Bennett v. Islamic Republic of Iran ( 2009 )

THE UNlTED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL BENNETT
and LINDA BENNETT
Individually and as Co-AdminiStrator
of the Estate of MARLA ANN BENNETT
Praimiffs, 03-Cv-14s6 (RCL)
V.
THE ISLAMIC REPUBLIC OF IRAN,
et al.,
\J\./&/\_/§/\J\_/§/\/\)\./\J\_/\J
Defendants.
MEMORANDUM OPINION
'l``he United States has moved to quash five writs of attachment issued against properties
belonging to the Islamic Republic of Iran. Dk. # 34, These properties largely comprise the
former Iranian Embassy compound here in Washington, D.C. This includes the former
Ambassador’s residence, Iran’s former Embassy Chancery, as well as a separate diplomatic
residence, and two parking lots.' Plaintiffs obtained the writs attaching these properties of Iran
' The five properties at issue are identified as 3003 Massachusetts Avenue, NW; 3005
Massachusetts Avenue, NW; 34l0 Garfield Street, NW; Lot 8, Square 2145, NW; and Lot 0820,
Square 2145, NW. See Dk. #s 26-3 l. These five properties are described in some detail in the
written declaration of Mr. Claude J. Nebel, dated July ll, 2008. See Dk. # 34, Exh. l. At the
time of the declaration, Mr. Nebel was Deputy Assistant Secretary for Diplomatic Security and
Deputy Director of the Office of Foreign Missions for the State Department. The United States
relies on Deputy Assistant Secretary Nebel’s declaration in support of its motion to quash the
five writs of attachment. According to the declaration: The property at 3003 Massachusetts
Avenue, NW was the residence of Iran’s Ambassador. The property at 3500 Massachusetts
Avenue, NW served as the Embassy Chancery. The property at 34l0 Garfield Street, NW was
used as a diplomatic residence of the Embassy. The properties identified as Lot 8, Square 2145,
NW and Lot 0820, Square 2145, NW were both part of the Iranian Embassy compound and
functioned primarily as parking lots for the Iranian Embassy. Iran owns all the properties at
l
in an effort to satisfy a judgment they received in an action pursuant to the 28 U,S.C. §
l605(a)(7), the state sponsor of terrorism exception to sovereign irnmunity. See Dk. #s 20-22.
For the reasons expressed herein, the Court will grant the Government’s motion to quash the
writs of attachment.
Facts and Procedural History
Marla Ann Bennett, an American citizen and resident of Califomia, was just 24 years old
when she was murdered by terrorists. She was killed when Hamas operatives detonated a bomb
inside a cafeteria at the Hebrew University in Jerusalem in July of 2002. In an effort to achieve
some measure of justice, Marla’s parents brought a civil action against Iran and its Ministry of
Information and Security (MOIS) under § l605(a)(7). The Bennetts demonstrated through
evidence satisfactory to this Court, see § l608(e), that Iran and its MOIS provided material
support to Hamas in furtherance of terrorist objectives. See Bennett v. Islamz``c Republic of Iran,
507 F. Supp. 2d ll7 (D.D.C. 2007) (Lamberth, J.). Plaintiffs were awarded a judgment in excess
of 12 million dollars. To date, that judgment remains unsatisfied.
In an effort to execute their judgment against Iran, plaintiffs procured the writs of
attachment on the properties at issue in this case. Due to the manner in which plaintiffs attached
these former diplomatic properties, however, this matter has a strange and somewhat tortured
procedural history. Contrary to the usual procedure for the issuance of writs attachment, in
which the request is handled directly by the Clerk’s office in accordance with long-standing
procedures established by this Court, plaintiffs’ counsel instead filed a separate motion
issue and the majority of them were purchased by the Govemment of Iran in 1959.
requesting that this Judge specifically order the Clerk of Court to issue the five writs. See Dk. #
22. Plaintiffs’ counsel later filed a supplemental memorandum in support of the motion for writs
of attachment. See Dk. # 24. In that memorandum, counsel observes that in Flatow v. Islamz``c
Republic of Iran this Judge quashed five writs of attachment on some of the very same properties
at issue here. See Dk. # 24 at p. 2 (citing 76 F. Supp. 2d 16 (D.D.C. 1999) (Lamberth, J.))z
Counsel argues, however, that both the relevant facts and the applicable law have changed since
that decision in Flatow and, as a result of those changes, Iran’s properties here in Washington are
no longer immune from attachment. See id at 2-7.
