Tuesday, January 29, 2013

The Uncertain Fate of the Timbuktu Manuscripts

Following French-led troops recent retaking of Timbuktu, there remains uncertainty about the fate of the ancient Timbuktu manuscripts (previous coverage here).  Initially, Luke Harding at the Guardian had a piece "Timbuktu mayor: Mali rebels torched library of historic manuscripts" that stated:
Islamist insurgents retreating from Timbuktu set fire to a library containing thousands of priceless historic manuscripts, according to the Saharan town's mayor, in an incident he described as a "devastating blow" to world heritage.
Hallé Ousmani Cissé told the Guardian that al-Qaida-allied fighters on Saturday torched two buildings that held the manuscripts, some of which dated back to the 13th century.
*   *   *   * 
French troops and the Malian army reached the gates of Timbuktu on Saturday and secured the town's airport. But they appear to have got there too late to rescue the leather-bound manuscripts that were a unique record of sub-Saharan Africa's rich medieval history. 
*   *   *   * 
"It's true. They have burned the manuscripts," Cissé said in a phone interview from Mali's capital, Bamako. 
*    *    *    * 
He added: "This is terrible news. The manuscripts were a part not only of Mali's heritage but the world's heritage. By destroying them they threaten the world. We have to kill all of the rebels in the north."
Vivienne Walt at Time, however, has an important follow-up piece called "Timbuktu Locals Saved Some of City's Ancient Manuscripts from Islamists."  Walt cites the Guardian's distressing report that the manuscripts were "torched," but then states "That is not so, according to those who've worked for months to keep the documents safe."  According to Walt, based on interviews with Time:
preservationists said that in a large-scale rescue operation early last year, shortly before the militants seized control of Timbuktu, thousands of manuscripts were hauled out of the Ahmed Baba Institute to a safe house elsewhere. Realizing that the documents might be prime targets for pillaging or vindictive attacks from Islamic extremists, staff left behind just a small portion of them, perhaps out of haste, but also to conceal the fact that the center had been deliberately emptied. “The documents which had been there are safe, they were not burned,” said Mahmoud Zouber, Mali’s presidential aide on Islamic affairs, a title he retains despite the overthrow of the former President, his boss, in a military coup a year ago; preserving Timbuktu’s manuscripts was a key project of his office. By phone from Bamako on Monday night, Zouber told TIME, “They were put in a very safe place. I can guarantee you. The manuscripts are in total security.”
Walt adds that a second "preservationist" who "did not want to be named confirmed that the center's collection had been hidden out of reach from the militants" and noted "Neither of those interviewed wanted the location of the manuscripts named in print, for fear that remnants of the al-Qaeda occupiers might return to destroy them."

Time attempted to reconcile the reports by contacting Timbuktu's Mayor Cissé, the primary source on the Guardian piece, who, according to Time "tempered the remarks he had made to journalists earlier in the day, conceding in an interview that, indeed, residents had worked to rescue the center's manuscripts before al-Qaeda occupied the city last March. Still, he said that while many manuscripts had been saved, 'they did not move all the manuscripts.'"

The possible removal of many of the manuscripts for safekeeping and the remaining uncertainty about their fate harkens back to an August 2012 piece by Mohammed Elrazzaz on Ahram online that described the long history of efforts to protect the manuscripts from earlier threats and that had concluded:
History might be repeating itself as you read these lines: the manuscripts might be safely hidden somewhere outside Timbuktu. One day when and if things calm down, they might surface again, and the story of the Kati Family will again be celebrated. Until that day comes, the fate of Timbuktu’s Andalusian manuscripts remains to be a question mark. 

Thursday, January 17, 2013

New Details on Bin Laden Documents?

Two quick notes on recent reports possibly related to documents seized from the Bin Laden compound.

First, during a recent hearing in the Bradley Manning case, military prosecutors stated, according to the N.Y. Times account, "that they would introduce evidence that Osama bin Laden requested and received from a Qaeda member some of the State Department cables and military reports that Private Manning is accused of passing to Wikileaks." This presumably is based on material seized from Bin Laden's home and is part of the prosecution's strategy for supporting its charge of aiding the enemy.

Second, earlier this month there were reports that the Pakistani commission known as the "Abbottabad Commission" that had been examining the May 2011 raid that killed Bin Laden finally completed its long-delayed report, which reportedly runs to 700 pages. In conducting its investigation the Abbottabad Commission reportedly (see earlier coverage here) had access to some 187,000 documents recovered from the compound that appeared to be separate from the documents seized by U.S forces. The Commission's report is unfortunately not yet available publicly and it is unclear when, or if, it will be.

