Super 8

Okay, so it’s not exactly a comic book movie, but Super 8 does come from director J.J. Abrams, and this, like most of his other work, is still in the basic genre ballpark, so what the hell.

Yes, it’s a good movie. But you can read other reviews for that stuff. Spoilers inside.

I. Superseding Local Jurisdiction

One of the most obvious legal events in the movie is the Air Force taking control of the crash site. This is actually permissible under two independent theories.

First, railroads have long been recognized as being part of interstate commerce, and were the subjects of many important Commerce Clause cases. In Southern R. Co. v. U.S., 222 U.S. 20 (1911), the Supreme Court held that Congress could regulate the safety features on railway cars, even those that did not cross state lines, because railroads are an instrumentality of interstate commerce. In Houston E. & W.T. v. U.S., 234 U.S. 342 (1914), better known as the Shreveport Rate Case, the Supreme Court ruled that the Interstate Commerce Commission, now part of the Surface Transportation Board within the Department of Transportation, could regulate freight train shipping rates which were purely internal to a particular state, because the Commerce Power permitted the federal government to reach purely intrastate activities which had an effect on interstate commerce. The National Transportation Safety Board is chiefly responsible for investigating railroad accidents, so even if it hadn’t been the Air Force sweeping in, it’s likely that some federal agency would have shooed local authorities away. As the NTSB was established in 1967, it would have been around in the 1980s, when the movie was set.

But more than that, when the military decides that something is critical to national security–and secret programs about alien life forms probably are–they can probably do this sort of thing too. As a matter of practice, the military can do pretty much whatever it damn well pleases. This was very true in the Cold War, became less true after the fall of Communism, but has started to be more true again in this era of the Patriot Act. So if the Air Force or Army were to descend on a train wreck and assert federal jurisdiction, it’s unlikely that much could be done about it. Doing something about it would likely involve filing a lawsuit, and it’s likely that the military could be in and out of the area before a court could do anything about it, and even if a local federal judge went into overdrive, the JAG corps or other DoD lawyers could easily keep things tied up in hearings long enough for the operation to be concluded. So if the military wants to evacuate a town? Even if they aren’t legally allowed to do it, they could probably effect the evacuation before anyone could protest, and a fiat accompli is harder to fight judicially than a proposed or pending action.

II. Breaking the Chain of Causation

The movie opens at what seems to be the funeral meal for Joe’s mother. Midway through the scene, a man drives up, looking like hell, and makes his way into the house. There is an immediate disturbance, and the man is promptly escorted from the premises by Joe’s dad, a deputy sheriff, in handcuffs, and driven off in the police cruiser. We don’t learn exactly why, and it seems likely that Joe’s dad was simply overreacting, as there doesn’t appear to have been a crime involved in that scene.

We learn later that the man was Louis Dainard–father to Alice Dainard, the female lead–and a co-worker to Joe’s mother. Turns out Louis was scheduled to work the day Joe’s mother died, but missed work because he was drunk. Joe’s mother filled in for him and was killed in an industrial accident. Joe’s dad and Louis seem to have become enemies as a result, but we never learn the specifics. Eventually, Louis apologizes for missing work and Joe’s dad acknowledges that it was an accident and no one’s fault.

This isn’t just the right personal and ethical result, it’s also the right legal result. True, under a “but for” analysis, Louis’ failing to show up for work was the cause of Joe’s mother filling in for him, and if she hadn’t been there, she wouldn’t have been killed. Arguably then, Louis caused her death. But the legal system is pretty uncomfortable with pushing causation that far. This kind of “for want of a nail” analysis is generally disfavored, and any court would refuse to recognize it as the proximate cause of Joe’s mother’s death.

Remember, there are four elements of a tort: 1) breach, 2) of a duty, 3) which is the proximate cause, 4) of a legally cognizable injury. It’s debatable whether Louis had a duty not to drink so much that he missed work–even if he did, he probably didn’t owe that duty to Joe’s mom–but he did breach that duty, which was the ultimate cause of her death. But because it wasn’t the proximate cause, i.e. connected closely enough for a court to recognize the connection as sufficient to ground liability, there is no tort here.

