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Up, Up, and Away, Supergirl!

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Supergirl had an excellent premier, with homages to the 1978 Superman, Super-Friends, and honoring past actors who wore the House of El’s iconic symbol of hope. Bravo.

The episode left me wondering…has the government known all along that Kara was from another planet? Just how did Ma and Pa Danvers forge documents creating an identity for a teenager from another planet? Did the government assist with a cover-up of alien life? How did Kara have proof of vaccinations to attend public school?

While these questions highlight that lawyers can suck the fun out of life, they pose interesting issues.

First things first: Kara’s mother Alura In-Ze was a Judge. Rock on.

Kara’s foster parents would have had a far easier time with establishing a life for Kara with the aid of the government. It is unlikely Kara’s mom packed a birth certificate before Krypton exploded, so the Federal government assisting in creating a human identity for Kara would remove a lot of challenges. If not, it is highly likely Kara’s foster parents engaged in computer fraud and identity theft in order to create a new life for their adopted daughter. This would give new meaning to the term “illegal alien.”

The Federal Government (and specifically INS) could have given Kara top-secret refugee status. The law does not currently address a child escaping an exploding planet, but there is no doubt she is a refugee. Moreover, the government would not want to announce to the public the existence of aliens, given the societal and political backlash that would follow.

Supergirl does not exist in the cinematic world of Man of Steel, so the planet has not endured the trillions of dollars of damage from the battle with General Zod. This version of Superman might have the credibility from having saved the Earth multiple times for years, so asking the Government for a “favor” in creating an identity for his refugee cousin would not be asking for much.

Kara’s first act of heroism was saving a plane from crashing. The news coverage is overall positive, but there is criticism calling her a “human wrecking ball.”

Supergirl had no duty to rescue the crashing plane. If she had not taken any action, the plane would have crashed either in or around the city. There would have been 100% loss of life on the plane and mass casualties on the ground, especially if the plane crashed in a residential neighborhood.

Kara’s duty after beginning to rescue the plane was not to put it in a worse situation. She avoided colliding with the bridge, which would have resulted in loss of life and catastrophic property damage. Moreover, she made a successful water landing, thus avoiding injuring people on the ground (there is the matter of jet fuel in water, thus the Coast Guard would be busy with environmental clean-up, but that is better than hitting a building). Whether or not the flight attendants instructed passengers to put on lifejackets before exiting the plane is unknown, but that would fall on the airline’s duty as a common carrier, not Kara.

The more interesting question is whether or not the Government could, or should, keep secret there are alien criminals with super powers roaming the United States, with unknown plans, and hostile intentions towards Earth. Regardless of that answer, I look forward to the rest of the season.

How Can Captain America Fund His Fight Against the Sons of the Serpent?

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The new Sam Wilson Captain America #1 by Nick Spencer has Captain America sever ties with SHIELD and the Government. Cap is now a free agent fighting for those who ask for help (well, reasonable requests, not flying into sporting events or fighting over cable bills).

Body armor for sidekicks and private jets cost money. Cap stated he was setting up crowdfunding in order to fund his hero activities like a political campaign. Would it be legal to crowdfund crime fighting?

The law does not favor vigilantism. Society does not want people taking the law into their own hands. Starting a crowdfunding campaign to do something illegal is problematic at best and a conspiracy at worst.

Captain America #1 puts two different forms of vigilantism into conflict with Sam Wilson fighting a terrorist-vigilante-border-patrol militia group. It should be noted that boarder security and combating illegal immigration are exclusively Federal responsibilities.

The “Sons of the Serpent” are a terrorist organization engaging in illegal vigilante boarder patrol activities. Their goal was to kill those entering the United States illegally. Captain America goes to Arizona to investigate a missing person who was either killed or kidnapped by the Sons of the Serpent, resulting in a confrontation.

Murder in the name of boarder security is just plain illegal. There is absolutely no argument terrorists could make that they are acting on behalf of the United States. Captain America has a strong argument that his actions were in the defense of others to stop terrorists, because a reasonable person would believe physical force was immediately necessary to protect those illegally crossing the border from being murdered by terrorists in costumes with high-powered weapons. A.R.S. § 13-404.

