ECHO

ECHO is the 2008-11 graphic novel series by Terry Moore about a young woman in the American southwest who gets mixed up in a secret military test and winds up with part of a high-tech battle suit seemingly grafted to her chest. Moore self published it under his own Abstract Studios label. The complete series is available in a single volume on Amazon and from Moore directly. I had the good fortune to meet Moore at WonderCon last weekend, and in addition to being a fantastic author and artist, I can say from experience that he’s also a great guy to be around.

The book ran for some thirty issues, all written, drawn, and lettered by Moore. There are rumors of a movie—it was optioned by a major producer in 2009—but I can’t find any recent confirmation of that project’s status. In any case, this book is totally worth checking out.

In this post we’re going to look at whether anyone (and if so who) might be chargeable with a homicide offense for the death of one of the characters in the first issue. Definite spoilers follow.

I. Annie

The character in question is Annie Trotter, a scientist and now military test pilot/subject who makes her appearance on the first page of the comic. She’s testing out a fancy new battle suit and jetpack combination, and in the very first panel, we can see that something has gone wrong. The next panel jumps four minutes into the past, and at that point, we see that everything seems to have been going fine. Annie is flying some few thousand feet up, communicating with whoever is running the experiment. He cuts the engine’s power by a third for testing purposes. Then Annie notices. . . a missile lock? And just then a (well-drawn) F-16 drops behind her. Annie starts to freak out, and the person on the other end of the line, someone named “Foster” orders the fighter to fire an AMRAAM at Annie. F-16s do carry AMRAAMs, so good job on the homework so far. Annie is now well and truly pissed off, and Foster orders another AMRAAM shot. While taking evasive action, Annie protests that the suit is essentially a nuclear weapon of some kind (we don’t know what yet) and that there’s a substantial risk of fallout. Foster says he’s sure she can handle it, and orders the F-16 to fire two shorter-range Sidewinders (which the F-16 also mounts). At this point, Annie realizes she may not make it. She manages to ditch the AMRAAMs by pulling an 11G, 180 degree turn near a cliff, but the Sidewinders stay on her tail. She tries to lose them by gaining altitude, but Foster has cut the engine by another third. The Sidewinders close, and the suit/jetpack (and presumably Annie) explode in what looks for all the world like a nuclear explosion.

II. Homicide?

So. . . who, if anyone, is chargeable with a homicide offense for Annie’s death? Well right off the bat, we’ve got a problem. Annie died while participating in a federal military test. Everyone involved was either directly employed by or under contract with the federal government. This is going to cause enormous problems for prosecution in state courts, because it is well established that the states may not interfere with federal agents in the execution of their duties. This includes prosecution in state courts for crimes under state law. “[A] federal officer cannot be held on a state criminal charge when the alleged crime arose during the performance of the officer’s federal duties.” Morgan v. California, 743 F.2d 728, 731 (9th Cir. 1984) (citing In re Neagle, 135 U.S. 1 (1890)). The courts have also shown a willingness to extend this immunity to federal contractors, particularly where the military is involved. The courts have dismissed several cases against military contractors responsible for some of the excesses at Abu Ghraib for immunity and jurisdiction reasons. This is a slightly different case, in that it involves a weapons test, not combat or related activities, but the general rule is still in play: it’s going to be very, very difficult to reach anyone involved under state law.

What about federal law? The immunity here is not a right of the individuals, but of the federal government. Would anyone be subject to federal criminal prosecution? And if so, whom? Well we can probably rule out the F-16 pilot. As an active member of the armed forces engaged in an official operation, he would be subject to the UCMJ. But this does not appear to fit the UCMJ definitions of either murder (10 U.S.C. 918) or manslaughter (10 U.S.C. 919). First of all, the pilot had no intent to kill. He fired a missile as ordered by the person in charge of the operation, and presumably thought that this was just a routine part of the test. He may not have even known there was a person in the suit. But more than that, he had no reason to believe that this was not a lawful order. He’s a military test pilot. He probably participates in live-fire exercises every other Tuesday. Why should this one be any different? There’s no evidence that he was ever patched in to Annie’s radio channel, and Annie never attempts to contact him, so we’ve no reason to think he suspected anything fishy was going on. To be liable for a homicide offense under any US criminal code, one needs to have some guilty mind. Felony-murder is the only strict liability homicide offense, and that basically just imputes the guilty mind with respect to the underlying felony to the homicide. In this instance, the pilot was engaged in a lawful activity and seems to have been just as much an instrument as the missiles he fired.

