X-Men: First Class

There’s a new X-Men movie out, and it’s actually pretty great. But you don’t come here for detailed discussions about the merits of the movie as a movie or about the fidelity or creativity of the adaptation. No, you come here to read about the legal implications of the various plot devices. So let’s get down to it. Given the plot, most of what we’ve got here is going to be international law, with an added civil rights / employment law bonus. As always, we’ve got spoilers.

I. Nazi Gold

In his quest to find the Nazi “doctor” that killed his mother, Erik Lensherr used an ingot of Nazi gold as a pretense to get an appointment with a high-ranking Swiss banker. This has a certain realism to it, as a vast amount of Nazi gold disappeared into European banks by 1945, and much of it probably remains there. The banker comments that possessing such gold is illegal. He’s right. In September 1946, the United Kingdom, United States, and France formed the Tripartite Commission for the Restitution of Monetary Gold with the mandate to identify those persons or institutions with claims that gold had been looted from them by the Nazis and the goal of restoring that gold to its rightful owners. The Tripartite Commission was created as part of the Paris Peace Treaties which brought about the end of the war. The Commission’s task took a long time, and it was only dissolved in 1998 with something like 65% of the claimed gold returned. Congress addressed the issue with the “Holocaust Victims Redress Act, Pub. Law No. 105-158 in 1998. The Act basically authorizes the US representative to the Commission to dispose of what assets remained in the Commission’s possession at that time.

Still, there’s one little wrinkle. Lensherr, being a Jew and victim of the concentration camps, could in theory have a valid claim to the gold in question, which would make the legality of his possession of the ingot less clear. But as this issue was dealt with on a really high level, it’s doubtful that law enforcement would care much one way or the other. The Commission was mostly concerned with the gold possessed by sovereign governments, not individuals.

II. Acts of War

First, there’s the operation to nail Shaw when he meets with the Russian general. This is a CIA-directed op, with CIA agents on the ground, leading a group of what amounts to mercenaries—other than Moira and the other agent, it isn’t clear that anyone else involved was a federal agent—in attempting to infiltrate a sensitive military compound to assassinate a high value target. Several major wars have been sparked because of the assassination of a high-ranking official, so this is kind of a big deal. Granted, in most cases where a war follows an assassination, the actual death is a pretense for armed conflict really motivated by more serious underlying tensions, but this kind of thing is dramatic enough to push things over the edge.

But the appearance of the X-Men on the scene at the climax of the Cuban Missile Crisis? That might not be, because the government had not authorized them to do anything. They were not acting under anyone’s orders (or at least anyone with the authority to give those kinds of orders), and it’s far from clear that the CIA even knew what they were up to. So Professor X causing the Russians to fire on their own ship could plausibly have been disavowed by Washington as rogue agents acting without authority. The fact that the Russians had already ordered the ship to turn around means that they’d probably be willing to grasp at any excuse not to go to war, so this explanation may well have been accepted, whether Professor X was acting under orders or not.

Magneto springing Emma Frost from the CIA holding center wouldn’t count either, as he wasn’t acting on the authority of any sovereign entity. At the time, it probably would have been classified as a criminal act, because the government’s rush to classify everything it doesn’t like as “terrorism” did not really get its start until the events of 2001. But it is plausible that, if apprehended, he could have initially been charged with espionage. Granted, Magneto does not seem to have any particular interest in working with any human government, and his little trip into the facility did not appear to include the acquisition of any information. Still, he damaged a bunch of property and may have killed some agents at a highly classified facility, so the feds would be understandably upset about that. They might not be able to make a charge of espionage stick in the absence of any connection to a foreign power though: the Espionage Act generally requires that one transmit or intend to transmit something to someone. Acquiring classified information and doing nothing with it isn’t espionage.

