Historic Recovered Chabad Document

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The Cutting EdgeFriday October 15 2010 reaching 1.4 million monthly

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After the Holocaust Back

Charismatic Jewish Group Wages International Legal Fight for ItsSpiritual SoulEdwin Black February 10th 2009

A charismatic religious Jewish group is inan international legal battle against theRussian Federation, literally fighting forits spiritual soul. At stake is the right topossess the precious archive and libraryof the orthodox Jewish group known asChabad.

The books and papers were plundered andfell from the movement’s control inEurope during the war-torn decades of thelast century. The story of how Russiacame to control the historic collections isnothing less than a chronicle of themystical Lubavitch Jews of Poland andRussia during the tempestuous events ofCzarist repression, the BolshevikRevolution, World Wars I and II, the ColdWar period, the disintegration of theSoviet Union and the rise of the modernRussian Federation. The story ofChabad’s efforts to reclaim their papers isa bitter saga spanning all those periods.

Remarkably, Chabad has achieved astunning legal victory—for now, thanks tothe persistent efforts of a legal teamheaded by the Washington law firm ofLewin and Lewin, LLP. Known for

championing Jewish causes— Nathan Lewin and Alyza Lewin -- sometimes called “attorneys for the Tribe,”worked together with attorneys from Howrey LLP and Bingham McCutchen LLP to obtained a rare federalcourt decision commanding Russia to preserve the books and documents and instructing Russia to provide theCourt with a written description of the steps it is taking to preserve the books and manuscripts.

The Court issued the unusual order after Chabad submitted evidence showing that 12 extremely valuable andsacred handwritten documents written by the Third Lubavitcher Rebbe were removed from the RussianMilitary Archive and transported to Jerusalem -- possibly for sale to collectors of Judaica. But few in the caseare confident. Pyrrhic victories in this case have been piling up for almost a century.

The disputed collection goes back to the Jewish movement’s origin in the 18th Century when the first“Lubavitcher Rebbe” emerged. The first Lubavitch Rebbe, Rabbi Schneur Zalman of Liadi, attracted followersin the much-disputed Eastern European regions, now known in the main as Poland and Russia. Six successorRebbes have continued his philosophy and spiritual devotions, stressing mind over emotion. Their collectedwisdom is largely enshrined in 381 manuscripts, 12,000 rare books and 25,000 handwritten archival documentsat heart of the dispute. The Lubavitch group is now represented by the Hassidic organization known as AgudasChasidei Chabad. Chabad argues that these collections represent “the most central wisdom, comprehension andknowledge” of the Lubavitch Rebbes, or spiritual leaders. Without those documents, Chabad is without itsspiritual soul. Indeed, the word “Chabad” itself is an acronym for the Hebrew words for “central wisdom,comprehension and knowledge.”

The story begins in 1915, during World War I, when the advancing German army was approaching Lubavitch

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in Russia. Rabbi Shalom Dov Baer (the “Fifth Rebbe”) fled with his family and followers, taking with him asmany of the key books and manuscripts as he could carry. He sent the balance of the books for safe keeping instorerooms belonging to the Persits family in Moscow. The Bolshevik revolution and the ensuing Civil Warprevented the Fifth Rebbe from ever accessing to his books again.

The Bolshevik revolutionaries seized the library in 1917. In 1924, the Union of Soviet Socialist Republics(USSR) took possession of the books, storing them at what is now known as the Russian State Library. Thebooks remain at that location today.

Rabbi Joseph Isaac Schneersohn, the “sixth Rebbe,” maintained and augmented the original archival collectionfor the benefit of the worldwide Lubavitch community. In 1927, the Soviets arrested the Sixth Rebbe,incarcerating him at Spalerno prison in Leningrad. There, he was interrogated, tortured, and sentenced to death.Under pressure from Western governments, Rabbi Schneersohn was permitted to leave the USSR in 1927 andsettle in Riga, Latvia, where he became a citizen. In 1933, he moved to Warsaw, Poland. The archivalcollection was carried with him when he settled in Latvia and again when he eventually settled in Poland. Infact, the USSR provided the Sixth Rebbe with documentation permitting him to take the archive documents,thus disavowing any ownership by the USSR.

World War II began at dawn on September 1, 1939 when Nazi Germany launched its infamous Blitzkriegagainst Poland, invading from the West. Seventeen days later, the Soviets attacked Poland from the East. TheSixth Rebbe remained in Warsaw throughout its bombardment and fall to Nazi Germany. With the intercessionof the U.S. Department of State and others, Rabbi Schneersohn was eventually given safe passage back toRiga, Latvia. From there, he relocated to Stockholm, and finally arrived in the United States on March 19,1940. Later, he became an American citizen.