But what about Foster? He’s the one who gave the order. And it turns out (spoilers!) that he was deliberately trying to kill Annie for internal political reasons which come out later (can’t spoil everything). Proving this could be quite difficult though, as he’s certainly not going to testify, and many of the other people involved either don’t know what’s going on or wind up dying pretty soon thereafter. Indeed, it’s possible that Foster made the decision without telling anyone about his motives. He deliberately interferes with Annie’s ability to evade the missiles by cutting her engine power and does all of this obviously without her consent. He also jumped straight to live testing without conducting any preliminary experiments about whether the suit and/or jetpack would actually be able to handle this sort of thing. That suggests criminal recklessness if not outright malicious intent. And what about the military officers in the room? It’s possible that Foster lied to them about the nature of the test, which would excuse them up to a point. But they seem to be in on Foster’s communication with Annie. Shouldn’t they have ordered the test aborted when they realized how dangerous it was?

Now we get into the weeds a bit. Under what circumstances may live fire testing take place where civilian contractors are involved? There are presumably a host of Defense Department regulations about that, but this is such a highly technical and specialized field of law that I don’t even know where to begin. Readers with experience and insight here are welcome to share their expertise. But if Foster was legally justified in ordering the shot, then his guilty mind—and the seeming carelessness of the officers present—won’t matter at all. Murder is the unlawful killing of a human being. If the act that resulted in Annie’s death was lawful, and it might have been, there’s no homicide offense to be found. Determining whether this shot was lawful would require diving far deeper into military regulations than I have time for at the moment. I have a sneaking suspicion that this sort of thing might well be lawful, or at least arguably so.

To make matters worse, even if there are potential causes of action that could be brought (in civilian court or courts-martial), it seems very unlikely that either the applicable JAG corps or US Attorney is likely to be all that interested in this case. It involves a highly classified military weapons test. You don’t drag that stuff out into the public. Certainly not when high-ranking officers and cutting-edge weapons contractors are involved.

III. Is Annie Really Dead?

Complicating matters is the question of whether Annie is really dead at all. Major spoilers here, but some significant portion of her consciousness survived in the suit, which itself survived the explosion. Since she’s arguably still around, is it even homicide?

Yes. The law makes no provision for the survival of the person independent of the body. As far as the law is concerned, you are your body. Full stop. The legal system is entirely agnostic as to the nature of consciousness or the existence of non-material souls. In most states, death is defined (and homicide is thus dependent upon) the Uniform Determination of Death Act, which provides that a person is dead upon the permanent cessation of either (1) all brain activity; or (2) the cardiovascular and respiratory systems. Annie meets both of these definitions, as her body is spread over a significant chunk of the landscape, even if some of her genetic material has been absorbed by the suit. Whether or not her “consciousness” continues to exist—or whether it’s even numerically identical with the person she used to be—is of no relevance whatsoever to the legal analysis. Her body has been destroyed, so she is dead. End of discussion.

This actually has implications broader than this particular story. All those stories about people “uploading” themselves into computers via some process that destroys the brain so as to take up residence in the virtual world? As far as the legal system is concerned, those people are dead, and any resulting computational phenomena are merely interesting computer science artifacts. They’re not people. The same issue would be true of things like the transporter in Star Trek, which lead to really messy metaphysical problems. George Herbert’s advice seems appropriate here: “Thou shalt not disfigure the soul.

Even if we ignore the religious implications–and in this blog we do–we can’t ignore the philosophical implications. Death is defined at law as the permanent cessation of certain bodily functions. Even assuming a strictly materialistic world, what do we do if we have a process which destroys one body, creates a copy virtually indistinguishable from the first, and results in an entity which claims to be numerically identical with the previous person? And what do you do if the process is capable of producing two copies, as happened to Will Riker? The current definition of death strongly suggests a determination that the “original” person has died, but it provides no guidance about what to do with any new entities which result. There isn’t even any obvious reason they might be considered “persons” at all, though the mere fact of their existence ought to deal with that. It seems unlikely that a court would deny personhood to an entity which looks and acts like a human being. But it also seems unlikely that the court would recognize that this person is the same person as the one who went into the machine. We’d have one dead person and one different, living person. That would seem to run counter to many people’s intuitions about these things, and it certainly runs counter to many of the assumptions in speculative fiction. Ultimately, I think the courts’ answer is likely to be “Drop back ten yards and punt,” i.e., wait for the legislature to deal with that mess. I can’t see any court being willing to tackle a problem quite that thorny without some kind of legislative input, as the existing legislation doesn’t leave much wiggle room but leads to really counter-intuitive results.

