Captain America Civil War is an amazing super-hero movie. It is the model of how to have a large cast of characters in a film with action, humor, plot, and heart. The only thing it lacks is a Constitutional law. The gross civil rights violations are reason enough for Captain America to go rogue.
The Sokovia Accords were an agreement between 177 countries to have an un-elected panel at the United Nations approve what missions the Avengers could go on. Super-heroes who refused to sign the accords that continued to take the law in their own hands would be prosecuted without a trial and imprisoned on the submersible Raft. While there are significant legal issues with super-heroes entering foreign countries without any legal authority, violating civil rights is not the sane answer to the problem.
There are massive legal issues with the Sokovia Accords. First, an accord is not a law, treaty, or Constitutional Amendment. Second, the United States cannot enact a law to willfully violate the rights of United States citizens. Sure, it can pass a law, but it will be Unconstitutional.
Just because 177 countries sign an agreement, that does not make it a law. To borrow from School House Rock, a bill has to go through both houses of Congress with a majority vote and be signed by the President to become effective. In case of a treaty, the Senate has to approve the treaty by a 2/3 vote (Article II, section 2). The treaty is not ratified until the instruments of ratification are formally exchanged between the US and signing foreign powers. There are incidents in history where the United States signed, but did not ratify a treaty, such as the Kyoto Protocol or Treaty of Versailles.
The United States cannot purposefully enact an Unconstitutional law. The Sokovia Accords appear to have elements of conscription if not outright impressment, with punishments ranging from internment to imprisonment without the Writ of Habeas Corpus. None of these “legal” safeguards on super-hero activity included any form of Due Process. The only way this international agreement could be worse is to throw in elements from the Indian Removal Act.
Treaties Cannot Violate the Constitution
The Sokovia Accords have all the charm of forcing US citizens into self-imposed exile to avoid internment or imprisonment. This should alert Senators to do their Constitutional duty to offer advice and consent on approving the Sokovia Accords, as they are very different from any other treaty entered by the United States.
Consider NATO for example. The North Atlantic Treaty Organization helped keep the peace during the Cold War. NATO is a mutual defense pack, but there was a concern that it would violate the Constitution. Congress has the power to declare war and a treaty mandating a military response if another nation is attacked infringes on Congress’ Constitutional duty to declare war.
Article 5 is the heart of the NATO agreement:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
All that is currently publicly available on the Sokovia Accords is the following:
In accordance with the document at hand, I hereby certify that the below mentioned participants, peoples and individuals, shall no longer operate freely or unregulated, but instead operate under the rules, ordinances and governances of the afore mentioned United Nations panel, acting only when and if the panel deems it appropriate and/or necessary.
The Sokovia Accords are the size of a phone book that mandate personal conduct. That is always a warning to anyone concerned about civil rights. Immediately the Sokovia Accords raise two huge issues: mandatory conscription and arresting citizens without Due Process.
Drafting of United States Citizens
The United States first enacted a draft in July of 1863 during the Civil War. Ironically, the states-in-rebellion held a Confederate draft before the United States. For the following 100 years, the United States held drafts in times of war, with President Nixon ultimately ending the draft. President Carter brought back mandatory registration for the draft in 1980. Under current US law, males must register for Selective Service as follows:
(a) Except as otherwise provided in this title, it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101), for so long as he continues to maintain a lawful nonimmigrant status in the United States.
(b) Regulations prescribed pursuant to subsection (a) may require that persons presenting themselves for and submitting to registration under this section provide, as part of such registration, such identifying information (including date of birth, address, and social security account number) as such regulations may prescribe.
50 U.S.C. § 3802 (LexisNexis, Lexis Advance through Pl 114-146, approved 4/19/16).
The fact only men have to register for the Draft is not subject to an equal protection challenge. 50 USCS Appx § 453; Witt v. Dep’t of the Air Force (9th Cir. 2008) 548 F.3d 1264, 1278-1279.
It is arguably within the President’s power to draft all of the male Avengers for military service. However, the purposeful selection of the Avengers would not be in an impartial manner under 50 U.S.C. § 3805. Moreover, as Steve Rogers served honorably between December 7, 1941 to September 2, 1945, he would not be eligible to be drafted. 50 U.S.C. § 3806(b)(1). Moreover, as all of the human male Avengers are over 26 years of age, they could not be drafted. 50 USCS § 3803(a).
As the Military Selective Service Act would likely fail drafting anyone with super powers, mandating super-heroes be registered and deployed according to the orders of an un-elected United Nations panel sounds a lot like involuntary servitude, which would violate the 13th Amendment.
That was the cause of another Civil War.
