Terror-victims' lawsuits drag on

Lawsuits by Victims of Terrorism Imperil Archaeological Studies
In claiming $4-billion in damages from Iran, American plaintiffs demand that colleges and museums turn over ancient Persian artifacts
U. of ChicagoMatthew Stolper, a professor of Assyriology at the U. of Chicago's Oriental Institute, examines a tablet on loan from the government of Iran.Enlarge Image
By Peter Schmidt
Their original owners, in what is now Iran, probably saw them as ordinary records of day-to-day transactions, like today's ATM statements or store receipts. More than two millenniums later, however, clay tablets housed at the University of Chicago's Oriental Institute have assumed extraordinary significance, as both objects of archaeological study and sources of modern conflict.

In addition to being crucial sources of information about the ancient empire that produced them, the tablets, as well as other Persian relics, have become prizes in complex legal battles. The disputes pit American colleges and museums against victims of terrorism in the Middle East, and have the potential to greatly hinder efforts by American scholars and museums to borrow art and artifacts from other nations.

In lawsuits pending in federal courts in Boston and Chicago, Americans harmed by terrorist attacks linked to the Islamic Republic of Iran are asserting claim to artifacts they believe belong to that nation, in their quest to win more than $4-billion in damages. The institutions that hold the artifacts, which include Harvard University and the University of Chicago, have been joined by an unlikely set of allies—the Iranian government, the U.S. Justice Department, and the National Iranian American Council—in arguing against using the archaeological finds to settle the lawsuits' claims. More here: http://chronicle.com/article/Lawsuits-by-Victims-of/126610/

Here's my 2009 take on the cases from my book "Al Qaeda Goes to College":

Chapter Six
Victims Fight Back: The Persian Antiquities Cases (2001-2010)
In the 1981 film “Raiders of the Lost Ark,” Professor of Archeology Indiana Jones has the following conversation with “Marcus,” representative of an unidentified American museum, following Professor Jones’s abortive expedition into Central America:
“I had it, Marcus. I had it in my hand. Want to hear about it?”
“Not at all. I’m sure everything you do for the museum conforms to the international treaties on antiquities.”
“It’s beautiful, Marcus. I can get it. I’ve got it all figured out. There’s only one place he can sell it… Marakesh. I need $2000.”
Dr. Jones opens a drawer in his lab table and extracts a cloth containing several small statuettes.
“Look,” he urges them on Marcus. “They’re good pieces, Marcus,” he says. “They’re worth at least a ticket to Marakesh.”
“Yes,” Marcus replies, “the museum will buy them as usual. No questions asked.” Pocketing them in his suit coat, he smiles wryly. “Yes, they are nice.”
“Raiders” is set in the mid-1930s. Fast forward some sixty years. On September 4, 1997, five American citizens were injured in a triple suicide bombing in a jammed pedestrian mall in Jerusalem. Joined by four family members claiming emotional harm, in 2001 these terror victims sued Iran, alleging that the perp – Hamas – had received training and support from the nation formerly known as Persia. Iran declined to defend itself. Six months after the suit was started, a U.S. district judge entered a default judgment in favor of the plaintiffs for $71.5 million in actual damages, plus an additional $37.5 million in punishment damages.
Armed with this $109 million final judgment and faced with a defendant that is essentially judgment-proof in the U.S., Jenny Rubin and eight co-plaintiffs, who like her had actually been injured in the blast, and their counsels began casting about for someone who could make good on the massive award. Their initial target was a fund belonging to the former Iranian embassy in Washington, safeguarded since its closing by the U.S. Treasury Department. The federal government resisted. The plaintiffs prevailed, but subsequently discovered to their chagrin that an earlier judgment-creditor possessed a superior lien on the money.
Nothing if not persistent, the plaintiffs next went after three Iranian bank accounts in the Bank of New York. The district judge awarded ownership to the Iranian banks involved in the action. Last of these initial attempts to make good their judgment was an attachment action against a piece of Iranian property near Lubbock, Texas. This was a home owned and occupied by an Iranian prince while he received fighter jet training at Reese Air Force Base. This time the plaintiffs hit pay dirt, if only a modest vein. The district judge in Amarillo issued an order, directing sale of the property on plaintiffs’ behalf. On January 4, 2004, the U.S. Marshall auctioned the property for $390,000. This was a start, but hardly a great victory.
Remarkably, where others might have quit, they came up with a list of prestigious universities and museums in Chicago, Detroit, and Boston, which they hoped to raid for their winnings. Registering their judgment in federal district courts in Illinois, Massachusetts, and Michigan, they pleaded “on information and belief” that museums located in these jurisdictions held antiquities which still belonged to Persia (aka Iran).