Herbert’s advice seems more and more useful the more I think about it.

But the long and short of it for the purposes of ECHO is that Annie is, from the perspective of the legal system, dead. Her life insurance policies will pay out, her estate can be opened, the whole nine yards. No question about it.

IV. Conclusion

So Foster is probably liable for a homicide offense related to Annie, who really is dead, but finding other people liable might be difficult. The UCMJ would probably excuse the pilot, and the officers are probably situated in such a way as to make prosecution unlikely, even if they were aware of what was going on at some point.

ECHO is really worth the read. The legal issues discussed above are pretty tangential to the story itself, but the story stands in its own right as one of the better graphic novels of the last decade, if not more.

41 responses to “ECHO

  1. “And what about the military officers in the room?”

    Just because the Goverment holds title to the equipment, that doesn’t mean it currently holds operational control of the equipment. (This was a huge headache towards the end of my submarine’s yard period, we’d sometimes have to do testing that crossed system boundaries on gear that had been handed back to the Navy, so we had to get permission and support from the contractors that currently “owned” those other systems – and they had their *own* test schedules and contractual deadlines and man hours.) It’s also fairly common for the government to loan (operational control and responsibility for) equipment to contractors for various maintenance, testing, and development purposes… up to and including live ordinance for live tests. (And yes, there’s whole truckloads of regulations about this.) If the officers were observers they may have assumed it was all in the paperwork or deliberately mislead as to the nature and extent of Foster’s authority or that of the test.

    The other is that, regardless of the true nature of Foster’s authority, they may have lacked the authority (standing) to interfere with the test. Observers aren’t in the chain of command and thus may not (legally) interfere. That doesn’t stop them from doing so, but those moments of doubt could have allowed Foster to carry out his plan before they could act.

  2. Philo Pharynx

    By the UDDA somebody who has an artifical lung and artificial heart (and no natural capacity for either) would be legally dead. An interesting diemma. And it says irreversable. What about sombody who has their consciousness uploaded into a device, and then it becomes possible to download them back into a cloned body? This was irreversable, but now it’s reversable. Would they be able to have their death certificate revoked? Perhaps like somebody that was presumed dead and then appears?

    • The precise text of the model law (which may vary as enacted by the states that have adopted it) is:

      An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.

      Note that it refers to circulatory and respiratory function rather than to the heart and lungs as specific organs. Note also that it refers to “accepted medical standards”; to the extent that the use of artificial hearts and lungs are part of accepted medical standards, then someone who has both installed would not be considered dead.

      • Philo Pharynx

        That is exactly the logic that would allow for destructive teleporters to not be considered killing someone. After the teleport, the person has repiratory, circulatory and brain function. There was a temporary cessation of all three, but they were subsequently restored. The fact that it’s a different set of atoms shouldn’t matter, as a heart/lung machine would be different material as well.
        Of course, this would assume that the medical community would offeran opinion.
        The brain-in-a-computer people are still out of luck, it appears.

      • Destructive teleporters are sort of the Ship of Theseus paradox writ large. You say there was a temporary cessation of the existence of the brain, which was then restored. But was it? Is it really the same brain? There is some philosophical debate about that.

        And what if the teleporter isn’t 100% perfect? What if a single electron is in a different orbital configuration? What about two? At what point is it no longer the same person and thus the original has been killed? Is there some other, earlier point at which rather than death there has been an injury?

        These are tricky questions, and I don’t know if our current laws are all that well equipped to deal with them in a very satisfactory way.

      • @Philo Pharynx At least arguably, the difference between the transplant and the transporter is continuity. In the transplant situation, the *same* circulatory and respiratory systems are functioning. With a transporter, the old circulatory and respiratory systems are destroyed. A new set is created. The new set is theoretically identical, but its not the same. It lacks continuity with the old one, which is now irretrivably gone.

        Of course, you could argue that accepted medical standards in Star Trek makes it so that it is considered the same, but there are a couple of things that argue against it. For one thing McCoy, the Doctor, on the original series hated transporters partially for this reason. For another, the possibility of creating multiples speaks against any of them really being the unique original.