There are a few different theories of what constitutes “proximate cause.” The leading one is “foreseeability,” i.e. a particular outcome must be reasonably foreseeable from a particular act for liability to attach. For example, if one throws an apple core out of a moving vehicle and strikes someone, the injury is sufficiently tied to the action to support causation. But if the apple falls in a field of vegetables but just so happens to be infected with a dangerous strain of e. coli which contaminates the crop and causes food poisoning two states over… that injury is not a reasonably foreseeable result of littering. No court would permit liability to attach. This is the theory adopted by the Restatement 2d of Torts.

The Restatement 3d of Torts adopts what is referred to as the “scope of the risk” rule, i.e. defendants are only liable for those injuries which fall within the scope of the risk of a particular action. Restatement 3d of Torts 29 says that “An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.” The example on Wikipedia is a good one: if a father gives his child a loaded gun, and the child then drops the gun and injures the plaintiff’s foot, the father cannot be held liable. True, giving the loaded gun to a child is negligent, but the plaintiff would have been injured in a similar way regardless of what object the father gave the child, and doing that isn’t negligent. So the mere fact that a negligent act caused the plaintiff’s injuries is not sufficient to ground liability, because the defendant’s negligent wasn’t of the sort that actually caused the injury.

Under either analysis, Louis is off the hook. Joe’s mother being injured in an industrial accident was probably not reasonably foreseeable by anyone, and certainly not by Louis, who wasn’t even present at the time of the accident. And if Louis’ negligence was the cause of her death, the risk in negligently failing to show up for work is that the employer will be inconvenienced, not that another employee will die in an industrial accident.

III. Conclusion

This particular movie isn’t exactly chock full of legal issues, but the few that it does touch on it handles well. When writers get the details correct, it helps the story, because if either of these had been handled incorrectly, it would have resulted in fairly significant plot holes. Nice work!

Also, it’s actually a good movie. Go see it.

20 responses to “Super 8

  1. I’m a military officer and not a lawyer, so maybe I just don’t fully understand the law, but I was actually pretty unimpressed with how Super 8 handled the legal issues of the Air Force swooping in.

    I think that a lot of what they did would violate the Posse Comitatus Act, which is a Very Big Deal in military circles, even if you don’t hear about it much on the civilian side. The last time it hit the news was in 2009, when military police from Fort Rucker helped do traffic control outside the base when there was a spree killer on the loose. A couple of Soldiers got hemmed up for that.

    Posse Comitatus means that the military can’t “execute the laws” or do any sort of arrests, searches, or seizures. (So cleaning out Dr. Woodward’s house was right out.) This means that it’d be very difficult for them to control the perimeter of the crash site, since they can’t arrest trespassers. However, they *can* interface with local law enforcement and the FBI, who *do* have those powers. So they could go to the sherrif and ask him to surround the place with deputies. As a practical matter, you’d want to do that anyway, since the locals would know the roads and terrain better than you. The Posse Comitatus Act does have some exemptions, but I don’t think that what they did fit into any of them.

    It was also worth a chuckle when Deputy Lamb threatened to “call Washington.” Dude, you are out of your skull if you think something of this scale is happening without the Pentagon and the President already knowing about it. Not that this has anything to do with the *legality* per se, but an O-6 isn’t going to be out there flying on his own for something like this.

    None of this answers your point that as a practical matter, they can probably do all of this before a court could stop them. But there would almost certainly be at least administrative consequences to the officers involved, if not actual courts-martial.

    Bonus legal screw-up! This one jumped out at me, because it makes my teeth grind whenever I hear it in a movie: “Colonel Nelec had [Dr. Woodward] dishonorably discharged…” No, you can’t just have somebody dishonorably discharged. That is a punishment that can only be imposed by a court, and it counts as a felony conviction. Specifically, it can only be imposed by a General Court Martial, so *Colonel* Nelec would have had to go to the *general* that he worked for and asked him to prosecute Dr. Woodward. Also, it would mean that a federal felon got a job as a school teacher in a small town, which tends to strain credulity.

