The bell rang on June 26 to mark the end of the latest round, but no one can say when the fight between the Chabad-Lubavitch sect and the Russian Federation will end. When one side is trying to recover its religious legacy and the other is defining its national heritage, throwing in the towel is not an option.
At issue is an irreplaceable library of some 12,000 rare books, 381 manuscripts and 25,000 pages of handwritten rabbinical teachings that were once held by the Chabad-Lubavitch head rabbis but were left behind when the rabbis fled for safety during the world wars. The collection now sits in the Russian State Library and the Russian State Military Archive. Chabad is suing in the U.S. District Court for the District of Columbia to get it back. Last month, after nearly five years of litigation, Russia said it would no longer participate in the case.
"They have decided that, after they lost the first couple rounds, they're taking their marbles and going home," said Nathan Lewin, one of the lawyers representing Chabad.
But Lewin suggests his client isn't likely to give up so quickly. What's four years when -- to quote Rabbi Boruch Shlomo Cunin, who has led Chabad's efforts to recover the library -- you're engaged in a "spiritual quest"?
STEEPED IN TEARS
Today, the Chabad-Lubavitch movement is one of ultra-orthodox Judaism's most influential sects and is based in New York. As for the library, Cunin, who is head of Chabad-Lubavitch on the West Coast, called it "the essence, the soul [of Chabad]. These books are steeped with the tears of the rebbes who wrote them."
A century ago, the Lubavitchers were based in Russia. During the Communist Revolution, Bolsheviks seized the library of their leader, the fifth rabbi, who had left it in a Moscow warehouse while escaping World War I. Two decades later, the sixth rabbi was forced to flee Nazi-occupied Poland, leaving behind his own library. By the war's end, that library had been looted by Hitler's troops, then taken again by Soviet soldiers, who carted it back to Moscow, there to join the fifth rabbi's collection.
Like so many things that disappeared behind the Iron Curtain, the fate of the library was not clear. At one point, Soviet authorities said it had burned in an accidental fire. But the library resurfaced in 1988, and Chabad began negotiations to try to have it returned. Over time, it enlisted political figures such as then-Secretary of State James Baker III and then-Vice President Al Gore in its efforts to cajole Russia's political leaders. Despite several promises and the return of eight token books, the library has stayed put.
In court documents, Russia has said it considers the library a part of its cultural heritage -- after all, the Chabad-Lubavitch movement began there, and the sect is alive in Russia today. This dispute parallels an ongoing debate about Russia's World War II legacy. The country has been notoriously slow, and often outright unwilling, to return the millions of cultural treasures it seized from Germany and other territories it occupied. These so-called "trophies" the Russian government sees as compensation for the horrors Russia suffered at the hands of the Nazis. It has promised to review its collections for art that originally belonged Jewish families, but has yet to do so.
"I really don't think that they're intent on keeping the Jewish looted art, but I don't think there's any political will to move it along or the resources to do it," said Stuart Eizenstat, a partner at Washington's Covington & Burling who has been deeply involved in Holocaust restitution efforts.
On the same day Russia officially abandoned the Chabad case, it sent a delegation to Prague, Czech Republic, to join 48 other countries discussing issues of World War II restitution. Each country committed itself to a set of standards for returning artifacts belonging to Holocaust victims. According to Eizenstat, who led the U.S. delegation, Russia lobbied for language that would have let it argue against handing back much of its wartime loot. (Eventually, Eizenstat said, the conference allowed a more "harmless" version of the clause.)
THE COURT ROUTE
Chabad launched its U.S. litigation to retrieve the rabbis' library in November 2004, suing Russia in the U.S. District Court for the Central District of California, where it was represented byBingham McCutchen partners Seth Gerber and Marshall Grossman. The case hinged on a section of the Foreign Sovereign Immunities Act that permits individuals to sue foreign countries over property seized in violation of international law. Under the statute, the FSIA suit was removed to Washington, where Nathan and Alyza Lewin of Lewin & Lewin joined the case, along with Howrey partner William Bradford Reynolds. The case is before Chief Judge Royce Lamberth.
Initially, Russia sought to dismiss the suit on grounds that it had never violated any international conventions. But the U.S. Court of Appeals for the D.C. Circuit sided with Chabad in June 2008.
In January of this year, Russia's lawyers at Squire, Sanders & Dempsey -- including James Murphy, Alan Briggs and Jeremy Dutra in the Washington office, who declined comment -- asked to be removed from the case. They had lost contact with their client, they told the court, and weren't being paid. In March, they withdrew the request, explaining only that they had "reached an accommodation" with their client.
Meanwhile, Chabad discovered that pages of the handwritten teachings were turning up on the Israeli black market, where they were selling for $10,000 to $20,000 per page, according to Nathan Lewin. Russia denied that the pages had come from the military archive, but Lamberth issued an injunction on Jan. 27 ordering Russia to step up its efforts to protect the contents of the library.
The case seemed to be moving slowly toward discovery until this month, when Russia finally stepped out.
"The Russian Federation views any continued defense before this Court and, indeed, any participation in this litigation as fundamentally incompatible with its rights as a sovereign nation," its filing stated, adding that Chabad was free to press its case in the Russian courts. However, if the U.S. government chose to intervene again, Russia wrote, the United States should stick to "diplomatic channels."
"If they had wanted to take that position, they should have taken it without trying to test their legal arguments in the courts," responded Lewin.
TACTICS VS. TACTICS
Ordinarily, when countries are sued under the FSIA, they decide at the start whether to defend themselves or simply default and let the plaintiff try to collect a judgment. But Russia's move is not unprecedented, said Steven Perles of the Perles Law Firm in Washington. In politically charged suits, countries sometimes attempt a legal defense through a motion to dismiss and then bail out of the litigation before the case can go to discovery or be tried on the merits, said Perles, a specialist in FSIA cases. He pointed to suits over terrorist attacks involving Libya and Sudan as examples.
"It's just smart litigation tactics on their part," Perles said. If Russia had managed to persuade the court to dismiss Chabad's case, he noted, it could have used the ruling as a buffer against diplomatic pressure down the line.
With Russia gone, Chabad will still be free to pursue a judgment in U.S. district court. But Russia might not have much to worry about, said Crowell & Moring partner Stuart Newberger, who co-chairs the Washington firm's international dispute resolution practice. Even if Chabad were to win an award in federal court here, he said, it could collect only by petitioning a Russian court.
"If they want to enforce the judgment, they're going to have to go to Moscow, and that may be why the Russians decided to pull from the case," Newberger said.
Nathan Lewin disagrees with that interpretation of the FSIA. He said he believes that Chabad could enforce a judgment by attaching Russian assets in the United States.
Not that Chabad wants those assets. "The reason we went to the courts was that we saw from the diplomatic efforts that we were running up against a stone wall," Lewin said. Any assets his client claimed, he said, would serve as leverage to pressure Russia to, at long last, release the library.