Law and the Multiverse Mailbag XIII

Lots of good questions this week. Today we’re looking at two issues: extra-planetary jurisdiction and conscription of specific superpowered individuals.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Extra-planetary jurisdiction

Bob asks “Do the laws of a country apply in space?  Perhaps if they are on a NASA spaceship then the laws of the USA would apply.  But how about if a crime is committed on the Moon (and not in any country’s Moon-base)?”

As mentioned in our interview earlier this week, Earth-bound legal systems don’t normally extend beyond the Earth’s atmosphere. Indeed, individual nations’ legal systems don’t extend much beyond their borders, but we’ve already got a terrestrial example: the high seas.

Oceans outside the territorial claims of any particular country are already pretty lawless. The UN Convention on the Law of the Sea has been ratified or at least signed by almost every country, but apart from addressing piracy it is mostly concerned with mundane issues like establishing territorial boundaries and exclusive economic zones. Admiralty law is a little more detailed (and one of the oldest continuously operating bodies of law in the world) but even that has mostly to do with the conduct of vessels, salvage rights, etc.

But even there, national courts are widely held to be able to exert jurisdiction over persons for actions they commit while at sea once the person is brought to shore. One of the most famous cases in every law student’s criminal law class is R. v. Dudley & Stephens, about some sailors who cannibalize the cabin boy. The defendants were brought to trial and convicted once they returned to their native country, and jurisdiction was not one of the real issues. But if they had been rescued by, say, an American ship, it’s possible they could have been brought to trial in an American court. Crimes committed on the high seas can generally be tried everywhere, e.g. Somalian pirates are being tried in New York City. The theory is that crimes committed outside national boundaries are, in a sense, crimes against civilization, and thus may be tried anywhere. The controversial doctrine of universal jurisdiction has some of its origins in this concept.

There is a limit here: the acts in question need to be obviously criminal by anyone’s standards. Murder is a pretty easy example. So is piracy. But what about things that are only illegal by statute, like gambling? Well the ferry that runs between Maine and Nova Scotia passes through international waters, and the on-board casino is only open when outside both the US and Canada’s territorial waters. There really hasn’t been all that much law here, but it’s unlikely that any given nation would be able to enforce its particular regulatory regime on the high seas over anything but a ship registered under that nation’s flag.

Outer space is quite similar. There is, in fact, a statute which extends federal jurisdiction to spacecraft flying the US flag (18 U.S.C. § 7(6)), which also discusses maritime jurisdiction with similar results. State laws do not apply, but federal laws do. But again, note that enforcement would require bringing a defendant back to US soil for trial, just like it would for crime on the high seas.

The same statute, specifically subsection 7, also grants US jurisdiction over “any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.”  This is kind of a catch-all clause.  If no one else has jurisdiction and a US national is either the suspect or the victim, then the US has jurisdiction.  So if a supervillain commits a federal crime against an American superhero on, say, Mars, then the supervillain can be hauled into federal court once he or she is brought back to Earth.

II. Conscription

Samuel asks “Given that an American superhero like Superman can be a tremendously valuable military asset, as both a frontline combat supersoldier and as a propaganda tool, is there any legal basis for the U.S. government to conscript Superman, specifically, into the Armed Forces?  What about drafting all superheroes in general?  Is there any legal way for Superman and other superheroes to ‘dodge the draft’?”

The law here is less clear than it is for law in outer space, only because it does not appear that the government has ever tried to draft a specific individual outside a wider draft program. As far as draft programs go, the courts have been exceptionally deferential to congressional power. The Supreme Court has held that “The constitutionality of the conscription of manpower for military service is beyond question. The constitutional power of Congress to support the armed forces with equipment and supplies is no less clear and sweeping.” Lichter v. United States, 344 U.S. 742 (1948).  As John Quincy Adams said in a speech before the House of Representatives, “[The war power] is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.”

More recently, the D.C. Circuit has held that “the power of Congress to raise armies by conscription is not limited by either the Thirteenth Amendment or the absence of a military emergency.” United States v. Chandler, 403 F.2d 531 (D.C. Cir. 1968). The Thirteenth Amendment, prohibiting involuntary servitude, is perhaps the most obvious potential constitutional issue with the draft, and the federal courts have unanimously and consistently held that it does not limit the draft power at all.

