The Avengers: Declarations of War

Our last post, discussing the issue of compensation for the property damage that resulted from the battle over Midtown Manhattan, delved into whether or not the battle counts as an “act of war” or even just a “war” or whether it counts as “terrorism” or something else. This is as good a time as any to discuss what it means to be “at war” and what “war” means as a legal concept.

I. “War”

The dictionary gives several definitions of the word, most of which either involve large-scale armed conflict of one sort or another or are metaphors sounding on that concept. The first two definitions also include concepts of conflict between nations or states as such, but the farther down the list you go, the more metaphorical things get. It’s in this metaphorical sense that we get terms like the “War on Drugs” or the “War on Terror,” and even the “Cold War,” i.e, any big, unpleasant, protracted conflict may be described as a “war”.

But that’s not what the legal system means when it uses the term. “War,” in the technical sense, is largely limited to the first definition, i.e., “a conflict carried on by force of arms, as between nations or between parties within a nation.” This sounds like a very precise definition, but as we shall see, it’s somewhat squishier than that. For instance, the term “nation” has been used for a long time and was not as strongly associated with a particular national government as it is today. For example, if we exploit the breadth of the term, the American Civil War can be described both as a war within a single “nation” and between conflicting “nations.” The mere fact that there can be a dispute about that underscores the variety of meanings that can be employed here. This is a philosophical and political concept, and the legal system doesn’t really see its mission as defining those concepts. So Black’s Law Dictionary gives the following definition to “nation”:

1. A large group of people having a common origin, language, and tradition and usu. constituting a political entity. When a nation is coincident with a state, the term “nation-state” is often used.

2. A community of people inhabiting a defined territory and organized under an independent government; a sovereign political state. Cf. state.
NATION, Black’s Law Dictionary (9th ed. 2009)

The second definition comes closest to what laymen usually mean by “nation,” including as it does a requirement of some sort of sovereign government. But the first one says that nations usually constitute a political entity but are not necessary synonymous with it. So it’s possible to speak of continuity in “the British nation” despite the fact that the government went from a monarchy to a republic and back again in the seventeenth century. The nation has a government, but the nation is not the government as such.

Turning then to the term “war,” Black’s gives the following:

Hostile conflict by means of armed forces, carried on between nations, states, or rulers, or sometimes between parties within the same nation or state; a period of such conflict. A state of war may also exist without armed conflict. . . .
Black’s Law Dictionary (9th ed. 2009)

So again, “war” means something equivalent to either (1) “large-scale military conflict” or (2) “a formal declaration of a state of war as between sovereign states.” Maybe but not necessarily both.

Whether or not a state of war exists is important for a variety of reasons. We touched on the insurance implications in prior posts. But war and the conduct of war is governed by the law of war, a body of public international law which is frequently used to punish wrongdoing, legally or diplomatically, after the war is over. A nation that disobeys the laws of war may find its soldiers and officers tried by foreign courts. Barring that, they’ll likely find themselves diplomatically unpopular, which will make peacetime negotiations all the more difficult.

But one of the biggest questions as to whether one is obeying the “laws of war” is whether they even apply. So, for example, an unprovoked surprise attack during peacetime is treated somewhat differently than a response to that attack. The former is not sanctioned by the laws of war, because no state of war existed before the attack. But the defending force could use whatever force necessary to repulse the attack and be entirely within the laws of war. A surprise attack during war time is one thing, and good on you if you can pull it off: there was a preexisting right to launch the attack. But a surprise attack during peacetime does not carry with it any such right, and one can expect such actions to be frowned upon. For instance, a nation that initiates a war with a surprise attack is unlikely to be offered favorable terms for surrender.

Note that a state of war can exist without a formal declaration, which we talk about in more detail in section III of this post. The US has only formally declared war six times. All the other “wars,” e.g., the Korean War, the Vietnam War, Gulf War I, Gulf War II, Afghanistan, didn’t involve a formal “declaration of war,” even though Congress did authorize the military action.

II. The Avengers at War

For starters, let’s deal with Nick Fury’s statement, towards the beginning of the movie, that “We are at war.” A few things here. First of all, it doesn’t matter who Nick Fury is, he doesn’t have the authority to declare war on anybody. In the US, such declarations only come from Congress. If S.H.I.E.L.D. is an international organization, it would serve its national masters and probably lack the power to declare war, period. But second, this probably isn’t just rhetoric on Fury’s part. The state of war is legally important, as it authorizes certain actions that would otherwise be problematic or impermissible, the most obvious of which is killing people. But a state of war can also trigger certain powers or procedures. For example, in times of peace the Coast Guard is part of the Department of Homeland Security, but in times of war it answers to the Department of Defense. Recognizing that a state of war exists would thus change the chain of command. It can also theoretically trigger logistical contingency plans, i.e., “If we ever do find ourselves at war, immediately do this, that, and the other thing.” While Fury doesn’t have the power to declare war on anyone, he might well have the authority to make the initial, tactical determination that a state of war exists, declared or not, and take whatever steps are appropriate to deal with the situation. Military officers in the field have as part of their orders the general Rules of Engagement, but those Rules generally permit the officer to do whatever is immediately necessary to preserve his command.