Concentrating their attack in the Northern District of Illinois and the District of Massachusetts, the plaintiffs’ primary targets include the Fields Museum of Natural History in Chicago, the Oriental Institute of the University of Chicago, Boston’s Museum of Fine Arts, as well as no fewer than five Harvard museums. In Massachusetts, the plaintiffs moved for an order of attachment covering “all objects… that are the property of the Islamic Republic of Iran” held in Harvard’s Arthur M. Sackler Museum, Busch-Reisinger Museum, Fogg Art Museum, Semitic Museum, and Peabody Museum of Archeology and Ethnology.
When I first wrote about these cases in 2007, none of the parties or their legal counsels was willing to talk to me, except on background. A typical response to my inquiries came from Attorney Bill Iverson of Washington (D.C.)’s Covington & Burling, co-counsel for the defendants in the case styled Rubin v. Islamic Republic of Iran v. Museum of Fine Arts and Harvard University. “I’m sorry,” Iverson responded to my email, “but because the MFA’s policy is not to comment on pending litigation matters, they would prefer that I not speak to you.”
Iverson, however, was kind enough to send me the MFA’s official statement, which was representative of the defendants’ collective stance in the matter. Originally released in March 2006, it reads, “The Museum of Fine Arts, Boston has objects in its collection from what is modern day Iran. Most were excavated during official expeditions in the 1930s. Although sympathetic to the plaintiffs, the Museum is firmly of the conviction that these objects are the property of the museum, not Iran, and are therefore not subject to the claim asserted by the plaintiffs.” Full stop.
A 2005 story in the Harvard Crimson, obligingly provided by the director of Harvard’s news office, Joe Wrinn – who likewise declined to speak for the record – reported, “The plaintiffs’ (sic) only specifically identify a set of six limestone relief fragments from the site of Persepolis in southwestern Iran, on display on the third floor of the Sackler.” The Crimson piece continues, “In court filings, Harvard’s lawyers contend that none of the antiquities in its collections – including the six fragments in the Sackler, which were a gift from Grenville L. Winthrop, Class of 1886 – are owned by Iran.”
The article adds that objects at the University of Pennsylvania Museum, the Philadelphia Museum of Art, the Detroit Institute of Arts, and the University of Michigan are also ultimately in the plaintiffs’ gun sights.
The “current position” was not one of much comfort to the defendants. Harvard and the MFA reacted to the plaintiffs’ move on their antiquities with a motion to quash the summonses and dissolve the attachments. Since these motions were based purely on the pleadings, no discovering occurred to actually determine which, if any, antiquities in any of the defendants’ facilities belong to Iran. Rather, District Judge O’Toole’s September 30, 2006, decision turned upon complex issues of international law. Judge O’Toole’s analysis began with the Foreign Sovereign Immunities Act, which “defines the parameters of a foreign state’s immunity in the courts of the United States.” His Honor concluded that any property of the state of Iran in the defendants’ possession was “immune from execution and attachment unless one of the exceptions in” the FSIA applied. No such exceptions pertained here, he found. So far, so good for the museums.
Ah, but that was not the end of it. The judge had more to say. “The property’s immunity under the FSIA notwithstanding, the plaintiffs may still be able to obtain the antiquities pursuant to… the Terrorism Risk Insurance Act of 2002.”
Aye, there’s the rub. Iran has been designated “a state sponsor of terrorism, and is therefore a ‘terrorist party’ as defined” under the TRIA. In that capacity, Iran’s FSIA immunity evaporates. Following a winding path, which required the parsing of related executive orders which successively blocked and unblocked Iranian assets around the 1980-81 U.S. embassy hostage crisis, Judge O’Toole decided that “if the plaintiffs are able to establish that the antiquities are indeed the property of Iran, those assets will be subject to attachment and execution pursuant to [the] TRIA.”
Denying the defendants’ motions, the judge added, “The other reason the… defendants say the summonses should be quashed is that the property in question does not belong to Iran.” This, he cautioned, “is a disputed question of fact that remains to be resolved.” He ordered the parties to reappear before him on October 31st. Instead, the defendants responded with a motion for reconsideration by Judge O’Toole of his decision or in the alternative, his certification of the issue up to the U.S. Court of Appeals for the Second Circuit. The judge revisited his decision and concluded that he had been correct: the antiquities were subject to attachment.
This reaffirmation of his ruling moved the case into the discovery phase: just what Persian artifacts do the defendants hold and who actually owns them?



