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Han Solo: Deserter Extraordinaire

SOLO SPOILER ALERT:

Don’t say we didn’t warn you, kid. Solo spoilers follow below.

Before Han Solo ever shattered the Kessel Run record, shot poor Greedo, or teamed up with cuddly Ewoks to fight the Empire, he was a lowly Corporal in the Imperial Navy. Han stamped his ticket off his home planet of Corellia by enlisting in the Imperial Navy. After getting kicked out of the Imperial Academy on Carida, Han was reassigned to glamorous duty as an infantryman and got sent to slug it out in the mud on Mimban. Despite getting such a choice assignment, Han decides to walk away from Imperial military service to join Beckett’s band of miscreants.

“Deserter” is a military criminal term that has worked its way into our everyday language—it has even officially made its way into Star Wars films, starting in The Force Awakens with Finn. In reality desertion is a complex and serious crime that is unique to the military, which makes it worth asking whether Han’s actions in Solo really amount up to a violation of military law.

It’s a well-known fact that Imperial JAG prosecutors and their impeccably crisp accents are far more feared than THE BEAST.

In its simplest form, desertion is the act of leaving one’s post without authority. Desertion is the bigger, badder brother of absence without leave (more commonly known as AWOL), which is a separate crime. The key difference between the two crimes is that desertion requires proof of intent to remain away permanently.

Militaries around the world have been dealing with soldiers running away from duty for centuries. The United States military certainly hasn’t been immune to the problem, having dealt with deserters as far back as the Revolutionary War. Over 200,000 men deserted from the Union Army in the Civil War. In World War II, the military tried and sentenced roughly 20,000 deserters. Real world desertions have continued despite the transition to an all volunteer fighting force, with roughly 5,500 service members deserting in 2003-2004, just after the invasion of Iraq.

Several famous faces have had brushes with these crimes, including General George Custer and The Great Escape actor Steve McQueen, who were both punished for AWOL stints involving running off to see a special woman in their lives (sound familiar, Han?). Given the Imperial military’s sheer size, its penchant for forcing citizens into service, and the inherent danger of service, it’s a no brainer that the Empire probably has its fair share of desertion and AWOL problems.

“TK-421 thought his unauthorized vacation to Felucia was more important than his squad mates. Now the Death Star is blown up and it’s all his fault.”

Desertion is a crime unique to the military that stems from the nature of military service. For the average worker, if you don’t show up to work you might get fired, but you won’t get hauled into court or tossed into a filthy pit with THE BEAST. Instead, someone else gets hired to fill your place and the world keeps spinning. However, unlike most civilian jobs, service members can’t simply walk off the job, quit, or refuse to do something.

The basic nature of military service means forfeiting a measure of free will. In today’s volunteer force, service members sign contracts that obligate them to serve for a particular period of time. During that time, you are legally bound to obey the orders of your superiors until you are lawfully discharged from service. My own active duty service provides a perfect example of this give and take: Back in 2012 I had plans to attend the big Star Wars Celebration convention in Orlando. My tickets, airfare, and hotel were all locked in and I was all set to go…until I received orders to deploy to Afghanistan. Even though I desperately wanted to go to the convention, my military obligations sadly trumped Star Wars. Having voluntarily enlisted in the Imperial Navy, Han was similarly obligated to serve out his time until discharged.

The look of an Imperial service member who is ECSTATIC to serve the benevolent Emperor.

Desertion is one of the most serious crimes under the Uniform Code of Military Justice (UCMJ), which is the body of law that governs each military branch. Desertion in a time of war can be charged as a capital offense, meaning that the death penalty can be imposed. That tough approach is tied directly to the huge negative impact desertions can have on military units and their ability to effectively fight.

To prove desertion under Article 85 of the UCMJ, the following elements must be satisfied:

  1. The accused absented himself from his unit, organization, or place of duty;
  2. That the absence was without authority;
  3. That the accused intended to remain away permanently; and
  4. That the accused remained absent until a particular date alleged.

