META: The Problem of Secret Identies

[Martin Phipps]

It occurs to me that even though I wrote almost sixty Superfreaks
stories that I failed to get across what the series was about.  It was
not "anti-superhero" at all.  Instead, it deals with the issues that
would face superheroes if they operated in the real world.

To a certain extent, Marvel's Civil War addressed the same issues
except the issues were used as an excuse to have heroes fight each
other.  In an issue of Amazing Spiderman, Peter Parker asked Tony
Stark why Captain America wasn't called to testify when the senators
were considering the Superhero Registration Act.  Surely an elloquant
advocate of personal freedom like Captain America could have swayed
the senators enough to defeat the legislation.  Tony dismissed the
idea as if he thought Captain America's testimony would have done more
harm than good.  In reality, the reason why Captain America wasn't
called to testify is simple: if it had (more realistically) become a
political issue rather than an excuse for heroes to fight then it
would have been boring for the fanboys.  It would have been a lot more
interesting to me though.

The pre-Civil War issues of Amazing Spiderman had Tony Stark and Peter
Parker going to Washington because a new piece of legislation, the
Superhero Registration Act was being considered.  Tony was going to
Washington to testify on behalf of Superheroes and ask that they not
have their identities exposed.  Tony seemed to be wavering on the
issue when questioned by the Senators so Peter snuck out, changed into
his Spiderman costume and then dropped down from the ceiling and
hanged by his webbing in front of the Senate committee that had been
questioning Tony.  Peter told them that he had family members who
would be in danger if he revealed his identity.  The Senators asked
Peter if he wanted his testimony to go on record and Peter said he
did.  The Senators then told him that his testimony would have to be
stricken from the record if he didn't tell them who he really was as,
for all they knew, so they said, he was just some guy in a Spiderman
suit.  Peter refused.  Tony told him afterwards that he appreciated
what Peter tried to do but, unfortunately, he had just demonstrated
one disadvantage to superheroes having secret identites: they can't
testify in trials.  (Under the SRA superheroes would presumably have
been able to testify in trials because they could be vouched for by a
government official.  The same logic applies when CIA agents are
allowed to testify in trials even though their identies are
concealed.)

There's another, more serious, problem with secret identies and that
is the constitutional right of any American citizen to face his or her
accuser.  Imagine you live in New York, Gotham City, Metropolis,
Net.ropolis, Jolt City, Pepperton or any city with a large number of
costumed crime fighters running around: when you commit a crime, you
are likely to be pursued not only by the police but also at least one
of these costumed vigilantees.  Almost certainly, your constitutional
rights are being violated.

Let's consider the 4th Amendment: "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated; and no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the persons or things to be seized."  Does Batman get a warrant before
he breaks into the Joker's hideout?  When the "Friendly Neighbourhood
Spiderman" webs up a criminal and tells the police that they will
"find all the evidence they need" is that evidence actually evidence
the police could use or would any competant defense attorney cry out
that not only were his defendents 4th Ammendment rights have been
violated but that the evidence had come in contact with someone who
the police could only identify as "Spiderman", somebody who refused to
come forward and testify to the fact that he hadn't planted that
evidence at the scene himself.  Consider all the people who Spiderman
would stop only to have their charges dismissed even before they are
brought to trial.  It sort of makes you wonder if J, Jonah Jameson
didn't have a point, doesn't it?

I grant that superheroes would need to maintain secret identities from
the general public but I question how useful this would be in the real
world where the accused has rights and defense attorneys are employed
to protect those rights.  In any case involving a superhero, a red
flag would go up in the mind of any defense attorney and it would be
screaming "constitutional violation".   It made absolute sense to me
that a district attorney would be very unhappy about having to try
cases involving superheroes and would therefore have negative feeling
about the heroes themselves.

The same issues come up if we have cases involving CIA agents: you
wouldn't want to be pursued by the CIA and would complain vehemently
if a CIA agent presented evidence against you in trial, evidence that
you would have a hard time defending yourself against as a result of
the governments right to protect "national security".  Of course, the
CIA isn't supposed to be investigating American citizens: it's
supposed to be protecting Americans against external threats.
Unfortunately, from the point of view of civil libertarians, the
Patriot Act makes it easier for the CIA to bring forward evidence
against American citizens.  The analogy with the Superhero
Registration Act is striking: SHIELD could call upon superheroes to
police each State in the union and this could lead to gross violations
of the constitution if the heroes' identities are known only to Tony
Stark and his inner circle.

In Superfreaks, I've tried to address these issues.  Hell, actual TV
crime dramas like CSI and Law and Order address these issues all the
time.  That's why I thought superheroes and detectives would be a good
mix.  Or not as the case may be.

Martin