“No one is above the law…and now this principle will be the driving force of my presidency.” – Lex Luther
On Tuesday, September 29, 2009, DC Universe released “Superman/Batman: Public Enemies,” a title that immediately got my attention. Overall I recommend the movie to anyone who is a fan of cartoons of either character, especially if you like the Justice League Unlimited series. The basic premise is that Lex Luther is elected President of the United States and he reaches out to his former adversaries, the superheroes of the world, to unite under his authority for the good of our country. Superman and Batman refuse his invitation and continue to fight crime on their own. Meanwhile, in space, a giant meteor made of kryptonite approaches the planet and threatens to kill most of the population.
Luther sets up a meeting with the Man of Steel to discuss plans to destroy the meteor but he brings his own metal man, recently pardoned Metallo1, who fights, and almost beats, Superman. With the help of Batman, Superman crushes Metallo with a car allowing the duo to escape Luther’s trap. Metallo is later found crushed and melted and his death is blamed on our heroes. Luther suggests that the radiation from the approaching meteor has affected Superman’s mind and issues a 1 billion dollar bounty on Superman and Batman.
Superman didn’t murder Metallo. Luther ordered Captain Atom and Major Force to kill Metallo and use their radiation powers to make it look like it was done by Superman’s heat vision.
At common law conspiracy was an agreement between two or more people to accomplish a criminal or unlawful purpose. Modernly it is treated as a separate crime that doesn’t “merge” with the intended crime. This means that conspirators can be charged both with conspiracy and, for example, murder, receiving additional penalties. Lex Luther and his “heroes” were engaged in potentially two separate conspiracies2: one to commit murder, and one to frame Superman. In many jurisdictions, to be guilty of conspiracy the actors don’t even have to accomplish the goal crime(s) or complete the requisite acts, it is sufficient to join in the illegal agreement3.
Though not shown in the movie, it can be inferred from conversations between Captain Atom and Major Force that agreements to kill Metallo and frame Superman were made with Lex Luther. These agreements would be enough to bring charges against each co-conspirator equally for conspiracy. If, however, Luther’s co-conspirators were to be dismissed or acquitted for the conspiracy, some jurisdictions state that Luther could not himself be charged.
Actors inelligible for conspiracy
There is a split among jurisdictions as to whether an agent can conspire with his/her master. In this case both Captain Atom and Major Force were agents of Lex Luther and therefore potentially unable to enter into a conspiracy with him. (See my previous post for a discussion of determining whether someone is an agent or independent actor). The rationale used by States that preclude conspiracy in this situation is that an agent is the legal representative of the master and acts for the master’s benefit rather than the agent’s own. If the agent is carrying out the master’s intent there is no “agreement” between the two and legally there is only one actor falling short of the requisite two for conspiracy. Many jurisdictions have historically taken the same approach for marriage, finding that there can be no conspiracy between husband and wife who are legally treated as one entity.
Just following orders
As their names suggest, Captain Atom and Major Force are members of the United States Military. As such they are required to follow orders from their superiors (Lex Luther as the President and Commander and Chief would certainly qualify) or risk being court-martialed. The defense of “just following orders” is also known as the Nuremberg defense, the defense of Superior Orders, or the presumption of Lawful Orders. Military subordinates are expected to assume that issued orders are lawful and required to follow them. The exception to this doctrine is orders that are clearly defective on their face. Well-reasoned examples of this exception are orders that were issued to kill unarmed civilians or to beat up prisoners of war in preparation for interrogation. While orders issued by the President to kill might seem to be unlawful, murder is a common practice in war and the soldiers could not have been expected to see a problem with such an order. Further, it is likely that Luther’s orders would have seemed facially valid with some rationale for killing Metallo whether or not such an act would ultimately be deemed illegal. What should have raised more concerns for the service members was the order to frame Superman for the murder. Had they declined to carry out this order they would have been privileged in that decision however following the order carries some measure of punishment leading to a charge of conspiracy for all three.
Lex Luther, Captain Atom and Major Force all took steps to frame Superman for the murder of Metallo. “Framing” someone actually consists of providing either false evidence or false testimony leading law enforcement officials to falsely arrest an innocent party. Anyone found guilty of these acts can be charged with obstruction of justice. Overt acts as well as omissions can lead to liability. In the present case Luther and his cohorts committed both the acts of falsifying evidence to make it appear as though Superman had killed Metallo and the omission of not telling the investigating officers that they were involved.
Lex Luther issued a $1,000,000,000 bounty on Superman and Batman and supervillains and superheroes alike showed up to collect. Aside from the fact that this contract would be unenforceable4, Luther would be liable for the damage and harm done by those who attempted to apprehend the heroes.
The President can be impeached for “treason, bribery, or other high crimes and misdemeanors.”5 Conduct of a President falling into one of these categories is decided by a simple majority of the House of Representatives. The President is then tried by the Senate with the Chief Justice of the Supreme Court presiding and removed from office following a two-thirds vote of the senators. Following removal the former President can then be punished further by the Senate and subjected to criminal charges.
In addition to the criminal activity described above, Lex Luther was more than just aware of the approaching meteor, he took steps to ensure that the country (and world) would be unprepared. His plan was to have the meteor strike so that he could reshape civilization under his rule. There is very little precedent for an individual hatching a plan to end life on this planet as we know it, however, the following crimes would probably apply and would almost certainly be enough to have Luther removed from office.
Mass murder is the killing of four or more people in a relatively short period of time, usually during a single event like a robbery or a prison riot. While Luther’s actions would qualify they’re probably more severe than this crime was intended to handle.
Crimes against humanity as defined by the London Charter of the International Military Tribunal, which was charged with defining the regulations and procedures at the Nuremberg trials, is:
Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Charges are usually reserved for individuals and leaders who engage in a widespread and systematic practice of included offenses, however, considering the scope of persons affected by Luther’s plan they would likely be applied to him as well.
Treason and sedition in relevant part consist of levying war against the United States and forcefully wrestling authority from the State. Luther’s plan consists both of destroying this country and unlawfully taking control of it, making him guilty of both crimes.
IN THE NEXT EXCITING INSTALLMENT
Next week we discuss the concept of superhero intellectual property. From copyrighted outfits to patented gadgets, what rights and protections would these heroes have in their crime-fighting identities and paraphernalia?
1 – Metallo is a robot powered by kryptonite created to kill Superman. The President has the power to grant pardons for offenses against the United States except in cases of impeachment.
2 – While agreements to engage in included offenses are part of a larger conspiracy, the act of killing Metallo is not actually required to frame Superman for his murder (only that he is murdered by someone) therefore there are two separate conspiracies.
3 – U.S. v. Rahman, 189 F.3d 88 (2nd Cir. August 16, 1999).
4 – A contract that can be accepted only by performance (such as an offer to bring in Superman or Batman in exchange for payment) is known as a unilateral contract. Contracts of any kind, however, cannot be for an illegal purpose, such contracts are void at the time of formation.
5 – U.S. Const. Article 2, Section 4.