Monthly Archives: June 2011

X-Men: First Class

Posted on June 6, 2011 by | 24 comments

There’s a new X-Men movie out, and it’s actually pretty great. But you don’t come here for detailed discussions about the merits of the movie as a movie or about the fidelity or creativity of the adaptation. No, you come here to read about the legal implications of the various plot devices. So let’s get down to it. Given the plot, most of what we’ve got here is going to be international law, with an added civil rights / employment law bonus. As always, we’ve got spoilers.

I. Nazi Gold

In his quest to find the Nazi “doctor” that killed his mother, Erik Lensherr used an ingot of Nazi gold as a pretense to get an appointment with a high-ranking Swiss banker. This has a certain realism to it, as a vast amount of Nazi gold disappeared into European banks by 1945, and much of it probably remains there. The banker comments that possessing such gold is illegal. He’s right. In September 1946, the United Kingdom, United States, and France formed the Tripartite Commission for the Restitution of Monetary Gold with the mandate to identify those persons or institutions with claims that gold had been looted from them by the Nazis and the goal of restoring that gold to its rightful owners. The Tripartite Commission was created as part of the Paris Peace Treaties which brought about the end of the war. The Commission’s task took a long time, and it was only dissolved in 1998 with something like 65% of the claimed gold returned. Congress addressed the issue with the “Holocaust Victims Redress Act, Pub. Law No. 105-158 in 1998. The Act basically authorizes the US representative to the Commission to dispose of what assets remained in the Commission’s possession at that time.

Still, there’s one little wrinkle. Lensherr, being a Jew and victim of the concentration camps, could in theory have a valid claim to the gold in question, which would make the legality of his possession of the ingot less clear. But as this issue was dealt with on a really high level, it’s doubtful that law enforcement would care much one way or the other. The Commission was mostly concerned with the gold possessed by sovereign governments, not individuals.

II. Acts of War

First, there’s the operation to nail Shaw when he meets with the Russian general. This is a CIA-directed op, with CIA agents on the ground, leading a group of what amounts to mercenaries—other than Moira and the other agent, it isn’t clear that anyone else involved was a federal agent—in attempting to infiltrate a sensitive military compound to assassinate a high value target. Several major wars have been sparked because of the assassination of a high-ranking official, so this is kind of a big deal. Granted, in most cases where a war follows an assassination, the actual death is a pretense for armed conflict really motivated by more serious underlying tensions, but this kind of thing is dramatic enough to push things over the edge.

But the appearance of the X-Men on the scene at the climax of the Cuban Missile Crisis? That might not be, because the government had not authorized them to do anything. They were not acting under anyone’s orders (or at least anyone with the authority to give those kinds of orders), and it’s far from clear that the CIA even knew what they were up to. So Professor X causing the Russians to fire on their own ship could plausibly have been disavowed by Washington as rogue agents acting without authority. The fact that the Russians had already ordered the ship to turn around means that they’d probably be willing to grasp at any excuse not to go to war, so this explanation may well have been accepted, whether Professor X was acting under orders or not.

Magneto springing Emma Frost from the CIA holding center wouldn’t count either, as he wasn’t acting on the authority of any sovereign entity. At the time, it probably would have been classified as a criminal act, because the government’s rush to classify everything it doesn’t like as “terrorism” did not really get its start until the events of 2001. But it is plausible that, if apprehended, he could have initially been charged with espionage. Granted, Magneto does not seem to have any particular interest in working with any human government, and his little trip into the facility did not appear to include the acquisition of any information. Still, he damaged a bunch of property and may have killed some agents at a highly classified facility, so the feds would be understandably upset about that. They might not be able to make a charge of espionage stick in the absence of any connection to a foreign power though: the Espionage Act generally requires that one transmit or intend to transmit something to someone. Acquiring classified information and doing nothing with it isn’t espionage.

