X-Men: Days of Future Past and Thoughts on Due Process

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe previously wrote guest posts on Defending Loki and Captain America: The Winter Soldier.

The Most Important Movie of the Year?

Recently, US-authorized drone strikes killed several American citizens accused of being a threat to the country based on their terrorist affiliations and unapologetic rhetoric opposing US policy.

Oh, wait . . . that was the beginning of X-Men: Days of Future Past.

You probably already know that this article will have multiple spoilers, so if you haven’t yet seen the latest iteration of Marvel’s X-Men, you should go see it soon. Then come back and tell me in the comments whether you believe in my assessment of this film or not.

What’s the Big Deal?

If you have seen Days of Future Past already, did you see what I saw? I will admit it is somewhat hidden, but only because we are trained to ignore it, since it just gets in the way.

I am talking about due process—due process, as in the opposite of capricious verdicts and judgments based on prejudice, fear, and political expediency; as in that little right we inherited from our Founding Fathers, who had experienced the lack of due process first hand and decided the Constitution wasn’t complete until we included it in the Bill of Rights.

You might disagree with me when I say the framers of the Constitution had the events of X-Men: Days of Future Past in mind when they insisted that due process be inviolate, so let’s review the instances in the movie and then see if we face the same issues today.

First Class 

Everything really started at the end of X-Men: First Class when, in a mercurial moment, mutants went from heroes to goats on the beach in Cuba, incurring the wrath of the instantly allied US and Soviet fleets. The Soviets would obviously have no problem firing on a small contingent of Americans, but why did the generals calling the shots in Washington order the execution of US citizens without due process? And why were the American Sailors, so soon after World War II, willing to “just follow orders,” especially after hearing Agent MacTaggert screaming over the com that the situation was contained?

I guess their justification for such an attack was fear; fear based on ignorance and concern for safety. Which, by the way, is the same tactic currently exercised by law enforcement across the country. In fact, according to the Bureau of Justice Statistics, police kill 400 – 500 innocent people each year out of fear for their own safety, significantly more than the 33 officers killed by firearms each year in the line of duty.

A 2012 example of irrational fear in Cleveland, not unlike the attack levied against the mutants on the beach, involved a man and woman whose car backfired. The retaliation by police to the possible gunfire from the car resulted in a force of 60 police cars pursuing the now frightened couple and ended with 115 officers firing 140 bullets into the car in less than 30 seconds. The unarmed couple was pronounced dead on the scene.

Kennedy Assassination

Speaking of no due process, although the details were sketchy on how the US government accused Magneto of complicity in the JFK assassination, it is clear that government suspicion that Magneto manipulated the “magic bullet” was justification for his incarceration.

Of course, in 1963 Erik Lehnsherr’s incarceration was illegal, but now after several rounds in congress and many court challenges, the President on December 26, 2013 signed into law that the government can arrest anyone on suspicion only and detain them indefinitely without trial. Welcome to Magneto’s world.

Not that I subscribe to the rhetoric of Magneto, but you have to admit that being thrown in solitary without due process, tends to sap any loyalty one might have for King and country; whether you are a German Jew or a US Citizen of the wrong color, species, or ideology.

Vigilante Justice

One element of vigilante justice that makes it not only illegal but immoral as well is that the vigilante, lynch mob, or angry villagers with torches and pitch forks don’t feel bound by due process. Their aim is to dispense justice, quickly—right or wrong. What drives the vigilante is fear that justice won’t happen without them taking over.

Vigilante justice in Detroit occurred in April of this year when a man hit a 10-year old boy with his truck. The driver stopped to help but was immediately beaten into a coma in retaliation even though surveillance cameras would later show the boy ran in front of the oncoming truck leaving no time to stop. Concern for due process would have allowed the mob to see that the man was not at fault after a thorough investigation.

But in another universe, maybe the boy was a mutant, and his fellow mutants felt that there would be no justice unless they acted on their own. Thus was the mindset of Mystique as she set about finding and executing Trask. It all seemed clear what she had to do since nobody else was willing to stop Trask from continuing with his plans against mutants. Due process wasn’t on her mind, and as it usually does, her vigilante justice backfired.

Due Process and Personhood

Without getting into a history lesson on civil rights in America, one doctrine that kept slaves and minority races under the boot of the majority was the belief that they didn’t fully qualify as human. The majority claimed belief in rule of law, due process, and justice, yet denied an equal share of this philosophy to those deemed as “less human.” This belief also fueled the Holocaust in Germany, where enslavement and execution of “untermenschen” or “subhumans” was ok, to the tune of eleven million dead.

Trask was quick to play on this flaw in humanity when he was able to convince the powers that were, that mutants, by virtue of their differences also didn’t deserve consideration as humans and should be targeted as enemies. His deep seated prejudice was made plain when, suspecting a Vietnamese general to be a mutant, he said to others in the room driven to panic, “Don’t shoot it.”

Denying Due Process 

I dare say, in a classroom most students would see the injustice and immorality of denying human rights to any individual based on race. Maybe racist attitudes are fading away in our culture. Let’s hope so. But my discussion has not been about the obvious ethnic lessons of X-Men: Days of Future Past. I have been talking about due process and why we should be aware of its importance.

To whom are we willing to deny due process today? Do you think we should afford all people the right of presumed innocence? Or are some crimes so heinous that it is hard to restrain us from rushing to judgment and bypassing due process? Unfortunately, I have seen instances where many people feel that for some crimes due process isn’t important and should be suspended. Let me toss around a few words. Let’s see what your emotional response is to arresting:

  • Drunk drivers;
  • Terrorists;
  • Child molesters;
  • Rapists;
  • Drug dealers

A police officer arrests and handcuffs a man.

You have the right to . . . oh never mind, just get in the car @$&hole.

The question is, are we willing to trust our system of justice when it comes to these types of crimes? Or do we treat these individuals as “mutants . . .” to be feared and condemned as guilty before they are even tried? In the case of a drunk driving arrest, you are presumed guilty. Your license is suspended and you are given a notice of suspension. Police officers in these cases are judge, jury, and executioner. It is a very efficient system.