III. Employment Discrimination

At one point in the film, Moira’s CIA boss states in a meeting that “there’s no place for a woman in the CIA.”  Today that kind of comment might well give rise to a discrimination claim, but what about in 1962?  As it turns out, an employer—even a government employer—could probably have gotten away with it because the Equal Pay Act of 1963 and the Civil Rights Act of 1964 (specifically Title VII) had not been enacted yet.  Without those important Acts in place the courts were generally pretty tolerant of both de facto and de jure discrimination against women.  For example, it wasn’t until 1971 that the Supreme Court first struck down a state law on the basis that it discriminated on the basis of sex.  Reed v. Reed, 404 US 71 (1971).  And fully equal participation in jury service was not mandated until Taylor v. Louisiana, 419 U.S. 522 (1975).  So kudos to the writers for working in that accurate (if depressing) “sign of the times.”

IV. Conclusion

X-Men: First Class isn’t exactly a courtroom drama, but the legal issues that are there were treated pretty well.  We’re looking forward to the all-but-inevitable sequel.  In the mean time, check it out.  It’s a pretty good flick.

24 responses to “X-Men: First Class

  1. But Shaw actually isn’t a high-ranking Soviet official – in fact, he’s probably a wanted Nazi war criminal. Could the US help avert war by pointing out that they discovered “Klaus Schmidt” was hiding out in Russia and meeting with one of their top generals? That fact might be embarrassing enough to get the USSR to back down.

    • We should have been more clear. Shaw was the “high-value target” of the CIA mission, and his assassination at the general’s retreat could be seen as an act of war comparable to the assassination of a high-ranking official. Even if the general were not killed, killing a Soviet ally right next to a Soviet general sends the message of “we could have killed the general, too, if we wanted to.” Wars have certainly been fought over flimsier pretenses.

      • I think Mark’s point though was that Shaw was a Nazi war criminal. Imagine if the U.S. had discovered during the Cold War that Josef Mengele was working with the Soviets. If the U.S. had him assassinated, the Russians would have to acknowledge that they were working with Mengele if they wanted to retaliate.

        Actually, the entire plot thread of Erik hunting Nazis is based on historical fact. Adolf Eichmann was captured in Argentina, where Erik confronts the group of Nazis in the movie. I wouldn’t be surprised if the real-life Nazi hunters broke more than a few international laws.

      • Ryan Davidson

        Doesn’t really matter. Israel busting Eichmann in Argentina caused a major international incident between the two countries that made it all the way to the UN Security Council. If he’d been in a nation with more clout, things may well have turned out differently. Russia and China had no real dog in the race, as they don’t particularly like Nazis either and it wasn’t on their turf, and the US, UK, and France were Israeli allies at the time. Argentina wasn’t on particularly good terms with the rest of the world in the early 1960s either, making those countries who may have raised a stink that much less likely to weigh in.

        But conducting such operations in Russia? Entirely different kettle of fish. Major world power, nuclear capable, and one party to a major international confrontation which could turn into a shooting war at any moment. It almost wouldn’t matter who the target was: that kind of violation of Russian soil would not be tolerated. All they’d have to do is say they didn’t know who he was, which was plausible enough.

  2. Martin Phipps

    Several major wars have been sparked because of the assassination of a high-ranking official, so this is kind of a big deal.

    This is a good point. Of course, the plot demands that Charles and Erik be there but, really, what was Moira thinking? If Shaw had been there then Erik would have killed him right there and then. As it was he almost killed Emma but Charles stopped him.

    That being said, the movie did sort of address the legality. Erik was told not go in because they were the CIA and Erik said “I’m not CIA”. Then Charles followed him in and told one of the guards “Forget my face”. Obviously the CIA would have denied any involvement but the fact that it was implied that Charles used his powers on the guards to make them forget that he and presumably Erik were even there probably made things a lot easier.

    Oh and then there’s the Kennedy assassination in 1963. The U.S. didn’t go to war with the Soviet Union over the Kennedy assassination even though Oswell and his wife were, arguably, Soviet spies. Well, not directly against the Soviet Union anyway: U.S. combat troops weren’t employed in Vietnam until 1965. But I don’t think people at the time were saying “Let’s go fight in Vietnam to get back at the commies for killing our president”. It wasn’t like Pearl Harbor, 911 or the Alamo.

    I’m surprised you didn’t discuss the legality of pushing a teenager out of a window to see if he can fly.