For example, take a look at the Rules of Engagement for the 1992 Somolia expedition. It explicitly states that “The United States is not at war,” but it also states “You have the right to use force to defend yourself against attacks or threats of attack,” and “Hostile fire may be returned effectively and promptly to stop a hostile act.” Fury is a bit further up the chain of command than a front-line infantryman, but he’s probably got the authority to respond to hostile actions as he perceives them.

So, does the Battle of Manhattan count as a war? It’s hard to see why not, especially under the first definition of large-scale military conflict. The Chitauri are obviously an organized military force. We talked about the fact that they aren’t human last year, and because they’re obviously sentient, technology-using beings, that isn’t likely to matter much. Take that out of the equation, and this looks a lot like Pearl Harbor, i.e., a surprise attack organized by a hostile military force. And it quite clearly is a martial force that quite clearly had the intent of conquering the world. It also represents some kind of foreign “nation,” in the broader sense of the term, as even if the sovereignty of the foreign power is unclear, it’s still a community of individuals sufficiently bound together to be able to form an organized military. Getting a court to hold that it was anything other than war is going to be tough to do.

III. Declarations of War

Although Congress has the constitutional power to declare war, it is not necessary for war to be declared in order for the United States to go to war.  This practice dates back to the undeclared naval war between the United States and France from 1798 to 1800.  In fact, the United States has only formally declared war on six occasions:

The War of 1812, declaration passed on June 18, 1812;
Barbary Wars, declaration passed on March 3, 1815;
Mexican War, declaration passed on May 13, 1846;
Spanish-American War, declaration passed on April 25, 1898;
World War I, declarations passed on April 6 (Germany) and December 11 (Austria-Hungary), 1917;
World War II, declarations passed on December 8 (Japan) and December 11 (Germany and Italy), 1941.

Obviously the United States has been engaged in far more than six wars in its history.  Thus, a formal declaration of war is not considered constitutionally necessary.

This is especially true of defensive wars, of which the Battle of Manhattan is an example.  It was well established before the Constitution was written that a declaration of war was not necessary if the nation was acting in self-defense.  As Hugo Grotius wrote in The Law of War and Peace in 1625:

To understand … the declaration of war, we must draw an accurate distinction between what is required by the law of nature. By the law of nature, no declaration is required when one is repelling an invasion, or seeking to punish the actual author of some crime …. And no more necessary, by the law of nature, is any declaration when an owner wishes to lay hands on his own property.

This view continued through the revolutionary era.  “Defensive war requires no declaration,” wrote Emerich de Vattel in The Law of Nations in 1758.  And that is still the view today.  International law forbids wars of aggression, but defensive wars require no declaration.

IV. Conclusion

In short, while Nick Fury isn’t going to be able to go out and formally declare war on his own authority, he probably is going to have the authority to call it like he sees it for the purposes of directing his agents. Similarly, a civilian court, when faced with the question, would be hard-pressed to call it anything but “war,” even if it is an undeclared, defensive war.

41 responses to “The Avengers: Declarations of War

  1. So has the United States officially declared war 6 times, or only 5? The article says both…

  2. James Pollock

    “So, does the Battle of Manhattan count as a war? It’s hard to see why not, especially under the first definition of large-scale military conflict. The Chitauri are obviously an organized military force.”

    Not so fast. As I argued in the “who’s going to pay for this” article, this might not be war because the Chitauri and humanity are too different. Humans make war with humans, and ants make war with ants, but humans do not make war with ants; even when ants are biting the heck of of people and humans are using chemical weapons on ants, nobody calls it a “war”.

    (Also note, your definition refers to “large scale military conflict”, but the U.S. military does not appear in the movie. It stretches the definition a bit to have a “large scale military conflict” without the large scale participation of the military. The aliens are repulsed by a force of six persons, exactly one of which is a (former?) member of the armed forces.)

    Now, I’ll concede that some works of creative fiction have, in fact, labeled an interplanetary attack between differing species as “war” (see WELLS, H. G.) but others have presented a more nuanced view (compare Heinlein’s “Goldfish Bowl” with “The Puppet Masters” or “Starship Troopers”) that I can buy into, summarized thusly: Where two species have roughly equivalent technology, conflict between them may be termed “war”, but where the levels of technology are wildly unequal, a conflict between these species is not a war. Thus, in our original example, humans do not war with ants, and (potentially) humans don’t war with Chitauri, either.

    • Ryan Davidson

      Go ahead and read our three post series on non-human intelligences and check back. The Chitauri are your quintessential rubber forehead aliens. They are corporeal, tool-using, linquistic humanoids. And the technological differences don’t matter provided both sides are using technology. By your reasoning, colonial Britain couldn’t go to “war” with the Zulus either. This is obviously wrong, and its hows why your suggestion that a state of war cannot exist between humans and Chitauri is also wrong. Your only way out here is to make some kind of categorical assertion that, for metaphysical and not practical reasons, only humans can be considered people. That’s a position one can take, but you haven’t done so thus far.