The Museum of Fine Arts
Boston’s MFA is one of America’s oldest museums. Founded in 1870, it is surpassed only by New York City’s Met in sheer size of its total collection. Writes Director Malcolm Rogers,
If the heart of a great museum is its collections, then the MFA is truly one of the greatest in the world. The Museum offers not only outstanding art, but also innovative and exciting ways for you to interact with these masterpieces and with fellow art lovers. From groundbreaking exhibitions and engaging programs to state-of-the-art gallery space created by our landmark Building Project, from ancient Egyptian mummies to cutting-edge MFA Mobile wallpapers, there is always something new to explore at the MFA.

Turning to the relevant collections, the MFA’s website advises visitors,
The Art of the Ancient World collection ranks among the premier encyclopedic collections in the world, representing more than 7,000 years of art from Nubia, Egypt, the Near East, Cyprus, Anatolia, Greece, and Italy. The objects range in date from about 6500 BC to AD 600 and cover a geographical expanse from Afghanistan to Britain. In addition to architectural elements, sculpture, painting, vases, jewelry, and decorative arts, the department houses a numismatic collection of approximately 8,000 coins.

Drilling down into the MFA website, one can find such specific artifacts catalogued as the following:

• Mirror with Paired Sphinxes
probably Persian, 12th–13th century
Khorasan, Iran (Eastern)
Cast bronze
Classification: Metalwork
Accession number: 72.4482

• Candlestick
Persian, Safavid or Qajar
Iran
Steel, cut and inlaid with gold
Classification: Metalwork
Accession number: 77.45

• Fragment of trim from a coat
Persian or Mesopotamian, Sasanian, 6th–7th century A.D.
Findspot: Antinoe (excavation site), Egypt
Place of Manufacture: Iran or Mesopotamia
Silk; twill weave with complementary wefts and inner warps (samite)
Classification: Textiles
Accession number: 04.1620

The Arthur M. Sackler Museum of Harvard University
The plaintiffs have been rather particular in targeting the Sackler. Their focus is upon donations of a Harvard alumnus named Grenville L. Winthrop, who died in 1943. Perhaps ironically, Winthrop was not best known, nor is he best remembered, for the antiquities in his vast private collection. In a press release issued in 2002, when a selection of his 19th century paintings became a traveling exhibition from Harvard’s Fogg Museum, the university wrote,
Grenville L. Winthrop (1864-1943) assembled a collection of more than 4,000 works of art that was commensurate in stature to other New York collections such as those of Pierpont Morgan, Benjamin Altman, H.O. Havermeyer, Henry Clay Frick, George and Florence Blumenthal, and Robert Lehman. Although Winthrop's interests as a collector ranged from Chinese Buddhist sculpture, to Peruvian gold, to prints by Dürer, the collection's areas of exceptional strength and depth include early Chinese works of art and 18th- and 19th-century British and French drawings, ceramics, and clocks. The Winthrop Collection's holdings of 19th-century Western works of art include 700 British, French, and American drawings, as well as 180 paintings predominantly by French and British 19th-century masters as well as more than 100 sculptures. The collection's holdings of early Chinese art include one of the largest, finest, and most comprehensive collections of archaic Chinese jades, as well as bronze ritual vessels that rank among the finest in the world. Winthrop rarely loaned these works during his lifetime.

Like Boston’s MFA, Harvard’s Sackler Museum boasts a significant collection of ancient artifacts:
The collection of ancient art is comprised of over 24,000 works of Greek, Roman, Etruscan, Egyptian, and Near Eastern art, and includes vases, sculpture in stone, metalwork, terracottas, glass, glyptics, some wood, ivory, and bone, and a very large collection of ancient coins.

Concerning the Winthrop legacy itself, the following note can be found in the July-September 1944 issue of the American Journal of Archaeology:
Winthrop Bequest. - One of the most important events for the study of art and archaeology in America in 1943 was the bequest to the Fogg Museum of Harvard University of the collection of Grenville L. Winthrop. A graduate of Harvard College in the Class of 1886, he had made important gifts to the Museum during his lifetime….

Reliefs from Persepolis. – The Winthrop collection, as received by the Fogg Museum, included five reliefs from the palace of Darius (521-485 B.C.) at Percepolis…. Two represent provincials in Median dress bringing offerings, and probably came from the stairway of Artaxerxes (359 –338 B.C.); two portray heads of so-called “Immortals,” or archers of the Royal Guard, and may well date from the time of Darius himself, while the fifth is a relief of Ahura Mazda, supreme god of the Persians. The writer believes that this may well have been part of the decoration of the Hall of a Hundred Columns in the north part of the Persepolis platform, and if so, it is suggested that it is the missing part of the huge jamb of the south doorway. This building is attributed to both Darius and Xerxes (485-465 B.C.) and as the relief is unfinished, it may be of the time of the latter.

Note that, while this 1944 article indicates that the reliefs were a small part of the total bequest to Harvard’s Fogg Museum, the plaintiffs’ pleadings place them in the Sackler. More recently, however, in conjunction with architectural alterations, the university grouped the Fogg, the Sackler, and the Busch-Reisinger Museum under the umbrella of “The Harvard Art Museum.”
The Field Museum
The Field Museum was incorporated by the State of Illinois on September 16, 1893, at the time of the great exhibition, as the Columbian Museum of Chicago with its stated purpose the “accumulation and dissemination of knowledge, and the preservation and exhibition of objects illustrating art, archaeology, science and history.” As such, it shares in the luster of America’s first “world’s fair” and the fair’s cultural influences, which persist to the present day.
The fair had a powerful and lasting impact on the nation’s psyche, in ways both large and small. Walt Disney’s father, Elias, helped build the White City; Walt’s Magic Kingdom may well be a descendant…. The writer L. Frank Baum and his artist-partner William Wallace Denslow visited the fair; its grandeur informed their creation of Oz…. Even the Lincoln memorial in Washington can trace its heritage to the fair.

The fair’s greatest impact lay in the way Americans perceived their cities and their architects…. Other cities came to [city planner and architect] Daniel Burnham for citywide plans,… but he turned them down to concentrate on his last plan, for the city of Chicago. Over the years many aspects of his Chicago plan were adopted, among them the creation of the city’s lovely ribbon of lakefront parks and Michigan Avenue’s “Magnificent Mile.” One portion of the lakefront, named Burnham Park in his honor, contains Soldier Field and the Field Museum, which he designed.