Similarly the federal courts have held that the First Amendment is no barrier to the draft.  Conscientious objector status is the product of statute, not the Constitution.  “The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him.”  United States v. Macintosh, 283 U.S. 605, 623 (1931).  If Congress wanted to, it could conscript everyone, regardless of any religious or moral objection.  It’s unlikely it would do so, given that it would likely lead to civil disobedience, but it’s a theoretical possibility.  In the same case the Court lists a whole host of constitutional rights that may be superseded by the war power, culminating in “other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”

However, this is still an untested area of law, because as far as we can tell Congress hasn’t actually tried to do this, there being no compelling reason to use the draft power this way. The only times a draft has been imposed have been in times of incredible demand for manpower—it is a pretty drastic step, after all—so going after a handful of specific individuals wouldn’t make sense in the real world. But if the draft of specific individuals or classes of individuals is to be attacked, it would have to be on some kind of due process argument, i.e. Congress can draft everyone in a certain age group, but it can’t draft specific people.

Should Congress go after a regular guy this way, the courts might be persuaded to intervene, but if the target is a superhero? It may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, then that may well be something Congress is allowed to do.

III. Conclusion

Law in outer space would probably work pretty similarly to law on the high seas: a particular nation’s courts could probably enforce basic laws against things like murder, but only once the defendant was brought to Earth. And Congress may well be able to draft the services of specific people, particularly if there’s a reason for their unique services to be used.

Thanks for reading. There’ll be more next week!

34 responses to “Law and the Multiverse Mailbag XIII

  1. I understand there is a view that “piracy” is any crime committed on the high seas, and therefore may be apprehended and punished by any nation. Even though “It would seem a queer sort of piracy to commit suicide in one’s cabin, or perform an illegal operation on the captain’s daughter.” (From a passage in A HIGH WIND IN JAMAICA discussing how “piracy” as a legal concept is somewhat odd.)

    Along these lines, there was a piece in PUNCH arguing that “pirate radio” operators could actually be charged with piracy.

  2. Could not trying to draft a specific individual (e.g., Superman) be argued to run afoul of the constitutional prohibition against “bills of attainder”? Now that argument wouldn’t stop drafting every superhero, given the previous discussion about if having a superpower could be considered having a disability and thus might be considered a protected class, isn’t that like trying to draft only black men.

    • We actually looked at that, and the answer is “Probably not.”

      A bill of attainder is a legislative declaration that a particular person is guilty of a crime and imposing punishment in the absence of a judicial trial. Clearly, the draft is not that, even if it targets a specific individual. Being required to serve one’s country is not punishment under the law.

      The most recent test of the bill of attainder prohibition had to do with ACORN, and the 2d Cir. ruled that defunding the organization did not constitute a bill of attainder. (ACORN v. United States, 618 F.3d 125 (2d Cir. 2010). But specifically targeting a particular organization for adverse monetary action based on allegations of impropriety is not at all the same thing as drafting someone to serve in the military, so such an argument would be even less likely to succeed. The basic test is that the action must have “nonpunitive legislative purposes,” and being drafted would seem to pass that test under most hypotheticals.

    • Bills of attainder are legislative acts “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315 (1946).

      There are four basic things the courts will look to in determining if something is an extra-judicial punishment: whether it was traditionally judged to be prohibited (e.g. “imprisonment, banishment, and the punitive confiscation of property”); whether the law can reasonably be said to further nonpunitive goals, given the type and severity of the burdens imposed; whether the legislative history indicates an intent to punish; and whether there are “less burdensome alternatives by which [the] legislature could have achieved its legitimate nonpunitive objectives.”

      Here I don’t think specific conscription falls into any of the traditional prohibitions. The law would further the nonpunitive goal of national defense; the function of conscription is not to punish someone for having superpowers. Presumably Congress would not be so stupid as to actually state that the purpose is punitive. And finally there probably aren’t any less burdensome alternatives, assuming the superpowered people don’t volunteer.

      Re: superheroes as a protected class. If superpowered individuals were found to be a protected class, that might not stop the government from conscripting superheroes specifically. Being a protected class does not prevent the government from making any class-based distinctions. For example, race-based distinctions must pass the strict scrutiny test, which means the distinction must serve a compelling government interest, be narrowly tailored to serve that interest, and be the least restrictive means for accomplishing the goal.

