In a recent court filing, the Justice Department argued that judicial sanctions against Russia in this case would be contrary to US foreign policy interests and inconsistent with US law.
The Jewish group, Chabad-Lubavitch, based in the Brooklyn borough of New York City, has already convinced Chief Judge Royce Lamberth of the US District Court here that it has a valid claim to the tens of thousands of religious books and manuscripts, some up to 500 years old, which record the group's core teachings and traditions.
Lamberth ruled the records are unlawfully possessed by the Russian State Library and the Russian military archive. And in 2010, he ordered the Russian government to turn them over to the US embassy in Moscow or to the group's representative.
Russia, which doesn't recognize the authority of the US court, has refused. It says the collection is part of Russia's national heritage.
Chabad's lawsuit and earlier rulings in the case by Lamberth have already had unintended consequences: Russia has completely halted the loan of its art treasures for exhibit in the United States, for fear that they will be seized and held hostage in the court battle.
Lamberth is known for issuing largely unenforceable multimillion-dollar judgments against foreign governments he believes are hostile to this country and have harmed US citizens, but last year he granted Chabad permission to seek attachment of Russian property in the US So far, the group has not done so.
Lamberth also is currently weighing Chabad's motion to hold Russia in civil contempt of court and impose fines of at least $25,000 a day.
Alarmed at the prospect of having its property seized, Russia has refused to loan any art to this country for exhibitions, even though Chabad has said in court filings that it will not go after any art deemed culturally significant by the State Department – which is the case for major exhibitions. Such art is already protected from legal claims under the Immunity from Seizure Act.
But Yevgeniy Khorishko, a Russian embassy spokesman in Washington, said that law is limited in scope.
"Moreover, it is US national law, while we would like to have some kind of international obligations to ensure the return of our cultural objects on the part of the US," he said in an email. "As for the Chabad's statement, we don't regard it as a sufficient guarantee. Taking into account the 2010 court judgment, we cannot exclude other unpredictable decisions by US courts or administrative bodies."
At issue are two collections: 12,000 religious books and manuscripts seized during the Bolshevik revolution and the Russian Civil War nearly a century ago; and 25,000 pages of handwritten teachings and other writings of religious leaders stolen by Nazi Germany during World War II, then transferred by the Soviet Red Army as war booty to the Russian State Military Archive.
It's doubtful Russia will pay
Chabad-Lubavitch, a Hasidic movement within orthodox Judaism, is estimated to have more than 200,000 adherents and to draw perhaps a million to some of its services in about 70 countries It was founded in the late 1700s in Eastern Europe, and has been led through its history by seven "Rebbes," who amassed the books and writings. The group was incorporated in New York City in 1940.
In its filing, the Justice Department said that Chabad's bid for sanctions is precluded by the Foreign Sovereign Immunities Act. The department argues that this law doesn't allow a court to compel compliance with an order for property held by a foreign state within the state's own territory.
The department added that even if sanctions were allowed, the judge should not issue them "in order to avoid damage to foreign policy interests of the United States."
Court-ordered sanctions in this case would be so far removed from international norms, the department said, "that any foreign government would oppose it. Such an order would risk significant criticism from the international community, and would likely be resisted in this or other cases involving foreign sovereigns."
And the department said that civil sanctions would undermine diplomatic and other efforts, dating as far back as 1933, by administrations and members of Congress of both parties, to get the collections returned.
In a statement, Chabad said that the DOJ filing "unjustifiably seeks to obstruct Chabad's legal effort to retrieve sacred Jewish documents held by Russia in violation of international law." Chabad said Justice misconstrues precedents under the Foreign Sovereign Immunities Act. Chabad will file its formal response later this month.
If sanctions were assessed, it's doubtful Russia would pay them.
Asked how his country would respond to sanctions, Khorishko, the Russian embassy spokesman, said, "Let us first wait for the judge's decision. We hope that the US court will not take a decision, which would so blatantly violate international law of sovereign immunity."
In 1992 and 2005, all 100 US senators wrote the Russian government requesting the materials be returned, but to no avail. According to court papers, Russian President Boris Yeltsin once gave an explicit assurance to President George H.W. Bush's Secretary of State James Baker that the Russian government would return the materials to Chabad.
In an email, Baker's office said that the former secretary of state recalls bringing up the matter with either Soviet or Russian leadership – or possibly both.
"He seems to recall that he was told that the documents would be returned," the office said.
Khorishko said he doesn't have confirmation of that promise.
"Anyway, like in the United States, promises, even if they were made by presidents, cannot replace or change laws," he said.