It was not until 1905 that the name was changed to Field Museum of Natural History, the first half of the new moniker in honor of its first major benefactor, department-store magnate Marshall Field, and the second half to better reflect its focus on the natural sciences. And it was not until 1921 that the museum moved from its original location in the Columbian Exposition’s Jackson Park to its present site, as described above. Today it is an important part of a lakefront “Museum Campus” that also includes the John G. Shedd Aquarium and the Adler Planetarium. These three institutions are regarded as among the finest of their kind in the world and together attract more visits annually than any rival site in Chicago.
Biological and anthropological collections assembled for the Columbian Exposition form the core of the museum's collections, but these core collections have grown through worldwide expeditions, exchange, purchase, and gifts to more than twenty million specimens. “The collections form the foundation of the museum's exhibition, research and education programs, which are further informed by a world-class natural history library of more than 250,000 volumes.”
The Oriental Institute
“The Oriental Institute is a research organization and museum devoted to the study of the ancient Near East. Founded in 1919 by James Henry Breasted, the Institute, a part of the University of Chicago, is an internationally recognized pioneer in the archaeology, philology, and history of early Near Eastern civilizations.”
Interestingly, the institute was the only defendant-institution to admit early in the litigations that Iran actually did own the items at issue. “It acknowledged the Persepolis Fortification archives and the Choga Mish materials were only on loan to the U.S. for cataloging and studying; ownership remained with the National Museum in Iran…. Thus, while the MFA could put forth a joint defense, based upon shared factual assertions, the Oriental Institute and the Field Museum found themselves arguing different positions.”
In May 2008 the federal district court issued the following ruling in the case involving these latter two institutions:
Rubin is not seeking general discovery about every conceivable asset of Iran's in the United States. The only discovery requests that Iran has identified in its objection to the Magistrate Judge's order are requests for information about Persian artifacts in the possession of the Field Museum and the University of Chicago, and any disputes over the ownership of those artifacts. Thus, Iran's concerns that subjecting it to “broad-based discovery” about its assets in the United States will cause “other states worldwide ... to ignore long-standing principles of comity and sovereign immunity and issue broad assets discovery against the United States and other nations in the name of whatever policies the states wish to pursue” appears to be overblown. Rubin is not seeking “broad assets discovery,” but rather has limited its requests to information about a discrete collection of artifacts that it believes falls within an exception to the immunity otherwise afforded a foreign sovereign's assets.

Accordingly, Iran has identified no basis for concluding that the Magistrate Judge's order was clearly erroneous or contrary to law, and its objection is therefore overruled. Iran shall produce the requested materials no later than June 27, 2008.

Following the issuance of this court order, the plaintiffs petitioned the court to amend the order, arguing that the judge had misapprehended their motion, which sought broad discovery rights with regard to Iran’s U.S. assets. District Judge Blanche M. Manning responded favorably on June 23, 2008, ordering, “The remainder of the order is unaffected and Iran remains obligated to respond to the requests for discovery that were the subject of its objection, including discovery relating to its assets in the United States.”
Mention of Ernst Herzfeld in the judge’s May 23rd decision is intriguing.
Herzfeld was born in Celle, Province of Hanover. He studied architecture in Munich and Berlin, while also taking classes in Assyriology, ancient history and art history.

1903-05 he was assistant to Walter Andrae in the acclaimed excavations of Assur, and later traveled widely in Iraq and Iran at the beginning of the twentieth century. He surveyed and documented many historical sites in Turkey, Syria, Persia (later Iran) and most importantly in Iraq (e.g. Baghdad, Ctesiphon). At Samara he carried out the first excavations of an Islamic period site in 1911-13. After military service during World War I he was appointed full professor for "Landes- und Altertumskunde des Orients" in Berlin in 1920. This was the first professorship for Near/Middle Eastern archaeology in the world. 1923-25 he started explorations in Persia and described many of the countries´ most important ruins for the first time. In 1925 he moved to Tehran and stayed there most of the time until 1934. He was instrumental in creating a Persian law of antiquities and excavated in the Achaemenid capitals Pasargadae and Persepolis.

Forced to flee Nazi Germany in 1935, this real-life “Indiana Jones” landed at Princeton’s Institute for Advanced Study from 1936 to 1944. Just prior to Herzfeld’s departure from Berlin to escape the Third Reich’s harsh race laws, he went on an expedition on behalf of the University of Chicago. The Oriental Institute recalls it as follows:
From the time of its barbaric destruction until A.D. 1620, when its site was first identified, Persepolis lay buried under its own ruins. During the following centuries many people traveled to and described Persepolis and the ruins of its Achaemenid palaces. Many of their observations were later condensed and published by George N. Curzon in Persia and the Persian Question (London and New York, 1892). But scholarly and scientifically planned work was not undertaken until 1931. Then Ernst Herzfeld, at that time Professor of Oriental Archaeology in Berlin, was commissioned by James H. Breasted, Director of the Oriental Institute of the University of Chicago, to undertake a thorough exploration, excavation and, if possible, restoration of the remains of Persepolis. Thus, Herzfeld, in 1931 became the first field director of the Oriental Institute’s Persepolis Expeditions. In 1931–34, assisted by his architect, Fritz Krefter, he uncovered on the Persepolis Terrace the beautiful Eastern Stairway of the Apadana and the small stairs of the Council Hall. He also excavated the Harem of Xerxes. When Herzfeld left in 1934, Erich F. Schmidt took charge. He continued the large-scale excavations of the Persepolis complex and its environs until the end of 1939, when the onset of the war in Europe put an end to his archaeological work in Iran. During the last years of excavating, the University Museum in Philadelphia and the Museum of Fine Arts in Boston had joined the Oriental Institute in order to cope with the tremendous work at hand.

