John Rizzo's Tape Destruction Revisionism

Former acting CIA General Counsel John Rizzo's new book "Company Man" makes the story of the creation and destruction of the interrogation tapes the main lead-in.  While the publisher's description states that the book "provides the most comprehensive account ever written of the 'torture tape' fiasco" Rizzo's account is demonstrably misleading, incomplete, and puzzling.  A few points:

First, Rizzo grossly misrepresents the findings of the CIA Office of Inspector General's (OIG) investigation relating to the tapes.  As you'll recall, the OIG found that the interrogators were waterboarding detainees in a manner very different than described in the DOJ OLC opinion on which the CIA purported to be relying. "The difference," the CIA OIG stated, was "in the manner in which the detainee's breathing was obstructed." In the DOJ opinion,

the subject's airflow is disrupted by the firm application of a damp cloth over the air passages: the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator [redacted] continuously applied large volumes of water to a cloth that covered the detainee's mouth and nose.

One of the "psychologists/interrogators" even acknowledged the discrepancy to the OIG and "explained that the Agency's technique is different because it is 'for real' and is more poignant and convincing."

In Rizzo's retelling these crucial findings by the OIG are inexplicably converted into:

In its report on the interrogation program issued in May 2004, the Office of Inspector General (OIG) made a number of references to the tapes. It noted that it had looked at the tapes and, apart from questioning the CTC's numbers on how many waterboarding sessions were conducted, did not find any unauthorized techniques were used on Zubayadah.

Second, Rizzo's book provides now-final confirmation that John McPherson was the CIA attorney who viewed the tapes in late December 2002 and who was interviewed about them by the OIG in 2003.  The full significance of this is explained in my earlier posts here and here, but in brief, McPherson is the secret, overlooked linchpin in the ACLU FOIA case.  After holding that the CIA had violated his orders by failing to identify the tapes as records of the OIG's investigation that were responsive to the ACLU's FOIA request, Judge Hellerstein nevertheless stayed his hand in holding the CIA in contempt based on the erroneous view that the "evidence suggests that the individuals responsible for processing and responding to plaintiffs' FOIA requests may not have been aware of the videotapes' existence before they were destroyed."  This is demonstrably inaccurate given that the individual who responded to the ACLU in relation to the OIG's files in April 2005 was none other than John McPherson, the person who knew more about the tapes than anyone else.  Rizzo further confirms that, in fact, McPherson "was the CIA lawyer who was responsible for tracking the ongoing court cases where the tapes could be potentially implicated."

Judge Hellerstein's information was incorrect based, in part, on statements made by the DOJ lawyer representing the CIA at oral argument, Peter Skinner, who represented that CIA FOIA personnel had mechanically searched the OIG files stating that, in the CIA's view, Hellerstein had meant:

You only have to search what has been produced to or collected by the OIG. And we said, Okay, we'll go back and we'll do what the Court's told us. And when we searched and reviewed documents collected by the OIG, when the FOIA personnel did that, they didn't have any videotapes because the videotapes weren't there.

Hellerstein responded:

THE COURT: If your client was aware that that representation to me masked information that was important to the OIG, it was not put into the OIG files, I hesitate to state the inference I would take from that, Mr. Skinner.

MR. SKINNER: Your Honor, I certainly don't --

THE COURT: It seems to me that you were gulled and the Court was gulled.

Rizzo's book provides the final proof: Judge Hellerstein, you were gulled by the CIA.

Finally, more broadly, Rizzo's book attempts to make the tapes simply a story about Jose Rodriguez insubordinately going behind his back to destroy them, but fails to acknowledge that the destruction would not have occurred but for the troubling and incorrect legal interpretations of Rizzo (and his subordinates) which repeatedly advised Rodriguez (including just before Rodriguez ordered the destruction) that there was no legal obligation to retain the tapes.  Rizzo fails to mention that his faulty legal interpretations that the tapes were not "records" and that they were not legally required to be retained as relevant to ongoing or foreseeable litigation have been rejected by every court that has considered them on the merits. See, e.g., Abdullah v. Bush, 534 F. Supp. 2d 22 (D.D.C. 2008) (finding that a GTMO detainee made a "sufficient showing" that the tapes were subject to a 2005 preservation order); ACLU v. DOD, 04-cv-4151 (D.D.C. Oct. 5, 2011) (holding that the tapes were records subject to the ACLU's FOIA requests).  Indeed the National Archives inquiry into whether the destruction was an unauthorized destruction of federal records is still not closed.