We'll see whether either of these developments ultimately results in new information or disclosures about seized documents from Abbottabad.

Wednesday, January 16, 2013

Judge Lamberth Issues $50K Per Day Sanctions Against Russia over Jewish Archives

In some significant breaking news from the Chabad v. Russian Federation case, Judge Royce Lamberth today finally lowered the hammer and entered contempt sanctions (Order here, Opinion here) against the Russian Federation, the Russian State Library, and the Russian State Military Archive for failing to comply with the Court's July 2010 Order to transfer the historical Jewish library and archive that is sometimes called the "Schneerson Collection" to Chabad, a religious organization.

The contempt order states that until the Russian Federation complies with the Court's order to return the collections "a fine payable to the plaintiff in the amount of $50,000 per day shall be imposed on the defendants."  The order also schedules a status conference for February 15, 2013 "to discuss whether further and/or other sanctions might lead to compliance with the Court's order."

Earlier coverage of the background of the case is here, but in brief, at issue in the case is both a Library (dating from 1772) consisting of "more than 12,000 books and 381 manuscripts" that had been stored in a private warehouse in Moscow and came into Russian government possession following the 1917 Bolshevik Revolution; and an Archive of "over 25,000 pages of handwritten teachings, correspondence, and other records" that was seized in Poland by the Nazis following their 1939 invasion and moved to a "Gestapo-controlled castle in Germany."  In 1945, as described by the Court in an earlier opinion, "the Archive was taken by the Soviet Army as German 'trophy documents' or 'war booty'" and transferred to the Russian State Military Archive.

Judge Lamberth held in 2006 that Nazi Germany's seizure of the Archive, as private property, "clearly violated international law" and that "the Soviet Army's 1945 seizure and appropriation of the Archive from its Nazi captors as spoils of war was also a taking in violation of international law," conclusions which allowed the court to assert jurisdiction over the Russian Federation (which would otherwise enjoy sovereign immunity).  Judge Lamberth initially held that the same did not apply to the Library, but that ruling was later overturned by the D.C. Circuit. (As an aside, Soviet tribunals in the early 1990s had also held that "the Library and Archive were not the national property of the Soviet Union and had ordered that the collections be returned" to Chabad, but following the fall of the Soviet Union, the Russian Federation "nullified the prior orders." In a submission (see p. 60) to a 2005 Congressional hearing on the issue, the Russian Federation argued that the collections constitute an inalienable part of its cultural heritage.)

After vigorously defending itself in the U.S. Chabad case for several years, the Russian Federation suddenly informed the Court in 2009 that its further participation in the case was "fundamentally incompatible with its rights as a sovereign nation" and asserted that "this Court has no authority to enter Orders with respect to the property owned by the Russian Federation . . . and the Russian Federation will not consider any such Orders to be binding on it."

On July 30, 2010, Judge Lamberth entered a default judgment against the Russian entities and issued the order that is the subject of today's contempt sanctions which stated:
Defendants are Ordered to surrender to the United States Embassy in Moscow or to the duly appointed representatives of Plaintiff Agudas Chasidei Chabad of United States the complete collection of religious books, manuscripts, documents and thing that comprise the "Library" and the "Archive" presently being held by the Defendants at the Russian State Library and the Russian State Military Archive
In today's opinion accompanying his contempt order for failing to comply, Judge Lamberth flatly and thoroughly rejected arguments the U.S. government had asserted in an August 2012 statement of interest filed in the case (my earlier thoughts of the U.S. arguments is here and Chabad's response to them is here).

First, Judge Lamberth summarily rejected the U.S. government's rather convoluted position that the Court did not have the legal authority to issue sanctions under the Foreign Sovereign Immunities Act.  Lamberth notes that the D.C. Circuit previously and unambiguously held that courts do have such authority in FG Hemisphere v. Democratic Republic of Congo (involving contempt sanctions against Congo for failing to comply with a court discovery order).  Lamberth held that the U.S. government's argument in Chabad, as with a similar argument the U.S. goverment asserted in an amicus brief in FG Hemisphere, "fails because it mistakenly conflates the entering of a sanction with its enforcement" (which could involve, for example, allowing the seizure of Russian government assets or property in order to satisfy the fines imposed).

