Law and the Multiverse Retcon #7: Book Edition

This is the seventh post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or in this case the book The Law of Superheroes as well as some older posts about drafting superheroes.

The impetus for this Retcon came from a letter (that’s right, a real, physical letter!) I received from a doctor in Tennessee.  She wrote:

You doubt that there could be a superhero draft, because of the intrinsic unfairness.  However, there was a specific doctors’ draft during World War II, Vietnam, etc., which could serve as a model for [conscripting] mutants and resident aliens.

Physicians could be and were drafted despite being middle-aged, 4F (the thought being that if you could get to your office, you could serve), or having already served.

Although I attended medical school soon after the institution of the volunteer army, this was still a source of fearful discussion amongst my male classmates and professors.

The doctor draft was indeed a real thing, and it extended well into peace time.  It was expressly held constitutional by the Fifth Circuit in Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954):

Neither is appellant entitled to any relief under the Fifth Amendment because, unlike the Fourteenth Amendment, the Fifth contains no equal protection clause. In order to invoke the Fifth Amendment to secure relief against inequality, appellant must show that the inequality practiced against him has been so flagrant as to amount to a denial of due process, and this he has not done.

The Act extends to all doctors and dentists under the age of 50, and to ‘allied specialist categories’, which by the express terms of the Act includes, but is not limited to, veterinarians, optometrists, pharmacists and osteopaths, imposing upon them all alike the obligation of military service when called by the President under the terms of the Act. In our opinion such a classification satisfies the requirements of the Fifth Amendment.

Bertelsen, 213 F.2d at 277.  The court also denied relief under the Thirteenth Amendment prohibition on involuntary servitude, as is typical in draft cases.

However, it is arguable that a draft of superpowered individuals could be such a flagrant inequality as to violate Fifth Amendment due process.  This would be especially likely if Congress picked specific superpowered individuals rather than superpowered individuals as a class.

In fairness to us, however, I don’t think we actually concluded that a superhero draft would be unlikely to pass constitutional muster.  To quote from The Law of Superheroes:

… Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is not directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to make unusually strong statements of congressional power when faced with this particular issue.

But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the nineteenth and early twentieth centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

In the case of superheroes, however, it may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, the courts would most likely not object.

So although the doctor draft and the associated cases are a notable gap in our research, I don’t think our correspondent disagrees with us as much as it might appear.  Nonetheless, I felt the letter was thoughtful and deserved the full Retcon treatment.

45 responses to “Law and the Multiverse Retcon #7: Book Edition

  1. The fact the the DoD would want supers with specific powers would have a further analogy in drafting doctors, though. Whereas in the general draft, they just take everyone from draft number 1 to whatever the cut-off number is, in the doctor draft, they would presumably want an array of medical specialties. So, if, through some fluke of statistics, numbers 1-200 were all cardiologists, the military would decide not to take numbers 101-200, but still take people with numbers 201 and higher so that they could get gastroenterologists, etc. It seems to me that a super hero draft would be similar, in that the military would select out of the pool to get some people who can fly and some people have super strength and some people who can manipulate time, etc.

    • Contrariwise, if a list of powers eligible for drafting gets too specific, such that only one or a tiny number of superpowered individuals would be eligible, there might be an argument on bill-of-attainder grounds.

  2. [I had to check the date on Bertelsen – 3 days after Boiling v. Sharpe]

    I wonder if a facially neutral draft of meta-humans might still be challenged by Mutants Rights activists under a disparate impact theory?

    • captainsuperlaw

      Interesting – the first thing I thought of was Bolling v Sharpe! That case, though, turned pretty clearly on the fact that race is particularly suspect ground of discrimination: “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.”

      For a Mutants Rights group to win on disparate impact test, they’d have to have ‘Mutants’ be considered as a ‘race’ for EP purposes to rely on Bolling, I would imagine. Otherwise, if Mutants aren’t a race, they’d be stuck with regular due process claims. Does that sound right?

  3. James Pollock

    What are the ramifications of refusing to serve? I don’t mean “but what prison would you put the Hulk in?” but more like “if the punishment for refusing to be inducted is five years in prison, and Awesome-Man refuses to go in, sits in prison for five years, and still doesn’t want to serve?”

    • Well, I’d say it would be safe to assume that he would be put in prison again. It might be embarrassing for a government for him to continue this civil disobedience, but that’s a political question, not a legal one.