I’ve got a bad feeling about Han’s chances at beating a desertion charge. When Han decides to join up with Beckett and Val, he is still assigned to the Imperial 224th Armored Division “Mud Jumpers,” who have been deployed to pacify Mimban (a planet that probably totally deserved to be invaded by Imperial forces). Han absents himself from his unit and his assigned place of duty on Mimban by hopping aboard the stolen AT-Hauler and flying off planet, thereby satisfying the first element.

Han clearly had no authority to leave Mimban. When most civilians leave work, their time is their own. However, service members are generally considered “on duty” at all times, even after hours. Absences such as vacations (commonly called “leave”) or R&R from a combat zone must be specifically approved by commanding officers. In Han’s case, he doesn’t have any authority to leave his unit. In fact, just before joining up with Beckett, Han’s commanding officer had issued orders for his unit to move out for the southern marshlands. Han wasn’t given any authorization to leave the campaign or the planet, which means that the second element is met.

Unfortunately for Corporal Solo, he is lawfully bound to take orders from many, many other people.

The third element of desertion involves proof of the accused’s specific intent. This element is often a tricky one, because it involves proving a person’s internal thought process. However, you don’t necessarily need a confession to prove one’s intent to desert. Under the UCMJ, evidence of one’s intent to remain away permanently can be drawn from a wide variety of circumstances, including the length of the absence and statements and actions of the accused. Han arguably provided ample evidence that he never intended to return to Imperial military service. Han not only walked away from his unit, but he completely jumped planet, running light-years away to the Mid-Rim planet of Vandor. This would be akin to a real service member leaving his post in Georgia and turning up in South America, and it constitutes strong evidence of his intent.

Moreover, Han’s actions in committing crimes against the Imperial military, from aiding in the theft of the AT-Hauler to the brazen robbery of the Imperial Conveyex train, strongly suggest that he intended to remain permanently away from service. After all, Han had every opportunity to surrender to Imperial authorities in both instances, but instead chose to remain on the run. Han also manages to blatantly admit to his intent when he tells Beckett that he’s already a deserter. Thus, Han’s actions and his own big mouth amount to substantial proof of the third element.

The final element, which requires that a closed period of desertion be alleged, would ultimately be satisfied after Han was captured and charged.

Sadly, the UCMJ does not currently recognize the “It’s not my fault” defense.

Unfortunately for Han, the odds of him being acquitted of desertion are approximately 3,720 to 1. Even though Beckett was right that the Empire doesn’t send out enforcers to track down deserters, the crime would permanently hang over Han’s head, as the statute of limitations is “tolled” (pauses) while someone is absent without authority. For Han, that means having to live life with Jabba’s fat bounty on his head and the ever present prospect of an Imperial court-martial. That’s what I call being in deep bantha poodoo.

Does Altered Carbon’s Resolution 653 Pass Constitutional Muster?

“Technology advances, but humans don’t. We’re smart monkeys, and what we want is always the same. Food, shelter, sex, and in all its forms, escape.”  Takeshi Kovacs.

In February, Netflix unveiled a new dystopian, Blade Runner-esque, sci-fi show—Altered Carbon. Set in 2384, the show follows hardboil tough-guy Takeshi Kovacs fighting his way through a murder mystery in a world where human minds can be digitally downloaded and stored in cortical “stacks.” A stack, which can be inserted into the spinal column of any human body (called “sleeves”), allows people with resources to effectively live forever by transferring from one sleeve to another. Stacks can also be “spun up” in virtual realms, where the person’s consciousness can interact with others.

So we can download our consciousness in 250 years from now, but advertising still consists of projecting enormous naked people.

