Did Governor Tarkin Commit a War Crime Destroying Alderaan?

December 15, 2016

Grand Moff Tarkin ordered the destruction of Alderaan on the military necessity to demonstrate the power of the Death Star. Tarkin’s stated intent was that no star system would oppose the Emperor after destroying a planet. Alderaan was selected based on the fact Princess Leia was from there and Tarkin’s suspicion that Leia was part of the Rebellion. Tarkin selected Alderaan over Dantooine, where Leia admitted there was a Rebel base, because the planet was “too remote for an effective demonstration.”

Was the destruction of Alderaan justified under the Empire’s “Doctrine of Fear”? Or was the destruction of an entire planet a war crime?

Governor Tarkin could argue that destroying Alderaan was done out of “military necessity” to instill fear in other star systems. This is a highly problematic argument, because Tarkin would be attempting to legitimize genocide.

The Doctrine of Fear in practice. Darth Vader used debris from Alderann as a “gift” to the new Queen Trios of Shu-torun, to remind her she served the Empire, in Darth Vader, Annual 1, February 2016, published by Marvel Worldwide, Inc.

“Military necessity” are the measures “relevant and proportionate” to securing the prompt submission of the enemy. See, LINCOLN, LIEBER AND THE LAWS OF WAR: THE ORIGINS AND LIMITS OF THE PRINCIPLE OF MILITARY NECESSITY, 92 A.J.I.L. 213, 215, fn 20.

Military necessity was the justification during World War II for US Citizens of Japanese, German, and Italian decent to remain under curfew.

The Government argued that the curfew orders were a “reasonable judgment of military necessity, because ‘cultural characteristics of the Japanese Americans, including religion and education, it was likely that some, though not all, American citizens of Japanese ancestry were disloyal.’” The Government further ordered that an entire group of US Citizens had to be “contained” because of an unknown number of individuals who could have been a threat to national security. Hirabayashi v. United States, 828 F.2d 591, 596 (9th Cir. 1987).

Later Courts recognized that the internment and curfew orders were done out of racial fears. Hirabayashi, at *601. Moreover, the argument that loyalties were unknown and “time was of the essence” was based on racist statements from General John L. DeWitt with evidence suppressed from the Supreme Court for forty years. Hirabayashi, at *603, citing Korematsu v. United States, 323 U.S. 214, 241 (1944).

Tarkin would take the justification for interning people based on race to a new level with destroying a planet because there was “no time to discern” who was loyal and disloyal to the Empire. The entire population was subject to summary execution because of Princess Leia’s involvement in stealing the Death Star plans.

In a case involving Texas Governor Ross Sterling, the Governor ordered controls on the production of oil to within 400,000 barrels based on military necessity, because according to Sterling, there would be warlike riots and insurrection, resulting in a state of war. Sterling v. Constantin, 287 U.S. 378, 391-92 (1932).

The Supreme Court rejected the Governor’s justification of military necessity to deprive citizens of their right to operate their oil businesses under state law. The District Court had stated there was not a state of war or insurrection in any territory. The Court further stated:

The evidence shows no insurrection nor riot, in fact, existing at any time in the territory, no closure of the courts, no failure of civil authorities. It shows that at no time has there been in fact any condition resembling a state of war, and that, unless the Governor may by proclamation create an irrebuttable presumption that a state of war exists, the actions of the Governor and his staff may not be justified on the ground of military necessity.”

Sterling, at* 391-92.

Governor Tarkin could argue there was insurrection within the Empire. However, destroying Alderaan would violate the prohibition from killing civilians in war. See, Geneva Convention Relative to the Protection of Civilian Persons in Time of War.

Nations are prohibited from committing murder on “persons taking no active part in the hostilities.” USCS Geneva IV, Article 3, section (1)(a). Blowing up an entire planet to instill fear in other star systems is the complete abandonment of any notion of universal rights.

There was no legal justification for Grand Moff Tarkin to destroy Alderaan. One could imagine Tarkin saying, “the only way to stop the Rebels is to kill their families.” This was an extreme war crime that justified Rebellion against the Empire.

Could the Mos Eisley Cantina Discriminate Against Serving Droids?

Josh Gilliland

December 7, 2016

Droids are not just made to suffer; Droids are made to be discriminated against. The bartender at the Mos Eisley Cantina took one look at C-3PO and R2D2 and told Luke Skywalker: We don’t serve their kind in here. We don’t want them here.