    • It post-dates the setting of the movie by a few years (it was issued in 1986), but DoD Directive 5525.5(A)(2) allows for direct assistance in civilian law enforcement activities where the actions “are taken for the primary purpose of furthering a military or foreign affairs function of the United States …” The directive specifies that such actions include “[p]rotection of classified military information or equipment” and the “[p]rotection of DoD personnel, DoD equipment, and official guests of the Department of Defense.” DoD Directive 5525.5(A)(2)(a)(4-5). The Directive has been upheld by multiple federal courts. See, e.g., United States v. Chon, 210 F. 3d 990 (9th Cir. 2000).

      That would seem to fit the facts of the film, though I have only seen the trailer (my co-author wrote this post). I would not be surprised if a similar directive predated 5525.5(A)(2).

      • But note that this also is the policy specifying “DoD Cooperation with Civilian Law Enforcement Officials,” (emphasis mine) I’m not sure how you’re citing the DODD, but I think the parts you’re talking about are E4.1.2.1 and E4.1.2.1.4. And again, this is titled “Permissible direct assistance.” In the court case you specified, note that the NCIS was working with the local police and the FBI, and the FBI was present when the NCIS was questioning the defendants in at least one circumstance (it’s not clear for others). I’d suspect that the FBI agents or the Honalulu PD actually threw the cuffs on them.

        I’m not claiming that the Air Force wouldn’t have primary responsibility for cleaning up the site of the train wreck, but I think the FBI and local law enforcement would be who any non-law-enforcement civilians would see facing outwards. Outside of very exceptional circumstances, the military doesn’t roll in and ball up civilians.

        I realize that I’m starting to get into a lot of inference here. The reason I bring up the “assistance” in titles a lot is because that is consistent with the training I’ve had for “Defense Support to Civil Authorities” (DSCA), in which the trainers took special care to emphasize: “the civilians authorities will be driving the bus when you are off post.”

      • “I think the FBI and local law enforcement would be who any non-law-enforcement civilians would see facing outwards. Outside of very exceptional circumstances, the military doesn’t roll in and ball up civilians.”

        I think the escape of an apparently dangerous alien being transported by the military would count as exceptional circumstances. The alien is essentially military property, and the military can and has searched and arrested civilians for stealing military property. United States v. Banks, 539 F. 2d 14 (9th Cir. 1976). Like Chon, the Banks case rested partly on military regulations authorizing the military action.

        But anyway, the issue is what the limits are. One can’t say “well, the Chon case was a mundane law enforcement assistance case, therefore the military can go no further.” Legal reasoning says “the Chon case and others admit deference to military regulations regarding what suffices as ‘an independent military purpose,’ and those same regulations seem to cover what happened in Super 8.” It would be nice to have a case directly on point, but there doesn’t seem to be one.

        In sum: yes, the military is ordinarily pretty deferential toward civilian law enforcement (and appropriately so), but it doesn’t necessarily have to be in a case like the one presented in the movie.

      • Mr Daily,

        I’ll defer to you, since you’re actually a lawyer. But I will say that legal or not, the plot doesn’t ring very true as to how this situation would actually be handled, based on my experience with how the military expects its personnel to interact with civilian law enforcement. Of course, I’m also a product of this decade, and maybe it was difference back in the late ’70s.

        I suspect it’s more a case of them not doing the research, since most of the military-only scenes (like the battle at the end) were all kinds of wrong.

      • “But I will say that legal or not, the plot doesn’t ring very true as to how this situation would actually be handled, based on my experience with how the military expects its personnel to interact with civilian law enforcement.”

        And here I happily defer to your expertise. It is sometimes the case that the best we can say about a movie, comic book, or TV show is that the characters’ actions are theoretically legal under a plausible interpretation of the law. Realistic, believable, politically feasible, etc…not so much. I think Super 8 is one of those cases, at least as regards how the military handles the escaped alien.

