Jakku, including FN-3181. Not one of those troopers saw FN-2187 fire a single shot from his blaster, even as the enemies in Tuanul Village put up fierce resistance. Captain Phasma, one of our finest soldiers, also testified that FN-2187 failed to obey her direct command to open fire on the last pocket of aggressors. She confronted him shortly after their return to the Finalizer and found the trooper with his helmet off against regulation, appearing frightened. FN-2187’s cowardly display on Jakku was a prime motive for him to flee, as was his fear of being held accountable for his failures by Captain Phasma.

The defense has offered you FN-2187’s training records and touted the fact that he showed no prior signs of non-conformity before Jakku. Those are irrelevant distractions. Captain Phasma explained that despite the rigors of her trooper training program, one cannot fully predict how a soldier will react when faced with real combat. FN-2187’s own actions on the field of battle prove that was a coward, afraid of performing his basic duties as a servant of the First Order.

No sooner had FN-2187 returned from his first combat mission than he cast off any remaining loyalty to the First Order by collaborating and planning an escape with a known Resistance operative. Prosecution Exhibit 15, the holorecordings from Finalizer security cams, definitively shows FN-2187 helping free Resistance pilot Poe Dameron, who was captured during the battle on Jakku. Captain Phasma unequivocally confirmed that FN-2187 had no authority to leave the Finalizer following the Jakku mission. Nevertheless, FN-2187’s plan was to act on his cowardice by escaping the Finalizer and deserting the First Order.

Despite the defense’s contention, FN-2187 was not under any duress at the time. No one forced FN-2187 to leave the star destroyer. Instead, his actions were a series of conscious decisions meant to accomplish his goal of desertion. Watch those holorecordings carefully and you will see that FN-2187 remains in control the entire time as he and Poe Dameron enter Hanger Bay 2. FN-2187 guides Poe Dameron by the arm through the ship and into the hangar bay. He keeps hold of his blaster rifle the entire time and is in no apparent danger.

Even though he had full access to the comms and emergency alert system in his helmet, FN-2187 made no effort to raise the alarm or call for help. Given his training in hand-to-hand combat, he could have easily engaged and defeated the Resistance scum if he had truly been in distress. Instead, FN-2187 snuck into a TIE fighter with the prisoner, intent on completing his escape plan. Most damning of all, FN-2187 opened fire on First Order troops from the TIE fighter to complete his escape. The defense sought to pin that death and destruction on Poe Dameron, but watch the recordings carefully—it was the TIE’s rear-facing cannons that wrought most of the damage. Since FN-2187 occupied the TIE’s co-pilot seat, he would have been in control of those guns.

Collectively, that is all clear evidence that FN-2187 fled the First Order of his own volition. But to be guilty of desertion, there must also be evidence that he intended to remain permanently away from the First Order. Fortunately, you have a figurative mountain of evidence before you to prove that element of the crime. You heard from two of the stormtroopers sent to Jakku to capture FN-2187 after he crash-landed. They recovered his stormtrooper armor, which FN-2187 cast off to conceal his true identity.

Not only did he ditch his armor, but those same troopers also testified that they spotted FN-2187 wearing a brown leather jacket as a disguise over his black body suit in Niima Outpost. And what did FN-2187 do when he saw First Order troops? He didn’t call out for help or raise the alarm. No, he ran once again, this time joining with an unknown female before blasting his way off planet, killing two brave First Order pilots in the process.

FN-2187’s violent and desperate escapes from the Finalizer and Jakku would ordinarily be evidence enough of his intent to permanently desert the First Order. However, you have also seen evidence that FN-2187 further betrayed the First Order by joining the Resistance. Numerous stormtroopers testified that FN-2187 was fighting alongside Resistance forces on Takodana. FN-2187 can clearly be seen fighting against our soldiers in the gun tape from TIE fighters that were providing close air support for First Order troops, which is contained in Prosecution Exhibit 34.

Motivated by cowardice, FN-2187 fled the First Order and has been doing everything within his power to remain away. He betrayed his unit, his leaders, and his friends. He betrayed each of us. Therefore, the evidence before you makes it crystal clear that FN-2187 committed desertion by leaving the First Order with the intent to remain away permanently.

Star Wars Battlefront 2: It’s Treason, Then

By
Thomas Harper
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SPOILER ALERT: Spoilers for the Battlefront 2 single player campaign follow below.

*Now this is the story all about how Iden’s life got flipped, turned upside down*

Commander Iden Versio, the central character of Star Wars Battlefront 2, goes through quite the roller coaster ride during the single player campaign. In short order, she goes from leader the elite Special Forces team known as Inferno Squad and hero of the Empire, to a marked fugitive who stands accused of treason. By all accounts, Commander Versio is in deep bantha poodoo. But while the accusations against her are severe, does Iden have a legitimate defense? 

First up, lets take a look at the facts of her case. After the second Death Star is obliterated, Operation Cinder, Emperor Palpatine’s dastardly contingency plan, kicks in. Operation Cinder calls for wiping out a number of Imperial worlds, including Vardos, Iden Versio’s homeworld.