      Second, the U.S. military does appear in the movie. S.H.I.E.L.D., we’ve argued, is best conceived as a U.S. federal military agency. Regardless, the National Guard arrives on the scene towards the end of the battle and assists the Avengers.

      • James Pollock

        “By your reasoning, colonial Britain couldn’t go to “war” with the Zulus either.”
        How does that follow? The British and the Zulus are of equal intelligence, and roughly comparable technology (they both use projectile weapons and blades).

        “Your only way out here is to make some kind of categorical assertion that, for metaphysical and not practical reasons, only humans can be considered people.”

        I would, in fact, tend to make exactly the opposite assertion, that others besides humans can be considered “people”. Furthermore, I would go so far as to state the best (fictional) test to be applied to determine sapience…H. Beam Piper’s “talk and build a fire” rule (See Little Fuzzy and its two sequels. Highly recommended AND available from the Amazon Kindle store at $0.00.)

        I’ll restate my thesis points. 1) war is possible only between roughly equivalent intelligence and technology, and 2) the difference in intelligence and technology between humans and Chitauri as shown in the movie may be too great to allow war. The Chitauri have better tech than we do… it may or may not be so categorically better as to preclude war.

        It *is* true that, at present, no other species on Earth are both roughly equivalent in intelligence and roughly equivalent in technology to humans… but this has not always been so, Neandertal and Cro-Magnon man might have warred between them. It may not always be so in the future… alien intelligences may arrive, or artificial ones arise. Humans HAVE had to deal with other species that were predatory on humans… but there was no war on wolves, war on sharks, etc. Humans HAVE had to deal with other species that are able to move to an environment other than their natural one because of human action (“invasive species”) but we don’t call those “wars”, either.

      • Wolves have never organized into a united state. At the absolute most a wolf community extends to a few dozen members of a pack. There is no stated social contract between the wolves, no taxation beyond possibly a leader eating and mating first, and certainly no concept of a difference between peace and war. Ants lack even more to be considered a state than the wolves do.

        In the case of technological differences there were quite a few empires, kingdoms, tribes and clans in Asia, the Americas, Africa and Australia during the 19th century. Simply because some of them were still using archers as a major part of their organized military* against European armies doesn’t mean that the European states couldn’t have claimed that there was a state of war. Indeed, in present day Indonesia and Afghanistan/Pakistan there are militants that use pre-WWI rifles and there is no problem calling it a state of war.

        Lastly arguing that there is some kind of intelligence-gap between humans and Chitauri lacks objective or even subjective proof of this. As can be inferred by my archers example, less advanced technology is in no way a good sign of intelligence.

        So to put it simply, trying to convince any judge that what occurred was not an act of war and that it did not create a state of war based on those points would probably be an exercise in futility.

        *And the bows and arrows must have at least as large a technological gap with 19th century artillery as Stark’s reactors has to Chitauri weapons, if not larger.

      • James Pollock

        “Simply because some of them were still using archers as a major part of their organized military* against European armies doesn’t mean that the European states couldn’t have claimed that there was a state of war.”

        Agreed. The spread of technology differences between different groups of humans is insignificant next to the spread of technology between humans and other (known, Earthly) species. (Much the same way that the distance from Earth to Moon is insignificant compared to the distance from Earth to stars other than Sol).

        “Lastly arguing that there is some kind of intelligence-gap between humans and Chitauri lacks objective or even subjective proof of this.”
        True, (particularly in the sense that they are, in fact, fictional entities and therefore categorically impervious to objective examination.) There is a clear technology gap; it is entirely impossible to gauge the Chitauri intelligence, and even the total extent of the technology gap, based on what we’re shown in the movie. They demonstrate a clear technological lead, which may be do to a higher level of intelligence, a longer period of development, or even hand-me-down technology received from unknown third-party. This is why I equivocate on the question of whether or not Chitauri and humans are sufficiently analogous to make war with either other. I don’t believe that it is possible to unequivocably claim that they are. (I also disagreed with our gracious hosts on the question of SHIELD’s national status, and the early stages of JJJ’s and PP’s business relationship, although both of these are, I think, differences of opinion over the facts rather than the application of law, and this one is a philosophical disagreement rather than a legal one.)

      • TimothyAWiseman

        “talk and build a fire”

        I think that definition would likely be underinclusive. I suspect its safe to say that anything that can talk and build fire would meet the minimums to be considered sapient. But it is certainly possible to conceive of intelligences that do not make any use of fire and “talk” only for a definition of talk that is so broad it is coterminous with “communicate”.

        I find it hard to conceive of a sapient species that can’t communicate, but it is certainly possible to conceive of one that can’t make or use fire. Any aquatic species is going to have a hard time with fire, for one. As would a thinking-machine with limited mobility (an AI without an articulate body). While they are highly speculative and unlikely to even be able to exist, fiction has certainly dealt with non-corporeal intelligences and they too would have a hard time with fire. But any of them would be intelligent.

      • James Pollock

        Mr. Wiseman (May I call you Tim?) I suggest you read “Little Fuzzy”. As I mentioned, it has fallen into the public domain and is available in the Kindle store for free. The book revolves around a legal fight whether a species is, or is not sapient, including the very slippery concept of what sapience actually is.

