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Wednesday, December 6, 2017

Supreme Court Hears Rubin v. Iran. Feds Say Taking Cultural Property A "Big Deal." Petitioners Want Justice, Arguing "It's Not About Antiquities."

Can American victims of terrorism seize and sell ancient Persian antiquities located at the University of Chicago to satisfy a court judgment against Iran? That's the question the United States Supreme Court considered on Monday in the case of Rubin v. Islamic Republic of Iran, a case examining the mechanics of the Foreign Sovereign Immunities Act (FSIA).

Foreign countries generally are immune from lawsuits filed in American courts. But the FSIA outlines exceptions to this rule, including a terrorism exception codified at 28 U.S. Code § 1605A. Congress penned this section in 2008 to allow plaintiffs to sue designated state sponsors of terror that caused injury, harm, or death.

To satisfy a civil judgment won in a 1605A terrorism case, a victorious plaintiff would seek out the foreign nation's assets under § 1610(g)(2), which allows the plaintiff to take control of “[a]ny property of a foreign state, or agency or instrumentality of a foreign state….”

But are the assets that can be attached to execute the court judgment limited to those that are "used for a commercial activity" as specified by § 1610(a)? Or can the assets be any kind whatsoever, including antiquities housed at a museum? That was the topic of oral argument in the Rubin case.

Rubin pits American victims of a Jerusalem suicide bombing against the country of Iran, a country designated by the US government as a state-sponsor of terror.  Hamas claimed responsibility for the Iranian sponsored attack in 1997, and a federal district court in Washington, DC in 2003 awarded the plaintiffs $71.5 million in a default judgment, holding Iran culpable. Read about the lengthy and complex case history here.

Since then, the plaintiffs/petitioners have tried to secure their award through the attachment process by taking control of ancient Iranian artifacts located in a variety of American cultural institutions, including the Persepolis and Chogha Mish antiquities collections, excavated during the 1930's and 1960's and housed in the University of Chicago’s Oriental Institute through a long-term academic loan.

Attorney Asher Perlin, on behalf of the terror victims, told the supreme court justices that the plaintiffs/petitioners could attach and execute these artifacts without having to assess whether the property was part of the commercial activity of Iran, explaining:

ATTORNEY PERLIN: In 2008, Congress comprehensively overhauled the terrorism exception to foreign sovereign immunity to close gaps that had for years allowed foreign terrorist states to thumb their noses at U.S. judgments finding them liable for acts of terrorism while their victims were drawn into a long, bitter, and often futile search for scarce assets that would be subject to execution under the exceedingly narrow commercial exception to foreign sovereign immunity.

The centerpiece of that legislation is Section 1610(g). That provision provides that American terrorism victims can execute their judgments upon the property of a foreign state that is subject -- against which a -- a judgment has been entered under 1605A, and it makes available the property of the state's agencies and instrumentalities.

JUSTICE STEPHEN BREYER: Can they execute, your clients, on the embassy?
...

ATTORNEY PERLIN: They cannot.

JUSTICE BREYER: Why not?

ATTORNEY PERLIN: Subsection -- Section 1609 says that Section 1610 -- execution under 1610 is subject to international agreements like the Vienna Convention which would protect diplomatic property, and Section 1611 protects military assets, certain central bank assets.

JUSTICE BREYER: Okay.

ATTORNEY PERLIN: Congress, when they enacted 1610(g), they did not completely abrogate foreign sovereign immunity for terrorist states. They wanted to provide a remedy for the victims, they wanted to punish and deter the terrorist states, but at the same time, Congress recognized that Iran and North Korea, Syria, Sudan, these are sovereign states, and they're entitled to a bare minimum of sovereign immunity, and Congress retained that bare minimum by protecting quintessentially sovereign assets while making everything else subject to execution.
...

The provisions that allow execution upon the property of an agency or instrumentality gives access to -- to the agency or instrumentality's property.

JUSTICE BREYER: Well, give an example. I mean, there's a famous example which you know about, the -- the letter of Cyrus, saying to everybody throughout the Middle East that the Jews are free and they can go back to Israel, Palestine, the temple, and that letter exists and Persia -- the Persian letter, and Iran has sent it around the world.

Now, in your view, they have -- and people have looked at it. And if it comes to the United States, you can seize it. Is that -- that's your view of it? Because if it is, of course, if Congress knew about it, then they -- they might have had a general idea, given the nature of the stuff in Chicago. I -- I would be surprised that they'd want to do that.

ATTORNEY PERLIN: You might be surprised, but Congress has addressed -

JUSTICE BREYER: Your view is, yes, you could seize it?

ATTORNEY PERLIN: It would depend on - yes, you could. It -- Congress has addressed this very question, twice, in 22 U.S.C. 2459 [the Immunity from Judicial Seizure Act], Congress provided a very specific and limited immunity for culturally significant objects being brought to the United -- culturally significant objects being brought to the United States for display or exhibition.

