by Jack L. B. Gohn<\/p>\n
Maryland Daily Record, May 3, 2010<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Stop me if you\u2019ve heard this one before.\u00a0 How is the Pope like a Peruvian steamship?\u00a0 Give up?\u00a0 You\u2019ll love this: the State Department stopped both of them from getting sued!\u00a0 What\u2019s that you say?\u00a0It\u2019s not funny?\u00a0 Come to think of it, you\u2019re right; it\u2019s not funny at all.<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Peruvian steamship was the Ucayali<\/em>.\u00a0 In early 1942,\u00a0 Galban Lobo Co., a Cuban concern, filed an admiralty action against Ucayali<\/em> in the Eastern District of Louisiana, claiming that Ucayali<\/em> had failed to live up to an agreement to transport sugar to New York.\u00a0 (Probably prompted by a sudden fear of U-boats after Germany and the U.S. went unexpectedly to war.)\u00a0 Ucayali<\/em> was no ordinary steamship however; she was owned by the Peruvian government.\u00a0 In short order, therefore, the U.S. Department of State filed a suggestion of sovereign immunity on behalf of the ship.\u00a0 The judge disagreed,[1] saying that any immunity had been waived by the extensive participation of Ucayali<\/em>\u2019s owners in early stages of the litigation \u2013 a commonplace route to inadvertent waiver of immunity.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Supreme Court (In re Republic of Peru (1943)<\/a><\/em>), did not even wait for appeals or cert petitions.\u00a0 Instead, it leapt in with its little-used mandamus powers, and held that once the Department of State had spoken on the subject of sovereign immunity, that was the end of the discussion.\u00a0 It acknowledged that whether Ucayali<\/em> had sovereign immunity was a legal question, and that the District Court had jurisdiction to adjudicate this legal question, but it held that the Department of State also had jurisdiction to determine the question.\u00a0 And the courts were supposed to defer once DOS had ruled, even if the question had been presented to the courts first.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This result seems peculiar.\u00a0 Generally, courts review agency action; agencies don\u2019t correct courts.\u00a0 And in the end, this goes right back to Marbury v. Madison<\/a><\/em>.\u00a0 \u201cIt is emphatically the province and duty\u201d of the courts, as Justice Marshall wrote there, in words each first-year law student learns, \u201cto say what the law is.\u201d\u00a0 Yet here we have an agency saying what the law is, and the courts are unable to contradict.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Of course, the central vice of this ruling was not the injustice to Cuban sugar interests.\u00a0 (The Court hinted that the Cubans were being taken care of in diplomatic negotiations.)\u00a0\u00a0 It was the characterization of State\u2019s claim of Ucayali<\/em>\u2019s immunity as a matter of law.\u00a0 Peru<\/em> should stand for the proposition that the Executive, in fulfilment of its control of foreign affairs, can keep courts from interfering, not that State can overrule the courts on a matter of law.\u00a0 There was no need for the Supreme Court to make of the State Department a mini-Supreme Court.\u00a0 Yet that is what it did.\u00a0\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And as a matter of law, State probably got it wrong.\u00a0 It seems likely that, on the strength of Ucayali<\/em>\u2019s owners\u2019 participation in the litigation, any claim of sovereign immunity had indeed been waived.\u00a0 Whatever the State Department honchos may have been thinking in deciding to assert sovereign immunity for Ucayali<\/em>, we can be sure they weren\u2019t bothering their little heads about whether there had been an inadvertent procedural waiver.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The mischief of Peru<\/em> surfaced in 2005, in Doe v. Roman Catholic Diocese of Galveston-Houston<\/a><\/em>,\u00a0[2] in the Southern District of Texas.\u00a0 This was one of the priest-abuse lawsuits, with the then-unusual feature that among the defendants was Cardinal Joseph Ratzinger, who became Pope Benedict XVI almost immediately after the suit was filed.[3]\u00a0 The complaint alleged, as has now apparently been well-documented, that then-Cardinal Ratzinger was involved in various ways over the years with the Church\u2019s former practice of attempting to determine the guilt of abusers in secret, to rehabilitate them secretly, and to return them to service as priests secretly, without a public accounting.\u00a0 It should be noted that defenders of Benedict would say that after these actions, Benedict changed his own and the Church\u2019s course.\u00a0 The dispute between these narratives is not for this column to resolve;[4] the point is that a colorable allegation of tortious conspiracy was made, relating to actions Benedict took before the outset of his papacy or his ascension to the role of head of state.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The State Department duly filed a suggestion, in part relying on Peru<\/em>, that Benedict was immune from suit as the head of state of the Vatican.[5]\u00a0 And Judge Lee Rosenthal, in part relying on Peru<\/em> as well, acceded, dismissing the Pope.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The fact that this lawsuit related to actions taken before Benedict\u2019s papacy and head-of-state status made the case a lot like Clinton v. Jones (1997)<\/a><\/em> a circumstance the plaintiffs\u2019 counsel noted.\u00a0 There, President Clinton was compelled to participate in a private lawsuit against him, even though he was the sitting president, because the case related to actions he allegedly took while governor of Arkansas.\u00a0 Judge Rosenthal turned this argument aside with the observation that there is a big difference between suing a foreign head of state over the objection of the State Department, thereby trenching on State\u2019s power to conduct foreign affairs, and suing the head of our own government.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Well, yes in theory.\u00a0 Still, it is peculiar that a foreign head of state enjoys greater practical immunity than our own president.\u00a0 Or that the inconvenience to the country when its president must defend against a private lawsuit matters less than the embarrassment to the Executive if the courts are allowed to do justice when it displeases Foggy Bottom.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There is also something inconsistent about vaunted claims that our courts dispense justice to all if the Department of State can come in and make the arbitrary decision to shut them down for the benefit of some.\u00a0 There are no standards after Peru<\/em> that the courts are allowed to apply to DOS\u2019s decision-making.\u00a0 Peru<\/em> expressly forbids a court to inquire, for instance, whether DOS correctly applied its own procedures and criteria in making the decision to suggest immunity.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And what of the comparison to former Panamanian president Manuel Noriega, who, though just extradited to France, spent years in U.S. prisons at the behest of U.S. courts?\u00a0 Not only was he tried criminally, but the courts processed a civil class action against various alleged participants in the fraud that was the Bank of Credit & Commerce International , including Noriega, though the suit was dismissed for other reasons.\u00a0 After the coup the U.S. staged against Noriega, he, unlike the Pope, had no friends at Foggy Bottom to make suggestions for him.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 So it depends on what State wants to do.\u00a0 But how can make-it-up-as-they-go decisions by the State Department in effect control an Article III court\u2019s jurisdiction?\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Moreover, what becomes of the pursuit of justice when laws granting damages for child abuse and conspiracy to cover up child abuse cannot be implemented, and when the aggrieved cannot find a place to lodge their claims because a faceless State Department bureaucrat objects?\u00a0 Are we still a nation of laws?<\/p>\n [2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Doe (SD Tex 2005)<\/a>.<\/p>\n [3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0See the docket here: Doe Docket<\/a>.<\/p>\n [4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 That is, it was not for this column as published in the Daily Record; see my blog entries on the subject: Benedict: Unfit to Serve<\/a>, The Church in Darkness<\/a>, and Benedict: The Counter-Narrative Forms<\/a>.<\/p>\n
[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Ucayali (ED La 1942)<\/a>.<\/p>\n