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?
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.
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.”).
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.