  4. Won’t they have to crack the secret identities (if any) of the superheroes they want to draft?

    Or are they going to go with “everybody has to register for the superhero draft”, and box has a little checkbox on it that says “You must answer this question honestly and accurately under penalty of perjury: Do you have superhuman abilities?” and then phone everybody who checks “yes”?

    • How do you define ‘Superhuman’? Is there some dividing line between ‘Usain Bolt fast’ and ‘The Flash fast’? Where do you draw the line between a mutant whose talent is voice mimicry and, say, Tara Strong? Tara is, I kid you not, classified as an ‘alien of extraordinary ability’, at least according to the immigration department.

      • probably the dividing line would be if you were using an actual superpower for your abilities (so, for example, Batman would slip through the net) rather than merely being particularly good.

  5. A Hypothetical:

    Mandatory service for superheroes is passed into law. Superman volunteers, because he’s that kind of guy, but on the condition that his secret identity be kept secret. He begins to serve.

    However, Superman is critical of the administration’s decision to torture captives in the war on terror. Superman says “That’s not the truth, justice and American Way I signed up for” publicly and repeatedly; news sources give Superman’s comments wide play.

    In retaliation, an administration insider (lets call him “Rick Rainey” leaks Superman’s secret identity. Lois is outraged that Clark kept this from her, and criminals of all types attack Clark Kent at every opportunity.

    Does Clark have legal recourse if he discovers who leaked his secret identity?

    • Depending on the exact contents of Superman’s comments (and assuming he’s appointed an officer), they might instead try him under Article 88, UCMJ: Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

      After he starts running his mouth, they also could simply order him to not talk to the media and hang him up for Article 90, wilfully disobeying a superior commissioned officer, as well.

      • James Pollock

        Sorry, I assumed he was drafted as a superhero, not as a soldier.

      • I guess I misread it. When I saw the discussion on drafting, I assumed (without evidence) that it meant that superheroes would be drafted into the military.

      • James Pollock

        And if you DID draft him as a soldier, can you make him do anything the other soldiers can’t do?

      • Presumably any situation where they drafted him as a superhero would be legally as a soldier since the power to have a draft in the first place is tied in to the need to have an organized military to protect the nation.

        Now, as for this hypothetical where Superman issues statements critical of the U.S. government and retaliation occurs in the form of his civilian identity being leaked, I’m not so sure if there is anything he could sue over. I’m not sure arguing that Clark Kent’s family and friends will be in danger is enough, since the U.S. government hasn’t actually directly done anything to threaten them, it doesn’t sound like Clark Kent would lose anything financially as a result of this being revealed and if anything it might be revealing that as Clark Kent he had acted improperly at the Daily Planet by reporting on Superman without revealing that he was Superman.

        As for the laws on U.S. soldiers and statements, I am not at all familiar with it but it is my understanding that it effectively is not at all enforced. There was a group of U.S. soldiers, navy SEALs I think, who publicly criticized President Obama and repeated several common myths about him, however the military’s main stated reason for criticizing their actions was that they were doing so with a name very similar to the actual military, not that they were doing it.

        So Superman is, legally, probably fine if he just restrains himself to stating that he does not think his government should have any part in torture. He’d run into problems if he later gave detailed information about a covert mission he went on in North Korea, but that’s a completely different area.

        Lastly, that depends on what you mean when you ask if he can be made to do things other soldiers can’t. Other soldiers can’t lift a truck into the air and throw it at an enemy tank, but Superman physically can and legally any officer could order him to do so. However, American soldiers legally cannot force a civilian to go towards an enemy tank in a way that will likely put the civilian in danger, so if there was a civilian driver in that truck then legally Superman could not be ordered to just throw the truck with the civilian driver at the enemy tank.
        In other words, he can be ordered to do anything so long as it complies with relevant law and rules.

      • James Pollock

        “Lastly, that depends on what you mean when you ask if he can be made to do things other soldiers can’t. Other soldiers can’t lift a truck into the air and throw it at an enemy tank, but Superman physically can and legally any officer could order him to do so.”

        Let me offer an alternative. If Superman is ordered to fly somewhere, can he wait until there’s a military aircraft that’s going there (as any other soldier would have to.) Let’s say it’s January of 1942, and he’s ordered to fly to Tokyo and cause as much damage as possible… if he asks what time Lt. Col. Doolittle’s B-25’s are taking off, does that mean he gets 3 months off, since the answer is “April”?
        I’m picturing a situation where Superman objects to being drafted, and expresses it in the form of dogging it and being an ordinary soldier (although still bulletproof) and nothing more rather than being Super. (That’s beside the fact that Superman would probably file papers to be a CO, and wind up in the medical corps.)