Seeing the obvious appeal of this type of technology, it has been featured in a number of sci-fi movies (The Thirteenth Floor; Chappie) and TV shows (Black Mirror; Stargate Univerise; Star Trek: The Next Generation). What has not been a part of those depictions, however, are the legal consequences to a person’s consciousness existing outside of the traditional temporal and physical confines of the human body. See Obscure Legal Hobbies by Legal Amateurs. Normally, questions challenging the legal assumptions of personhood, copying one’s own mind, and destroying the body but not the mind, remain unanswered in lieu of more pressing matters like, you know, a plot.

Altered Carbon, however, partially delivers where other sci-fi shows have failed. A law being proposed in the series, “Resolution 653,” would allow the government to “spin up” a murder victim’s stack to testify against their killer. The problem? Some people believe that spinning up a person’s stack is heresy. In the show, Neo-Catholics (colloquially, “Neo-Cs”) specifically have religious coding put into their stacks because they believe that God gave humans one life only. So if Neo-Cs receive a second life, it results in an automatic trip to hell (or at least purgatory). Understandably, Neo-Cs are opposed to Resolution 653,on religious ground, with its provision forcing spin ups on murder victims.

Apparently the kind of people protesting still include guys with mountain men beards and crazy hats.

So how would the Constitution’s First Amendment protections support these Neo-Cs attack on Resolution 653? Although the Supreme Court has not directly ruled on the issue [of whether an impingement of fictional tech and religious rights are constitutional], it has provided some idea of how the constitutionality of the Resolution would be interpreted. Some state courts and legislatures, however, have addressed the issue in the context of autopsies, which seems to be a decent analogue. In short, my guess is that Resolution 653 would stand up to constitutional muster or could otherwise be protected by affirmative state legislative action.

SCOTUS and Religious Freedom

In Wisconsin v. Yoder, the Supreme Court held that a person’s right to freely exercise his or her religion can be intruded upon by the government only when “there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” 406 U.S. 205, 214 (1972). Although the government must also show “that no alternative forms of regulation would combat such abuses without infringing First Amendment rights,” Sherbert v. Verner, 374 U.S. 398, 407 (1963), the Supreme Court has also “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),’” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n. 3 (1982)).

“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation . . . if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.” Yoder, 406 U.S. at 215. Thus, “subjective evaluation and rejection of the contemporary secular values accepted by the majority,” or “philosophical and personal [choices] rather than religious,” do “not rise to the demands of the Religion Clauses.” Id. at 216.

I too hope to get resleeved in Joel Kinnaman’s jacked body

Based on our current Supreme Court jurisprudence, the question of Resolution 653’s constitutionality would likely turn on whether (1) the Resolution is a law of general applicability untethered to religious conviction, see Smith, 494 U.S. at 882 (drug restrictions); (2) the religious coding is part of a sincere religious belief or an individual choice, see Yoder, 406 U.S. at 215 (Amish religious conviction); (3) “there is a state interest of sufficient magnitude to override the interest,” see id. at 214; and (4) there exist alternative forms of regulation to accomplish the same goal, see Sherbert, 374 U.S. at 407.

In our post-stack universe, I think that Resolution 653 would win out over religious liberty based on these factors. First, Resolution 653 arguably applies to all persons with stacks; however, it’s presented in Altered Carbon to override the religious coding used by religious groups. It is doubtful that the Resolution would be considered “neutral” or “generally applicable.” Second, Neo-Cs appear wholly uniform and sincere in their religious belief that spinning up a person’s stack condemns them to eternal unrest. These first two factors, therefore, seem to weigh heavily in the Neo-Cs’ favor.

The third and fourth requirements, however, seemingly weigh strongly in favor of the Resolution. The government’s interest in solving a person’s (or multiple people’s) murder is extremely high, especially considering the shenanigans afoot in Altered Carbon. See Rage in Heaven, 1 Altered Carbon (2018) (“spoiler alert“)And although governments have used alternative forms of solving murders for millennia, it’s hard to imagine that the police in 2384 are used to—or even capable of—solving murders without questioning the victim. Because the show did not illuminate alternatives that don’t require actually spinning up a stack to view its contents, my guess is that the Resolution’s proponents would argue none exists.

