After the Holocaust
|Edwin Black||February 10th 2009|
|Historic Recovered Chabad Document|
A charismatic religious Jewish group is in an international legal battle against the Russian Federation, literally fighting for its spiritual soul. At stake is the right to possess the precious archive and library of the orthodox Jewish group known as Chabad.
The books and papers were plundered and fell from the movement’s control in Europe during the war-torn decades of the last century. The story of how Russia came to control the historic collections is nothing less than a chronicle of the mystical Lubavitch Jews of Poland and Russia during the tempestuous events of Czarist repression, the Bolshevik Revolution, World Wars I and II, the Cold War period, the disintegration of the Soviet Union and the rise of the modern Russian Federation. The story of Chabad’s efforts to reclaim their papers is a bitter saga spanning all those periods.
Remarkably, Chabad has achieved a stunning legal victory—for now, thanks to the persistent efforts of a legal team headed by the Washington law firm of Lewin and Lewin, LLP. Known for championing Jewish causes— Nathan Lewin and Alyza Lewin -- sometimes called “attorneys for the Tribe,” worked together with attorneys from Howrey LLP and Bingham McCutchen LLP to obtained a rare federal court decision commanding Russia to preserve the books and documents and instructing Russia to provide the Court with a written description of the steps it is taking to preserve the books and manuscripts.
The Court issued the unusual order after Chabad submitted evidence showing that 12 extremely valuable and sacred handwritten documents written by the Third Lubavitcher Rebbe were removed from the Russian Military Archive and transported to Jerusalem -- possibly for sale to collectors of Judaica. But few in the case are confident. Pyrrhic victories in this case have been piling up for almost a century.
The disputed collection goes back to the Jewish movement’s origin in the 18th Century when the first “Lubavitcher Rebbe” emerged. The first Lubavitch Rebbe, Rabbi Schneur Zalman of Liadi, attracted followers in the much-disputed Eastern European regions, now known in the main as Poland and Russia. Six successor Rebbes have continued his philosophy and spiritual devotions, stressing mind over emotion. Their collected wisdom is largely enshrined in 381 manuscripts, 12,000 rare books and 25,000 handwritten archival documents at heart of the dispute. The Lubavitch group is now represented by the Hassidic organization known as Agudas Chasidei Chabad. Chabad argues that these collections represent “the most central wisdom, comprehension and knowledge” of the Lubavitch Rebbes, or spiritual leaders. Without those documents, Chabad is without its spiritual soul. Indeed, the word “Chabad” itself is an acronym for the Hebrew words for “central wisdom, comprehension and knowledge.”
The story begins in 1915, during World War I, when the advancing German army was approaching Lubavitch in Russia. Rabbi Shalom Dov Baer (the “Fifth Rebbe”) fled with his family and followers, taking with him as many of the key books and manuscripts as he could carry. He sent the balance of the books for safe keeping in storerooms belonging to the Persits family in Moscow. The Bolshevik revolution and the ensuing Civil War prevented the Fifth Rebbe from ever accessing to his books again.
The Bolshevik revolutionaries seized the library in 1917. In 1924, the Union of Soviet Socialist Republics (USSR) took possession of the books, storing them at what is now known as the Russian State Library. The books remain at that location today.
Rabbi Joseph Isaac Schneersohn, the “sixth Rebbe,” maintained and augmented the original archival collection for the benefit of the worldwide Lubavitch community. In 1927, the Soviets arrested the Sixth Rebbe, incarcerating him at Spalerno prison in Leningrad. There, he was interrogated, tortured, and sentenced to death. Under pressure from Western governments, Rabbi Schneersohn was permitted to leave the USSR in 1927 and settle in Riga, Latvia, where he became a citizen. In 1933, he moved to Warsaw, Poland. The archival collection was carried with him when he settled in Latvia and again when he eventually settled in Poland. In fact, the USSR provided the Sixth Rebbe with documentation permitting him to take the archive documents, thus disavowing any ownership by the USSR.
World War II began at dawn on September 1, 1939 when Nazi Germany launched its infamous Blitzkrieg against Poland, invading from the West. Seventeen days later, the Soviets attacked Poland from the East. The Sixth Rebbe remained in Warsaw throughout its bombardment and fall to Nazi Germany. With the intercession of the U.S. Department of State and others, Rabbi Schneersohn was eventually given safe passage back to Riga, Latvia. From there, he relocated to Stockholm, and finally arrived in the United States on March 19, 1940. Later, he became an American citizen.