        So, easiest explanation is just that Star Trek has different laws that allow for this. Also notably Earth: Final Conflict (also written by Rodenberry, but later) avoids this since their Portals actually do transport the person, albiet near instantly.

      • James Pollock

        “Of course, this would assume that the medical community would offeran opinion.”

        I believe on Star Trek the considered opinion of the medical community was the transporters were no fit way for human beings to travel. See, for example, the commentary of the (unnamed) Starfleet chief medical officer touring the Enterprise in the first episode of Star Trek: The Next Generation.

      • Melanie Koleini

        Imagine the legal implications of someone being transported being considered dead. A serial killer could transport himself after every crime. If he is ever caught, he could argue he hadn’t done anything. All the crimes were committed by people who are now dead. The man probably would lose the legal rights to most of his property. On the other hand, before the first time he was transported, he could make a will leaving everything to the man with an identical genetic code.

      • James Pollock

        But, Melanie, that’s a problem with a transporter solution… you just run the transporter in reverse, and rejoin the bad serial killer dude back with his weenie “good side”, and all is well.

  3. I’d like to know how they got Range Control to bless off on live ordnance tests on a system with a person inside. If I wanted to give any of the Range Branch chiefs I’ve worked with a stroke, proposing this would probably be the fastest way.

    The risk assessment would be a blast to read, though.

    • Ryan Davidson

      Yeah, see that’s what I’m talking about. I know regulations about these things exist, but danged if I know what they are. Way outside my area. Like so many areas of administrative law, familiarity with civil litigation, criminal law, and even other areas of administrative law, sheds almost no light on this particular subject.

      • James Pollock

        Do the same problems with criminal prosecution for homicide affect a tort suit for wrongful death, or does it just move the venue into the federal courthouse?

      • Ryan Davidson

        Kind of. With criminal prosecutions, the question is purely one of federal sovereign immunity. Does the structure of the Constitution permit this particular prosecution or not? If the act in question was part of the federal agent’s official duties, then the analysis will be strongly in favor of immunity.

        But tort suits are subject not only to that analysis, but the Federal Tort Claims Act, by which Congress has waived part of the federal government’s sovereign immunity. But there are exceptions to the FTCA, and the military and military contractors are one of the most notable. Some of the cases I researched on this point had specifically to do with defense contractors, and the courts have been pretty willing to extend the military exception to defense contractors in the past. So it’s a slightly different analysis–statutory in addition to constitutional–but I think the result is the same.

    • My comment was a little too flip with insider detail. Installations have an office, usually called Range Control, that has several tasks. The first is to ensure that ranges are maintained and supplied appropriately, with things like targets, as well as personnel who can operate more complex target equipment. The other is to keep people using the range complex from running with scissors. (A job that is probably a little harder than it should be!)

      I can’t speak to other Services, but for the Army this type of activity is probably governed by Army Regulation 385-63, titled Range Safety. (You can find all Army Regulations here) Army Regulations are an administrative pain to update, so the regulation more or less just directs you to Department of the Army Pamphlet (DA Pam) 385-63, which is found here* The pamphlet is a relatively big document, but not terribly difficult to understand–ARs and DA Pams are for non-legal experts to work with, and try to be as self-explanatory as possible. Most of it discusses how to construct a surface danger zone (SDZ), which is an area that could possibly be struck by the type of ammunition being fired. Most installations have pre-approved SDZs for all their ranges, with the type of ammunition commonly used there. You can also request what’s called a deviation if you want to do something a range isn’t designed for.

      The other thing I referenced is a risk assessment. This is done in accordance with Field Manual (FM) 5-19, and is performed on a DA Form 7566. Basically, this is listing each forseeable hazard, and determining its risk level. (say, person in suit being killed by missle) The risk level is dependant on how likely an event is to occur, and how catastrophic an occurrence will be. The risk level is low, medium, high, or extremely high. (For the person in suit being killed by missile, extremely high) After you determine the risk level, you determine controls to lower the risk. (As David pointed out below, why not use a dummy warhead?). After the controls are in place, you determine the residual risk–again, low to extremely high. Each residual risk level has to be approved by a certain level of command before conducting the event. Low can be done by a captain, medium by a lieutenant colonel, high by a colonel, and extremely high has to be approved by the first general officer in a chain of command.