        “In other words, he can be ordered to do anything so long as it complies with relevant law and rules.”
        But… can you order someone to be Superman? What if it’s middle-of-Superman-II Superman, who doesn’t have any Superpowers at the time?

      • James Pollock

        If you prefer someone who’s not Superman, what if you draft Hawkeye or Green Arrow, and suddenly they’re no more accurate than the rest of the recruits? Or you draft Barry Allen, Wally West, or Pietro Maximoff and they struggle to a 6-minute mile? Or you draft Professor X and suddenly the accuracy of his mind-reading is no better than a magic 8-ball?
        Can you charge them with refusing to follow orders, if nobody else can follow those orders, either?

      • Obviously I am not a lawyer, let alone a military lawyer. However I see no legal reason why Superman could not be ordered to fly somewhere under his own power, or why Quicksilver could not be ordered to run at fifty miles an hour. Simply because the majority of his fellow soldiers would not be able to do something is no reason for why he should argue that he should not be ordered to do it. It is well established that they are physically capable of these feats, and that these feats would not put them in danger uncommon for the military, so I think it is safe to assume that any court would rule that the commanding officer was well within their authority to order it.

        There are cases in the military where some soldiers cannot do things that other soldiers can do. For example, the average sniper normally cannot hack an enemy’s computer. Simply because the sniper cannot do it does not mean that the computer specialist could refuse the order to hack that hypothetical computer.

        A precedent even exists, though not in the U.S. to the best of my knowledge. Russia and the Soviet Union before it specifically recruited smaller men to crew their tanks so they could focus less on crew space for the tanks and more on things like guns, armor and engines. Those people did not choose to be smaller, nor were they trained to be smaller. They were simply born to be somewhat smaller than the average person. If the U.S. chose to follow the same idea, I am pretty sure that no one would say it was violating anyone’s Constitutional rights or anything of the sort.

      • Melanie Koleini

        Could the government compel a superhero to use their superpowers in a legal but morally objectionable way? I’m writing a story with a telepathic character. She believes it is morally wrong to read someone’s mind without their permission.
        If drafted, could she be forced to participate in interrogations and legally ordered to read prisoner’s minds without the prisoner’s consent? (This assumes the prisoner doesn’t have the right to remain silent.)

      • James Pollock

        If they need a warrant to poke around in your cell phone, they need a warrant to poke around in your head.

      • To the Superman question, I’m reasonably certain that being purposefully less efficient than your abilities at carrying out an order would fall under dereliction of duty. Similarly if he purposefully gets himself depowered

      • James Pollock

        ” I’m reasonably certain that being purposefully less efficient than your abilities at carrying out an order would fall under dereliction of duty. Similarly if he purposefully gets himself depowered”

        But if he’s doing it as well as anyone else does it, whatever “it” is, what’s the complaint?

      • The key term here is “culpable inefficiency”, which is inefficiency for which there is no reasonable or just excuse. The average everyday soldier has a perfectly reasonable excuse for not zooming halfway across the world in 5 minutes flat: they are utterly incapable of doing so. What reasonable excuse does Superman have not to do so? It is widely known that he has the ability to do so, it does no harm to him or anyone (besides presumably the people he’s being sent after), it doesn’t even use up any resources.

        In the same way, it is okay for a soldier who is a bad marksman to use up 50 rounds to take down one enemy if that’s what it takes, but it is not okay for an elite sniper to casually kill 49 birds and small animals for fun with his military-issued rifle and ammunition for every one-shot enemy kill.

      • Simon Spero

        As others have noted, the charge would be under Article 92, UCMJ. The maximum penalties for dereliction in the performance of duties are serious, but not fatal.
        (3) Dereliction in the performance of duties.

        (A) Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month for 3 months and confinement for 3 months.

        (B) Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

      • @James Pollock Regarding whether they can order Superman and do things only Superman could do, I believe the answer is an absolute yes.

        The military regularly divides up its personnel into those that have certain capabilities and those that do not and order them to use those additional capabilities on a regular basis. In the real world those capabilities are normally based on education and training rather than inherent abilities of course. A linguist, for instance, can certainly be ordered to translate even though the average soldier could not do that.

        I do not see why ordering a superhuman to use their superhuman abilities would be different, after all translators are sometimes trained by the military, but they also frequently come in already having their language knowledge. If the military wanted to formalize that sort of thing (and they probably would for bookkeeping) they would likely issue qualifications and ratings for abilities such as flight, just as they rate linguists.