At the time plaintiffs’ supplemental memorandum was filed, the United States had not
yet entered an appearance in this action, let alone moved to quash plaintiffs’ writs of attachment.
Nonetheless, plaintiffs’ counsel suggests in his supplemental memorandum that the United States
does not have standing to move this Court to quash writs of attachment issued against Iran’s
former embassy properties, notwithstanding the fact that it was the United States that
successfully moved to quash the writs in Flatow. See Dk. # 24, p. 7-10. Counsel’s argument
relies heavily - if not exclusively - on Rubz``n v. Islamz``c of Iran, a case from the Northern District
of Illinois in which the court held that the University of Chicago did not have standing to
challenge writs of attachments issued against collections of Persian artifacts on loan to the
2 The decision in Flatow involved three of the properties at issue today -- 3003
Massachusetts Avenue, NW, 3005 Massachusetts Avenue, NW, and 34l0 Garfield Street, NW -
as well as one other Iranian property, 2954 Upton Street, NW. See 76 F.Supp. 2d at l9, n.3. Just
four years later, this Judge again quashed writs of attachment on those very same properties and
issued a short, unpublished opinion in the matter. See Elahz' v. Islamic Republic of Iran, 99-cv-
02802 (D.D.C. 2003) (Lamberth, J.).
university from Iran. See id (citing 408 F. Supp. 2d 549 (N.D. Ill. 2005)).3
Plaintiffs’ counsel ultimately withdrew his motion for an order to issue of writs of
attachment, but the writs of attachment were issued by the Clerk of the Court about a week later
on April l, 2008. See Dk. # 26. Counsel subsequently filed executed returns on the writs on
June 5, 2008. See Dk. #s 27-3l. Accordingly, the record suggests that the plaintiffs’ counsel
withdrew the motion in order to procure the writs through the Clerk’s office in accordance with
the normal and long-established procedures of this Court, While this Court normally does not
consider motions or other matters that have been withdraw by counsel, this Court will
nonetheless accept the withdrawn motion and supplemental memorandum for the limited
purpose of establishing that counsel believed he had some good faith basis for procuring writs of
attachment against former diplomatic properties of Iran.
Undeterred by plaintiffs’ peremptory arguments, the United States moved to quash all
five writs of attachment on July 18, 2008. See Dk. # 34. Plaintiffs filed their opposition in a
timely manner and the United States timely filed its reply. See Dk. #s 35 & 36. More than two
months later, however, and without leave of the Court, plaintiff filed another supplemental
memorandum and several exhibits as additional support for their opposition to the Government’s
motion to quash. Dk. # 37. The Govemment then filed a response to the plaintiffs’
supplemental memorandum four days later on October 2l, 2008. See Dk. # 40. In that response,
3 Counsel also included the following rhetoric: "The argument that pandering to a
terrorist is in the best interest of the United States falls on the sale of reason somewhere between
illogical and insulting. We would all hope that there is no close relationship between any
American Administration and the world’s leading supporter of terrorism." Dk. 24 at p. l0.
Perhaps such rhetoric was intended to deter the United States from getting involved in this
litigation At any rate, it seems uncessary and, as will be emphasized below, completely
mischaracterizes the nature of the interests the United States has at stake in these matters.
4
the Govemment requests that plaintiffs’ supplemental filing be struck from the record or
disregarded.
Arguments of the Parties
The United States
The United States argues that plaintiffs’ writs of attachment must be quashed because the
properties at issue are immune from attachment in light of several important legal authorities.
The United States calls this Court’s attention to the Vienna Convention on Diplomatic Relations
(Vienna Convention), 23 U.S.T. 3227, T.I.A.S. No. 7502 (1972), the Foreign Missions Act, 22
U.S.C. §§ 430l, et seq., the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § § l602, et.
seq., the Terrorism Risk Insurance Act (TRIA), Pub. L. No. 107-297, Title II, § 20l (Nov. 26,
2002), codified as 28 U.S.C. § l6l0 Note, and several Executive Orders and Federal Regulations
relating to properties belonging to Iran in the United States. See Dk. #34. The Government
emphasizes that the United States is now holding the former diplomatic properties of Iran in
protective custody pursuant to the terms of the Foreign Missions Act and consistent with the
F ederal Government’s obligations under the Vienna Convention. See Ia' at p. l, 8-10, Exh. l.
