We live in an age of miracles: 2014 was a fantastic time to be a geek. Jess and I sat down with some of our great friends to discuss Scandal, the Marvel Cinematic Universe, the best action scenes from 2014, and Star Wars Rebels.
Join us as we visit with Vivian O’Barski from The Learned Fangirl, Political Consultant and Novelist Gerry O’Brien, Jessica Bennett, stunt woman, actor, and educator, and Judge Judge Matthew Sciarrino, on all things geek in 2014.
We love comic books. So, sit back, relax, and enjoy a rip-roaring discussion on comic book care, women in comics, and super-hero lawyers.
How was She-Hulk’s defense of Captain America? Moreover, why does Jess love Wonder Woman? And Just who is the new Thor? Check out my theory on Agents of SHIELD and Captain Mar-Vell in our new video and audio podcast.
Agents of SHIELD Season 2 has Phil Coulson where he should be: Director of SHIELD.
Just one GIANT-MAN sized problem: Nick Fury likely did not have any legal right to make such a promotion. No amount of Pym-particles could shirk the fact SHIELD had been disbanded, with its members either wanted for questioning or subject to arrest warrants for treason. Never mind the fact the world also thinks Fury is dead.
While the exact organizational structure has not been stated, SHIELD operated as a branch of the US military (as evident from the questioning by the Joint Chiefs at Congress at the end of Winter Soldier), with also an international oversight committee empowered to make policy. SHIELD was headed by Secretary Alexander Pierce (who likely was confirmed by the US Senate), run by Nick Fury as Director (also likely confirmed by the Senate), and headquartered in Washington, DC. In the wreckage of Winter Soldier, SHIELD was disbanded and political fallout for the fictional US President was overheard on talk radio in Agents of SHIELD.
Did Nick Fury have any legal right to appoint Coulson as Director? It is extremely difficult to envision any statutory authority to do so. However, Fury arguably had apparent authority from a Realpolitik point of view: Fury had all the secrets to rebuild the organization. As such, giving those secrets to Coulson effectively is only enabling vigilantism that borders on treason, albeit justified by the necessity defense.
There is a small amount of evidence that Coulson’s appointment is operating under limited government approval: at the end of Season 1, the former SHIELD agents were not arrested with the HYDRA agents, surgically altered soldiers, and Cybertek employees. Either the arresting agencies decided to ignore Coulson’s team or give him tacit approval by not prosecuting them for attacking General Glenn Talbot and other US soldiers in Canada. The US Government still needs SHIELD to combat threats such as HYDRA, thus might be operating with plausible deniability of Neo-SHIELD’s actions.
We will know for sure as Season 2 unfolds.
Original Sin ends with several big changes in the Marvel Universe:
Thor is no longer worthy to lift his hammer Mjölnir because of a secret Nick Fury whispered to Thor;
The Orb shot Uatu the Watcher in the head and cut out one eye;
Nick Fury fired the final shot that killed Uatu the Watcher;
Uatu the Watcher threatened Fury on purpose to get Fury to fire the fatal shot;
Fury took the Watcher’s remaining eye;
The Winter Soldier took Fury’s place as the “man on the wall”;
The Watchers punished Fury by making him a chained “watcher” on the Moon, unable to take any action.
Here is my take on Nick Fury: Everything he did was right. Fury saw the world in terms of Realpolitik, which understands that protecting a nation (or in the Marvel Universe, the entire Earth), requires someone who operates in the shadows to eliminate the threats that would destroy freedom. There cannot be any detente with a foreign power, whether it was from another dimension or planet, that sought the Earth’s destruction. Fury’s actions kept interplanetary wars from erupting (and when one did with the Skrulls, Fury was prepared).
The problem with Fury’s actions is that private individuals are not supposed to have their own foreign policies. The Logan Act (notice, not Wolverine Act), prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.
Fury was not sending correspondence with inter-dimensional being, but Gamma bullets to eliminate active threats to planetary security. Fury’s actions would be justified if the United States was declaring it was defending itself, thus ordering strikes on threats, but Fury apparently was writing his own orders on who to kill (unless there is some Kennedy-Era Executive Order giving Fury orders to defend the planet).
Were Nick Fury’s actions justified from a foreign policy perspective? Yes. The logic is difficult to refute, which is why the Winter Soldier took up Fury’s station as the man on the wall. However, this appears to be without any legal authority, even though it is the realistic solution to actual planetary threats operating in the shadows.
As for killing the Watcher, Fury had a solid self-defense argument that the other Watchers ignored: Uatu the Watcher raised his hands charged with energy to threaten Fury. The Watcher’s power easily could have killed Fury. As such, Fury was legally justified to shoot Uatu the Watcher.
However, the Watchers permitting the Orb to escape while Fury was chained to the Moon for the rest of time, forced to watch without interference, appears to be an extremely flawed legal system. Letting the Orb, who committed attempt murder and torture by mutilating Uatu, run free with one of the Watcher’s eyes in his chest is not a proportional punishment. If anything, the Orb now has depth perception and possibly binocular vision, which would be personal enhancements.
Marvel’s Original Sin #6 revealed an elderly Nick Fury had been killing monsters below the surface of the Earth, dangerous creatures between dimensions, and even a living planet. Fury had used Gamma enriched bullets to kill these potential (or actual) “threats.” What we do not know is whether Fury killed the Watcher.