To the extent Rizzo mentions the legal status of the tapes at all, his account is conflicted and inconsistent.  When he first hears about the tapes (which he states was not until October 2002), he recognized that destroying them "was fraught with enormous risk" as any "minimally competent attorney" would. He also acknowledges "the certainty" that the program and the tapes "would be implicated in prosecutions of captured Al Qaeda terrorists in the years to come" and yet nowhere does Rizzo explain how or why he came to the conclusion that there was nevertheless no legal obligation to retain the tapes and that "the question" was instead "not whether to destroy the tapes, but when."

The closest Rizzo comes is when - to his credit - Rizzo admits that the CIA avoided telling the 9/11 Commission about the tapes by "parsing literally every word in each of the commission's requests" which he acknowledges was a "mistake."

Judgment in UK Civil Case Involving Captured Libyan Documents

There is a judgment (hat tip Just Security) in the civil lawsuit against portions of the U.K. government brought by Abdul-Hakim Belhaj and his wife Fatima Boudchar relating to their detention, rendition, and mistreatment (previously discussed here).  In a lengthy opinion the High Court held "with hesitation" that the claims were barred by the act of state doctrine. The Court noted that its "hesitation" at its own conclusion arises from:

a residual concern that (on the basis of the Particulars of Claim) what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extra-ordinary rendition of the Claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to, and a decision by, the Court.

And specifically in relation to the application of the act of state doctrine, the Court noted:

Although the act of state doctrine is well-established, its potential effect is to preclude the right to a remedy against the potential misuse of executive power and in respect of breaches of fundamental rights, and on a basis which defies precise definition. It is a doctrine with a long shadow but whose structure is uncertain.

Of particular interest to this blog is the High Court's discussion of the unique fact that certain allegations in the lawsuit are based on evidence from the "Tripoli files" found by journalists and members of Human Rights Watch in an abandoned military intelligence headquarters during the fall of the Qaddafi regime in 2011.  The documents (previously discussed here, here, and here) include C.I.A. and MI-6 documents related to the rendition of Belhaj (referred to in the documents as Abu Abdullah Al-Sadiq) and his wife, who was pregnant at the time.

While it is unclear whether the U.K. government defendants would have ultimately challenged the authenticity of the documents were the proceedings to have continued, the High Court notes at para. 4 the unique nature of the evidence:

Although many of the facts relied on by the Claimants are neither admitted nor denied by the Defendants, unusually, some appear to be supported by documents which have come into the Claimants' hands as a result of the change in political fortunes in Libya.

The High Court cites them repeatedly in its recitation of the "factual assertions forming the basis of the claim":

On 1 March 2004 the 3rd Defendant (MI6) sent a fax to the Libyan intelligence services informing them that the Claimants had been detained in Malaysia and identifying the place where they were held.

[snip]

On 6 March 2004 the US authorities sent two further faxes to the Libyan authorities informing them that the Claimants were due to be placed on a commercial flight from Kuala Lumpur to Bangkok, that the abduction and rendition would take place in Bangkok and that they would be placed on a US aircraft for a flight to Libya.

[snip]

A more detailed "Schedule for the Rendition of [the First Claimant] to the Libyan authorities" was faxed later that day: the Claimants would be abducted in Bangkok, flown to Diego Garcia (a British Indian Ocean Territory) for refuelling of the aircraft, and then on to Tripoli.

The "Schedule" the Hight Court referenced is pictured below.

Despite the High Court's conclusion that the claims were barred, the lawsuit, along with the captured records, has nevertheless helped to document the rendition of the two individuals and the involvement of the U.S. and U.K. governments.