However, putting justice in the hands of the people can be slow. It was a risky move by the founding fathers. Many feel that people show too much mercy and not enough justice. They fight for mandatory sentences, new laws, and regulations that take authority away from the judge and jury. They allow exceptions to every right we have in an attempt to control our “unruly” system.

I like what Charles Xavier said to Raven at the end of X-Men, “I have been trying to control you since the day we met and look where that’s got us . . . I have faith in you Raven.” Perhaps we should have faith in each other as well.

Due process isn’t perfect, but it is fair. It is foundational to our freedom. In light of the alternative, it is a pretty big deal. Is it significant enough to suggest that X-Men: Days of Future Past is the most important movie of the year?

Ask me again in ten years.

61 Responses to X-Men: Days of Future Past and Thoughts on Due Process

  1. I can understand movies glossing over due process. But after I saw a few of my friends arrested for DUI, I was surprised how every aspect of a DUI arrest is now an exception to due process and Constitutional rights. Evidently the 5th amendment doesn’t apply since you are supposed to willingly provide evidence against yourself. And that is just one example. And now that the government can detain someone indefinitely without trial, one could only hope that the X-men will come to our rescue soon.

    • Melanie Koleini

      There is a deference between lack of due process and presumption of guilt. For example, when someone is arrested for drunk driving they are (apparently) presumed guilty. But doesn’t the defendant have the opportunity to prove their innocence in court?

      Wether or not you think presuming someone’s guilt is acceptable, people arrested for anything are being ‘punished’ before their day in court. They are held in jail if they can’t afford bail. If they can afford bail, they usually have to go to a bail bondsman–meaning even if they are found not guiltily, they are still out the money for the bond. They have to pay court costs and for legal representation. And even if they are completely innocent, the arrest will usually show up on future background checks.

      • There is a big difference between presumed innocence and presumed guilt. Under the principle of presumed innocence, a defense attorney doesn’t necessarily need to produce evidence of innocence, rather hold the prosecution to their task of proving guilt. Under presumed guilt, the defense has to do whatever possible to prove their client innocent. Without going into all the details, fighting presumed guilt changes all the rules. It is a lot like beating the house in Vegas. Since presumed guilt has become the unspoken standard in DUI cases, the rules for DUI have become the exception to the rules of law.

      • Martin Phipps

        Yes but what about when someone appeals a conviction? Doesn’t the defense have to prove their client innocent? The accused no longer has the presumption of innocence because the accused was convicted. Indeed the judge doesn’t even have to hear an appeal if there was nothing wrong with the first trial nor any new evidence. So a DUI hearing is more like the appeal for an on-the-spot conviction rather than an actual first trial.

  2. Edit that Holocaust bit to read 11 million. Jews got the largest population, but homosexuals, gypsies, “genetically defective” types, and others helped fill out the population.

    • Actually, estimates are closer to 13 million. 6 million Jews and 7 million other “undesirables”. It’s kind of ironic that in teaching about and discussing the systematic dehumanizing of a population and attempt to remove them from history, we largely disregard a large group of people, namely all the gentiles who were murdered by the Nazis.

    • With the author’s permission and following my own independent verification I have revised the post from six to eleven million. To be fair to the author there is some debate about whether the term “Holocaust” should be used to refer to all mass-killing by the Nazi regime or only the Jewish genocide. For example, Yad Vashem defines the Holocaust as “the murder of approximately six million Jews by the Nazis and their collaborators.” I cannot stress enough that this debate (and any further debate regarding the scale of mass-killing by the Nazi regime) is absolutely beyond the scope of this blog and its comments section.

  3. Once again, I’m afraid that I found this guest post lacking in substance, consisting more of philosophical pontifications than actual legal analysis. To me, a perusal of actual 1960s-70s law would make for a much more interesting write-up. True, Mr. Suhre did mention a law passed by President Obama last year, but he didn’t fully expand on just how the law back in the day would treat these situations. A more on-topic post would have ditched the political commentary and focused on what the actual legal ramifications of this stuff. Just thought I’d throw that out.

  4. Martin Phipps

    Actually, I found this post to be adequate. It seems to me the regular contributors here tend to avoid civil rights issues in favor of patent law and the like, although the issue of privacy has been well explored here. I imagine this is partly due to a desire to not have the blog become political in nature or to avoid the semblance of giving legal advice. If anything, this post went a bit too far in trying to defend drunk drivers. I mean, sure, the analogy is valid to an extent: a drunk driver is considered a danger to public safety and, well, so are mutants. I believe the concept of mutant registration was covered in the blog before or at least superhero registration in general was. The very fact that records are kept as to who is a mutant and who isn’t doesn’t violate due process, although there are the issues of privacy and potential discrimination, especially if anybody can access the records and find out who is a mutant. But shooting mutants on sight? Yeah, that violates due process. Of course, that’s where the analogy breaks down because we don’t shoot drunk drivers on sight. Not yet anyway.

  5. James Pollock

    I believe that the justification for forcing drunk drivers to consent to testing is that if there’s something you want, but can do without, the government can require you to waive your rights to get it. So, the government doesn’t have to allow you to operate a motor vehicle on the public roadways, so they can require consent to testing as a condition of allowing you to do it, they don’t have to let you be on a school sports team, so they can require drug testing to participate.

    The people of the United States, acting through their state legislatures and Congress, overturned Scot v. Sanford… but only in the case of “persons”. If you can make out the case that whoever is seeking access to the courts is not a “person”, then Scot v. Sanford is still applicable. Sorry, cetaceans. So, is Magneto enough like a human being (no X-gene) to qualify as a “person”, or is he dissimilar enough to be classed as something else?

    Obviously, you can’t judge Mystique by the color of her skin. But surely you can judge Angel by the number of his wings?

    • James Pollock

      Oops, having finally gotten around to seeing X-Men: First Class, I must correct that to Angel and HER wings.