      There are sections of DA Pam 385-63 that discuss firing artillery or small arms over the heads of personnel (Paragraph 17-4, page 199), and says that the installation commander must approve it. However, I don’t see anything that contemplates firing at personnel, because I don’t know that it’d ever really be necessary. When you start doing the risk assessment process, the approving authority is probably going to have some serious questions before signing off, since Annie’s death is probably going to get hung around his neck. Range control is going to require this risk assessment prior to approving use of their range, and if it’s an unusual or high-risk event, they’re going to want a briefing on what, exactly, the plan and purpose of the test is. They’re traditionally the installation commander’s gatekeeper for making sure that subordinates are actually thinking through risks, and they’re probably going to get investigated as well if things spiral as far out of control as seems to have happened in this comic. (Hence my crack about giving them a stroke.)

      This is kind of my long-winded discussion about how the military is a lot like a corporation in your discussion of Torchwood–the military is opaque to outsiders, but there are a lot of people who would have to know what’s going on inside the organization, and many of these people would probably have some pretty serious questions.

      • Ryan Davidson

        That’s all very helpful. I knew stuff like this must exist, but we’re doing this thing as a hobby, not our full time jobs.

        But your explanation brings to mind two things in the story that might actually lend some credence to this sort of thing. First, there is a very highly ranked military officer who is just jonesing for this project to work. Getting him to take a few short-cuts with administrative paperwork shouldn’t have taken much convincing on Foster’s part. Second, Foster could well have misrepresented the state of HeNRI’s existing research and under-reported the risks of the test. Given the nature of the project, this sort of thing might have been plausible enough for lower-ranking officers to miss and provided cover through plausible deniability for the higher-ranked ones, who may have been in on it to some extent.

        The actual result of the test–an apparent nuclear explosion–also seems to have surprised pretty much everyone, including Foster, so that wouldn’t have been included in the risk assessment anyway.

        So yes: the military is a vast bureaucratic organization, and as in most of these cases, for the story to have happened as described would require a combination of misrepresentation, dereliction of duty, and subterfuge. But I think the facts of the story are such that this is a bit more plausible than a lot of similar setups in other works.

        But here’s another question for you: what difference would the entire research project being part of a black budget make? I have to think that a lot of the protocols etc. that you discuss apply to routine matters, but I also have to think that highly classified tests might not be treated the same way or subject to the same scrutiny. If an Air Force test pilot were killed flying the rumored Aurora spy plane, would anyone ever hear about it?

      • “what difference would the entire research project being part of a black budget make?”

        That’s dang good question, because among the black projects that have come to light, there’s been a mixed bag – some have had no reported safety problems, others (notably the B-2 during manfacture) have had them. One of the criticisms leveled at both Hanford and Area 51 is the lack of environmental oversight.

        “If an Air Force test pilot were killed flying the rumored Aurora spy plane, would anyone ever hear about it?”

        On this, we actually have actual occurrences to measure against… Two F-117’s were lost, and their pilots killed, while the aircraft was still classified and unknown (though widely suspected) to the general public. Both crashes and deaths announced by the USAF and were covered in the media at the time, but the type of aircraft involved was… obscured by the USAF.

        Black programs may get away with a lot of things, but entirely covering up a death is going to be pretty difficult. Absent the legendary outfit made up entirely of un-adopted orphans… *someone* is going to notice and care. Notifications have been delayed and circumstances obscured, but I can’t think offhand of any case of a death being believed to have been covered up entirely.

      • @Ryan,

        To answer your last question first: officially (legally, through Article 92, UCMJ), these regulations apply to everybody, black ops or not. I’ve got a clearance, but have never worked in the secret squirrel world, so somebody who’s done so might say that I’m totally wrong. Now, as a practical matter, you need to consider the purpose of the UCMJ, which is to facilitate discipline among the armed forces. Also is how authority works: the President has it all (mostly). However, he doesn’t really have the time or the expertise to do all of our jobs, so he grants commissions to officers, giving a piece of his authority to us, within limits. You’ve been through the UCMJ in the US Code, so I’m sure you’ve noticed that there’s an awful lot of detail missing–like maximum punishments. One of the things that the President retains is the authority to specify maximum punishments, which you can see by paging through the Manual for Courts-Martial (found here:http://www.apd.army.mil/pdffiles/mcm.pdf), which the President has executed as a bunch of Executive Orders. It will also split up some of the broad stuff into specific charges and explain elements, etc. Subordinate officers also will retain certain types of authority, such as over specific crimes or specific personnel. For example, most installation commanders will retain officer misconduct or serious crimes like rape and murder at their level.