Second, and more interestingly, Judge Lamberth also rejected the U.S. government's arguments that, even if the court has the legal power to issue contempt sanctions, it ought not exercise it and that imposing such sanctions would be "counter-productive" and would "damage" U.S. government efforts "towards 'promoting resolution of the dispute between Chabad and Russia over the Collection." Lamberth was "not convinced" and noted that the Russian entities "have steadily resisted all legal and diplomatic efforts to compel them to return the collection for at least two decades" and that while "the United States may indeed be 'committed to continuing these efforts,' it provides neither any information regarding its future plans, nor any reason to believe that its new efforts will be more likely to succeed than past failures."

Finally, Judge Lamberth rejected the U.S. government's invocation of "Russia's moratorium on 'all loans of Russian cultural treasures to exhibitors in the United States' which, it states, was begun 'in response to what Russia perceived to be threats from Chabad to seek attachment of the loaned items."  Lamberth noted that "the fears purportedly motivating Russia's moratorium" are "legally unfounded" given that such cultural items "would be immune under federal law from attachment" and that, more specifically, the relevant order in the Chabad case, at Chabad's suggestion, "incorporated an express prohibition on the attachment of such cultural treasures," all of which "undermines the United States' characterization" of the Russian moratorium and "suggests that other motives are at play."

As a practical matter, consistent with the distinction between imposing sanctions and enforcing them emphasized in Lamberth's opinion, whether Chabad will ever be able to collect the $50,000 per day sanctions the Court imposes is a separate issue and a fight for another day, but today's order is an undeniably significant event in the long battle over these collections.  The larger question is, of course, what, if any,  effect the contempt sanctions will have - will they spur new, more productive negotiations or make any progress on the return of the collections less likely?  While I would tend to agree with the U.S. government that the latter is probably a more likely outcome, at least in the short term, I also think that under the circumstances Judge Lamberth made the right call and has created a compelling test case to challenge such pessimism.  We will be watching with interest.

Thursday, January 10, 2013

New U.N. Secretary-General Report on Iraq & Kuwait's Missing National Archives

Last month the U.N. Secretary-General submitted to the U.N. Security Council his 34th report (here) pursuant to paragraph 14 of U.N.S.C. Resolution 1284 from 1999 that deals, in part, with the issue of Kuwaiti national archives that have been missing since Saddam's 1990 invasion of Kuwait (coverage of the 33rd report is here and the 32nd report here).

In the new report, the Secretary-General again concludes that "no significant progress has been made in the search for the national archive of Kuwait, nor has credible information about its fate or whereabouts emerged," but nevertheless concludes that "Iraq has demonstrated, by finding other missing Kuwaiti property, that its credible and sustained efforts were bearing results."

The report provides a few interesting new developments.

First, in addition to the special Iraqi committee focused on the search for the Kuwaiti archives that was set up in late 2011, there is also now a special Kuwaiti committee on the missing archives "chaired by the director of the international organizations department of the Foreign Ministry." The Kuwait committee is apparently awaiting "an indication from Iraq on when both entities could meet in order to further work on the search for missing Kuwaiti property."

Second, on June 27, 2012, Iraq returned to Kuwait "27 crates containing tape recordings belonging to the archives of Kuwait Radio" and "two books belonging to the University of Kuwait." Both sets of materials "had been seized by the former Iraqi regime during its occupation of Kuwait in 1990."  The protocols for the return of these materials (enclosed within the 34th report) noted that:
this partial recovery of property was undoubtedly a step forward, and that the Kuwait side hopes that it will be followed by the return of more valuable and significant property, including, in particular, the national archives belonging to the Amiri Diwan, the Diwan of the Crown Prince and the Ministry of Foreign Affairs.
Elsewhere in the report the Secretary-General briefly summarizes the progress made since the first Secretary-General report in 2000 on the "the return of all Kuwaiti property, including archives, seized by Iraq." Interestingly, he mentions only more recent examples of the return of "the archive of official Kuwaiti television and radio stations, microfilm archives of Kuwaiti newspapers" and expressly notes that there has, however, been "little progress in the search for the national archive" while failing even to reference the 425 boxes and 1,158 bags of documents returned to Kuwait in late 2002 (described in the Secretary-General's 10th report, see paras. 36-75).

Third, the report encloses translations of the advertisements that the Ministry of Foreign Affairs of Iraq published in national newspapers last year urging people to come forward who may have information on the missing Kuwaiti national archives:

Finally, the report notes that, as a result of a series of negotiations, the issue of the missing Kuwaiti property would no longer be overseen by a U.N. High-level Coordinator (the most recent of which was Ambassador Gennady Tarasov, whose mandate was to expire on December 31, 2012), and the responsibility going forward would be transferred to the U.N. Assistance Mission for Iraq (UNAMI).  The U.N. Secretary General expressed confidence that UNAMI was "particularly well suited for this task."