  6. In mentioning that the sailors in First Class were not that far removed from WWII (although in 1962, a good number of enlisted men wouldn’t have active memories of the war), it should also be kept in mind that during the war the US engaged in a process of rounding up people the government deemed dangerous for no reason other than their ethnic heritage. This was long before the US government formally apologized for the Japanese internment (and remember, even for us in 2014, Korematsu is still good law), so the government could reasonably claim that they were justified under the law in protecting American interests from an internal threat during a period of increased security concern (i.e. the Cuban Missile Crisis) and would not need due process. There would still be arguments to be made about whether the gravity of the situation rose to the level of war to justify triggering Korematsu-based lack of protections, but the government could make the argument (This is pre-Gulf of Tonkin and the changes brought about to presidential authority from that, but post-Korea so the US had already fought a full-fledged war that went wholly undeclared by Congress). Whether they were morally in the right is a separate matter (spoiler: the answer is no).

    • James Pollock

      During times of peach and relative prosperity, it is easy to remember that people are people. But in times of war or lack of economic security, it is far easiser for a demogogue to slip the “those aren’t really people” idea past people who should know better. When you figure that the mutants of X:FC and XDOFP are presented as not just another race of human, but as another species, dehumanizing them is starting out one giant leap closer to completion. The fact that they’ve tried to precipitate a nuclear war, the threat seems a little elevated, too. (Americans didn’t accept Korematsu in a vacuum, they accepted it post-Pearl Harbor. The PATRIOT Act passed post-9/11. The Superhuman Registration Act passed post-Stamford.

  7. James Pollock

    I only just got to watching X-Men First Class this weekend.

    Did anyone else familiar with both the film and the comics think that “Agent MacTaggart” should have been “Agent Danvers”?

    • X-Men First Class was loosely based on Uncanny X-Men #161.

      http://marvel.wikia.com/Uncanny_X-Men_Vol_1_161

      “In Xavier’s mind, he is in Israel, 20 years ago, meeting his old friend Daniel Shomron. Daniel contacted him to help with a patient, Gabrielle Haller, who is catatonic after her experiences imprisoned in Dachau during WW2. Daniel introduces Xavier to Magnus. They go to see Gabrielle, and Xavier enters her mind. There he discovers a wall, and she summons psychic monsters to force him away. He breaks down the wall. There he relives Gabrielle’s experiences in the concentration camp, including a mysterious final metaphoric memory in which the camp supervisor turns her into a statue of solid gold. Following this, Gabrielle wakes up, and they put her to bed after letting her cry herself out. They go to Daniel’s office, connecting most of the images she conjured to reality, but the golden statue bit perplexes them. Unfortunately, they are overheard, and a mysterious figure sneaks away to inform the “leader”, with a mental “Seig Heil!”.

      Over the next few weeks, Charles and Magnus take Gabby around Israel as she starts to put herself back together. During this time, Charles discusses his theories of mutation with Magnus, who believes him, but thinks coexistence is naive and impossible. Gabby, meanwhile, desperately needing to love and be love, begins wooing Charles, who assents against his own better judgment. Suddenly, they are attacked by Hydra. Israeli soldiers quickly come to their aid, but they are overmatched, and Charles is knocked unconscious by a bullet grazing his temple. The attackers capture Gabrielle and are escaping in their transports when one of them is suddenly and violently torn apart! However, the one carrying Gabrielle gets away. Charles saw Magneto alight with energy on the roof as the vehicle was destroyed, and asks him about it, to which Magnus responds he did what he had to do. They have a prisoner, and Xavier quickly extracts the information needed to track Gabrielle down.

      Charles and Magnus infiltrate Hydra to discover that Gabby was programmed with directions to the Fuhrer’s hidden gold reserve, hidden towards the end of the war. They use their powers to rescue Gabby, in the process revealing to each other what abilities they have, but ending up in the cave with the gold. Baron von Strucker attacks them, only to be easily defeated by Magnus’ magnetic powers. Magnus punches a hole through the roof, levitates Charles and Gabby out it, followed by the gold, and then collapses the cave on Baron von Strucker as he leaves.

      On top, Magnus and Charles have a philosophical confrontation, and Magnus flies off with the gold. Then Gabrielle comes to, and she and Charles share an intimate moment.”

      So Moira MacTaggart should have been Gabrielle Haller and Sebastian Shaw should have been Baron Strucker. Of course, they couldn’t use Baron Strucker but they did make Sebastian Shaw a Nazi. Note that there was an Easter egg in First Class with Erik pretending to want to sell Nazi gold when what he was really doing was trying to get information about Shaw.

      • James Pollock

        With respect, you’re way over-analyzing the question.

        Moira MacTaggart (comics) is a Scottish scientist. Carol Danvers (comics) is a US military officer engaged in security work. Agent MacTaggart (movie) is a CIA field supervisor.

        I suspect that Carol Danvers is one of those characters torn between two licensing deals. She was associated with the X-Men, but also with the Avengers. Marvel licensed the X-Men characters to 20th-Century Fox, but kept the Avengers for its own movies. We’re about to see how this gets handled with Wanda and Pietro Maximoff, who appeared in X-Men Days of Future Past but will also be in Avengers 2.

      • Martin Phipps

        Perhaps I misunderstood. Agent MacTaggart COULD have been Agent Danvers but that would have made Carol Danvers the same age as Xavier and Magneto.

    • James Pollock

      If she isn’t the same age, she’s close.

      She was a Major in the Air Force in 1968, meaning three bumps in rank (2Lt to 1Lt, 1Lt to Capt, Capt to Major) following at least a 4 year degree. And a female officer in the 1960’s probably wasn’t getting promoted as soon as she reached the zone, either.
      Considering that several of the ages were retconned for X:FC (in the comics in 1961, Xavier was assembling his team (their first appearance wasn’t until 1963, but by that time they’d been working together for a while.) Hank McCoy was a student, contemporary with Scott, Jean, and Warren, older by a few years than Bobby. Magneto was a full-grown man; the first X-Men movie was the first to put him in the camps (AFAIK) although it seems an obvious origin for his distrust of man and quest for dominance.