That is discrimination based upon being a droid. This is not surprising for spaceport known for being a wretched hive of scum and villainy. Whether or not it is illegal on Tatooine is another matter.

States and cities across the United States have made it illegal to refuse to serve people because of their race or color at taverns, tippling houses, or saloons. See, D.C. Code § 47-2902. The Equal Protection Clause of the Fourteenth Amendment prohibits discriminatory state action. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948). In a case where two women challenged a tavern’s men only policy, the Court found that the licensing of the tavern was a state action to warrant compliance of the Fourteenth Amendment for the female plaintiffs. Seidenberg v. McSorleys’ Old Ale House, Inc., 317 F. Supp. 593, 604-605 (S.D.N.Y. 1970).

California law states that all “persons” are “free and equal” and are entitled to the services in all business establishments of every kind. Cal. Civ. Code § 51. The Code further outlines that “free and equal” includes “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” Id.

Mos Eisley Cantina had an extremely broad range of patrons. There were humans, Defels, Lutrillians, Sakiyan, Advozse, Duros, Gotal, and multiple other races, varying in skin color, fur, limbs, horns, tusks, horns, and eyes. (For a detailed list, check out the forum in The Bothan Spy). The Cantina clearly accepted all races and genders, regardless of some extreme physical differences.

The problem for droids is they are not organic life forms. Droids are arguably not “alive” in the biological sense, despite the fact droids are programmed to have emotions. The fact droids are robotic devices with artificial intelligence can put them in a separate category from “organic” lifeforms. As evidenced in every Star Wars film, droids are treated as personal property, just as are pets.

Many places of public accommodation do not allow pets where food is sold, served, or handled. See, National City, California Code of Ordinances Sec. 8.16.060. While many of the patrons at the Cantina have many similar features to domestic and wild animals on Earth, those individuals were allowed in the Cantina.

Droids on the other hand are not organic. While many droids are often made in the image of human beings, such as C-3PO, they are not a “person” with “genetic information.” As human as droids are in Star Wars, they are not organic life forms. At best, they are lovable and loyal pets. Now, if the droids were like service animals, then that is possibly a different result if a human was denied bringing his service droid to the Cantina. See, N.M. Stat. Ann. § 28-11-3. Let’s be honest, we all want a comfort R2-D2.

The Mos Eisley Cantina’s discrimination against C-3PO and R2-D2 was purely on the fact they were droids. There is no justification based on health and safety to prohibit droids from entering the Cantina, especially considering a [naked] Chewbacca, Ponda Baba, and everyone else with fur could walk freely around the Cantina that served drinks for consumption. The practical reason the droids were not wanted in the Cantina, is they do not eat or drink, thus taking up attendee space that could be used by a paying patron. This is a discriminatory reason for refusing service, however, one that might be without a remedy on Tatooine.

War Crimes of the First Order

Josh Gilliland

December 5, 2016

Kylo Ren is a war criminal with sins equal to the My Lia Massacre. In his pursuit to find and kill his uncle Luke Skywalker, Ren lead First Order Stormtroopers to Jakku to recover a map to Skywalker. The Troopers opened fired on unarmed civilians and captured those left alive. Ren murdered Lor San Tekka with his lightsaber and ordered the Stormtroopers to “kill them all,” when questioned on what to do with the villagers.

All of these acts were before Ren committed Han-icide. While General Leia Organa might have unconditional love for her son, there are limits to a mother wanting a mass murderer back. At what point does Leia order Kylo Ren be killed?

The villagers on Jakku were civilians whose only crime was being in the way of the First Order. There is the legal maxim that “Enemy prisoners are not subject to summary execution by their captors. Military law has long held that the killing of an unresisting prisoner is murder.” United States v Calley, 48 C.M.R. 19, 25 (U.S. C.M.A. 1973), citing Winthrop’s Military Law and Precedents, 2d ed., 1920 Reprint, at 788-91. Moreover, “[w]hile it is lawful to kill an enemy “in the heat and exercise of war,” yet “to kill such an enemy after he has laid down his arms . . . is murder.” Id. Furthermore, nations are prohibited from committing murder on “persons taking no active part in the hostilities.” USCS Geneva IV, Article 3, section (1)(a).