No funny comment, I just really like Poe and his Raven Hotel

Moreover, the potential for abuse of religious coding to hide crimes seems like it would tip the scales. Like the victim at issue in Altered Carbon, how would the government determine that the coding is even valid as to the person unless they spun them up? In short, because solving a person’s murder is within the government’s duties and society’s best interest, I think the Neo-Cs would be out of luck in their fight.

States to the rescue!

States, however, may be able to expand their citizens’ rights to encompass this type of religious protection. Currently, at least seven states (New York, New Jersey, California, Ohio, Maryland, and Rhode Island) have passed legislation that gives people the right to prevent autopsy of their remains in most circumstances by signing a certificate declaring that autopsy is contrary to their “religious belief.” See Cal. Gov. Code § 27491.43; MD Health-Gen Code § 5-310; NY Public Health Law §4209-a. Challenges to state constitutions or statutes that are interpreted to protect such a right have also failed. See Walsh v. Caidin, 232 Cal. App. 3d 159, 164 (Ct. App. 1991). See also Ross v. Bd. of Regents of the Univ. of N.M., No. CIV 07-01037 RB/ACT, 2008 WL 11359115, at *5 (D.N.M. Sept. 22, 2008); Kickapoo Traditional Tribe of Tex. v. Chacon, 46 F. Supp. 2d 644, 654 (W.D. Tex. 1999). So although the Constitution may not afford such a right, states could codify a religious exception to having one’s stack spun up.

Conclusion

Assuming the Supreme Court’s constitutional interpretation of the First Amendment remains the same (which is an enormous assumption considering when Altered Carbon takes place), I think Resolution 653 would pass muster. Although Neo-Cs have a deep and real religious conviction, they would likely not be able to challenge being spun up in the afterlife without petitioning their state to do so. Now whether Congress could pass an anti-Resolution 653 statute that protects a right to be undisturbed presents a host of issues related to Congress’s enumerated and unenumerated powers that I won’t get into here. Let’s just be thankful that transferring and storing memories is not a problem we will ever have to deal with ever.

No, but for real though, where do I preorder one of these for when my knees give out?

Random thoughts:

  • After seeing the government-issued sleeves given to murder victims, I feel like I would be really ticked off if I had to be in some random, much older person’s body … er, sleeve.
  • Because a “true death” can only happen when a stack is destroyed, I assume SCOTUS would have to recognize a sleeve as “property” for constitutional purposes. Henrietta Lacks’ contribution to society could finally be recognized and compensated.
  • If stacks can be spun up in a virtual world untethered to their sleeve counterparts, why would we even bother getting out of bed? I would definitely not waste time at the DMV.
  • Like The Expanse (which I write about here), I’m a big fan of Altered Carbon if only for its use of Blade Runner visuals and tech.
  • All hail Joel Kinnaman’s updated version of Detective Rick Deckard.

A Solo Train Robbing Adventure

Solo A Star Wars Story has a train robbery on the planet Vandor to steal Coaxium from the Empire as a major plot of the film.  The crime of train robbing had its heyday in a time long ago in U.S. states and territories. Unexpectedly, the punishments for train robbing in the United States and the Empire would be extremely similar, expect Beckett’s Bandits would at least get a trial in the US.

