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The Good Fight: The Rebel Alliance & The Law of War

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Back in the days when Star Wars was just the original trilogy and the beloved Holiday Special (that’s the correct usage for “beloved,” right?), things were fairly black and white for the Rebellion. Their struggle against the Galactic Empire was daunting, but the Alliance was portrayed as a scrappy but unified group that shared a common goal.

Fast-forward to Rogue One and Star Wars Rebels and suddenly the Rebels’ fight is not so simple anymore. Instead of a cohesive group of do-gooders, these new stories portray the Rebel Alliance in a more realistic fashion. We see the Rebellion as a troubled group dogged just as much by internal fractures as they are by Imperial forces.

Star Wars dialogue about the law of war? Be still my beating heart.

A big part of their internal struggle is deciding how exactly they should fight the Empire. The recent Star Wars Rebels episode “In the Name of the Rebellion” dove into the Rebellion’s debate about how to wage war. In it, Saw Gerrera confronts Mon Mothma over her unwillingness to take more extreme measures in the fight against the Empire. Mon Mothma fires back, accusing Saw of breaking the rules of engagement and killing civilians and prisoners.

In her fiery retort, Mon Mothma touches on some very real concerns that are at the heart of the law of war. Long ago, the Latin maxim “Silent enim leges inter arma” (or, “In times of war, the law falls silent”) spoke to the lawless chaos of war. While Saw Gerrera probably has that slogan tattooed on him somewhere, the belief that war was inherently lawless was discarded long ago. Laws, customs, and treaties developed over the course of millennia to help reign in war’s lawless carnage. Those rules collectively became known as the law of war.

The concept of trying to apply rules to something as destructive and frenzied as war might seem silly. However, the law of war serves to bring some semblance of humanity to warfare by protecting fundamental human rights and guarding against unnecessary suffering.

Perhaps the Ewoks need a bit of…mentorship in the fine art of not being carnivorous war criminals.

How the Rebel Alliances chooses to wage its war against the Empire is therefore a critically important decision—one that Mon Mothma gets right. Saw Gerrera sees the Empire as a brutal, unyielding foe who must be met with an equally brutal resolve. Imperial forces certainly have little concern for the law of war—to Saw Gerrera, that’s reason enough to show no restraint or mercy. He openly mocks Mon Mothma because he believes that the Rebellion is doomed to failure as long as it tries to fight honorably against such a dastardly opponent.

But Saw is blinded by his unbridled thirst for vengeance. His endgame is not a fight for the fate of the galaxy, but a bloodletting designed to make the Empire pay. His tactics of killing civilians and prisoners severely undermine the larger Rebel effort. In Rebel Rising, Saw’s forces assassinate an Imperial governor and intentionally massacre countless civilians in the process. Saw’s objective was to send a message to Emperor Palpatine about what the Empire was up against. In reality, the mass murder achieved virtually nothing and instead fueled Imperial efforts to portray the rebels as frightening terrorists.

The Galactic Empire would like to extend its warm appreciation to Saw Gerrera, whose generous battlefield foolishness helped make this propaganda campaign possible.

On real world battlefields, violating the law of war is often a similarly powerful motivator for enemy forces. Late in World War II, Hitler ordered his commanders at the Battle of the Bulge to be especially brutal during the battle to frighten Allied forces. In response to Hitler’s orders, Nazi forces in Malmedy, Belgium infamously executed 84 American prisoners of war during the battle. However, word of the “Malmedy Massacre” quickly spread through Allied ranks, sparking outrage that fueled American forces to break the back of the German offensive.

Mon Mothma’s choice to have the Rebels fight according to the law of war is a reflection of the Alliance’s ultimate goal of restoring the galaxy. She recognizes that the Rebellion has no chance at victory if it does not win over the hearts and minds of galactic citizens. The Empire’s willingness to violate the law of war is no excuse for the Rebellion to do the same. Stooping to the Empire’s level and trading in atrocities would all but forfeit the moral high ground and give citizens little reason to rally to their cause—a result that would doom their movement as much as any devastating loss in battle.