As evidenced in Captain America Civil War, Sam Wilson, Clint Barton, Scott Lang, and Wanda Maximoff are all imprisoned on the Raft after the fight at the German airport. This is extremely troubling, as none of them were afforded their right to counsel, taken before a magistrate after being arrested, or even given a trial.
The estimated time to build the new class of aircraft carriers beginning with the USS Gerald Ford is 11 years at a cost of $10.44 billion ($36.30 billion for the entire program). Ship building construction times will likely decease with the following carriers, however the point is building a large ship takes years. The fact the Raft is fully operational submarine prison operated by the US Navy means the United States government had planned to build the Raft years before the events in Sokovia. This is highly suspect that such a large project was undertaken with the apparent purpose to violate the civil rights of US citizens.
The US government imprisoning US citizens on a submarine prison would deprive anyone accused of a crime of the following civil rights:
The writ of habeas corpus, which requires a person in custody to be brought before a Court;
The 4th Amendment, which protects people from arbitrary arrests;
The 5th Amendment, which protects people from being deprived of life, liberty, or property, without due process of law;
The 6th Amendment right to counsel; and
The 8th Amendment prohibition against cruel and unusual punishment.
The US Navy apparently is not underway with a Federal Judge, along with a US Attorney, and Federal Public Defender. This means those arrested are not brought before a judge pursuant to the writ of habeas corpus. In the case of the imprisoned Avengers, the fight at the airport arguably was done out of self-defense, because of the Unconstitutional enforcement of the Sokovia Accords, and the UN’s rush to judgment to have James Buchanan Barnes shot on sight instead of arrested. As Tony Stark was more into enforcing his will upon others, Constitutional rights were being ignored, justifying the fight between the Avengers. The accused should have had their day in court to argue their case, opposed to being locked away without a trial.
The lack of any form of trial would violate the 5th, 6th, and 7th Amendments to the Constitution. Moreover, was any form of Miranda issued? While some might say, “Hey, the Avengers were in Germany,” thus anything goes with civil rights, they would be wrong. Soldiers arresting terrorists still give Miranda warnings, because our system is the only one we know. We do not ignore it if it suits our needs for expediency.
Holding prisoners in a submarine is one of first impression. The United States has avoided prison ships, most likely because of the Revolutionary War Prison Ship Martyrs. For those not familiar with the history, 11,500 Revolutionary War Prisoners of War died on sixteen British ships used a floating prisons. These prison ships probably were Exhibit A to many of the Founding Fathers when the 8th Amendment was drafted prohibiting cruel and unusual punishment.
The fact the [fictional] United States built a prison ship throws American history out the window, which would be the subject of lawyers willing to do battle for Wilson, Lang, Barton, and Maximoff in a court of law.
The Wrong Political Solution
Captain America Civil War has 177 governments take aim at super-heroes for the wrongs of others. While it is wrong for super-heroes to act without any regulation, the solution here does not make any sense. Let’s review the wrongs committed in the Marvel Cinematic Universe:
Iron Man: Obadiah Stane sold weapons to terrorists. This is all an inside job at Stark Industries, based on corporate greed. Where was Stark’s oversight?
The Incredible Hulk: The Abomination was created from Army experiment ordered by General Ross, which drove Emil Blonsky mad. If Blonsky had not been experimented on, Blonsky would not have forced Samuel Sterns to conduct the experiment upon Blonsky, which turned Blonsky into the Abomination (and Sterns into The Leader).
The Incredible Hulk: General Ross had SHIELD commit gross violations of 4th Amendment by searching the CONTENT of all digital communications for Bruce Banner without a search warrant.
Avengers: SHIELD experiments allowed Loki to go to Earth
Iron Man 3: The Vice President of the United States participated in a criminal conspiracy to overthrow US government, which resulted in President Matthew Ellis being kidnapped for execution.
Winter Soldier: HYDRA grew within SHIELD and attempted overthrow of the Government by killing over 11 million Americans within minutes.
Age of Ultron: Tony Stark and Bruce Banner created the murder-bot Ultron.
The major themes from Marvel movies is threats come from secret government projects or Tony Stark. Civil War has these two problem creating forces come together to make a bad situation worse. If anything, there would be loud public outcry against the Elis Administration for an attempted coup d’etat by his own Vice President, followed by crashing helicarriers in the Potomac, and a failing city from the sky, because a US weapons manufacturer made a giant killing robot. President Ellis is destined to be a one term President given how much has gone wrong on his watch.
Captain America was right to take a stand against the Sokovia Accords. Literally no good could come from there. As for what is reasonable regulation of super-heroes, that has yet to be answered.