      So, I’m still sold that the writers of X:FC should have used Carol Danvers as the CIA field supervisor. Moira MacTaggert is a familiar name, but the character is changed in all other aspects, for no apparent reason. I think the reason they DIDN’T use Danvers is because they couldn’t… she’s an Avenger, not an X-man.

      • Martin Phipps

        She is clearly much younger than Xavier in the comics. They wanted a romantic partner for Xavier and Xavier and Carol Danvers would have been creepy.

      • James Pollock

        “She is clearly much younger than Xavier in the comics.”

        So was Beast. In the movie, he’s not. Emma Frost is close enough in age to have a romantic relationship with Scott Summers. In the movie, Scott isn’t even there, and Emma is contemporary with Xavier. In the comics, Havok is Scott’s younger brother. In the movies, he’s contemporary with Xavier.

      • Martin Phipps

        But your argument is that she SHOULD have been Carol Danvers and not simply that she COULD have been Carol Danvers if you imagined that Carol Danvers were closer in age to Xavier. Part of the problem is the sliding time scale in comics: you say the character Carol Danvers was around in the sixties but she is still a young woman in the comics. It’s like saying Spiderman was a teenager in the sixties so he should be in his sixties now. He’s not. In the comics, young characters are always young and older characters are always older, except in flashbacks in which case the young characters would be babies.

      • James Pollock

        Carol Danvers, in her first comics appearance, was a Major in the Air Force. That puts her in her thirties from her first appearance. She is contemporary with Xavier, in the comics.

        That’s NOT like saying Spiderman was a teenager in the sixties, so he should be on Social Security now. “Comics time” has nothing to do with it. Xavier first appeared in 1963; Danvers first appeared in 1968, both in fully adult roles (unlike several characters who first appeared as teenagers… the original X-Men, Peter Parker, and Johnny Storm for example… at around the same time.)

        Go back to the original claim. They changed Dr. MacTaggart, scientist researcher on mutant expression from Scotland, into American CIA agent MacTaggart. That’s a bit of a retcon. Meanwhile, Maj. Danvers was there to be used but not.

        Your theory is that they couldn’t use Danvers for the “national security agent” role because she’s the wrong age. Disproved.

      • Martin Phipps

        I’m pretty sure Xavier was well over thirty when he was introduced in 1963: he had already graduated from university and established a school in upstate New York. In the movie he was a child in 1942 so he would have been in his late twenties / early thirties in the sixties. However, that means in 2023 he would have been in his late eighties! Carol Danvers, however, is clearly not an old woman in the comics so she couldn’t have been in her thirties back in the sixties (fifty years ago). It’s called a sliding time line and it means that Xavier is always much older than Carol Danvers even though you would think they would both be seniors by now.

      • Martin Phipps

        > Your theory is that they couldn’t use Danvers for the “national security
        > agent” role because she’s the wrong age.

        My theory is that they referenced the comics and found that Magneto was in Auschwitz (as established in Uncanny X-Men #161) and that Xavier and Magneto were contemporaries who met “twenty years earlier”, presumably in 1962. They did the math and decided that Magneto was a child in Auschwitz. Meanwhile, in Uncanny X-Men #96 it was established that Xavier got his Phd at Oxford University which is where he met Moira MacTaggert. The backstory and timeline for Xavier and Magneto in the movies is about right. Of course the main problem was that they couldn’t use Baron Strucker and Hydra as the villains for X-Men: First Class so they used Sebastian Shaw and the Hellfire Club instead. That being the case, Moira MacTaggert should have been Gabrielle Haller, especially because Moira MacTaggert was already introduced in X-Men: The Last Stand. Making her Carol Danvers would have just been creepy because, unlike Xavier and Moira, they were never had a romantic relationship in the comics and their age difference makes it difficult to imagine. (If Magneto was a child in Auschwitz and Xavier is the same age as Magneto then he is much much older than Carol Danvers in the comics.)

      • Seriously, let it go.

  8. Insightful article! It seems that the courts have been carefully crafting ways to get around our Constitutional Rights. We should change their name to the Criminal System of Justice, because it’s criminal how they have eroded our rights. Hollywood is in league with this takeover, brainwashing people to think that authoritarianism is normal. Suspects have no rights! It seems that the only class with rights is law enforcement!

  9. This post is terrible. It’s like the one about Clark Kent’s taxes, which used Clark as an example, but contained pretty much nothing specific to Clark.

    If you’re going to accept a superhero story at all, you need to accept that in the context of the story, there are people who do bad things, but cannot be handled by normal law enforcement, and vigilante justice is required. Tying this into real life ideas about vigilante justice is like pointing to a superhero fight and asking “under what circumstances are we permitted to cause a concussion “–you want the genre to illuminate something that it has to explicitly ignore. X-Men movies with anti-mutant attacks are about bad vigilante justice versus good vigilante justice, not about vigilante justice being universally bad.

    Furthermore, many mutants are actually dangerous. Mutants have often used as a metaphor for minorities, but that’s a point on which the metaphor fails and the difference between comic book worlds and reality becomes obvious.

    • James Pollock

      “If you’re going to accept a superhero story at all, you need to accept that in the context of the story, there are people who do bad things, but cannot be handled by normal law enforcement, and vigilante justice is required.”

      I don’t think you HAVE to accept that. You maybe have to accept that the lead character believes that. You could do a remake of “Home Alone” with the Power Pack tripping up the bad guys, and still think that the regular police could have handled the bad guys. You could have the Flash rescuing people from fires, and Superman getting cats out of trees, even though boring mundane fireman can also do these things. You could have Superman flying up into space to smash a space rock that’s going to hit the Earth, or we can send Bruce Willis.

      • Ken Arromdee

        Okay, if you want to have a non-contrived, non-deconstructionist, story about superheroes as ordinarily understood, then you have to accept that. It’s true that in an atypical Superman story, he might not do anything vigilanteish, but those are *atypical*. Most Superman stories aren’t and won’t be like that.

