Wednesday, September 26, 2012

U.S. Says Russians Should Transfer Jewish Archives, But Court Can't Hold Them in Contempt for Failing to Do So

A few weeks back the U.S. government finally submitted its views (available here) on possible contempt sanctions in the Chabad v. Russian Federation case for the refusal of the Russian Federation to transfer Jewish archives despite a court order (for background see here).  In advance of Chabad's response, which is due no later than this Friday, September 28, I wanted to briefly highlight the U.S. position which basically boils down to this: while the United States believes the Russian Federation should transfer the archives, the U.S. argues that the Court cannot (and/or should not) use contempt sanctions in an attempt to force them to do so.

The U.S. government's filing begins by stating that:
the United States wishes to reiterate its strong support for the claim of the plaintiff, Agudas Chasidei Chabad of the United States (“Chabad”), to gain possession of the collection of books, manuscripts, and other cultural artifacts at issue in this litigation (the “Collection”). The United States has maintained a consistent position that the Collection should be transferred to Chabad. In this regard, since the early 1990s, the Executive Branch has made extensive diplomatic efforts to help Chabad gain possession of the Collection. The United States has raised the issue at the Presidential level under several administrations, and in cabinet, Ambassadorial, and working-level diplomatic discussions throughout this period. The United States is currently pursuing diplomatic efforts toward this objective, and it intends to continue to do so.
BUT, the United States says, for the Court to enter an order of civil contempt sanctions "is not appropriate," "would not be an effective means to achieve" the goal of the transfer of the archives, and "would not be consistent with the Foreign Sovereign Immunities Act" which, the United States argues, "does not permit a court to compel compliance with a specific performance order regarding property held by a foreign sovereign within the sovereign's own territory." Furthermore, the United States asserts that to provide such relief "would be contrary to the foreign policy interests of the United States."

While awaiting Chabad's formal response later this week, I wanted to offer a few initial comments on the government's arguments, which strike me as both lacking and rather odd.

First, the government's arguments seem belated and untimely. While the government purports to be making a (timely) argument that the Foreign Sovereign Immunities Act (FSIA) does not authorize the Court's contemplated use of contempt sanctions to enforce its order compelling the Russian Federation to surrender the archives that remain in Russian territory, the crux of the government's argument appears to be an indirect criticism of the underlying order itself which was issued back in July 2010. The United States never objected, however, to the content or breadth of the original 2010 order. In fact, after it was issued the U.S. State Department dutifully provided the Russian Federation with notice of the default judgment and the order via these December 2010 diplomatic notes.

Moreover, the United States also proactively filed an earlier statement of interest in the case in June 2011, which was after Chabad had moved for sanctions for Russia's failure to comply with the 2010 order, and in which the government only raised concerns about the possible seizure of Russian cultural property in the United States (concerns which Judge Lamberth later rejected as "unfounded" and "based on a misperception").  The government's June 2011 filing raised no concerns about either Judge Lamberth's July 2010 order nor the possible imposition of sanctions, a fact Judge Lamberth expressly noted in July 2011, stating that the "United States does not, at least in its latest statements, object to the imposition of sanctions."

Second, to the extent the United States really is solely focused on the issue of imposing contempt sanctions and not Judge Lamberth's initial order, the government's filing fails in my view to convincingly distinguish the D.C. Circuit's 2011 opinion in FG Hemisphere v. Democratic Republic of Congo, which held that imposing contempt sanctions against a foreign sovereign for failing to comply with a U.S. court order is consistent with the FSIA.  The U.S. government had similarly argued in that case that the FSIA did not allow a District Court to impose contempt sanctions on a foreign sovereign.  The D.C. Circuit, in an opinion written by Judge Silberman, rejected the government's position, which the court called "quite confusing."