Conflict Records Research Center in the FY 2014 NDAA

The compromise FY 2014 National Defense Authorization Act (NDAA) draft released yesterday (available here) includes an important new statutory provision (see § 1071) related to the Conflict Records Research Center (CRRC), which has been providing access to an impressive collection of captured records from Saddam's Iraq and Afghanistan.  An earlier post discussed the CRRC's funding crisis, which was due, in part, to the delay in the consideration of the NDAA in Congress.  According to its last update, the CRRC has subsequently been operating with bridge funding and one employee.

Section 1071 of the FY 2014 NDAA draft is entitled "Enhancement of the capacity of the United States Government to analyze captured records." It includes a provision that will become, if passed, 10 U.S.C. § 426 called "Conflict Records Research Center" that authorizes the Secretary of Defense to establish the CRRC.  This may seem odd given that the CRRC of course already exists within the National Defense University, but providing an explicit statutory basis for the CRRC may place it on more firm footing going forward.

Moreover, the other substantive provisions appear to be designed to broaden the CRRC's ability to obtain funding.  According to the "Joint Explanatory Statement" the "additional statutory authorization would allow the [CRRC] to be funded collectively by the Department of Defense, the Office of the Director of National Intelligence, and other departments and agencies, rather than rely on discrete partner funding for each activity."  The provision "would also allow the [CRRC] to receive funding from other agencies, states, or other foreign and domestic entities, including academic and philanthropic organizations, to support important research in international relations, counterterrorism, conventional warfare and unconventional warfare."

Other noteworthy detail includes the statutory "purposes" of the CRRC:

(1) To establish a digital research database, including translations, and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States, with rigid adherence to academic freedom and integrity. 

(2) Consistent with the protection of national security information, personally identifiable information, and intelligence sources and methods, to make a significant portion of these records available to researchers as quickly and responsibly as possible while taking into account the integrity of the academic process and risks to innocents or third parties. 

(3) To conduct and disseminate research and analysis to increase the understanding of factors related to international relations, counterterrorism, and conventional and unconventional warfare and, ultimately, enhance national security. 

(4) To collaborate with members of academic and broad national security communities, both domestic and international, on research, conferences, seminars, and other information exchanges to identify topics of importance for the leadership of the United States Government and the scholarly community.

Finally, the draft includes a statutory definition of "captured record:"

The term "captured record" means a document, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States.

Voting on the FY 2014 NDAA could begin later this week.

Is DOJ National Security Division Complying with Federal Records Act?

In the new Shane Harris piece on Foreign Policy "White House v. Holder: The fight over the government's top national security lawyer" about the controversial nomination of John Carlin as the head of the DOJ's National Security Division (NSD), there is a passage (h/t Patrice McDermott) that raises some serious questions about how Carlin, currently acting head of the NSD, is (or is not) complying with the federal records laws:

Two former officials, citing conversations with current Justice Department employees, said that Carlin is avoiding taking documented positions before his Senate confirmation hearing. Instead, Carlin has requested that colleagues not copy him on emails about sensitive policy issues. Many of Carlin's communications are taking place by phone, former officials said. A date for a confirmation hearing hasn't been set. 

Contrary to what frequently appears to be popular "wisdom" within the government, face-to-face meetings and telephone calls do not exempt agency activities from the federal record keeping laws. As the DOJ is unquestionably aware, the federal records laws are not simply about preserving records that have been created; they also impose an affirmative obligation to make records "containing adequate and property documentation" of the "policies, decisions, procedures," etc. of federal agencies that are "designed to furnish the information necessary to protect the legal" rights of the Government "and of persons directly affected by the agency's activities."  44 U.S.C. § 3101.  Whatever might be the practices of Carlin's compatriots who work within the National Security Council, the activities of a senior agency official such as Carlin requires documentation.