      • TV show is that the characters’ actions are theoretically legal under a plausible interpretation of the law. Realistic, believable, politically feasible, etc…not so much

        I guess this is where I’m going off the rails. I know what the military tells its own non-legal personnel what the law says. I didn’t allow for what they could possibly say to a court, and that the two might differ substantially.

    • There are many ways in which a dishonorable discharge does not count as a felony conviction. For example, Louisiana denies the vote to imprisoned felons but allows the dishonorably discharged to vote, so long as they are otherwise eligible. Maybe I’m looking in the wrong places, but I can’t actually find any hard evidence that any state denies the right to vote to the dishonorably discharged. The best I’ve found is that New York does it if the discharge results in loss of citizenship but that seems obvious.

      Federal law does prohibit the dishonorably discharged from owning firearms, but that’s true of a lot of people who aren’t felons (e.g. people who have been convicted of misdemeanor domestic violence crimes). 19 USC 922.

  2. Posse Comitatus is indeed an issue–one we’ve talked about elsewhere–but because what was going on here was less a law enforcement operation than a cleanup of sensitive military equipment, I think they’re probably in the right of it. For example, compare the Goldsboro B-52 incident, where an Air Force bomber with a pair of nuclear warheads crashed in a North Carolina tobacco field. Pentagon personnel were on the scene almost immediately, and I highly doubt they told anyone local what was going on. The military cannot “arrest” “trespassers,” but MPs can most definitely detain anyone interfering with a military operation, which this was. I do not see this implicating Posse Comitatus, as this was a military operation, not an attempt to enforce existing law or otherwise enforce civil order.

    Though you’re right: it probably would have made sense to interface with local law enforcement rather than shutting them out completely. One wouldn’t need to tell them the truth, but like the fake wildfire, there’s no reason to think that they couldn’t have come up with some plausible explanation to keep people out of the area. Say, for example, that the train was carrying chemical weapons scheduled to be disposed of, and they weren’t sure that the container was still intact. Everybody leaves, no harm done.

    Also, I’m not completely sure that a dishonorable discharge “counts” as a felony. It certainly shows up on a background check and will raise all sorts of red flags, but I don’t think it makes you a felon per se. You also misunderstand the meaning of “General Court Martial.” It has nothing to do with rank. A general court is distinct from a “Special Court Martial” or “Summary Court Martial” in that it can impose the death penalty and dishonorable discharge. Special and summary courts can’t impose those penalties under most circumstances, and summary courts are for enlisted men only. As Woodward’s commanding officer, I’m pretty sure Colonel Nelec would have had the authority to initiate a general court martial, though if there are any JAG officers amongst the readership, I’d welcome their input.

    • Ryan,

      After a bit of research, you could be right about Col. Nelec having General Court Martial Convening Authority (GCMCA). According to the Uniform Code of Military Justice Art 22(a)(7), a GCMCA can be “the commanding officer of an air command, an air force,
      an air division, or a separate wing of the Air Force or Marine Corps;” I guess that Wings are led by colonels. I made the mistake of assuming equivalence with the Army, where it is virtually unheard of for less than a division commander (two-star general) to have GCMCA. I wouldn’t be surprised if as a practical matter the AF has generals as GCMCAs, just for the logistics of the trial, but I’ll concede that. I don’t know if Col. Nelec was actually a wing commander, since he was apparently wearing the insignia of a command (I couldn’t tell which one), but I don’t know how the AF patching system works.

      As far as a dishonorable discharge “counting” as a felonly conviction, that one I’ll stand by, with a caveat. I probably stated it badly, in that a DD *itself* doesn’t count as a felony conviction. The conviction by a court-martial that imposed the DD counts as a felony conviction, though. That one I got right from a JAG major. Even special courts-martial will show up, though I think those show up as misdemeanors. But if you get a question on a job application of “Have you ever been convicted of a crime?” you need to check “Yes” if you’ve been convicted by a special or general court martial, even if you haven’t been kicked out of the military (bad conduct discharge, dishonorable discharge, or dismissal).

