Superman, Kryptonite, and Treason

Today we’re continuing to clear out the mailbag, this time with a question from Jon, who asks about the 2008 Superman/Batman story arc “The Search for Kryptonite” (now available as a trade paperback):

[In the story], a Kryptonite meteorite has landed, making the element common all over the world. People are putting it in jewellery, using it as paperweights – it’s everywhere. Superman decides that the only way he can be effective as a hero is to gather it all up and get rid of it, arguing that people die when he’s incapacitated. “I can only save as many people as I can be there for.” What right does Superman have to do this?

Aquaman calls it arrogance, when Supes and Batman are collecting a large chunk of green K from the seabed – “You do as you will, and expect people to thank you for it”. Amanda Waller calls it treason, when they break into a government facility to take K-based weapons (a multi-billion dollar facility specifically created to stop Superman, should he go rogue) – “You boys justified the need for this facility the minute you broke into it”.

There are two aspects to this question: first, does Superman have any right to go rounding up kryptonite and second, did Superman and Batman really commit treason?

I. Self-Defense?

The answer to the first part is “no,” for two reasons.  First, Superman isn’t in any imminent danger from the vast majority of the kryptonite, so self-defense doesn’t apply (and thus defense-of-others doesn’t apply to Batman’s actions either).  Second, like everyone else, Superman doesn’t have a general duty to prevent crime or rescue others.  Thus, although an abundance of kryptonite may be unfortunate for both Superman and the general public, it isn’t interfering with a legal obligation and so Superman can’t really claim a legal right to remove the kryptonite.  Even if he could, his remedy would be in court, not taking matters into his own hands.

II. Treason?

The answer to the second part is also “no and yes.”  While Superman and Batman no doubt broke multiple federal laws by breaking into the Last Line facility, it couldn’t have been treason for Superman, though it might conceivably have been for Batman.

In the US, treason is defined by the Constitution thus: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. art. 3 § 3 (emphasis added).  That ‘only’ means that Congress has no power to redefine treason.  “This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb ‘only.’  The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.”  Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943).

Arguably, neither Superman nor Batman has levied war against the United States.  Levying war requires that “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.”  Ex parte Bollman, 8 U.S. 75, 126 (1807).  I’m not sure how many men it takes to make “a body,” but I suspect it’s more than two.  Otherwise any two people who committed or intended to commit a violent crime against the United States could be charged with treason.

That leaves adhering to and giving aid and comfort to the enemies of the United States.  The problem is that the only possible enemy aided or comforted here is Superman himself.  And if Superman is an enemy of the United States, then it stands to reason that he cannot owe the United States a duty of loyalty and thus cannot commit treason.  If there were some larger entity that Superman was assisting (e.g. a Kryptonian separatist group), then that would be different, but as it stands he appears to be the only direct beneficiary, which makes it difficult to call him a traitor rather than a run-of-the-mill self-interested criminal (albeit one with superpowers).

The same cannot necessarily be said of Batman, however.  If Superman is an enemy of the United States (as proven when he broke into a military base), then Batman is arguably committing treason by helping him.  “Aid and comfort” are read very broadly, and includes “an act which weakens or tends to weaken the power of the [sovereign] and of the country to resist or to attack the enemies of the [sovereign] and the country.” Cramer v. United States, 325 U.S. 1, 29 (1945) (quoting Lord Reading in the Casement trial).  Since the Last Line was created specifically to defend against a possible rogue Superman, helping Superman destroy that facility seems like a pretty clear example of “weakening the power of the United States to resist or to attack the enemies of the United States.”

Superman’s citizenship is not an issue, by the way.  One does not have to be a citizen to commit treason; even a resident alien owes the United States a kind of loyalty, and Superman is definitely at least a resident alien (if not necessarily a lawful one).  See Carlisle v. United States, 83 U.S. 147, 154 (1872) (“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.”).

III. Conclusion

So is Superman just completely hosed here if he wants to follow the law?  Not necessarily.  At a minimum, he could keep his Clark Kent alter ego safe by claiming to have developed a kryptonite allergy.  This would probably qualify as a disability under the Americans with Disabilities Act, with the result that the Daily Planet (or at least the part of the office where Kent works) would become a kryptonite-free zone.  Since there’s no real need for kryptonite there, that seems like a reasonable accommodation.