The issue of whether Captain America can run a Super Pack to crowdfund his super-hero activities presents some funky legal issues. Being a super-hero is not like the Red Cross responding to a natural disaster, but actively seeking out criminals to engage in law enforcement activities. No one can crowdfund an illegal activity. There is a strong argument that raising money to engage in super-hero activity would violate RICO. There is also a chance that if Cap is fighting the government, his crowdfunding is actually a form of insurrection. As such, everyone supporting it would be part of a vast conspiracy.

Should Captain America fight terrorists? Yes. Protecting the poor, huddled masses, from terrorists is something Americans proudly do (responding to illegal border crossings is a different issue for the government, but one that does NOT involve murder by private citizens).

Can Captain America raise money like a political action committee for that purpose? No, but he could if it was for his legal defense or to aid those who were the victims of super-villains, then the crowdfunding would be for a legitimate purpose that would not be vigilantism.

A Journey into Mystery of Tales to Astonish at the 2015 Geekie Awards

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It was a privileged to have been nominated for best podcast for the third annual Geekie Awards. It was a true honor that so many people work so hard for us in our Geekie campaign. Words cannot express how thankful I am for everyone.

I am extremely proud of our Geekie Awards campaign. Our supporting blog post had over 5,000 views and was shared extensively. I credit this to the superb skills of Tessa Lange, who played Thor in our video. Tessa is a tap-dancing, kick-boxing, artist, and actress. There is no question she is a Renaissance woman who will go far in her career.

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I especially want to thank Gerry O’Brien, a New York political consultant, who was our un-official campaign manager. Gerry gave us a lot of excellent advice on our campaign. I credit our strong campaign to his help.

I am in awe of the fact that friends since elementary school voted daily; friends from my seventh grade comic book club campaigned on social media for us; youth from scouts and high school mock trial loyally voted; lawyers, judges, computer forensic experts rallied to our cause; and even the wonderful family I dog-sit for voted daily for us.

It is extremely easy for people to respond with a request for an online vote with silence. Our fans, family, and friends rallied for us and I will never forget it. There are no words to convey how grateful I am from such love. While we might not have gone home with that ray gun, I feel truly blessed from everyone who stood with us.

A Show for Every Geek

The fact two lawyers discussing property rights over Thor’s Hammer and where Iron Man should sue Ant-Man truly showed that Geekie Awards is for everyone who considers themselves a geek.

I broke tradition and did not wear a bow tie to the event. I instead dressed as the 13th Doctor (I count the War Doctor as the Doctor) and my friend Megan went as Clara.

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I really enjoyed seeing Ernie Hudson present Michael C. Gross the Lifetime Achievement Award. The man has had an amazing career from National Lampoon to Ghostbusters.  It was also awesome to see Gross give Hudson a bag of Twinkies.

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Kevin Smith was very deserving of the new Geek Pioneer Award from all of his experience from movie-making to podcasting. It was also great to see how much he loved the one-cut fight scene in Daredevil.

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The nominees for best podcast visited together on both nights. The team from Hadron Gospel Hour and I were at last call for two different bars after the show, discussing history, the best James Bond car chases, and Doctor Who. It was amazing to be nominated with such great Geeks.

None of this would have been possible without the vision of Kristen Nedopak. Kristen’s contribution to geekdom highlights we are a community that likes to come together to recognize those who invent, create, and inspire. I believe the greats such as Jack Kirby, Leonard Nimoy, and Ray Harryhausen would be very proud of how Kristen has brought geeks together. We all owe you a debt for creating this opportunity for all of us.

The Two-Night Format

I loved the Geekie Awards new two-night format. The first night focused on a pre-party for the nominees. This was a fantastic opportunity for attendees to network, have red carpet interviews, and enjoy a festival atmosphere.

It was great to finally meet Emily and Peter from Wrong Button, and Josh Silverman from Constantly Calibrating.
It was great to finally meet Emily and Peter from Wrong Button, and Josh Silverman from Constantly Calibrating.

