Any Military Lawyers in the House?

We recently got a great question from a reader about The Avengers that involves the law of war, the UCMJ, and illegal orders.  That’s pretty far afield for us, and we don’t have a ton of research sources in that area.  Are there any military lawyers out there who might like to give us a hand with a post on it?  If so, send me an email!

16 responses to “Any Military Lawyers in the House?

  1. James Pollock

    Start with “Are SHIELD agents subject to the UCMJ?” I’m going to suggest that, based on the actions of agents depicted in various comic formats, they are not.

  2. Additional question: given an assumption of SHIELD as a standing multinational organization, could it adapt whatever portions of the UCMJ to suit its needs and those of the people set in authority over SHIELD?

  3. I am a military attorney. Based on the language in Art. 2 of the UCMJ (10 U.S.C. sect. 802), SHIELD would not be covered under the UCMJ. Assuming the shadowy figures were not senior military leaders from the Pentagon, their members did not appear to be regular members of the armed forces, reservists serving on active duty. I don’t remember the Army being called in during the Battle for Manhattan, so they would not be considered persons accompanying the military in the field. Even if the Army, or some other service, had been drawn in, it is unlikely they would apply the UCMJ to they would not have been accompanying in a time of “declared war.”
    If they were part of some DoD super secret squirrel black ops unit they would be subject to the UCMJ provided you could prove the following:
    (1) submitted voluntarily to military authority;
    (2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
    (3) received military pay or allowances; and
    (4) performed military duties.
    Based on the words and actions of the regular SHIELD agents shown in the film it would not be hard to prove these. For the superheros it might be more difficult since it does not appear that they were receiving any sort of pay for their service.

    • Wow, there were a lot of grammatical and syntax errors in that previous post. I apologize for that.

    • That’s very helpful. I’d still like to cover how it would have panned out had the UCMJ applied, but even if it hadn’t, I think there are still some interesting issues involving the law of war (i.e. knowingly causing massive civilian casualties in an effort to defeat the enemy).

      • Assuming that there was an actual war in which the law of war would apply, then SHIELD would be covered. Even if non-military they would likely be covered as an militia, wearing a uniform, caring weapons openly, and following something of a military like command structure. However, I am not sure that they would run afowl of the Law of War requirments to avoid harming civilians.
        1) It did not appear that they were wrongfully targeting civilians for the sake of killing civilians. That I saw, they only attacked the enemy creatures, so they did not violate requirement of distinction.
        2) I doubt too that they would be found to have violated proportionality requirements. This requirment asks combatants to examine the potential risk to civilians with the potential military advantage gained. While they did have an extremely high risk to civilians factor in this dowtown battle, I think that the military advantage to be gained was significant enough to justify it. It was pretty clear from the movie that if they failed to contain the creatures to downtown Manhattan they would have likely lost the entire city, state, nation, possibly the world. I.e. the damage Loki sought to cause should they have waited to a nice location to attack would have far outwieghed the damage caused by their downtown Manhattand defense.

        The law of war understand that there are going to be civilian casualties via collateral damage. It just asks we don’t actively kill civilians, and take necessary steps to avoid extra collateral damage.

    • Half a minute, what about the National Guard? They showed up and did their thing.

      • For the National Guard to count as an accompanying military force under the UCMJ the Guard would have had to have been activated by the federal government. It is possible that NYC Mayor asked the NY Governor to send them in. I suppose the federal government could have sent them in, but I find it unlikely in light of how sudden the attacks occurred. State government activation of National Guard resources tends to be much quicker than the federal government activation.

      • James Pollock

        I’m not sure that the speed of their arrival indicates state activation. It seems that they were awfully quick to arrive but there weren’t very many of them; perhaps the “national guard” troops who showed up were only those who were already activated for something else. For example, I recall being put on active duty status on the day of the annual PFT, so the older, er, more experienced, men would have their heart attacks, if any, on active duty. Most of us, er, whippersnappers, didn’t appreciate this as a day on active duty didn’t pay as well as a day on the state’s dime, so the weekend’s paycheck would be lighter than usual.

  4. There are several military law specialists who blog at Regarding the laws of war, some names that come to mind are Robert Chesney:

    Kenneth Anderson:

    and John Dehn (whose email is available via SSRN).

  5. Martin Phipps

    Hawkeye and the Black Widow would have been paid. Captain America was getting room and board and a stipend. (He definitely didn’t have any money on him when he was dethawed and he has to eat.) Tony Stark may have been under contract to offer technical support. Banner was either under an implied contract or drafted, depending upon how much of a choice he had. Thor doesn’t need money but if everybody else is getting paid then the question is moot.

    In the comics, Hawkeye was actually seen receiving a pay check, as have Tigra, She Hulk and Spiderman. In the comics, Tony Stark paid the salaries himself, although their may have been funding from the U.S. government and/or the United Nations. Somebody has to pay for those quinjets: in the comics there was a while where the U.S. government told the Avengers they couldn’t use their quinjets and the Avengers once had to take a bus. (I believe it was Avengers #177.)

    In the comics, the Avengers were not a military organization. In the movies, most of them are explicitly working either with or for SHIELD. We’ve already had a post about SHIELD. SHIELD seems to do a lot of military research and that screams U.S. government to me. I’m a little bit confused as to why Tony Stark’s father didn’t tell Tony about SHIELD. I suppose the in-story reason would be that Howard Stark died at a young age. That might explain a lot about Tony Stark’s attitude towards life.

    • James Pollock

      If Tony Stark was subject to the UCMJ, he would still be in the stockade for the insubordination displayed in Iron Man 2.

      Banner’s status as a civilian is fairly well established, as well.

      Thor, being neither American nor human, is also probably not subject to the UCMJ. He might be, if he is considered to be a foreign officer attached to our military (Thor IS a warrior, of course) but would he voluntarily place himself under the command of human officers?

      On the other hand, both Nick Fury and Captain America are military officers and subject to recall at any time, and if recalled to active duty would of course be subject to the UCMJ. (If so, both are going to have a bit of trouble to work out… both Capt. Rogers AND Col. Fury seem to have rather flagrantly disobeyed orders from those lawfully appointed over them, and I suspect Fury’s case is what sparked this thread.)

      • Chakat Firepaw

        Point of order: Iron Man 2 is before Tony joins the Avengers, he is still clearly a civilian during that film no matter what his status becomes during The Avengers.

  6. Pingback: The Avengers and Illegal Orders | Law and the Multiverse

  7. Craig A. Glesner

    Wait a minute, isn’t Cap entitled to his back pay?

    He was after all frozen, not dead, he is a National Hero, and he sort of saved the United States and by extension, the world.

    Any chance of having that covered, or was it and I just missed it?


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