This may seem like a pretty poor consolation, but on the other hand Superman’s kryptonite-resistant “K-suit” managed to survive a pretty severe beating before giving out, so he’d probably be able to continue fighting crime effectively.  He’d just have to be a bit more careful.

31 responses to “Superman, Kryptonite, and Treason

  1. Because I have not read the story I am forced to ask, how is it not an imminent danger? Generally Kyptonite is depicted as being extremely dangerous for Superman and if the material is common across the entire planet it seems hard to believe that he could safely travel even to work without running a serious risk of exposing himself to a hazardous material.

    • Imminent generally means “right then and there.” Relatedly, in some cases the act of self-defense must be necessary (or reasonably necessary), which implies that there is no reasonable alternative. In Superman’s case there are reasonable alternatives (e.g. the K-suit, reasonable accommodation at work).

      Self-defense doesn’t apply to just any threat. Generally it must be at least negligent if not intentional (depending on the nature of the threat posed), so self-defense may not apply at all. Most people do not intend to harm Superman / Clark Kent by wearing kryptonite jewelry or whatever. It’s not even clear that their actions would count as negligent, since almost no one is particularly sensitive to kryptonite and Superman’s secret identity is, well, a secret.

  2. Let’s turn this around a bit.

    What if, instead of Superman trying to forcibly solve the problem, he simply stopped fighting crime because one too many crooks wore lots of green jewelry that made him powerless against even a simple bank heist? Could local, state, or the federal government reasonably outlaw kryptonite without a license, on the grounds that Superman’s voluntary efforts made such a difference that making him better able to do so by limiting the possession and use of the one material that could render even the lowliest thug immune to the Man of Steel?

    Or would this fall under the Second Ammendment, since it can be argued that Kryptonite is a for of “arms” against a very dangerous potential threat?

    (Obviously, this would be more a Silver Age plot than a Bronze or Dark age plot; only in Silver was the government actively supportive of superheroes.)

    • Kryptonite is radioactive and potentially poses long-term health threats to regular people, so I think it could be regulated. Yes, it’s potentially a weapon, but then so is a hunk of uranium or a bullet made of plutonium. One problem is that, although the government might help round up private stocks of kryptonite, it’s unlikely to part with its own, so it’s not a complete solution from Superman’s perspective.

      I don’t think it would make a difference that it’s the only effective weapon against Kryptonians; powerful explosives are (just about) the only effective weapon against a tank, but that doesn’t mean people can own high explosives without a license.

      • It’s a radioactive material; in many states, possession of any significant amount requires a license. In effect, it may already be regulated.

        Additionally, there’s some (post-Crisis) suggestion it’s actually a mineral with significant plutonium content; if it’s fissionable, or readily refined to be fissionable, it’s would be more strongly regulated still.

    • TimothyAWiseman

      James Daily answered most of this beautifully, but there is one thing I think is worth expanding on a bit.

      You mentioned the States as well as the Federal governments. States are generally considered to have plenary authority (within Constitutional limits) and have broad police powers (used in the political science sense of meaning the capacity to regulate for the improvement of general welfare, morals, health, and safety). The individual states could ban it in order to support superman or based on just about any justification they cared to come up with.

      The takings clause might, depending on how the states implemented their ban and how courts interpreted it, require that the states provide some compensation for the taking of this property that is already owned, but that is a minor impediment.

      Of course, as James pointed out that is far from a complete solution from Superman’s perspective. Even if all 50 states passed laws banning it, there could still be stockpiles held by Federal agencies.

  3. Why the government didn’t outlaw Green Kryptonite is an unknown, considering it’s a known radioactive substance; Lex Luthor had to have his hand amputated due to cancer thanks to wearing the Green K ring constantly.
    As for treason, Amanda Waller is usually considered to be somewhat above the strict definition of the law. Using a black budget, she has little to no oversight on what her group does. Therefore while not within the bounds of the definition of treason, she could have them targeted as violating or endangering National Security.

    • She could try, but considering that she was (briefly) imprisoned when her actions became known I don’t know how much legal authority she has.

