- Do you see the beauty of it? My swift and terrible sword,
and the Earth will crack with the weight of your failure. When the dust settles,
the only thing living in this world, will be metal. In 2015, the world
reeled from attacks from enhanced individuals. It was not prepared for
the tragedy in Sokovia, under the leadership of Ultron, a robot army descended
on the peaceful town of Novigrad, Sokovia, a province known for its wheat production
and fine woolen goods. In a battle that pitted
sibling against sibling, the otherwise sleepy town
of Novigrad was levitated in to the sky. Hundreds of thousands
of Sokovians perished, and the world was forever changed. But in the wake of the tragedy, countries around the world
rallied around a common cause, in response to the Sokovian tragedy and the supervillian Ultron,
the world knew what it needed, to regulate enhanced individuals. That is legally problematic. (guitar playing) Hey LegalEagles, it's time
to think like a lawyer. Welcome back to Laws
Broken, where an attorney destroys your favorite childhood movies, by showing you how illegal everything is, because everything is illegal. Today we're talking
about the Sokovia Accords from "Captain America's Civil War" and the rest of the "Avengers" movies. We're going to pretend
that it is an actual binding, legal document and analyze it in far, far, too much detail. For better or worse, in the
wake of the Ultron disaster, countries worldwide,
through the United Nations, signed the Sokovia Accords. The Sokovia Accords are
a phone book sized set of regulations aimed squarely
at the Avengers personally, and the organization S.H.E.I.L.D. It seeks to limit the
so-called enhanced individuals, including registration components, monitoring components, and
imprisonment components. I'm using the version
of the Sokovia Accords found at the Marvel Cinematic
Universe Fandom Wiki, which you can find at the link below. Importantly, some of the
provisions only apply to signatories of the Sokovia Accords, while other provisions apply
to all enhanced individuals, whether they sign or not. This is quite the constitutional problem. So because this is
obviously the most important legal analysis that I could
possibly be doing right now, I put together 10 reasons
why the Sokovia Accords raise constitutional questions. But first, I want to talk
about the legal landscape in general, specifically
whether the Sokovia Accords would even be U.S. law and number two, what would the legal
framework be for dealing with enhanced individuals in the absence of the Sokovia Accords? So first, let's talk about
the Accords in general. An accord is not a U.S. law, I assume what the Marvel
writers meant here is that the Sokovia Accords are
an international treaty that the U.S. has signed. But just because 177
countries signed an agreement, doesn't actually make it
law in the United States. In the case of a treaty,
the Senate has to approve the treaty by a 2/3 vote
under Article II, Section 2 of the Constitution. And there are tons of examples of treaties that the U.S. has signed
but not actually ratified, that includes the International
Criminal Court Treaty, the Comprehensive Nuclear Test Ban Treaty, the Kyoto Protocol, and
the Treaty of Versailles, basically the U.S. is
still in World War I. But for the sake of
argument, let's assume that the U.S. Senate has, in fact,
ratified the Sokovia Accords, it's more fun that way, in any event, even when treaties are ratified, they cannot violate the U.S. Constitution, and, in fact, this was
an issue when the U.S. adopted NATO, because it was thought that the Mutual Defense
Treaty would violate Congress' right to declare war. But before we get to analyzing
the actual Sokovia Accords themselves, we have to
examine the status quo ex ante of U.S. criminal law and tort law. Captain America chafes at the restrictions of the Sokovia Accords, but
it's not like in the absence of the Accords, he'd be
allowed to operate domestically in the United States. Vigilantes are illegal, as
we discussed in the video on the "Dark Knight" and all
the laws that Batman broke. You can't just go around
getting in to fights, even for a good cause. The justification of
self-defense generally doesn't apply when you intentionally
put yourself in harm's way. And all of these enhanced
individuals are using deadly force, which almost
always carries with it a duty to retreat if
you are able to do so. Of course, U.S. law
doesn't necessarily apply to the Avenger's actions in Sokovia and other foreign countries. But the fact of the matter
is, they are often operating domestically where U.S. law does apply. Don't even get me started
about issues of federalism because even if enhanced
individuals were allowed, under the Sokovia Accords
on the federal level, there's still all the state laws that prohibit their actions. And there's no way
federal law would preempt garden variety state laws
about criminal conduct. Now you might argue that
it seems like the Avengers in S.H.E.I.L.D. are operating
as an arm of the government, essentially like mercenaries,
which might have given them legal cover under the battle of New York, but if that's so, that
they're operating as an arm of the U.S. government, that
carries with it all kinds of constitutional protections
and that doesn't get them out of trouble. By the way, Tony Stark created Ultron, and effectively Ultron is
his product entered in to the stream of commerce,
so Tony Stark is probably personally liable on a product's liability or negligence theory for all
the damage that Ultron did. And since this is a Marvel movie, I put an after-credits
bonus scene about that topic at the end of this video. But the fact that the
writers even considered any of these legal issues is why the adoption of Sokovia Accords is the best scene in the MCU. - Actually the best scene in
the MCU is the after party from "Age of Ultron"
because of how effectively it uses a light, fun
moment between the Avengers to reveal important
information about the main characters while still
being a funny scene. - Actually the best scene in the MCU is the I'm Always Angry" scene
from the first "Avengers" because it's just so iconic. - Well actually, I'd say that