      Either way, these things aren’t handed out administratively like general or other-than-honorable discharges. You actually have to be convicted of a crime to get them, and serious crimes to boot. Courts-martial at any level are a supreme pain in the ass for the commands involved–you have to supply the personnel for the panel [jury], as well as the bailiffs, on top of the fact that most witnesses are probably from your command and won’t be coming in to work. GCMs aren’t convened unless it’s something they want to put you in prison for longer than one year for. If all they want to do is kick you out, they’ll just convene a special court martial, which can impose a BCD.

      • Ryan Davidson

        I’ll grant your analysis of the legal procedures for getting a DD, but here’s the thing: the movie implies that Nelec pulled strings to get Woodward drummed out of the service without a pension and that this was done more-or-less off the books and improperly. I doubt Woodward was afforded access to counsel, or if he was, his attorney was likely in collusion with the authorities. So the whole thing was probably illegal, even by the admittedly spartan standards of the UCMJ. However it happened, Woodward got screwed so it’s unlikely that Nelec bothered with much in the way of procedure.

        On top of that, Nelec didn’t want any attention being drawn to his operations, so it’s possible that he had the entire record sealed. Again, a DD is a punishment reflecting you’ve been convicted of something. It seems plausible that whatever fabricated conviction would be part of that sealed record, so anyone running a background check might not even find it.

        Still, it would probably have been more effective for Woodward to have been depicted as a local crank, maybe even the guy who got the kids into filmmaking, rather than a high school science teacher, as even the presence of a DD without any background information would make a school district pretty leery about hiring someone.

      • Ryan;

        I’ll grant your analysis of the legal procedures for getting a DD, but here’s the thing: the movie implies that Nelec pulled strings to get Woodward drummed out of the service without a pension and that this was done more-or-less off the books and improperly.

        Can’t really be done – separating a service member takes all manner of paperwork, paperwork that’s going to be difficult to forge, and the act difficult to hide. The acts of the Court are subject to review and appeal, etc… etc…

        On top of that, Nelec didn’t want any attention being drawn to his operations, so it’s possible that he had the entire record sealed.

        Can’t be done. You *can* insert pages into the service record noting the transcript of the Court is and the cause for discharge is classified – but you can’t seal an entire service record or just leave the cause for discharge blank and required pages/entries missing. People are going to notice. (My own record, for example, notes a classified school I attended simply as “Classified Course 06 MAY 1985 – 17 MAY 1985 Completed Satisfactorily”.)

        There’s a widespread belief that the military can just stamp “classified” on something and thereby just do whatever without regard for normal procedures – but it just isn’t true. Heck, we used to order Top Secret equipment that required armed guards, signature custody, and constant surveillance on the same forms we used to order ketchup or pencils – the handling procedures for the forms were different but they were the same forms.

        (Former USN submariner/strategic weapons tech)

      • DerekL,

        I think you stated best what I was trying to get at: classification doesn’t halt normal bureaucratic and legal procedures. In classified environments, you do almost exactly the same things you do in an unclassified environment, you just can’t talk about the details with people outside the circle of trust. The same people that usually jack you up for misconduct on the unclassified side–inspectors general, the GAO, the FBI, Congressional committees, and your chain of command–have security clearances too.

        I’ve only got a SECRET clearance, so I can’t personally speak to what goes on at the real secret squirrel levels, but I’m under the impression that its mostly the same thing. I’ve heard some of the SF guys will get away with some stuff that dances on the line of misappropriation, but I don’t know if they get away with it any more than regular Soldiers do. I think it’s a function of they just have less oversight in general, rather than classification per se.

      • Ryan Davidson

        Look, Woodward was working for a project which probably didn’t officially exist. I’m pretty comfortable asserting that the various black ops agencies of the DoD probably do things which are completely outside the legal system, military or civilian, and would be completely illegal under even a cursory analysis of either system. If you’re working for a program that even the President may not be aware of… I’m not that sanguine about your ability to get something even approximating due process should they decide they’re done with you.