    • TimothyAWiseman

      “Why the government didn’t outlaw Green Kryptonite is an unknown, considering it’s a known radioactive substance”

      Just to be clear, not all radioactive substances are automatically regulated and not all regulation makes the substance hard to get.
      Most bananas have enough of the radioactive isotope of potassium to set off a Geiger counter. Radium used to be used on some watch dials. For that matter Carbon-14 is mildly radioactive and is present in various degrees in most living things. Tritium, though regulated by the NRC, is readily available (in small quantities) and has many uses. Americium-241 is used in small quantities in many smoke detectors.

  4. Wait a minute, there are still a few legal issues here.

    One, Amanda Waller turned some soldier into a K-fueled version of Doomsday, which just about wiped Smallville off the face of the Earth, and she barely gave a fig about it. Furthermore, this soldier had volunteered after being given the false-impression that he was signing up for a biological weapon immunization program.

    Two, Lana Lang, the then-CEO of LexCorp, actually filled Earth’s atmosphere with an airborne version of Kryptonite, which would have forced Superman, Superboy, and Supergirl to have left Earth if not for the timely intervention of Toyman.

    What are the legal implications of these?

    • The legal implication is that the All-American Boy project was pretty patently illegal as well as unethical. We usually don’t address issues like those because a laundry-list of crimes doesn’t make for a very interesting post, at least not when the behavior is obviously wrong.

      As for the latter: that’s also almost certainly illegal. Airborne kryptonite sounds like a pollutant, so that’s a problem, and she almost certainly knew that there were Kryptonians who would be affected, which is also problematic. Was this done for some particular purpose?

      • Well, it’s a bit complicated. After Supes and Bats found out from Waller that LexCorp had sold them the Kryptonite weapons being utilized by Last Line, the duo confront Lana about it. Well, Superman confronts Lana, while Batman breaks into LexCorp’s basement or something.

        Anyhow, Lana/LexCorp has installed dozens of facilities all over Earth which would release this airborne Kryptonite (something like a bunch of “dirty bombs”), another back up established should Big Blue go rouge. Superman demands that Lana turn over all of their Kryptonite to him and Batman, but Lana says that she’ll press the big red button on her desk which will release it all if he doesn’t back off. And she does.

        All ends happily, but now what?

      • Perhaps a touch off topic, but…why is Lana suddenly AGAINST Superman? Hasn’t she typically been on good terms with him despite being his ex girlfriend?

      • Like I said, it’s a bit complicated. I don’t remember all the details, but I think LexCorp would have gone out of business or something if she gave Supes all of the Kryptonite, thus putting thousands of people out of a job. Yeah, Lana is concerned about that kind of stuff.

  5. You’re forgetting General Zod, who was demonstrably hostile to the U.S. government. By depriving the U.S. government of its Kryptonite stock, Batman has actively aided an enemy of the United States. Batman belongs in Leavenworth (at best!)

    • Surely intent enters into play there. I find it hard to believe one could be negligently treasonous?

      • James Pollock

        Legally speaking, intent doesn’t mean what a lot of people think it does. To satisfy the intent element of most crimes, you don’t have to intend to break the law, you have to intend to do the act which breaks the statute. In destroying/capturing the Kryptonite, Batman wanted to help Superman, but legally speaking, his intent was to destroy or capture the Kryptonite, which seems to me to fit the definition of treason… he’s given aid and comfort to General Zod (and however many other rogue Kryptonians have appeared in the thousands of Superman comics down the years… I’m not a Superman guy, I probably wouldn’t know about Zod if he hadn’t been in the second movie.)
        His defense will argue that Zod was depowered and put back into the phantom zone… but he broke out once, and he might break out again. When he was here, he made clear his intentions with regards to the existing nation-states of Earth… unlike Superman, he hasn’t sworn to defend truth, justice and the American Way.
        There’s also the danger of Superman under the influence of red Kryptonite (I think that’s the one).
        And, for the Super-fans out there, is Kryptonite effective against Bizarro?

      • There does have to be an “intent to betray.” “[A] citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” Cramer v. United States, 325 US 1, 29 (1945). So the intent requirement goes not only to the actions taken but also the reason why: they must have been done with the intention of assisting the enemy, knowing that it was an enemy (i.e. betraying the United States in favor of the enemy).

