Obama Administration Supports Vatican Immunity in Child Rape Cases

In yet another disappointment from the Obama administration - why do the disappointments seem to out number the positives? - has filed a brief before the U. S. Supreme Court supporting the Vatican's disingenuous claim that priests and bishops in the United States do not work for and are not under the control of the Pope. Obviously, this argument is specious on its face - especially since only the Pope can appoint and remove bishops and only the Vatican can defrock priests. On its face, what the Roman Catholic Church has done in the cover up and negligent transfer of predatory priests falls directly within the scope of the Foreign Sovereign Immunity Act of 1976. That law includes several situations where a foreign power is NOT entitled to immunity. Specifically, 28 USC § 1605, reads in relevant part as follows:
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(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
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(5) not otherwise encompassed in paragraph (2) above,in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment
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Seems pretty clear cut under any application of normal English, but not so according to Obama's solicitor general. The folks at Yahoo News are reporting as follows concerning the Obama administration's backing of the Vatican's preposterous argument that the Pope has not control over U.S. Catholic clergy:

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The unnamed plaintiff, who cited the Holy See and several other parties as defendants, argued the Vatican should be held responsible for transferring the priest to Oregon and letting him serve there despite previous accusations he had abused children in Chicago and in Ireland.
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The solicitor general's office, which defends the position of President Barack Obama's administration before the Supreme Court, said the Ninth Circuit improperly found the case to be an exception to the Foreign Sovereign Immunities Act, a 1976 federal law that sets limits on when other countries can face lawsuits in US courts.
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[T]he Vatican plans to argue that Catholic dioceses are run as separate entities from the Holy See, and that the only authority that the pontiff has over bishops around the world is a religious one, according to Jeffrey Lena, the Vatican's US attorney.
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Anyone want some Pacific coast property in Arizona? It's about as credible a claim as that put out by the Vatican.

Could the Pope Be Arrested in Britain?

UPDATED: This post was cross posted at The Bilerico Project where it generated a number of comments. In response I posted the following comment that addresses some of the commentary:
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I do not deny that politics may trump the law in terms of any criminal prosecution of Benedict XVI. However, it is not accurate to say that the UN recognizes the Holy See as a sovereign nation. In fact, the United Nations does NOT recognize the Holy See as a sovereign state. Rather, it is afforded the status of a "Permanent Observer," the other such Permanent Observer entity being the Palastinian State which at present does not exist as a sovereign nation.
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The list of sovereign MEMBER nations is here: http://www.un.org/en/members/index.shtml
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The two permanent observers are listed here: http://www.un.org/en/members/nonmembers.shtml
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Chapter II, Article 4 of the UN Chrter states:
Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
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The Holy See is not a member nation. Other portions of the UN's own website seems to likewise note the differences between these distinctions in status: "The MEMBERS of the UN are sovereign nations . . . Just as individuals in a democracy have equal voting rights regardless of whether they are rich or poor, powerful or weak, all countries in the General Assembly have the same voting rights.
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In short, the UN itself distinguishes between sovereign NATIONS which are members and the non-nation Permanent Observers. I would also note that another definition of sovereign state is as follows: "a state which administers its own government, and is not dependent upon, or subject to, another power."

In terms of the Holy See, it has no municipal utilities of its own nor - as the Los Angeles Times notes - fire department. It is an enclave within the city of Rome/Italy.
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Two recent news stories raise the question of whether or not Pope Benedict XVI could potentially face criminal charges if he proceeds with his trip the the United Kingdom later in the year. The first is from the Los Angeles Times and raises the issue why the Vatican and specifically the Pope should not be afforded immunity as a sovereign nation/head of state. The reality is that the Roman Catholic Church is a religion, not a sovereign nation, and that the Vatican does not meet the definition generally applied to what constitutes a nation within the meaning of international law. As such, the Pope should not be allowed to claim immunity from prosecution because he is a "head of state." The second story was in the Sunday Times of London and focuses upon the planned effort of Richard Dawkins to have Benedict XVI arrested when he arrives in Britain in September - unless, of course, Benedict cancels the trip. Before looking at the two stories, it is helpful to look at some self-explanatory legal definitions of conspiracy, obstruction of justice and molestation within the criminal law context.