        “talk and build a fire” is shorthand. As you have determined, “talk” encompasses many different forms of communication but it’s main point is the development of language, “build a fire” is satisfied by modifying the natural environment via a controlled release of stored energy (after all, there are many, MANY examples of human beings who individually cannot start a fire… but driving up in your steel internal-combustion vehicle suggests that your species can.)

        Note: “talk and build a fire” is the test for determining sapience in alien biological species. The best-known test for artificial intelligence is the Turing test, although it has flaws, too.

    • Moreover, while the humans might not call it war, I have little doubt that the ants certainly would.

      • James Pollock

        Ants have wars with other ants. They simply don’t have the capacity to have wars with humans.

    • TimothyAWiseman

      The reason we do not consider it war with ants is that it is not large scale (at least not on our sides, as Jacob eloquently pointed out, the ants might see it differently.) It is normally one or a small handful of humans against the ants in a small geographic area.

      On the other hand, if somehow billions of ants starting rising up and causing real problems for humans over a large part of the US, and the federal government stepped in directly, perhaps even making use of the military, we might very well call that a war against the ants. If the ants were being guided by some form of true intelligence and sentience (perhaps a collective hive mind?) and the US made a sizable military response, then I think much as with the Chitauri we would find it hard to call that anything other than war for legal purposes.

      • James Pollock

        “if somehow billions of ants starting rising up and causing real problems for humans over a large part of the US”

        You’re not familiar with fire ants, are you?

        “If the ants were being guided by some form of true intelligence and sentience…then I think much as with the Chitauri we would find it hard to call that anything other than war for legal purposes. ”

        This was my thesis. IF you have comparable intelligence and technology, THEN you can have a “war”. Absent that, you just have fighting. Humans fight the spread of many, MANY invasive species, but wars with only one.

      • In my opinion comparable technology really isn’t necessary. It would be entirely possible for humans using pre-gunpowder weapons to fight a guerrilla war against humans armed with the best of 21st century weapons and it would still be a state of war. Depending on politics, training and terrain it might not be a state of war for very long but for the time being it would still be a state of war.

        As an excellent example, the F.L.N. started the Algerian War with almost no firearms* but I’m sure that from their perspective a state of war existed.

        The key factor in determining whether or not a state of war exists, in my opinion, is the presence of an organized hostile force and relatively comparable intelligence. Comparable technology is in no way a prerequisite or even necessarily any kind of factor at all.

        *In fact one of the main objectives of the first attacks was to seize firearms from French police.

      • James Pollock

        “In my opinion comparable technology really isn’t necessary. It would be entirely possible for humans using pre-gunpowder weapons to fight a guerrilla war against humans armed with the best of 21st century weapons and it would still be a state of war. ”

        Um, OK. I’ve kind of been assuming that “humans can make war on humans” was a given, but I’ll accept your logical support. The question is, if there was some kind of nonhuman with roughly equivalent intelligence, but significantly different state of technology, would it be a war. Some folks, for example, think that whales might be as intelligent as humans are; but there is no human/whale war, despite some fairly significant provocation/predation. Ditto, gorillas are almost as smart as humans, but lack technology. Outside of a couple of “planet of the apes” movies, and David Brin’s “Uplift War” (both involving genetically modified gorillas, btw), nobody talks about a war between humans and gorillas.
        Technologically speaking, the longbow and the hydrogen bomb are less than a thousand years apart in a scale that tracks back at least 100,000 years, possibly as much as 250,000 or more. On this planet, humans are far ahead of all other species with regard to tool use, particularly if you limit the definition of “tool use” to include making or shaping the tool for a particular purpose. This is no other species on this planet that has a comparable technology to humans, ergo, humans do not “war” with any other species. (This doesn’t mean we don’t FIGHT other species– there’s plenty of that– but the fighting is distinct from warfare.)
        To loop back to Marvel references, I would say that humanity could be at war with the Skrulls, or Atlantis. Possibilities include the Brood. Humans can’t really be in a war with Galactus, the Beyonder, or the Phoenix-force.

      • You can read the story Lenningan Versus the Ants.

        http://en.wikipedia.org/wiki/Leiningen_Versus_the_Ants
        http://www.classicshorts.com/stories/lvta.html

        Were Lenningan and his men at war with the ants? The ants attacked first, were organized and they killed some of his men.

      • Honestly, the Chitauri are not that much more technologically advanced than Marvel Movieverse’s Earth. Yeah, their stuff looks really strange, but they don’t seem to be much more effective than conventional technology, and are roughly equal (or even worse than!) all of Tony’s tech. They’ve got platforms that can hover, but so can the Iron Man suit. They’ve got energy blasters, but they don’t seem to be any more effective than a standard firearm. They’ve got weird giant eel-troop-deployment-things, but they don’t actually help in any meaningful way that couldn’t be replicated with a standard military helicopter. They have no body armor that can protect against bullets and really don’t seem to have very good communications with one another. Against real-world technology, they are more obviously advanced, but not so much against the technology that exists in the movies.