    Oh and while they aren’t comic book movies, I think I’ll take the opportunity to ask you what you think of James Bond’s “license to kill”. In Casino Royale it is implied that while James Bond is authorized to kill people on foreign soil in order to carry out his missions as long as he didn’t get caught or recorded on video. (Similarly, the IMF team in Mission Impossible is told that “If [they] are caught or killed [the CIA] will disavow any knowledge of [their] existence.”) So what happens when James Bond is captured in the Soviet Union? Do the Soviets know about James Bond’s license to kill? Is the very act of sending James Bond to the Soviet Union, knowing that you’ve authorized him to kill people, an act of war? And how does the U.S. tolerate James Bond operating on U.S. soil as they probably do know all about the 007 program? Is it possible that some secret treaty arrangement with the British government allows 007 agents to kill foreign spies in the U.S.?

    • I believe you are referring to Mr. Oswald, and to date I do not know of any evidence really linking the Soviet Union to the assassination. Additionally the momentum for sending soldiers to South Vietnam had been building well before and there were already 16,000 American soldiers in the country before Kennedy’s death.

      As for 007, given his apparent inability to be anything other than obvious I imagine that the Soviets would be aware of his pseudo-legal rights. I wouldn’t think that on its own would be enough to be considered an act of war. Perhaps if the Soviets had evidence that he was sent to kill Soviet officials or help rebels but that’s another matter.

      • Martin Phipps

        I think if Oswald (sorry) had ever been brought to trial then he would have been charged with espionage. I’m surprised that Mrs. Oswald never faced charges. I would have thought her testimony at the Clay Shaw trial would have incriminated her. Here it is: http://www.jfk-online.com/marinashaw.html She stops short of admitting that she knew that her husband was planning to assassinate someone but she did say that the gun in the police’s possession was his and that she saw him take it from the garage on the day he left for Dallas. Presumably she gave the same testimony to the Warren Commission so perhaps she was given immunity then and there in exchange for her testimony. Of course, years later when she did an interview with Oprah Winfrey she changed her tune: http://www.jfkresearch.com/marina/marina.htm She said she was “a stupid young girl” who “wanted to help” and that she felt “guilty” because she believed that her husband shot Kennedy but she insisted that she was “not a Soviet spy”. Something doesn’t add up.

    • A minor point, but despite what the movies established, in the original MISSION: IMPOSSIBLE they answered only to “the Secretary,” not the CIA. The initial implication was that the IMF was an informal, off-the-books black-ops team (they did consist mostly of civilians, not professional agents) that answered only to the Secretary (probably of Defense) so that the government would have deniability if their actions were exposed. Granted, we often saw that they had plenty of support from government and local law enforcement, so that idea wasn’t really retained, but any association with the CIA is an invention of the Tom Cruise movies.

      • Someday I want to suggest that this site look at what happens in the Mission Impossible Cruise movies. There is no way 9/10 of that is legal in any form.

  3. There’s also a problem in Moira’s surveillance of Shaw in Las Vegas – the CIA is prohibited from conducting police, law enforcement or internal security actions in the United States by the National Security Act 1947; that’s the purview of the FBI.

    Not that it ever really stopped the CIA from doing that on the sly, but it’s technically illegal.

  4. What if any legal issues would there be for the CIA hiring many of the mutants?

    Hank McCoy was already working for the government, of course, as was Moira. Darwin, Banshee, and Angel appeared to be legitimate American citizens (though Angel may have been performing an illegal line of work). Havok was an imprisoned criminal.

    However, Charles seems to clearly be English, or at best, English-American; he appeared on track to a professional life in England even if he owned property in upstate New York. Raven was probably born in America, and may have legally been Raven Xavier if Charles’s absentee parents adopted her (possibly under his mental compulsion), but also appeared to be homeless and surviving through, presumably, her mutant talent and its facility for scavenging food. Erik was apparently German in origin but may not have had any actual recorded criminal activities.

    Of course, the entire thing seemed terribly ad-hoc and none of them may have ever gotten more than token support from a crank at a remote research base.

  5. Ryan Davidson

    Charles Xavier was born in New York City, according to canon, making him a US citizen. There’s nothing in the movies to suggest that this isn’t the case here as well. Raven is presumably a citizen, as there’s no reason to think she isn’t.

