Amici Curiae: The Papal Immunity, UN Immunity, and Phelps Impunity Edition

Vatican May Invoke Sovereign Immunity in Defence of Pope
As prominent Catholic bishops rush to defend Pope Benedict amid further reports of past sexual abuse of children by Catholic priests, Vactian lawyers plan to argue that the pope has immunity as a head of state in their defence of a potential class-action suit, the AP reported. The Holy See is trying to fend off the first American case to make legal negligence claims against the Vatican itself for allegedly failing to alert authorities or the public about priests who molested children. “This case is the only case that has been ever been filed against the Vatican which has as its sole objective to hold the Vatican accountable for all the priest sex abuse ever committed in this country,” William McMurry, a plaintiff who is seeking class-action status for the case, saying there are thousands of victims across the country, told the AP . “There is no other defendant. There’s no bishop, no priest.” The U.S. government has long considered the Vatican a sovereign state, which thus enjoys qualified immunity under the Foreign Sovereign Immunities Act. Indeed, the Vatican has been a beneficiary of the FSIA. “If Pope Benedict XVI is ordered to testify by a U.S. court, foreign courts could feel empowered to order discovery against the president of the United States regarding, for example, such issues as CIA renditions,” the AP quotes Jeffrey Lena, the Vatican’s counsel, as saying in in a 2008 brief obtained by the news agency. In contrast, Christopher Hitchens, who, to put it charitably, has a dim view of the Vatican, is all for legal action against the Pope. “This grisly little man is not above or outside the law,” Hitchens writes in Slate. “I know some serious men of law who are discussing what to do if Benedict tries to make his proposed visit to Britain in the fall.”

Dutch Court Dismisses UN Srebrenica Suit
Hours before the Serbian Parliament passed a resolution apologizing for the 1995 massacre of more than 7,000 Bosnian Muslims at Srebrenica, the Dutch Court of Appeal dismissed a lawsuit brought against the United Nations by the Mothers of Srebrenica for its peacekeepers’ role in the massacre. The appellant, representing the mothers and other relatives of more than 6,000 dead, alleges that, far from simply failing to prevent the bloodshed, the Dutch battalion expelled thousands of Bosnian Muslims from its base into “the hands of Bosnia Serb soldiers” and helped Bosnian Serbs to “separate unarmed men and boys from their families and bus them to execution sites.” The appeal court, however, upheld a district court ruling that relied on UN legal immunity for the actions of its peacekeepers, as grounded in the UN Charter and the UN Convention on Privileges and Immunities. The protections of the latter agreement (apparently limited in intent to UN officials, diplomats, and experts) were extended to the UN’s peacekeeping operations under its 1990 Model Status of Forces Agreement. According to the court’s press release, while “the Court of Appeal appreciates that the mothers and their relatives have suffered atrocities,” the court confirmed the “UN’s special position” as guarantor of “world peace and safety” in “hotspots around the world.” That is, stated the court’s release, the “interests of the UN must prevail” in order to ensure that “the UN is not thwarted in the execution of its duties” by court cases. Perhaps inappropriately in the circumstances, the court takes the trouble to add that its confirmation of UN immunity will work to inhibit frivolous litigation that may have been brought “for no other reason than to frustrate the UN’s work.” The Mothers of Srebrenica intend to appeal the decision.

In related news, The New York Times’ Robert Mackey reports that the Dutch ministry of defense released a copy of a letter of apology from U.S. General John Sheehan. As regular readers may recall, testifying earlier this month at U.S. Senate hearings reviewing the military’s “don’t ask, don’t tell” policy, General Sheehan said that “a Dutch counterpart had told him that the failure to defend Srebrenica was in part caused by the presence of gay troops in the Dutch military.”

BCCA Affirms Charter Right to Rudimentary Shelter
Sarah Hamill, in a post on the Centre for Constitutional Studies’ website, walks through the decision of the British Columbia Court of Appeal in Victoria (City of) v. Adams, which was decided late last year and affirms a trial court’s ruling that recognized a Charter right for the homeless to erect temporary shelters under certain circumstances (the trial judgement was discussed here in 2008). “The Court of Appeal’s ruling in Victoria may spur changes in other cities in British Columbia, but it is unlikely to make cities like Edmonton or Calgary reword their bylaws to make them constitutional,” Hamill argues. “However, if a ruling like Victoria is appealed to the Supreme Court of Canada, Canadian cities may be forced to redraft their bylaws so that they comply with section 7 of the Charter.” The litigation centred on whether homeless people could set up temporary shelter in public parks notwithstanding municipal bylaws prohibiting any form of “structural” shelter in them. Residents of the tent city launched a Charter challenge under s. 7 when the Victoria enforced its bylaws by removing a tent city in one of its parks. The BCCA agreed with the core trial court holding that s. 7 was violated, but disagreed with the trial judge’s finding that the bylaws were arbitrary, Hamill notes. Instead, the BCCA determined that the bylaws were overbroad and thus violated the Charter.