The Crime of Train Robbing 

Laws are not enacted proactively. The “train robbing” statutes of the late 19th Century were born out of specific events in the “Old West,” such as the Union Pacific Big Springs Robbery of 1877 or the crimes of Jesse James.  The state of Missouri declared train robbing as a felony punishable by death or imprisonment in 1895. The law stated:

Any person who shall place upon any railroad track any obstruction or explosive substance, or shall remove, displace or injure any rail, tie, switch, frog, bridge or trestle, with the design of robbing any person, passenger, employee, agent or company on any railway train, engine, tender, car, or coach, on any railway in this state, or who shall in any way stop, detain, or arrest the progress of any such train, car, engine, tender or coach with the intent to commit robbery thereon, or having in any way entered any car, coach, tender, engine, express car, mail car, or other apartment of any such train, shall there rob any person or persons, employee, passenger or agent, or any express company or mail pouch or car, of any money or valuable thing, whatsoever, either the property of such person, agent, passenger or employee, or the property of another in his care or custody, shall be guilty of a felony, and on conviction shall be punished by death, or confinement in the penitentiary for a term of not less than ten years.

State v. Kennedy, 154 Mo. 268, 281-82, (1900), citing Laws 1895, p. 160

The Defendant, ironically named John F. Kennedy, and his co-conspirators forcibly entered a train car, threatened a train employee to leave the mail car, and cut the train cars free of the engine. The robbers moved the train a quarter of a mile and blew up a safe in front of the employee to steal $1,000 (approximately $29888.58 in 2017 adjusted for inflation). Kennedy, at *283.

The Defendant challenged the train robbing charges, claiming the element that the robbery was committed “in the presence, and against the will and by violence, or putting the agent in fear of immediate injury to his person” was not met, because the train employees were not threatened with fear. Id. The Court rejected this argument, because it is unnecessary to prove actual fear when the crime is done violently and against someone’s will, the law will presume fear. Kennedy, at *284. As the crime was a series of events that ended with explosives used on the safe, all the elements of the crime were met.

Train Robbery Was Punishable By Death

The Territory of New Mexico had a similar train robbing law to Missouri that stated:

If any person or persons shall willfully and maliciously make any assault upon any railroad train, railroad cars, or railroad locomotive within this Territory, for the purpose and with the intent to commit murder, robbery, or any other felony upon or against any passenger on said train or cars, or upon or against any engineer, conductor, fireman, brakeman, or any officer or employee connected with said locomotive, train or cars, or upon or against any express messenger, or mail agent on said train, or in any of the cars thereof, on conviction thereof shall be deemed guilty of a felony and shall suffer the punishment of death.

Terr. of N.M. v. Ketchum, 1901-NMSC-006, ¶ 1, 10 N.M. 718, 718, citing 1151 of the Compiled Laws of 1897.

The Defendant in New Mexico challenged the death penalty for train robbing as a violation against the prohibition of cruel and unusual punishment. The Court rejected the challenge and upheld the death sentence with the following logic:

Trains are robbed by armed bands of desperate men, determined upon the accomplishment of their purpose, and nothing will prevent the consummation of their design, not even the necessity to take human life. They commence their operations by over-powering the engineer and fireman. They run the train to some suitable locality. They prevent the interference of any person on the train by intimidation or by the use of deadly weapons and go so far as to take human life in so preventing that interference. They prevent any person from leaving the train for the purpose of placing danger signals upon the track to prevent collisions with other trains, thus willfully and deliberately endangering the life of every passenger on board. If the express messenger or train crew resist their attack upon the cars, they promptly kill them. In this and many other ways they display their utter disregard of human life and property, and show that they are outlaws of the most desperate and dangerous character.

Terr. of N.M. v. Ketchum, ¶ 14.

Judge Frank A. Parker clearly saw the evils of train robbing.

Got to Be Better Ways to Make Money 

Tobias Beckett, Val, Rio Durant, Han Solo, and Chewbacca, all participated in the conspiracy to steal Coaxium from the Imperial train on Vandor. Applying the law of Missouri or the Territory of New Mexico, virtually every scenario contemplated in both codea was violated. Val set explosives on the tracks on a bridge for the train, which would violate the elements of causing an injury to “any rail, tie, switch, frog, bridge or trestle.” The purpose of destroying the railway bridge was to steal one of the train cars by airlifting it off the tracks after cutting it away from the other train cars. These acts were in furtherance of stealing the Coaxium for the Crimson Dawn crime lord Dryden Vos. Furthermore, Imperial Range Troopers were engaged during the train robbery with multiple fatalities. While no one should root for the Empire, the train robbery was not part of a military operation by the Rebellion, but a criminal conspiracy for profit.

