Museums in the crosshairs: unintended consequences of the war on terror.

• Published date: 22 March 2011
• Author: Kreder, Jennifer Anglim,Degraaf, Kimberly
• Date: 22 March 2011

ABSTRACT

Congress has passed ineffectual, "sound bite" anti-terrorism legislation that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President's ability to conduct diplomatic relations in the Middle East. One group of victims is mired in multiple jurisdictions trying to enforce a default judgment, exorbitant by international standards, against the Islamic Republic of Iran by forcing auctions of antiquities collections housed at Harvard University, the Oriental Institute at the University of Chicago, the Field Museum of Natural History (Chicago), and the Museum of Fine Arts (Boston) among others. Congress in this political posturing has triggered the Department of Justice to participate in the litigation counter to the victims' interests. The victims likely feel ignored and maligned by their own president, while Congress all along was the master puppeteer of their false hopes. This Article analyzes the legislation and litigation and concludes that Congress should leave the ever-changing war on terror to the executive branch and that the artifacts should not be auctioned--even to satisfy the plaintiffs, the most deserving of victims.

                TABLE OF CONTENTS
                 I. INTRODUCTION
                 II. BACKGROUND
                III. RUBIN V. THE ISLAMIC REPUBLIC OF IRAN--THE ENFORCEMENT
                 STAGE
                 A. The Collections Involved in the Enforcement Litigation
                 B. The Foreign Sovereign Immunities Act Argument
                 1. FSIA Standing
                 2. The FSIA "Commercial Activity" Exception
                 C. The Terrorism Risk Insurance Act (National Defense Act)
                 Argument
                III. ENGLISH CASES EVALUATING IRANIAN LAW
                 A. Queen's Bench Division--Iranian Laws Did Not Vest
                 Ownership
                 B. Court of Appeal--Iranian Laws Did Vest Ownership
                 C. Which Barakat Court was Correct
                 D. What is Barakat's Potential Impact on Rubin
                 IV. CONCLUSION
                

I. INTRODUCTION

The origin of the phrase "Politics makes strange bedfellows" is attributed to Shakespeare, (1) and life is imitating art in a bizarre group of cases that has pitted innocent victims of a 1997 Hamas terrorist attack against some of the nation's most respected institutions and people, (2) which some view as "Pillars of Society." (3) Congress has foisted jurisdiction upon the federal courts via "terrorism amendments" to the Foreign Sovereign Immunities Act ("FSIA"), (4) which has sucked a large number of terrorist victims into a vacuous, exhausting drama with little to no chance for justice. These victims are mired in multiple jurisdictions trying to enforce a $71 million default judgment against the Islamic Republic of Iran by forcing auctions of antiquities collections housed at Harvard University, the Oriental Institute at the University of Chicago, the Field Museum of Natural History (Chicago), and the Museum of Fine Arts (Boston) among others. (5) Moreover, Congress, in this political posturing, unwisely interfered with the President's ability to conduct diplomatic relations in the Middle East and triggered the Department of Justice to participate in the litigation counter to the victims' interests. (6) The victims likely feel ignored and maligned by their own president, while Congress all along was the master puppeteer of their false hopes. (7)

This Article posits that Congress should leave the ever-changing war on terror to the executive branch and that the artifacts should not be auctioned--even to satisfy the judgments obtained by the plaintiffs, the most deserving of victims. Part II provides context necessary to understand the litigation at issue and the consequences thereof. Part III delves into legal analysis of the applicable statutory provisions. Part IV examines British court decisions regarding other Iranian artifacts, which could potentially impact the U.S. litigation. Part V concludes that members of Congress acted in their own political self-interest in passing "sound bite" legislation (8) at the expense of terrorism victims, foisted conflicting jurisdictional mandates upon the federal courts and, in the future, should leave the fast-changing war on terror, at least in regard to the Islamic Republic of Iran, to the executive branch.