The United States claims that, in order to fulfill its responsibilities under the Vienna Convention
and Foreign Missions Act, the State Department’s Office of Foreign Missions (OFM) has
periodically leased Iran’s properties to other foreign governments or to private parties and has
used the income derived from those rentals to fund necessary maintenance and repairs of the
properties. See Dk. 34 at p. l0.
In light of its multilateral treaty and statutory obligations, as well as the overall
importance of the foreign policy interests presented here, the United States stresses that it
therefore has at least two independent bases on which it may assert standing in this action. First,
the Government relies on 28 U.S.C. § 5l7, which vests the Attorney General with broad
authority "to send any officer of the Department of Justice to ‘attend to the interests of the
United States in a suit pending in a court of the United States.’” Id at p. ll. Second, the United
States argues that, regardless of the scope of any statutory authority provided under 28 U.S.C. §
5 l 7, long-standing case precedent establishes that the Federal Government has standing to assert
and protect its own important foreign policy interests. See Id. See also Dk. # 36 at p. l-5.
The Govemment observes that on at least two prior occasions this Court determined that
the very properties at issue here are immune from attachment, See Id at p. 20-21 (citing Flatow,
274 F. Supp. 2d 18; Mousa v. Islamz``c Republic of[ran, 00-cv-2096 (D.D.C. 2003) (Bryant, J.)).
According to the Government there’s been no subsequent change in the applicable facts or law
the would render those properties subject to attachment now. See z``d. at l3-2l; Dk. # 36, p. 6-7.
In particular, the Government emphasizes that Congress did not intend that the enactment of §
1083 of the 2008 NDAA and the new state sponsor of terrorism exception l605A to allow for the
attachment of diplomatic properties. See Dk. # 34 at p.l3-l6.
Finally, the Govemment asks that this Court strike or otherwise disregard plaintiffs
supplemental filings in this matter. See Dk. # 40. The United States emphasizes that the
supplemental materials were filed in contravention of the local rules without leave of the Court,
and that, in any event, the materials are not relevant to this dispute. See z``d.
Plaintiffs Michael and Linda Bennett
Plaintiffs’ primary argument is the United States does not have standing to challenge the
writs of attachment issued against Iran’s former diplomatic properties. See Dk. 35 at p. l-5. In
plaintiffs’ brief that is heavy on rhetoric, counsel is largely dismissive of the United States’
position, asserting that it is "insulting to the intelligence of the American people." Id at p. 4.
Plaintiffs’ counsel cast the United States as effectively mounting a defense of Iran, and argues
that the United States should be precluded from doing so in this case because Iran has proven
more than capable of defending itself in actions in this district and in other federal courts
throughout the country. Id at 2-5. Counsel again relies on Rubin v. Islamic Republic of Iran, a
case pending in Chicago in which the federal district court there determined that certain private
litigants - the University of Chicago and others - do not have standing to assert sovereign
immunity in an action in which certain judgment-creditors of Iran are seeking attachment or
execution of certain artifacts on loan from Iran to the University of Chicago. See Dk. 35 at p. 2-
5.
On the merits, plaintiffs claim that neither the Vienna Convention nor the Foreign
Missions Act precludes attachment of properties once used for diplomatic purposes when, as
here, the United States and the foreign nation no longer maintain formal diplomatic relations and
the properties at issue are unoccupied and have fallen into disuse and disrepair. See id. at p. 5-8.
Indeed, counsel alleges that the former embassy properties at issue in this case are currently in
such a state of disuse and disrepair that the properties are not capable of being used for
diplomatic purposes and therefore offer nothing more than investment value. See id at p. 6-9.
Moreover, plaintiffs suggest that to the extent that the State Department might have either the
legal obligation or the authority to assert custody and control over a foreign mission properties,
the current state of disrepair of Iran’s former embassy properties shows that the United States
has completely abdicated its responsibility in this case. Accordingly, in plaintiffs’ view, the
properties should now, at a minimum, be subject to attachment under the commercial activities
exception to the FSIA. See id at 7-l0.