III. Employment Discrimination

At one point in the film, Moira’s CIA boss states in a meeting that “there’s no place for a woman in the CIA.”  Today that kind of comment might well give rise to a discrimination claim, but what about in 1962?  As it turns out, an employer—even a government employer—could probably have gotten away with it because the Equal Pay Act of 1963 and the Civil Rights Act of 1964 (specifically Title VII) had not been enacted yet.  Without those important Acts in place the courts were generally pretty tolerant of both de facto and de jure discrimination against women.  For example, it wasn’t until 1971 that the Supreme Court first struck down a state law on the basis that it discriminated on the basis of sex.  Reed v. Reed, 404 US 71 (1971).  And fully equal participation in jury service was not mandated until Taylor v. Louisiana, 419 U.S. 522 (1975).  So kudos to the writers for working in that accurate (if depressing) “sign of the times.”

IV. Conclusion

X-Men: First Class isn’t exactly a courtroom drama, but the legal issues that are there were treated pretty well.  We’re looking forward to the all-but-inevitable sequel.  In the mean time, check it out.  It’s a pretty good flick.

24 Comments

Posted in civil rights, international law, labor law, movies

Manhunter, Volume 2

Posted on June 3, 2011 by | 15 comments

(Note: We’ll have a review of the new X-Men movie up soon.)

This is the second post in our series on the Marc Andreyko run of Manhunter (here is the first).  The second volume contains some interesting legal issues, including prosecutorial ethics and subpoenaing a superhero.  Spoilers follow.

I. Prosecutorial Ethics

Kate Spencer (aka Manhunter) is a federal prosecutor.  In advance of the trial of Shadow Thief for the murder of Firestorm, Kate appears on a Larry King Live-esque TV show to talk about the trial, which she is litigating.  A caller asks Spencer if she thinks Shadow Thief will plead out or offer to turn state’s evidence against other supervillains.  Spencer responds “Well, I can’t get into specifics about the prosecution’s plans, but Mr. Carl Sands has many connections in the supervillain community, so I would, theoretically, be interested in hearing what information he would have to offer” (emphasis in original).

This is a somewhat problematic statement.  California Rule 5-120—California’s version of ABA Model Rule 3.6—governs trial publicity, and it specifically applies to prosecutors and defense attorneys.  The general rule is that

A member who is participating … in the … litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Here, Spencer is participating in the litigation of a matter and has made an extrajudicial statement (i.e. out of court) that will definitely be disseminated by means of public communication (she’s on a live national TV show).  The question is, does the statement have a substantial likelihood of materially prejudicing the trial?  That’s hard to know.  Certainly the statement could be prejudicial because it suggests the defendant’s guilt by association.  However, if it can be proved in court by admissible evidence, then that’s less of a problem.  Unfortunately, we never see such evidence introduced, so it’s hard to say.  This kind of statement is indicative of the careful line prosecutors and other litigators must walk when talking about a case, and Spencer’s other public comments (at least the ones we see) are carefully measured.

II. Serving Superman a Subpoena

Actually, Superman, Hawkman, and Batman are served, although we only see Superman and Hawkman testify.  The interesting thing is, they are served at Justice League headquarters on the Moon.  Naturally this raises a question: is such service of process effective?  After all, it’s for a federal court case, but the Moon is explicitly not the territory of any nation.

Federal Rule of Criminal Procedure 17 states:

A marshal, a deputy marshal, or any nonparty who is at least 18 years old may serve a subpoena.  The server must deliver a copy of the subpoena to the witness….If the witness is in a foreign country, 28 U.S.C. § 1783 governs the subpoena’s service.

The process server delivers the subpoenas in person the three recipients.  But what about this “foreign country” business?  We think a court would consider this to include the Moon, despite its non-territorial status.  The Rules make a distinction between the United States and “foreign countries,” and a court could easily read this to mean “the rest of the universe.”

As the Supreme Court has said “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. … It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”  Blackmer v. United States, 284 U.S. 421, 437-38 (1932).  It is unlikely that the courts would allow a witness to escape this duty simply by fleeing to unclaimed territory, especially when service of process was otherwise carried out properly.

So on to 28 USC 1783:

(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it … of a national or resident of the United States who is in a foreign country … if the court finds that particular testimony … by him is necessary in the interest of justice

(b) The subpoena shall designate the time and place for the appearance …. Service of the subpoena … shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.