The statement on the institute’s web page that “Herzfeld left in 1934” is a classic understatement. In fact, his contract was cancelled amidst allegations that he had stolen some of the artifacts unearthed at Persepolis. In 1944, as he planned his retirement from Princeton, Herzfeld sold artifacts. These artifacts have since been held by private parties, and Iran has proven itself vigilant in contesting their further sales. For example, in 2005, the 85-year-old alleged-owner of a stone carving of a guardsman, a Frenchwoman named Denyse Berend, attempted to auction the piece through Christie’s in London. Madame Berend claimed to have obtained the artifact at auction in 1974 in New York City. Iran initiated a legal action in Britain to block the sale and recover the piece.
On February 1, 2007, the British judge ruled in favor of the defendant Berend. After engaging in a complicated analysis of “conflict of Laws” principles (not unlike what the Rubin judges have been required to do, as exemplified in detail above) and deciding that French law ought to apply to determine ownership, Justice Eady stated,
Naturally, if someone has obtained an artifact knowing it to have been stolen from a particular source, or suspecting it, there may well be policy reasons for placing obstacles in the way of his acquiring a good title by secret possession. Here, by contrast, the Defendant's good faith having been conceded, she had no reason to keep the fragment she had bought under wraps, nor yet even to suspect that the then government of Iran had a claim to repossess it. There was obviously no question of dissimulation on her part or of any intention to deceive. It makes no sense that innocent purchasers of such objects should be required to go on for up to 30 years advertising the fact of their possession – just in case a third party at some stage decides to assert a claim.

To the extent that the U.S. District Courts accord any weight to Justice Eady’s decision, the Berand case didn’t bode well for the Rubin plaintiffs, for even the Oriental Institute contends that Iran is not the sole owner of the artifacts at issue.
2010 Developments
However, the next turn in the fortunes of their decade-long litigation roller coaster ride occurred back on June 3, 2008, when the U.S. District Court in Washington (DC) issued an order authorizing the plaintiffs to attach Iranian property in pursuit of their massive judgment. Perhaps the museums’ counsels were asleep at the switch. At any rate, they fatally delayed filing a motion to intervene in the case. On September 8, 2010, District Judge Ricardo M. Urbina ruled that they were Johnny-come-latelies and that there motion was denied.
III. ANALYSIS
A. Legal Standard for a Motion to Intervene
Federal Rule of Civil Procedure 24 sets forth the requirements for intervention as of right and permissive intervention. FED.R.CIV.P. 24; Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003). Rule 24(a) provides for intervention as of right, stating that

[o]n timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

FED.R.CIV.P. 24(a).

This Circuit has identified “four prerequisites to intervene as of right: ‘(1) the application to intervene must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3) the action must threaten to impair that interest; and (4) no party to the action can be an adequate representative of the applicant's interests.’ “ Karsner v. Lothian, 532 F.3d 876, 885 (D.C.Cir.2008) (quoting Sec. Exch. Comm'n v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C.Cir.1998)). In addition, an applicant must demonstrate that it has standing. Jones v. Prince George's County, Md., 348 F.3d 1014, 1017-18 (D.C.Cir.2003).

*3 Alternatively, Rule 24(b) authorizes permissive intervention for an applicant who timely files a motion when a federal statute confers a conditional right to intervene or the applicant's claim or defense has a question of law or fact in common with the main action. FED.R.CIV.P. 24(b). In considering a motion for permissive intervention, a court must determine whether the proposed intervention “will unduly delay or prejudice the adjudication of the rights of the original parties.” FN4 Id.

FN4. In this Circuit, “there is uncertainty over whether standing is necessary for permissive intervention.” In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C.Cir.2000).


Timeliness is a threshold question for both permissive intervention and intervention as of right. NAACP v. New York, 413 U.S. 345, 365 (1973). “Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be ‘timely .’ If it is untimely, intervention must be denied.” Id.; see also United States v. British Am. Tobacco Austl. Servs., Ltd., 437 F.3d 1235, 1238 (D.C.Cir.2006) (holding that “[a]s a threshold matter ... Rule 24 requires prospective intervenors to file a ‘timely application’ ”); Acree v. Republic of Iraq, 370 F.3d 41, 49 (D.C.Cir.2004) (noting that “[u]nder either [Rule 24(a) or Rule 24(b) ], the prospective intervenors' motion must be ‘timely’ ”), abrogated on other grounds sub nom., Republic of Iraq v. Beaty, 129 S.Ct. 2183 (2009); Mass. Sch. of Law v. United States, 118 F.3d 776, 783 n. 5 (D.C.Cir.1997) (noting that “untimeliness in seeking intervention may justify its denial without consideration of the merits”).

B. The Court Denies the Museums' Motion to Intervene as Untimely
The Museums assert that their motion to intervene is timely because it was filed “within the 10 business days for filing a motion for reconsideration under 59(e) and well within the thirty days permitted for filing a notice of appeal.” Museums' Mot. at 6-9. The plaintiffs respond that the Museums' motion to intervene is untimely because the Museums had the opportunity to file it before the court granted the plaintiffs' motion but chose not to do so, instead submitting a letter opposing the plaintiffs' § 1083(c)(2) motion and waiting until after the motion was granted to move to intervene. Pls.' Opp'n at 17-18. They also assert that sending the letter was improper and sanctionable. Id. The Museums respond by asserting that they decided to send the letter instead of moving to intervene because they were “driven by a desire to present important arguments to the Court in as timely a fashion as possible.” Museums' Reply at 5-6. They also state that they sent the letter as soon as they determined that the plaintiffs had misconstrued the NDAA because they “feared that the Court might soon rule on Plaintiffs' request ... without the benefit of adversarial briefing.” Id.