      • You have to define the term “vigilante” and “vigilante justice.” Superman, Batman, the X-Men, or another superhero or superhero group apprehending a criminal or stopping a superpowered threat is not necessarily vigilante justice. Superheroes often (more or less) work within the law: self-defense, defense of others, defense of property, citizen’s arrest, the use of reasonable force, handing villains over to the police, coordinating with the police, being willing to testify in court, stopping “cosmic” threats that are outside the jurisdiction of any earthly legal system, etc.

        Compare that to what Mystique set out to do: kill Trask without any legal justification, not even close. That’s vigilante justice. Trask was not about to kill Mystique or anyone else. Indeed we later learn that he must have said as much just before she shot him in the original timeline.

      • James Pollock

        The Fantastic Four aren’t crimefighters, per se, either. There aren’t any criminals in the Avengers movie, just aliens. In Superman IV (atypical?) the enemies are nukes.

        The vigilante-justice theme is one that comics often use, but it isn’t inherent.

      • Martin Phipps

        In Marvel, Spiderman, Daredevil and MoonKnight were vigilantes whereas the Avengers, the Fantastic Four and the X-Men were not. Marvel even introduced the Superhero Registration Act which outlawed vigilanteism (although some writers made it seem as though simply having superpowers was illegal). In DC, all the major characters are vigilantes: the Justice League operates independent of any government organisation and the Justice League members seem to be able to do whatever they want anywhere they want; they even have a satellite looking down on the Earth looking for trouble. In the movies, the Avengers were working for SHIELD, which originally was introduced as a government organisation and then a couple of years later we found out that it was started by Howard Stark: this was not a contradiction because Howard Stark was clearly working for the government during WWII so through SHIELD he continued to work for the US government except that we now know (mostly through the TV show) that most countries around the world allowed SHIELD to operate within its borders. By extension, the Avengers were also allowed tho operate internationally.

        I suppose one could ask what the legal status of the Avengers is now that SHIELD is no longer recognized by the US government and presumably other governments around the world. It was implied on the SHIELD TV show that if SHIELD agents continued to operate then they will be considered, at best, vigilantes and, at worst, terrorists. It’s sort of like the situation we had in the first Iron Man movie: when the movie begins, Tony Stark is in Afghanistan and he is authorized to be there by the US military but when he goes back to Afghanistan as Iron Man he is not authorized to be there and the US military actually tried to shoot him down. This will have to be addressed in Avengers: Age of Ultron, specifically at the beginning of the movie when the Avengers face Baron Strucker, will they be going after Hydra under the authorization of the US government or will it be Tony Stark “privatizing world peace” again?

    • Some people seem to think that groups such as the Avengers don’t count as vigilantes because they work for the government.

      First of all, the Avengers don’t always work for the government, even in the movies. Remember when the Avengers threw a nuclear bomb through that portal? It clearly was not done with government approval.

      Second, remember how this was brought up. James Daily mentioned vigilantism in the context of lack of due process, which applies to both vigilantism and government malfeasance. Pointing out that superheroes aren’t vigilantes because they trespass and beat up people without due process on the orders of the government rather than on their own, saves them from the specific accusation of vigilantism, but doesn’t really save them from the larger accusation that he’s talking about.

      Third, just because a superhero doesn’t kill and leaves the criminals for the police doesn’t mean he isn’t a vigilante. Almost all superheroes perform breaking and entering and rough up hoods to obtain information. Also, in this context, note that if you invade someone’s building and use force against them to defend yourself from them, that is *not* self-defense just because they hit you first. Spider-Man, for instance, is certainly a vigilante.

      • Martin Phipps

        I think we can break it down to a simple rule of thumb: vigilantes operate outside the law. There is presumably nothing unlawful about what the Avengers, X-Men or Fantastic Four do. If there is , the government knows where they live. Note that in an apocalyptic future where being a mutant alone is sufficient cause for the government to hunt you down using deadly force then obviously the X-Men would be considered vigilantes. In fact, they’d probably be classified as terrorists (especially if they are working with Magneto).

        Spiderman clearly operates outside the law and not just simply because he is trespassing. The fact is that not a single person who is webbed up is lawfully detained. Does Spiderman contact the police to let them know he has performed a citizen’s arrest? Does he wait for them to show up? Does he make a statement? Does he answer their questions? Does he provide evidence? Does he testify in court?

        I suppose you could argue that if the Avengers were to, say, go after Norman Osborn and hold him without charges then they would be acting as vigilantes. If they did then the government would send a liason like Henry Gyrich to tell the Avengers to cease and desist such activity. The Avengers are not immune to being accused of vigilantism but such vigilantism would strain whatever relationship they had with the proper authorities.

        “The difference between a terrorist and a freedom fighter is a matter of perspective: it all depends on the observer and the verdict of history.”
        ― Pentti Linkola, Can Life Prevail?

        “One man’s terrorist is another man’s freedom fighter”
        — Gerald Seymour, Harry’s Game

  10. “In Marvel, Spiderman, Daredevil and MoonKnight were vigilantes whereas the Avengers, the Fantastic Four and the X-Men were not.”

    By my calculation, Daredevil, Moon Knight, and the X-Men are vigilante (How did you miss the Punisher in your list?) The Fantastic Four and Spider-Man are not, and the Avengers sometimes are and sometimes are not. (The definition I’m applying is “attacks and/or captures criminals outside the normal methods used for formal criminal justice.”)

    Batman originally pursued organized criminals, and so did Superman. Batman evolved towards fighting costumed super-criminals because you can only tell so many stories about fighting ordinary criminals. Superman evolved to face more-powerful enemies because, let’s face it, taking on a bunch of bad-guys with tommy-guns is boring for the bulletproof. Superman doesn’t restrict himself to fighting criminals; he also provides disaster relief and uses his abilities to fight fires and rescue people who’ve fallen off one of Metropolis’ many high buildings.