        In this case I think Batman is not only “diminishing our strength” but doing so out of adherence to the enemy (i.e. Superman). I think it’s nonsensical to charge Superman with treason because he adhered to himself, but if he had destroyed the Last Line in order to make the world safe for other Kryptonians (rather than just himself) then that would have been a problem.

      • @James Pollock
        I realize intent more often means intent to do whatever it is you’re doing that winds up having negative consequences, rather than intent for the consequences, but just from a common sense standpoint that falls apart with treason. Else every murder of a member of the armed services would automatically be a treason case, just to touch the tip of the iceberg. It’s still a crime (and I’m not in any way trying to say what they did isn’t), I just can’t see Zod entering into it on making a treason charge. Mr Daily’s assessment that Batman would only face treason charges if Superman is considered an enemy of the US, and that Superman can’t, certainly seems the most reasonable.

        @James Daily
        Does Superman’s state of mind enter into whether he would be considered an enemy of the US? I’m sure he would argue that he is a greater asset to the security and peace of the nation than a stockpile of kryptonite weapons would be, and thus was only doing what he felt necessary to continue to be that asset. He certainly doesn’t want to overthrow the government in any sort of broad sense (Luthor presidencies aside, but even then he has generally refrained (Justice Lords aside)).

      • You have to be careful here; is it treason to sabotage US nuclear weapons on the belief that the US’s nuclear arsenal is more of a threat to the US than it is to her enemies? I think it probably still qualifies as treason, since it gives aid to those who might be deterred by our own nuclear capability and the US government currently considers such deterrant to be at least somewhat in our national interest.

      • TimothyAWiseman

        @Segev No, I do not think that would be treasonous if the intent was part of some conspiracy to rid the world of all nuclear weapons. It would definitely constitute a whole list of other crimes, but not treason.

        Historically, charges of treason were overused by certain governments to be able to lock up just about anyone they did not like. The Drafters went out of their way to prevent that by specifically defining treason within the Constitution (Article III).

        James Pollock is quite correct that you have to intend the act, not necessarily to break the law. But a certain mens rea with intent is still required, and for treason of this sort that means you have to have intent of something along the lines of waging war or deliberately giving assistance to its enemies. In a case like that, the intent would probably not be found.

        Also, as a practical matter the US has been fairly reluctant to levy treason charges when other charges are obvious, especially when not tied in an obvious way to a war. Some of the acts for which a treason charge has been levied successfully (see Kawakita v. United States or the Tokyo Rosen Iva D’Aquino case) would have been relatively minor outside the context of a war. But they generally were tied directly to a war and in some way showed an apparent disloyalty to the United States as well as aiding the enemy in the war.

      • James Pollock

        Trying to find a real-world analogy here is tough. After thinking about it all day, this is the best I could think of: Suppose an environmental activist sabotaged distant early warning radar installations because the radiation was harming migratory birds, not just taking them temporarily offline but rendering them permanently inoperative. The intended beneficiary is clearly not a foreign power, but a foreign power can definitely be shown to have benefitted directly.
        This, I think, is the closest parallel to Batman breaking into a government defense facility and destroying/capturing the entire supply of Kryptonite. Now, a prosecution for treason is unlikely unless someone shoots missiles over the pole, just as Batman would probably escape prosecution as long as Zod stays in the phantom zone. But the first rogue Kryptonian that shows up and ravages the U.S., whether it’s Zod, or red Kryptonited Superman, or some Kryptonian refugee not currently known to exist, is going to turn public opinion against Batman pretty quick (unless, of course, Batman has a stash of Kryptonite himself, which I would bet he does.)
        Sabotage of defense installations is what we tried to avoid by interning all the Americans of Japanese descent during WWII… this is a different class of offense than making a speech critical of the government or even striking in a defense industry. Batman’s actions were described as not just temporarily removing the government’s ability to subdue Kryptonians, but permanently depriving the government from being able to do so. Since Batman KNOWS there are Kryptonians who are hostile to the U.S. government, I don’t think he can skate on intent… he DID mean to deprive the government of its only defense against a known threat to the United States.
        (Frankly, I don’t see it as in character… I can see Batman helping Superman take Kryptonite away from bad guys… this was, if I recall, the reason they originally teamed up… but I don’t see Batman raiding a government installation. It’s just not his style.)