Plaintiffs also assert that, regardless of whether Iran’s properties in this case might
ordinarily be entitled to diplomatic protection or some other immunity from attachment, recent
changes to the FSIA - specifically, the sweeping changes enacted through § 1038 of the NDAA
last year - render diplomatic properties of state sponsors of terrorism subject to attachment and
execution. Plaintiffs argue that for the purpose of attaching Iran’s property, it does not matter
that their action falls under the prior version of the state sponsor of terrorism exception, §
l605(a)(7), rather than § l605A, because in plaintiffs’ view, the new law simply strips away any
immunity from attachment or execution that the diplomatic properties of terrorist nations might
have otherwise enjoyed.
More than two months after the conclusion of briefing on this matter, plaintiffs filed a
supplemental memorandum and exhibits in an apparent effort to bolster their position that the
properties Iran once used for its embassy here in Washington are no longer immune from
attachment. See Dk. # 37. The memorandum, which was filed without leave of the Court,
summarizes plaintiffs’ failed attempts to obtain information from the Department of State
regarding the leasing and maintenance of the properties as issue, as well as other information
concerning discussions between the United States and Iran regarding the status of Iran embassy
properties.“
The remainder of the supplemental memorandum simply summarizes the testimony
provided in two supplemental exhibits. The first exhibit is a transcript of deposition testimony of
a witness who claims that the former United States embassy in Tehran, Iran has been used as a
school for Iran’s Revolutionary Guards sometime within the last three years. See Dk. # 37 at p.
3 & Exh. F. The relevance of this testimony is not apparent and no explanation is proffered by
plaintiffs’ counsel. Perhaps plaintiff means to suggest that Iran is in material breach of its
obligations under the Vienna Convention, and that therefore the United States is no longer
obligated to protect Iran’s former diplomatic properties here in the United States. The second
exhibit included with the supplement is a transcript of deposition testimony of a witness who
claims he is a construction worker who once worked on the buildings located on the properties
now subject to plaintiffs’ writs of attachment, See Dk. # 37 at p. 3 & Exh. G. The witness’
testimony largely supports plaintiffs’ assertions that former diplomatic properties are not
currently in use and have fallen into various states of disrepair.§
4 Plaintiffs issued a subpoena to the State Department for this information, but the
Department, by written letter, declined to comply. See Dk. # 37. T he Department noted, among
other objections, that plaintiffs’ subpoena is procedurally defective, unduly burdensome, and that
the information requested is irrelevant to this dispute. See Dk #37 & Exh. 4; Dk. 40 at p. 3-4.
F or the reasons discussed below, this Court finds that the information plaintiffs requested from
the Department of State is irrelevant to the issue of whether this Court must quash the writs of
attachment.
5 In summarizing the relevance of the construction worker’s testimony, counsel states as
follows:
The testimony demonstrates that the buildings located on the
properties at 3003 Massachusetts Avenue, 30005 Massachusetts
Avenue and 34l0 Garfield Street are not in use at all and therefore
have value only as investment property. The other pieces, never
legally joined to the real property on which the three buildings at those
9
This Court will address each of the arguments of the parties in tum. Before proceeding
to analysis of those arguments, however, the Court believes it is important to provide the legal
and factual backdrop that is essential to an understanding of the issues involved in this dispute.
A decade has passed since this Court first ruled, in the case of Flatow v. Islamic Republic of
Iran, that the former embassy properties at issue here today are not subject to attachment and
execution under the FSIA. Both plaintiffs and the United States have identified a number of
developments in the law relating to this matter since that decision. While this Court is not
convinced that there is has been any change in the law that would require a different outcome in
this case, it is with sincere respect for the plaintiffs in this action, that this Court will briefly
review the controlling legal authorities, as well as the key facts conceming diplomatic relations
between the United States and Iran, in order to examine carefully whether the relief denied to the
Flatows ten years ago should be available to the Bennetts today
Discussion of Legal and Factual Background Concerning the Former Iranian Embassy
Properties here in Washington, D.C.
There are basically five sources of law that are central to the resolution this dispute. The
first source of law that undergirds this whole matter is the Vienna Convention on Diplomatic
Relations. The second is the Foreign Missions Act, which in certain critical respects serves to
addresses above were located, were vacant lots and never had any
known use and therefore could not be diplomatic property in
accordance with Article 22 of the Vienna Convention on Diplomatic
Relations. The properties are not exempt from attachment upon the
judgment entered against Defendant, Iran.
