(no subject)

[melannen]

I posted some stuff on tumblr about what assets Steve Rogers might have had waiting for him when he woke up - specifically, on MIA/POW back pay and on intellectual property/royalties.

How Steve Rogers has a crapton of money.

I was going to write it up for this community after I'd done some slightly more rigorous research to ensure that I wasn't just talking out my ears, but I got really stuck on the question of whether Steve would have been legally dead or not.

He would have been still listed by the Army as MIA rather than KIA - that's pretty clear (and I've been struck by a sudden interest in the way Steve and Bucky's stories were used by MIA/POW activists, communities, and survivors) but found it surprisingly hard to find information on how likely it is for an MIA servicemember to be declared dead while still MIA, especially if there are no surviving family members to complicate things. I've seen contradictory stuff about whether what's necessary is "no evidence of survival" or "credible evidence of death", and very little about how those have been applied in practice, especially given that procedures have changed many times over the seventy years that Cap would have been MIA.

Has anybody already done the research on MCU Cap's probable legal status? Or happens to be an expert on the law around MIA? I'd love to get better answers on this (also love any corrections to what I put in the tumblr post.)

Comments

[peoriapeoriawhereart]

There is a series at AO3 being written by a lawyer (it includes acts of vandalism in the name of public safety. And community service.)

[beatrice_otter]

Link, pls?

[peoriapeoriawhereart]

Series

[beatrice_otter]

THank you!

[melannen]

Ooh, thanks!

[beatrice_otter]

I would LOVE the post about the use of Steve and Bucky in POW/MIA activism.

[melannen]

Sadly, I don't have any of the background knowledge necessary to write it, but I would love it too!

[peoriapeoriawhereart]

Thoughts on James Buchanan Barnes' legal status?

[melannen]

Well, what I've been working from is that you can basically go however you want, because there's not really any good precedent for most of it that I know of, which means it would all have to be hashed out in court if you wanted actual answers, and that would depend on individual prosecutor's offices actually choosing to take it to court, and that, in turn, would depend entirely on how the political/PR winds were going.

Not that I'm an expert of this either, but best I can tell, anything from "he's convicted of major war crimes by both the USA and the international criminal court and only avoids a death sentence because the international court gets him first" and "he's hailed as a returned war hero and no prosecutor can touch him."

The closet thing to a precedent that I know of is the case of Patty Hearst, who was wealthy socialite kidnapped by a student terrorist group in the USA in the 1970s and brainwashed into becoming an active member of the group. (Her story's really fascinating if you don't know it, especially in terms of the amount of brainwashing that's possible with really crude methods.)

Anyway she was arrested for several felonies and had a high-profile trial in which her defense argued that she was not culpable due to brainwashing and the prosecution argued that she totally was, and she was eventually convicted and sentenced to seven years in prison, but a lot of people thought that was very injust, she was let out in less than two years, and eventually got a full presidential pardon.

There's a lot of stuff in her case that wouldn't apply to Bucky and vice versa (starting with the fact that the prosecution's primary argument against the brainwashing defense seems to have been mainly "She is a woman. Who has had sex with men. Clearly she is evil") but there's enough parallels it's probably the best place to start, especially since it's the case that ALWAYS comes up in discussion of a brainwashing defense.

The most recent high-profile case to involve brainwashing was Lee Malvo, but of course he was brown-skinned and Muslim, and we all know how well that comes out in American courts, so it's not a great parallel either.

Anyway, if I wanted to give Bucky the best possible outcome, I'd have Cap & Company run a sufficiently successful PR campaign that he gets a comprehensive pre-emptive presidential pardon before any trials happen, along with a very strong message from the State Department that they do not believe there is any probable cause for extradition. I think it's reasonably likely this would work, given that he's a white dude and given the money and influence and cultural capital that would be working for him, and that the U. S. Government would have a compelling interest in not letting Tony's favorite defense lawyers splash all of the U.S.'s complicity in HYDRA all over the cable news for months.

(And I suspect that if you had that PR base, that even if Bucky himself insisted on a trial, the prosecution would softball it.)

There'd still be issues hashing out his precise legal status, and he might have to be careful traveling out of the US, but with that as the starting point, I think it would come out in the end basically the same way as Cap's. At that point everyone involved would be fairly clear that the narrative they are working from is "Bucky Barnes, Hydra POW" and not "Winter Soldier, International Nazi Terrorist". Although of course there would still be pushback from the fringe press.

On the other hand if you wanted to go the opposite way it wouldn't be that hard to have them flub the PR campaign and to write in some strong political pressure in the opposite direction and have everything go horribly wrong.

(Though even if that was the case, I suspect there are many countries that would offer him political asylum, if only to piss off the US. Starting with Russia.)

So basically: whatever story works best for you...