As the D.C. Circuit noted in FG Hemisphere, which is equally true in Chabad, the authority of a court to impose monetary contempt sanctions on a foreign sovereign for failing to comply with an order is separate from the issue of any subsequent attempts to collect on those monetary sanctions. Put another way, even if Judge Lamberth does impose monetary contempt sanctions, Chabad may never obtain any of money, but that is very different than the issue of whether Judge Lamberth has the authority to impose them in the first place.

Finally, the government's remaining argument is that, even if the Court can impose contempt sanctions, it should exercise its discretion not to, both for foreign policy reasons and because, in the U.S. government's view, it would be "counter-productive" to diplomatic efforts designed to persuade the Russian Federation to transfer the archives voluntarily. While I think that these points are stronger than the purely legal arguments discussed above, I think these arguments are also undermined by the government's delay in making them.

Judge Lamberth's invitation to the U.S. government to submit its views clearly illustrates that he has made no final decision. However, given that the U.S. neither objected to the original order compelling the transfer of the archives nor objected initially to the possibility of sanctions and given that Judge Lamberth went so far as to issue an additional order in July 2011 demanding that the Russian Federation show cause why he should not impose contempt sanctions (which was also ignored), the government has put the Court in a position where if the Court decides now not to impose any sanctions after all, as the U.S. government suggests it should do, it arguably risks undermining the Court's orders and, in more subtle ways, the Court itself.

Significance of New Draft Iraqi Law Restricting Access to Saddam Regime Documents

AFP has an important new article by Guillaume Decamme called "Iraq archives chief moves to seal Saddam-era files" available here that reports that the director of the Iraqi National Library and Archives Saad Iskander has "prepared and submitted a draft law that, if adopted by parliament, would criminalise the publication of Saddam-era documents without the consent" of individuals mentioned in them.

According to the article the draft law is a response to the use - and sometimes abuse - of Saddam regime documents, quoting Isakander:
"Some documents published in the press named people who were executed, and when, and where," Iskander said. "The didn't conceal the names of the victims."
"We don't have the right to publish the names of the victims and those who committed the crimes," he said. "This is up to them."
Iskander also condemned the actions of some political parties, which have threatened to release documents allegedly showing candidates from opposing parties were members of Saddam's now-banned Baath party."
I also wonder, however, if the draft law could also be related to the recent negotiations with the United States about the return of Iraqi documents in U.S. custody. Whether, for example, as a possible precondition for the return of the documents, the United States has urged Iraq to enact laws to control access to Iraqi records to alleviate concerns that repatriating Iraqi documents could either endanger individuals named in them or otherwise create further unrest or political instability.

The article describes both support for and concerns about the law. Decamme notes that an "Iraqi government spokesman Ali al-Dabbagh said the government would support such a law" and that "Iskander's proposal is also viewed kindly within the secular, Sunni-backed Iraqiya bloc, which saw some of its candidates face bans in the run-up to 2010 parliamentary polls over allegations of Baathist ties."  At the same time, the article notes that "others warn that the proposed new law could place limits on freedom of the press":
"How can we remain silent when we see a document about former Baath party members which carries information about a genocide?" asked Ziad al-Ajili, the head of the Journalistic Freedoms Observatory, an Iraqi watchdog.
"Remaining silent is a crime. The crime is not to publish these documents," Ajili said.
The draft law is significant news, but its extent and possible impact is unclear from the limited information in the article which indicates that the AFP did not have the full details of the law noting that Iskander "declined to reveal the details as the draft was still under review."

The specifics that are available are that, quoting Iskander, "This law will organise the level of access to information. Some information will be disclosed to the prime minister, some to judges. But not everybody will have access to all information."  The article also notes that "Iskander said the draft law provides for penalties including fines and prison sentences for those who release documents without authorisation."

A central issue left unclear from the limited details in the article is the question of to which documents exactly the law would apply.  Would all Saddam-era documents be encompassed or only those more sensitive documents that might contain personal information of victims?  Also, would the law only cover those documents in Iraqi government custody or would the law purport to cover documents in private custody in Iraq, U.S. government custody in Qatar, the Ba'ath party documents at Hoover, the copies of Iraqi documents at the Conflict Records Research Center, or even the copies I've posted on the Captured Documents Index?