The Secret Warrior’s Secret War
Nick Fury apparently had spent years, if not decades, conducting “black ops” well outside the normal spy craft. Moreover, Fury was operating on space station (called a satellite in the story) that was launched at an unknown date.
Spies carrying out assassinations on national threats is nothing new. Nations have used everything from exploding cigars to poison to snipers for years. Today Drones are used on Presidential “Kill Lists” to eliminate threats to United States.
What is different in Fury’s case is whether he is carrying out his “secret war” on his own or acting under someone’s orders. Ironically, Fury could have been a “secret warrior” since Franklin Roosevelt was President.
If Fury had been acting on Presidential orders dating back even to Roosevelt, or Truman, or Eisenhower, or Kennedy, his actions would be an extension of US foreign policy. If Fury was acting on his own, things get very complicated. While the nations of Earth would have plausible deniability on Fury committing potential acts of war in another plane of reality, an alien government might retaliate against Earth for Fury’s actions if caught.
Unless Fury kept Earth safe by eliminating threats.
How Did Fury’s Satellite Get in Orbit?
Nick Fury’s space station was of unknown design and origin. The big question is how did it get in orbit?
The United States has looked to space exploration since the Eisenhower years. Private space flight is a national goal for low Earth orbit. Congress has stated that “the peaceful uses of outer space continue to be of great value and to offer benefits to all mankind.” 51 USCS § 50901. Granted, using a space station to launch black ops might maintain peace, but by its very nature is not “peaceful.”
Both the United States and the former Soviet Union have deployed military assets in space. The Soviets had a military space station program, plus the traditional “spy satellites.” The US also used spy satellites, plus the various tests for the Strategic Defense Initiative, and now the X-37B for long duration surveillance from space.
Fury’s space station had to be launched at some point. The station could be built in space, but that would still require sections being launched into space.
Space flight is highly regulated, even with commercial space flight. US law gives the Secretary of Transportation the authority to “prohibit, suspend, or end immediately the launch of a launch vehicle or the operation of a launch site or reentry site, or reentry of a reentry vehicle, licensed under this chapter [51 USCS §§ 50901 et seq.] if the Secretary decides the launch or operation or reentry is detrimental to the public health and safety, the safety of property, or a national security or foreign policy interest of the United States.” 51 USCS § 50909.
It would be extremely difficult for Nick Fury to have had his space station launched in secret. Others would have to been involved with the project from construction to orbital deployment. Moreover, the United States government would have been involved in the launch of the space station, even if it was under the guise of a non-military program.
If Fury’s satellite was launched by the US government with knowledge of its mission, Fury’s black ops were likely approved by the United States. If that is the case, Fury’s mission was carried out under orders from at least one US President and followed by subsequent Presidents. This would mean Fury’s actions were conducted under the authority of the US government, thus not a crime as an extension of foreign policy or police power.
Marvel’s new mini-series Original Sin focuses on who murdered the Watcher and why. After discovering the Watcher’s body on the Moon, Captain America asked Nick Fury to lead the criminal investigation into the Watcher’s death (Issue 1).
Upon landing at a battle between the Thing and Spider-Man against one of the Mindless ones in New York, Nick Fury declared the area was a crime scene and that he was in charge. Id. Moreover, Fury and other super-heroes ultimately lead an assault on the Watcher’s suspected murders (Dr. Midus, Exterminatrix, and the Orb) in New York City, which ended with Nick Fury placing the Orb under arrest (Issues 2 and 3).
There are multiple issues with these facts. First, could Captain America deputize Nick Fury to lead a criminal investigation? Second, could Nick Fury arrest the Orb? Three, could Nick Fury detain the Orb in the Avenger’s Tower?
Captain America may have been legally in the right to appoint Nick Fury to conduct an investigation, much like a private individual can hire a private eye. However, that appointment does not necessary give Fury legal authority to execute law enforcement actions, unless Captain America were acting on behalf of the United States with the powers to deputize others to conduct law enforcement activities. If Captain America did not have such authority, both New York and Federal law would prohibit Nick Fury from representing he was “in charge” and arresting the Orb.
Federal law states that “Whoever falsely represents himself to be an officer, agent, or employee of the United States, and in such assumed character arrests or detains any person or in any manner searches the person, buildings, or other property of any person, shall be fined under this title or imprisoned not more than three years, or both.” 18 USCS § 913.
In New York state, a person is guilty of criminal impersonation when they pretend “to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense.” This is a class A misdemeanor. NY CLS Penal § 190.25(3)(a) and (3)(b).
Nick Fury’s arrest of the Orb would violate both Federal and New York law, because it is an act implying law enforcement powers, unless there was an off-camera scene with Fury being officially deputized by law enforcement, such as someone like the Governor of New York or the United States Attorney General. Moreover, Fury did not say he was placing the Orb under “citizen’s arrest,” but instead implied that he was a public servant who could conduct arrests. If Fury was acting under actual authority to conduct law enforcement, he did not give the Orb his Miranda rights.
However, the impersonation did not end there, as we later learn that Fury was actually an LMD after the Winter Soldier killed him. Or it. Which raises a whole new level of impersonation, if not identity theft, if there were law over Life Model Decoys.
New York Political Consultant Gerry O’Brien, author of the steampunk novel 1901, is a long time Nick Fury and SHIELD fan. Gerry and Josh sat down to discuss the Agents of SHIELD episode “Ragtag,” covering the political and legal issues that have developed since Captain America Winter Soldier. Both are thrilled to have an Agent Carter series and shared their hopes about the new show.