Dk. # 37 at p. 4.
10
implement the United States’ obligations under the Vienna Convention. The third source is the
Foreign Sovereign Immunities Act, § § 1609, l6l0, including the key amendments made
pursuant to the Terrorism Risk Insurance Act, which fumishes a number of exceptions to the
general rule that the property of a foreign sovereign is immune from attachment or execution.
The fourth key source of law in this sensitive foreign relations matter is the Executive Branch’s
official actions in response to the breakdown in diplomatic relations with Iran. This source of
legal authority includes both Executive Orders and statements issued by the United States to Iran
regarding the status of its mission properties here in the United States. Fifth, and finally, this
Court will review the few decisions of this Court and others that have addressed the issue of
whether Iran’s properties that are no longer being used by Iran for diplomatic purposes should
now be subject to attachment in execution in satisfaction of court judgments. A review of all
five of these sources demonstrates that the laws of the United States do not permit this Court to
sustain plaintiffs’ writs of attachment,
(1) T he Vienna Convention
In l972, the United States ratified the Vienna Convention on Diplomatic Relations. 23
U.S.T. 3227, T.I.A.S. No. 7502. Under the terms of that treaty, the United States, in its role as a
receiving state of foreign missions, is obligated to protect and respect the premises of any foreign
mission located within its sovereign territory. Article 22 of the Convention outlines the basic
responsibilities of a receiving state with respect to the property of a foreign mission. That
Article provides that the property of a foreign mission is "inviolable," and thus the receiving
state is under a "special duty to take all appropriate steps to protect the premises of the mission
ll
against any intrusion or damage." Moreover, "[t]he premises of the mission, their furnishings
and other property thereon and the means of transport of the mission shall be immune from
search, requisition, attachment, or execution. Article 22(3) (emphasis added).
Article 45 of the Vienna Convention makes clear that the obligation to protect and
respect the premises of a foreign mission survives even in cases in which diplomatic relations are
broken off, or in cases in which the mission is permanently recalled, and even during instances
of armed conflict. Article 45 states as follows
If diplomatic relations are broken off between two States, or if a mission is
permanently or temporarily recalled:
(a) the receiving State must, even in case of armed conf1ict, respect and protect
the premises of the mission, together with its property and archives;
(b) the sending State may entrust the custody of the premises of the mission,
together with its property and archives, to a third State acceptable to the
receiving State;
(c) the sending State may entrust the protection of its interests and those of its
nationals to a third State acceptable to the receiving State.
Thus, even during periods in which the United States is experiencing an extremely strained or
outright hostile relationship with a foreign nation, the United States remains obligated to protect
that nation’s diplomatic properties.
(2) T he Foreign Missions Act
The Foreign Mission Act, 22 U.S.C. § § 430l, et seq, vests the Department of State with
broad authority to make determinations with respect to the treatment accorded to foreign
missions here in the United States. Palestine Infor)natiozz Ojjice v. Shultz, 853 F.2d 932, 936
(D.C. Cir. 1988). Specifically, 22 U.S.C. § 4301(c) provides that:
12
The treatment to be accorded to a foreign mission in the United States shall be
determined by the Secretary after due consideration of the benefits, privileges, and
immunities provided to missions of the United States in the country or territory
represented by that foreign mission, as well as matters relating to the protection of
the interests of the United States.
The State Department "acts at the apex of its power" when it exercises its authority over
foreign missions here in the United States because "it wields the combined power of both the
executive and legislative branches." Palestine Information Ojj"z``ce, 853 F.2d at 937.
The foreign Mission Act expressly authorizes the Secretary of State to protect the
properties of foreign missions here in the United States even when those properties are not being
being used by a foreign power. Specifically, the Secretary of State may "protect and preserve
property of a foreign mission" when that "foreign mission has ceased conducting diplomatic,
consular, and other governmental activities in the United States and has not designated a
protecting power or other agent approved by the Secretary to be responsible for the property of
that foreign mission." § 4305(c). Thus, the former diplomatic properties here in the United
States are ultimately subject to the authority and control of the Secretary of State.