    • Melanie Koleini

      “If they need a warrant to poke around in your cell phone, they need a warrant to poke around in your head.”
      Fine, they have a warrant but the poisoner still doesn’t consent to the mind reading. The telepath has a moral objection to mind reading without permission even with court approval. Is the telepathy forced to disobey orders and be sent to prison or can she claim CO status?

      • Well, that sounds like simply a matter of law. If laws and court decisions have been made, then if they order the character to read this person’s mind they are either obeying the law or they aren’t. If the legislature and courts haven’t done anything one way or the other yet, then congratulations! The character gets to be part of a test case.

        But if someone refuses to do something even when doing it is part of their terms of employment (or required because they have been drafted) and it is established to be completely legal to tell them to do so, they probably don’t have a great legal defense if they don’t want to.

      • Melanie Koleini

        Killing people is part of the ‘requirement’ of being a soldier but a person can claim CO status and (if the status is granted), they are not forced to kill people.

        Is CO status just for pacifists or can other sincerely held beliefs be used as grounds to excuse a person from particular duties?

      • James Pollock

        “Fine, they have a warrant but the poisoner still doesn’t consent to the mind reading.”

        I think this settles the legal question of mind reading overall… if a court orders medical procedures based on probable cause, then the fact that the patient objects can be over-ruled even though treating a patient without informed consent is a battery.

        Now, from there we go to the problem of non-compliance. I think that it would be illegal for the telepath to fail to carry out the order… but impossible to punish. If the telepath provides false answers, is it because the telepath refused, or because the subject is good at resistance? The only way to tell for sure is to have another telepath, and if you have another telepath, use that one.

        As all B5 fans know, Psi Corps is your friend.

      • James Pollock

        Also, CO status can be used to exempt a person from combat duty (you really wouldn’t want a soldier who won’t kill the enemy, anyway) but it doesn’t get them out of the service… COs tend to land in the medical corps.

        The best defense for the character is PROBABLY a religious exemption… in theory, the military is supposed to accord with the free execercise clause of the first amendment, but it turns out that they only have to make reasonable accomodations, and what accommodation is reasonable in, say, wartime, turns out to be not much. I think (although it might take a court case) if a telepath states a religious aversion to non-consensual mind-reading would be accommodated by assigning them to some other type of service… but still might be called on to perform a non-consensual reading if no other person is available to do it.

  6. It would take one helluva situation to impel the US government to draft unstable (see the 9 alignments of Batman pic) masked vigilantes in a legal method (rather than sign them to mercenary contracts, or blackmail, or quid pro quo). Something big time like a Great Powers war, an Alien vs Human ground war, Marvel’s Inferno/Maximum Security/Fear Itself/Infinity Wars, or one of the big Image/Wildstrom events.

    I highly doubt you would get any draft dodgers/conscientious objectors amongst the trigger-happy superpowers folk. Hell, it takes everything they got to NOT assault/kill innocent civilians every day (Spiderman and Thing always seems like they’re 1 parking ticket/microaggression away from a psychotic break followed by a mass slaughter) . The Avengers can’t even go 1 year without members attacking each other in the streets.
    Hawkeye: I’m gonna sit this war out, Sarge.
    Draft Officer: Really? You’re going to skip out on fighting the Russians who are led by Ultron? What? Did he kick your ass too many times? OK, I’m sure we can handle him. You can go fishing and drink beer while Gamer Joe over there and Driver Jake behind him win the war for us. I’m sure they got it.
    Hawkeye: …. damn…

    • “I highly doubt you would get any draft dodgers/conscientious objectors amongst the trigger-happy superpowers folk.”

      Really? I’m pretty sure Superman and Wonder Woman would file for CO status. I don’t think you could get Batman to carry a gun (OK, in some early Batman stories, he did, but he’s characterized now as pretty anti-gun.) Green Lantern would probably object because serving in the armed forces might prevent him from responding to the Oans… his power is only used with their approval. Deadman absolutely able to argue that jurisdictionally he’s beyond the draft’s reach. Firestorm could effectively boycott induction by simply refusing to exist during the term of his service.

      Over on the Marvel side, I could see Mr. Fantastic filing as a CO. Thor would probably object successfully on jurisdictional grounds. All of Alpha Flight would object to being drafted by the U.S.

