Christopher Hitchens attacked Elena Kagan for a brief the Solicitor General's office filed arguing that the Vatican should be treated as a sovereign government and therefore a sex abuse case should be dismissed. But Kagan did not even file the brief in question, and no one in the case argued that the Supreme Court should find that the Vatican is not a sovereign government.
Hitchens falsely claims that Kagan said Vatican should be immune from child sex abuse lawsuit
Hitchens' falsehood: Kagan said Vatican should be immune from lawsuit over child sex abuse claims. From Hitchens' May 31 article headlined, “Is the Vatican a Sovereign State?” and subheadlined “Elena Kagan and her colleagues in the solicitor general's office say it is. They should be ashamed” :
Those scrutinizing the nomination of Elena Kagan to the Supreme Court might want to pay some attention to the recent decision of her office -- the office of the solicitor general of the United States -- to take the side of the Vatican in the continuing scandal of child rape and the associated scandal of a coordinated obstruction of justice. Faced with a number of court cases in the United States that have named the pope himself as a defendant in the enabling and covering up of many rapes, the Vatican has evolved the strategy of claiming that the Holy See is in effect a sovereign state and thus possessed of immunity from prosecution. It has now been announced that the Obama administration will be advising the Supreme Court to adopt this view of the matter.
It will be a disgrace if the Supreme Court overrules the sane and legal finding of the 9th Circuit. It is already a disgrace that so many innocent victims and their families have had to seek redress on their own and fight for decades against a ruthless and cynical clerical hierarchy that on its own admission was more concerned to protect the predators than to do justice. Where were the nation's law officers and policemen while all this was going on? Did they not feel it their bounden duty to represent the interests of the most vulnerable? Now at last the majesty of American law is being deployed in this matter -- but on the side of an institution that has irreparably stained itself with crime. Kagan and her colleagues should be made to feel the shame of this, as should the president, who talks so glibly about human rights and equality before the law.
In fact, Kagan did not file a brief in the Vatican case. On May 17, Kagan notified the Supreme Court that, in light of her Supreme Court nomination, she was appointing her deputy, Neal Katyal to be acting Solicitor General and would not be participating in future Supreme Court cases. The brief Hitchens attacked -- which the Solicitor General's office filed after Kagan had recused herself -- does not bear Kagan's name.
Hitchens' attack is based on the falsehood that the concept of Vatican sovereignty is controversial
Hitchens claimed that the argument that “the Holy See is in effect a sovereign state” is a controversial view. In his article, Hitchens attacked Kagan and the Solicitor General's office for accepting the Vatican's argument that “the Holy See is in effect a sovereign state and thus possessed of immunity from prosecution.”
The Ninth Circuit decision that Hitchens lauded also stated that the Vatican is a sovereign state. Hitchens lauded the Ninth Circuit decision holding that the Vatican is not wholly immune from a civil lawsuit over allegations of sex abuse against minors. But the Ninth Circuit did not hold that the Vatican is not a sovereign state generally entitled to immunity. Rather, the Ninth Circuit held that one of the exceptions to the Foreign Sovereign Immunity Act (FSIA) -- which generally shields sovereign governments from civil lawsuits -- applied to the case.
Furthermore, neither side argued in their Supreme Court briefs that the Vatican should not be considered a sovereign state for purposes of the Foreign Sovereign Immunity Act. The brief for the plaintiffs in the case -- who argued that the Supreme Court should not hear the case -- also argued that an exception to the FSIA applied. It did not argue that the Vatican does not generally have immunity under the FSIA. The briefs for the Holy See also discussed the issue of whether an exception to the FSIA applied, not whether the Vatican was a foreign state.
Solicitor General's office has previously argued that foreign states should be entitled to immunity
George W. Bush administration argued that Iraq should be immune from lawsuits. In 1990, Iraq was deemed a state sponsor of terrorism, but following the coalition invasion in 2003, Congress enacted legislation that authorized the president to waive Iraq's liability under any provision creating a cause of action against a state sponsoring terrorism. In Republic of Iraq v. Beaty, Gregory Garre, the solicitor general at the time, argued on behalf of the administration that Iraq was immune from suit against American citizens who were tortured and held hostage in Kuwait and Iraq. He argued that allowing suit against Iraq would “pose an 'unusual threat to the national security and foreign policy of the United States.'” In a decision written by Justice Antonin Scalia, the Supreme Court agreed, and held that Iraq was immune from suit.
George H.W. Bush administration argued that Saudi Arabia should be immune from suit. In Saudi Arabia v. Nelson, the plaintiffs brought suit for injuries Scott Nelson suffered due to torture inflicted upon him while under arrest in Saudi Arabia. Kenneth Starr, as solicitor general, argued on behalf of the George H.W. Bush administration that the Foreign Sovereign Immunities Act did not allow jurisdiction over Nelson's suit because their actions were not “based upon” a commercial activity. He stated that (via Westlaw), "[t]he commercial activity involved here -- Saudi Arabia's recruitment of Scott Nelson to work at its overseas hospital -- does not provide a basis for the intentional injury and related spousal derivative claims that the Nelsons assert in their complaint." The Supreme Court agreed to dismiss the case.