        The crux of this is that legal decisions are not made by attorneys and police, like they would be in a civilian court. The actual person making the decision to charge somebody with a UCMJ violation is somebody in that person’s chain of command, not an outside organization like the police or district attorney.

        So if somebody violates a regulation, it really is going to depend on whether his boss, boss’s boss, (etc. up to the President) wants to crush him or not. Some (most) special ops units are a lot more liberal in what they let people get away with, just due to the culture of their organizations. Somebody who’s worked with classified procurement would be able to answer how much they really let people get away with.

        As far as the nuclear explosion not being on the risk assessment, that’s a little harder to buy because I’m not sure how you’d not suspect that was at least possible if you have an amount of nuclear material capable of going critical in your equipment. Plus, it sounds from your description like the pilot was aware of a possible nuclear explosion, so I’m not sure why the hell she wouldn’t have brought that up in planning the test. However, that’s the kind of thing you pretty much have to suspend disbelief on in a comic book. However, you still have just the straight risk of killing the suit occupant by firing a live warhead at them. I don’t see how that wouldn’t get red flags, or how you’d talk somebody into that. I’m hard pressed to imagine what they were trying to prove that couldn’t have been proved without static tests against an unoccupied suit (whether or not the suit could stand the impact of a warhead) or using a dummy warhead (if the suit could dodge the missile).

      • The answer to why Annie didn’t bring up the possibility in her Risk Assessment is that clearly live fire was not part of the test she signed off on.

        To avoid such an obvious discrepancy coming out in even a routine review of the test, Foster’s lying about the nature of the test wouldn’t be just a matter of “not telling anyone what was really going on”, it would involve tampering with the paper trail–forging official documentation.

      • “The answer to why Annie didn’t bring up the possibility in her Risk Assessment is that clearly live fire was not part of the test she signed off on.”

        But the possibility of a huge explosion should still be considered, because what would happen if the suit crashed? And the fact that live fire wasn’t a part of the test would have raised some pretty serious flags when they started firing live missles on an ostensibly non-live-fire test. You’d have to do more than fake paperwork, you’d have to kill an awful lot of people who would know that the test wasn’t supposed to have live ordnance–and probably a lot more than you could reasonably get away with. You could restrict the purpose of the test to a few people, but a lot of people would have probably been involved in the planning who would know if the test was supposed to have live ordnance.

  4. James Pollock

    In the past, at least, Sidewinder exercises were performed with a captive missile (one that has had its rocket motor removed and replaced with cement. The seeker head still detects the target and issues a 400-cycle tone in the headset of the pilot, but the missile will not leave the rack. I assume that AMRAAM practice would be similar. Both are “fire and forget” weapons, unlike the earlier AIM-7 missile, which required the pilot to continue to paint the target with the aircraft radar until the missile struck.

    That said, I’m not sure that either an AIM-9 or an AMRAAM would be useful in attacking a man-sized jetpack suit. The AIM-9 looks for infrared radiation characteristic of a jet engine, and an AMRAAM is looking for targets as big as an airplane (you wouldn’t want it to be distracted by man-sized falling items).

  5. I wonder how it WOULD be tested following proper regulations.

    Even a projectile with no payload is out (mach 2.5 and 188 pounds for AIM-9) for testing evasion and remote control for the suit seems like it would be worthy of an entirely separate project.

  6. The obvious answer is Foster wanted to kill Annie, but logically why would tou do a live fire test so early, if at all, on what is seeming an expensive, flying suit in early development? If they wanted to see the suit’s performance in missile avoidance, obviously having dummy missles that don’t leave the plane would be pointless, but they clearly wouldn’t use missiles with live warheads. I would be hard pressed to believe there wouldn’t be some kind of inquiry public or private (probably public after some UFO nuts weren’t satisfied with the official explanation for the large explosion they saw) to find out why live munitions were used.

    On a side note, if it was a nuclear explosion, how would this be treated by the various nuclear testing bans the US has signed?

  7. There are indications in the Star Trek universe that the transporters really do transport the subatomic components (converted to energy or energy-like particles by some mysterious means) of the object being transported, and reassemble the object from the *same* components at the other end. Specifically, this is implied by the distinction between replicated matter and natural matter. ST transporters *can* duplicate people, but not on purpose, and it is (for example) known that it is not possible to use a transporter to produce a material copy of a holographic person.

