|Dershowitz Set to Defend the Pope
ABC - Lateline
September 30, 2010
TONY JONES, PRESENTER: Our guest, Alan Dershowitz is one of the foremost lawyers and jurists in the United States.
He's defended some of the most high-profile clients in recent history, including Claus von Bulow, Mike Tyson and O.J. Simpson.
He's a distinguished defender of civil liberties, a widely-read commentator on the Arab-Israel conflict and a vocal supporter of Israel.
He's been widely published in magazines and newspapers. He's the author of 27 works of fiction and non-fiction.
Well he's in Australia this week for the Festival of Dangerous Ideas at the Sydney Opera House where he'll debate the human rights lawyer Geoffrey Robertson QC.
He's making the case, as we said earlier, that Pope Benedict should be held accountable for the sexual abuse of children by Catholic priests in multiple countries and that Church cover-ups have protected the perpetrators.
Well, Robertson argues the widespread or systematic abuse of children is a crime against humanity and so the Pope should be indicted by the International Criminal Court to make his defence against the charges before the world.
Alan Dershowitz joins me now. Thanks for being here.
ALAN DERSHOWITZ, AUTHOR & PROFESSOR OF LAW, HARVARD: My pleasure.
TONY JONES: And before we start, you just told me that you knew Tony Curtis, who's just passed away. So, tell us what you knew of him.
ALAN DERSHOWITZ: Well when I was 12 years old, I went to a Jewish summer camp in the Catskill Mountains in New York and Bernie Schwartz was the dramatics counsellor, a nice man, very funny, and then of course a few years later he became Tony Curtis, world famous, Marilyn Monroe and we all loved the fact that we had some contact with this famous guy.
TONY JONES: He didn't lead you astray or in fact lead any of the girls in the camp astray, did he?
ALAN DERSHOWITZ: I can't talk to the girls, but I can tell you he didn't lead me astray. (Laughs).
TONY JONES: We heard that figure: 1,000 women.
ALAN DERSHOWITZ: I don't think that year he added very many to his notches on his belt.
TONY JONES: Let's go to where we were meant to start this interview.
Are you happy to add Pope Benedict to the list of high-profile people you've defended, if only in a mock trial?
ALAN DERSHOWITZ: Yes. I think Pope Benedict has probably done more to protect young children since becoming Pope than any previous Pope.
It's a very complicated matter and it has to be obviously seen in context. I don't think it's right for non-Catholics to get deeply involved in the governance of the Church.
It relates to issues of separation of Church and State. I think it would be a terrible mistake to put the Pope on trial.
TONY JONES: We'll come to some of that in more detail in a moment. But it's a bit odd, isn't it, importing a very famous Jewish lawyer to defend the Pope?
ALAN DERSHOWITZ: I'm very comfortable doing that. We had a mock trial at Harvard a few years ago where I defended Jesus.
I've also defended in mock trials Abraham for the attempted murder of his son Isaac. I've defended other fictional characters in history.
Now here is a real person, but we're going it in a moot court context. I think it's ...
TONY JONES: I presume you got Jesus acquitted.
ALAN DERSHOWITZ: It was a hung jury.
TONY JONES: Oh, really. You don't say. As you say yourself, you have been very critical of the Catholic Church in the past, including cardinals for blaming everything, including the Church's sex scandal, on the Jews.
ALAN DERSHOWITZ: Look, there are terrible people in any institution, and there are some very bad cardinals. I actually sued Cardinal Glemp, the primate of the Polish church for virulent anti-Semitism.
He blamed the Russian Revolution and alcoholism on the Jews. And a cardinal from Honduras blamed the sex scandal on the Jews.
But the Pope hasn't done that. He's blamed the scandal on the Church itself, on bishops, on priests, he's sought forgiveness, he's taken steps to change everything.
And I think today, being a young Catholic altar boy is a very safe place to be - not in the 1970s and '80s, but today the Church has taken real responsibility and is looking forward.
TONY JONES: Well Geoffrey Robertson QC is certainly a bit of a stirrer, but he's deadly serious about this and the way he sets out his case. In the book - you've read the book.
ALAN DERSHOWITZ: Yes.
TONY JONES: The case of the Pope. And I just wonder is there any merit at all - as a lawyer, do you see any merit at all in the case that he's making?
ALAN DERSHOWITZ: No, I don't. I think that there is merit to the concerns about how extensive the abuses were within the Church. By the way, there have been comparable abuses in other religious institutions, in schools, parental abuse of children.
It's a very widespread problem. We're beginning to come to grips with it and understand it. It is one of the most under-reported crimes in history, child abuse. It's also an over-reported crime. There are people who are falsely accused.
And I'm very concerned that Geoffrey Robertson, who's a great lawyer, is a little insensitive to the rights of priests and others falsely accused, and there have been many such cases as well. There has to be a balance struck.
TONY JONES: Let's start with his basic proposition that the widespread or systematic sexual abuse of children is a crime against humanity - that's the way he puts it.