When the Sixth Rebbe was rescued from Poland, he was unable to take the archive, and the preciousdocuments remained in Poland throughout World War II. The Soviet Army occupied eastern Poland fromSeptember 1939 until June 1941, when Nazi Germany attacked the USSR. Days after overrunning Auschwitzin mid-January 1945, the fast moving Soviet Army liberated Warsaw from Nazi Germany.

During Nazi Germany’s occupation of Poland, the Nazis looted and destroyed religious assets as part of itsgenocidal campaign to exterminate the Jews. Some iconic religious items however were preserved as trophies.

In the ashes of the 1945 liberation, and for decades thereafter, the fate of the Lubavitch archive remained amystery. However, in the 1970s, a portion of the archive was found in Poland and returned by the Polishgovernment to the group. Those recovered archival documents were sent to the organization’s central library inNew York. Chabad always believed the balance of the archival collection was taken by the Soviets as warbooty after World War II and transported for storage at the Russian Military Archive.

For decades, Russian authorities concealed the existence and whereabouts of the archive. For example, in 2000,the Russian Military Archive spurned Chabad’s request to inspect how much, if any, of its materials in Russianhands remained intact. Not until the 2003-2004 timeframe was Chabad able to confirm the existence andpresence of the archive.

Recent decades have seen a passionate intergovernmental and organizational effort to return the books anddocuments to Chabad. The effort began in 1933, at the dawn of Third Reich, when U.S. Senator Millard E.Tydings (MD) wrote to Secretary of State Cordell Hull asking him intervene with Soviet Ambassador MaximLitvinov about returning the library. It was to no avail.

In 1988, American industrialist Armand Hammer appealed to the USSR’s Minister of Culture Vasily G.Zakharov to return at least some of the library books to Chabad in New York as a good faith gesture during theglasnost period. Two and half years later, Armand Hammer made a similar request to Nikolai N. Guvenko, thenew Minister of Culture.

In 1991, Russian General Secretary Mikhail Gorbachev, through his special advisor, Alexander Yaakovlev,formally instructed the Russian State Library to return the books. This request was refused.

So Chabad petitioned the Russian State Arbitration Tribunal for a court order directing the return of its books.Eventually, Lubavitchers set up a 24-hour information station outside the Russian State Library and began aweeks-long prayer vigil. Shortly after the vigil commenced, a librarian from the Russian State Library providedthe Chabad protestors with evidence showing that some of the books in the Library had been destroyed whilein its possession. The vigil persisted until about September 26, 1991, when the Russian Court finally issued anorder to the Russian State Library directing it to sequester and protect the collection until its rightful ownercould be determined.

On October 8, 1991, a three-judge panel of the Russian court held that the library collection legally belonged tothe Chabad community. Russian State Library officials were directed to return the Library to the rightfulChabad owners within a month. But the Russian Federation and the Russian State Library appealed the order tothe Russian Supreme Court. Legal observers suggest the Russians worried that such a return would create anirreversible precedent that could lead to the returns of countless assets from Czarist treasures to East Germanproperties.

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During the appeal, the Russian State Library refused to comply with the lower court’s order. On about October14, 1991, the Moscow Marshals rebuffed a request to assist a Chabad delegation’s effort to obtain complianceand reclaim the books. A virtually extralegal stalemate existed.

Chabad won again when in November of 1991, the Russian Supreme Court ruled that the Russia nevernationalized the Library. Therefore, its books were not state property. The Russian Supreme Court concurredwith the lower court ruling, again ordering the Russian State Library to transfer the collection. On November20, 1991, Russian State Library staff members reacted to the order of the Russian Supreme Court order bytaunting the waiting Chabad delegation with anti-Semitic slurs and threats of violence. That evening, some 30baton-wielding officers of “the library police” attacked the Chabadniks and its supporters. The saga continued. In January 1992, Russia’s deputy chairman also ordered the Russian State Library to handthe disputed library over to the Chabad delegation. That same day, a group of hooligans again confrontedmembers of the Chabad in Moscow with anti-Semitic signs. The director of Russian State Library’s manuscriptdepartment even joined the fracas, inciting the crowd by shouting death threats through a bullhorn. Russianhooligans also distributed a newspaper accusing Jews of ritual murder. The next day a larger crowd assemblednear the Russian State Library again shouting anti-Semitic slogans and carrying signs condemning Chabaddelegation leader Rabbi Kogan to death. When the shouting died down, the Russian State Library declared itwould still refuse all court orders and keep control of the books.