        But even if they did decide to have a real general court martial, the prosecutor, the judges, and the defense attorney are all going to be officers. It may depart from the normal legal process to have all of those officers be in on the railroad job, but I’m pretty confident that if someone wanted to make that happen, they could. Sure, it would be illegal, but that doesn’t make it implausible, and as we’re dealing with a person who does casually murder people, I think screwing the paperwork is the least of his concerns.

      • …various black ops agencies of the DoD probably do things which are completely outside the legal system, military or civilian…

        To the enemy, maybe, but their own personnel are still in the military, and even black ops units are part of the government bureaucracy and float on the same sea of paperwork. It doesn’t matter if you’re the newest private in the Army or the crotchetiest old man in a black project, getting your pay stopped (part of getting you kicked out) will take the exact same forms, to the exact same people.

        Like I said, I’d believe that they could have killed Woodward (like they eventually did). That’s the type of criminal conspiracy that’s relatively straightforward to conduct and doesn’t require personnel outside of your black project, and just like the cops murdering somebody, they can make up some story to cover it up. But fabricating an entire legal process is going to be another matter.

        Getting him railroaded would pretty much take the form that you’d see in the civilian side, either a frame-job, with maybe some bribery to the judge, and roughly the same chances of getting caught. These things get appealed just like those on the civilian side, automatically in the case of a punishment including a dishonorable discharge. But it sounds more like you’re saying they had a judge, trial counsel (prosecutor), defense counsel, 12-member panel (jury), judges from the Air Force Court of Criminal Appeals, and judges for the Court of Appeals for the Armed Forces all sit down in a room and agree, “Okay, we’re going to write up a fake proceeding, sign our names to it, and send it to the G-1, pay office, and National Archives.” I’m saying that a lot of these people have exactly zero reasons to go along with that.

        As far as the defense counsel goes, you can have counsel at military expense, which is provided by trial defense services, an organization that sits outside the chain of command, or you can hire an attorney at your own expense. It’s not significantly different from the way Public Defenders work on the civilian side, and just like in civilian courts, the judges both at the trial and appellate level are going to have problems with telling the defendant that he had to have a particular attorney from the PDs office.

        None of this means that the system is perfect, or that injustice doesn’t happen. Just like civilian courts, the system makes mistakes. But they’re the same mistakes and injustices you see in the civilian courts.

        The military justice system has some procedural differences–nonunanimity for a verdict being the most obvious–but defendants have due process rights just like on the civilian side. It’s not impossible, in that it violates the laws of physics, for a moustache-twirling villain to create a sinister conspiracy against a particular defendant that runs up the entire justice system from trial jury to Supreme Court Justices on the civilian side, but it strains credulity. And it’s not much more likely on the military side.

        All of this is unnecessary, as well. We know that Woodward was enlisted and not an officer–officers don’t get dishonorable discharges, they get dismissals. Therefore, separating Woodward for misconduct probably wouldn’t have gone up to the general officer level. Nelec very likely had the authority to give Woodward a general discharge and get him out of his hair (an other-than honorable takes a board). Sure, Nelec may have been vindictive enough to want to deny all VA benefits to Woodward, but vindictive enough to actually go through the trouble and expense to do so? Unless Woodward was actually guilty of a crime and deserved the DD, probably not.

  3. Chakat Firepaw

    “We don’t learn exactly why, and it seems likely that Joe’s dad was simply overreacting, as there doesn’t appear to have been a crime involved in that scene.”

    Given that there was a disturbance, the obvious charge at the scene would be “disturbing the peace”. It’s not like that isn’t used in RL as a catch-all for when a cop doesn’t have a real reason to arrest someone but wants to run him in[1]. Yes, the charges are almost always dropped but that’s after you’ve hauled him off in cuffs.

    [1] There’s a reason people like Ed Brayton and Randy Balko call it “contempt of cop”.

