Category Archives: military law

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.


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

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

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

The Avengers and Illegal Orders

We have one more Avengers post for you.  Be warned: there are spoilers!  Today’s post was inspired by a question from John, who writes:

I was interested in the bit near the end where Fury first disobeys a direct order (to nuke Manhattan) and then shoots down one of his own planes (his team building skills must be great because nobody seems all that upset) to prevent someone else from carrying out orders.

1) under what circumstances is an order illegal?
2) when are you expected to simply refuse to co-operate and when do you take active steps to attack your own side?
3) what are those around him supposed to do about this?

And there is an additional question of whether or not military law (i.e. the UCMJ) applies at all.

Here at Law and the Multiverse we often deal with subjects that we aren’t experts in.  In fact, given that our day jobs involve insurance and intellectual property, that’s usually the case.  So in order to write posts we first do research, usually beginning with higher-level secondary sources (e.g. legal encyclopedias, treatises, law review articles) and then moving on to primary sources (e.g. cases, statutes).  With a military law question like this, however, we were a bit stuck, so we turned to our readers for help, and you came through in spades.  We received offers of assistance from multiple current or former military lawyers, and we’re excited to put them together here.

Before we get to that, though, first a disclaimer:  These lawyers are speaking only for themselves; they are not speaking for the military or the Department of Defense.  This is not legal advice, nor does it constitute the formation of an attorney-client relationship.  With that out of the way, on to the show!

I. The Military Law Approach

Nick, a military lawyer, responds:

“So, obviously UCMJ jurisdiction (as you pointed out) is questionable, but perusing the wikipedia article on SHIELD, it appears it might be military (Nick Fury was once identified as a Colonel, plus they have that flying aircraft carrier, so we’ll go with that).

(1) I pulled the Military Judge’s benchbook, which says: “A command is lawful if reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the service” (which is interestingly enough a question of law, not of fact). It’s an accepted proposition that a order to commit a war crime would be illegal.

Now the question is was Fury ordered to commit a war crime? This isn’t clear. The basic Law of Armed Conflict rules are proportionality, discrimination, and military necessity. Now, the law of armed conflict hasn’t really been tested by alien armies, but I think we can easily dispatch with military necessity and discrimination. But proportionality? Fury gets a little closer here, but I still think he fails. Proportionality looks at whether the military objective is proportional to the civilian damage caused. Here we’re looking at the destruction of New York (by seemingly two nuclear bombs, unless Fury blew up the guy taking their mail to shore), with a huge loss of civilian life. However, even when you balance this against the alien army that is setting out to conquer the earth, you probably get there on that point (and I’m not just saying that because I’m a Red Sox fan).

The other piece of analysis would be whether there is a less destructive way to accomplish the military goals. This is probably where Fury could get to “war crime.” His argument would be that the Avengers were the less destructive way to end the threat, and could probably get there.

(2) What is Fury’s duty? This is interesting. He seems to believe that the order is illegal. There isn’t a lot of case law on this that I’m aware of, but some secondary sources (the Medina court martial, primarily) suggest that a commander who has knowledge of one of his own people committing a war crime has a duty to act to stop it. Current regulations that I pulled today only reference a duty to report war crimes, so I think we would call this a customary duty. Under this idea, and under a ‘defense of others’ type defense, it seems like Fury would both have a duty and a legal defense to shooting down his guys.

(3) What should everyone else do? THIS is an interesting question. To a certain point, I guess it depends on how they see this. If they’re in agreement that he is trying to prevent a war crime, I suppose they don’t have to do anything. If they think he is committing murder and/or violating a lawful order, they obviously have a duty to report the crimes, and they most likely would have a duty to try to prevent him from killing people and stopping the mission, though my knowledge for this portion is admittedly a bit thin.”

Jason, Former Captain, U.S. Army JAG Corps, responded:

“Assuming that the S.H.I.E.L.D. members are subject to the UCMJ, the bottom line analysis revolves around [UCMJ] Article 92 – “Failure to obey a lawful order or regulation.”  The central question there revolves around the “lawful” nature of the order itself.  Here is an interesting short essay regarding Article 92 that I found online, while not credited to any one source, it appears to have been written from a military perspective.  There is a difference between a simple illegal order and a patently illegal order. An illegal order can be in violation of general legality, such as orders to commit hazing on troops, orders to abuse trainees, an order to go beyond the speed limit in a military vehicle. A patently or manifestly illegal order applies generally, but not exclusively to the protection of persons (civilians, prisoners, medical personnel and clergy), medical facilities, places of prayer, monuments, etc. The US distinguishes a patently illegal order as one which orders someone to commit a crime.

Some of the most famous cases dealing with someone who should have disobeyed an order because it was illegal are that of Lieutenant William Calley at the My Lai massacre in Vietnam (dramatically interpreted by the movie Platoon) and the case of United States v. Keenan, where the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that “the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.” (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

However, soldiers have to be careful what orders they choose to disobey, lest they suffer the fate of Specialist Michael New – In 1995, Spec-4 Michael New was serving in Schweinfurt, Germany. When assigned as part of a multi-national peacekeeping mission about to be deployed to Macedonia, Specialist New and the other soldiers in his unit were ordered to wear United Nations (U.N.) Helmets and arm bands. New refused the order, contending that it was an illegal order. New’s superiors disagreed. Ultimately, so did the court-martial panel. New was found guilty of disobeying a lawful order and sentenced to a bad conduct discharge. The Army Court of Criminal Appeals upheld the conviction, as did the Court of Appeals of the Armed Forces.

My gut reaction in this situation would be that Nick Fury acted appropriately in disobeying the Council’s directive as his actions were taken to protect the millions of innocent civilians.  I hope this helps!”

So both of our guest authors concluded that, assuming the UCMJ applies, Fury was probably in the right when he acted to prevent the nuclear strike on Manhattan, despite the order being given from higher up.

II. Civilian Law

If the UCMJ didn’t apply, then the situation would probably fall under regular civilian law, and Fury could invoke a defense of others argument.  You might wonder how Fury could justify that, since in theory the Council was likewise acting in defense of others by ordering the strike in the first place.  The problem is the risk to innocent bystanders.  A person acting in self-defense (or defense of others) who accidentally injures or kills a third party is ordinarily not liable.  However, if the person acts recklessly then he or she would be liable.

Of course, the situation may be such that A ought not to shoot at B in self-defense, etc., because of the presence of bystanders like C whom A might hit instead. If there is a high degree of risk to people like C involved in A’s shooting at B, A’s killing of C will amount to manslaughter, Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913); Annot., 18 A.L.R. 917, 928 (1922); if a substantial certainty, to murder.

Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12, at 402 n. 53 (1986); see also Reyes v. State, 783 So.2d 1129 (Fla. App. 2001).  An intentional killing of an innocent third person in order to save oneself (or, presumably, another) may negate the defense completely. State v. Soine, 348 N.W.2d 824 (Minn. App. 1984).

The Council could argue necessity, but necessity is a “lesser of two evils” defense, and letting the Avengers handle the situation was even less of an evil than the nuclear strike.  Although the Avengers were not certain to stop the Chitauri, neither was the nuclear strike (and indeed it would not have worked, as the bulk of the Chitauri forces had not even arrived yet).

Thus, under civilian law, there’s a strong argument that Fury was acting to defend innocent bystanders from the unjustified actions of the Council.

III. Conclusion

No matter how you slice it, Fury’s actions were probably justified.  Thanks again to Nick and Jason for their help with this post!