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 firstname.lastname@example.org and email@example.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.
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.
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!