The Office of Foreign Missions (OFM) is the arm of the State Departrnent that acts
pursuant to the Secretary of State’s broad authority with respect to treatment and oversight of
foreign mission properties, including former diplomatic properties located here in the United
States. See 4303; Dk. 34, Exh. 1 at p. l-2. Consistent with the Vienna Convention, the Foreign
Mission Act also provides that foreign mission property within the control of the Department
State is not subject to attachment or execution. Section 4308(f) provides as follows:
Assets of or under the control of the Department of State, wherever situated, which
are used by or held for the use of a foreign mission shall not be subject to
attachment, execution, injunction, or similar process, whether immediate or final
13
(emphasis added).
Accordingly, the Foreign Mission Act reinforces the basic understanding that properties of a
foreign mission, including those that are not currently being used by a foreign mission, are
generally immune from attachment or execution.
(3) Foreign Sovereign Immunities Act, § § 1609, 1610, Including Provisions
Incorp0rated by the Terrorism Risk Insurance Act
The Foreign Sovereign Immunities Act, provides that the property of a foreign state is
generally immune from attachment or execution subject to a few, carefully delineated
exceptions. See 28 U.S.C. § § 1609, 1610. The exceptions to that immunity are found in §
1610. One well-established exception to the general rule of immunity from attachment or
execution is the so called "commercial activity" exception. See § 1610(a)(7); Republic of
Argentina v. Weltover, 504 U.S. 607 (1992). That exception provides that the property of a
foreign state is not immune from attachment or execution if the property at issue "is used for a
commercial activity" by the foreign State. § 1610(a)(7).
Congress has enacted an exception to immunity for any property belonging to
designated state sponsors of terrorism. See Pub. L. 105-277, Div. A., Title I, §. 117 (October
2 l , 1998).. That exception - now codified as § 1610 - would otherwise permit the attachment
of blocked assets of terrorist states, including former diplomatic properties, but Congress gave
the President express authority to waive the exception in the interest of national security, and
the President promptly executed the waiver upon signing the legislation into law. See Pres.
Deterrnination No. 99-1, 63 FR 59201. (1998).
A tenn later, Congress attempted to override the President’s waiver of § 1610(f) in the
14
Victims of Trafficking and Violence Protection Act (VTVPA) of 2000. See Pub. L. 106-386, §
2002, 114 Stat. 1541 (October 28, 2000), but Congress again included in the legislation
express authority for the President to waive § 16l0(f). The President immediately waived
§ 1610(f``)(1)(A) a second time upon signing the VTVPA into law, and thus § 1610 remains a
nullity. See Pres. Deterrnination No 2001-03, 65 Fed. Reg. 66483 (2000).
Congress and the President eventually reached an agreement with respect to the
attachment and execution of certain blocked assets of terrorist states, and enacted the
Terrorism Risk Insurance Act (TRIA) in 2002, a law that permits terrorism victims with
judgments under § 1605(a)(7) to satisfy their judgments for compensatory damages from
"blocked assets of terrorists, terrorist organizations, and State sponsors or terrorism." See
Pub.L. No. 107-297, Title II, 201 (Nov. 26 2002); now codified as 28 U.S.C. § 1610 Note.
Specifically, Section 201 of the TRIA provides that the blocked assets of a terrorist state
shall be subject to execution or attachment in aid of execution to satisjj) such judgment to the
extent of any compensatory damages for which such terrorist party has been adjudged liable
(emphasis added).
The definition of "blocked assets" under the TRIA, however, expressly excludes
"property subject to Vienna Convention on Diplomatic relations, or that enjoys equivalent
privileges and immunities under the law of the United States, being used for exclusively for
diplomatic or consular purposes." Section 201(d)(2)(B)(ii). The TRIA defines diplomatic and
consular property as follows:
The tenn "property subject to the Vienna Convention on Diplomatic Relations
or the Vienna Convention on Consular Relations" and the term "asset subject to the
Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular
Relations" mean any property or asset, respectively, the attachment in aid of
execution or execution of which would result in a violation of an obligation of the
15
United States under the Vienna Convention on Diplomatic Relations or the Vienna
Convention on Consular Relations, as the case may be.
Section 201 (d)(3).
Accordingly, properties subject to the Vienna Convention that are being held exclusively for
diplomatic purposes are not subject to attachment under the TRIA.