Superman, Hawkman, and Batman are all identified as nationals or residents of the United States (“Superman of Metropolis, Hawkman of St. Roch, Batman of Gotham”), and presumably the court is satisfied that their testimony is necessary.  And since the JLA has a teleporter, Superman and Hawkman can fly, and Batman owns his own plane, we’ll assume that either travel and attendance expenses were waived by the witnesses or that the court found them to be zero.

In sum: if you can find them, you can subpoena a superhero pretty much anywhere.  And if they don’t show up, then the court can find them in contempt, fine them up to $100,000, and sell their stuff to pay the fine under 28 USC 1784.

III. Superheroes on the Stand

Hawkman and Superman both testify at the trial as witnesses for the prosecution.  Hawkman testifies about the defendant, Shadow Thief, and Superman testifies about Firestorm, the victim.  We want to address two issues raised by their testimony.  First, Hawkman gives a good example of common hearsay issues, and Superman gives a good example of the practical reality of asking a superhero about their identity on the stand.

Spencer asks Hawkman “And did you, in your many confrontations with [the defendant], ever warn him of the dangers of prolonged use of the device [that gave the defendant his powers]?”  Hawkman answers “When he wasn’t trying to kill me, yes, but [the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt and ignored my multiple warnings.”

There are two issues here.  First, Hawkman is recounting his own out of court statements to the Shadow Thief (i.e. the warnings).  This is not hearsay, however, because the statement is not offered to prove that the belt was, in fact, dangerous (Hawkman’s own expert testimony regarding the belt is sufficient for that).  Instead, the statement is offered to prove only that Shadow Thief was on notice.  This is a classic non-hearsay use of an out of court statement.

Second, Hawkman says “[the defendant] wouldn’t hear of it.  He believed that he was stronger than the belt.”  This is problematic.  If Shadow Thief had made some statements to that effect (e.g. “I’m strong enough, Hawkman”), then Hawkman’s testimony as to those statements would be admissible under FRE 803(3) as “a statement of the declarant’s then existing state of mind.”  As it was, though, the defense really should have objected to that answer.

Finally, the defense asks Superman point blank “what is your legal identity?”  Naturally, Superman refuses to answer.  Then the defense does the smart thing and simply notes that the witness is refusing to answer a direct question under oath, thus impeaching Superman’s credibility as a witness.  Theoretically the defense could press the issue, and the court could even find Superman in contempt, but everybody knows that would be a pointless distraction.  This is probably how things like this would actually play out in court.

IV. Conclusion

There are more legal issues to cover in the next three volumes, so stay tuned for the rest of this series!

15 Comments

Posted in criminal procedure, evidence, legal ethics

Marvel Civil War IV: The Draft and Posse Comitatus

Posted on June 1, 2011 by | 23 comments

Continuing our series on Marvel’s Civil War event, we come to the issue of whether or not the SHRA amounts to a kind of conscription. We briefly discussed the draft and the SHRA in the comments to an earlier Civil War post, and conscription was discussed in a Mailbag a while back. We concluded there that drafting particular people, even on a named-individual basis, may be within congressional authority under the Constitution. But turning to the issue of the SHRA, we run into problems. Specifically, because the SHRA and related Initiative are pretty clearly intended to promote domestic security, and operate almost entirely within US borders, the Posse Comitatus Act comes into play.

The Act was passed in 1878 in the aftermath of Reconstruction, which followed the actual American Civil War. The thrust of the Act is that the United States armed forces—Army, Navy, Air Force, and Marines (the Coast Guard is excepted by case law)—are significantly limited in their ability to conduct operations on US soil. There have been very, very few times when the federal government has used actual soldiers to carry out its will on US soil.