Saw’s tirade against Mon Mothma wrongly paints the law of war and rules of engagement as needless restrictions that handcuff Rebel forces. What he fails to see is that sticking to those rules can actually be a “combat multiplier,” or in other words, something that dramatically enhances effectiveness and helps accomplish the mission.

During the Gulf War, Allied forces used leaflets like the one below to tempt Iraqi forces to surrender by highlighting the protections and humane treatment they would receive. The leaflets showcased U.S. respect for the law of war and were a huge success on the battlefield, motivating large numbers of Iraqis to peacefully surrender.

Leaflet dropped during the Gulf War. The text on the backside read: The U.S. abides by the rules of the Geneva Convention. Ceasing fire will provide you humane treatment, food and water, medical treatment, shelter, and return to your homes after hostilities.

Lord Vader wasn’t the type to throw down his lightsaber just because Rebels played by the rules. Nonetheless, the Alliance’s respect for the law of war led to similar tactical successes. Although the Battle of Endor far from ended the war, countless Imperials surrendered to Rebel forces, including two super star destroyers. Similarly, the Galactic Concordance flexed the rule of law and law of war to help usher the final surrender of remaining Imperial forces, ending the Galactic Civil War. Those successes would have never occurred if Mon Mothma had cast aside the Alliance’s core values and let the law fall silent during war.

Rather than attend a class on the law of war, Saw Gerrera chooses obliteration by Death Star.

Star Wars: The Legality of Vader’s Boarding Parties

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It’s May the 4th, which means that all Star Wars fans are morally bound to immerse themselves in the galaxy far, far away for an entire 24 hours. The Legal Geeks is no exception, so let’s turn our attention to the ultimate symbol of power and general bad-assery in the universe: Darth Vader. As the perennial winner of the “Best Star Wars Character with a Breathing Problem” category (sorry, General Grievous), Lord Vader is a shining example of the Galactic Empire’s might and menace. However, despite his general awesomeness, he is not quite the best example of how to do pretty much anything legally.

Vader has no time for silly concepts like proper interrogation techniques or the due process of law.

One might argue Vader’s effectiveness is fueled by his penchant for taking action. He doesn’t take time to discuss things as a committee; he simply fires up his lightsaber and goes to work. Vader possessed that trait long before he donned the iconic armor—after all, Yoda could count on one of his three-fingered hands the number of times Anakin mindfully planned something out with an eye towards possible consequences.

One of his boldest gambles was chasing down and boarding Princess Leia’s ship at the beginning of A New Hope. Vader’s pursuit, capture, and boarding of the ship are undoubtedly some of the most iconic scenes in all of film. While Vader’s tactics were certainly decisive, were they legal?

You may not have realized it at the time, but some of the first lines in A New Hope allude to some very real legal issues that Vader created by capturing and boarding Leia’s ship, the Tantive IV.

Princess Leia and Captain Antilles (may his crumpled body rest in peace) are not just delivering catchy lines in those opening scenes. Their comments to Vader touch upon some very real laws. Unfortunately, even though there are actual laws governing outer space, those laws have not quite advanced to the point of dealing with conflict between manned space ships. Fortunately for us, there is an entire collection of international and domestic laws that govern civilian and military naval operations. That body of law provides an excellent framework for judging Vader.

When confronted by Vader, both Captain Antilles and Leia immediately tout the ship’s diplomatic status. Prior to A New Hope, Princess Leia took very careful steps to protect the Tantive IV’s status as a diplomatic vessel. The ship itself belonged to the House of Organa on Alderaan, making it a vessel of state. Its hull was marked with distinctive scarlet stripes, which were the standard galactic marker for diplomatic ships. Leia routinely used the ship to ferry her on diplomatic missions related to her service in the Imperial Senate.

You can’t see it, but the Tantive IV sports a bumper sticker that says “DEFINITELY NO REBEL TRAITORS IN HERE.”

There is a very good legal reason behind all of those actions. As a matter of customary international law, all vessels that are owned or operated by a state and used only for government service are entitled to sovereign immunity. As an official governmental vessel of Alderaan, a sovereign planet, the Tantive IV would enjoy sovereign immunity so long as it was used for government service. This is why Leia was especially cautious when using the Tantive IV for missions related to the Rebellion—because doing so would risk the ship’s immunity.