There was a very specific immunity there that the -- that somebody wants to bring in -- in that property, those exhibits can apply to the State Department in advance and receive a letter immunizing those -- those assets from -- from judicial process.
...

JUSTICE RUTH BADER GINSBURG: Did that -- did that exist in, what was it, 1939 -

ATTORNEY PERLIN: It did not. It did not.

JUSTICE GINSBURG: -- when Chicago got this?

ATTORNEY PERLIN: But Congress could have made that provision retroactive, and it didn't.
...

JUSTICE GINSBURG: The University is not interested in this property for the money -- for money. It's interested in having these antiquities on display, to be researched, to be seen?

ATTORNEY PERLIN: But it doesn't belong to them. It's not theirs. And whoever it belongs to can decide whether they're the best university to study it.
...

JUSTICE GINSBURG: But what would [the property rights of the University of Chicago] be? Their rights have been from 1939 on, they have this property.

ATTORNEY PERLIN: Well, since 1980, they've had the property because Iran couldn't get it back, for a big part of that time, and for a big part of the time before that, every now and then, Iran was asking, when are you going to finish -- when are you going to finish studying these things. And -- and they were not very forthcoming.

When this lawsuit was filed, they moved into -- they expedited their study of the assets because they realized that they might lose them. And, now, again, University of Chicago is really an amicus here. They don't -- they have no interest in these assets.

They -- and to the extent that they do, the Court can protect that. It can protect that interest in a -- in a sale.
...

CHIEF JUSTICE JOHN ROBERTS: Well, assuming you're right, does that mean, if you lose here, you think Iran will be able to repatriate the assets?

ATTORNEY PERLIN: Absolutely. There's nothing in their way. They did. They did. We lost -- we lost in the district court, and there was another collection of Iran - Iran-owned assets, and on the eve of the -- the argument in the court of appeals, they were shipped back to Iran after the court had denied our -- our motion to stay, but -- but they were shipped back to Iran.
...

JUSTICE BREYER: They have other things in the United States. I mean, it seems to me so far, that the main difference between your interpretation and the other side as a practical matter is that, if you're right, that private people will be able to take cultural assets from Persia and sell them and ship them back to Iran, and if they're right, you will have to limit your recovery to commercial objects ....
...

ATTORNEY PERLIN: ... My clients have been waiting 20 years to enforce their judgment against Iran. Iran does not pay judgments.
...

Congress said enough is enough. We want these judgments enforced. And it's not about antiquities. That's -- that's -- that's what the Respondents are writing about....

Following Attorney Perlin's colloquy with the court, Attorney David Strauss, on behalf of the respondent University of Chicago, said that the property of a foreign nation had to be used for a commercial activity in order for the plaintiffs/petitioners to get it:

ATTORNEY STRAUSS: The Foreign Sovereign Immunities Act says, in Section 1609, that the property of foreign states in the US shall be immune from attachment, except as provided in 1610.

Then the subsections of 1610 say, in terms, one after another, that certain property shall not be immune. Subsection (a) says that, as does (b), as does (d), as does (e). Subsection (g) contains no such language. The relevant part of subsection (g) does not refer to immunity at all.
...

The Petitioners' position really would nullify a decision Congress made at the very same time it enacted 1610(g) in 2008. ... The -- the statute that added subsection (g) also created 1605, the cause of action that -- the remedy the Petitioners invoke. That statute then amended the FSIA to say that parties like Petitioners, who are seeking to execute a 1605A judgment, must show that the property they want to seize is used for commercial activity of the United States. That same statute said that. It said that by inserting 1605A into subsection A, which is a subsection that requires commercial activity. So Congress did that. It created 1605 - 1605A.

Representing the United States government, and awkwardly supporting Iran’s position in this unusual case, was Assistant to the Solicitor General Zachary Tripp. Attorney Tripp firmly declared America's opposition to terrorism and condemned Iran’s sponsorship of violence, but he made clear that the federal government is just as concerned with how American property overseas is treated. He told the court:

ATTORNEY TRIPP: These ancient Persian artifacts are immune from execution under 1609, and nothing in 1610(g) lifts that immunity....

And then the last thing I'd just like to mention here is about the United States' competing interests in this case. I mean, obviously, we have a very strong interest in combatting state-sponsored terrorism. We also have concerns in these cases about the reciprocal -- reciprocal treatment of our own property abroad. And I think, particularly in light of those concerns which are quite weighty, if Congress was really going to take the step of allowing execution against property of a cultural and historic significance to another country and its people, that would be a big deal and it would not be the kind of thing you would expect to see buried in a conforming amendment without remark.

Photo credit: David Lat / freeimages.com

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