Perhaps the most famous such event was when President Eisenhower ordered the 101st Airborne Division of the US Army to provide an armed escort for the Little Rock Nine, in one of the most dramatic incidents in the fight for public school integration during the late 1950s. Eisenhower also federalized the Arkansas National Guard, because then-governor Faubus was using it to attempt to block the integration of the schools. But it was really only the intervention of the governor that provoked this kind of armed federal response. Congress and the President have significant constitutional authority to use the National Guard and even the regular army to put down “insurrection,” and a state governor’s open, armed defiance of federal law surely counts. This power derives from the Insurrection Act, which gives the President the authority to use the regular army to put down insurrection and lawlessness.  The Act is in turn derived from Congress’s constitutional power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The Insurrection Act was also invoked to quell the 1992 Los Angeles riots.

Apart from those incidents and the Civil War, the number of times the regular army has been deployed on US soil is pretty low. This is because the Posse Comitatus Act prohibits the domestic use of US soldiers without the express authorization of Congress. The Insurrection Act is one such authorization, but any circumstance which falls outside that mandate will require additional legislation, either dealing with a specific situation or creating a broader grant for a particular kind of activity.

In fact, in the real world, shortly after the Marvel Civil War event began, Congress passed an amendment to the Insurrection Act that would arguably authorize the use of the federal armed forces to deal with the threat of supervillain violence.  The 2006 amendments to the Act give the President the power to 

employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a … terrorist attack or incident, or other condition …, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and such violence results in a condition that … so hinders the execution of the laws of a State or possession … and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In the wake of the Stamford Disaster it could be argued that a “terrorist incident or other condition” had occurred, the regular state authorities were incapable of maintaining public order, and the level of violence rose to the level of depriving people of their rights.  This broader authority under the amended Insurrection Act may authorize the Initiative’s activities, but it would not authorize the registration and conscription parts of the SHRA.  Thus, the SHRA would still have to be passed, and so it would make sense to include a more specific authorization for the Initiative rather than relying on the Insurrection Act.  Note, though, that the 2006 amendments were later repealed.  They were in force during most of the Civil War event, however.

It’s worth pointing out that the National Guard, as such, is really under the control of the respective states. The Guard has a close relationship with the regular armed forces, operates on a federal level under the Department of Defense, and is composed largely of inactive or reserve federal soldiers, but remains distinct from the regular army in that it answers ultimately to state governors, not the President, unless the President exercises his constitutional authority to take control of the Guard. Most notably, one cannot be drafted into the National Guard. Congress cannot draft people into state agencies, and though the states can theoretically mandate some kind of conscription into their own services, none have tried.

The issue with the SHRA is that if the Initiative is an activity of the US military, it runs into the Posse Comitatus Act, and if it is not, it is far from clear that Congress could use the draft to staff it. Again, while Congress has broad authority to conscript men into the military, that authority is limited to the military, as it is an implied power of Congress’s explicit ability to raise armies. If conscripts are not to be used for the army, the conscription power would not seem to apply.

How can one get around this seeming catch-22? Well, one could posit that the SHRA included specific authorization for the Initiative, which would meet the requirements of the Posse Comitatus Act. Remember, the Act does not say that the Army cannot be used on US soil, it says that the Army cannot be used on US soil without congressional authorization, which Congress is naturally free to grant. However, one wonders just how popular such a move would be given that the immediate justification for the SHRA was the Stamford Disaster, in which a bunch of superheroes acting irresponsibly resulted in the destruction of an elementary school. Subsequent stories indicate that the Initiative remains far from popular, and the Initiative training camp seems to be subject to organized protest just about around the clock. One can imagine that congresscritters would be reluctant to deviate so strongly from established US custom, particularly in light of popular opposition. The SHRA itself is frequently said to be popular, but the Initiative somewhat less so.

Some of the uncertainty here stems from the general confusion surrounding the SHRA itself. But the Posse Comitatus and related draft issues seem to be something that the writers could have gotten right if they’d wanted to. Congress is entirely free to authorize military action on US soil, and given that superhero teams would probably be limited to fighting problems which require their particular talents, one can see how certain members of Congress could think that would be a good idea. Whether or not there would be enough support for that provision to pass it is an open question, but it would have made this aspect of the Civil War even that much more consistent.

23 Comments

Posted in constitutional law