After the Holocaust
|Martin Barillas||June 23rd 2008|
Cutting Edge Senior Contributor
|Attorney Nathan Lewin Arguing Chabad's Case Against Russia|
|Sketch: Dana Verkouteren|
The U.S. Appeals Court for the District of Columbia ruled in a landmark decision on June 13, 2008 that Agudas Chasidei Chabad of the United States may pursue claims in federal court against Russia in order to recover sacred religious texts and archives. Chabad – the largest Jewish organization in the world – has demanded the return of these texts from Russia for decades. Stolen by Nazi Germany and kept hostage by the Soviet Union and then the Russian Federation since World War II in violation of international law, the appellate court’s decision clears the way for the recovery of the prized documents by means of U.S. courts.
The DC appellate court wrote in its ruling “We therefore affirm the judgment of the district court finding jurisdiction over Agudas Chasidei Chabad’s claims concerning the Archive; we reverse its finding of Russia’s immunity as to the Library claims based on the events of 1917-1925 and 1991-1992; we affirm the court’s rejection of Russia’s forum non conveniens defense; we affirm its rejection of Russia’s act of state defense to the Archive claims; and we vacate its application of the act of state doctrine to the Library claims.”
The lower court had previously ruled that Chabad may sue Russia in the United States for the “Schneerson Archive” but not for the “Schneerson Library”. The United States Court of Appeals has now ruled to grant Chabad's appeal on the “Schneerson Library” and to deny Russia's appeal on the “Schneerson Archive”, granting Chabad the right to sue Russia in the United States to recover both the Library and the Archive in the United States.
Attorney Sarah Carey, representing the Russian Government, said her clients (which include the Russian Federation, the Russian Ministry of Culture, and the Russian State Library, had not yet reached a decision on whether to appeal the June 13 ruling to the U.S. Supreme Court. Carey said the Russian government would argue that Russia wants to maintain the overall integrity of the collections. The collection of writings pursued by Chabad is a part of the Jewish archives kept by the Russian Government.
“This is a historic victory for the Rebbe and for all people of faith and freedom. These sacred books and manuscripts contain the souls of our Rebbes, and of their countless followers who were persecuted and murdered by the Nazi and Soviet regimes. We hope and pray the Russian government of today will now fulfill its moral and legal obligations to return these sacred texts, “ said Rabbi Boruch Shlomo Eliyohu Cunin of Agudas Chasidei Chabad.
The “Rebbe” is the late Rabbi Menachem Mendel who was the seventh and last spiritual leader of the Chabad-Lubavitch movement. Chabad is dedicated to the unification of the Jewish people.
On November 9, 2004, Chabad filed its lawsuit against the Russian Federation, the Russian Ministry of Culture and Mass Communication, the Russian State Library, and the Russian State Military Archive, asserting violations of international law and seeking the return of its collection of sacred, irreplaceable religious books and manuscripts. Some 12,000 texts and 25,000 handwritten pages are sought for their return to the movement’s headquarters in Brooklyn NY.
Nathan Lewin of Washington-based Lewin & Lewin LLP, a widely respected constitutional litigator who has argued many Jewish religious liberty cases in the Supreme Court, was lead attorney in Chabad's case in both the Court of Appeals and in the District Court. Chabad was also represented by attorneys from Bingham McCutchen LLP, Wm. Bradford Reynolds of Howrey, LLP.
Twenty years ago, Lewin had won for Chabad, in contested litigation in federal court in New York, legal title to a huge library that had been collected by the Sixth Lubavitcher Rebbe and had been left by him in Europe when he fled from the Nazis. As a result of that earlier victory, the Seventh Rebbe had declared the date of the court decision -- the fifth of the Hebrew month Teves -- to be a holiday in the Chabad community.
Attorney Lewin said “The Court of Appeals’ decision clears the way for the Russian government to correct a historic wrong that its predecessors have committed against the Jewish community. We can only hope that the current Russian authorities will now fulfill the assurances that were made to Chabad representatives and to United States officials after the Soviet state was replaced with the Russian Federation. It should not be necessary to engage in extended litigation for the Chabad community, headquartered today in the United States, to recover what rightfully belongs to it.”
Back in 1992, a Russian court had ruled that the library should be returned to Chabad. Following the fall of the Soviet Union, however, that court was stripped of its authority by the new government that has heretofore stymied efforts for recovery. The U.S. Government has lobbied since then for the return of the library. Secretary of State Condoleeza Rice has pressed the case too. In 2005, the entire United States Senate and 350 members of the House of Representatives signed on to requests for its return.
Lawyers for the Russian Federation had argued that Chabad had exhausted its avenues in the Russian judicial system and had no further to go. Seth Gerber, of Bingham McCutchen LLP who represents Chabad, said Russia's claims that the U.S. legal system had no right to hear Chabad's case were considered an "affront to the court," which could attach damages or property claims to its ruling to gain leverage with the Russian government if the court does rule in Chabad's favor.
However, attorney Sarah Carey argued for the Russian side claiming that to allow Chabad to take the thousands of volumes would set a dangerous precedent for museums and historical archives around the world, leaving them open to restitution claims. Carey said that any ruling of damages against the Russian government could create an undesireable situation for the United States. "It's a very hostile act for a foreign government to try to attach property," she said.
Gerber rejected Casey’s contention and asserted that the Russian government has provided no meaningful explanation as to why it would hold on to the archives and library. "The time is here to do the right thing," said Gerber, adding "The country that liberated Auschwitz should not be holding hostage the sacred texts of victims of the Holocaust."
“This is a landmark ruling,” said Marshall Grossman, a partner in Bingham McCutchen’s Santa Monica CA office. “We hope and pray that the Russian government will respect it.”
Read the Court of Appeals Decision
Martin Barillas is an editor at www.speroforum.com and a former diplomat.