      • In Batman’s defense, I think Amanda’s group are oft portrayed as villains who happen to abuse governmental power to hide behind the law.

  6. No, Kryptonite of most colors did not work against Bizarroes, though there used to be an exception. Look, I have not lost my love of comics, but with the thousands of universes around I am not sure about the current main universes of DC and Marvel, which have both been destroyed.

    By the way, in the most current adventure of January Jones (the sister of professor Jones, the notorious archeologist), some US secret service chap offers at the end of the adventure a job and citizenship to a black African young man. Mind you led, led by el Toro Blanco they just escaped Civil War Spain into France. Could he legally do so? That´s Franco´s Civil War, Not Lincoln´s, by the way.

    Black young man concerned had no family, has shown resourcefulness, is familiar with some rather sensitive information and has no ties with US black population.

    • The Secret Service was part of the Treasury Department at the time, so maybe they could offer him a job, but I don’t think they’d have the authority to offer him citizenship. On the other hand, the part of the Secret Service that guards the President (which I’m assuming is the relevant part here) obviously deals with the President on a regular basis, so perhaps he was passing the message on from the President, who could have also instructed the INS (or a predecessor agency, depending on when this happened) to make allowances for him. As long as offering him citizenship wouldn’t violate the law (e.g. the quota for his country hadn’t already been reached or he was otherwise ineligible for citizenship), then I don’t think that would be a problem. If it would violate the law, then he’d need a private act of Congress, which the President couldn’t really offer.

      The Secret Service is now part of the Department of Homeland Security, which now also oversees immigration, so it’s a slightly more reasonable offer now. It would still have to comply with the law, of course, or else there would have to be a private act of Congress.

  7. I don’t know if this was in effect at the time of that particular story, but for a time in DC Comics, wasn’t Kryptonite considered to emit radiation hazardous to human beings? I vaguely recall a story where Luthor was dying of cancer or something because of his kryptonite ring.

    If that /were/ an aspect of Kryptonite in the story–Superman could prove it was actually hazardous to humans as well–would it change things?

  8. Similarly, in the animated series Luthor has been able to build a Kryptonite-fueled mini-nuclear reactor as a way to provide power for a reasonably-sized installation (as a way of tweaking with Superman of course). It’s clearly energetic enough to be used for power generation purposes, making it more and more likely to be regulatable by the Department of Energy under reactor material guidelines as well as a health hazard. I can’t guarantee, but Kryptonite-based nuclear weapons have been mentioned as a possibility but I don’t know if any have ever been built – if so the material would come under the effect of international treaties and be subject to inspection by the IAEA.

  9. @James: One minor correction to your post above. The U.S. Secret Service is no longer part of the Treasury Department. It was moved to Homeland Security in 2003.

  10. An issue that comes to mind if there’s a kryptonite meteoroid that deposited a huge amount of the stuff onto Earth: what we’d get from that wouldn’t just be boulders and rocks, but lots of kryptonite dust in the environment and atmosphere as well. And I’m not just talking about from the impact (which I’d assume was ameliorated somehow, or the results would’ve been cataclysmic — I’ve actually read the story and seen the movie, but I forgot how it ended). Just the normal everyday handling of material objects has an erosive effect over time and creates dust. The more kryptonite there is in the world, the more K-dust there would be in Superman’s general environment.

    I often had this same thought about Smallville. According to that show, Clark Kent grew up in a town that was littered with kryptonite “meteor rock.” It was all over the place, practically everywhere he went. There even turned out to be a big chunk or two of it on the Kent farm when the plot called for it. The show never really addressed the ramifications of this. For Clark, it would’ve been analogous to a human growing up in a town littered with plutonium. There would’ve been kryptonite dust in the air and on every surface he touched. There would’ve been kryptonite in the water he drank. I often figured that was the reason Clark couldn’t fly in the show when every other Kryptonian could — because he was suffering from long-term systemic Kryptonite poisoning. I figure that by this point Smallville Clark is probably already dying from Krypto-leukemia or something.

    So back in the comics, it could be argued that the presence of so much kryptonite on Earth does pose a health hazard to Superman, Supergirl, or any other Kryptonian living there, and that could be treated as a valid reason to gather it up or regulate it.

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