Iden is naturally horrified at the mission, but her father, Admiral Garrick Versio, dismisses her concerns about the mission, showcasing the very finest in blind allegiance. Admiral Versio puts the Emperor’s plan in motion. He activates a network of satellites above Vardos that trigger massive storms designed to destroy everything on the planet. The Admiral then issues a direct order for Iden to travel to the surface and evacuate a single Imperial official, Protectorate Gleb.

Once on Vardos, Commander Versio decides to go beyond her father’s orders to save a number of civilians. Gideon Hask, another Inferno Squad member, confronts Iden and accuses her of treason for betraying Inferno Squad’s orders. Iden refuses to yield, shoots Hask in the leg as a parting gift, and quickly becomes hunted as a traitor.

The forecast on Vardos? Cloudy with a chance of apocalypse.

Since Gideon Hask’s angry proclamation isn’t exactly a formal indictment, how exactly would Commander Versio be charged? As a military officer, Iden would be subject to the Uniform Code of Military Justice (UCMJ). In the real world, the UCMJ is the body of law that governs the conduct of all military members. Service members who break the law can face courts-martial, which are federal trials, complete with a military judge and panel (jury) of senior service members. Iden has firsthand experience with the Imperial military justice system, having been court-martialed once before as a part of a covert Inferno Squad operation.

Interestingly, the UCMJ has no specific article covering treason. That doesn’t mean Iden gets off scot-free, though. While it may seem odd that the military’s criminal code doesn’t cover treason, the omission was not a mistake. Treason is one of only three crimes identified in the U.S. Constitution, along with piracy and counterfeiting.

Have you been accused of piracy, treason, and/or counterfeiting? You’re Jabba the Hutt’s kind of scum! Apply for a job with Hutt Enterprises today!

Despite its mention in the Constitution, the actual criminal offense of treason is codified in 18 U.S. Code § 2381. Section 2381 uses the Constitutional definition of treason:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.”

Although treason and many other federal crimes don’t appear in the UCMJ, prosecutors can still charge them. In real world courts-martial, Article 134 of the UCMJ is used as a means of charging federal offenses that are not covered in the UCMJ. Therefore, even though treason is not an offense in the military code, Iden could still be charged with treason as part of a court-martial.

While the Empire could certainly charge Iden with treason, do they have a solid case against her? In order to commit treason, one has to owe allegiance to the country. American citizenship is sufficient to trigger that obligation. As a citizen of Vardos, which was a loyal Imperial system, Iden would owe the same allegiance to the Empire.

U.S. military officers also owe allegiance by virtue of their oath of office, which is taken upon receiving a commission:

“I, (name), do solemnly swear (or affirm) 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.”

As a commissioned Imperial officer, Iden Versio would have undoubtedly sworn to a similar oath when she graduated from the Imperial Academy on Coruscant. Thus, it’s safe to say Iden owed allegiance to the Empire.

Professor Obi-Wan’s crash course on treason.

Next, what acts could Imperial prosecutors use as evidence of treason? When you break the statute down, there are two ways to commit treason: (1) By levying war, or (2) By giving aid and comfort to enemies. The term “levying war” is borrowed from English law. It means, “the assembling of a body of men for the purpose of effecting by force a treasonable object….”

Setting aside Iden’s later decision to join the Rebellion, prosecutors would have a difficult time proving that Iden levied war against the Empire by saving civilians. Iden did not incite or organize civilians to go to war against the Empire. The civilians did not arm themselves or use force at Iden’s request. Instead, they simply wanted to get off world to avoid annihilation. While she may have violated her superior officer’s order, Iden’s compassionate act doesn’t amount to levying war against the Empire.

Prosecutors would have similar trouble proving that Iden provided aid and comfort to enemies of the Empire. While Iden obviously provided aid to civilians, they were not enemies of the Empire. The whole point behind Iden’s defiant act was that the people of Vardos were loyal citizens who deserved protection. When Operation Cinder started, Vardos civilians had not lifted a finger against the Empire, yet they suddenly found themselves in the crosshairs of the Emperor’s wrath for no sensible reason. During the Vardos mission gameplay, citizens appear confused and scared, pleading with Imperial troops to let them leave as terrifying storms formed above. These are not the actions of enemies, but of the loyal citizens who are fearful for their lives. Imperial prosecutors could not reasonably claim that those same citizens suddenly became enemies simply because the Emperor decreed that the planet should be destroyed.

Palpatine can be awfully cranky when he doesn’t get his way.

Iden also lacked the mens rea, or guilty mind needed to commit treason. When confronted by Hask, Iden declared that it was the Empire’s job to save civilians from things like Operation Cinder. To her, the people of Vardos were still Imperial citizens who deserved to be protected from its military. The Emperor’s order did nothing to change that in Iden’s mind, which means that her actions were intended to be a measure of loyalty, not betrayal, of the Empire.