That immunity was of critical importance because of the protections that come along with it. Under international law, any vessel that has sovereign immunity cannot be arrested or searched, whether sailing in national or international waters. Additionally, that privilege protects the identity of personnel, stores, weapons, or other property on board the vessel. Given those substantial legal protections, you don’t have to be Yoda to understand how important it was for Leia to maintain her ship’s immunity. She was free to operate the ship without fear that Imperials would stop and board. Similarly, she could transport important personnel, weapons, and other material (*cough cough* Death Star plans) under the same umbrella of protection—so long as secrecy was maintained.

In the real world, both the U.S. Navy and Coast Guard adhere to the law surrounding sovereign immunity. The protection is taken very seriously and any decision to stop and board foreign vessels is made with the utmost care. Under normal circumstances, Darth Vader would have violated a serious tenet of international law if he had stopped and boarded Leia’s ship on a whim.

Obscure International Law 101: Any ship deemed to be “flying casual” is also immune from search and seizure.

Darth Vader made it clear that he seized the vessel because he believed it had received the Death Star plans from Rebel agents. Fans were left to wonder what sort of intelligence Vader was acting on when he chased down the Tantive IV—after all, Leia’s incredulous reaction certainly made it seem as if he had gone out on a limb.

Rogue One filled in that story gap and we now know that Vader personally witnessed the Tantive IV and its crew escape with the plans to the Empire’s prized battle station. This new chapter in the saga greatly weakens Leia’s legal position. Sovereign immunity is not an absolute right. State vessels risk losing those protections if they violate the law, which means they can then be stopped, boarded, and searched.

The act of intercepting a vessel at sea is known as a “maritime interception operation.” Maritime interception operations can include stopping, boarding, searching, and even seizing cargo from a vessel. There are a number of legal bases to conduct interception operations, including a state’s need to protect its forces and antiterrorism operations.

States can legally conduct maritime interception operations pursuant to international law in self-defense to protect its forces. Naval commanders have an inherent right and an obligation to defend their units and other nearby friendly forces from hostile acts or hostile intent. That means that a commander may stop and board another vessel if necessary in self-defense.

During the Battle of Scarif at the end of Rogue One, Rebel forces openly attacked a major Imperial facility and made off with critical classified intelligence. Darth Vader’s Star Destroyer exited hyperspace to a chaotic scene in which Alliance warships were still in open combat. Under the circumstances, Vader had ample reason to exercise the inherent right to self-defense and attack the Rebel fleet.

The Rebel flagship, The Profundity, presented the biggest threat, which meant that Vader could legally disable and seize the vessel. Even though his Star Destroyer made short work of disabling The Profundity, the Rebel flagship still housed enemy personnel and weapons, which presented a threat to Imperial forces. The theft of the Death Star plans also presented a threat to Imperial forces that arguably triggered the need to act in self-defense. The plans were critical classified information that, if exploited, could endanger the lives of millions of Imperials aboard the battle station. Given the Rebels’ evasive abilities, it was imperative that the plans be recovered as quickly as possible. Vader thus had sound legal footing to disable and board the Rebel flagship.

 

 

Vader prepares to defend himself against vicious and threatening Rebel terrorists.

In spite of Leia’s outrage at the start of A New Hope, Darth Vader was also on solid legal footing when he captured and boarded her ship. Even though Leia and her crew did not actively participate in combat above Scarif, their actions still forfeited the ship’s sovereign immunity.

Vessels can be legally intercepted if they take part in acts of terrorism. The 1988 United Nations Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) established a legal framework governing acts of violence against ships. The SUA convention happened in response to the 1986 hijacking of an Italian cruise ship, the Achille Lauro, in which an American tourist was killed. In 2005, major amendments were made to the SUA treaty in order to combat terrorism. Under SUA, a ship can be stopped, seized, and boarded if it has committed or taken part in terrorist acts, even if there is no need to do so in self-defense.

The Empire generally regarded the Rebel Alliance as a terrorist organization, which means the attack at Scarif would have been characterized as a major terrorist act. Darth Vader had absolute proof that Leia’s ship was involved in the attack, as he witnessed Leia’s ship receive the Death Star plans before narrowly escaping. After Vader caught up to the Tantive IV above Tatooine, there was no real need to stop the ship in self-defense. After all, Leia’s diminutive corvette posed little threat to Vader’s colossal Star Destroyer. However, Vader was legally justified to stop and board the Tantive IV because of its participation in a terrorist act.

