Hot potato.

Photographer: Behrouz Mehri/AFP/Getty Images

Ancient Treasures Shouldn't Be Compensation for Terror Victims

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A federal appeals court has ruled that terrorism victims can’t seize priceless Iranian artifacts held by the University of Chicago in fulfillment of a judgment against the Islamic Republic of Iran. This is a good decision in practical terms, but it was tailor-made to protect the collection and the university. And it creates a conflict with another Court of Appeals, opening the door to potential Supreme Court review.

The case arose as a result of a lawsuit by family members of victims of a 1997 Hamas suicide bombing in Jerusalem. The victims’ families sued Iran on the theory that it supported Hamas. Iran didn’t appear to defend itself in the suit, and a federal court awarded the families a $71.5 million, which hasn’t been paid.

Sanctions

The families’ lawyers have been looking around the country for assets belonging to the government of Iran that they could attach, seize and sell to get the damages they are owed. Advisedly or not, they decided to go after four collections of antiquities that supposedly belonged to Iran but are held by Chicago-area museums.

The case ended up in the U.S. Court of Appeals for the Seventh Circuit. It first took three of the four collections out of the case, in two instances because it held they didn’t actually belong to Iran, and in the other because the collection was physically returned to Iran by the University of Chicago.

That left the Persepolis collection, one of the great caches of literary artifacts from the ancient world. In 1930, the Shah of Iran lent the collection of tablets to the University of Chicago for study. It remains in the Oriental Institute of the university, where it has garnered significant scholarly attention and helped produce important scholarship on ancient Iran.

In general, a foreign government’s assets can’t be seized in the U.S. in fulfillment of a judgment. That’s a basic principle derived from the doctrine of sovereign immunity, which says that states can’t be dragged into court without their permission.

But sovereign immunity has exceptions -- and the families pointed to two possible exceptions in support of their claim to seize the antiquities.

One exception is for property used in commercial activity. The Seventh Circuit could have simply held that studying ancient tablets in the university setting isn’t commercial activity. (In fact, as someone originally trained in a faculty of Oriental studies, I can’t imagine a less commercial activity on earth.)

But instead the court held that the commercial activity exception only applies if the foreign country is engaged in that activity. Thus, even if the University of Chicago was using the tablets commercially, the exception wouldn’t apply.

The families’ second argument was more technical. It relied on an amendment to the law of attaching sovereign property that was enacted in 2008 as part of the National Defense Authorization Act. The provision, 28 U.S.C. section 1610(g), says that property of a state that has been held liable for an act of terrorism may be seized “as provided in this section,” regardless of several specific factors that might otherwise exist.

The families claimed that this language was intended by Congress as a blanket terrorism exception to the general rule that foreign assets can’t be seized to fulfill a judgment. They gleaned support from a Ninth Circuit decision reaching that result in June. And conveniently for the families, the Ninth Circuit had actually cited earlier decisions of the Seventh Circuit in support of its conclusion.

The Seventh Circuit disagreed with the Ninth Circuit. It held that in context, the 2008 federal law was not intended to create a blanket terrorism exception, but rather to address another, highly technical issue, namely when a plaintiff could seize a foreign state assets that are held by a juridical entity like a company that’s separate from the sovereign itself.

I’ll spare you the details. Suffice it to say that the Seventh Circuit’s reasoning is defensible and probably even correct, but not the only way to read the 2008 law.

What’s striking is that the Seventh Circuit had to get around or even overrule its own precedent to reach the result. It’s hard to escape the conclusion that the point was to protect the Persepolis collection, as was urged by the U.S. government, the government of Iran and the University of Chicago.

The twist that makes the case especially fascinating -- and unique to Chicago -- is that to overrule its own circuit precedent, the Seventh Circuit panel had to get permission from the rest of the court. That meant asking the other judges if they wanted to vote to hear the case en banc.

An en banc vote requires a majority of the judges. But an astonishing five of the 11 active judges on the Seventh Circuit recused themselves and refused to vote at all. That meant there was no majority to hear the case en banc -- which the panel took as a basis to permit it to reverse circuit precedent.

The judges didn’t give any explanation for their recusals. But at least three of them have close ties to the University of Chicago where they teach part-time. No other court of appeals in the country is so closely tied to a single law school.

The result is that, whether by design or otherwise, the Seventh Circuit’s purpose-built opinion serves the University of Chicago’s interests through recusal.

In practical terms, that’s good. It would establish a terrible precedent if terrorism victims could go after art and antiquities that are being held for scholarly purposes in museums.

But the circuit split means the Supreme Court may get involved. So the fate of the ancient tablets remains, for the moment, unresolved.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net