      If superpowered individuals were given that highest level of protection, one can see how specifically conscripting superheroes could be constitutional. Obviously national defense is a compelling government interest. The draft would have be narrowly tailored to include all of the superpowered individuals needed for defense and none of them who aren’t, so the draft law or the responsible agency would need to enumerate the specific powers needed for national defense. And Congress would need to demonstrate that a draft was the least restrictive means of getting enough superpowered individuals to sign up.

      But again, that’s presuming that the courts even reviewed the issue in the first place. They might simply say “Congress can draft whoever they want for whatever reason, good or bad.”

      • David Johnston

        It has occurred to me before that the draft would actually be a more viable form of superhuman registration. It avoids the awkwardness of trying to distinguish between the superhuman and the merely exceptional which would inevitably end up as a decision made by an “I knows it when I sees it” panel, it avoids painting the government as Nazis and the superhumans as their jewish/gay/gypsy victims.

  3. Couldn’t you get around all those problems regarding drafting superpowered individuals by simply draft anyone who is bulletproof and can throw an enemy tank into outer space? 😉

    Then again, should the US come up against a “worthy” enemy (i.e. the Nazis), I’m pretty sure Superman doesn’t need any encouragement to join the fray.

  4. There was an issue of X-Men where Colossus visits his home village in Russia. An old friend affronts him because he didn’t help them fight the war in Afghanistan to which he replies that super heroes are not allowed to fight in wars as mandated by international treaties.

    • That might not work since (if I recall correctly, I was just starting to read at the time) the U.S.S.R kept to the claim throughout the war that they had been invited by the Afghan government* to intervene, and they were trying to support a friendly government against rebels. Counterinsurgencies make things really confusing.

      *Yes, the same government whose leader the KGB killed when they entered the nation.

  5. On the topic of drafting Superman, I suppose that Congress could certainly say that they are going to. The real issue there is whether it’s even worth doing. I don’t think anybody can make Superman do anything that he doesn’t really want to do. Of course the iron would be Clark Kent getting a draft notice in the mail.

  6. There was a World War II story where Clark Kent was drafted, but flunked his eye exam because he accidentally read the eye chart in the next room using his x-ray vision.

    Of course, the real-world reason that story was written was that having Superman fight in the war would trivialize it.

  7. Dennis Castello

    In one episode of “The West Wing,” didn’t President Bartlett threaten to draft truckers if they went on strike during the holidays? Was this an example of TV getting it wrong or can the President do this, and if he *can* draft truckers, why can’t he draft superheros, or a superhero?

    • If I remember that episode correctly, the specific threat was that he would nationalize the industry. This is not precisely the same thing as a draft, as it does not necessarily imply military service, which the draft does.

      Legally speaking, it’s far from clear that he had the power to do this, but that wasn’t really the point. The threat that he’d try had the potential to so disrupt the industry even if he lost (the resulting legal battle could easily last years) that the two sides were sufficiently motivated to come to an agreement.

    • I think they were using the same scenario (sort of) that President Theodore Roosevelt dealt with in the 1902 Coal Strike which he handled by threatening to have the military seize the coal mines.

  8. “Outer space is quite similar. There is, in fact, a statute which extends federal jurisdiction to spacecraft flying the US flag (18 U.S.C. § 7(6))”

    That statute is in accordance with one of the treaties on space law (I forget which one) which states that all vehicles and all citizens of a given country are under the jurisdiction of that country and subject to that country’s laws. This holds no matter where the vehicle is launched from. (No flags-of-convenience in space.)

    This is one of the reasons why nobody has tried to do what OTRAG tried to do back in the 70’s – export their boosters and launch them from a third world nation. (Various arms control and anti-proliferation treaties also come into play.)

    • This jurisdiction issue in space may cause interesting problems with any attempt to set up a space tourism industry. For example is each individual is under the jurisdictional control and laws of that specific individual’s country then how could a U.S. company owned orbital hotel enforce U.S. drug laws?

  9. What of instances where a spacecraft from Earth is flying multiple nations’ flags by international agreement?

  10. Question for next mailbag: Time Travel and murder. If somebody from the future comes back to the present, tries to kill, say, the Mayor of Metropolis, then escapes back to the future, could the current version of that time traveller be prosecuted, even if he has neither a time machine nor any want to kill the mayor?