    Note the difference between Batman and Spider-Man… Batman seeks to punish criminals for what they’ve done; Spider-Man tries to prevent crimes. The difference is in their origins… Batman couldn’t do anything to save his parents, but Spider-Man could have prevented his uncle’s murder but failed to do so. Contrast both with the Fantastic Four; their origin had nothing at all to do with crime or criminals, they were trying to be the first people into space. Or, another origin story I liked, the TV version of the Hulk’s origin… Dr. Banner is trying to figure out why he was unable to save his child trapped under a car after a car accident. The TV Hulk always helped out the innocent and punished the guilty, but that wasn’t either Dr. Banner’s intention when the beast was released nor the Hulk’s goal when he rampaged.

    • “Spiderman Spiderman Friendly neighborhood Spiderman
      Spins a web Any size Catches thieves just like flies”

      I always thought Spiderman was a vigilante. Indeed, we’ve talked before about the problem of Spiderman webbing up criminals and leaving them for the police. What were they charged with? Nine times out of ten they probably argued that Spiderman webbed them up for no reason whatsoever and unless the police already had a warrant for their arrest they would just have to let them go. Spiderman was clearly acting outside the law. Captain America, under the same circumstances, would surely have waited for the police and offered to testify in court as Steve Rogers. In fact, all of the Avengers, in theory, would be able to testify in court because the Avengers keep retinal scans of their members on file (as shown in Avengers #227) which means that the Avengers organisation as a whole could vouch for their identity. I suppose the question is whether a masked Spiderman testifying in court still violates the confrontation clause if it can be established he is who he claims to be.

      • James Pollock

        ” we’ve talked before about the problem of Spiderman webbing up criminals and leaving them for the police.”

        Yes, we have. He leaves the evidence behind, and has been known to leave a note, as well. But he won’t testify in court, so the prosecutor has to build a case around the big, Spider-Man shaped hole. I suppose defense attorneys could present arguments that Spider-Man has framed their clients, webbing up some random guy and adding “evidence” to make him look guilty. Spider-Man’s pusuit isn’t punishment of bad guys… it’s preventing crimes from being completed. A webbed-up mugger isn’t mugging anyone else that night, whether the person who was being mugged when Spider-Man came on the scene testifies at the trial 8 months later or not.

        “Spiderman was clearly acting outside the law.”
        No, he wasn’t. (Except for the many, many times police were authorized to detain him but were unable to make him remain on the scene, and a few thousand trespassing offenses.) Spider-Man patrols the city. When he finds a crime in progress, he acts to stop it, using proportionate force. That’s entirely within the law.

        Again, compare to the Punisher, whose goal is punishment (duh) of criminals, and who is unmistakeably a vigilante. He tracks down criminals, particularly criminals who escape justice by legal trickery. He kills them, regardless of the results of their jury trials, and frequently without one. No due process. Usually no process at all.

        “the Avengers organisation as a whole could vouch for their identity.”
        Unless, of course, the entire team has been “fired” and replaced by, say, Norman Osborn, who fields a team with similar costumes and abilities. There are periods in Avengers history when they’ve acted “officially”, and times when they have not. I’m not an Avengers fan, so I only know a little bit of the history (and I’m sure some of what I know has been subjected to retcon since).

        Superhero stories are about people with extraordinary abilities. In order to be interesting, those stories have to be about the hero(es) using their talent(s) in a situation where their talents are needed. That’s why Superman doesn’t fight street gangs any more. There’s no tension in the drama if the hero’s never in danger. That’s why Batman is, and probably always will be, more popular than Superman. The situation that requires the super-abilities of the hero(es) doesn’t have to be criminals… it’s just that that’s the type of superhero story we usually get, because there’s an endless supply of criminals to meet the monthly deadline. But you could do an entire story about that time there was a blackout in Gotham City, and Batman spent his time helping people who were suffering because of the blackout… rescuing people trapped in elevators, or injured in train crashes because the signaling went out or the train derailed because the switch didn’t finish switching before the power went out, parents separated from their kids who have to cross the city to get to them, and so on. And if you can do it in Batman, whose sole purpose in life is the capture and punishment of criminals, you could do it with any superhero in any comic book. Superman puts out fires and rescues kittens stuck in trees for grateful children. Spider-Man visits sick children in the hospital (“The Kid Who Collects Spider-Man” is probably my favorite Spider-Man story ever.)

      • James Pollock

        Good lord. And I was thinking of adding another couple of paragraphs when I cut them out and hit submit.

      • Ken Arromdee

        Yes, of course you could have a story where a superhero helps people in a blackout or does other non-vigilante things. Occasionally you do. But the superheroes we’re actually talking about all are vigilantes in a large proportion of their stories (or work for the government and violate due process in ways that would make them vigilantes if they didn’t work for the government).

      • James Pollock

        “But the superheroes we’re actually talking about all are vigilantes in a large proportion of their stories”

        Go back upthread and see the argument that explains why some of the superheroes we’re actually talking about are not vigilantes. Specifically, the Fantastic Four and Spider-Man are not vigilantes in a large proportion of their stories. Superman is for truth, justice AND THE AMERICAN WAY.

  11. “Spiderman was clearly acting outside the law.”
    No, he wasn’t. (Except for the many, many times police were authorized to detain him but were unable to make him remain on the scene, and a few thousand trespassing offenses.)

    In other words, no he wasn’t, except all the times he was.

    • James Pollock

      “In other words, no he wasn’t, except all the times he was.”

      Um, yeah. Spider-Man trespasses a LOT. Which has what relevance to whether or not he’s a vigilante? When Spider-Man fights criminals, it’s generally lawfully. When he acts, he does so with a good-faith belief that he is acting in defense of self and others to prevent felonies… which is not vigilantism, even if you go looking for the opportunity to do so.

      I’m sure New York has statutes requiring safety harnesses for people on the outsides of buildings, which Spider-Man ALSO routinely violates. And Batman speeds a lot, and operates the Batwing in violation of a LOT of FAA regulations, and Wonder Woman’s invisible airplane probably doesn’t have the requisite safety inspection record, and Superman’s probably routinely in violation of various “peeping Tom” laws, and so forth. And hey! Most people who drive routinely exceed the posted speed limits.

