Seventh Circuit Rules Terrorist Victims Attachment Request Against Iran was Overbroad

Clay Tablets from Persepolis, Similar to the Objects at Issue

David Grann reports for the Chronicle of Education on the Seventh Circuit decision which will make it exceedingly difficult for victims of a 1997 bombing in Jerusalem to secure Persian antiquities to satisfy their default $90 million judgment against Iran. The underlying dispute involved the plaintiffs successful action against Iran for supporting Hamas. Iran did not appear at the civil trial.

Today's ruling dealt with the more limited question of whether the plaintiffs can use pieces of cultural heritage currently situated in the United States to satisfy the judgment against Iran. As a result you have the unlikely combination of Iran, the Field Museum, the University of Chicago and the Oriental Institute all arguing that these objects are immune from suit.

I was quoted in the story, and as I wrote Grann this afternoon, Museums holding objects from other nations are breathing easier. The long-standing principle in U.S. law is that property of foreign nations is immune from suit in the United States. Courts were given some guidance in 1976 when Congress passed the Foreign Sovereign Immunities Act which outlined the circumstances under which this immunity could be lifted. Yet as the three-judge panel held today, the orders by the Magistrate and the District court both conflicted sharply with the FSIA, as they ordered what the court called a sweeping discovery request. That request would have forced Iran to detail all of its assets in the United States.

The opinion is a big win for Iran and the museums which currently hold the Persian antiquities. The Seventh Circuit—which agreed with a prior holding in 2006 in Rubin v. Islamic Republic of Iran—has said these objects are presumed to be immune, and even if Iran decides not to challenge the attachment, a court even on its own must look for a good exception to the Foreign Sovereign Immunity Act. Courts are going to be very cautious when attaching the property of foreign nations, as that really falls squarely under the foreign policy authority of the Executive Branch.

Other courts have been similarly disposed to claims of domestic plaintiffs seeking attachment of Iranian cultural heritage in the United States. (Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass. 2006). Hamas claimed responsibility for the bombing in question, and the Rubin plaintiffs brought civil actions against Hamas, and also to Iran for providing material support and finance for the bombing. Experts testified that Iran provided both economic assistance from between $20 and $50 million dollars, and also terrorist training.

1. David Glenn, U. of Chicago and Museums Win Key Ruling in Legal Battle Over Iranian Antiquities, The Chronicle of Higher Education, March 29, 2011, http://chronicle.com/article/U-of-ChicagoMuseums-Win/126923/ (last visited Mar 29, 2011).