Jus In Bello and the Fury Doctrine

How do SHIELD and the Avengers go to war?

“We are at war,” intones Col. Nick Fury, about ten minutes into The Avengers. As consumers of summer blockbusters, we’re used to seeing wars on the big screen. We’re also (finally) accustomed to seeing high-quality superhero movies. But the idea of superheroes engaging in war, at least in cinema, is new to us. What are the implications for the Avengers going to war? How does The Avengers handle the policy implications of their war with Loki and the Chitauri? And what happens next?

We Are At War

First off, we can take Fury’s ominous declaration as a means of rallying his team, not an actual, legal declaration of war. In the U.S., war can only be declared by Congress, though that restriction has been relaxed of late. Then again, Fury isn’t committing traditional military resources to this conflict, so there’s less to worry about.

But even if SHIELD is the only force at Fury’s disposal, this raises another question: does SHIELD have the power to conduct a war? What is their remit?

SHIELD has gone through a number of revamps and rebrandings since Nick Fury took the helm in 1965 (Strange Tales #135). The current incarnation, as patiently explained by Agent Phil Coulson several times in 2008’s Iron Man, is the “Strategic Homeland Intervention, Enforcement and Logistics Division.” Their role is never explicitly spelled out, but it seems to involve stopping superpowered crises (Intervention), preventing superpowered folks from breaking the law (Enforcement) and transporting things like frozen super-soldiers and mystical hammers from place to place (Logistics).

I’m not clear on whether SHIELD in the movies is a U.N. agency (as in the comics) or a U.S. agency. The official Marvel.com Avengers website (WARNING: huge, terrible Flash intro) lists SHIELD as an “international peacekeeping agency” in Nick Fury’s bio. Additionally, Spencer Ackerman’s take on SHIELD in Wired describes them as an international agency – and that’s the take his contacts in the DoD had on it, since they bailed on participating.

However, the use of “Homeland” suggests that they’re a domestic agency in the movie universe. Plus, Fury and Coulson clearly have some domestic authority, as evidenced in Iron Man, Thor and Captain America. It beggars belief that the U.S. would let a U.N. agency run around American soil and scoop up superweapons. Suffice it to say, SHIELD’s role re: the American military is ill-defined.

Using the Marvel comics as backstory – always a bit of a risk when crossing over to the big screen, but what else do we have? – SHIELD has its roots in intelligence. Their chief job seems to be monitoring: finding crises or interesting things around the world, then dispatching agents to contain them. We’ve seen it in prior movies, when Agent Coulson shows up in a post-credits teaser to radio in to his superiors. We see this in The Avengers, too, where Fury boasts of the power to use everything in the world with a wireless signal as a listening device.

So SHIELD is a cross between an intelligence-gathering / law-enforcement agency. One would think they don’t have the power to conduct a war, anymore than the FBI or CIA would. Then again, the CIA has engaged in warlike activities for years, such as deposing foreign rulers, financing foreign armies, and assassinating demagogues. So it’s not unreasonable for an intelligence agency to make war on a hostile power.

In any event, there’s no disputing that the U.S. is, in fact, at war. A foreign force (the Chitauri aliens, under the command of the Asgardian Loki) invades the continental United States and lays waste to the infrastructure and populace. But this isn’t the sort of war where the President calls up the Army and the Navy to defend the coast. This is part of the new era of warfare, where the enemy is a stateless actor, hiding in the shadows and striking at unpredictable intervals to cause civilian casualties. This is a war of intelligence first, where finding the enemy is as much the challenge as breaking his ability to make war.