In the end, the crime of treason requires more than just defying the order of a superior officer. Iden’s choice to save Imperial civilians from imminent death simply does not amount to treason. Carl Sandburg once said, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” In Iden’s case, Imperial prosecutors would likely be doing a lot of pounding and yelling indignantly, albeit in very pleasant British accents.

The Dark Side Made Me Do It: Kylo Ren’s Insanity Defense

By
Thomas Harper
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A once brilliant and gifted young man suddenly betrayed everything he held dear, developed a dark (possibly emo) alter ego, and now speaks to a melted helmet that once belonged to his grandfather.

Pretend you’re a criminal defense attorney who gets that sort of profile describing your newest client. I’d wager a fair number of galactic credits that you’d immediately start researching a possible insanity defense. By the end of The Force Awakens, Kylo Ren had amassed a rap sheet taller than Chewbacca with K2-SO sitting on his shoulders. While it might be easy to cast him off as a ruthless murderer, his fall to the dark side raises questions about whether he was actually legally responsible for his crimes. Suppose Kylo Ren was ultimately put on trial—could he successfully mount an insanity defense around the dark side and its effects?

Having conversations with a burned up piece of your dead grandfather seems like it should be a decent qualifier for the insanity defense.

 Given the nature of Kylo Ren’s crimes, we’ll assume that he would be tried by a military court using the rules of the Uniform Code of Military Justice (UCMJ). In addition to its criminal code, the UCMJ contains Rules for Court-Martial (RCM). The RCM dictate the entire court-martial process, from the initial investigation to post-trial and appellate matters. Those rules also set the limits for when a defendant can use the defense of lack of mental responsibility.

Court-martial defendants don’t have free rein to use any mental health problem under the sun as a defense. Under RCM 916(k) of the UCMJ, a lack of mental responsibility (more commonly known as the “insanity defense”) has strict limits. In order to use the affirmative defense, the accused must have been suffering from a severe mental disease or defect at the time of the offense.

Much like his grandfather, Kylo Ren likely suffers from a borderline personality disorder. Anakin Skywalker’s difficulty controlling his anger, impulsivity, unstableness, and his identity disturbance were among the factors that led French psychologist Dr. Eric Bui to conclude that he suffered from such a disorder. From angrily demolishing innocent control panels on the Finalizer to adopting a new personality (and an all-black wardrobe), or running a lightsaber through his poor dad, Kylo Ren exhibits many of the same symptoms. Kylo would therefore likely be diagnosed with a similar disorder.

Given its personnel issues, perhaps the First Order should divert a bit of its giant planet laser budget into an investment in one or two psychologists…

While it’s clear that Kylo is suffering from a mental disease, it’s not so clear that his problem qualifies as a severe defect under the law. Unfortunately, there is no bright line rule for what qualifies as “severe.” No military court has set an exact standard for what qualifies as severe. The jury instruction for mental responsibility found within the Military Judge’s Benchbook reflects the lack of clarity on the issue. It states, “[t]he term “severe mental disease or defect” can be no better defined in the law then by the use of the term itself. However, a severe mental disease or defect does not, in the legal sense, include an abnormality manifested only by…antisocial conduct or by nonpsychotic behavior disorders and personality disorders.”

Kylo’s borderline personality disorder may cause him serious issues, but he would face a tough battle establishing that it is a severe disorder. A better option might be to have his treating physicians explore whether the dark side manifested itself as a sort of psychosis, causing Kylo to lose touch with reality.

Even if Kylo Ren successfully argues that the dark side was a severe mental disease or defect, he would still face an uphill battle. Under the UCMJ, Kylo would bear the high burden of establishing by clear and convincing evidence that he not only had a severe mental disease or defect, but that it rendered him unable to appreciate the nature and quality or the wrongfulness of his acts.

Unfortunately for Kylo, his own actions seem to suggest that he knew exactly what he was doing in many instances. Take his murder of Han, for example. Shortly before shish kebabing his dad, Kylo said that he was being torn apart. His words and initial hesitancy seemingly showed that Kylo was feeling genuine anguish over the choice that lay before him. It was also evidence that he had a firm grip on what he was doing and knew how wrong it was.

Kylo seemingly killed his father not because of a mental split from reality or some loss of control due to the dark side, but out of desperation to tap into the wellspring of power he saw in the dark side. Having just been shown up by Rey, his own powers had been called into question in front of Supreme Leader Snoke. As a result, he may have had a strong desire to increase his strength with the dark side to make up for that humiliation. Like his grandfather, his obsession with power may have led him down a dark path, but he was not totally out of control.

While those facts might all be great for Kylo’s continued career as Snoke’s crony, they would likely sink his chances at a successful insanity defense.

Ever the concerned dad, Han is right to look so surprised at how tough it is to mount an insanity defense.

Kylo shouldn’t feel too down in the dumps, though. After all, from 1990 to 2010, there were only roughly 7 not guilty by reason of insanity acquittals out of a total of 29,513 cases—a rate of about .02%. In the end, the dark side of the Force might be the pathway to many abilities…but successfully mounting an insanity defense with it probably isn’t one of them.

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