In mid-February 1992, Russian President Boris Yeltsin personally promised then United States Secretary ofState James Baker that the library books would finally be returned to Chabad. But no books were ever released.Later in February of that year, several U.S. Senators including Bob Dole (KS), Al Gore (TN), and JosephLieberman (CT) wrote additional letters to Supreme Soviet Chairman Ruslan Khasulatov, once againrequesting the return of Chabad’s library. By May of 1992, all 100 U.S. Senators signed a letter adopting aState Department statement asking President Yeltsin to fulfill his promise and return the library. But the booksremained in Moscow.

That latest refusal led 16 U.S. Senators to jointly appeal to President Yeltsin reminding him of letterspreviously sent by every member of the Senate and over 130 members of the House of Representatives. Still,the Russians held fast. Later in 1992, President Bill Clinton pressed President Yeltsin for the return of theLibrary, to no avail.

Ironically, shortly after Clinton’s appeal to Yeltsin, the Russian government surprised everyone by issuing adecree “canceling” the orders of the Russian Supreme Court, and prohibiting the return of the library. TheRussian governmental decree claimed that the Russian state was the actual owner of expropriated Jewishbooks.

In response, Congress enacted the Freedom Support Act in October, 1992. Section 202 of the Act prohibitsassistance—other than humanitarian assistance—to a governmental entity in certain situations where there hasbeen a failure to comply with a final court judgment that the entity is unlawfully withholding books or otherdocuments of historical significance that are the property of United States persons. Days later, U.S. Secretaryof State Lawrence Eagleburger certified that the Russian State Library was in violation of the Freedom SupportAct because of its refusal to return the library. The Russian State Library was deemed ineligible from receivingany U.S. financial assistance or cooperation. In short, it was declared bibliotheca non grata.

Years later, the matter came to the attention of President Vladimir Putin. To help resolve the matter, Putinordered that token volumes from the collection be returned. However, for the past two years, Chabad has beendenied further access, and its recovery attempt has been continuously stymied.

In recent years, the law firms of Lewin and Lewin LLP, Howrey LLP, and Bingham McCutchen LLP throughlawyers Nathan Lewin and Alyza Lewin, W. Bradford Reynolds, Marshall Grossman and Seth Gerber enteredthe fray. Nathan Lewin is known for such international jurisprudence, including a huge damage award in alawsuit for damages from charities that provide financial assistance to Hamas.

Recently, Chabad discovered that 12 valuable, sacred handwritten documents written by the Third LubavitcherRebbe were removed from the Russian Military Archive and transported to Jerusalem – perhaps for sale tocollectors of such Judaica. That prompted a request to the U.S. court hearing the case to require Russia to getthose documents back and restore them to the Russian Military Archive.

In response to Chabad’s motion, Chief Judge Royce Lamberth issued a rare U.S. federal court order requiringthe Russian Federation, the Russian State Library, and the Russian Military Archives to preserve the preciousbooks and historical writings. Moreover, the federal court warned that if Russia deliberately flouts the order,the Court may require Russia to allow a team of Chabad experts to examine the archival documents and bookseven before final disposition is achieved. Although Russia litigated vigorously in the federal trial and appellatecourts, it has refused to communicate with its American lawyers after it lost a major decision in the UnitedStates Court of Appeals. Russia’s lawyers—a major law firm named Squire, Sanders & Dempsey—have askedto withdraw from the case. The Court gave Russia 45 days to retain new counsel and informed Russia that if itfails to find new counsel, the Court will enter a default judgment in favor of Chabad.

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If Chabad prevails, the ruling could have a far-reaching impact on governments of all casts that have seizeddocuments, libraries and other possessions as part of occupation, revolution, plunder, or decree during the pastcenturies.

A new showdown is expected. For now Chabad, with a federal ruling in hand, has scored a victory in its legalstruggle. But the group has been winning for some ninety years and still has never reclaimed its papers andbooks. “Those precious writings,” says attorney Nathan Lewin, “represent the very spiritual soul of the group.”

Hence, the litigation is not so much about valuable papers and volumes as much as ideas and philosophies thatsome would argue stretch back to the 18th Century, and many would insist reaches back to time immemorial.

Edwin Black is the author of IBM and the Holocaust, and the just-released Nazi Nexus.

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