The timeliness of a motion to intervene “is to be judged in consideration of all the circumstances, especially weighing the factors of time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant's rights, and the probability of prejudice to those already parties in the case.” British Am. Tobacco Austl. Servs., 437 F.3d at 1238 (quoting United States v.. Am. Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C.Cir.1980)). This Circuit has, however, made clear that “[a] motion for ‘intervention after judgment will usually be denied where a clear opportunity for pre-judgment intervention was not taken.’ “ Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C.Cir.1999) (quoting Dimond v. Dist. of Columbia, 792 F.2d 179, 193 (D.C.Cir .1986)).

*4 In Associated Builders, the proposed intervenor filed a motion to intervene several weeks after the district court had ruled on the parties' cross-motions for summary judgment. 166 F.3d at 1254. In reviewing the district court's denial of the motion, the Circuit noted that the proposed intervenor “offered no reason, and no reason [was] apparent from the record, why it could not have sought intervention prior to judgment.” Id. at 1257. In light of this failure, and “given the presumption that post-judgment motions to intervene will be denied,” the Circuit affirmed the district court's denial of the motion, observing that “any motion for intervention must be ‘timely.’ “ Id. (citing FED.R.CIV.P. 25) (emphasis added); see also Mass. Sch. of Law, 118 F.3d at 783 n. 5 (denying permissive intervention and holding that when “would-be intervenors ... inexcusably neglect to try to enter the proceedings before judgment, at a time when notice of their arguments would have enabled the district court to avert the alleged errors ... post-judgment intervention for the purpose of challenging those supposed defects on appeal would rightly be denied as untimely” (citing NAACP, 413 U.S. at 366-68)); Moten v. Bricklayers & Plasterers, 543 F.2d 224, 227-28 (D.C.Cir.1976) (denying a motion to intervene as of right and holding that “cases in this Circuit permitting post-judgment intervention should not be controlling where clear opportunity for pre-judgment intervention ... was not taken”).

In this case, the Museums were aware long before the court granted the plaintiffs' motion in June 2008 that their interests were implicated in these proceedings. See Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir.1996) (noting that the relevant inquiry for determining timeliness of a motion to intervene is the point at which the proposed intervenor knew or should have known that an action could affect his interests). By February 2005, the plaintiffs had initiated attachment proceedings against the Museums in both the Northern District of Illinois and the District of Massachusetts seeking to enforce the default judgment issued in this case. See Museums' Mot. at 11; Pls.' Opp'n at 5-10. The Museums must have been aware early in the course of those proceedings that their interests were implicated in this action.

Moreover, the Museums had reason to intervene beginning on March 28, 2008, when the plaintiffs filed their motion for retroactive application of the NDAA. The Museums, however, did not move to intervene at that point, and indeed, took no action for two full months, when, instead of moving to intervene, they sent a letter to the court expressing their views on the merits of the plaintiffs' motion. See Museums' Reply at 5 n. 1. Although the Museums assert that they sent the letter as soon as they determined that the plaintiffs had misconstrued the NDAA, Museums' Reply at 5-6, they offer no explanation for why they waited two months after the plaintiffs filed their motion regarding the NDAA to raise their arguments to the court. See generally Museums' Mot.; Museums' Reply. Moreover, the Museums offer no explanation for why they chose to submit a letter FN5 rather than filing a motion to intervene, in which they could have referenced their substantive grounds for opposing the plaintiffs' motion and requested that the court delay ruling on the plaintiffs' motion pending resolution of the motion to intervene. See generally Museums' Mot.; Museums' Reply. Instead, the Museums submitted a letter, with the apparent hope that the court would consider arguments submitted by a non-party to the litigation. This hope, however, was unfounded and does not justify their failure to seek formal intervention in a timely fashion. Thus, the Museums had a clear opportunity to intervene in this action prior to the resolution of the plaintiffs' motion but chose not to do so.

FN5. Even if the court had been inclined to consider the substantive arguments raised by the Museums, who were non-parties to this action, the Museums' letter did not arrive at the court until the day the court issued an order granting the plaintiffs' motion. See Museums' Reply at 5 n. 1.


*5 The Museums rely on United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977), to assert that motions to intervene are timely as long as they are filed within the time period for filing an appeal or seeking reconsideration. See Museums' Mot. at 6. Yet in McDonald, the post-judgment motion for permissive intervention was granted because “there was no reason for the [intervenor] to suppose that [the named plaintiffs] would not take an appeal until ... after the trial court had entered its final judgment.” McDonald, 432 U.S. at 394. Indeed, the Court noted “the critical fact” that “as soon as it became clear to the [intervenor] that the interests of the [nonparties] would no longer be protected by the named [parties], she promptly moved to intervene .” Id.

In construing the holding of McDonald, this Circuit has required that motions to intervene be filed before the entry of judgment unless the proposed intervenor does not know until after judgment is entered that the named parties will not protect its interests. See Smoke v. Norton, 252 F.3d 468, 471 (D.C.Cir.2001) (granting a post-judgment motion to intervene as of right because “the potential inadequacy of representation came into existence only at the appellate stage” (quoting Dimond, 792 F.2d at 193)); Associated Builders, 166 F.3d at 1257 (noting that in McDonald, “the necessity of intervention did not arise until after judgment had been entered” (citing McDonald, 432 U.S. at 393-94)). In this case, the Museums knew that intervention would be needed to protect their interests long before the plaintiffs' motion was granted, given the defendants' failure to participate at any point in this action. At the very least, the Museums must have been aware of the need for intervention when the deadline for opposing the plaintiffs' NDAA motion passed without any action from the defendants. Accordingly, the exception for post-judgment intervention set forth in McDonald does not apply. See Associated Builders, 166 F.3d at 1257 (citing McDonald, 432 U.S. at 393-94); Moten, 543 F.2d at 227-28.