 

Don’t you go lying to your father like that, General Organa. You’ll find yourself grounded aboard the Death Star.

The fact that Leia’s ship was branded as a Rebel vessel is also problematic for her. When Leia incredulously accuses Vader of boarding a diplomatic ship, he declares that she is part of the Rebel Alliance. This hints at a critical aspect of the law. Under international law, vessels that are not legitimately registered in any one nation are known as “stateless vessels.” They are not entitled to sovereign immunity and may be boarded by warships or other governmental vessels. Once Leia’s ship was declared part of a stateless terrorist organization, it lost its diplomatic protections. That is why it was so important for Leia to mask the ship’s participation in Rebel operations.

Even though we normally associate Vader with some of the worst war crimes in Star Wars, he actually managed to do things by the book when he stopped and boarded Leia’s ship. Just be sure not to tell him that unless you want to join Admiral Ozzel and Captain Needa in the throat hug club.

 

The Rebel Bunch: The Legal Status of Rebel Fighters in Rogue One

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Warning: Rogue One spoilers ahead.

“You’re all rebels, aren’t you?”

With all the moving pieces in Rogue One, don’t feel bad if you came away a little confused about how exactly the Rebel Alliance is composed. After all, even Jyn Erso had trouble making sense of it when she first arrived at the Rebel base. In the original trilogy films the good guys were really easy to tell apart from the bad ones—partly because of the Empire’s affinity for white, black, and various tones of grey. Rogue One muddied those waters.

Someone please tell Anakin to shove it.

In the original trilogy, the Rebellion was portrayed as a singular entity: a rag tag force that ducked, bobbed, and weaved around the galaxy. Rogue One changed that by showing us a fragile Rebel Alliance beset by divisiveness and extremist factions.

In this way Rogue One mirrors the real world, as conflicts have rarely been limited to two factions duking it out on the battlefield. The US experienced this in its own history, with irregular forces playing a role in almost every conflict from the American Revolution to operations in Afghanistan. Militias, extremists, and other irregular military forces often present complications that extend far past any single battle. Most recently, the “War on Terror” and Syrian Civil War have brought these complications into sharp focus as nations grapple with how to deal with different types of fighters.

Rogue One presents many of those same issues. While the larger Rebel Alliance struggles to throw off the Empire’s yoke, splinter elements like Saw Gerrera’s ruthless militia frustrate their efforts. The interplay between the Alliance and Saw’s forces poses an interesting question: What sort of legal status do the fighters in Rogue One have?

Darth Vader demonstrates his own method of determining one’s combatant status.

Fortunately, we don’t need K-2SO’s skills in strategic analysis to answer this one. Under the law of war, those who take direct part in fighting are considered combatants. But not all combatants are created equal under the law of war. “Privileged” (or “lawful”) combatants are those who meet certain traditional criteria established, in part, by The Hague and Geneva Conventions. Those requirements include (1) wearing a fixed distinctive sign or uniform; (2) operating under a military command; (3) carrying arms openly; and (4) abiding by the laws of war. Someone who fights but does not meet one or more of those requirements is considered an “unprivileged” (or “unlawful”) combatant. There is a big distinction between the two, as “privileged” combatants are entitled to prisoner of war (POW) status if captured and bear no criminal responsibility for acts within the bounds of the law of war.

Luckily for the Rebels, they fit the criteria for privileged combatants. First, while they may lack the polished white armor of Imperial stormtroopers (or the supremely badass Death Troopers’ black kits), the Rebels wear their own brand of uniform. We see a mix of these throughout Star Wars, from the iconic blaze orange flight suits of Red and Gold squadrons to the dapper button down and vest-wearing fleet troopers. Many Rebel pilots’ helmets are also emblazoned with the Rebellion’s iconic starbird symbol.

The latest in Rebel pilot and fleet trooper fashion.