All of the actions by Beckett’s crew were the reasons anti-train robbing legislation was passed in the 19th Century. While the train appeared operated automatically with just Ranger Troopers to protect the cargo, there was a shootout with deaths and destruction of the bridge and train. While there is a strong argument that a modern court would not impose the death sentence on a crime without fatalities, that argument is lost once someone dies. 

A defense attorney would have a difficult time defending Beckett’s gang, because arguing it was necessary to rob a train in order to avoid crime lords sending bounty hunters to kill you, begs the question that the underlying action was already a crime. While there could be a interesting question on whether Han had a defense to join Beckett to escape the Empire’s war crimes on Mimban, the issue is legally muddy at best. 

The Law of Star Wars at Escape Velocity

Tomorrow, I get to present on the Law of Star Wars at Escape Velocity, a high-tech and science fiction convention in Washington, D.C. My co-presenters are Prof. Mark Lemley, attorney Nari Ely, and Charles Hildebrandt (who works for the Museum of Science Fiction – my new dream job!). I obviously love talking about the legal issues in the Star Wars universe, but I’m really looking forward to tomorrow’s panel because of how much fun these geeks had last year.

At Escape Velocity 2017, my three co-presenters (and another attorney) covered the legal issues in Star Trek. The panel ended with Klingons arrested the lawyers! Of course, the Klingons had to read them their rights, so attendees were treated to the Miranda Rights as given in the Klingon language. Only problem – Klingons don’t have lawyers so there was no Klingon word for lawyer. Fortunately, Marc Okrand, who invented the Klingon language, was also a guest at Escape Velocity. So he created a Klingon word for lawyer: chut qeSwI’ (literal translation: “law adviser”)!

We probably won’t be creating any new words this year but I can assure you that we will still have a great time. So come check us out at Escape Velocity tomorrow at two. See you soon!

Enforceability of Life Debts

Chewbacca: the Wookiee; the Myth; the Legend. He is the ultimate wingman. Loyal, wise, and damn huggable. Chewbacca was with Han Solo because Chewie owed Han a “life debt.” A life debt was a social custom that stated that if someone had saved a person’s life, then that person owed the one who had saved him or her something in return. Wookieepedia, Life Debt.

Courts would have an extremely difficult time enforcing a “life debt” as a contractual obligation. Contracts require terms with “reasonable certainty.” Restat 2d of Contracts, § 33(1) (2nd 1981). Contracts that had indefiniteness were considered fatal defects in earlier times. See, John Edward Murray, Jr, Murray on Contracts, Third Edition, Copyright 1990, § 38, page 83. Case law includes examples where someone promised to pay “a fair share” of their profits or where a lumberman agreed to provide logs in quantities deemed “reasonable and economical.” Murray, citing Varney v Ditmars, 217 N.Y. 223 (1916) and Smith v Chickamauga Cedar Co., 263 Ala. 245 (1955).

Modern courts have stated the “law leans against the destruction of contracts for uncertainty” and prefer finding agreements are “sufficiently definite.” Murray, citing In re Sing Chong Co., 1 Haw. App. 236, 239 (1980). However, an agreement to “care for a person” was found to fail for indefiniteness. Murray, citing Almeida v. Almeida, 4 Haw. App. 513 (1983).

The test for whether a contract survives indefiniteness is whether the “terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”Restat 2d of Contracts, § 33(2) (2nd 1981).