  4. Ryan,

    First off, the standards of the UCMJ aren’t *quite* that spartan. These are actual courts with real live judges, the ability to subpoena witnesses, and everything.

    What you’re proposing is equivalent to a US District Attorney simply bypassing the courts and putting a conviction on somebody’s criminal record (and, I screwed up in drafting my previous post–when I was talking about a court-martial “showing up,” I meant that these will show up on your criminal record when someone does a background check). Mr. Daily can chime in here, but my understanding is that to take the law as we find it, and not posit an extra-legal conspiracy without it being part of the plot. Besides, I doubt a colonel would have the pull with all the people necessary to make that work, even if there was a conspiracy. O-6s have a lot of power over the personnel under their command, but I doubt he’s going to be able to go to the DOJ and his higher headquarters staff to have a “secret conviction” put on someone’s records. Those people are going to have some questions, and the security clearances to hear the answers. As far as denying Dr. Woodward counsel, the military judge is also going to have some serious questions, especially since military lawyers, as officers, have to have at least a SECRET clearance and they can probably find one with a TOP SECRET clearance.

    There are several kinds of discharges in the military, three administrative (can be done by a commander or board) and two punitive discharges (can only be given out by a court):
    Administrative:
    Honorable Discharge–the default, if you don’t have any deleterious information.
    General Discharge–you departed from the standards of service in some way.
    Other than Honorable (OTH) Discharge–you really screwed up, generally committing a crime. Often done when somebody was convicted by a civilian court and can’t come to work because he’s sitting in jail, or given out “in lieu of court martial” if you’ve committed a crime that isn’t too serious, or have a pattern of misconduct–like I said before, the military prefers to avoid courts-martial whenever possible, due to the impact on operations.

    Punitive:
    Bad Conduct Discharge–given out by a special or general court martial as part of a sentence for conviction of a crime.
    Dishonorable Discharge (or a dismissal for officers)–given out by a general court martial as part of a sentence for conviction of a serious crime. Note also that you rarely get this one without a jail sentence as well, since the crimes for this are usually pretty serious by military standards.

    So if Dr. Woodward got a DD, that means that he was convicted of a crime. It’s also not hard to imagine, given the plot of the movie and what we know of Dr. Woodward, that he was actually guilty of a crime under military law. Even if he had a problem with how the alien was being treated, he still had to come to work, and unless what he was ordered to do was illegal*, couldn’t refuse to continue to do his assigned job. In the interests of time I’m just rattling down the chart of maximum punishments in the Manual for Courts Martial, and recalling the elements of the crimes from memory, so you might be able to sharpshoot some of these (MCM is here, 6.5 MB pdf: http://www.apd.army.mil/pdffiles/mcm.pdf):
    Art 82, Solicitation to desert, or mutiny (separate crimes)–Woodward went around trying to get other personnel in the command to either walk out, or to conspire to refuse to work. Max punishment is DD + 3 yrs confinement for solicitation to desert, DD + 10 yrs confinement for solicitation to mutiny.
    Art 85, Desertion (though see Art 86 below)–Woodward walked off of his job, with intent to never return (hard to prove, and it’s much easier to prove the lesser included offense of absent without leave) DD + 3 or 2 yrs, depending on whether he came back willingly or his desertion was terminated by arrest.
    Art 86, Absent without leave–Woodward walked off his job for more than 30 days, but didn’t intend to stay away permanently. DD + 1 yr or 1.5 yrs, again depending whether or not he came back on his own.
    Art 90, Assaulting, willful disobedience of superior officer–There’s a whole host of different crimes in here, but Woodward refused directly to carry out a lawful order from an officer, and maybe got into a physical fight as well. DD + 10 yrs if he assaulted an officer, DD + 5 yrs if he just refused an order.
    Art 108, Willfully destroying or losing military property over $500.00 in value–Woodward damaged equipment to prevent it from being used against the alien. DD + 10 yrs.
    Art 80, Attempts–Woodward attempted (i.e., made an overt act) to do one of the above, unsuccessfully. The punishment is the same as the attempted crime.