If any of that sounds far-fetched, it is important to compare the application of U.S. law.  As has been illustrated in the case of Wikileaks, simply because documents have previously been released publicly by private actors does not mean that the government will not restrict access to them.  See, e.g., the ACLU's exhibit that compares the redacted State Department cables it received via FOIA and the corresponding public Wikileaks cables and the court opinion upholding the State Department's redactions.

The U.S. prosecution of Bradley Manning also illustrates that the United States extends legal restrictions to copies of U.S. government documents in private hands.  That is, Manning is not accused of removing U.S. classified documents (in a manner that would deprive the U.S. government of their use) but rather of making digital copies of them which he allegedly provided to Wikileaks. Several U.S. Circuit Courts of Appeal in fact have found that intangible confidential U.S. government information remains U.S. government property regardless of who owns the paper it is reproduced on.  See, e.g., U.S. v. Girard or U.S. v. Jetersee also the State Department Legal Advisor's initial letter to Julian Assange demanding that Wikileaks "return any and all classified U.S. government material in its possession."

Hopefully additional details about the draft law will be forthcoming.

Thursday, September 20, 2012

Emptywheel on Embassy Protests & Seized Diplomatic Documents

I wanted to briefly highlight a recent post by Emptywheel called "How Many of the Protests Have Gotten Diplomatic Documents?" that pulls together a number of news sources suggesting that in the recent protests diplomatic documents were seized from the U.S. Consulate in Benghazi, the U.S. Embassy in Yemen (including a forecast that there may be a Wikileaks-style release of seized material in Yemen), and a report that the the U.S. Embassy in Beirut had begun pre-emptively destroying classified material.

We'll see whether any diplomatic document seizures rise anywhere to the level of Tehran 1979.

For more on State Department procedures for either emergency destruction or "safe haven" of the records of a diplomatic post, see the Foreign Affairs handbook here.

Tuesday, September 18, 2012

International Access to Archives

In a 1949 article in The Indian Archives called "UNESCO's Concern with Archives," the great Ernst Posner described in fascinating detail some of the negative effects on historical and social sciences research that derive from restrictions on access to archives.  Posner focused in particular on the problems of researchers who wanted to expand their research to include foreign archives, noting:
There remained throughout the 19th and 20th centuries a greater or lesser amount of discrimination against the foreign scholar desirous of using the archives of another country than his own. While this discrimination might be reduced to a minimum between allied and friendly countries it became manifest in cases in which relations between the foreign scholar's state and the state whose archives he wished to use were tense or unfriendly, and the governments would resort to a variety of delays and subterfuges to bar a foreign scholar from access to records they did not wish him to see.
Posner stated that the "use of records by a foreign scholar whose research topic was not looked upon favourably by the government of another country" could "be effectively prevented by means of delay and simple red tape" and provided, as just one example of many:
in the 1930's a German scholar, working on the devastation of the Palatinate during the campaigns of Louis XIV, applied and obtained permission to use the pertinent materials of the Archives of the French Ministry of War. When he arrived in Paris, however, he learned that his permit had already expired (although he had not been told that it was limited) and that he could not see the records. When he re-applied he was notified that the French Government was examining into the question of their publication and that therefore they could not be make available to a private searcher.
Posner's discussion of the negative effects of such access restrictions ended with a call to action:
It seems imperative to remedy this situation if we intend to achieve an internationally-minded interpretation of the past. How can we hope to arrive at textbooks that do not "poison the minds of children and young people" as long as access to the primary research material of history is contingent upon the nationality of the searcher and as long as records that may reflect unfavourably upon policies and activities of a state are reserved for the trusted, that is the nationality biased scholar? Free and equal access "by citizens of all countries" to archival materials must be guaranteed if their truthful and unbiased use, a prerequisite of truthful and unbiased treatment of past events, is to be guaranteed. (footnotes omitted).
In line with Posner's 1949 vision, the International Council on Archives recently adopted unanimously a document called Principles of Access to Archives at its August meeting in Brisbane (full-text is available here).  The Principles, developed under the leadership of Trudy Peterson, address a number of important access issues -- including a principle corresponding to Posner's specific concern, which asserts that archives should be made available "on equal and fair terms."

