Last weekend, Marvel’s blockbuster for 2012 came out in North America. The Avengers appears to be on track to shatter box office records both domestically and internationally, and with good reason: it’s an awesome movie.
In the next few posts, we’re going to discuss some of the legal background of various aspects of the movie. We’re going to start with how exactly S.H.I.E.L.D. could work, but there will be more to come in successive posts. There are spoilers to follow, though if you haven’t seen the movie by now, what are you waiting for? We discussed the basics of S.H.I.E.L.D. and international law over a year ago, so it might be worth taking a look at that before jumping in here.
There are two basic questions. First, what exactly is S.H.I.E.L.D.? In the comics the acronym has stood for a variety of things, and over time it’s been portrayed as both a national and an international force. In the Marvel Cinematic Universe— the continuity formed by Thor, Captain America: The First Avenger, Iron Man, Iron Man 2, and now The Avengers, it stands for “Strategic Homeland Intervention, Enforcement and Logistics Division,” which Agent Phil Coulson admits is a terrible name and is quickly abandoned from common use in favor of the acronym itself. The implication in the movies leading up to The Avengers is that S.H.I.E.L.D. is some kind of U.S. paramilitary force. The word “Homeland” suggests some connection with the Department of Homeland Security, and it would be somewhat weird for an international organization to have that word in title.
But it’s not really made clear, and in The Avengers, Samuel L. Jackson Director Fury is seen conversing with “The Council,” his superiors in the organization or perhaps simply the body that calls the shots. If it were a U.S. national organization, this might be something like the National Security Council, which does have certain powers already such as the authorization of what amount to assassination missions, unlike the Joint Chiefs of Staff, which has no operational authority. But the problem with that theory is that judging from their accents, The Council seems to be composed of members from several different countries, though their faces are obscured and no information about their identities is revealed on screen. So really, it could go either way, and the details of S.H.I.E.L.D.’s operations in the movie cut both ways.
Certain things would just work better if S.H.I.E.L.D. were a domestic force. For one thing, as we’ve discussed in the past, Congress’s draft authority is pretty broad. So broad that unlike, say, the Commerce Power, the Supreme Court has yet to find a limit on it. This is good for S.H.I.E.L.D., because neither Captain America (Steve Rogers) nor The Hulk (Bruce Banner) are given much in the way of options about their attendance. Rogers isn’t exactly shanghaied, as Banner is, but unlike Stark, who is basically coaxed into participating, when Fury comes to Rogers with a mission, he acts like he has the authority to compel Rogers to play ball. Given that S.H.I.E.L.D. doesn’t seem to be permanently conscripting these guys, in that they’re basically allowed to go their separate ways at the end of the movie, the fact that S.H.I.E.L.D. is “drafting” specific individuals isn’t as much of a problem. Again, there’s no obvious reason Congress couldn’t do this, and it’s being done in the least offensive way possible, so that’s good. Exactly how S.H.I.E.L.D. would do this if it were an international organization is entirely unclear. They’re all American citizens with the possible exception of the Black Widow (Romanov), but she says she was Russian, so who knows? The idea that an international organization can start drafting U.S. citizens is… problematic at best. The U.N. has no such authority, and it seems beyond all possibility that the Senate and President would authorize any treaty to that effect. So this would be an area where it would be better if S.H.I.E.L.D. were domestic.
Also, there’s the issue of the nuclear strike on Manhattan. There is no way on Earth that the U.S.—or any other country for that matter—is going to consent to the creation of any international body that can order a nuclear strike on its territory. Just not gonna happen. Especially since there are something like nine countries which we’re pretty sure have nukes, and one of them is Israel, which is even less likely to be okay with the idea of other people being able to nuke them than the U.S. is. So given that S.H.I.E.L.D. can authorize a nuclear strike at all, it seems like it ought to be a domestic force.
But there are a few things which go the other way. For instance, the group seems to have jurisdiction just about everywhere. They pick up Banner in India, and Fury authorizes an op in Stuttgart (apparently) without even bothering to let the Germans know they’re coming. This is to say nothing about interfacing with air traffic control, but nations are usually kind of prickly about foreign military aircraft just sort of jetting around in their airspace, much less special forces groups conducting operations in their territory. If S.H.I.E.L.D. is an American entity, not an international one, this is starting to look a lot like an act of war. So on this point, it would be more convenient for S.H.I.E.L.D. to be an international group.
Clearly there’s some inconsistency here, and it’s not just us saying so. Not even the real-world Department of Defense could figure out exactly what kind of organization S.H.I.E.L.D.’s role was supposed to be (thanks to andrew in the comments for that link).
On balance, from a legal perspective and making allowances for artistic license, it would be better if S.H.I.E.L.D. were an American organization. Movies pretty consistently ignore what would be acts of war in the real world, even in non-speculative/comic book political and military thrillers. So if we give them a pass on that bit, the way S.H.I.E.L.D. acts a lot of the time really looks like a domestic military force. There’s still a problem though, given that The Council does appear to have members from multiple nations, but there might actually be a way of fixing that. There isn’t actually any obvious reason the U.S. couldn’t start a military force completely under domestic authority but, in a spirit of international cooperation, permit representatives from select foreign nations to participate in its operations. Given that S.H.I.E.L.D. is involved in some pretty hairy and advanced weapons R&D, this might actually be a decent way of convincing our allies to support the project, as they could exercise some control over the organization, trying to keep it focused on extra-terrestrial threats. This is, of course, not discussed in the movie at all, but there isn’t any obvious reason it couldn’t work.
We’ll be writing about The Avengers all week. In the meanwhile, go see it!