Conspiracy: An agreement by two or more people to commit an illegal act or to commit a legal act using illegal means. Proving conspiracy requires evidence that the parties agreed to the plan before taking action.
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Obstruction of Justice: An attempt to interfere with the administration of the courts, the judicial system, or law enforcement officers, including threatening witnesses, improper conversations with jurors, hiding evidence, or interfering with an arrest. Such activity is a crime.
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Molestation: The crime of sexual acts with children up to the age of 18, including touching of private parts, exposure of genitalia, taking of pornographic pictures, rape, inducement of sexual acts with the molester or with other children, and variations of these acts.

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The Los Angeles Times piece looks at the ridiculous manner in which the Vatican claims to be a sovereign nation and that the Pope is a head of state and, therefore, immune from criminal prosecution. The article makes - in my view - a convincing argument and set forth why Benedict XVI's claims of immunity need to be rejected. Here are some highlights:
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[I]s the spiritual leader of the world's Roman Catholics really a "head of state" as well? Benedict XVI is the head the church's governing body -- known as the Holy See -- which claims many of the privileges of a sovereign country. In recent decades the Holy See has welcomed ambassadors, signed international treaties and used its status to influence developments at the United Nations.
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That the Holy See is often treated as a state is deeply troubling, for several reasons. For one thing, the Catholic Church isn't truly a sovereign nation; to allow it to play one on the international stage perverts the meaning of statehood. Moreover, the church's claim to statehood gives it even more political influence than it would otherwise wield and grants outsized power to only one of the world's many religions. And its claim is particularly worrisome now that the church -- embroiled in a disturbing scandal that has reached from Boston to Berlin -- is claiming the sort of immunity enjoyed by prime ministers and presidents.
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This persists despite its [the Vatican's] lack of most of the key legal characteristics of statehood. It's true that Vatican City runs a popular post office and mints its own currency. But international law requires that a "state" have four attributes: territory, a permanent population, a functioning government and the ability to engage in international relations.
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As to the question of territory, there exists only the small parcel of land known as Vatican City. But as any visitor knows, Vatican City is in the middle of Rome and is little more than half the size of the Mall in Washington, D.C. In any event, the Holy See continues to claim that its international status is based on its religious authority, not its territorial enclave. To say that Vatican City possesses a permanent population of the sort envisioned by international law is even more of a stretch.
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For decades the strange practice of treating the Catholic Church as a state has been bad for women's equality, gay rights and reproductive freedom. The Holy See's fictive statehood allows it to promote its retrograde views on gender and sex in diplomatic settings and during treaty negotiations. Now, the unfolding sexual abuse scandal reveals another dark side of the Holy See's claim to statehood: the extraordinary immunities claimed by the pope in the face of conspiracy accusations that span the globe.
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Turning to the Times of London story, the theory on which the Pope could be criminally prosecuted is laid out - again in a argument that seems to make straight forward legal sense. Frankly, I hope Dawkins and his allies are successful. Clearly, Benedict XVI and the Catholic hierarchy engaged in a conspiracy to obstruct justice and shield predatory priest from appropriate criminal prosecution by civil authorities. There is little question that I or any readers who engaged in such a conspiracy to cover up rampant sexual abuse of minors on a global scale would find ourselves indicted before we knew what had hit us. Here are some highlights:
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RICHARD DAWKINS, the atheist campaigner, is planning a legal ambush to have the Pope arrested during his state visit to Britain “for crimes against humanity”. Dawkins and Christopher Hitchens, the atheist author, have asked human rights lawyers to produce a case for charging Pope Benedict XVI over his alleged cover-up of sexual abuse in the Catholic church. The pair believe they can exploit the same legal principle used to arrest Augusto Pinochet, the late Chilean dictator, when he visited Britain in 1998.
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Dawkins and Hitchens believe the Pope would be unable to claim diplomatic immunity from arrest because, although his tour is categorised as a state visit, he is not the head of a state recognised by the United Nations. They have commissioned the barrister Geoffrey Robertson and Mark Stephens, a solicitor, to present a justification for legal action. The lawyers believe they can ask the Crown Prosecution Service to initiate criminal proceedings against the Pope, launch their own civil action against him or refer his case to the International Criminal Court.
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“There is every possibility of legal action against the Pope occurring,” said Stephens. “Geoffrey and I have both come to the view that the Vatican is not actually a state in international law. It is not recognised by the UN, it does not have borders that are policed and its relations are not of a full diplomatic nature.”
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Andrew Sullivan sums up the situation well from a morality perspective when he stated as follows on his blog:

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The Pope cannot blame the local bishops this time - they desperately tried to get the priest fired. He cannot claim he was out of the loop: his signature is on the letter. He cannot get an underling to take the fall: it's his name and his office behind the unconscionable delay and behind the actual, despicably callous and self-serving reasons to protect a man who tied children up and raped them. It's over now.
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When we look at this Pope we see a man who knew that one of the priests he had authority to fire had restrained and raped children. Yet he did nothing for years, and finally sided with the priest. He had more sympathy for the relatively young age of the rapist, rather than the innocence and trauma of the raped children. We see a man utterly corrupted by power and institutional loyalty. So when does he resign?

State Dept. gave Blackwater guards prosecution immunity

Wow, it must be nice!! Can I get immunity from prosecution too? This Virginian Pilot article (http://content.hamptonroads.com/story.cfm?story=135761&ran=133455) further underlines that something is "rotten in Denmark" when it comes to Blackwater's cozy, pampered treatment by the regime of the Chimperator. In my view, no one should be above the law, and that includes the Chimperator and his megalomaniac Vice President. The bottom line appears to be that Blackwater was afforded very special treatment few others could expect to receive. Why? Here are some high lights:

WASHINGTON — The State Department promised Blackwater USA bodyguards immunity from prosecution in its investigation of last month's deadly shooting of 17 Iraqi civilians, The Associated Press has learned. The immunity deal has delayed a criminal inquiry into the Sept. 16 killings and could undermine any effort to prosecute security contractors for their role in the incident that has infuriated the Iraqi government. "Once you give immunity, you can't take it away," said a senior law enforcement official familiar with the investigation.

Three senior law enforcement officials said all the Blackwater bodyguards involved — both in the vehicle convoy and in at least two helicopters above — were given the legal protections as investigators from the Bureau of Diplomatic Security sought to find out what happened. The bureau is an arm of the State Department. The investigative misstep comes in the wake of already-strained relations between the United States and Iraq, which is demanding the right to launch its own prosecution of the Blackwater bodyguards.

The report says Blackwater guards were traveling against the flow of traffic through a traffic circle when they "engaged five civilian vehicles with small arms fire" at a distance of 50 meters. The FBI took over the case early this month, officials said, after prosecutors in the Justice Department's criminal division realized it could not bring charges against Blackwater guards based on their statements to the Diplomatic Security investigators.

Officials said the Blackwater bodyguards spoke only after receiving so-called "Garrity" protections, requiring that their statements only be used internally — and not for criminal prosecutions. At that point, the Justice Department shifted the investigation to prosecutors in its national security division, sealing the guards' statements and attempting to build a case based on other evidence from a crime scene that was then already two weeks old. The FBI has re-interviewed some of the Blackwater employees, and one official said Monday that at least several of them have refused to answer questions, citing their constitutional right to avoid self-incrimination. Any statements that the guards give to the FBI could be used to bring criminal charges.

It's not clear why the Diplomatic Security investigators agreed to give immunity to the bodyguards, or who authorized doing so. Bureau of Diplomatic Security chief Richard Griffin last week announced his resignation, effective Thursday. Senior State Department officials, speaking on condition of anonymity, have said his departure was directly related to his oversight of Blackwater contractors.