The First Order Stormtroopers quickly overran the Jakku villagers. The civilians were rounded up and summarily executed. There is no colorable argument that the villagers were part of the Resistance, let alone offering resistance.

Kylo Ren literally quoted Lt. William Calley when he ordered the Stormtroopers to “kill them all.” In Calley’s appeal in the My Lia Massacre, the Court found the following:

Conceding for the purposes of this assignment of error that Calley believed the villagers were part of “the enemy,” the uncontradicted evidence is that they were under the control of armed soldiers and were offering no resistance. In his testimony, Calley admitted he was aware of the requirement that prisoners be treated with respect. He also admitted he knew that the normal practice was to interrogate villagers, release those who could satisfactorily account for themselves, and evacuate the suspect among them for further examination. Instead of proceeding in the usual way, Calley executed all, without regard to age, condition, or possibility of suspicion. On the evidence, the court-martial could reasonably find Calley guilty of the offenses before us.

Calley, at *25.

The First Order committed a war crime on Jakku by killing every civilian at the village. Kylo Ren could be prosecuted for giving the order to commit murder. The one person who refused to follow orders was FN-2187. First Order Stormtrooper FN-2199 should watch calling “Finn” a traitor, because Finn is the only one who refused to commit a war crime. That makes Finn the hero.

Commandeering Vehicles to Fight Goat Demons

Josh Gilliland

November 30, 2016

Could Sheriff Evie Barret commandeer a pick-up truck in the Stan Against Evil episode “Know, Know, Know, Your Goat”?

The current laws of New Hampshire do not specifically address police commandeering private vehicles. However, the state had allowed for it in the past. In a New Hampshire Supreme Court case, the Court discussed statutory authority for police vehicles, ambulances, and “private cars, when commandeered for use by the police,” were exempted from speed limits. See, Vandell v. Sanders, 155 A. 193, 194-95 (N.H. 1931), citing P. L., c. 103, s. 18.

New Hampshire law speaks to police powers and “vehicles when driven with due regard for safety under the direction of the peace officers in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation…” N.H. Rev. Stat. Ann. § 265:61.

Sheriff Barret did drive the commandeered pick-up with due regard of safety in order to apprehend suspected violators of the law. In this case, that suspected violator was a demon goat. There is a high likelihood that the mayor of Willard’s Mill would respond to demonic goats the same way that Mayor Larry Vaughn did to shark attacks in Jaws. There would be denial, ridicule, followed by a massive lawsuit by anyone who lost a loved one to demonic forces.

Thank You! We Made the ABA Journal Blawg 100 for Fourth Time!

Josh Gilliland

November 29, 2016

Jessica and I are deeply humbled to have made the ABA Journal Blawg 100 for the fourth time. We are honored people enjoy our blog.

Thank you to everyone who nominated us and the editors at the ABA Journal.

We work hard to have fun with the law and pop culture. There was no shortage of great topics to blog about, thanks to all of the comic book and science fiction movies/TV shows that came out in 2016.

We also have had a great time attending Cons this year. Here are just a few of the highlights:

We had an the Mock Trial of the Winter Soldier at San Diego Comic Fest;

Presented five panels at the first San Francisco Comic Con;

Presented at Long Beach Comic Con for the first time;

Moderated the Firefly panel at Alien Con with Jewel Staite; and

Presented at San Diego Comic Con with my brother on Supergirl and Star Trek with California Supreme Court Justice Mariano-Florentino Cuellar.

I want to thank all of our guest bloggers for their posts: Neel Chatterjee who helped us celebrate the 50th Anniversary of Star Trek; Sylvia La Rosa, Christina McAmis, Kean Zimmerman, and Jordon Huppert for honoring the 75th Anniversary of Captain America; Brad Blanchard for asking who owns the Millennium Falcon; Megan Smith analyzing the HIPAA violations in Doctor Strange; and Jack Yang who took on the data security issues in the X-Men. Stay tune for upcoming guest posts on Star Wars to celebrate Rogue One.

Thank you to all of our readers and the ABA Journal for making 2016 awesome.

From the Mock Trial of the Winter Soldier

About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The Medical Experiments in Seagate Prison Were Totally Illegal

Josh Gilliland

November 27, 2016

Luke Cage gained his enhanced strength and bulletproof skin from an experimental treatment at Seagate prison after injuries sustained from a beating orchestrated by corrupt prison guards. See, Marvel’s Luke Cage on Netflix, Episode 4, “Step in the Arena.”