Wednesday, January 9, 2013

The Salamanca Papers

Peter Anderson from the University of Leeds has a fascinating new piece in the Bulletin of Spanish Studies called "The 'Salamanca Papers': Plunder, Collaboration, Surveillance and Restitution" (the abstract his here, I am unfortunately not permitted to post the full-text version).

The first paragraph of the article succinctly captures the essence of the debate over the Salamanca Papers and graphically illustrates more generally the passion that the fate of seized documents can inspire:
On 11 June 2005, up to 100,000 protestors took to the streets of Salamanca. With the backing of prominent members of the conservative Partido Popular (PP), the crowd massed to vent its fury against a plan to return hundreds of boxes brimming with ageing papers confiscated shortly after Francoists marched into Catalonia during the closing months of the Spanish Civil War of 1936-1939. The documents belonged to political parties and private individuals who had resisted the Francoists in the course of the conflict. Once they had amassed their documentary spoils, the Francoists ferried the papers to Salamanca where security officials perused them in a concerted bid to identify political opponents. This police treasure trove later came to form the backbone of one of Spain's premier Civil War archives, today known as the Centro Documental de la Memoria Historica. Under the central government-brokered plan that sparked the protests, the papers would be transferred from the archive in Salamanca to the National Archives of Catalonia. The plan drove a wedge between those like the protestors who recognized no reason for restitution and argued that the documents had come to form part of the heritage of both the city and the central Spanish state, and their opponents who believed in restitution to the legal heirs of the papers. The passions the plan inflamed on the Spanish right comes across in the baying from some of the more intemperate members of the crowd who bellowed that they wanted one of the leading advocates of the return of the documents to Catalonia, the Catalonian left wing nationalist politician Josep Carod-Rovira, to be sent to the firing squad.
For additional background on the fascinating history of the Salamanca Papers (written unambiguously from the perspective of those who were advocating for their transfer to Catalonia) see "The Archives Franco Stole from Catalonia" from 2004, available here. More recently, a Catalan news report from February 2012 described the scene of the ceremonial return of some of the personal documents among the seized records:
Cultural associations, political parties, trade unions and private citizens have ‘only’ had to wait 73 years to receive the first documents stolen by Franco’s fascist regime in 1939. On Monday, three elderly ladies sat in a room packed with members of the press and politicians, and other victims of Franco’s dictatorship. They had a combination of joy, pride, and peace on their faces. Helena Cambó -daughter of the businessman and former Spanish Minister Francesc Cambó-, Teresa Rovira –granddaughter of the journalist and former President of the Catalan Parliament Antoni Rovira i Virgili–, and Mercè Romeva –daughter of the Christian-Democrat MP Pau Romeva– were waiting to receive a box with personal letters and documents from their relatives.

Gen. McChrystal on Captured Documents & Intelligence

In a recent CBS interview (available here) about his new book (which I have not yet read), retired U.S. Gen. Stanley McChrystal highlighted the crucial importance of the analysis of captured documents and media as part of, in the words of the CBS report, "transform[ing] the Joint Special Operations Command into the organization that killed the two most notorious terrorists of the 21st century -- Osama bin Laden, and Abu Musab al Zarqawi, the shockingly ruthless leader of the insurgency in Iraq." 

The CBS report notes:
In Iraq McChrystal found out it wasn't enough just to send commando teams on nighttime raids to kill or capture terrorists.
"As the violence was rising and we would do operation after operation, very good operations, they would still see the situation deteriorating," he said.
For all their military skills, they were not tapping into the power of information.
"They'd take a bag . . . They'd put the things they had captured -- documents, computers, phones or whatever -- and then send that back with a little note on it, basically. And when I went to look at some of our facilities, I found a room where those bags had just been stacked in there. And they weren't being translated, they weren't being exploited, because we just didn't have the manpower or the expertise."
So McChrystal committed the heresy of bringing outsiders into the world of special operations. 
"I would go into rooms and I'd see big commandos sitting across from 22-year-old female intelligence analysts, and the commandos just sitting quietly, as the analyst was the expert. Or, I saw young men, civilian young men come out and they have pierced things all over their faces, which was counter to the culture of special operations, but they brought expertise and equivalent passion. They care just as much as the operations."
Within two years, the number of nighttime raids -- and with it the amount of intelligence exploited -- climbed from 18 a month to over 300.
"We started as a book shop, and by the time we were up and completely built into a network, we were," he laughed. "And our real strength was this network that moved information."