II. BACKGROUND

As a result of the cases, known collectively as the "Rubin" cases, Harvard University, the University of Chicago, the University of Michigan, the Field Museum of Natural History in Chicago, the Detroit Institute of Arts, the Boston Museum of Fine Arts, and the U.S. Department of Justice have aligned with the Republic of Iran to prevent the victims from enforcing their $251 million default judgment by forcing an auction of antiquities unearthed in the cradle of civilization. (9) President Barack Obama has been petitioned by Iranian-Americans, most of whom likely fled the post-Shah regime, to join the coalition supporting Iran, (10) one of the three rogue nations forming what President George W. Bush dubbed the "Axis of Evil." (11) Standing against this alliance are a handful of U.S. citizens, including young study-abroad students horrifically injured by the attack (12) and an advisor to Israeli Prime Minister Netanyahu who testified as to the link between Hamas and Iran. (13) Moreover, a group of victims of a different attack, the 1983 Hezbollah marine barracks bombing in Beirut, Lebanon, hold a $2.5 billion default judgment against Iran. (14) These victims have entered the legal fray in the Rubin cases, asserting a competing claim to the proceeds of any future sale of the antiquities at issue. (15) The 1983 attack resulted in 241 American casualties, the largest number of American lives lost in a terrorist act until September 11, 2001. (16) "The resulting explosion was the largest non-nuclear explosion that had ever been detonated on the face of the Earth." (17) The war on terror (18) has made strange bedfellows, indeed.

The attacks certainly terrorized innocents. In 1997, three Hamas terrorists detonated suicide bombs packed "with nails, screws, pieces of glass, and chemical poisons to cause maximum pain, suffering, and death" in a crowded Jerusalem marketplace. (19) The attack killed five people and injured more than two hundred. (20) Eight of the Rubin plaintiffs were among the severely wounded. (21) They experienced pain and suffering beyond adequate description and will probably never truly recover from the resulting post-traumatic stress while struggling tremendously simply to go through life each day. (22) Four of the plaintiffs are family members who care for injured victims. (23) All are U.S. citizens. (24)

Descriptions of terrorism victims' horrible injuries are "stories that supply the necessary human dimension to the stark, horrifying skeleton of the bombing itself." (25) All of the injured victims suffer from Post-Traumatic Stress Disorder (PTSD), common symptoms of which include "paranoia, fear, emotional reactions to news of other terrorist attacks, and depression." (26)

Their individual stories should be known. (27) Diana Campuzano's skin burned while her "brain leaked cerebral spinal fluid from a massive skull fracture, and she was blind and hearing impaired." (28) During her five-hour craniotomy, her anterior skull base fracture was repaired with "mini plates, bone cement, and her own harvested tissue." (29) Her "recovery" was delayed as a life-threatening infection spread throughout her body. (30) "Photographs demonstrate the startling difference in her appearance before and after the explosion." (31) Avi Elishis, who had just graduated from high school, "suffered from lacerations and multiple entry wounds from the bomb shrapnel, a ruptured eardrum, and first- and second-degree burns covering his body." (32) He went into shock, had a two-inch screw removed from his spleen, and underwent surgeries to recover shrapnel that perforated his lung and three screws lodged next to his heart. (33) Another screw was later removed from his foot, but one remains lodged under his rib. (34) Gregg Salzman was a chiropractor who now suffers debilitating headaches and is in constant pain as he struggles to work part-time after undergoing root canals, tooth extractions, and having a titanium implant inserted into his gums. (35) Nerve damage spread to his brain and is not treatable except via counseling to help him "live with [the] pain." (36) Jenny Rubin was diagnosed with "elective mutism, a psychiatric pain condition," and permanent tinnitus. (37) Daniel Miller was a recent high school graduate who was impaled by a spike in his left leg, nuts and bolts in both ankles, and a piece of glass in his eye; he now suffers from a permanent limp, numbing and tingling in his foot, a hematoma, nerve damage, and hypersensitivity to sunlight, and he can no longer walk more than twenty minutes at a time. (38) Abraham Mendelson, a study-abroad student who had to endure nine hours before being able to be treated, suffered "multiple shrapnel-caused entry wounds in his legs, burns that included a burned cornea, ... a partially-severed ear," and a punctured ear drum. (39) Stuart Hersh suffered multiple entry wounds and burns, and when his "nightmares and other problems arising from his PTSD had become overwhelming," he attempted to commit suicide on the one-year anniversary of the attack. (40)

Noam Rozenman, a high school junior at the time, was perhaps the most seriously injured. (41) He suffered "burns covering forty percent of his body and over 100 shrapnel-caused entry wounds." (42) "He spent six weeks in the hospital and underwent daily burn treatments." (43) "His burn recovery period was twice the normal length, because the chemicals inside the bombs caused increased body damage." (44) Noam learned to walk again with substantial therapy, and, a year later, he underwent additional surgery to "adjust a steel plate in his leg and to treat his perforated eardrums." (45) He has significant permanent injuries and impaired motor skills; he will always walk with a limp because...