        Now, Asgardian magic technology like the Tesseract, Mjolnir, and the Bifrost Bridge, that’s sufficiently advanced that an ant-vs-human argument might hold. No wonder Fury and SHIELD were so freaked out by Thor and the Destroyer: a warrior culture of guys like Thor with technology like that, even the movie’s Earth has no chance!

      • On Galactus and the other entities, those entities could not form a state or nation because they are individuals who generally are depicted as not having a loyalty to anything other than themselves. If they were to join some state they might conceivably serve as the only military force, in which case a state of war could exist.
        For the more important question, can a state of war exist with individuals, I suspect that most political scientists and lawyers would say no. In all recorded history we have never had a single human who was so dangerous that you could really justify declaring war specifically on that person*. In Marvelverse that might change from the existence of creatures like the Hulk who are entirely capable of threatening a state on their own, but presumably that change to legal thinking would take quite some time to be established.
        So a state of war with the Chitauri could be possible, but I don’t see how you could apply it to Galactus. I don’t think you could even apply charges of terrorism to Galactus, he really doesn’t seem to have any political goals or ideals beyond ‘hungry’. Possibly he could be defined as a living natural disaster or ‘person of mass destruction’.

        *Yes there have been foolish statements such as ‘war on drugs’ or ‘war on terror’ but those were rhetorical and not actually legally significant.

      • James Pollock

        Re: Declaring war on an individual:
        Tell Osama Bin Laden that we can’t declare war on a person.

        Actually, this is an area that is still under debate, as legislation that would effectively allow war against an individual has been passed by the legislature but not yet examined by the judiciary. Does the President have the authority to order the death of a specific individual by U.S. military forces?

        Applying this question to the Marvel universe seems to be far more likely to center around Dr. Doom than Galactus (although we have seen only one Galactus, there could be more than one. I’ll concede that more than one Beyonder seems unlikely but will note that duplication similar to Jamie Madrox’s appears to be within the Beyonder’s capacity, so at any moment there could be more than one of him.)

      • The U.S. never declared war on Osama bin Laden. A state of war definitely exists in Afghanistan and Pakistan, but that isn’t between one person and the U.S. It exists between different militant groups including Al Qaeda and the U.S. and the current Afghan government. Usually president’s can’t just order someone killed, but laws on terrorism, agreements in Afghanistan* and death sentences being passed by courts in absentia gives them a lot of room to maneuver.

        As for Doom, since he’s the central executive figure of a state you can definitely argue that his actions create a state of war between the U.S. and Latveria, or in the unlikely event that he has been deposed you could make a case for him being a terrorist.

        *Plus the ability great powers have to do something and tell the world ‘don’t like it then just try to do something about it’.

      • James Pollock

        “The U.S. never declared war on Osama bin Laden.”

        Didn’t we? Military forces under the direct command of the head of state targeted his household, entered it by force, and terminated bin Laden without any kind of trial. All this within the territorial confines of a nation nominally our ally. Granted, this was done without Congree’s declaration that a state of war existed between the United States and OBL… but Congress DID pass an authorization for the President to act against any and all who would shelter him…. which is about as close as we’re going to get.

        “Usually president’s can’t just order someone killed”
        The most rccent defense bill covered this topic. I haven’t read it, but I do recall some commentary that an amendment to specify that due process is required before the President can order an American citizen to be killed by military force failed.

        Regarding Doom… yes, he is, in fact, the unquestioned head of state of a sovereign nation, and therefore largely treated as such. My point was that the Marvel version of the United States has many complaints about Doom himself, but none at all with Latverians in general. Latveria is a shunned nation because Doom is its head of state; if Doom were not its head of state then the U.S. would have no quarrel with Latveria. American opposition to Latveria begins and ends with Doom. The closest thing in real life is probably Cuba under Castro… it seems somewhat likely to me that once Fidel (or possibly Fidel AND Raul) have passed away, diplomatic and economic relations with Cuba will resume.

      • No matter what the circumstances of bin Laden’s death, that was in no way related to a declaration of war on him. He was targeted because he was the leader of a terrorist organization in a part of the world where a state of war exists. Wars are understood to be between states or between groups and states, not between individuals.

        As for Doom, while his death might lead to better relations between the U.S. and Latveria (at least until he was brought back three months later) that isn’t the same thing as a state of war existing between the U.S. and Latveria. In your real world example of Cuba the U.S. is not at war with Cuba, the same as we are not at war with Iran. The death of the Castro brothers might (and this is in no way certain) lead to better relations, but it would not be due to a state of war existing between an individual and the U.S. Nixon enjoyed better relations with China than Kennedy did, that doesn’t mean that Kennedy was in a state of war with China. Wars are always between some mixture of groups and states, the only way around that would be for the individual in question to take on the duties of an entire state or group’s military duties.

      • James Pollock

        “Wars are understood to be between states or between groups and states, not between individuals.”
        Sometimes wars are fought between groups, as for example when one drug gang goes to war with another, or um, the Marvel Civil War. And many an action movie has been billed as one man’s war against an enemy… notably Batman’s war on the criminals of Gotham. There are even examples of one-on-one warfare… Bugs Bunny was known to remark (separately) to Elmer Fudd, Yosemite Sam, and Daffy Duck that “…of course, this means war!”