The 10 principles, which are defined and described in greater detail within the document, are:
1. The public has the right of access to archives of public bodies. Both public and private entities should open their archives to the greatest extent possible.
2. Institutions holding archives make known the existence of the archives, including the existence of closed materials, and disclose the existence of restrictions that affect access to the archives.
3. Institutions holding archives adopt a pro-active approach to access.
4. Institutions holding archives ensure that restrictions on access are clear and of stated duration, are based on pertinent legislation, acknowledge the right of privacy and respect the rights of owners of private materials.
5. Archives are made available on equal and fair terms.
6. Institutions holding archives ensure that victims of serious crimes under international law have access to archives that proved evidence needed to assert their human rights and to document violations of them, even if those archives are closed to the general public.
7. Users have the right to appeal a denial of access.
8. Institutions holding archives ensure that operational constraints do not prevent access to archives.
9. Archivist have access to all closed archives and perform necessary archival work on them.
10. Archivists participate in the decision-making process on access.

Sunday, September 16, 2012

The Rev. Columba Stewart on Digitally Preserving Archives

The Rev. Columba Stewart, the executive director of the Hill Museum and Manuscript Library at St. John's University (in Collegeville, Minnesota), has a piece called "Technology can Preserve World History" (available here) in the Minneapolis Star Tribune.  It begins:
Walter M. Miller Jr.'s 1960 novel "A Canticle for Leibowitz" imagined a world hundreds of years in the future in which an order of Catholic monks devotes itself to recovering the fragments of human literary culture left after nuclear war. As we read about the destruction of cultural heritage in Timbuktu, home of some of the most important libraries of the Muslim world, track the progress of war and ethnic violence across the Middle East, and contemplate a nuclear-armed Iran, Miller's novel seems eerily prophetic.
Manuscripts -- handwritten books and ancient archival records -- are especially vulnerable in such conflicts. Unlike printed books, each manuscript is unique and irreplaceable. Once lost, there is no way to recover what it contained. Each manuscript has a story about who created it, who read it, who cared for it. Each of those people leaves a mark: the text itself, written by hand; the scribe's note of when and where it was copied; the reader's notes; the stamps or seals of the libraries or individuals who cared for it.
Rev. Stewart goes on to describe the efforts of the Hill Museum and Manuscript Library to digitally preserve endangered manuscripts abroad:
I entered the monastery in Collegeville in 1981, and since 2003 have been directing the manuscript preservation project. We have been largely focused on the Middle East, Turkey and India, helping threatened communities to digitize their manuscript heritage just in case. Among the treasures now safely in digital form are all of the surviving Armenian and Syriac manuscripts held by churches in Turkey, some as old as the seventh and eighth centuries. In Aleppo, an Iraqi refugee from Mosul photographed the manuscripts brought from Urfa/Edessa in 1923, and local teams were trained to photograph Syriac, Arabic and Armenian manuscripts in the city that is now facing destruction. Among the manuscripts from Urfa is the only complete copy of a 12th-century account of the Crusades as witnessed by the Christians of the Middle East. In Iraq, we have worked with a team of young Christians, many of them refugees, who have tracked down thousands of important manuscripts and made them available digitally to researchers throughout the world. Recent projects in Jerusalem have digitized some of the extraordinary manuscript collections held by Christian and Muslim communities in the Old City, one of the most sensitive and volatile locations on the planet.