As in the case of the missing John Yoo emails, wherein Yoo apparently considered only one email he sent to be a federal record during his entire tenure at the DOJ Office of Legal Counsel (see here footnote 1), or in the case of the June 2005 GTMO court filing in which the DOJ represented that the U.S. government defendants were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation" a few months ahead of the November 2005 destruction of relevant videotapes, the DOJ has unfortunately not provided a lot of confidence that federal record keeping obligations are a high priority.  Moreover, such actions are particularly disturbing within the DOJ who is ultimately tasked with enforcing possible violations.  Cf. Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983) (noting "allegedly illegal destruction" of records that was "attributed to the very agencies in charge of filing suit to protect the records)."

Hopefully as part of his nomination hearings, the Senate will take up this issue and inquire into whether John Carlin has in fact attempted to avoid creating documentation of his activities in violation of the spirit and/or letter of the federal records laws.  The last thing the government needs is another national security official with accountability problems.

Blueprint for Litigation Over the Iraqi Jewish Archives

The ongoing controversy over the Iraqi Jewish Archives (discussed in other contexts here, here, here, and here) -- which were found in Iraqi intelligence headquarters in Baghdad in 2003, brought to the United States for preservation, and are currently on display at the National Archives -- appears fairly straightforward: should they or should they not be returned to Iraq?

The U.S. government is planning to return the archives to Iraq next year, but there is significant opposition. An online petition and letters from Sen. Schumer and other members of Congress to Secretary of State John Kerry demand that the United States not return them.  Separately, Iraq has indicated it may be willing to negotiate to allow them to stay longer -- but still temporarily -- in the United States.

This post (the first of several on the debate) explores another potential forum for the controversy: a U.S. court. Could a lawsuit prevent the return of the archives and/or challenge Iraqi government assertions of ownership?

The short answer is that the chances of formally blocking the return of the archives to Iraq by court order are slim, but there is a navigable path to persuading a U.S. court to adjudicate legal ownership over the archives.  While litigation is often a poor method of dispute resolution, the Iraqi Jewish archives may present a scenario in which a court's careful balancing of the property rights of individuals with the sovereign rights of Iraq and a fact-intensive examination of the history, the law, and the documents could be uniquely valuable.

Background

While the basic story has been covered in recent press, for more in-depth background the required reading is Bruce P. Montgomery's excellent article "Rescue or Return: The Fate of the Iraqi Jewish Archive" in the International Journal of Cultural Property (posted here with Bruce's kind permission), which also frames some of the legal issues that are explored below.  Moreover, a crucial set of background documents recently released via FOIA are now up on the National Archives and Records Administration's (NARA) Iraqi Jewish Archives website:

(1) An August 17, 2003 letter from the Iraqi Ministry of Culture/State Board of Antiquities and Heritage (SBAH) to the CPA that authorized the removal of the archives from Iraq for purposes of preservation provided that they would be returned to Iraq within two years;

(2) An August 20, 2003 agreement between the Coalition Provisional Authority (CPA) and NARA that contemplated the NARA exhibit of the archives now ongoing;

(3) A June 28, 2004 Letter of Designation from the CPA (just as sovereignty was passing back to Iraq) that appointed the Iraqi Ministry of Culture as the CPA's designee under the August 2003 CPA-NARA agreement; and

(4) A June 2011 Interagency Agreement between the State Department and NARA relating to the completion of the preservation of the archives and their transfer back to Iraq.

These newly-released documents provide details not previously known and allow analysis of some of the legal issues at a greater level of specificity.

Turning to possible litigation, the first threshold issue is, of course . . .

Who could file a lawsuit over the Iraqi Jewish Archives?

Locating plaintiffs who have standing to present a claim of ownership to some portion of the archives is a first challenge.  Ideally, this would be individuals directly divested of ownership.  Moving one step further would be descendants of such individuals.  A step further than that would be organizations that could plausibly claim to act on behalf of the former Iraqi Jewish community.  One website is inviting individuals to identify themselves to "claim" their "Iraqi heritage" and the NARA exhibit and digital collection may assist in identifying potential plaintiffs (as this WashPo article illustrated).

Assuming proper plaintiffs can be found, there are significant obstacles to a suit ever reaching the final issue of ownership, such as the Immunity from Seizure Act, the Foreign Sovereign Immunities Act, and the Act of State doctrine.