      • I’m with Robert, the Chituri just aren’t that advanced. The difference between real world military technology and the Chituri tech seen in the movie is less than the difference between military technology at the beginning of the 20th century and at the end of the century. Yet we’d certainly say that a conflict between a 21st century military and a early 20th century one was war. Throw in human supertechnology like helicarrier and the Iron Man armor and the difference is even less.

      • James Pollock

        “The difference between real world military technology and the Chituri tech seen in the movie is less than the difference between military technology at the beginning of the 20th century and at the end of the century.”

        I’m not sure this is true. Certainly, war brings out the capacity for rapid technological innovation, and so during periods of warfare the rate of advance is quite rapid.

        However, the jump might be bigger. Yes, humans were able to seize a few Chitauri airspeeders and use them, but that’s not the same thing as understanding the principles of its operation and make use of them. A caveman could pick up a pistol and use it, but he’s a long way from being able to make new cartridges for it. Don’t forget the other tech, like Loki’s scepter, and the very real possibility that they didn’t show everything they had…They may have held back tech on purpose (The U.S. dropped a lot of bombs on North Vietnam, but left some parts of the country untargeted, and of course, never went nuclear), or just not had time to get it deployed (think the British side of the Falklands Islands war of the 80’s… it took time for the British Navy to get there!).

      • There are indeed multiple Galactus’s in the Marvel multiverse. The 616 Galactus is one of the more powerful versions and operates in a number of different universes on occasion, but most alternate universes have at least one, albeit of varying strength levels and sometimes of very different natures. In general there is only one per universe, but its not correct to say he lives only for himself or his own interests. He basically “works” for the universe / multiverse, and further is a member of the Cosmic Compass, the pantheon of cosmic entities who embody aspects of the universe (namely, Death, Eternity, Infinity, Oblivion, Master Order and Lord Chaos). Though I suppose declaring war on the universe isn’t really all that smart.

        Doom has been absent or ousted from Latveria before; relations between that country and the United States did not improve all that much. Nearly every government of Latveria has butted heads with the US in one way or another (including the time Reed Richards took it over). And when Doom IS in power he is an absolute monarch, so the will of the state of Latveria and the will of Doom are pretty much the same thing. And the fact is that a decent chunk of the population supports Doom pretty fanatically, so America might not have a problem with them, but they might have a problem with America.

        As for the Chitauri, whether or not they exhibit enough intelligence to be considered a nation doesn’t really matter. The article assumes that by war Fury was talking about the Chitauri, but he was actually talking about Loki and whatever allies he might have (who turn out to be Thanos and the Other, though Fury might have been counting the men Loki enslaved as well). Fury seemed to just guess that Loki wasn’t working alone. The Chitauri are not the enemy nation, they are the enemy army. The enemy “nation” is a conspiracy of three individuals who have vast resources, led by Thanos, though you might consider the “nation” to be whatever “empire” (for lack of a better term) he might command.

    • The idea that the Chitauri attack would not be considered war because the Chitauri are advanced aliens, not humans, is very interesting. But I’m not convinced for two reasons.

      First, from what could be seen of them in the movie, it was not clear that the Chitauri were, in fact, more advanced at all than humans. My impression is that they were just weird and alien, with technology that was just different, rather than better. They had technology we didn’t have, and vice-versa. Their military didn’t seem any more effective than our military, except for the element of surprise. They didn’t seem at all prepared to deal with nuclear weapons, even though the missile had to come through a relatively small portal. Surely a hyper-advanced civilization would not be so completely defenseless against counter-attack. I figure that human technology was incomprehensible and alien to them.

      It is certainly arguable that the Chitauri would not be considered “people”. But even if they were not legal people, there are other reasons to consider the attack war for at least some purposes – the fact that it looks and smells exactly like a war, and not like a natural disaster. A bunch of humanoids come in with vehicles, armor, and guns, shooting civilians, taking territory, throwing bombs, engaging in intelligent combat, led by a guy who speaks English and claims he wants to conquer the world. And our own military was trying to get to the scene to fight them with tanks and guns. The courts may wrestle with whether the regular laws of war apply to nonhuman aliens, but I think it would be pretty easy to find that the human side was in a state of war for purposes such as insurance liability.

  3. Christopher L. Bennett

    I didn’t take Fury’s statement at the end of the opening sequence as a declaration of war, but as an acknowledgment that Loki had committed an act of war against Earth/the US, and an instruction to his personnel that they should prepare for subsequent attacks.

  4. “In short, while Nick Fury isn’t going to be able to go out and formally declare war on his own authority, he probably is going to have the authority to call it like he sees it for the purposes of directing his agents.”

    Within the limits of the leash defined by his ROE. And even though Fury is pretty high up the food chain – that doesn’t mean his leash is anything but tightly held. This is why, for example, no offensive action was taken after the Stark was hit. The authority to initiate action beyond local defense of his forces was not available to the Fleet commander. He could have shot down the offending jet had he chose, or placed CAP over the Fleet with shoot-to-kill orders… but that’s about it. A strike against the airfield that the jet launched from would have required authority from the civilian chain of command.