I was thrilled to finally meet so many people in person after interacting with them on Twitter since the first Geekie Awards. Moreover, the first night allowed for honorees to meet each other and enjoy being a community. This added to the experience, because there is literally so much happening in a whirlwind that two nights allowed honorees to maximize the experience. Furthermore, the photo booth was an excellent touch.

The awards show was nicely done. The “swag” for attendees included computer sleeves celebrating the time travel theme Doctor Who, Back to the Future, and Bill and Ted’s Excellent Adventure. Other takeaways included a cool new lapel pin with The Geekie Awards logo and hacky sack.

One of the challenges of the evening were long lines for the red carpet interviews. This was minimized for those who had interviews the night before. Possible ways to improve this for both honorees and press in the future would be to have any of the following:

A Line Marshal to ensure the steady flow of live interviews, so everyone has their moment to shine;

Have additional press areas for recorded interviews, so more interviews can be held concurrently; and

Have a press area for recorded interviews to be scheduled earlier in the day, so there is no rush due to the show opening.

If the Geekie Awards evolves into a festival, this would expand the opportunities for interviews to be held over a longer period of time.

Ways to Enhance the Experience

The Geekie Awards continues to make new improvements each year. The new venue and two-night format really improved the experience from the first two years.

The first Geekie Awards had activities the attendees could interact with for photos, such as the bridge of the Enterprise-D and R2-D2, for examples. People posed for photos with the TARDIS this year. Bringing in similar exhibits would give people the opportunity to have fun and take home memories that make great photos. Having more interactive elements would likely be popular for attendees.

The Geekies has always had cosplayers interacting with the audience and posing for photos. This is a ton of fun and something that should continue.

The categories at the Geekies have continued to develop each year. I would not be surprised if the podcast category became scripted and un-scripted categories in the future, similar to how the video categories sub-divided. There are differences in producing a scripted story that is told on a regular basis and a discussion show exploring different topics. Given the fact there were 60 entries this year, this category could divide to expand the opportunity for recognition.

To the Future

It was an honor being nominated for Best Podcast. It was heartwarming to have so many people seek me out to say hello from the creators’ party to the after party. I am in awe of everyone who helped us, from old high school classmates sending supportive notes, to friends calling before the show to wish us luck. This is an experience I shall not forget.

Now it is time to focus on the future. 2015 has been amazing from San Diego Comic Con to The Geekie Awards, and we look forward to the road ahead.

Can the Government Vaccinate Mutants?

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Brian Michael Bendis new Invincible Iron Man #1 adds a new taboo topic for a first date: Developing a cure to the mutant gene. This immediately raises the issue it would become a law, injecting politics into a date (another taboo). Dr. Amara Perera admits the horror of her cure and that it would be like trying to cure Judaism (adding religion into a first date, another taboo). Since this date is with Tony Stark, sex is eluded to, completing the dating no-no topic discussions.

Dating best practices aside, would it be legal to force people to take a cure for the mutant gene? The answer is surprisingly maybe…

IronMan_MutantGene_Cure_1Governments have a rational interest in protecting the public health. This is a legitimate police power.

Puberty is hard enough, so turning into an armadillo or flying lizard is just adding insult to teenage injury. Furthermore, governments have an interest in protecting students (and the public) from dangers, such as kids who cannot control deadly lasers shooting out of their eyes.

Is there any precedent that the government could use to justify having people take a “cure” to the mutant gene?

Many states require mandatory vaccinations to attend public schools. While parents might insist they have a God-given right based on pseudo-science for their children to contract Polio and kill a generation of Americans, this is not the majority view (Exhibit A is we have not had a Polio epidemic thanks to vaccinations).

The state of West Virginia requires children entering a state-regulated school to produce a certificate that they have been immunized against chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough. W. Va. Code § 16-3-4(b). New York takes it to another level and places the responsibility on the parents that any child born after January 1, 1994 be immunized against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B. NY CLS Pub Health § 2164(a).