      On the other side.
      Ms. Marvel was a military officer before she got super-powered, and so was the Thing. Bruce Banner was a civilian who worked on military projects before he got his… but there might be a question whether Banner and the Hulk are actually the same person in a legal sense. (I wouldn’t want to be the DI who got in Banner’s face, in any case.)

      • To be fair, do you really care if Batman refuses to carry a gun once you’ve drafted him? Not having one hasn’t seemed to slow him down against all the paramilitary gangs that call Gotham home.

        And Wonder Woman a Conscientious Objector? Kingdom Come seems to disagree, not to mention that she actually served in the US military in some fashion in her early career. On the other hand, as the Amazonian ambassador to to human world, wouldn’t she be well outside of Congress’ jurisdiction? Diplomatic immunity!

  7. James Pollock

    “And Wonder Woman a Conscientious Objector?”

    I haven’t read a lot of WW stories, I’ll admit. But I remember one that suggested war was contrary to the policy of Paradise Island, and she’d lose her powers if she did (because Paradise Island gets its power from a goddess and Ares is a different god? Fuzzy remembrance, and it might have been Wonder Girl)

    If I recall the first season of the TV show, Major Trevor was in the service, but Ms. Prince was a civilian. That’s also pretty fuzzy memory… i haven’t seen that show since it was originally on, and I was a kid then.

  8. Really? I’m pretty sure Superman and Wonder Woman would file for CO status. I don’t think you could get Batman to carry a gun (OK, in some early Batman stories, he did, but he’s characterized now as pretty anti-gun.) Green Lantern would probably object because serving in the armed forces might prevent him from responding to the Oans… his power is only used with their approval. Deadman absolutely able to argue that jurisdictionally he’s beyond the draft’s reach. Firestorm could effectively boycott induction by simply refusing to exist during the term of his service.

    I dug up some old Superman comics a few years back. During WWII he “served”, mostly fighting on the home front as an free agent of sorts for the US armed forces. He seemed to be busy taking out 5th columnists and Nazi infiltrators. At any rate, him and WW and Manhunter all have the same issue: they’re not US citizens and in most universes, not completely human. The SS could draft Clark Kent & Bruce Wayne (or whatever identity Manhunter was using), though. That would make for a REALLY interesting graphic novel (get on it DC- it’s not like y’all have good story ideas these days anyway). Hal Jordan (or Rich Rider/Sam Alexander) are part of foreign military services (Lantern Corps/Nova Corps) and thus lose their US citizenship (Section 349(a)(3) of the INA [8 U.S.C. 1481(a)(3)]) sooo…yeah they can’t be drafted anymore.

    On the Marvel side, it’s not as clear. Reed’s probably too old, but Johnny Storm and Peter Parker are probably still draft age. If the US were at war with Latveria or AIM island, then yeah he would go in (NYC is a big target and he lives there). A chunk of the X-folks could be drafted but a few of the heavy hitters would be exempt (psylocke- not US citizen, Fantomex- not human, Cable- not US citizen, Bishop- Not born yet, Wolverine-well where do i begin…) or declared 4F for physical or mental reasons (glob herman, Emma frost, Cyclops, Quinten Quire) . The All-New original X-Men could be drafted, which would make things really interesting at the draft board office. The new Inhumans could be drafted, if the Armed Forces wants to spend money training them rather than relying on regular humans (who won’t explode if you shake them).

    The Valiant comics folks could get drafted depending on the nationality. Harbinger would be part of that. Harada’s crew…well that would depend if the US is at war with Harada or not.

    • James Pollock

      The reason I thought Supes and WW would file as COs is that neither one will kill. You could take Batman and use him as an unarmed-combat instructor (since I theorize that he won’t use a gun), or any of the lot could serve in the medical corps, the traditional repository of COs.

      I don’t think Hal’s a member of a foreign military, but rather, an employee of a foreign law-enforcement agency.

      Is being an Avenger a crucial civilian occupation? I’d think it would qualify one for a deferment.

      I don’t know who about half the characters you reference are. I’m rather badly out of date. I worked my way through the civil war, but otherwise haven’t read much from the last 20 years or so.

      Finally, I noted there was no discussion of Genosha. Obviously, U.S. law doesn’t apply to Genosha, but what about international? (All we need is a specialist in international human-rights law to speak up…)

  9. Cable isn’t a US citizen? He was born in the US, so he’s a citizen by birth unless he renounced it at some point.

    • It’s “complicated” because (deep breath) He was born to Madeline Pryor who was a clone of Jean Grey, who was created by Sinister. Unless Sinister created and filed false paperwork for Pryor, or she did herself, and if he was born in a hospital and had his birth certificate registered, and at age 18 or whatever, got registered with the SSS; then the SSS doesn’t know about him and he would not be drafted. Okay, that was more complicated than it should be.