Can the return of the archives be blocked? the Immunity from Seizure Act

The Immunity from Seizure Act (22 U.S.C. § 2459) is designed to protect foreign cultural property brought in the United States for temporary exhibition from being seized by U.S. litigants.  In August 2003, the State Department published this Notice in the Federal Register determining (1) that:

historic and modern books, documents, parchment scrolls, and other items discovered in early May 2003 in the basement of the Mukhabarat in Baghdad, most of which pertain to the Jewish community, imported from abroad for temporary exhibition in the United States, including restoration necessary thereto, are of cultural significance

(2) that these materials were "imported pursuant to an agreement with the foreign owner or custodian" and (3) that their eventual exhibition at NARA "is in the national interest."

What does this mean?  Under the Immunity from Seizure Act, the publication of these determinations means that no U.S. court "may issue or enforce any judicial process, or enter any judgment, decree, or order" that deprives the institution exhibiting the property -- in this case NARA -- of custody and control of the property.  On first blush, that seems quite broad, and if a lawsuit were filed in relation to the Jewish archives, the DOJ would unquestionably intervene and challenge the suit on this basis.

A plaintiff could, in turn, directly challenge the State Department's determinations and the invocation of the Act.  It is hard to believe that the due diligence State purports to require for requests for immunity was undertaken in the case of the Jewish archives. This checklist requires a "professional inquiry" using "independent, multi-source research" into the provenance of the property and a certification that the applicant does not know "or have reason to know" of any "potential for competing claims of ownership." Was there really such a certification regarding the Jewish archives?  Moreover, the CPA/NARA Agreement may support an argument that the planned "exhibition" was a pretext to invoke the Act and that the presence of the archives in the U.S. for more than a decade without any such exhibition stretches the Act too far.  The best time for such a challenge, however, would have been years ago when no exhibition was imminent.  In any event, a challenge to the State Department determinations would be unlikely to prevail. See, e.g., Magness v. Russian Federation, 84 F. Supp. 2d 1357 (S.D. Ala. 2000) (refusing to overrule immunity from seizure determination and to prevent the return of cultural artifacts to Russia).

While the Immunity from Seizure Act may likely therefore preclude a lawsuit against NARA challenging NARA's custody or NARA's plan to return the documents to Iraq, the Act may still allow a U.S. court to hear a case against the foreign "owner" -- the Republic of Iraq, the Iraqi Ministry of Culture, and/or the Iraqi SBAH -- in relation to the legal status of that property.  See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 312 (D.D.C. 2005) ("Immunity from seizure is not immunity from a suit for a declaration of rights").   As in the Chabad v. Russian Federation case regarding Jewish archives in Moscow (previously discussed here and here), a lawsuit related to the legal issue of ownership doesn't even necessarily require that the property be in the United States.

A suit against a foreign sovereign government, however, raises other issues . . .

Does the Foreign Sovereign Immunity Act preclude litigation against Iraq?

The Foreign Sovereign Immunity Act (generally at 28 U.S.C. §§ 1602-1611) provides immunity for foreign governments in U.S. courts unless certain exceptions to that immunity apply.  The Act was designed as a shield, but the exceptions have also become swords for plaintiffs.  Here, the most promising is the "takings" or "expropriation" exception (§ 1605(a)(3)) which might permit a lawsuit against Iraq or Iraqi government cultural entities, if a plaintiff shows (1) that the Jewish archives were taken in violation of international law AND (2) that the Iraqi government defendant has engaged in commercial activity in the United States.

(1) Taking in violation of international law

For purposes of the sovereign immunity analysis, a plaintiff need not prove with finality that the archives were taken in violation of international law -- that will come if, and when, the case reaches the merits. Instead, the plaintiff must present "substantial and non-frivolous" allegations that a taking in violation of international law is legitimately in issue in order for the court to exercise jurisdiction against a foreign government.  Chabad v. Russian Federation, 528 F.3d 934, 941-42 (D.C. Cir. 2008).