States have a facially strong argument that immunizing children against the mutant gene in order to attend public schools is for public safety. The United States Supreme Court has held since 1905 that mandatory vaccinations are within the State’s police power. Jacobson v. Massachusetts (1905) 197 U.S. 11. We do not want the public dying horrible deaths from diseases, thus require vaccines.

There is a giant problem with the argument for forcing children to be vaccinated against the mutant gene in order to attend school: it is based on race and eugenics, not preventing the spread of disease. It is one thing for everyone student to be vaccinated, it is another to target an entire race because of their DNA.

Vaccination cases have not been held to the strict scrutiny standard. From Jacobson in 1905, which addressed people over age twenty-one being required to be vaccinated against small pox or be criminally prosecuted, to vaccinating children in New York who attend public school, all of these cases were decided within a State’s police power. Phillips v. City of New York (2d Cir. 2015) 775 F.3d 538, 542, fn. 5.

Race based legislation is held to strict scrutiny. If racial classifications are explicit, there is no requirement to analyze the legislative purpose of the law. However, facially neutral laws warrant strict scrutiny when motivated by racial purpose or unexplainable on grounds other than race. Hunt v Cromartie (1999) 526 US 541.

Specifically requiring children with the mutant gene arguably could subject the law to strict scrutiny, because the law would be targeted specifically at children with mutant DNA and not the public as a whole. While mandatory vaccinations are not targeted to specific racial groups, vaccinating children with mutant DNA would be on race (Homo Superior, opposed to Homo Sapien).

Strict scrutiny analysis examines the 1) character of classification in question; 2) individual interests affected by classification; and 3) governmental interests asserted in support of classification.

As to the first point, the classification is for anyone with mutant DNA; 2) the individual interests are that the individual is forced to take medication in order they do not mutate as they get older; and 3) the government interest is to ensure there are not super-powered individuals endangering the public (namely other students in public schools).

There is a good chance mutant vaccinations could NOT survive strict scrutiny, but there is no question the vaccination is not to stop the spread of disease, but the speculative injury to students in the future if their classmates can breathe fire, spit venom, or throw a bus into the pool.

If the “cure” were expanded to adults who had already mutated, that would be different than the State interest in protecting the public as a legitimate police power. It would be the equivalent of gun confiscation of law-abiding citizens or bringing back Prohibition in order to stop drunk driving. Just because someone had the ability to fly, does not mean they will use for ill intent.

In a world with mutants, those with powers might be viewed as those who are athletes or excel from other gifts. There is no way to “equalize” the population so everyone is the same, only that they have the same opportunities to advance. Whether or not it would be legal to impose a cure to the mutant gene might one day be decided by a fictional court, but unlikely one in the real world.

We Should Not be OK with Agents of SHIELD Planning a Murder

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The Agents of SHIELD episode “The Purpose in the Machine,” had a lot of positive things going for it, from using steampunk technology with an Asgardian to figure out how the Kree monolith operated, to Agent May spending quality time with her dad.

The only way it could have been better, would have been leaving Simmons on that Kree Moon for a few more episodes. This was a great opportunity to have introduced Captain Mar-Vell as an ally, or Una treating Simmons, or a Peter Quill cameo. Sadly, none of those things were not meant to be. Let’s see what the flashbacks hold for us.

The problem with the episode is Lance Hunter being sent out to kill Grant Ward. SHIELD is a rogue government agency, not following the Constitution, not taking orders from the President, and doing whatever they see fit. This pattern of behavior is not that dissimilar from the Red Skull going rogue with HYDRA from Germany.

A former secret agent deciding to kill a terrorist is still murder, even if the intended victim is a horrible human being. We have a pesky Constitution that specifically prohibits people being deprived of their life without due process of law. Director Coulson deciding to have Ward killed is simply murder and everyone participating is part of the conspiracy.

SHIELD acted as an agency with law enforcement, military, and espionage missions before the HYDRA coup. Continuing to blend law enforcement and national defense is highly problematic, because law enforcement in the United States does not execute kill orders from the President. The mission of law enforcement is to arrest with specific rules on when lethal force can used.