Friday, September 7, 2012

U.S. Denies that Iraq Jewish Archives were "Smuggled" to Israel

Al Arabiya has a piece called "Iraq's Jewish archive has not been smuggled: U.S. official" that is a follow-up on the recent U.S./Iraq negotiations in Baghdad that included discussions about the "ongoing process of repatriating archives and documents which are part of the patrimony of the Iraqi people."  The piece states that following the meetings U.S. Assistant Secretary of State for Near Eastern Affairs Elizabeth Jones confirmed to reporters that the Iraqi Jewish archives have "not been smuggled" to Israel and that they are in "the United States to be 'restored and photographed.'"  Al Arabiya notes that "Jones described the process of photographing the document[s] as 'complicated,' alluding to the need for a longer time to return the whole complete archive back to Iraq."

The piece also recounts that the allegations about the Iraqi Jewish archives "surfaced in June, when Iraq's Tourism and Antiquities Minister Lewa Smeisim told the state-run Sabah newspaper that Iraq had received information indicating [the Jewish archives were] in Israel" (see earlier coverage of those allegations and their effects here, here, and here).

The new and clear denial of the questionable allegations is a welcome development.

Thursday, September 6, 2012

Human Rights Watch Releases More Seized Libyan Documents

Human Rights Watch has released today a new report called "Delivered Into Enemy Hands: US-Led Abuse and Rendition of Opponents to Gaddafi's Libya" that relies on both on interviews with former detainees as well as the collection of intelligence documents seized during the fall of Tripoli (previously discussed here, herehere, and here).

The most significant information in the report is an new allegation of CIA waterboarding by a former detainee named Mohammed Shoroeiya.  He was not among the three individuals the CIA previously, publicly acknowledged were waterboarded.

The report begins:
When rebel forces overtook Tripoli in August 2011, prison doors were opened and office files exposed, revealing startling new information about LibyaĆ¢€™s relations with other countries. One such revelation, documented in this report, is the degree of involvement of the United States government under the Bush administration in the arrest of opponents of the former Libyan Leader, Muammar Gaddafi, living abroad, the subsequent torture and other ill-treatment of many of them in US custody, and their forced transfer to back to Libya.
The report also includes an appendix with 49 pages of the intelligence documents seized in Libya. Some have been previously released publicly, but others have not.  The full appendix is available here.

New York Times coverage is here and Benjamin Wittes over at Lawfare admitting that he no longer cares about allegations of detainee mistreatment is here.

Sunday, September 2, 2012

U.S./Iraq Negotiations on Iraqi Archives and Documents

The State Department released a press release today consisting of a "Joint Statement of the U.S.-Iraq Political and Diplomatic Joint Coordination Committee" reporting on a meeting today in Baghdad in which the "Governments of the Republic of Iraq and the United States reaffirmed their strategic partnership."

The press release states that during the meeting - "co-chaired by Iraqi Foreign Minister Hoshyar Zebari and U.S. Assistant Secretary of State for Near Eastern Affairs Ambassador Elizabeth Jones" - the "United States and Iraq discussed the ongoing process of repatriating archives and documents which are part of the patrimony of the Iraqi people." No further details are provided about the extent of those discussions, unfortunately, but the use of "archives and documents" is at least suggestive that the negotiations concerned both the Iraqi Jewish archives as well as the thousands of boxes of documents seized by U.S. forces.

The press release also notes that during the meeting the "United States praised Iraqi efforts to resolve Chapter VII issues regarding its relationship with Kuwait, in accordance with UNSC Resolution 833. The United States is committed to working with both Iraq and Kuwait to resolve remaining Chapter VII issues." Those issues include the Kuwait national archives missing since Saddam's invasion. As I have argued previously (see here and here), Kuwait's missing archives and the U.S.-seized documents today's State Department release calls "the patrimony of the Iraqi people" are not necessarily unrelated as the latter could potentially help locate the former.