The discovery of the Jewish archives in Saddam's intelligence headquarters is consistent with the confiscation of the property from the Jewish community during Iraq's history. A possible problem is that, to the extent the Iraqi government seized the archives, pursuant to Iraqi law, from individuals who were at the time Iraqi citizens, some courts would refuse to recognize that as a violation of international law.  See, e.g., De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1396 (5th Cir. 1985) ("As long as a nation injures only its own nationals" the injury "is a purely domestic affair" and is "outside the ambit of international law"); Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976) (denying claim by German citizen for restitution of property confiscated by Nazis, stating "violations of international law do not occur when the aggrieved parties are nationals of the acting state").

Other courts, in contrast, have held that foreign government confiscations of property of their own citizens could be violations of international law if the taking was discriminatory and without payment of just compensation. See, e.g., Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1027 (9th Cir. 2010) (finding painting seized by Nazi Germany from individual in Germany to be a violation of international law).  Moreover, there may be a factual, historical argument that the relevant "taking" occurred when the owners of the property were no longer citizens of Iraq.  According to Sen. Schumer's letter, for example, items within the archives were placed in a Baghdad synagogue during the mass exodus of the Iraqi Jewish community in the "early 1950s" and were only much later "seized by Saddam Hussein in 1984" when the original owners would have long since resettled in other countries.  To the extent this is accurate, it could arguably internationalize the taking and provide support that such confiscations could violate international law even assuming a restrictive interpretation of the "ambit of international law."  Cf. Chabad v. Russian Federation, 528 F.3d 934, 943-44 (D.C. Cir. 2008) (discussing whether at time of taking plaintiff was, or was not, a Soviet citizen).

Given all of this, the right plaintiff may be able to satisfy this element. On the second . . .

(2) Commercial activity

Under the Foreign Sovereign Immunities Act, the required "commercial activity" could come in two forms.  Assuming the case is filed while the archives are still in the United States, the plaintiff could demonstrate that the Iraqi defendant engaged in a commercial activity in connection with the archives being in the United States or that the Iraqi government, as "owner," more generally engages in commercial activity in the United States.

An important clarification is that "commercial activity" is not limited to for-profit activities, but is much broader.  In determining whether an activity is "commercial" the "central question is whether the activity is of a kind in which a private party might engage." Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 708 (9th Cir. 1992).  Courts have held, for example, that a foreign government loaning artwork to a U.S. museum and promoting its exhibition, even on a nonprofit basis, can itself be "commercial activity." See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 314 (D.D.C. 2005) ("There is nothing 'sovereign' about the act of lending art pieces, even though the pieces themselves might belong to a sovereign. Loans between and among museums (both public and private) occur around the world regularly").  [As an aside, last year Congress considered a bill called the "Foreign Cultural Exchange Jurisdictional Immunity Clarification Act" that would have prevented such actions from constituting "commercial activity," but the bill never became law.]

Excluded from this expansive definition of "commercial activity," therefore, is a rather limited class of sovereign acts that are uniquely governmental in character such as legislative acts or diplomatic or military activities.

So has Iraq engaged in commercial activity in connection with the NARA exhibit?

Here, the recently released agreements and letters provide valuable detail.  The initial involvement of Iraq is documented in the August 17, 2003 letter from the Iraqi SBAH to the CPA.  In this two-paragraph letter the Chairman of the SBAH simply indicated that "we support" the CPA's "effort to protect these documents from further damage" and then states:

According to paragraph No. 21 of the Iraqi Antiquities Law No. 55 for the year 2002, we agree with your plan to send the documents to the United States temporarily for the restoration by National Archives and Records Administration (NARA) on the condition that, following the restoration, the documents are returned to Iraq

For purposes of the "commercial activity" analysis, Iraq authorizing the temporary removal of the archives from its territory pursuant to its antiquities law is arguably precisely the type of act only a sovereign government, and not a private party, can perform and therefore is not "commercial activity."  The SBAH letter does not mention, or evidence any Iraqi involvement in, the exhibition of the archives.

