Mailbag for May 13, 2011

Today we have a question about superheroes who work for the military and the Posse Comitatus Act.  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.

Repentinus asks about the Posse Comitatus Act and its effects on superheroes serving in the military (e.g. Captain America) or in quasi-military organizations like S.H.I.E.L.D.  First, a bit of background about the act.

Posse comitatus dates back to the common law era and has been defined in the US as “The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc.” United States v. Garcia, 672 F.2d 1349, 1368 n. 32 (11th Cir. 1982) (quoting Black’s Law Dictionary).  The Act prohibits the willful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 USC 1385.  Note that although the Act specifies the Army or the Air Force, “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.”  United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).  The Naval Criminal Investigative Service (NCIS) also falls within the Act despite being primarily staffed and run by civilians. See United States v. Chon, 210 F.3d 990 (9th Cir. 2000).  As a result, Congress granted the NCIS explicit authority to execute warrants and make arrests.  10 USC 7480.  Note, however, that the Act does not apply to the Coast Guard, partly because of the Coast Guard’s historical dual role as a law enforcement agency.  Jackson v. State, 572 P.2d 87 (Alaska 1977).

The final thing to note is this part of the Act: “or otherwise to execute the laws.”  This broader language means that the Act prohibits not just conscription into a posse but also prohibits the military from doing anything “which is regulatory, proscriptive or compulsory in nature, and causes … citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority” (without explicit Congressional or constitutional approval).  United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D. 1975) (aff’d by 541 F.2d 1275 (8th Cir. 1976)).  Examples of such prohibited acts include “arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.”  United States v. Red Feather, 392 F.Supp. 916, 925 (D.S.D. 1975).

That’s pretty much a laundry list of typical superhero activities.  However, note the key phrase “imposed by military authority.”  As the court in Chon held, “[Department of Defense] personnel may participate in civilian law enforcement activities in their private capacities, [but] they may not do so under the auspices of the military.”  Chon, 210 F.3d at 993.  As the Chon court explained, civilian NCIS agents “represented and furthered the interests of the Navy, and were delegated the same authority to do so as military NCIS agents. When the civilian world is confronted by agents of the Navy, it is unlikely to make the fine distinctions asserted by the government between military and civilian NCIS agents.”  Id.

Thus, superhero members of the military may engage in law enforcement activities so long as it is clear that they are doing so as private citizens (or to have explicit Congressional approval).  Luckily, most superheroes are quite adept at maintaining multiple identities, so it should be easy to separate out the civilian and military roles via a quick costume change.

That’s it for this week.  Keep your questions coming in!

10 responses to “Mailbag for May 13, 2011

  1. Melanie Koleini

    Does the Posse Comitatus Act mean S.H.I.E.L.D. needed an act of Congress before it was authorized to operate in the US?

    • Maybe, maybe not. It’s never been completely clear how S.H.I.E.L.D. is organized. If it’s organized under the auspices of the US military, then it might. But if it’s a UN agency or a federal law enforcement agency like the FBI or the Postal Inspection Service then it wouldn’t need such authorization. Of course, there would still need to be an act of Congress to create the appropriate part of the military or federal agency or to allow a UN agency to act as law enforcement in the US.

      • SHIELD in its two most recent incarnations was often depicted as a UN agency with a charter treaty which the USA signed onto, and in the case of at least the earlier of the two editions, Clay Quartermain – as written by John Byrne in Incredible Hulk– once said that the US Congress passed legislation stating that “SHIELD business is SHIELD business”. Whether that legislation still held for the second of the two, the one disbanded by denial of US financing at the end of Secret Invasion…no idea.

        And judging by events in Secret Warriors now in progress, we may have new wrinkles added to the story.

  2. Sidebar comment: considering how often SHIELD comes up for discussion here, one begins to suspect they ought to get their own category tag!

  3. What was the reasoning behind not specifically mentioning the U.S navy in the same breath as the army and air force? Obviously it was taken care* of in the areas you mentioned but did they simply leave them out with the reasoning that more branches of the military might be created in the future or for some other reason?

    *As was the marine corps.

    • United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) explains it thus:

      “an earlier version of the measure would have expressly extended the bill to the Navy, but the final legislation was attached to an Army appropriations bill and its language was accordingly limited to that service. … Reference to the Air Force was added in 1956, consistent with reassignment of Army aviation responsibilities to that new branch of the military.”

      In short: a quirk of the legislative process.

  4. Wouldn’t this mean Captain America needs an act of congress for pretty much everything he’s done since thawing out? Or is he off the hook because the Avengers are privately funded and so don’t really count as “law enforcement”?

    • It’s not clear that he remained attached to the military at all after being thawed out (after all, he’s chronologically well beyond mandatory retirement for enlisted or officers), so it probably doesn’t even come up.

      However, the analysis in the article doesn’t really apply to SHIELD considered as a US military org (or US branch of an international one) performing law enforcement activities in the US, since SHIELD agents are never acting as private citizens when in uniform, nor would it apply to General Ross’s old Hulkbuster unit if the Hulk is considered a law enforcement problem as opposed to an entity the US could be at war with. Both cases would seem to require specific Congressional approval.

  5. Martin Phipps

    I just finished watching the Smallville Finale. Lex Luthor returns as a clone and then seven years later (as revealed in the epilogue) he is elected president of the United States. Two questions:

    1) Given that a President needs to be at least thirty five years old, would his election be rescinded if it was revealed that his body was actually only seven years old? Lex was also elected President in the comics but in that case his brain was transferred to a new cloned body so it was actually Lex with a new body which is different from the Smallville version of the story.

    2) In the comics, Lex stood trial and was acquitted of all charges before running for President but what would happen if a sitting President is accused of crimes he committed before he became President? I suppose he could be impeached. I recall that Clinton was charged with perjury so in Luthor’s case it would just be a matter of getting him to deny under oath, for example, killing his sister and then proceeding with perjury charges after presenting evidence that he did.

    Martin

  6. Is SHIELD military? In the movies, at least, it seems to be a civilian agency more like the FBI. Agent Coulson wears a suit, not a uniform. And in the animated adaptations I’ve seen, and what I recall from the comics, SHIELD personnel are called agents rather than using military ranks. They seem to be more paramilitary than military.

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