When the Sixth Rebbe was rescued from Poland, he was unable to take the archive, and the precious documents remained in Poland throughout World War II. The Soviet Army occupied eastern Poland from September 1939 until June 1941, when Nazi Germany attacked the USSR. Days after overrunning Auschwitz in mid-January 1945, the fast moving Soviet Army liberated Warsaw from Nazi Germany.
During Nazi Germany’s occupation of Poland, the Nazis looted and destroyed religious assets as part of its genocidal campaign to exterminate the Jews. Some iconic religious items however were preserved as trophies.
In the ashes of the 1945 liberation, and for decades thereafter, the fate of the Lubavitch archive remained a mystery. However, in the 1970s, a portion of the archive was found in Poland and returned by the Polish government to the group. Those recovered archival documents were sent to the organization’s central library in New York. Chabad always believed the balance of the archival collection was taken by the Soviets as war booty after World War II and transported for storage at the Russian Military Archive.
For decades, Russian authorities concealed the existence and whereabouts of the archive. For example, in 2000, the Russian Military Archive spurned Chabad’s request to inspect how much, if any, of its materials in Russian hands remained intact. Not until the 2003-2004 timeframe was Chabad able to confirm the existence and presence of the archive.
Recent decades have seen a passionate intergovernmental and organizational effort to return the books and documents to Chabad. The effort began in 1933, at the dawn of Third Reich, when U.S. Senator Millard E. Tydings (MD) wrote to Secretary of State Cordell Hull asking him intervene with Soviet Ambassador Maxim Litvinov about returning the library. It was to no avail.
In 1988, American industrialist Armand Hammer appealed to the USSR’s Minister of Culture Vasily G. Zakharov to return at least some of the library books to Chabad in New York as a good faith gesture during the glasnost period. Two and half years later, Armand Hammer made a similar request to Nikolai N. Guvenko, the new Minister of Culture.
In 1991, Russian General Secretary Mikhail Gorbachev, through his special advisor, Alexander Yaakovlev, formally instructed the Russian State Library to return the books. This request was refused.
So Chabad petitioned the Russian State Arbitration Tribunal for a court order directing the return of its books. Eventually, Lubavitchers set up a 24-hour information station outside the Russian State Library and began a weeks-long prayer vigil. Shortly after the vigil commenced, a librarian from the Russian State Library provided the Chabad protestors with evidence showing that some of the books in the Library had been destroyed while in its possession. The vigil persisted until about September 26, 1991, when the Russian Court finally issued an order to the Russian State Library directing it to sequester and protect the collection until its rightful owner could be determined.
On October 8, 1991, a three-judge panel of the Russian court held that the library collection legally belonged to the Chabad community. Russian State Library officials were directed to return the Library to the rightful Chabad owners within a month. But the Russian Federation and the Russian State Library appealed the order to the Russian Supreme Court. Legal observers suggest the Russians worried that such a return would create an irreversible precedent that could lead to the returns of countless assets from Czarist treasures to East German properties.
During the appeal, the Russian State Library refused to comply with the lower court’s order. On about October 14, 1991, the Moscow Marshals rebuffed a request to assist a Chabad delegation’s effort to obtain compliance and reclaim the books. A virtually extralegal stalemate existed.
Chabad won again when in November of 1991, the Russian Supreme Court ruled that the Russia never nationalized the Library. Therefore, its books were not state property. The Russian Supreme Court concurred with the lower court ruling, again ordering the Russian State Library to transfer the collection. On November 20, 1991, Russian State Library staff members reacted to the order of the Russian Supreme Court order by taunting the waiting Chabad delegation with anti-Semitic slurs and threats of violence. That evening, some 30 baton-wielding officers of “the library police” attacked the Chabadniks and its supporters.
The saga continued. In January 1992, Russia’s deputy chairman also ordered the Russian State Library to hand the disputed library over to the Chabad delegation. That same day, a group of hooligans again confronted members of the Chabad in Moscow with anti-Semitic signs. The director of Russian State Library’s manuscript department even joined the fracas, inciting the crowd by shouting death threats through a bullhorn. Russian hooligans also distributed a newspaper accusing Jews of ritual murder. The next day a larger crowd assembled near the Russian State Library again shouting anti-Semitic slogans and carrying signs condemning Chabad delegation leader Rabbi Kogan to death. When the shouting died down, the Russian State Library declared it would still refuse all court orders and keep control of the books.
