J. Warren St. John, the defense attorney for Eddie Ray Routh, the former marine who killed American Sniper Chris Kyle at a shooting range in 2013, recently gave an interview to The Hollywood Reporter complaining that the popularity of the film American Sniper will prevent his client from getting a fair trial. According to St. John, the film lionizes Kyle and as a result, it will be harder to find a jury that isn’t influenced in some way by the film’s portrayal.Read More
(Author's note: when I first heard about Tony Scott's death last night, it got me thinking very critically about his body of work. I've often been a fan and I think that Crimson Tide, Enemy of the State, and Spy Game emerge as a near perfect trifecta of paranoid-intellectual popcorn cinema. They're action films with a brain. As I got to thinking about his films and the various legal issues surrounding them, there was one that I couldn't shake, and that is the subject of this post. Whatever Scott's demons, he was an inventive and visually kinetic director who knew how to direct actors, create tension, and weave propulsive narratives. He may never be considered the auteur that his brother Ridley was, but his is a voice that will sorely be missed).
About two years ago, in response to criticism that his script for “The Social Network” deviated from the reality of Facebook’s founding, Aaron Sorkin said, “I don't want my fidelity to be to the truth; I want it to be to storytelling.” It was right for him to say this because the job of Hollywood is to tell stories. Sorkin and director David Fincher were not, after all, making a documentary about Mark Zuckerberg. They were telling a story, the driving force of which is drama. I think that most people generally accept this. They know that they’re not watching something that is literally true; they understand that when they see the words “based on a true story”, the real story is an inspirational launch-point for what they are about to see and not a word-for-word retelling. I am one of those people.
But sometimes the demands of creating drama, conflict, and tension distort reality to such a degree that I must fundamentally reject what I am seeing on screen. This happened to me with the 1995 submarine action film Crimson Tide.
Before I get started with the legal analysis, I want to say first that Crimson Tide is, above all else, a Masters-level course on pacing, tension, and drama. Any filmmaker who desires to make tightly scripted thrillers should add Crimson Tide to his or her diet. Furthermore, despite the legal impossibility of the film’s ending, it is still a fantastic yarn filled with excellent performances by Gene Hackman (my all-time favorite actor) and Denzel Washington. The score, by Hans Zimmer, is what we in the film industry refer to as “awesome.” Tony Scott's direction is as clear as it's ever been. Even after what I am about to say, I will still watch Crimson Tide and enjoy the first 111 minutes of its 116-minute run time.
The ending is what we in the legal field refer to as “total garbage.” The film, as you may remember revolves around a mutiny on board the U.S.S. Alabama, a nuclear attack sub. The mutiny is led by Denzel’s dashing and popular Lt. Commander Ron Hunter against Hackman’s gruff but respected Captain Frank Ramsey. During a skirmish with a Russian sub, communications between the Alabama and the National Command Authority are cut off. The Captain believes that the Alabama has been ordered to fire its nuclear payload, while Commander Hunter wants to wait and reestablish communications to find out if the Alabama has been ordered to launch. Time, as you might expect, is not on their side. A Russian splinter group has taken control of that country’s nuclear stockpile and has threatened to launch its own missiles against Washington D.C. within the hour. (I love this movie so much that I just typed the entire plot of the film from memory, not once referring to Wikipedia).
The problem with the movie occurs in the last ten minutes of the film. The standoff between Hunter and Ramsey ends when a cadre of sailors loyal to Hunter reestablish communications with the National Command Authority and discover that the Alabama has been ordered to stand down. The Russian splinter group has been defeated by the Russian army and the nuclear stockpile has fallen back into the hands of U.S. allies. Despite tearing the ship’s crew apart, Hunter has just saved the world from nuclear annihilation. A few weeks later, Ramsey and Hunter stand before a dais of admirals who chew them out over the mutiny. Instead of being court-martialed, however, Hunter learns that Captain Ramsey recommended that Hunter be promoted and given his next command at the next possible convenience. The two men shake hands and literally walk off into the sunset! Pardon my legal jargon, but WHAT THE HELL?!!