The Rebel Special Forces (SpecForces) Soldiers who volunteered for the Scarif infiltration may not have REBELLION stitched on their backs, but they were still equipped in uniforms. Much like their brethren on Han Solo’s Endor strike team, their uniforms were meant to be utilitarian. Their shirts, vests, cargo pants, and combat boots are roughly similar to each other. The Continental Army faced similar circumstances during the American Revolution. American troops generally wore similar uniforms, but not every soldier had access to the same supplies, which sometimes resulted in ragtag-looking battle formations. As a whole, the Alliance’s uniforms are distinctive, which serves an important underlying purpose: It helps distinguish them from civilians on the battlefield.

Saw Gerrera’s militia force on Jedha provides a stark contrast. His forces forgo any type of uniform. This is best exemplified in the scene where Saw’s forces ambush an Imperial tank in the middle of Jedha City. His forces dress in clothing similar to Jedha civilians, wearing no type of uniform or distinctive insignia. Doing this surprises the Imperial troops when they hit the tank. After the ambush they again take advantage of their civilian appearance to melt back into the civilian population as Imperial reinforcements arrive.

Second, Alliance fighters operate under a military command. The Rebels in Rogue One have a clearly established chain of command, from lower enlisted troops like Corporal Bistan (everyone’s favorite space monkey door gunner on the U-Wing) all the way up to officers like crotchety General Draven and loveable Admiral Raddus. While one can certainly question the Alliance’s military decision-making (ahem, Admiral Raddus—we all saw you cowboy off to Scarif), there is no question that their forces are organized in roughly a traditional command structure. Those in authority maintain control over their forces and bear responsibility for their actions.

On the other hand, Saw’s forces are merely a loosely cobbled collection of denizens aligned around a similar goal. Saw is undoubtedly the leader of the group, but his position bears little resemblance to the type of military command contemplated by the law of war. To Saw Gerrera, this presents an advantage—the lack of rigid military command, control, and accountability gives his forces moral and tactical flexibility to more quickly achieve their objectives.

Besmirching Saw like that will get you sent straight to the bor gullet for a slimy tentacle hug.

Third, Alliance troops carry their arms openly. The requirement that privileged combatants carry arms openly helps distinguish them from civilians, just as with the uniform requirement. In Rogue One, the Rebel SpecForces on Scarif openly carried blasters as they maneuvered, fired, and displaced. The same went for the unfortunate Rebel troopers who rushed to download the Death Star plans before getting cut to ribbons by Darth Vader in quite possibly the most amazing Star Wars scene ever.

In comparison, Saw’s band of fighters only did so when it suited them. While some of his men are seen openly armed during the prisoner exchange with Bodhi, those involved in the Jedha City ambush conceal their arms until the last second. This quickly causes chaos, as the Imperials have trouble telling combatants apart from civilians in the fray. This confusion unnecessarily put civilians in harm’s way.

The Tin Man wanted a heart…poor K-2SO just wanted a shiny new Blastech blaster pistol.

Finally, although some of their actions were questionable, the Alliance abides by the law of war throughout Rogue One. For instance, they do not kill indiscriminately or target civilians. The Rebels contain their strikes to legitimate military targets, using force only when necessary. Conversely, Saw Gerrera’s forces appear to be at peace with violating the law of war if it helped achieve their objectives. The Jedha City ambush is a prime example, as many of Saw’s men disguise themselves as civilians before firing on stormtroopers. Under the Geneva Conventions Additional Protocol I, feigning protected civilian status to kill enemy combatants is considered perfidy, a treacherous act and breach of the law of war. Similarly, Saw’s use of the tentacled bor gullet creature to interrogate Bodhi Rook arguably constituted torture, which would violate tenets of international law such as the 1984 Convention Against Torture.

Ah, the face of an unprivileged combatant that only a mother could love.

Unlike Rebel Alliance soldiers, Gerrera’s band bears a striking resemblance to groups like the World War II French resistance groups Franc-Tireur and Francs-Tireurs et Partisans. These groups operated in small cells, wore no uniforms, and aimed to disrupt German occupation of France at all costs, much like Saw’s forces sought to do on Jedha. In the post-World War II Nuremberg Trials, many of the partisan fighters aligned with those groups were found to be unprivileged combatants. Saw’s forces would likely be treated the same given their composition.