Forcing prisoners to fight and conducting medical experiments without their consent are massive Civil Rights violations. The Eighth Amendment prohibition of cruel and unusual punishment includes anything from “physically barbarous punishments” to punishments that are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” See, Bailey v. Lally, 481 F. Supp. 203, 218-19 (D. Md. 1979), citing Gregg v. Georgia, 96 S. Ct. 2909 (joint opinion) and Trop v. Dulles, 78 S. Ct. 590.

Recording prisoners fighting for online videos is a barbaric punishment that is incompatible with any standard of decency. Subjecting those prisoners to medical experiments would be a second Civil Rights violation.

Individuals have a “liberty interest in their bodily integrity” that is protected by the Due Process Clause of the Fourteenth Amendment. In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810-11 (S.D. Ohio 1995) and Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994).

Courts take these rights serious. One case found that nonconsensual experiments with high doses of radiation supervised by military doctors that were performed by city physicians violated that right. Id.

Medical experiments on human beings were one of the dominating issues at the war crimes trials of the Nazis. The judgment from trial is known as the “Nuremberg Code.” The Code states the following on consent:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health and person which may possibly come from his participation in the experiment.

In re Cincinnati Radiation Litig., at *820, citing the “Nuremberg Code.”

Luke Cage clearly had his rights violated with being forced into fighting matches, threats, and being beaten. The medical experiment that saved his life is more complicated. Luke had been severely injured in a beating. Dr. Reva Connors (Luke’s future wife killed by Jessica Jones under the control of Kilgrave) took the dying Luke Cage to Dr. Noah Burstein’s lab for an experimental medical procedure.

Dr. Burstein did not attempt to get informed consent from Luke Cage on the medical experiment. Dr. Burstein had a personal duty to get Luke’s consent before engaging in the procedure. This could not be delegated to Dr. Reva Connors, as she was not performing the experiment. In re Cincinnati Radiation Litig., at *820.

Luke was in danger of dying, but was not incapacitated to give informed consent. Dr. Burstein could argue he acted in an emergency situation, however, that argument would be stronger if Luke had been unable to answer questions.

It is unlikely any of the prisoners at Seagate who were experimented on gave Dr. Burstein their consent. One prisoner experiment case had a multidisciplinary oversight committee composed of physicians and non-physicians, including professors of law, social work, pharmacology, and psychology. No such oversight was done at Seagate to vindicate prisoner rights. See, Bailey, at *213.

Seagage prison is a massive lawsuit waiting to happen in the Marvel Cinematic Universe. If only there was a fictional lawyer who could take the case…

Green Arrow Rebirth Guest Post for Exterro

Josh Gilliland

November 22, 2016

Check out for my guest post on the Exterro blog on the new Green Arrow Rebirth series!

Some people might think of comic books as flights of fancy filled with characters wielding supernatural powers to fight foes from other planets, and yes, that’s true. But there are other comics that, while still being imaginative fictions, ground themselves in the real world. Even in the world of Big Data and E-Discovery.

A great example of this is Green Arrow. The title character — who’s alter ego is Oliver Queen, CEO of Queen Industries — has no superhuman or special powers other than being an amazing archer with a lot of resources and a drive for social justice. In the latest iteration, Oliver Queen uses technology to his advantage when fighting crime in his home city of Seattle, and real-life elements that mirror our world – computer forensics, wire fraud, banking laws, even a DC version of Bitcoin (aptly named Lexcoin after Superman’s nemesis Lex Luthor) – show up in the stories.

I recently spoke with Green Arrow writer, Benjamin Percy, about his thoughts on this, and he said, “So much of our lives are presently online. Socially, financially, professionally — our tracks are everywhere. We can so easily end up violated or even…possessed, erased by hackers, viruses. Green Arrow is a comic that — more than most — taps into the zeitgeist. I’m channeling cultural anxieties onto the page, and it’s natural that electronic data and commerce will play into my storylines.”

For further analysis relating Percy’s narratives to the legal world, I asked Joshua Gilliland, Esq. — blogger for Bow Tie Law, and one of the two founding attorney bloggers for The Legal Geeks – to take a look at the latest story arc in Green Arrow: Rebirth. Here’s what he had to say:

Check out the Exterro blog for my analysis on Comic Book eDiscovery!

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