  11. I know in Justice League Unlimited Captain Atom is a member of the Air Force Reserves, and then called back to active duty.

  12. Most of those court decisions concerning the power of Congress to draft soldiers come are, at the latest, dated to the height of the Vietnam War. Considering the serious public backlash against the draft since then would the courts be willing to give it such iron-clad defenses? I’m not suggesting that the courts would try to remove Congress’ powers, but would they be potentially willing to give citizens some form of protection?

  13. My view on the drafting of supers is that it would be impractical. A military superhuman would be, almost by definition, special forces. Someone sent out in small groups to do things normal soldiers cannot and not part of a “mass force”. The last thing you want under those circumstances is an unmotivated draftee who doesn’t really want to be there. When you want someone to infiltrate Berlin and punch Hitler in the face, you need a go-getter.

    • Superman could still be used on the front lines as human artillery. It’s obviously a dangerous idea to draft a superhuman who clearly doesn’t want to fight for you but it might be possible.

  14. Taking the military aspect out of speculation and into actual comics, during World War II, all the members of the Justice Society at the time enlisted in the military (all in the Army, except for Johnny Thunder, who resisted the idea because he had already enlisted in the Navy) in their secret, civilian identities.

    Rather than use them exclusively as special forces, they served as generic uniformed men AND as part of the Justice Battalion, under the direction of the War Department. Is that plausible? Even assuming that a well-trained mystery man (the Atom, for example) can handle the stress of being a soldier and then spending a few more hours in costume, does this run afoul of chains of command and even possibly these same draft issues? Or does it all not count because they enlisted?

  15. Wasn’t the Marvel comics Civil War about drafting anyone with superpowers. Was it actually constitutional?

  16. “Crimes committed on the high seas can generally be tried everywhere, e.g. Somalian pirates are being tried in New York City.”

    This statement is misleading. Under UNCLOS, the general rule for jurisdiction for civil ships is flag state jurisdiction only (Art 92), with a few exceptions. Only certain crimes committed on the high leas can be tried anywhere: piracy (Art 105), slave traders (Art 99), ships engaged in unauthorized broadcasting (Art 109), terrorism (state practice). There is also a right of hot pursuit which allows states to pursue ships where crimes have occurred in the state’s territorial waters. Thus, there is only universal jurisdiction on the high seas for a few specific crimes, murder and most other crimes can only be tried by the ship’s flag nation (or the state of the victim’s nationality).

  17. I know little about statute law, and not much more about the comic book world, and yet I have enjoyed the discussion of superheores, war, and a new look at the draft debate, especially the ‘feasibility vs. plausibility’ question.
    Most comic book superheroes were born citizens of some country or other, and so have established legal standing. I do not know that Superman ever became a U.S. citizen, although Clark Kent probably would have an SSN. Seeing as Superman not only is not native-born, but actually resides outside the U.S., I doubt that any attempt to ‘forcibly conscript’ him would be legally enforceable, much less practically so.

    • We’ve looked at the issue of Superman’s citizenship, and there are actually several ways by which he may be a US citizen. Depending on which version of the origin story you’re talking about, he may be a natural born US citizen, a US citizen via the foundling statute, or a US citizen via private act of Congress.

      Also, it’s pretty clear that Superman is a US resident, occasional trips to the Fortress of Solitude notwithstanding. Superman is not a legally separate entity from Clark Kent, and Clark Kent is plainly a US resident, what with the home, job, and (depending on the continuity) family.

      But even so, the US can draft non-citizen immigrants. It did so during World War II, for example.

      • Martin Phipps

        You and I know that Superman is Clark Kent. AS far as the government is concerned, it isn’t clear that Superman is even a resident of the United States.

  18. Would the conditions of their service have a possible impact on the legality of a draft of supers? I’m just curious if they become a protected class if their actual service requirements become significantly different from other draftees. Something like being drafted for life while everybody else has a set term, or deliberate efforts to especially endanger them (i.e. “Go run through those defenses set up to kill you and punch Hitler in the face, for no particular strategic reason!” or “Submit to medical testing with surgery so we can create entire units of people like you”). Just wondering if deliberately treating a particular set of draftees more harshly becomes a discrimination issue. Otherwise one wonders if bigots in the Marvel universe US Congress could solve the “mutant problem” by drafting them then deliberately setting them up to die in a war.