The Museums also rely on Acree v. Republic of Iraq, 370 F.3d 41 (D.C.Cir.2004), in which this Circuit held that the district court abused its discretion in denying a post-judgment motion to intervene. Museums' Mot. at 6. In Acree, however, the Circuit stated that it was making an exception to the established rule due to the “unique circumstances of [the] case,”-namely, that it was “a case with undeniable impact on the Government's conduct of foreign policy.” Acree, 370 F.3d at 50. Indeed, the Circuit explicitly grounded its holding on the foreign policy implications of the case, stating that although “[c]ourts are generally reluctant to permit intervention after a suit has proceeded to final judgment, particularly where the applicant had the opportunity to intervene prior to judgment ... in light of its clear foreign policy interests, the United States was entitled to intervene as of right.” Id. at 49-50.

*6 The motion to intervene now before the court has not been brought by the United States based on its foreign policy interests in the action, but instead by a group of museums. See generally Museums' Mot. Moreover, the United States has already intervened in this action to assert its foreign policy interests. See Minute Order (July 15, 2004); see generally United States' Motion to Quash Pls.' Writ of Attachment (Aug. 2, 2004). The Museums' motion to intervene, therefore, does not merit the exception that was applied in Acree.FN6

FN6. The Museums also rely on Benzman v. Whitman, 2006 WL 3771014 (S.D.N.Y. Dec. 15, 2006). Museums' Mot. at 6. Yet Benzman concerned a case in which the motion to intervene had already been denied, and the motion to reconsider that denial was found to be timely. 2006 WL 37710014, at * 1, 3. Accordingly, the Museums' reliance on Benzman is misplaced.


In short, the Museums have offered no explanation for their failure to seek intervention prior to the court's resolution of the plaintiffs' motion, despite the fact that they had a clear opportunity to do so. Accordingly, their motion to intervene is untimely and must be denied.

IV. CONCLUSION
For the foregoing reasons, the court denies the Museums' motion to intervene and denies as moot the Museums' motion for an extension of time to appeal. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 8th day of September, 2010.


Contemporaneously, two distinguished scholars have commented,
Congress has passed ineffectual, "sound bite" anti-terrorism legislation that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East. One group of victims is mired in multiple jurisdictions trying to enforce an exorbitant default judgment against the Islamic Republic of Iran by forcing auctions of antiquities collections housed in Harvard University, the Oriental Institute at the University of Chicago, the Field Museum of Natural History (Chicago), and the Museum of Fine Arts (Boston), among others. Congress in this political posturing has triggered the Department of Justice to participate in the litigation counter to the victims’ interest. The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes.

The case and the commentaries on it beg a much broader question.
Who does own antiquity?
A more profound obstacle to the Rubin plaintiffs, than the complex issues of entangled ownership of the artifacts upon which they hope to levy their massive judgment, is the weight of historical trends. A heated debate is raging in the academy, in the art world, and in the international community of nations. On one side are those who contend that antiquities are the national heritage of the modern nations descended from the ancient empires that created the artifacts. Acquiescing to one such claim, in September 2007 Yale University agreed to return thousands of artifacts, excavated at Machu Picchu in 1912, to Peru. However, the transfer agreement is complicated, implicating aspects of the other side of the debate about who owns antiquity. Under the preliminary agreement,
[s]ome of the research-quality objects would remain on loan to Yale’s Peabody Museum of Natural History for further study. Yale would establish a program of scholarly exchanges for a period of at least three years. And Yale and Peru would jointly organize a traveling exhibition of the excavated material, with proceeds going toward the cost of building a museum and research center in Cuzco, for which Yale would serve as an adviser.

At the time, Yale President Richard C. Levin claimed, “we aim to create a world model for resolving competing interests in cultural property. This can best be achieved by building a collaborative relationship – one which involves scholars and researchers from Yale and Peru – that serves science and human understanding.” But, then, the government of Peru changed and the incumbents accused Yale of possessing some 40,000 Machu Picchu artifacts, ten times the original estimate under discussion in 2006-07. Peru’s former first lady, Elaine Karp-Toledo, weighed in with “I fail to understand the rationale for Yale to have any historical claim to the artifacts….” The preliminary agreement, she carped, “reflects a colonial way of thinking not expected from a modern academic institution.” Peru changed its stance, demanding accounting for and return of all artifacts.
The problem I see for the Rubin plaintiffs is that they are the odd folks out. Whether one subscribes to Yale’s view, i.e., antiquity is part of our human heritage, or with Peru’s position that modern, sovereign nations and their particular peoples are entitled to their particular pieces of the human heritage, individual tort claimants have no place in the equation.
As should be apparent, particularly from the May 2008 order excerpted in full in the box above, the legal issues involved in these cases, as well as the evidentiary issues posed by the convoluted histories of the numerous expeditions, many remote in time, permit a court – perhaps eventually the U.S. Supreme Court – to fashion whatever ruling it deems “just.” My personal prediction is that, at the end of the day, whether the museums or the Islamic Republic of Iran prevail on the ownership issue, the American judiciary will prove itself reluctant to liquidate these collections in order to satisfy the Rubin judgment. Perhaps the plaintiffs’ best bet is a settlement in which the museums and their parent universities in collaboration with the Iranian government resolve the ownership issues between and among themselves, and then that these assorted defendants jointly or severally settle with the plaintiffs, perhaps sharing the financial pain in proportion to their respective shares of the artifacts at issue. In any case, I would contend that the Rubin suits are a backhanded blessing to the universities holding these many, invaluable artifacts, as the litigations will do much to clear away the cloud that has hung over the museums for decades.
Two Postscripts
As the Persian-antiquity cases dragged on, in another part of the nation, another group of academic institutions were assisting the federal government in returning other antiquities to their country of origin:
ICE returns more than 60 pre-Columbian artifacts, gold pieces and emeralds to Colombian government