In mid-February 1992, Russian President Boris Yeltsin personally promised then United States Secretary of State James Baker that the library books would finally be returned to Chabad. But no books were ever released. Later in February of that year, several U.S. Senators including Bob Dole (KS), Al Gore (TN), and Joseph Lieberman (CT) wrote additional letters to Supreme Soviet Chairman Ruslan Khasulatov, once again requesting the return of Chabad’s library. By May of 1992, all 100 U.S. Senators signed a letter adopting a State Department statement asking President Yeltsin to fulfill his promise and return the library. But the books remained in Moscow.
That latest refusal led 16 U.S. Senators to jointly appeal to President Yeltsin reminding him of letters previously sent by every member of the Senate and over 130 members of the House of Representatives. Still, the Russians held fast. Later in 1992, President Bill Clinton pressed President Yeltsin for the return of the Library, to no avail.
Ironically, shortly after Clinton’s appeal to Yeltsin, the Russian government surprised everyone by issuing a decree “canceling” the orders of the Russian Supreme Court, and prohibiting the return of the library. The Russian governmental decree claimed that the Russian state was the actual owner of expropriated Jewish books.
In response, Congress enacted the Freedom Support Act in October, 1992. Section 202 of the Act prohibits assistance—other than humanitarian assistance—to a governmental entity in certain situations where there has been a failure to comply with a final court judgment that the entity is unlawfully withholding books or other documents of historical significance that are the property of United States persons. Days later, U.S. Secretary of State Lawrence Eagleburger certified that the Russian State Library was in violation of the Freedom Support Act because of its refusal to return the library. The Russian State Library was deemed ineligible from receiving any U.S. financial assistance or cooperation. In short, it was declared bibliotheca non grata.
Years later, the matter came to the attention of President Vladimir Putin. To help resolve the matter, Putin ordered that token volumes from the collection be returned. However, for the past two years, Chabad has been denied further access, and its recovery attempt has been continuously stymied.
In recent years, the law firms of Lewin and Lewin LLP, Howrey LLP, and Bingham McCutchen LLP through lawyers Nathan Lewin and Alyza Lewin, W. Bradford Reynolds, Marshall Grossman and Seth Gerber entered the fray. Nathan Lewin is known for such international jurisprudence, including a huge damage award in a lawsuit for damages from charities that provide financial assistance to Hamas.
Recently, Chabad discovered that 12 valuable, sacred handwritten documents written by the Third Lubavitcher Rebbe were removed from the Russian Military Archive and transported to Jerusalem – perhaps for sale to collectors of such Judaica. That prompted a request to the U.S. court hearing the case to require Russia to get those documents back and restore them to the Russian Military Archive.
In response to Chabad’s motion, Chief Judge Royce Lamberth issued a rare U.S. federal court order requiring the Russian Federation, the Russian State Library, and the Russian Military Archives to preserve the precious books and historical writings. Moreover, the federal court warned that if Russia deliberately flouts the order, the Court may require Russia to allow a team of Chabad experts to examine the archival documents and books even before final disposition is achieved. Although Russia litigated vigorously in the federal trial and appellate courts, it has refused to communicate with its American lawyers after it lost a major decision in the United States Court of Appeals. Russia’s lawyers—a major law firm named Squire, Sanders & Dempsey—have asked to withdraw from the case. The Court gave Russia 45 days to retain new counsel and informed Russia that if it fails to find new counsel, the Court will enter a default judgment in favor of Chabad.
If Chabad prevails, the ruling could have a far-reaching impact on governments of all casts that have seized documents, libraries and other possessions as part of occupation, revolution, plunder, or decree during the past centuries.
A new showdown is expected. For now Chabad, with a federal ruling in hand, has scored a victory in its legal struggle. But the group has been winning for some ninety years and still has never reclaimed its papers and books. “Those precious writings,” says attorney Nathan Lewin, “represent the very spiritual soul of the group.”
Hence, the litigation is not so much about valuable papers and volumes as much as ideas and philosophies that some would argue stretch back to the 18th Century, and many would insist reaches back to time immemorial.