Wednesday, March 15, 2006

Article repost - Museums in legal bind as terror victims sue

Museums in legal bind as terror victims sue - article and comment after jump:

By Ron Grossman
Published March 13, 2006

A Rhode Island lawyer has pioneered a new legal front in the war on terrorism, turning to the collections of major American museums to seek compensation for victims of Middle East suicide bombers.

Among the museums and institutions being pursued by David Strachman is the University of Chicago. He wants the university to surrender a treasure trove of ancient Persian artifacts to survivors of an attack staged by Hamas, the militant group that won the recent Palestinian elections.

The request was recently sustained by a federal magistrate in Chicago.

The reasoning was as straightforward as the implications are far-reaching: Supporters of terrorism should be punished. Hamas is partially financed by Iran. Therefore, Hamas' victims should be compensated by confiscating Iranian property, making Persian artifacts in American museums, such as the U. of C.'s Oriental Institute, fair game for federal marshals and a moving truck.

Should that logic hold up on appeal, it would further complicate life for an American museum world already under pressure to acknowledge that some artworks and artifacts got to their collections via shady circumstances. Floodgates could be opened for myriad similar lawsuits, said Joe Brennan, general counsel and vice president of Chicago's Field Museum, where the Persian collection is also at risk in the lawsuit.

"If you can impose modern standards on acquisition methods of a hundred years ago," he said, "I'm going to be in the business of litigating permanently."

The University of Chicago has several lines of defense before having to turn over its Persian artifacts.

Several institutions threatened

But behind the courtroom maneuvers lies a tangled tale, and the maneuver has put several American cultural institutions under a legal gun: the U. of C., the Field Museum, Harvard University, the University of Michigan, the Detroit Institute of Arts and the Museum of Fine Arts, Boston.

U. of C. officials and their attorneys have declined to comment on the case--Jenny Rubin, et al vs. The Islamic Republic of Iran, et al--except to express their confidence in prevailing.

"We are sympathetic with the victims of the terrorists, but the law does not allow recovery under these circumstances," said Beth Harris, the U. of C.'s vice president and general counsel.

In making that argument, the university has been put into the position of defending Iran's legal rights, pleading poverty for the country's fundamentalist rulers, who aren't contesting the case. In its court papers, the U. of C. states, "Iran faces numerous `practical barriers' to [the] suit in the form of extensive defense costs."

The next round of U. of C.'s legal entanglement is scheduled for a federal court in Chicago this week.

Attack that launched suit

The suit's origins date to Sept. 4, 1997, when three suicide bombers set off explosives studded with nails, screws and broken glass at the Ben Yehuda pedestrian mall in Jerusalem, a popular tourist destination. Hamas claimed responsibility for the attack, which killed five bystanders and wounded 192.

Several survivors, Americans visiting Israel at the time, filed a federal suit against Iran and Iranian officials in the District of Columbia. When the defendants didn't show up in court, the plaintiffs won by default.

Judge Ricardo Urbina ruled that the victims and their relatives were due $423.5 million in damages.

In his opinion, Urbina noted that Iran has a ministry for terrorism that "spends between $50 million and $100 million a year sponsoring terrorist activities of various organizations such as Hamas."

The decision was a victory for Strachman, the plaintiffs' lawyer.

"This case is about inflicting economic damage and punishment on the terrorists," he said after winning a similar suit.

Strachman declined to comment on the current proceedings, and Daniel Miller said he and other plaintiffs have been counseled not to speak about the matter while litigation is in process. But the judge found that the bombing left Miller, who had just graduated from high school, with glass in his eye, with bolts and nuts in his ankles and unable to walk for more than short periods.

Like other winners of damage suits, Strachman set out to collect his clients' awards from among the losers' assets.

Strachman saw deep pockets in museums housing Iranian objects, among them U. of C.'s. Its archeologists excavated Persepolis, the fabled capital of ancient Persia, between the two World Wars. Among the collections of the university's Oriental Institute are thousands of clay fragments with cuneiform writing, priceless records of a vanished civilization.

When a process server showed up at the U. of C., university officials didn't deny having Iranian property.

U. of C. invokes principle

"These antiquities are undeniably owned by Iran," U. of C. said in court papers. But the university's lawyers invoked a legal principle known as sovereign immunity, which holds that governments can't be hauled into court like the rest of us.

Though Iran hadn't asserted that right, the university wanted to do so for the government.

"You can sue the sovereign nation, you can get a judgment, but you can't collect it against any of their property unless they agree, right?"

Magistrate Martin Ashman asked during a hearing last November at the Dirksen Federal Building in Chicago.

He answered his own question by rejecting the university's argument in a decision rendered in December. It is under appeal.

The United States has sided with the museums, although it insists it is not "defending Iran's behavior."

Strachman's case against Harvard University and the Museum of Fine Arts, Boston is working its way through another federal court.

Officials at those institutions declined to comment, except to express sympathy for the terrorists' victims.

In parallel proceedings against the Field Museum, both sides have exhibited fancier legal footwork.

The museum has ancient Persian artifacts, known as the Herzfeld Collection because they were purchased in 1945 from Ernst Herzfeld, the U. of C. archeologist who excavated Persepolis.

Strachman alleges Herzfeld doubled as a dealer in stolen and smuggled antiquities.

If the museum's artifacts were among his loot, then they really belong to Iran--and thus his clients have a claim to them, Strachman argues.

Thomas Cunningham, the Field Museum's lawyer, dismisses that theory.

Against U. of C., Strachman argued that someone else can't argue Iran's rights in court, but in the case of the Field Museum, he has done just that

"We take the position that the plaintiffs don't have standing to bring a claim of Iran's right to the property," Cunningham said. "Only Iran can."

Like others involved, he predicts that the story has many chapters to come.

"There'll be a lot more technical stuff before we get to the meat of it," Cunningham said. "The juicy part, the public loves."

Just a couple of thoughts on the issues this article brings up - it's very interesting, and obviously very touchy stuff. This is my initial reaction to it.

This is a case that's going to be very tricky, and i'll be interested to see what the outcome is. What the tricky thing is, is that much of the cultural material has been acquired by less-than-honest means at a time when it was commonplace for visiting scholars in other countries to bring items home with them to donate/sell to museum collections. Some museums are starting repatriation processes which is kinda cool - and I guess it can only really work with things that have decent documentation of their provenance, and have a cultural institution to be kept in in their country of origin. The majority of material will stay where it is, as property of the Museums they've been taken in by.

Legally, this means they can only be deaccessioned by museum management/museum boards. Lawyers can not walk in on behalf of their clients and take cultural material from museum collections as means of compensation. It just doesn't work that way. It makes me boggle a little that anyone could think this could happen. While the pieces have originated from the Middle East, they are owned by museums, and the museums have the control over what happens to them. The circumstances here are not that the American museums are "keeping places" for cultural material, they aren't custodians for what they have. By whatever means, they've come to own the material - so I figure it's out of reach for victims wanting compensation.

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