Last terrn, with the enactment of the § 1083 of the 2008 National Defense Appropriations
Act (NDAA), Congress implemented changes to the FSIA in an effort to clarify the
circumstances under which the property of a foreign state sponsor of terrorism is subject to
attachment and execution. See Pub. L. No. 110-181, 122 Stat. 3, § 1083. The result is now
codified as 28 USC. § l6l0(g). That new section provides:
(g) Property in certain actions. -
(1) In general. - Subj ect to paragraph (3), the property of a foreign state against which
a judgment is entered under section l605A, and the property of an agency or
instrumentality of such a state, including property that is a separate juridical entity
or is an interest held directly or indirectly in a separate j uridicial entity, is subject
to attachment in aid of execution, and execution, upon that judgment as provided
in this section, regardless of -
(A) the level of economic control over the property by the Govemment of the foreign
State;
(B) whether the profits of the property go to that govemment;
(C) the degree to which officials of that government manage the property or
otherwise control its daily affairs
(D) whether the govemment is the sole beneficiary in interest of the property; or
(E) whether establishing the property as a separate entity would entitle the foreign
state to benefits in United States Courts while avoiding its obligations.
Notably, § 16l0(g) is silent with respect to diplomatic properties; it makes no mention of
the Vienna Convention, the Foreign Mission Act, or the TRIA, and does not otherwise evince
16
an intent to allow for the attachment of diplomatic proprieties. Thus, even if the full scope or
application of § 161 0(g) is not entirely clear, a plain reading of the new enactment in now way
provides a sufficient basis for stripping away the immunity long afforded to diplomatic
property.
This plain reading and common sense understanding of the statute is reinforced by the
Conference Report to § l083, which strongly suggests that Congress did not intend for §
l6l0(g) to allow for attachment or execution of diplomatic properties. That Report states: "The
conferees intend that property used for purposes of maintaining a diplomatic of consular
mission or the residence of the Chief of Mission, which is not subject to execution or
attachment in aid of execution of a judgment, should not be subject to a lien of lis pendens
under this provision." See Conf. Rep. to H.R. l585, p. 10010 (December 6, 2007).
Accordingly, it appears that Congress drafted § l6l0(g) with the assumption that diplomatic
properties are not subject to attachment, Moreover, § l6l0(g), by its express terms, applies
only to "judgments entered under 1605A," and thus this new provision is not available to
plaintiffs, like the Bennetts in this action, who have judgments under § l605(a)(7),
(4) Executive Actions Pertaining to Iran ’s Foreign Mission Properties
Plaintiffs’ effort to attach properties that once served as the Iranian Embassy complex
directly implicates United States foreign policy, including sensitive national security concems,
and thus the status this Court should accord those properties, and, ultimately, the issue of
whether they should be subject to attachment, depends in large part on the policy decisions of
the President and other actions taken by the Executive Branch. As the Supreme Court has
recognized time and again, "[m]atters relating to the conduct of foreign relations . . are so
17
exclusively entrusted to the political branches of govemment as to be largely immune from
judicial inquiry or interference." Regan v. Wald, 468 U.S. 222, 242 (l984)(quoting Harisiades
v. Shaughnessy, 342 U.S. 580 (1952)). This is true particularly where, as here, Congress has
vested the State Department with sweeping authority to manage former diplomatic properties in
the United States. Palestine Information Ojj‘z``ce, 853 F.2d at 937; See Dames & Moore v.
Regan, 453 U.S. 654, 669 (1981). A review of the policy decisions in this area reveals in no
uncertain terms that the Executive Branch has consistently taken the position that properties
once used by the Iranian Foreign Mission should be protected under the Vienna Convention and
are therefore immune from attachment.
The relationship between Iran and the United States deteriorated as a result of the Iran
hostage crisis, which began on November 4, l979, when a large group of Islamist students
seized the American Embassy in Tehran and took all 52 members of the embassy staff as
hostages. In response to this crisis, President Carter issued an Executive Order blocking all
Iranian assets in the United States. Executive Order 12170, 44 FR 65729 (November 14, 1979).