      • Ken Arromdee

        Spider-Man’s “good faith belief” would collapse the first time he asked a lawyer. Go back to the original guest post–the problem is due process. Spider-Man doesn’t give the people he catches due process. While due process is irrelevant if he’s actually seeing someone rob a bank and uses force to stop them, he certainly isn’t allowed to beat up criminals until they answer questions, or to gratuitously destroy property. And why doesn’t he show up at the criminal’s trial so that he can be cross-examined as a witness?

        And it’s still not self-defense if he trespasses, gets attacked, and fights back.

        These are not trivial offenses like violating speed limits. These are things which, if done by real law enforcement in a realistic situation, would lead to a police state.

      • Martin Phipps

        “And why doesn’t he show up at the criminal’s trial so that he can be cross-examined as a witness?”

        One time he appeared in court and the judge asked him how he could prove he was Spiderman and Spiderman started crawling the walls and the judge said, no, he needed some identification that said he was Spiderman.

      • James Pollock

        “can I shapechange to copy someone down to the face, voice, and retina scan.”

        Spider-Man faced someone who could in one of the first handful of issues of ASM… Spider-Man caught him because he chose to imitate Peter Parker.

      • James Pollock

        “Go back to the original guest post–the problem is due process.”

        What process does a citizen have to provide when applying force to stop a felony? The answer, of course, is “none”.

        Spider-Man doesn’t punish people for the crimes they commit… he just stops them from completing the crime. That’s authorized by statute.

        “he certainly isn’t allowed to beat up criminals until they answer questions”

        That’s Batman’s M.O. Spider-Man has dangled a few people over heights from time to time, but that’s a rare occurrence.

        “And why doesn’t he show up at the criminal’s trial so that he can be cross-examined as a witness?”
        The defense would have to serve him a subpoena first.

        “it’s still not self-defense if he trespasses, gets attacked, and fights back.”
        Except when it is, which is most of the time. He’s busted in on the Kingpin from time to time, on property owned by the Kingpin. Usually, he’s on a random rooftop and the bad guy attacks him. And even when he is trespassing, if the bad guy attempts to use lethal force to eject him, that’s not an authorized use of force and Spider-Man IS allowed to fight back even as the aggressor if he’s attempted to retreat first.

  12. Mutants as a political analogy is great on a superficial level. However, some mutants, by their very nature, can possess dangerous capabilities. If gay people gained the ability to fire explosives or walk through walls once they come out, that would make the debate very different. Mutants are radically different from non-mutants, in ways that are significant. Trying to use them as an analogy ends up with horrific implications.

    Due process is a wonderful thing, but it has always been limited. Or do you suppose that Mr. Jefferson gave French sailors due process during the Quasi-war of 1799? Every war involves taking lives without due process, and the military in general operates outside of it. (If you rush a US warship in a boat, you will likely meet your end at a .50 machine gun, without due process. If you attack a military force, you can expect a lethal response)

    That’s in addition to the use of force in response to what a reasonable person would believe is a threat to his life or the life of another. That is not punishment, that is acting in defense of yourself or others. Police shootings aren’t violations of due process, because they are not dispensing justice, they are acting to stop the threat. A lot of these cases feature ridiculously bad judgment, which should see the officers behind bars, but that is still not a due process issue, unless they outright executed a suspect who was known to not be threat (aka murder).

    • “Every war involves taking lives without due process”

      No, it’s just that the process that is due is different.

      Compare charging a U.S. Naval vessel in a boat with charging a stateside policeman while displaying a firearm with charging an ordinary armed citizen while making deadly threats and displaying a means to immediately carry them out. In all cases, you are likely to be wounded or killed on site. In each case, the due process concerns what, if any, punishment is to be levied upon your killer.

      On the other hand, suppose you make no threats at all, but display an obvious capacity for mayhem? You’re visibly armed, but make no effort to use or even draw your weapon. You might wind up just as dead, but your killer can expect a different reception in court. If you really like the naval analogy, sometimes two warships pass. They might even be moored in the same harbor. We don’t shoot at other boats just for being capable of threats, those boats have to actually act in a threatening manner to be fired upon.

      Every person in this country who owns a gun COULD use that gun to injure, or even murder people. We don’t treat them like murderers, however, until they take some action that suggests murder, such as taking aim. But wait! Anyone who’s physically bigger and stronger than me could kill me if a life-and-death struggle were to take place. For that matter, so could almost any person who’s awake when I’m asleep.

      “some mutants, by their very nature, can possess dangerous capabilities.”
      Well, yes, but… there’s nothing a mutant can do that a non-mutant can’t do. Walk through walls? Give me the right explosive charge, and I can do it, and so can you.

    • The analogy between mutants and homosexuals is a pretty good one. 1) Homosexuals are (or at least claim to be) born gay but do not manifest this “ability” until they reach puberty. 2) Homosexuals are (arguably) a danger to society in so far as they engage in anal sex which is more likely than straight sex to pass on disease. 3) Homosexuals are both stigmatized as AIDS carriers and blamed for the spread of AIDS even though AIDS can also be spread through hetereosexual sex. (They are thus “feared and hated”.) 4) Homosexuals, like mutants, can be anyone (White, Black or Asian) and, unless you have blue skin or fur, it is not obvious who is a mutant and who is not a mutant. 5) There are countries (Muslim countries at least) where simply being gay, even in private, is punishable by death. (The death penalty for homosexuality is currently in place in Saudi Arabia, Yemen, Iran, Afghanistan, Mauritania, Sudan and northern Nigeria. http://en.wikipedia.org/wiki/LGBT_in_Islam#Homosexuality_laws_in_majority_Muslim_countries ).

      I think to argue that being gay is not like being a mutant because gay men don’t have laser beams coming out of their eyes is to miss the point of the analogy: gay men do know what it means to be hated, feared and even persecuted.

      • James Pollock

        “1) Homosexuals are (or at least claim to be) born gay but do not manifest this “ability” until they reach puberty.”

        My understanding is that it manifests sooner than that, in at least some cases, and far later, for others.