the best scene in the MCU is the military propaganda
montage in the original "Captain America" movie
because no other scene is so subversive, over-the-top,
and hilarious all ... - Yeah, this is my court,
objections overruled. But let's ignore those
issues and let's talk about the 10 biggest problems
with the U.S. version of the Sokovia Accords. So in order of ascending
constitutional infirmity, let's start with the
compelled speech portion of the Sokovia Accords. The Sokovia Accords state, and I quote, "Any enhanced individual who agree to sign must register with the
United Nations and provide biometric data such as
fingerprints and DNA samples..." "Those with secret
identities must reveal their legal names and true identities
to the United Nations..." This is a classic provision
of compelled speech, some of which applies to signatories and some of which does
not apply to signatories. But forcing individuals to give up their secret identities is the
government compelling you to make a certain kind of speech. - I am Iron Man. - And if the first amendment has a problem with the government
restricting certain speech, you can imagine that it
is doubly problematic if it forces individuals to
make a certain kind of speech. For example, in the Supreme Court case of West Virginia School
Board vs. Barnette, the Supreme Court said that
a school could not force students to stand and salute the flag. That was compelled speech. And in the same way that
you can't force individuals to stand up and salute the flag, you can't force people to give
up their secret identities and provide biometric
data and fingerprints to the U.S. government. Number two, forced registration sounds a lot like internment. The Sokovia Accords requires
all enhanced individuals to at least register with the government, whether they are using
their powers or not, which sounds a lot like the internment of the Japanese in World War
II under executive order 9066 by President Roosevelt. That executive order was tested
at the Supreme Court level in a court case Korematsu,
and the Supreme Court did not overrule the executive order,
which interned the Japanese. Korematsu is still good law. That being said, I doubt
the Supreme Court would rule the same way today,
despite the fact that the ruling has never been overturned. But in any event, it seems
like this is a clear violation of the fourth and fifth
amendment protections and a requirement for due process. Number three, monitoring
of enhanced individuals. This seems like a clear
fourth amendment problem. The Sokovia Accords state, and I quote, "Those with innate powers must also wear tracking bracelets at all times..." The problem is warrantless
monitoring without probable cause; just because someone is an enhanced individual would be a clear fourth amendment violation, a violation of the right to privacy, being enhanced doesn't
necessarily mean that you have probable cause to monitor them. And it would be crazy to have
a blanket monitoring system that monitored everyone
in the United States without probable cause. So it's very good the U.S.
government has never had a program like that, to monitor people without probable cause. (loon singing) The Sokovia Accords also state that, "Those with innate powers must submit to a power analysis, which
will categorize their threat level and determine
potential health risks..." This feels like a huge violation
of the right to privacy. The government can't just go around doing medical examinations of
individuals just because it feels like it or because
it's in the public interest. People have individual rights
specifically to protect them from this kind of invasive testing. And additionally, it would
probably be a violation of Tony Stark's intellectual property. Even if he hasn't patented
the Iron Man suit, it would probably be a trade secret, and the compelled power
analysis would probably violate his IP rights to the suit that he created. - It's working, we're safe. America is secure. You want my property? You can't have it. - Number four, the second
amendment's individual right to bear arms. While this is still a
huge point of controversy, in recent Supreme Court precedent, in the District of Columbia vs. Heller, the Supreme Court confirmed
that the second amendment does provide an individual
right to bear arms. So, what is the threshold
for Iron Man, Falcon, and War Machine to be able
to use their inventions that they created effectively, the Iron Man suits or the Falcon machinery are just arms that they have created and certainly, in some circumstances, you are allowed to an individual
right to bear those arms. Now obviously, individuals are not allowed to have military hardware,
but the Sokovia Accords don't make it clear where the
individual right to bear arms starts and where the exclusion
of military technology kicks in and how that would
apply to the individuals who are not innately
enhanced, but have created an enhanced suit for themselves. - I have successfully
privatized world peace. (Crowd clapping) So given the make up of
the current Supreme Court and the deference shown to the
individual right to bear arms under the second
amendment, you can bet that the Sokovia Accords probably
run afoul of that right under the Constitution as well. Number five, a violation of
the freedom to associate. The Sokovia Accords apply
to all of the Avengers, even those who are not enhanced, effectively preventing
them from being a member of this community or group. Now the first amendment is most famous for the individual right to freedom of speech, but the lesser known right
of the first amendment is the right to voluntarily associate. And the Sokovia Accords
prevent individuals from associating with
the private organization called the Avengers and
the private organization called S.H.E.I.L.D. Just because you are
an enhanced individual doesn't mean you lack
first amendment rights to be a part of the group that
you want to participate in. Number six, violation of
the freedom to travel. The Sokovia Accords state, and I quote, "Any enhanced individuals
who sign are prohibited from taking action in any
country other than their own, unless they are first
given clearance by either that country's government or by a United Nation's subcmomittee..." - Think of it this way, your