In contrast, Rebel Alliance soldiers are classified as privileged combatants. This distinction is critically important to the Alliance because of the protections privileged combatants enjoy under the law. First and foremost, any captured Alliance soldiers would be entitled to POW status and granted the protections outlined in the Third Geneva Convention. Without this sort of protection captured Alliance forces would face a grim fate upon capture, including inhumane treatment, neglect, and summary execution. Although POW status would not magically prevent the Empire from committing abuses, it is nonetheless a vital right of lawful combatants.

Additionally, as lawful combatants, Alliance forces would bear no criminal responsibility for killing enemy personnel or destroying enemy property, provided the acts were done within the bounds of the law of war. Given the Alliance operations we see in Rogue One, this protection is critical. For example, Alliance pilots could not be held responsible for killing Imperial forces during their bombing run on Eadu. Similarly, had Scarif not been swatted by the Death Star, the Rebel SpecForces would be immune for their destructive efforts on the planet.

In the end, the Alliance’s concern for distinguishing itself from Saw’s band of fanatics goes far beyond the need for legal protections. Much like American forces during the Revolution, the Alliance’s struggle for legitimacy was just as important as any of their combat operations. Splinter factions like Saw Gerrera’s severely undermine the larger cause, as their extreme tactics helped the Empire’s effort in casting the Rebellion as a collection of terrorists and insurrectionists who deserve no quarter. It is therefore essential that the Alliance distance itself from those kinds of splinter groups by conducting its combat operations appropriately—even if the bad guys are led by a psychopathic Sith lord and his youngling-murdering half robot apprentice.

Can Ant-Man Commit a Heist to Stop International Terrorism?

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Ant-Man is a very fun Marvel movie. The atomic structure of the film has a perplexing nucleus: Can a super-hero commit a criminal conspiracy for burglary and the willful destruction of property in order to stop international terrorism (specifically HYDRA)? Why not just let the FBI handle enforcement for a change?

Hank Pym’s goal throughout the story is for his Pym Particles to not be turned into a weapon of war by by anyone from SHIELD to Howard Stark to Darren Cross. Pym served as a SHIELD Agent for decades and quit after learning SHIELD was trying to replicate his Pym Particles in 1989. This shrinking technology was unquestionably Pym’s personal intellectual property. Pym had successful kept the technology secret for 26 years until Darren Cross had weaponized the technology into the Yellowjacket suit.

Enter Scott Lang, recruited by Pym to steal the Yellowjacket suit from Pym Technologies. Would Hank Pym, Scott Lang, Hope Van Dyne, and the rest of the Ant-Gang have a valid necessity defense for their theft from Pym Industries and resulting property damage?

It is no small legal matter. A fictional version of me in the Marvel Cinematic Universe would take the case and argue as follows for the Defendants:

California law (since the film is based in San Francisco) defines the necessity defense as follows for the use of force:

Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.

Cal Civ Code § 50.

Ant-Man_Necessity_3762

California case law requires the following elements to be met for a defendant to have the defense of necessity for violating the law:

(1) [Law was broken] to prevent a significant and imminent evil;

(2) With no reasonable legal alternative;

(3) Without creating a greater danger than the one avoided;

(4) With a good faith belief that the criminal act was necessary to prevent the greater harm;

(5) With such belief being objectively reasonable; and

(6) Under circumstances in which she did not substantially contribute to the emergency.

People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 [64 Cal.Rptr.2d 654].

Hank Pym’s primary goal was to keep his technology from being turned into a Weapon of Mass Destruction that would horrifically alter warfare. Dr. Pym actions were consistent with ensuring Restricted Data under the Atomic Energy Act of 1946 would not fall into the hands of a foreign power. Darren Cross openly stated his intention to sell the Yellowjacket technology. As such, there was a threat that could have caused significant harm. However, there is a strong argument the threat was not imminent.

A lawyer could argue that the threat of selling the Pym technology was imminent because the technology itself was secret. The Cold War missions of the “Ant-Man” were classified from the days when SHIELD actually did good, such as stopping a nuclear attack on the United States. With the fall of SHIELD after The Winter Soldier, and known HYDRA operatives after the technology, there was no way to engage the FBI or other Federal law enforcement agency to comply with the warrant requirements of the Fourth Amendment.