    Even CINCSAC, in command of the entire nuclear triad, had extremely limited options absent either positive release authority from the civilian chain-of-command or absolute loss of the continuity of civilian chain-of-command.

  5. We seem to have unwittingly duplicated your efforts at Overthinking It: http://www.overthinkingit.com/2012/05/15/avengers-fury-doctrine/ One of our regulars pointed this out.

    • Not a problem at all. Your take on it is quite a bit different, and we’re obviously big fans of overthinking popular culture around here, so the more the merrier.

  6. So Mr Pollack, when the Ewoks take up their stone spears and bows to fight the Imperial forces of the Empire wth their laser guns, walkers, hover bikes, etc. would you consider that war? If my understanding of your thesis is correct it would not be because Ewoks are not human (where most everyone in the empire is presumed to be), nor is their technology on par with that of the Empire. I think most people though would disagree and say that a state of war existed because two groups made conscious decisions to take up arms against one another. For a real world example, prior to the Second World War, Italy invaded Ethiopia with modern weapons and aircraft against a population armed primarily with spears and bows and some antiquated weaponry from before the First World War. Based on your thesis, this disparity of technology a war did not exist, however I imagine the two sides would disagree.

    • James Pollock

      Ugh. Ewoks.

      You miscopied my name, and you misunderstand my position. Imperial stormtroopers and Ewoks are technologically different (although clearly NOT through a lack of engineering talent amongst Ewoks) but they are roughly similar COMPARED TO OTHER SPECIES. In the Star Wars galaxy, there are lots and lots of intelligent species, all at roughly the same technology level, accordingly, they can (and, according to the title of the series, which is a bit of a giveaway) do have wars amongst and between themselves. But none of the intelligent races of the SW galaxy fight wars with mynocks, or womp rats, or Wampa.

      Although, after a couple of weeks of discussion and contemplation of my thesis, I HAVE found a one-sided exception. Humans did fight some wars against distinctly non-human entities… smallpox lost, polio is losing, and influenza is winning their respective wars with humanity.

      • James Pollock

        Let me swing back with a Star Trek reference.

        Humans (and their associated allied species in the Federation) could (and did) fight a war with the Romulans, or with the Klingons, because they have roughly equal technology. But they couldn’t fight a war with the Organians, or with the Q, or with whatever un-named species decided that having the Gorn and the humans shooting it out was unacceptable, or the Travellers, or even the big-throbbing-head dudes on Talos IV.

      • To be just a tad OCD, there is no way those little rug-rats could take out Imperial Stormtroopers. In fact, most of the stuff they were shown using (especially that damned glider) come from much more technologically complex societies.

  7. Hmf. No link to reply directly to a previous remark -I suppose it’s too deep in the reply chain- so I’ll post here.

    Mr. Pollock, the “talk and build a fire” rule in Little Fuzzy was not a definition of intelligence per se but rather a minimal defense for an unrecognized alien intelligence. It was intended to keep humans from killing off a sentient species while claiming they were merely clearing out a local predator.

    In the first novel, it was suggested that the Chartered Zarathustra Company use the “talk and build a fire’ rule since Fuzzies (apparently) did neither. I won’t spoil the zoological surprise Piper developed to bridge the apparent paradox. Point being that another lawyer pointed out a precedent on another planet. A woman killed her child, and the defense argued that since the infant could neither talk nor build a fire, it was not a sentient being, hence no murder. The ruling was that while “talk and build a fire” could establish sentience, the opposite did not hold true.

    In fact, the trial in the book depends on determining the sentience of the Fuzzies, which means someone had to develop a positive definition of “intelligence.” A running gag in the book was that lawyers on both sides regularly complained that -while they could define what intelligence wasn’t, they couldn’t define what it was.

    Piper was one of the very few SF writers who described realistic legal situations in their work. For those so interested, I would also recommend Lone Star Planet, which features a body a law in which killing an acting politician isn’t malum in se, but is only malum prohibitum if a less severe punishment such as tar & feathers (or a beating) would have been more appropriate.

    Makes for an exiting political career on that planet, no? Bonus points for recognizing where Piper swiped the idea from, and Mr. Pollock doesn’t get to vote, because I suspect he already knows the answer. 🙂

  8. James Pollock

    “Mr. Pollock, the “talk and build a fire” rule in Little Fuzzy was not a definition of intelligence per se but rather a minimal defense for an unrecognized alien intelligence…. Point being that another lawyer pointed out a precedent on another planet. A woman killed her child, and the defense argued that since the infant could neither talk nor build a fire, it was not a sentient being, hence no murder.”

    “Talk and build a fire” isn’t a test of individual intelligence, it’s a test of species intelligence. Not only can’t a newborn infant do either element, but a significant number, quite likely a majority of Americans, would also struggle to build a fire on command absent obvious fire-starting materials (i.e., absent matches or a lighter). However, a casual examination of our planet would reveal that there is, in fact, a species on it which has the ability to command “fire” (that is, the controlled release of energy… an electric heater that uses no flame would have satisfied the “build a fire” portion of the test… the idea of “fire” as we know it on Niflheim is a non-starter.)