July 8, 2008
MIAMI- U.S. Immigration and Customs Enforcement (ICE) officials today returned more than 60 pre-Columbian artifacts to the Colombian government that were seized in 2005 following a joint investigation between ICE and the Broward Sheriff's Office (BSO).
The pre-Columbian era refers to a period preceding the exploration of the Americas by Christopher Columbus. The artifacts date as far back as 500 B.C.
ICE agents and BSO officers discovered the artifacts during the execution of three federal search warrants at various South Florida locations. The artifacts, which include ancient pottery, gold pieces and emeralds, were stolen from Colombia and illegally smuggled into the United States.
All of the artifacts were examined and authenticated by Florida International University (FIU) professor Dr. Carol Damian.
The emerald pieces, which were recovered from the Gemological Institute of America in San Diego, CA, were also studied by the University of Maine's Physics Department. The study was conducted to establish a baseline of the characteristics of the trace elements in the emeralds as measured by X-ray fluorescence to assist in the study of future pre-Columbian finds. The study determined that the measured emeralds were from the same source. Each emerald has tiny holes, which would indicate that they were drilled in order to create a necklace.

"Those who think that they can rob a nation of its cultural heritage to line their pockets are mistaken," said Anthony V. Mangione, ICE special agent-in-charge of the Office of Investigations in Miami. "We will continue working closely with our law enforcement partners and the U.S. Attorney's Office to bring these criminals to justice. Our message: These priceless items are not for sale."
"The U.S. Attorney's Office is pleased to have been involved in returning these precious artifacts to the people of Colombia," said U.S. Attorney R. Alexander Acosta. "These rare treasures of past civilizations should be enjoyed by everyone, not by a few who can pay to create private illegal collections."
"This should send a message to international criminals and looters that federal and local authorities in this country work together, whether the crimes are foreign or domestic," Sheriff Al Lamberti said.
"Colombia is proud of the cooperation that we have with the United States government and we are very happy with the repatriation of these important artifacts that are part of our cultural heritage," said Consul General Luis Ignacio Guzman. "We aim to keep working closely with the Department of State as well as with ICE to stop the illegal trafficking of pre-Columbian objects."
ICE agents arrested and charged 66-year-old Italian national Ugo Bagnato. The U.S. Attorney's Office for the Southern District of Florida handled the prosecution of the case. Bagnato pleaded guilty to the sale and receipt of stolen goods and served 17 months in federal prison.
Banato entered the country under the Visa Waiver Program, under which citizens of selected countries -- including Italy -- are allowed to enter the United States using a passport in lieu of a non-immigrant visa. He was deported to Italy in July 2007.

My second postscript concerns the fate of the thousands of antiquities pilfered in Baghdad following the American conquest of the city in 2003. Some seven thousand pieces are believed to have been looted, while the occupying forces focused on more pressing security matters in the fallen capital. In April 2008, some seven hundred items – roughly ten percent of what was taken – were recovered in Syria and returned to the Iraq National Museum. “This was a positive initiative taken by Syria, and we wish the same initiative to be taken by all neighboring countries,” Mohammad Abbas al-Oreibi, Iraq's acting state minister of tourism and archeology, was quoted as saying by the media. Al-Oreibi led the negotiations with Syria that led to the works’ return.
The last word… for now
What does a win for Rubin and her co-plaintiffs portend. I will let the March 2010 words of one knowledgeable observer of the case close this chapter (for now):
In addition to depriving Iranians of their cultural property, a decision to turn over the artifacts to the Rubin plaintiffs would have grave effects for the museums involved and cultural institutions in general. Four American institutions could be divested of objects currently in their collections and unable to use them for research purposes. In the case of the Oriental Institute, an opportunity to complete a ground-breaking research project that has been in process for over 70 years would be lost. The fallout from this case will also politicize art pieces and perhaps make countries think twice before sending their national treasures abroad for the purpose of scholarship – a potential problem for the entire museum and university community.
The use of the Iranian antiquities to satisfy the Rubin judgment could also put American cultural property at risk and cause foreign policy complications for the United States. The U.S. Government has filed several statements of interest with the court expressing these concerns. On June 6, 2006 Abbas Salimi-Namin, the former head of Iran’s Cultural Heritage and Tourism Organization sent a letter to the United Nations that illustrates the potential for problems. The missive demanded the immediate return of the tablets. While the Oriental Institute had previously enjoyed a good relationship with Iran based on a shared interest in gleaning knowledge from the tablets, the letter accused the museum of keeping the objects “on various grounds and pretexts” and ominously suggested that if the antiquities are turned over to the terror victims, American museums with objects in Iran would “face a similar measure from Tehran.”