    There’s also some other possibilities, but they’re somewhat less likely to be the ones that he committed:
    Art 94, Mutiny–Woodward and other personnel together refused to obey orders. DD + death or confinement or life. This one is serious enough that Woodward probably wouldn’t be a free man in time for the movie.
    Art 96, Releasing a prisoner without authority or suffering a prisoner to escape through design–Woodward either lets the alien out of its cell, or engineers its escape. If he did this one, I’m assuming the military caught it again, or he failed but got convicted of Art 80, as above. This one is unlikely, since charging Woodward on it would allow his defense to argue the uncomfortable question of whether or not the alien counts as a “prisoner,” and therefore whether its confinement is illegal. DD + 2 yrs.

    I guess where I’m going, and the thing that frustrates me, is how movies tend to blow off just how serious it is when somebody has a dishonorable discharge. They’re treated in fiction as if they’re handed out like candy, where in real life they are given out by courts as punishment for serious crimes, the kind you spend years in prison for.

    (*The way you find out if an order is illegal or not is to refuse it, get prosecuted, and see if the judge agrees with you.)

    • Ryan Davidson

      my understanding is that to take the law as we find it, and not posit an extra-legal conspiracy without it being part of the plot

      It kind of is. The way the story is told, Nelec basically had Woodward drummed out of the service, and at least the way I took it, this was done unjustly. Nelec would probably have simply been carrying out the orders of his superiors. You’re right: he’s just a colonel. But he’s working on a very top secret project, one which presumably gives him direct access to people who could suppress something like this. And we don’t need to make up a government conspiracy: the whole movie is premised on the existence of one.

      But I agree that the movie does treat the DD rather cheaply. It’s not at all clear that they understand the implications of the term, and I think it makes the story work better if they fudged the term rather than assume that Woodward actually got a real DD.

      • The way the story is told, Nelec basically had Woodward drummed out of the service, and at least the way I took it, this was done unjustly.

        And we don’t need to make up a government conspiracy: the whole movie is premised on the existence of one.

        I can agree on getting someone drummed out unjustly–in a high-importance program run by a secret unit, it’s probably much easier to get someone discharged with less bureaucratic headaches. I could very easily believe Col. Nelec giving out an administrative discharge with thin justification. That’s well within the believable power of an O-6. I could even believe the murder of Woodward, which is definitely a criminal conspiracy–Nelec and a single NCO just give a prisoner the needle. That only takes two people, and Nelec could keep word of his capture within his own circle. But fabricating an entire legal proceeding to dishonorably discharge someone is well beyond a colonel, and even very senior generals probably won’t try due to the real possibility of it blowing up in their faces. There’s just too many people involved, including civilian judges on the Court of Appeals for the Armed Forces, and despite the fictional hype, defendants in courts-martial have very real rights. I’ve heard, but don’t have the knowledge to know if this is true, that some of the rights (sentences under plea bargains, the use of confessions, and rights against self-incrimination) are more extensive than those provided for civilian defendants.

        Regardless, I think we agree that the DD is treated cheaply. I don’t think you can explain it away, since the kids were prettly clearly reading off of paperwork and wouldn’t have the knowledge to fudge the term themselves. Like I said in a comment above, the battle scenes were far more unrealistic than the legal issues, so the DD is pretty small potatoes. Overall, though, I am glad I saw the movie. It was enjoyable, plot holes aside.

  5. RE: the discussion above.

    Not to butt in on the rest of the comments section, which I read with almost as much enjoyment as the actual article, but I think that the biggest issue here is Colonel Nelec had a civilian executed without any semblance of due process whatsoever. I’m pretty sure that Colonel Nelec was acting on “higher” authority or “apeturd crazy.” Those aren’t legal terms I know, but it seemed obvious to me that Nelec was acting outside of the general legal system either with government authority or out of his own crazy desire to have the giant angry version of ET.

    Either way good movie and a good article and a good discussion.

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