Darren Cross committed multiple acts of murder, cruelty to animals with his experiments on lambs, and had contracted to sell the Yellowjacket technology to HYDRA. Cross knowingly provided material support to a foreign terrorist organization under 18 USCS § 2339A and 18 USCS § 2339B. These crimes are punished by imprisonment for 20 years or life if the terrorist support had caused the loss of life.

Yellowjacket_HYDRA_Sales_AntMan

Pym’s legal team could argue that the unlawful entry into Pym Technologies was to prevent the significant and imminent evil of selling advanced weapons to HYDRA; that there was no reasonable legal alternative given the classified nature of the information and unavailability of law enforcement; the act of breaking into Pym Technologies and destroying the building did not create a greater harm then arming a genocidal Neo-Nazi terrorist organization; Pym had an objective good faith belief that breaking into Pym Technologies would prevent greater harm then the Yellowjacket weapons system being sold to terrorists; and the planned heist did not substantially did not contribute to the emergency.

The last element would need to be shrunk down in argument, because the Ant-team did blow up, and then miniaturize, Pym Technologies.

Focus: Release the Leviathan

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Dr. Ivchenko and Dottie Underwood either are terrorists or committed an act of war in the penultimate episode of Agent Carter. The title of the episode “Snafu” highlights that things did not go well for our heroes, but wow, what a great episode. Definitely not a “snafu.”

At least Chief Dooley went out with a bang.

LetsDoItForDooley Leviathan is Coming

Here are the key distilled facts for our legal analysis: Dr. Ivchenko and Dottie Underwood steal Howard Stark’s Item #17 from the SSR Lab, which had already been stolen once presumably by Dottie, then recaptured by Agent Carter, and then taken into custody by the SSR after Jarvis’ “anonymous” tip.

Item 17 was a poison gas that caused people to become enraged and go on a murder rampage. Underwood placed a weaponized version of the gas in a baby carriage and left it in a movie theater. Ivchenko barred the one exit to the theater, leaving the movie goers to butcher each other with their bare hands.

If Leviathan was part of the Soviet Union’s espionage service, their movie theater attack by itself would be an act of war. If Leviathan was a stand-alone organization like HYDRA, then the movie theater attack is an act of terrorism.

When Leviathan Rises Up, the Mighty are Terrified; They Retreat before his Thrashing

Job 41:25

In 1946, we did not use the term “Weapon of Mass Destruction.” At that time, the United States was the only country with atomic weapons. The Soviet Union would not test their first nuclear weapon until 1949. However, by today’s definition, a “Weapon of Mass Destruction” is any weapon that is is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors.” 18 USCS § 2332a(2)(B), emphasis added. WMD’s are also defined as “any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident.” 50 USCS § 1801(p)(1), emphasis added.

The “Gas 17” was intended to cause serious bodily injury that resulted in a mass casualty event. There is no question the gas would be classified as a WMD by today’s laws.

The world of 1946 had a different view of terror. That world had its examples of “poison gas” from both World War Wars. The Geneva Protocol of 1925 was the first to ban the use of gas and bacteriological weapons in war (and ratified by the United States in 1974). 1925 U.S.T. LEXIS 4, 1.

Just because terrorism is different in the 21st Century, does not mean people did not fear terrorism in the first half of the 20th Century. A Defendant was convicted in California in 1920 for “criminal syndicalism and sabotage,” which included disseminating a pamphlet entitled, “Poison Gas and Violence,” plus many other Communist propaganda articles, calling for the violent overthrow of the government with instructions. People v. Malley (1920) 49 Cal.App. 597, 600-6001, 609.

Cases with “poison gas” in the criminal context are limited, but there is an interesting case from 1927. Two criminals in Georgia added a “smoke screen” device to their getaway car. They used this device while a police officer was in pursuit of them. The police officer was poisoned by the carbon monoxide the smoke device emitted and was killed during the pursuit in a crash. Andrews v. State (1927) 37 Ga.App. 95, 96-97 [138 S.E. 923, 923-924].