Can SCOTUS deign to cite foreign law?
U.S. Supreme Court Justice Antonin Scalia in his dissent in Lawrence v. Texas famously castigated his more liberal colleagues for citing foreign law in their majority opinion. Discussion of foreign views amounted to “dangerous dicta” since the court “should not impose foreign moods, fads, or fashions on Americans,” Scalia urged. (By way of background, Justice Anthony Kennedy, speaking for the majority, had cited the European Court of Human Rights.) Speaking this week, however, Justice Stephen Breyer, who was in the majority in Lawrence, said the debate about the reference to foreign law is ultimately irrelevant because justices can read whatever they want when writing their opinions. “I say that’s a wonderful political debate. It’s good, but it’s pretty irrelevant because when I do read things, I can read what I want,” Breyer said, in remarks reported by The Washington Post. “If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.”

The Dreyfus-Guantanamo Continuum
Does the Dreyfus Affair still matter, and how does it still matter? The Financial Times’ Donald Morrison reviews three recent books on the subject, concluding that the affair does still “matter”, at least by virtue of its modern analogues, most notably the post-9/11 actions and policies of the U.S. government. The 1894 scandal began began when a letter later alleged to contain French military secrets was found in the garbage at the Parisian German embassy; the shredded letter was too-quickly traced to Alfred Dreyfus, a Jewish captain in the French infantry; and the French political, literary, and cultural establishment has been convulsed by the question ever since. The Dreyfus Affair, says Morrison, “was the first big test of a modern justice system” in that it engaged and engages those issues “central” both to democracy and the difficulty in justifying democratic methods where exigency seems to demand contrary methods: that is, “should the rule of law be applied consistently, or are there cases in which it should be bent to fit a current crisis or pressing national concern?” Morrison notes that France’s enduring argument over, and fascination with, the Affair is natural enough, particularly in light of the perennial French debates over Algeria, Vietnam, cultural accommodation, and systemic anti-Semitism. He goes further, though, connecting the question of the consistent application of law to the present War On Terror. Morrison praises Louis Begley’s Why the Dreyfus Affair Matters, “a slim but powerful denunciation” of the Bush administration. Begley, says Morrison, “likens Dreyfus to the 800 or so ‘enemy combatants’ dispatched to [Guantanamo], nearly all without trial or basic charges.” To Morrison, Begley’s analogy, which may be somewhat strained  or “attenuated”, in Harper’s’ Scott Horton’s words is perfected in the collective Zola claims to have found for the American context. To Begley, and perhaps Morrison, the Dreyfus/Guantanamo correspondence is confirmed in the actions of “the journalists, lawyers and judges who fought against ‘torture and kangaroo trials'” to free the detainees.

Father of Slain Marine Ordered to Pay Costs to Protestors
The father of a slain U.S. marine who sued highly controversial anti-gay protestors for picketing the funeral of his son has been ordered to pay costs after having lost his suit against them, CNN reports. Regular readers will remember the case, Snyder v. Phelps, which involves Fred Phelps, the Kansas preacher known for vehemently anti-gay views and is headed to the U.S. Supreme Court for another round of appeal. Phelp’s group, which runs the website, carried signs including “God Hates the USA,” “America is doomed,” “Semper fi fags,” and “Thank God for dead soldiers” at the funeral protest. The soldier’s family won an $11 million judgement, which was recently reversed by the Fourth Circuit Court of Appeals. “By the court making this decision, they’re not only telling me that they’re taking their side, but I have to pay them money to do this to more soldiers and their families,” Albert Snyder, whose son was killed in Iraq in 2006, told CNN. Though fee-shifting is rare in U.S. courts, Maxwell Kennerly of the Law & Litigation Blog notes that Rule 39 of the Federal Rules of Appellate Procedure permit it. “Civil it may be, but justice it is not,” Kennerly argues. An even more outraged Bill O’Reilly of Fox News has promised to cover Snyder’s costs.

Who, then, in law is one’s electromagnetic neighbour?
There are likely few “electromagnetic hypersensitives” (EH) in good health among The Court‘s readers, perhaps fewer still sensitive to said hypersensitives’ sensitivities. Whatever the pathology’s origins and somatic validity, its secondary legal symptoms are real enough. According to Michael Haederle at the L.A. Times, Arthur Firstenberg, a Santa Fe resident and EH, has brought suit against a neighbour claiming that emissions generated by her iPhone, laptop, wireless router, and dimmer switches induced (inter alia) nausea, vertigo, and insomnia, forcing him out of his house, into his car, and onto friends’ couches. A member of a Santa Fe group opposing the city’s introduction of wi-fi zones, Firstenberg is also the founder of the Cellular Phone Task Force, who were the lead petitioners in Cellular Phone Taskforce v. FCC, a U.S. Second Circuit Court of Appeals case brought to challenge FCC safety standards for radio frequency radiation. Firstenberg, apparently unfamiliar with the EH-friendly Faraday Cage (a wire mesh enclosure, last filmed enclosing Gene Hackman in Enemy of the State), did take some precautionary measures. He chose a house located “at the end of a narrow lane,” next to a railway yard, that seemed to him the perfect electromagnetic refuge. He was unable to choose his neighbours.

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