A life debt potentially can be for an indefinite amount of time, possibly even decades, in order for the debt to be “repaid.” Moreover, Han and Chewbacca going on a series of adventures together (arguably in a partnership with fiduciary duties to each other), lack reasonably certain terms for the scope and duration of the life debt. Chewbacca’s life debt to Han Solo likely would fail for indefiniteness as a contract to “care for a person.” However, a sound legal strategy in cases involving Chewbacca is to let the Wookiee win.

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

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

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

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

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

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

The Air Force Cannot Conduct Law Enforcement

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

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

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

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

The Order to Arrest Violated the Fourth Amendment

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

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

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

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

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

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

Just Say No to Illegal Orders

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

The Rules of a Royal Romance

I became a tad obsessed with the British crown at an early age. The first biography I read as a kid was about Queen Elizabeth I (her dad makes Meghan Markle’s dad look positively fantastic) and I, like much of the world in the ’80s, fell in love with Princess Di. I had my hair cut like hers, I collected magazines about her, and I still remember where I was when I heard the news about her tragic Paris car crash.

My obsession has cooled as I’ve grown (now I’m just obsessed with The Crown) and so I’ve been following the Meghan Markle/Prince Harry gossip mainly as a distraction from the real-life horrors we face every day. But one particular aspect of the prospective marriage fascinates me, both as a lawyer and as a member of a former British colony: the idea of an American marrying into a family that has so many rules. And not just any rules–rules that they all take very seriously.

On the one hand, the idea of this pecking order and being born into a particular position/status rankles me to no end as an American (and makes me glad we fought the Revolutionary War–although lately the idea of the Queen taking us back is tempting). The sexism in many of the rules also drives me nuts. On the other hand, the absurdist in me adores the adherence to such completely pointless, totally inconsequential rules.

So as we count down Meghan’s final hours and minutes of freedom before being swallowed up by The Firm, let’s look at some of the rules that will impact her and her family for generations to come.

Your Majesty, May I Get Married?

First things first, Meghan and Harry wouldn’t have been able to get married if the Queen hadn’t okayed it. And obtaining her permission (not blessing) was not a foregone conclusion. Just ask the Queen’s sister, Princess Margaret (RIP). She wanted to marry Peter Townsend, a divorced man, and her sister (and later, the government) forbade it because of Peter’s divorce.

Ironically, the Queen wouldn’t even be the monarch today if her uncle had been able to stay on the throne. But he fell in love with a divorced American and had to choose between the throne and her. He chose love. (Cynical note: There are also arguments that Wallis Simpson’s connections to the Nazis had an impact on the choice King Edward VIII was given. Pessimistic note: Can’t believe we’re still dealing with Nazis nearly a century later.) Of course, the Church of England, of which the Queen is the formal head, now accepts divorce (better than the beheadings that its founder, King Henry VIII, tended to rely on).

So that obstacle has been removed, but the Queen still had to give Harry formal permission to wed because he is currently sixth in line for the throne (and was fifth in line for the throne, after Princess Charlotte, when he and Meghan first became engaged). That’s because there is literally a law that states that the first six people in the line of succession to the throne must have the monarch’s permission to wed. Insane, right?! So Prince Charles, Prince William, Kate and William’s three children, and Prince Harry all need the Queen’s permission to wed. The recent birth of Prince Louis, however, means that Prince Andrew (Prince Charles’ younger brother) is now seventh in line to the throne and there’s a decent chance he and Fergie may end up getting remarried now that they no longer need the Queen’s permission.

Call Me By WHOSE Name?

So this next rule is one of the really sexist rules. The way the rules work, only “blood” princesses (has anyone ever discussed adoption?) get to be called Princess X (e.g., Princess Charlotte, Princess Anne, Princess Eugenie). If you marry a prince, you actually take on their name and title. So technically, Kate Middleton isn’t Princess Catherine, she’s Princess William of Wales. Likewise, Meghan will technically be known as Princess Harry of Wales, although the odds are very high that the Queen will bestow upon Harry and Meghan the titles Duke and Duchess of something (possibly Sussex), so she’ll also have that name.