And so, he says covering it up, incidentally, and protecting the perpetrators also amounts to a criminal offence.
This is the basis of it, he says in international law.
ALAN DERSHOWITZ: Well he's wrong. International law deals with war crimes, it deals with systematic efforts by governments to do what happened, for example, in the former Yugoslavia and Rwanda, in Darfur and Cambodia.
This is not in any way related to that. And I think - I'm afraid to call this a war crime or some kind of international crime - it will water down the very important concept of crimes against humanity.
This is not a crime against humanity, this is a series of crimes by individual priests and others throughout the world and failures by institutions to come to grips with it quickly enough.
But it's very different from systematic attempts to use rape or murder as a genocidal - part of a genocidal program.
TONY JONES: What about the cover up part of it? It may not be a crime against humanity, but it's a presumably crime in most countries.
ALAN DERSHOWITZ: It's not. It's a crime in very few countries to fail to report a crime. It's called (inaudible) a felony. It's almost never prosecuted.
The crime occurs when you take explicit steps to try to prevent law enforcement from finding the criminals, and there are some priests who did that, who pushed people from parish to parish.
And they should be prosecuted, but there's no evidence that that came from the very top and that was in any way attributable to the Pope.
TONY JONES: In defence of the Vatican you've written that there are important Church traditions that made it difficult for the Church to move quickly and aggressively in response to complaints of abuse.
What are those traditions, as you see it?
ALAN DERSHOWITZ: Well one of them is obviously confidentiality. The confidentiality of the priest's penitent relationship is very crucial to the Church. Now, Geoffrey Robertson doesn't like that, but as non-Catholic - we're both non-Catholics - we've no right to tell the Church how to conduct its business.
It's also a Church that believes very strongly in rehabilitation, reconciliation, forgiveness and ultimately leaving it to God to judge. And third, it's a Church that moves very, very slowly.
It's the old story of when Mao was once asked, "Was the French revolution a success?" He said, "Well, it's too early to tell."
And the Church deals in issues not by years or even by decades, but by centuries and millennia.
And to expect the Church to move as quickly as other more facile institutions is to misunderstand the nature of the Catholic Church.
TONY JONES: But does the confidentiality issue, for example, allow cardinals or archbishops to believe that they're above the law?
ALAN DERSHOWITZ: No.
TONY JONES: That the law of the land is separate to the law that they will impose upon a priest that's perpetrated a sexual abuse of a child?
ALAN DERSHOWITZ: No, there a separate magisteria. The magisteria of the Church, the magisteria of the Government. The Government should prosecute crimes, the Church should do what churches do: try to reconcile, try to create circumstances for forgiveness, defrocking, laitisation, if necessary.
The Church should do what it does, the Government should do what it does; neither should interfere with the other. That's the secret of liberty: keeping Church and State separate. And I'm worried that Geoffrey Robertson would merge the two together.
TONY JONES: But isn't this what the Church did? And for example, take this idea of forgiveness you've mentioned. It's a noble tradition, obviously, but surely it doesn't rule out punishment under the law.
ALAN DERSHOWITZ: No.
TONY JONES: I mean, forgiveness, presumably, in the Church's eyes is something you can only get from God, but it doesn't rule out punishment, and yet, that's what happened in many, many, many cases.
ALAN DERSHOWITZ: And largely it was the fault of law enforcement. Law enforcement had no barriers to going in and aggressively prosecuting these crimes. And many prosecutors just refused to do it.
They may have been afraid of the Church, they may have been afraid of their constituents, but you don't blame the Church when law enforcement fails to prosecute.
When you had bishops or cardinals, if there were any, who took efforts, took steps to get priests from one jurisdiction into another, that would be criminal conduct.
TONY JONES: Now, Geoffrey Robertson's contention is that when the Pope was still Cardinal Ratzinger and head of the Vatican's Congregation for the Doctrine of the Faith ...
ALAN DERSHOWITZ: Which used to be the called The Holy Office of the Inquisition.
TONY JONES: Indeed. Indeed it did. In any event, from 1981 to 2005 he was head of that office.
ALAN DERSHOWITZ: That's right.
TONY JONES: Now, Robertson's contention is that he protected abusers through the Church's canon law and that he ignored the victims.
ALAN DERSHOWITZ: I don't think that's right. I think that many people who know him very well think he that he had a real wake-up call when he took that job and he saw how extensive the abuse was within the Church and throughout society, and he took steps, took steps that a churchman should be taking, steps to try to rid the Church of people, he changed the rules as to reporting these things to civil society and I think on balance he did a fairly commendable job.
But let's assume for purposes of argument that he didn't. There's a big difference between criticising the Cardinal for what he should have done and saying that what he did was criminal.
TONY JONES: What about the canon law though, because you've written in defence of the canon law. You've said for example it provides for scrupulous methods of proof and you talk about a long tradition of internal due process.
ALAN DERSHOWITZ: That's right.