Military operations are inherently different. In the War on Terror, Congress has authorized the use of force in combating terrorists groups. President Obama has used drones executing his “kill list,” which has included Americans operating with terrorists. These individuals are no doubt traitors who took up arms against the United States in foreign counties. The military does not conduct law enforcement; it wages war. Those who take up arms against the United States overseas should not be surprised to have war waged against them.

We have a very different situation in the fictional world of Agents of SHIELD. Director Coulson has no legal authority to order any missions, let alone to decide to kill people. Moreover, the FBI and CIA would both be monitoring for HYDRA communications to counter terrorism at home or abroad. The mission of the FBI would be to stop HYDRA, but the goal would be to arrest those involved and use lethal force if met with lethal force.

It would not be farfetched in this imaginary world to see Congress authorize the military to hunt down HYDRA on US soil, just like Congress did against the Klan during President Grant’s administration. General Talbot might have such a mandate, but it is not clear to what extent.

Director Coulson deciding to kill a US Citizen who should be prosecuted for murdering a US Senator, multiple military service personnel, treason, terrorism, and a long list of other crimes, really makes him no better than Grant Ward. If SHIELD is successful, there really is no going back from the fact that Coulson, Hunter, and May, have more in common with the Punisher than Captain America.

Can Predictive Analytics be Used to Hold Someone as a Danger to Themselves?

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Minority Report continues to explore legal issues for a future that is seriously undermining civil liberties for security. Can Hawk-Eye’s predictive analytics be used to hold a person for 48 hours for observation?

In “Hawk-Eye,” the CEO of a company aptly named Narcissus, was put on a 48-hold for observation after purposely driving the wrong direction on the highway at a high rate of speed (reckless driving that would justify an arrest). The Hawk-Eye system cataloged and analyzed his behavior and vitals, thus activating the car’s self-driving mood to return him to home for observation. Other examples included placing a hold on someone exhibiting warning signs of suicide.

Could predictive analytics of data be legally used to show a person is a danger to himself or herself? The answer is maybe.

California allows someone to be placed on a 72-hour hold under the following:

(a)  When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services. At a minimum, assessment, as defined in Section 5150.4, and evaluation, as defined in subdivision (a) of Section 5008, shall be conducted and provided on an ongoing basis. Crisis intervention, as defined in subdivision (e) of Section 5008, may be provided concurrently with assessment, evaluation, or any other service.

Cal Wel & Inst Code § 5150.

California case law further explains:

[A] state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [Citations.] Each case must be decided on the facts and circumstances presented to the [detaining person] at the time of the detention [citation], and the [detaining person] is justified in taking into account the past conduct, character, and reputation of the detainee. [Citation.]” 

Heater v. Southwood Psychiatric Center, 42 Cal. App. 4th 1068, 1080 (Cal. App. 4th Dist. 1996).

Predictive analytics that complies a persons purchases and health data might constitute specific and articulable facts to show a person is a danger to themselves or others. For example, data analytics could cause an alert someone could be considering suicide from the following:

Public cameras shows a person purchasing line, a stool, and steel eyebolts that could support a person’s weight;

Social media posts include statements that they have no reason to live; and

Social media posts expressing rage.

Would that be enough to demonstrate probable cause to justify an observation hold? This person could be venting about home improvement projects or is considering suicide. There is a reason to have someone knock on this person’s door, but a hold might not be supported without more evidence.

The challenge with Hawk-Eye is 1) it is the tool of a police state and 2) the data that would truly show concerning behavior would require a search warrant. For example, police cannot simply monitor bank accounts. Furthermore, law enforcement cannot use technology such as infrared thermal imaging devices on private residences without obtaining a search warrant. There are limits on what law enforcement can use on the pubic, so Hawk-Eye at best would be limited to what is in “plain view.” Even then, the prediction on behavior would need to be validated by more than one data point for analysis.