    This presumably means that (at least under normal operation) you really are the same person after ST transportation; there was a temporary cessation of all bodily function (perhaps; to complicate matters, time dilation could confuse the definition of “cessation”) but there’s still an underlying continuity. From a QM point of view, even if some or all of the atoms did get jostled about, they’re still the “same atoms” by any meaningful test.

    Of course this only applies to ST transporters. There are works where the transporters really do make copies, I think often in order to explore the implications. Consider, for example, how the nature of interrogation changes when you can torture a person to death and then try again with a new copy, as often as you like. (I didn’t get very far into that book, as it freaked me out too much, and I’m afraid I don’t remember the title or author.)

    • Ryan Davidson

      I mean, yeah, it’s fiction and all. Apparently they’re positing that you can put Humpty Dumpty back together again after he’s been blasted to his constituent atoms and flung across a few thousand miles of space.

      But under the current legal definition of “death,” blasting you to your constituent atoms counts as killing you, regardless of what you do with the atoms afterward. There may be some arguable continuity, but there’s also an arguable discontinuity, and that’s the problem.

      • If we assume a court with a working knowledge of physics (unlikely today, but plausible in ST) I don’t think it would be too hard to win that case, based on “permanent cessation” as the legal definition. I’m not saying it would be a slam-dunk, necessarily, but I don’t see that it would be any different in principle to the heart transplant scenario.

        Arguably, all material objects are constantly being destroyed and recreated at a quantum level, held together only by an ongoing process that is somewhat similar to the way holography works. Now, IMO that’s a misinterpretation of the relevant mathematics, but the argument could definitely be made. So, if an arguable discontinuity is a problem … 🙂

        Is there any real-world precedent yet covering cryogenics? That’s another somewhat related and less abstract argument.

    • Melanie Koleini

      Believe it or not, real life scientists are conducting research that may one day lead to a Star Trek style transporter. So far the real life transporter can only teleport photons a few centimeters but, in theory, the same technique could transport matter. (Please don’t ask me to explain it. I didn’t major in physics.)
      Based on my (imperfect) understanding of the quantum physics, the transported object would never actually be destroyed but would be moved from point A to point B.

      • I *did* major in physics, as it happens, and I’m afraid that’s a misconception. Quantum teleportation is a real thing, and it may prove useful one day, but it isn’t going to lead to a transporter. 🙁

    • The question of the legal definition of death will have been re-appraised by the time Star Trek rolls around. Every major Star Trek character has been dead… several of them more than once.

    • Clifford Tunnell

      Interestingly enough, there apparently is continuity while being transported. There was a TNG episode I remember from my childhood where someone (probably Barclay; bad stuff ALWAYS happened to Barclay) started seeing things while being transported. My admittedly vague memory is that it was some sort of new lifeform that lived in the transporter beam or something.

  8. I’m not seeing any immediate threat of murder charges from using the transporter. Victim is still there, just fine, same appearance, same DNA, same identifying marks, same memories. All of victim’s friends identify victim as the being just fine and the same person. Prosecution brings up expert witnesses to testify that, in their opinion, transporter use counts as murder, victim is actually dead and the person claiming to be the victim is an imposter. Defense brings up expert witnesses to testify that, in their opinion, transporter use does not count as any sort of crime, victim is still alive and in the courtroom, prosecution witnesses are nutty. Defense brings the “victim” to the witness stand. Victim says, hi, I’m fine, I don’t know what all the fuss is about. Seems like prosecution has a tough case.

    • Melanie Koleini

      As mentioned earlier in the comments, whether or not a transporter counts as killing a person depends on whether or not the recreated person is legally the same person or someone new. If a person permanently losses their memory, they are still legally the same person. So having the same memory is neither necessary nor sufficient to be considered the same person (legally). Identical twins are considered 2 separate people so identical appearance and genetic code isn’t enough either. In practice, I suspect a prosecutor would have a hard time getting a jury to convict.

      If I take an ice cube, melt it and then refreeze it in the same shape, I still have an ice cube. But is it the same ice cube? If so why? If not, why not?

  9. As she dies on federal duty, does it matter how a state defines death?

    • That’s not a bad question, but the answer is “Yes”. Under the Constitution, Congress does not have what’s called “general police power,” i.e., they can’t legislate about anything they please, but must base legislation upon those powers specifically enumerated in the Constitution. The recent Supreme Court case about the ACA was on precisely this issue.