school has rules, right? Like you can't draw on the walls. Well your daddy went to
Germany and drew on the walls with Captain America,
and that was a violation of Article 16, paragraph
three of the Sokovia Accords. - Now the defined term taking action can be read very broadly. Would that prohibit all of the Avengers from setting foot in
any particular country without getting the United
Nations subcommittee to allow them to travel? And would it prevent them
from traveling domestically in the United States? If it does, that's clearly a violation of the privileges and immunities clause of the U.S. Constitution. And not to mention, the
violation of various International laws that
allow freedom of travel, particularly between the U.S. and E.U. I think that this is a
poorly drafted statement, and it shows how important it is to define the terms that you're dealing with, because otherwise, people
will read them broadly, when they're written
broadly, and it can have unintended consequences. Which takes me to problem number seven, which is vagueness. There is a constitutional
rule that requires criminal laws to state
explicitly and definitively, what conduct is punishable. Criminal laws that
violate this requirement are said to be void on vagueness grounds. The vagueness doctrine is based
on the due process clauses of the fifth and 14th
amendments to the Constitution. And I think that there's
a big problem here in terms of what the enhanced individuals are being accused of; vague
terms like taking action, vague terms as in what constitutes an enhanced individual itself, all of these are vagueness
issues that are probably so vague as to run afoul
of the due process clauses in the Constitution. That's why you need lawyers
to draft these things, not comic book artists, but I digress. It takes me to issue number eight, which is imprisonment. The Sokovia Accords effectively
treat enhanced individuals who fail to comply with
the Sokovia Accords as enemy combatants. Now it's one thing to
send enemy combatants that are imprisoned in
a foreign theater of war and send them to Guantanamo, but it's another thing
entirely to send U.S. citizens, who were found in the United States, to the equivalent of Guantanamo
on some Helicarrier someway. This is a clear due process violation. You can't just put people
inside of a Helicarrier with no lawyer, no
arraignment, and no bail. That's clearly a sixth amendment violation to the right to council. - You're not gonna put me in a prison. You're not gonna put
any of us in a prison. - And the other side of the
coin in problem number nine, which is forced conscription in to combat. The Sokovia Accords
appear to force certain enhanced individuals in to fighting for the U.S. government
in certain times of war, effectively the draft, but it's another thing
entirely to seek out certain individuals specifically, and then force them in to combat on behalf of the government. This seems like a clear violation of the 13th amendment's prohibition against involuntary servitude. You might recall that we
fought a real civil war to prevent involuntary
servitude and slavery, and forcing enhanced individuals to fight for the government seems to run
afoul of those prohibitions. Which takes me to problem number 10, and the biggest constitutional violation, the violation against habeus corpus. Habeus corpus is Latin
for produce the body. And the Sokovia Accords
state, and I quote, "Any individuals who use
their powers to break the law, including those who take
part in extra legal vigilante activities or are otherwise
deemed to be a threat to the safety of the general
public may be detained indefinitely without trial." "If an enhanced individual
violates the Accords or obstructs the actions of
those enforcing the Accords, they may likewise be arrested and detained indefinitely without trial..." You might see where this is going, but simply, detaining people
indefinitely without trial is the classic constitutional problem. And in fact, just simply
deeming someone a threat, before they have committed
any kind of events is like a precrime prohibition, which again, runs afoul
of the Constitution. The writ of habeus corpus
requires a person in custody to be brought before a
court, provided a lawyer if they can't afford
one, and to be protected by the U.S. Constitution. We fought the war of Independence
to have the protections of the Constitution to prevent things like indefinite imprisonment
for no reason whatsoever. This violates the fourth
amendment which protects people from arbitrary arrests. It violates the fifth
amendment's protection against being deprived of life,
liberty, and property without due process. And it violates the sixth
amendment's right to council and a trial. There's actually very few
parts of the Constitution that this part of the Sokovia
Accords don't actually violate, and that's why the lawyers are the real superheroes
in the Marvel Universe. (patriotic music) So in thinking about this
Ultron Vision problem a little bit more, Tony created Vision, Vision is Tony's property, his chattel, so legally speaking,
Vision is like Tony's dog.
Yeah I absolutely love this video! I have been wondering about the Sokovia Accords forever.
I honestly have no idea where the Wiki version of the Sokovia Accords comes from or how accurate they are to the movie, but if that’s really the version in the movie, then I have absolutely no clue how so many countries approved of it and why they’re even a debate when they so clearly violate the Constitutional rights of any enhanced people. Isn’t it funny, then, that the enhanced members of Team Iron Man; Black Panther, Vision, and Spider-Man, all have ways of getting out of the accords, either by being royalty, a machine, or having a secret identity? Meanwhile the enhanced members of Team Cap; Captain America, Winter Soldier, and Scarlet Witch, all would be fully subject to the accords? Not to mention that the team against the Accords is led by an enhanced individual, while the team for them is led by someone who’s not enhanced? It’s almost like a certain group of people are fighting for their rights against others who would benefit from them not having those rights.