Will police one day find ways to analyze publicly visible data? Without a doubt. Society must decide what is acceptable, such as whether law enforcement can use drones without search warrants and similar issues created by technology.

Can President Ellis Create the ATCU by Executive Order?

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The fictional President Matthew Ellis on Agents of SHIELD (plus Iron Man 3 and his voice on Captain American the Winter Soldier) issued an Executive Order creating the Advanced Threat Containment Unit (ATCU). The Government responding to an alien threat, that is both fatal to human beings and mutating others with alien DNA, is the very purpose of government to protect its citizens.

There is one very big problem: 1) President Ellis should be dead politically; and 2) Ellis can issue Executive Orders, but Congress has to fund the project.

A Politically Damaged President

No one thinks of courage when they hear the names James Buchanan or Herbert Hoover. Buchanan was asleep at the helm as the fires of Civil War started to burn and Hoover mishandled the response to the Great Depression.

President Ellis would be considered far worse. On his watch, President Ellis was 1) Kidnapped; 2) the Vice President attempted a coup d’etat; 3) SHIELD was compromised by HYDRA in what could have been mass murder of millions; and 4) an Eastern European city was dropped out of the sky by a killer robot made by American scientists, one of whom had been one of the largest weapons manufacturers since World War 2.

Those are political hits that no President could survive. The Ellis Administration would look rotten from his treasonous Vice President and SHIELD being overrun by Neo-Nazis who sought to commit genocide with American-made flying aircraft carriers. Ellis would be mocked domestically as clueless and demonized internationally for threats created by Americans. It is highly unlikely Ellis could run for re-election. It would be politically wise to let his political party nominate another in hopes of retaining the White House.

Lawful Executive Orders

Presidents have issued Executive Orders since the founding of the Republic. However, issuing Executive Orders is not supposed to be an end run around Congress in creating a government agency.

An “Executive Order” is issued based upon Constitutional or statutory authority. Executive Orders are given the same force and effect of law. As Courts have explained:

The use of executive orders may be employed by the President in carrying out his constitutional obligation to see that the laws are faithfully executed and to delegate certain of his duties to other executive branch officials, but an executive order cannot impose legal requirements on the executive branch that are inconsistent with the express will of Congress.

Utah Ass’n of Counties v. Bush (D.Utah 2004) 316 F.Supp.2d 1172, 1184.

Could the President create a new agency to fight aliens?

President Ellis could argue that the ATCU Executive Order was based on the President’s authority under Article 2, Section 2 of the Constitution and likely a combination of Defense Authorization bills for the military and NASA. However, the smarter course of action would be to seek Congressional approval and funding of the agency specifically tasked with planetary defense from aliens and advanced threats. While it is shooting for the Moon, Ellis could be trying to look decisive in the face of alien genocide from the ocean being contaminated by a eugenic weapon. This plan might be the only chance for re-election.

It is not clear what legal authority the ATCU is claiming to arrest Inhumans. While people running around destroying property would justify arresting them, things could get Constitutionally ugly is President Ellis ordered the internment of citizens based on race. If the Government was willing to go that far, what other Constitutionally questionable laws could we see before Captain America Civil War? 

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Let’s just say it is not a good list legally.

General Pardons for SHIELD Agents?

Director Coulson’s illegal SHIELD organization and ATCU appear to have similar goals. They are facing the same threats. The big difference is how Inhumans are being treated by the ATCU, however, there is a good argument both are falsely imprisoning US Citizens. That being said, both view Lash as the common enemy who is killing people.

It is highly plausible that this commonality of interests for national defense could result in general pardons for the rogue SHIELD Agents. This would also be a great way to make SHIELD legitimate once again, so we are not cheering for characters who should be charged with 1) Terrorism (18 USCS § 2331(5)); 2) Treason (18 USCS § 2381); 3) Rebellion (18 USCS § 2383); 4) Enlistment to Serve Against the United States (18 USCS § 2390); 5) Obstruction of Justice (18 USCS § 2390); and 6) RICO (18 USCS § 1962). The US Government did not fall in Winter Soldier, so it is time the good guys stop being a rogue organization.