    Lensherr is a tougher case, as comic book canon never really has him working with the US government nor spending much time in the US. The official story is that he and Xavier met, started working together, and then parted ways while Xavier was in Israel. But the Marvel movies seem to be establishing their own canon, and already Magneto’s history is pretty different from the comic books. About 140,000 Jewish Holocaust survivors settled in New York in the late 1940s, many if not of whom became citizens in relatively short order, so it’s entirely plausible that Lensherr did that. But there’s no evidence in the movie to suggest that he did either, and he seems to spend a lot of time in Europe. Either way, the CIA can basically hire anyone it wants to hire, and there have been numerous non-US citizens on the company payroll over time.

    • I assumed Xavier held at least some British connection due to his accent and the fact that he established his professional career, specifically, at Oxford. It is of course quite possible he held dual citizenship, or that he was born in America but was largely raised by English people and as such developed the accent. This is not the case in the comic book 616 version, as far as I know.

      • James McAvoy said he got the part because he sounded like Patrick Stewart even if he didn’t look like Patrick Stewart. In other words, Patrick Stewart sounds English so they got an actor who sounded English.

      • Fans wanted Patrick Stewart to play Charles Xavier so Xavier became British.

  6. I didn’t think they were there to assassinate Shaw — well, Erik was, but I figured the official mission objective was to arrest Shaw. What would be the international consequences of that, if they’d succeeded?

    • Ryan Davidson

      Pretty much the same. Both would have represented an exertion of sovereign power in another nation’s territory and would equally constitute an act of war. This is why extradition treaties exist.

  7. I’m sorry. I know you’re moving on and talking about other things but it occurs to me that the U.S. action in Pakistan was actually them assassinating Bin Laden. Is that an act of war against Pakistan? Oh and didn’t President Ford proclaim that the United States wouldn’t assassinate anybody? Is it different because the U.S. declared war against Afghanistan and Bin Laden fled to Pakistan?

    • Ryan Davidson

      Theoretically… yes, it was an act of war. The use of one country’s armed forces on the territory of another, without prior permission, is always an act of war.

      But just because there has been an act of war doesn’t mean that there’s going to be an actual war, because the offended country can, of course, choose to ignore it or to seek a diplomatic solution. As Pakistan did in this case.

    • Osama bin Laden was not a citizen of Pakistan; he was born in Saudi Arabia (although he was stripped of Saudi citizenship in 1994) and later obtained Afghani citizenship. Nor was he in the country legally. He may have had some unofficial support from someone high up in Pakistan (though that’s speculative), but officially the Pakistani government did not support bin Laden in any way.

      Wikipedia says that the SEAL team was temporarily transferred to CIA command for the operation so that it would be legally a civilian operation rather than a military one, because the US isn’t at war with Pakistan. Presumably that means this wouldn’t legally constitute an act of war, but a police action. Since the team sent into the USSR in the X-Men movie consisted of CIA agents and civilian mutants (of various nationalities), perhaps the same legal loophole applies, although the USSR would’ve been a lot less likely to accept that than Pakistan would now.

      • Ryan Davidson

        Actually… no, that’s almost entirely wrong, I’m afraid. The “legal loophole” of which you speak isn’t actually a loophole.

        Any use of governmental power in a foreign country is technically an act of war unless the foreign country has given permission for said activities. This includes law enforcement activities, which is, again, why we have extradition treaties: the FBI can’t just go to Pakistan and arrest someone. More generally speaking, the FBI and CIA cannot conduct operations on foreign soil any more than the army can. Which is why the CIA works out of embassies so much: embassies are technically the sovereign territory of the operating country.

  8. Nothing to really say, just wanted to sign up for the email notifications.

    Love the site!!!

  9. I could not agree more about the film being great! Also, great post on the legal issues raised.

  10. It seems to me that breaking Emma Frost out could be treated as espionage given that:
    A. Emma Frost is a telepath and could very well have taken classified information from the CIA agents around her.
    B. Some of the individuals involved in breaking her out (Azazel and Riptide) are known threats to national security who are likely to act against the United States. For the that matter, the information the CIA has suggests ties between the Hellfire Club and the Government of the USSR.

    Also, what’s Beast’s legal situation in this movie. He appears to defect from the CIA and steal a plane from them.

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