From United States v Enger 472 F.Supp.490, 503 (D.N.J. 1978) regarding official acts immunity:
It is the work rather than the official which is protected, with the result that such officials must obey all ordinary laws governing their private actions.
The fact that the United Nations has its headquarters in the United States requires a large number of foreign government representatives and foreign national employees to reside in the New York City area for substantial periods of time. From the standpoint of providing diplomatic immunity, it would be impractical for all concerned if each of those individuals had to be “approved” by the United States in advance. The accommodation reached is not to afford all such foreign nationals full immunity status. Rather, it is to permit the foreign government or international organization to undertake the selection of representatives and employees but, as a means of protecting this country’s interests, to limit the availability and scope of immunity.
Accordingly, under the Headquarters Agreement and 22 U.S.C. § 288d(b), only a limited number of persons may receive full immunity and then only after prior government approval; all others are cloaked with immunity only when acting within the scope of their employment. As stated in United States ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425, 437 (S.D.N.Y.1963), a contrary approach would lead to the untenable result that:
“A member state of the United Nations which may be hostile to our interests would be free to send to the United States individuals designated as resident members of their staffs, to engage in conduct destructive of our national interest and security and yet have them protected from criminal prosecution on the theory that their designated status cloaked them with diplomatic immunity. It would open the flood gates for the entry of saboteurs, agents provocateur and others under a built-in guarantee that no matter what the criminal conduct, the Government would not prosecute them.”
This is precisely the weakness of the position taken by the defendants here. Were I to find the defendants immune from prosecution, it would be a simple matter in subsequent cases for hostile governments to confer diplomatic rank on its intelligence agents and install them as lower-echelon employees of international organizations based in the United States, secure in the knowledge that if their illegal activities were discovered they could not be prosecuted.