The exhibition plan is instead in the CPA-NARA agreement, which raises another issue: could the actions of the CPA, with legal authority over Iraq during a belligerent occupation, be imputed to Iraq?  That is, could the CPA's involvement in the transfer of the archives to the U.S. for exhibition be "commercial activity" that could be attributed to Iraq?  In relation to the CPA's direct actions, that may be a stretch (although worth further research).  The CPA's June 2004 appointment  of the Iraqi Ministry of Culture as its designee, however, to control the execution of the CPA-NARA agreement thereafter could be a more direct connection between Iraq and potential "commercial activity" related to the exhibition.  Indeed, even moving beyond the underlying documentation, NARA's Iraqi Jewish Archive website currently identifies Iraq as a "partner" providing "continued support and advice."

Finally, beyond its specific connections to the Jewish archives, a plaintiff could investigate more broadly other activities of the relevant Iraqi government defendants in the U.S. that may constitute "commercial activity." Has the Iraqi Ministry of Culture and/or SBAH, for example, engaged in any commercial activity in the U.S. in connection with various partnerships with U.S. entities (see, e.g., here and here), other previous cultural exhibition agreements, or even in relation to its involvement with the Ba'ath Party documents at the Hoover Institution?

Act of State Doctrine

An additional possible obstacle is the Act of State doctrine, pursuant to which traditionally U.S. courts will not "examine the validity of a taking of property within its own territory by a foreign sovereign government" even if the taking may have violated international law. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).

The doctrine raises a similar problem to that discussed above in relation to whether the seizure of the Jewish archives in Iraq from Iraqi citizens would violate international law.  The same factual question may similarly determine how the Act of State doctrine might apply -- when exactly was the "taking" of the archives?  For this doctrine the primary question may become whether the confiscations occurred before or after 1959.  This is because Congress has limited the application of the Act of State doctrine for confiscations of property in violation of international law after  January 1, 1959 via the so-called Second Hickenlooper amendment at 22 U.S.C. § 2370(e)(2).  That is, if the confiscations occurred after 1959, the doctrine would not preclude the court from looking into the issue of whether the seizures violated international law.

Do we ever get to the actual issue of ownership?

The central frustration of litigation over the Jewish archives would be the significant period of time that could elapse before all these preliminary questions of jurisdiction and immunity (and others) -- any of which could result in dismissal of the case -- are finally determined before a court will consider the substantive issue of ownership.  While I will save full consideration of that ultimate question to another day, a couple of final thoughts.

First, given the long delay before reaching the merits, the possible effect of the lawsuit on the return of the archives becomes unpredictable, but fascinating.  While the Immunity from Seizure Act, as discussed above, may preclude an effort to prevent the return of the archives by court order, an active lawsuit calling into question the ownership of the archives might nevertheless alter the U.S. government's calculations regarding their return to Iraq. Moreover, while litigation could create a corresponding incentive for Iraq to demand a prompt or even expedited return of the archives, the return itself would have the effect of lifting the protection of the Immunity from Seizure Act, thereby empowering a court, depending upon its ultimate determinations regarding ownership, to order a transfer of custody to a prevailing plaintiff.  While the chance of Iraq complying with such a court order would unquestionably decrease if the archives had already returned to Iraq, a refusal could result in the same kind of contempt sanctions being imposed on the Russian Federation on a daily basis in the Chabad case.

Second, in relation to the merits, I will say that the growing digital collection of the material increasingly appears to undermine an implicit assumption of the broader debate that the "Iraqi Jewish Archive" should be treated as one whole.  The scope of the material varies widely (which is not surprising given their haphazard discovery in a flooded basement).  On one extreme, there are documents and photographs of a personal nature that defy classification as Iraqi government records or Iraqi cultural property . . .

From http://www.ija.archives.gov/content/3295

On the other extreme, there are Iraqi ministry records relating to Iran, Iraqi intelligence records about Israel, and others that rather clearly appear to be Iraqi government records . . .

From http://www.ija.archives.gov/content/255

Put another way, the "Iraqi Jewish Archive" is not always "Iraqi," not always "Jewish," and it is not a unified, cohesive "Archive."  This argues for a careful, fact-intensive examination of the materials in assessing their proper status whether in public debates over the controversy, in formal diplomatic negotiations, or, as a last resort, in court.