        ” 2) Homosexuals are (arguably) a danger to society in so far as they engage in anal sex which is more likely than straight sex to pass on disease.”

        Well, straight men may like to have this kind of sex with women, too… and homosexual women probably do not. On the other hand, worrying about what kind of sex other people are having is not particularly healthy, either.

      • Martin Phipps

        “On the other hand, worrying about what kind of sex other people are having is not particularly healthy, either.”

        There are plenty of reasons why a medical doctor might be worried about what kind of sex his or her patients might be having.

      • James Pollock

        “There are plenty of reasons why a medical doctor might be worried about what kind of sex his or her patients might be having.”

        Sure. There are even some reasons why a defense lawyer might need to know that sort of thing about a client, too. And parents of small children might need to take an interest, too, alas.

        None of which disproves the general case.

  13. Well, yes, but… there’s nothing a mutant can do that a non-mutant can’t do. Walk through walls? Give me the right explosive charge, and I can do it, and so can you.

    I can walk through walls with an explosive charge, but I can’t sneak through walls. I certainly can’t teleport, nor can I shapechange to copy someone down to the face, voice, and retina scan. I am incapable of reading minds. And though I could hurt someone using a weapon, a weapon which does massive damage would be hard to hide, and it probably has a limited number of charges–many people can fire a rocket launcher, but nobody can fire one continuously for an hour without reloading.

    • the point is that nothing you have said is inherent in being a mutant. Yet you are trying to justify action against ALL mutants based on those cases.

  14. “I can’t sneak through walls. ”
    Sure you can. You just need a bigger diversion. (hums “Mission Impossible” theme…)

    “a weapon which does massive damage would be hard to hide”
    The name’s Bond… James Bond.

    “nobody can fire one continuously for an hour without reloading.”
    Correct. Darn Second Law of Thermodynamics.

  15. With regards to Magneto, I think its unfair to say he didn’t get due process since, as you said, details are sketchy. The only thing we can say for certain is that he did not get a public trial, which under the Sixth Amendment he is not necessarily entitled to. If a public trial is considered a danger to either his interests or those of national security or the public, then the trial may be held in secret. As it is, since the mere existence of mutants was a national secret back then, let alone mutant terrorists bent on overthrowing humanity, and since Magneto was technically an ex-operative of the CIA and had knowledge of highly classified intel, I can see him falling under this. It could also have turned the public against him- “superhuman terrorist accused of murdering the President” – and that kind of prejudicial influence is another reason for keeping the trial secret.

    Also, the only unusual thing about his imprisonment is the implication that he is in jail specifically for the crime of murdering Kennedy, rather than the laundry list of offences he is definitively guilty of, such as breaking Emma Frost out of jail or whatever else he got up to during the time skip. Its more reasonable to assume that Kennedy was just the thing he was caught for (or caught on the scene of, at the very least).

    Also, I’m a little curious as to how 1970’s America would have been CAPABLE of giving someone like Magneto proper due process including a public trial. This is, after all, a guy who can level the court house with his mind if he really wanted to, casually escape any prisoner transport or defeat several dozen arm guards with ease. Once you lock him in that prison, its a little tricky to get him out, and its not like they could do a live feed back then from his cell. The only option would be to bring the court to him, which seems extremely impractical given where he is.

  16. You are creating a false equivalency between the repression of the US government and mutant revolutionaries in a war for survival against that same repression. It is as if you asked those that fought in the Warsaw Ghetto uprising to engage in due process before killing those working for the German government as, perhaps, some of them might have actually been following legal orders. Yes, one might kill a ‘good’ American or two in the process of fighting the war, but they are fighting an enemy that denies them any standing before the law. Political assassination is a legitimate way to bring down the human-centric order once mutants have crossed over into the armed struggle phase of resistance.

    It would have been a violation of due process to assassinate Josef Mengel or Reinhard Heydrich, but the Czech resistance was right to kill the later. Bolivar Trask was a horrific mix of both and Mystique was justified in trying to assassinate him. If you support the logic of the violence of the state, you must support the logic of the violent destruction of those same states when they transform themselves in to institutions of genocide and mass slaughter, as Trask was doing. The complaints of the Founding Fathers against the duly constituted legal government of the British Empire are nothing when compared to the injustices and threats mutants were facing in the 1960s.

    Mutant rights now- by any means necessary!

    • I just want to clarify something:

      The Czech resistance did not assassinate Reinhard Heydrich.

      He was assassinated by a British-trained hit squad consisting of Czech and Slovakian soldiers working for the Czechoslovakian government-in-exile.

      The Czech resistance reluctantly helped, but many / most were deeply, deeply OPPOSED to assassinating Heydrich, because it would (and did) trigger murderous reprisals from the Nazi regime; in the end, over a thousand people were killed in revenge and one entire town was annihilated.

      And that was EXACTLY the outcome the Czech hit team was sent in to achieve. It wasn’t about killing an evil man- though he certainly was- it was about killing an evil man who happened to be very, very efficient at his job to the point many Czech’s were willing to at least tolerate his governorship, since unlike most other Nazi governors Heydrich was ruthless but pragmatic and ran a tight, effective and relatively fair ship- carrot and stick, rather than just stick.

      Killing Heydrich was about provoking the Nazi’s into re-alienating the Czech people via mass revenge killings.

      As for Trask, what he was doing was illegal and not officially sanctioned by the government; and when he was exposed, they arrested him. So assassinating him was actually the WRONG move, especially since it got Mystique captured and led to the creation of the Sentinels.

  17. Where to begin?

    I suppose you can look at South Africa. For years, South Africa was under white minority rule and the white people of South Africa may have had a genuine fear that black rule might mean the systematic persecution of white people. This did not happen: while it is true that South Africa is a violent country with black people seeking revenge against white people, the fact is that the police force exists to protect people -white or black- against people who would seek to do them harm. Now if mutants were real and a mutant were to kill a non-mutant, even if the non-mutant actually deserved it, it would be -at the very least- counter productive. Because if a mutant were to declare herself judge, jury and executioner and kill a non-mutant then one might very well ask who she would be planning to go after next.

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