    Moving upstream…
    “To be just a tad OCD, there is no way those little rug-rats could take out Imperial Stormtroopers.”
    I strongly disagree. They would pay a heavy price to do it, but they could do it. Much the same way that the humble military forces of the NVA could (and did) humble the mighty military power of the United States (after rousting the French recolonialists. In the movie, a significant part of their success comes about because of A) surprise, and B) The Emperor’s plot to trap the Alliance fleet required the station to appear relatively unguarded. Neither of these would be sustained, and the ratio of Ewok losses to Imperial losses would be quite high. But the Ewoks would have taken some of the Imperials with them to wherever Ewoks go when they die.

  9. {shakes head} You’ve made the same mistake George Lucas did. The NVA never “humbled” the US forces. In fact, any time there was a stand-up fight, the VC/NVA lost. This is why they usually preferred guerrilla ambush tactics, since this maximized damage while minimizing loss.

    I’ll interject here that the VC/NVA were in no way “primitive.” They used fully automatic assault rifles, mortars, radios, and other modern military equipment, although they were not as richly equipped as the south. They even had fully-staffed hospitals in some of their underground complexes. They were in no way a stone-age people.

    Yes, the Viet Minh/VC did defeat the French, but the latter were barely motorized; hence they were glued to the (poor) road network. The Communists got a nasty shock when they encountered US air mobility, something the Stormtroopers had in spades.

    The Tet Offensive highlights the difficulties the Communists had run into. They had been losing ground in the cities as well as the rural areas, while many VC leaders were “converted” into accepting the Saigon government. This is why Tet happened; it was a desperation play to force victory.

    It is sad to reflect that -even today- most Americans think Tet ’68 was a great Communist victory. In fact, the VC were wiped out as an organization, and were only later reconstituted with northern personnel. Tet was the single most resounding Allied victory of the war.

    North Vietnam was beaten back during Tet ’69, then during the 1972 Easter Invasion. Every time norther forces attempted a conventional offensive, they were defeated.

    What eventually conquered South Vietnam was a conventional-war offensive using mechanized forces with -as Jerry Pournelle has pointed out- more armor than used by the Wehrmacht against France in 1940. Neither barefoot VC nor obnoxious little teddy bears were involved.

    Going back a step or two, the ultimate causes for failure in Vietnam were political in nature, not military.

    My apologies for what has turned into a threadjack, but there are far too many myths about the war. Bit of a pet peeve of mine. 😉

    • James Pollock

      “{shakes head} You’ve made the same mistake George Lucas did. The NVA never “humbled” the US forces.”
      Actually, they did. They did so by remaining standing after absorbing everything the U.S. military forces threw at them. They did this by being willing to accept hugely disproportionate losses.

      “In fact, any time there was a stand-up fight, the VC/NVA lost. This is why they usually preferred guerrilla ambush tactics, since this maximized damage while minimizing loss.”

      Duh. It’s not like they invented partisan warfare.

      “I’ll interject here that the VC/NVA were in no way “primitive.” They used fully automatic assault rifles, mortars, radios, and other modern military equipment, although they were not as richly equipped as the south.”
      True, they used whatever was available. They harvested dropped but unexploded U.S. bombs for the HE payloads, which were used in what we now call IEDs. Since the roads were poor at best and they didn’t have air power, they carried field pieces by hand to achieve tactical surprise.

      “It is sad to reflect that -even today- most Americans think Tet ’68 was a great Communist victory.”
      They think it was a victory because it WAS a victory. You’re absolutely correct to point out that it was a major military failure… but it was a huge PR success. The U.S. wasn’t driven out of Vietnam by force of arms, it was driven out by the refusal of the enemy to submit. When the war was presented to Americans, it was presented as a simple job of which American military might would make short work. This is so because the Americans repeated the French mistake of vastly underestimating the Vietnamese willingness to absorb losses. We spent YEARS trying to bomb north Vietnam into accepting our terms.

      “Going back a step or two, the ultimate causes for failure in Vietnam were political in nature, not military.”

      And there you have it. War is an attempt to achieve political ends by use of applied force. The United States did not achieve any of its political goals in Vietnam despite the application of billions of dollars and hundredes of thousands of men, all of which were ultimately wasted. American military power was humbled by the fact that despite its overwhelming superiority in force, it was unable to bring the VC/NVA to heel. QED

  10. Dear Messieuers Daily and Davidson:
    I’m writing about a situation which might be of interest for the blog. Last
    night I was watching the movie “Black Moon Rising,” with Tommy Lee Jones,(1987). The basic plot of the movie is that the U.S. Govt hire Quint
    to steal a computer tape that can convict mobsters of tax evasion. The computer says in the beginning that “Legal procedure are exhausted use freelance. Would this be legal and hold up in a court of law? I hope you can
    help me and will publish this on the blog.
    Thank You
    erikbeale@yahoo.com

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