TONY JONES: Now, is it not the case that canon law was used to supplant actual criminal law in many of these cases? And perhaps that idea seeped right up to the very highest levels of the Vatican.
ALAN DERSHOWITZ: But that's not the fault of the Church. Their job is to apply canon law; the secular society's job is to apply civil and criminal law. If there was a failure to apply the criminal law, it was a failure by law enforcement officials.
You can't blame the Church for applying canon law. That's what they do. That's what they're s'posed to do.
TONY JONES: But don't you want to see all the evidence of the cases that actually passed through the Doctrine of the Faith, the Congregation of the Doctrine of the Faith at that time in order to make a judgment as to whether there's been any cover ups, and of course, that evidence is not available?
ALAN DERSHOWITZ: Well it is available through depositions; much of it has become available in American lawsuits - not the confidential communications between priest and penitent, because they're protected by law, but other forms of evidence have become widely available, and it shows a mixed picture.
And some - and the Pope has criticised priests who have engaged in cover ups. So, the issue is not did priests - at every level, did people within the hierarchy of the Church do wrong things; they did. Priests abused, bishops and cardinals didn't take sufficient action.
The question is: can you put that at the doorstep of then Cardinal Ratzinger and now Pope Benedict? And I don't think you can.
TONY JONES: Is that because we don't have the evidence or because you believe the evidence is not there, or because you just believe he's completely innocent of any wrongdoing at all?
ALAN DERSHOWITZ: The evidence that I've seen - I've seen letters, I've seen correspondence, shows to me that the evidence is not there. I would not have any objections to opening up files. I've been urging the Vatican for example to open up its files on the Holocaust and Pope Pious XII.
I think transparency is essential. Now, it's hard for outsiders to tell the Church to be transparent if that includes revealing confidences between priest and penitent. But anything that's not so privileged or protected, it's in the interests of the Church.
And the Pope has said this: truth is its own virtue. The truth should come out.
TONY JONES: Let's move to this issue of sovereignty, because you write that the Catholic Church, like Orthodox Judaism, believes that matters affecting the faithful should generally be dealt with within the Church without recourse to secular authorities.
It sounds like you're defending that tradition and that tradition does seem to be at odds with giving evidence to police, for example, secular authorities.
ALAN DERSHOWITZ: But that's now changed and the Pope has issued very direct orders that all Catholic priests and bishops must comply with the law of the land and when the law has reporting requirements, those reporting requirements have to be satisfied.
By the way, this is true of non-Church institutions. My children went to a private school in Cambridge, Massachusetts. There was an abusive teacher and the principals didn't report and there was an investigation at the school and they were fined.
This is a common problem - when institutions try to protect their members because think that there are two sides to the story and they also wanna make sure that their members are getting fair and due process.
TONY JONES: Geoffrey Robertson puts it this way: he says the Holy Sea may deserve respect for offering the prospect of redemption to sinners, but it must be made clear in law that the Pope does so as a spiritual advisor and not as an immune sovereign.
So he's actually challenging the immunity that the Pope would claim to international criminal prosecution. Do you think he's got any case there at all?
ALAN DERSHOWITZ: I don't because I think what we're seeing is a trend away from sovereign immunity. Look, the President of the US, Bill Clinton, was not given sovereign immunity by the courts of the US, a nine-to-nothing decision in a consensual sexual matter with a woman who was in here - above the age of consent, and he was required to answer all questions. I think sovereign immunity is a red herring today.
The International Criminal Court doesn't recognise sovereign immunity and generally sovereign immunity should not be recognised when crime is involved.
TONY JONES: Well indeed. I mean, President Bashir of Sudan has been indicted. He's still President and can't leave Sudan.
But could you ever imagine anyone in the ICC taking up the challenge to formulate an indictment against the Pope?
ALAN DERSHOWITZ: Only if they wanted to see the end of the ICC. It would not - the ICC would not survive the indictment of the Pope on the evidence that Geoffrey Robertson has presented, and that's why I think it's a misguided idea.
TONY JONES: OK. One final question that I really have to ask you, because I was in the US when the O.J. Simpson trial was on.
So as a key member of his defence team, are you ever disturbed by the way O.J. Simpson has publicly flirted with the idea that he actually got away with murder?
ALAN DERSHOWITZ: I think O.J. Simpson has behaved outrageously. Saying to his own children, "I didn't do it, but if I did kill your mother, this is the way I would have done it."
I was his lawyer because it was a death penalty case. He was facing the death penalty. I'm proud of the role I played in exposing police perjury in the case.
The jury acquitted; another jury then found him liable for civil responsibility, and then yet another jury found him guilty of events in Nevada.
I'm not O.J. Simpson's friend, nor do I defend his conduct. It was my job to defend him in a court of law.
TONY JONES: I was just intrigued. I had to ask you. Alan Dershowitz, we thankyou very much for coming to join us on Lateline tonight. It's been a pleasure.
ALAN DERSHOWITZ: Thankyou so much.
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