The Court found that the Defendants were unaware of how much carbon monoxide would be emitted by the smoke-screen device, thus did not have the knowledge that their actions would have been fatal to the police officer, thus they did not have the required “intent to kill” for a murder conviction. Id.

That is not the case for Dr. Ivchenko and Dottie Underwood. The Battle of Finow must have been a field test of the gas. As such, both knew the result would be the victims killing each other.

If Leviathan was operated by the Soviet Union and Stalin issued orders to conduct an attack on the United States, that would be “armed conflict between two or more nations” under 18 U.S. Code § 2331(B). The Soviet Agents had captured weapons of mass destruction, conducted operations to kill Federal Agents, and used said WMD’s on the US population.

A fictional Hawkish President Harry Truman would be within his right to ask the Democratic Congress for a declaration of war in response to these attacks. The US military was at peak strength and the only country with atomic weapons. The Soviet’s mainline of defense was still winter and a disregard for human life. If there was to be a war, this would have been the right time from a strategic view.

It would also have been a bad idea after one already long and bloody war. No question it would end badly for both sides. Just ask President Woodrow Wilson how his invasion of Russian did with the Polar Bear Expedition.

WeInvadedRussia

The alternative approach would be to give the SSR the mission to seek out and destroy Leviathan. It would be a war between militarized intelligence agencies, but Leviathan had conducted a chemical attack on New York City, which could not go unanswered.

There is the chance that Leviathan is a rogue Soviet Agency. The fact there had been an attack on the Soviets during World War II is evidence that someone killed Russians with either the same or similar gas. Leviathan is a possible suspect of the attack. However, history does remember Stalin murdering his own people.

If Leviathan was indeed a rogue Soviet espionage agency, mandating the SSR combat Leviathan would be a sound policy decision. Forming SHIELD with the mission to defend the United States from Leviathan is also a logical result.

HYDRA Tries To Kill a Mockingbird

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As the Cutting Crew once sang, “All for the mockingbird, they broke one by one.” Let’s hope that we see Bobbi Morse continue to break HYDRA operatives in season two of Agents of SHIELD.

HYDRA_9747Bobbi Morse and Jenna Simmons undercover work in HYDRA appeared to be well within the rules for being undercover.

As discussed before in Hailing HYDRA, undercover law enforcement  officers are not supposed to “assume a position as one who leads, directs, manages, or officiates over the direction or goals of an organization” or “cause dissension within an organization or incite unlawful activity by any individual or organization. . . .” Rubin v. City of L.A., 190 Cal. App. 3d 560, 569 (Cal. App. 2d Dist. 1987), citing “Standards and Procedures for the Anti-Terrorist Division.”

Simmons conducted the research on HYDRA’s plans and reported the information to her superiors to stop any unlawful activity. More importantly, Simmons did not appear to ever make a weapon or willfully take the life of an innocent. Correspondingly, Morse positioned herself to take Simmons’ hard drive prior to their escape, depriving HYDRA of any information that Agent Simmons learned during her undercover work.

Now, did anyone else see the humor in Adrianne Palicki’s Mockingbird escaping in an invisible jet?

Uncorking Chilled Terrorism

Tessa_Lab_1039HYDRA added a new level of terrorism in the opening minutes of A Hen in the Wolf House: the targeting of Naval officers from an Anti-HYDRA unit at a wedding with poisoned champagne based on the 084 Obelisk.

Right out of the gate, we see a conspiracy to murder members of the armed forces and civilians with a new bio-weapon of mass destruction. As we further learned in the episode, HYDRA has goals to make the weapon more effective to kill billions.

The “HYDRA Dress White Wedding” was terrorism because of the use of weapons of mass destruction under 18 USCS § 2332a. HYDRA used the alien technology in a conspiracy to kill US citizens, in the United States, that required the use of interstate commerce (in this case, transit of roads and other means to move the weapons potentially across state lines). The chemical itself would be considered a WMD, because chemicals such as anthrax are considered a WMD. Provided that death was almost instant for many, Court could could easily find the weaponized champagne was in fact a “weapon of mass destruction.” Additional charges could be brought for targeting members of the US military and their families.

The fact a new head of HYDRA is planning an extinction level event, we should expect many of the upcoming actions by Director Coulson and his team to be justified by the necessity defense.