In a long-running legal fight over Jewish religious texts seized in the early 20th century, a Washington, D.C., federal judge heard arguments last week on whether to levy civil contempt sanctions against Russia for refusing to obey an order to return the texts.
There were two sides arguing in court last week, but neither was the Russian government. The plaintiffs, the Chabad-Lubavitch movement, won a judgment in 2010 that the texts belonged to them but have since unsuccessfully tried to get them back. The U.S. Department of Justice argued last week against sanctions, telling U.S. District Chief Judge Royce Lamberth that such an order would run afoul of the Foreign Sovereign Immunities Act and threaten U.S. foreign policy interests.
The dispute is over books and manuscripts seized during a period of civil unrest in Russia and thousands of pages of texts stolen by the Nazis during the invasion of Poland in 1941 and later taken as “war booty” by the Soviet Red Army. The texts have remained in Russia, although the plaintiffs alleged at one point that pages were ending up on the black market.
After attempts to negotiate failed, Chabad sued the Russian Federation in 2004 and spent years litigating over whether Russia was protected by sovereign immunity. When the case proceeded to discovery, the Russian government notified the court in 2009 that it would no longer participate or abide by court orders.
Chabad asked Lamberth for civil contempt sanctions when the Russian government failed to comply with his 2010 ruling that the texts be returned to Chabad. Lamberth put the sanctions motion on hold and asked the federal government to weigh in.
Last week, Justice Department lawyer Joel McElvain argued that under the Foreign Sovereign Immunities Act, the court couldn’t issue an order that would lead to the seizure of Russian property in Russia — in this case, the texts. He said that a sanctions order would be “entirely unique” and contrary to international norms, expressing concern that it would spur other countries to subject the United States to similar orders.
McElvain also said that sanctions would hurt efforts to get the texts back, a goal that the federal government has said it shares with the plaintiffs. Lamberth asked him why, if the Russian government had failed to return the texts so far, they could be “counterproductive from zero.” McElvain said he based his statement on consultations with the U.S. Department of State.
A lead attorney for Chabad, Nathan Lewin of Washington’s Lewin & Lewin, said the Justice Department misunderstood what the plaintiffs were asking. Chabad wanted sanctions to enforce the court’s original judgment for the return of the texts, he said, but to enforce the sanctions they would seize Russian property that was in the United States.
Russian officials previously banned the loan of art to the United States, saying that they feared the Chabad plaintiffs would seize it. Chabad has said in filings that it would not go after Russian art or cultural objects in the United States.
Lewin argued that the religious texts should not be considered Russian property. Rather, he maintained that they are property seized in violation of international law now located in Russia. He added that Congress wrote the Foreign Sovereign Immunities Act in a way that would allow parties in these types of situations to sue for the return of property overseas.
Lewin said civil contempt sanctions were necessary because the threat of them was enough to spur the Russian government to agree to recent talks. Those talks were unsuccessful, Lewin said, but they were proof that stronger action would move the case towards resolution.
Lamberth didn’t issue an order from the bench and didn’t say when he would make a decision. He asked McElvain if it would be “productive” for him to set a specific time frame before he issued an order, presumably to see if it would spur new activity, but McElvain said he could not say for sure.
This article first appeared on The BLT: The Blog of Legal Times.