      Would they even draft a wanted criminal? I’m pretty sure Cable is still on the FBI’s top 25 most wanted list.

  10. Another potential problem: how does the SSS/draft board confirm a super hero ID? Yeah the Congress can say “all superhumans on US territory MUST report to nearest draft office by Tuesday July 3” or whatever, but how will they know if they got the right guy and not some pretender/clone/pretender clone (god damn it Spiderman)/robot/Skrull (god damn it Reed Richards)/highly visible ninja (god damn it Naruto)? Unless they got some kind of foolproof database they won’t be 100% sure the psychopath in the red and black costume is the psychopath on their list of draftees.

  11. I guess the draft board has the same problem with ordinary people right now. Unless they start genetically testing everyone at birth, your identity is somewhat suspect when they get you as an adult. Now, they probably don’t care as much if they get the wrong “normal,” but they must care some in case they get an enemy spy or some other undesirable. In a world of superpowers, they wouldn’t even be sure that any normal person wasn’t really a robot plant or a shapeshifter or something.

    • James Pollock

      For soldiers, sailors, or airmen who have access to truly interesting stuff, there’s the background check for the security clearance. Now, verifying the identities of some superheroes might be easier than others (“you claim you’re Superman? Would you zip down to the other end of the firing range for a moment and then hold still please?”) Or perhaps you’ll check him at induction, by putting a solid but non-lead item in front of the eye chart.

      If you get a fake, you probably aren’t too bothered that the flying, bulletproof, super-strong guy you have isn’t the flying, bulletproof, super-strong guy you thought you were getting.

      Plus, imagine the fun of putting Aquaman in plainclothes, sending him to SERE school without telling the instructors, and letting them waterboard him. Or sending any number of flight-capable heroes to jump school, with instructions to “forget” to properly fasten the straps on their parachutes.

      Or forget about drafting superheroes except for one: Jamie Madrox. After he stamps out a couple of divisions for you, send him back home.

  12. James Pollock

    The conversation around this post seems to be dying down, but for whatever reason this morning I started thinking about the other kind of draft… and the Tick.

    In the Tick, some agency (never fully explained) takes all the superheroes, who have tryouts, and decides where they should seek justice. The Tick, of course, is top-tier and lands the plum assignment… he works in The City, with other top heroes such as Die Fliedermous, American Maid, and the Sewer Urchin.

    The sequence I remember is watching the various heroes show off their superpowers and talents at the tryouts. This seems somewhat like an athletic draft. I guess the closest thing in “mainstream” comics is the 50-state initiative.

  13. I was thinking about this a little more when it dawned on me: why would the US want to draft superhumans in a military conflict, unless another nation was drafting them as well. THAT would attract Superman and Wonder Woman’s attention, and probably other superheroes who would normally be adverse to fighting in war. They would be less adverse to fighting, if their main targets were other superhumans (which is generally their day-job as a superhero anyway). Whether or not the Armed Forces could compel Supes or another hero to stick to their plans and follow orders as given is a different story, as others mentioned above.

  14. James Pollock

    “why would the US want to draft superhumans in a military conflict”

    Telepaths to interrogate prisoners. People who can walk through walls for intelligence gathering. Precogs would be good at this, too. Superman is bulletproof; an admirable quality in a firefight.

    And Captain America has demonstrated leadership ability.

  15. “Telepaths to interrogate prisoners. People who can walk through walls for intelligence gathering. Precogs would be good at this, too. Superman is bulletproof; an admirable quality in a firefight.”

    Exactly. Let’s not forget what Dr. Manhatten did during the Vietnam War in the Watchman universe. The only big questions is: Does it become another arms race, with each side trying to obtain the best/most powerful/deadliest heroes.

    Rememebr, in “The Dark Knight Returns” Superman had made a deal to serve the US (and the military) so he could try and be somewhat effective in peacetime. And he was definitely killing during that comic. Fortunately for the humans on the opposite side of the conflict, Supes was the onlt superhero fighting, and he seemed to concentrate on tanks, planes, aircraft carriers….

    But I could see a case where the superhuman arms race gets so out of control that it becomes like the nuclear arm race. Everyone hs them and no one uses them, so wars are still fought with conventional troops.

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