I could go on for a long time because the rules regarding names and titles get very long and elaborate, but I’d probably still get it wrong because the rules are very technical. Suffice it to say, most royals, like our greatest celebrities (Madonna, Beyonce, Cher, Rihanna) don’t need last names but do like really long titles. Prince Phillip, for example, was born with the name, Philip, Prince of Greece, while his current full title is: His Royal Highness Prince Philip, Duke of Edinburgh, Earl of Merioneth and Baron Greenwich, Knight of the Garter, Knight of the Thistle, Order of Merit, Knight Grand Cross of the Order of the British Empire, Companion of the Order of Australia, Companion of The Queen’s Service Order, Privy Counsellor.

To Curtsy or Not To Curtsy

This rule is sexist and petty, and it’s also exhausting to think of how hard this would be to remember at every family outing: it’s the rule for which royals have to curtsy or bow (really, that’s just a head bob) to other royals. And there’s an official order on this, which the Queen updated before Kate married William. It’s called the Order of Precedence and the Queen also updated it when Charles married Camilla, so she may update it again in light of Meghan joining the family.

For purposes of establishing Kate’s rank in the hierarchy, the Order provides that she has to curtsy to the “blood princesses” (like Princess Anne and Princess Eugenie) if she’s by herself. If she’s with William, however, she “adopts” his rank and the blood princesses have to curtsy to her. (Family note: Ugh, I can’t imagine ever having to curtsy to any of my cousins or their spouses, no matter how much I love them!). This Order also impacts the order of arrival at events (just like celebrities at the Oscars!). Presumably, the Order will be adjusted so that Meghan’s situation is similar to Kate’s, although she’ll probably always have to curtsy to Kate (again, uck.).

This rule makes me think of the story Michael J. Fox tells about sitting next to Princess Diana (technically Diana, Princess of Wales) for a screening of “Back to the Future.” Long story short, he had been told he couldn’t stand up unless she did first. Just as the movie started he realized he had to pee but didn’t move the entire movie because he was afraid of breaking that rule!

What About the Kids?

Finally, assuming Harry and Meghan have kids, what titles and ranks will they have? That’s a tougher question. First, the British monarchy still has the sexist rule that titles are inherited through sons, which is part of the reason why some of Queen Elizabeth’s grandchildren are princes and princesses (e.g., Prince Charles’ and Prince Andrews’ children) but Princess Anne’s children are not. The Queen offered to bestow titles upon Anne’s children but she declined. Likewise, the Queen’s youngest son, Prince Edward, decided he did not want his children to have the royal titles to which they were entitled. Harry and Meghan could choose to follow either Andrew’s lead or Edward’s lead with their kids.

On a related note, one slight improvement has been made to the rules of succession in Great Britain. Prior to the birth of Prince George, Parliament passed a Succession to the Crown Act that provided that the female offspring of an heir to the crown would not be passed over for a younger, male sibling. So that means Princess Charlotte does not lose her place in line for the throne to her younger brother, Prince Louis. The Act also softens, but does not totally eliminate, the bias against Roman Catholics. King Henry VIII’s feud with the Catholic Church isn’t dead yet!

So all of this is just a fraction of what Meghan will have to deal with after this weekend’s wedding. She seems like a smart, accomplished woman who knows what she’s doing and it looks like she intends to use her newfound platform for good, which is great. I wish her the best of luck and hope everything goes well for her. And, as a mother and a daughter, I’m sad for Prince Harry that his mother won’t be there this weekend. I’m sad as a lifelong fan of Princess Diana too. Just to show how obsessed I was with Princess Diana, here’s a picture of the magazines that I still can’t let go off even after all of these years. Some of them have even traveled with me from the East Coast to Texas to Wisconsin. She’s the only royal I really care about.

 

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