Why is the White House siding with Iran against American victims of terrorism at the Supreme Court?
In 2003, American victims of an Iranian-sponsored terrorist attack won a $71.5 million judgment against Iran. The Iranians refused to pay up, of course, so the victims have tried to seize Iranian assets in America, including ancient Persian artifacts loaned to the Field Museum and the University of Chicago’s Oriental Institute. This prompted a lawsuit, Jenny Rubin, et al. v. The Islamic Republic of Iran, et al., that the U.S. Supreme Court has only recently deemed worthy of hearing.
The question before the Court is whether the terrorism exception of the Foreign Sovereign Immunities Act (FSIA) allows the victims of state-sponsored terror to seize types of assets that are usually protected under the act. First under Obama and now under Trump, the U.S. government has taken Iran’s side, seeking to deny the American terror victims the proceeds from the artifacts.
The attack that started it all happened nearly 20 years ago, in 1997, when the Palestinian terrorist group Hamas sent three suicide bombers with explosives packed with rusty screws, nails, and glass to a Jerusalem shopping mall. Seven people were killed and 200 were injured in the blast. One American, 14-year-old Yael Botvin, was among the dead, and several more were injured.
Hamas is financed by Iran, so a group of eight American victims and their families sued Iran, claiming that it was legally responsible for their pain and suffering. The plaintiffs were able to demonstrate that Iranian agents trained the bombmaker whose bomb was used in the attack. When Iran didn’t show up in court, a district judge issued a default judgment for $423.5 million in damages to the plaintiffs. Iran then realized the imperative of sending lawyers to get involved in the lawsuit.
Congress had passed a law in the 1990s allowing American terror victims to sue complicit foreign governments in U.S. courts. The law made an exception to the Foreign Sovereign Immunities Act (FSIA), which usually protects foreign governments. But in 2014, Judge Robert Gettleman ruled that the Iranian artifacts at Chicago’s Oriental Institute were immune from seizure because they were used for scholarship, not commercial purposes.
That is confusing and even troubling. As David Strachman, a lawyer for the victims of terrorism, put it to me: “The whole point of the terrorism exception is to allow seizure of terrorist assets. Allowing suit but not collection makes no sense.”
At stake are the thousands of 2,500-year-old clay artifacts known as the Persepolis tablets. Excavated in the 1930s, the tablets describe the workings of the Persian Empire in an ancient dialect of Elamite. They are of great interest to collectors, and may be worth tens of millions of dollars on the open market.
However, not everyone in the art world is happy. As Gil Stein, director of the Oriental Institute, asked the Washington Post in 2006, “Would Egypt loan the treasures of King Tut if they thought they could be seized by anyone who had a beef with the government of Egypt?”
At stake are thousands of 2,500-year-old clay artifacts known as the Persepolis tablets, of great interest to collectors and worth perhaps tens of millions of dollars on the open market.
He worried that a ruling for the terror victims could set a dangerous precedent, disrupting the normal functioning of museums across the world. “Scholarship depends on the ability to trust each other to work above the level of politics and infighting,” he said. “The whole structure of collaboration would fall apart, and the whole world would be very much the poorer for it.”
But in Strachman’s view, a ruling for the plaintiffs would be likely to benefit the artistic and scholarly community. “As we disclosed years ago,” he says, “the artifacts will be placed in another museum, where they will be made available for the public to review.” In contrast, he points out, the Oriental Institute “has kept them largely away from scholars literally since the 1930s.” The victims plan to keep the proceeds from selling the artifacts to a public museum.
Indeed, it is not as though a ruling for the plaintiffs would destroy all trust in the art world. The lesson to foreign governments is simple: If you don’t want to lose your foreign assets, including artifacts on loan, don’t sponsor terrorism. For most countries in the world, this is not a difficult injunction.
However, the U.S. government is worried about more than art. “Although the United States sympathizes with petitioners and other victims of terrorism,” said Jeffrey Wall, the Trump administration’s acting solicitor general, “the seizure of a foreign sovereign’s property via attachment or execution can affect the United States’ foreign relations.” He is presumably worried about both the precedent such a seizure would set and the Iranian reaction it would prompt. This is not unreasonable: Do we really need to give the Iranian government an excuse to whip up a nationalist fervor against America for the sake of their beloved Persepolis Tablets?
However, it is not as if the Iranian regime needs any excuse to incite anti-Americanism. In fact, they’ve been chanting “Death to America” for some time now.
Indeed, Strachman points out that the solicitor general’s argument is tired. “Congress enacted the terrorism exceptions to the [law] 17 years ago,” he says, “when Congress permitted and even encouraged victims to sue terror-sponsoring states.” Moreover, if for some important reason the U.S. does not want terror victims to sue Iran, it has the power to stop them. “The State Department controls who is on the terror list,” says Strachman. “It put Iran on originally, keeps it (voluntarily) on the list and thus encourages victims to use the mechanisms available to them . . . to seek some modicum of justice.” Surely now the victims cannot be blamed for doing just that.
However, many other legal impediments have been placed in the way of the American terror victims — including their own government. The Obama administration submitted an amicus brief and opposed the terror victims every step of the way, unwilling to upset the Iranian government as secret negotiations raged over its nuclear program. Before Obama, the Bush administration had also taken Iran’s side — an awkward stance for zealous prosecutors of the War on Terror. Now the Trump administration is also siding with its predecessors, and with Iran, in this case.
Moreover, Iranian assets are hard to find in America. On June 29, after nine full years of formal legal proceedings, a U.S. jury found that the Iranian government was using the Alavi Foundation to illegally shield Iranian state-owned assets, including a Manhattan skyscraper, from American sanctions and court judgments.
Here, thankfully, the Trump administration’s Justice Department plans to distribute the proceeds from the sale of the building to all American victims of Iranian-sponsored terrorism, including victims of 9/11. The 36-floor skyscraper on 650 Fifth Avenue is highly coveted and could bring as much as $1 billion to victims and their families, likely including the plaintiffs in Jenny Rubin v. Iran.
One way or another, it now seems likely, American victims of terrorism will finally get compensation — though surely not restitution — from Iran.