Hunter had just led a mutiny aboard a U.S. Navy vessel in a time of war. I refused to believe that he would have gotten off without so much as a slap on the wrist. So I looked into it and here’s what I found:
Article 94 of the Uniform Code of Military Justice (UCMJ) states that “any person… who…with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny….” For those who are interested, the provable elements for mutiny can be found here. I won’t spend this time analyzing whether Hunter’s actions constituted mutiny since pretty much every major character within the film admitted that it was in fact mutiny; For the sake of brevity, I’ll take the film at its word.
What I’m much more interested in here is the punishment. Article 94 says that, “[a] person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.” The text of the UCMJ isn’t helpful in determining what factors a court-martial would use in sentencing a mutineer, so I dug around further and discovered that there has never been a documented case of mutiny on a United States naval vessel. Thus, there is no precedent in the modern era for determining how a mutineer on a U.S. naval vessel during a time of war would be charged and sentenced under Article 94. Since I'm not a military man, I wanted to get a military perspective on the situation, so I posed this question to my friend and colleague Matt Brecher who had worked in the U.S. Army Judge Advocate General Corps. This is what he said:
“The maximum punishment is death, however [the mutiny] would more likely be punished by a dishonorable discharge and a lengthy prison sentence in a military prison, loss of all rank, and forfeiture of all pay. Aggravating factors leaning toward life imprisonment or death would include mutiny during a time of war. However, it may be a defense to such a charge if an order or leadership is unlawful, or if the person committing such act is acting pursuant to a regulation or order authorizing their act.”
Matt goes on to say that, “[g]enerally, if he were actually charged with mutiny, I would expect a General Court Martial (as opposed to a special or summary court martial), meaning that the court is empowered to issue any type of punishment authorized under the UCMJ, including death, life in prison, and dishonorable discharge. The factors to consider would be the legality of the original commander's actions as commander, and whether there were legal grounds for the "mutinous activity." This might include the commander becoming unfit for command, but would likely require a naval regulation authorizing his relief."
Surprisingly, Matt does not think that Hunter would be court-martialed for mutiny. "I would not expect a mutiny charge, but rather a charge of disobeying a lawful order, disrespecting a commissioned officer, and other lesser included offenses. They would likely each receive a letter of reprimand in their permanent fiche at the very least.”
While reasonable minds can disagree on the severity of the punishment and the type of administrative hearing Hunter would receive, he would certainly have received some sort of punishment. Just because Ramsey liked the guy and recommended him for promotion wouldn’t absolve him of guilt.
So Scott flubbed the ending in an attempt to give the audience a happy ending. This makes total sense… when you’ve just put the audience through a non-stop tension-filled thrill ride where nuclear Armageddon was imminent, you understand that the audience needs a catharsis. But being a film-buff and also a shameless revisionist, I believe such a catharsis could have been reached while still maintaining some semblance of reality.
Obviously, we can’t have Hunter given the maximum punishment (death) because Denzel is our protagonist and we like him. Furthermore, the final scene demonstrates that Scott was keen on showing that Ramsey developed a profound respect for Hunter because Hunter bucked authority to do what he thought was right – he was his own man. My preferred ending to Crimson Tide ends thusly:
Ramsey meets Hunter for coffee two years after the incident. Hunter has just been released from a military prison. It is revealed in their conversation that Ramsey visited Hunter often in prison, bringing him books on military history (including a copy of Von Kriege by Carl Von Clausewitz - callback to an earlier scene!) and had grown to respect Hunter for standing up for what he believes in. It is also revealed that Hunter was given a significantly reduced sentence (including a dishonorable discharge) because of his stellar record, because his actions averted nuclear catastrophe, and because Ramsey testified at the court-martial defending Hunter’s actions.
The benefit of such a scene would bring full circle a theme that the film played with tangentially in the early going: how a man’s will intersects with the rigid structure of the military. An ending like this could show that Hunter was too willful to be a military man (something the film toyed with in Denzel’s early scenes with Hackman) and that being his own man in a world of rules and regulations would cost him dearly. It would also have the desired effect, showing the growing friendship between two former enemies. Lastly, an ending like this would have kept the happy ending the audience craved, been truer to real life, and helped an already excellent action film become a Great Film. Full stop.