      But while the courts have greatly expanded Congress’s ability to act under the Commerce Clause, the foundation of most modern federal legislation, there is no question that Congress does have limits to its power. Where these limits apply, federal laws rely upon state laws to fill in the blanks. For example, bankruptcy is an exclusively federal issue. But many of the contours of bankruptcy law are actually derived from state law, e.g., the law of contracts, debtors/creditors rights, etc. So bankruptcy is always a federal case, but the federal bankruptcy courts spend a lot of time looking at state law.

      I’d argue that something like the UDDA is beyond Congress’s power and thus up to the states. Congress has certainly never attempted something like that, and it seems a good example of precisely the sort of thing best left up to state legislatures.

      • I’d lean more towards “undecided and complicated”. If she had died outside of contiguous US legal authority (I.E. in international airspace or waters, or overseas) there isn’t a state to take cognizance. I know guys died underway, but I don’t know what standard the Docs used to determine death – I should ask on my boat’s group or one of the bubblehead groups.

        I also recall from my Navy days that the drinking age on base varied not just with state laws but with who had jurisdiction over the property. How that was defined was and remains unclear to me – but the practical effects were quite visible when I was stationed in Virginia. Naval Station Dam Neck and Naval Base Norfolk were 18/21 (as was the state) – while Fort Story and Naval Air Station Oceana were 18/all. Here in Washington, NSB Bangor was 18/21, while the state was 21/all. (After this, I was over 21 and no longer paid any attention.) This implies, at least to me, that it’s not all up to the states.

      • Ryan Davidson

        The death occurred in the airspace over a California state park, so most of those jurisdictional issues go away.

      • In the case of F-117 crashes I mention above, one occurred outside of federal airspace or property – and neither the state, nor the county was called in. (Nor was the NTSB – those rules don’t apply to federal aircraft.) Now, it’s possible the USAF quietly pulled some National Security rabbit out of it’s hat… but at first glance, location did not create jurisdiction. (Nor did it in the case of any of the stateside A-12/SR-71 crashes. Nor, I believe, in the case of the B-70 crash.) So, it’s not at all clear that the location of the accident clears up the jurisdictional issues in favor of the state when Federal property is involved.

        There was however a flap (little known to the general public) over the astronaut’s bodies after the Challenger accident – the local coroner tried to claim jurisdiction, and NASA rushed the remains out of Florida to avoid the potential of an injunction or being forced to hand them over.

        But knowing now that the accident occurred in public airspace… Live fire in uncontrolled areas is pretty much implausible. That breaks the rules in ways not easily explained away.

      • James Pollock

        “Live fire in uncontrolled areas is pretty much implausible. That breaks the rules in ways not easily explained away.”

        If the argument was presented as “the suit was malfunctioning in a way that presented a danger to the population, AND elements of the suit’s tech falling into the hands of unauthorized persons would present a danger to national security”, then I could see a fighter/interceptor squadron being authorized to fire on the suit, to destroy it before it can crash and either cause damage or be at risk of falling into enemy hands, in effect to scuttle it.
        Interceptor groups maintain armed aircraft specifically for the purpose of engaging and, if necessary, destroying dangerous or hostile aircraft. Once given an order to engage, firing over an uncontrolled area is not unlikely. This would assume that the aircraft in question was not assigned a training flight, but was actually scrambled from an interceptor group (in which case there should be two of them; alert aircraft launch in pairs)

      • “If the argument was presented as “the suit was malfunctioning in a way that presented a danger to the population, AND elements of the suit’s tech falling into the hands of unauthorized persons would present a danger to national security”, then I could see a fighter/interceptor squadron being authorized to fire on the suit, to destroy it before it can crash and either cause damage or be at risk of falling into enemy hands, in effect to scuttle it.”

        Yeah, but the problem is that the suit is over a park to begin with. Not to mention a park in California. Just off the top of my head, I can think of: Fort Irwin, NAWS China Lake, and the Nevada Test Site. If you’re willing to expand the area to a couple of states surrounding, you get Yuma Proving Ground and White Sands Missile Range. All of these places are nothing but grid squares of nothing. The National Park Service is going to ask, quite reasonably, why this test isn’t occurring in any of these areas intended for that purpose.

        And to head off them just doing the test there without asking, you’re going to have probably quite a few NPS people notice something flying overhead, and you’re going to have the danger of hitting aircraft in the area. While the FAA can create restricted airspace on demand (called TFRs), these will be tough to explain away.

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