    As for the general reason why no drafting, I’d tend to go with the person who suggested the real reason in-universe might be a treaty issue; it does seem like the type of bag of snakes most nations would happily not open.

    • In the Ultimates Volume II, the Ultimates (ie the Avengers) are used for some military operation in another country. Other countries send their own supers to attack America in retaliation.

  19. Concerning the absence of need, I am reminded of a handful of cases in the history of Rome where a private citizen who had been a respected general or competent administrator was basically drafted by the Senate into leading an army or even the whole state to fight some enemy or simply restore order after a particularly bad emperor was removed from power. So this sort of thing has happened in the past.

  20. Hrm. So, if somebody commits murder on the high seas, he can be tried under a nation’s laws when he enters that nation’s territory. Assuming that we have Ye Olde Supervillaine with his aquatic fortress, so he never HAS to come to land if he doesn’t want to, would the fact that he cannot legally have a warrant issued for his arrest, since he hasn’t legally committed a crime in the jurisdiction of any given nation, mean that he can’t be legally forced into any nation’s territory?

    i.e., if Dudley Dooright goes off to Supervillaine’s lair and drags him to Canada, Canadian law now can prosecute Supervillaine for his nefarious deeds. But can Supervilliane demand Dudley stand trial for illegal kidnapping, since there was no legal way to issue a warrant for an arrest based on crimes no committed in Canadian territory?

    (For the moment, ignore the possibility of Canada having a catch-all statute the way the US does; I’m curious about the technicalities of arrest vs. kidnapping when somebody can’t be legally accused until he’s brought into a territory where his actions were a crime.)

    Re: drafting Superman in specific, I have a couple thoughts/questions. I will ignore the de facto practicalities of being able to compel Superman, since this is a blog about law and not about practicality. (Seriously, the Justice Lords episode of Justice League animated series shows what happens if Superman decides he doesn’t like a particular law.) Superman would probably comply with the law, anyway, since he’s a boy scout extraordinare.

    Anyway, If Clark is drafted, and his secret identity is up-til-now intact, what recourses might he have to try to prevent the medical exam from discovering his invulnerability and other passive powers? If he IS outed as Superman, could he be compelled to sign up for Special Forces or to use specific powers beyond the norm for human beings? I assume the latter is possible; military orders can be anything, right up to “I order you to laser-beam eye that tank,” I think.

    …bringing back an old hypothetical, could a soldier be tried for insubordination if he failed to obey an order he is physically incapable of obeying? Say General McBastardson (because he’s a bad guy for our situation) orders Jimmy Olson, draftee, to laser-beam-eye a tank, because he thinks Jimmy is Superman. Jimmy glares and stares and squints and tries, but…well, he’s human. Could he be tried for insubordination?

    If Jimmy, unbeknownst to anybody but Superman and Jimmy and McBastardson, has been power-swapped with Superman (yet again), and he fakes not being able to do it, can he be tried for insubordination? (I suppose this one comes down to, does military justice differentiate between inability and unwillingness to obey orders?)

    • I think a superior officer can charge anyone with insubordination under any grounds in which case Jimmy would stay in the brig until his case goes to trial (court martial). Of course, this might save his life as Jimmy -in the comics anyway- isn’t a trained soldier. Now as for what evidence General McBastardson could present against him, well, good luck trying to prove Jimmy is Superman. (He isn’t.) Most likely General McBastardson would get a section eight discharge. Too bad this isn’t the late 1930s or early 1940s because this sounds like a perfectly good golden age Jimmy Olsen story with a simple beginning and happy ending that could be told in eight pages, tops. 🙂

  21. What about using drafts as means to imprison some super that doesn’t agree with the government without going thru the civilian legal system or using potentially unconstitutional means like what has been happening with many of the Guantanamo prisoners; by forcedrafting them, and then ordering them to do somthing they know the super would be against doing, and therefore creating grounds for the super to be tried and imprisoned for insubordination or similar? (assuming it’s a super the government/army has the means to contain and imprison against the super’s will to start with)

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