At that time, Iran continued to use the properties of its foreign mission here in the United States,
including its diplomatic properties here in the Nation’s Capitol.°
6 For this portion of the opinion, the Court relies in large part on the declaration provided
to the Court by Claude J. Nebel while he was serving Deputy Assistant Secretary of State for
Diplomatic Security and Chief of the Office of Foreign Missions. That declaration as noted
above, supra, n.l , has been offered by the United States as an exhibit in support of its motion to
quash the writs of attachment, and is included as Exhibit 1 to the Govemment’s brief in support
of the motion to quash. See Dk. # 34, Exh. 1. The Court also relies on certain documents
fumished in connection with Deputy Assistant Secretary Nebel’s declaration and included as
separate exhibits to his declaration. These documents include compilations of statements and
directives of President Carter in connection with the termination of diplomatic relations with
Iran. The exhibits also include copies and secondary source compilations of diplomatic notes
and other Department of State correspondence relating to the severance of diplomatic relations
with Iran and the status of Iran’s Foreign Mission Properties in the United States. These
18
Approximately five months later, as the hostage crisis waned on, President Carter severed
diplomatic relations. ln accordance with the President’s directive, the Secretary of State, by
diplomatic note, infomred the Embassy of Iran on April 7, 1979 that all Iran’s diplomatic
properties were to be closed and sealed, except to the extent that such properties might be used,
with State Department approval, by a designated protecting power for Iran.
About a year later, on April 14, 1980, Algeria was approved by the State Department as
the protecting power for Iranian interests in the United States.7 At that time, however, the
Department of State informed Algeria that the United States would retain custody of Iran’s
diplomatic premises until the United States, or its Protecting Power, regained custody of the
American embassy in Tehran. The State Department later stressed that its refusal to tum over
Iranian diplomatic properties to Algeria, "was a reciprocal action taken in response to Iran’s
breach of its obligations under the Vienna Contention to respect and protect the diplomatic and
consular properties of the United States and to pennit Switzerland, the United States Protecting
Power in Iran, to assume custody of those properties." Dk. # 34, Exh. 1 at p. 4.
Thus, the State Department asserted control over Iran’s diplomatic properties here in the
United States and Algeria was never authorized to take custody of Iran’s diplomatic properties,
miscellaneous source materials are included in the record as exhibits with Deputy Assistant
Secretary Nebel’s declaration The plaintiffs have not challenged Deputy Assistant Secretary
Nebel’s declaration or any of the documentary exhibits included therewith. Moreover, the
declaration underscores points that the plaintiffs apparently believe are relevant to this dispute,
namely, that the buildings on the properties at issue are not occupied and are in need of repair.
See id. at p. 6-8. F or purposes of this opinion, the Court will assume the truth of plaintiffs’
assertion that the buildings on Iran’s properties are "not adequately cared for, are not rented, and
are in need of rehabilitation." Dk. # 35 at p. 7.
7 Algeria served initially as Iran’s Protecting Power for Iranian interests in the United
States. Pakistan now serves that role.
19
In response to concems expressed by Algeria regarding the security and upkeep of Iran’s
diplomatic properties, the State Department assured Algeria that it would take appropriate
measures ensure the safety and protection of Iran’s diplomatic properties within the United
States. See Dk. # 34, Exh. 1 at p. 3.
In 1982, Congress passed the Foreign Missions Act, which as noted above established the
Office of Foreign Missions and formalized the State Department’s authority and
responsibilities with respect to diplomatic properties in the United States. After considering
ways to maintain Iran’s official properties consistent with the Vienna Convention, OFM
eventually decided that, to the extent possible, it would rent Iran’s properties
in furtherance of its obligations to protect those properties under the Vienna Convention. The
State Department, which was then under the administration of President Ronald Reagan,
promptly informed Algeria of its decision by diplomatic note, dated March 10, 1983. That note
reads in pertinent parts as follows:
Since assuming custody of the Iranian properties following the break in diplomatic
relations, the Department has undertaken to respect and protect them in accordance
with Article 45 of the Vienna Convention on Diplomatic Relations.
. . . .The Department considers that rental would protect Iran’s interest in these
properties by ensuring maintenance of their commercial value.
lt would be appreciated if the Embassy of the Democratic and Popular republic
of Algeria Could transmit the foregoing message to the Govemment of the lslamic
Republic of Iran as soon as feasible.
Department of State, Washington, March 10, 19838
Since 1983, OFM has periodically rented Iran’s diplomatic properties to both foreign states and
8 Th Diplomatic Note is included with the materials attached as exhibits to Deputy
Secretary Nebel’s Declaration. See Dk. # 34, Exh 1 to Exh l.
20
states private parties. For instance, the Embassy building and the diplomatic residence on
Garfield Street have been rented out to private tenants over the years; Iran’s former Chancery at
3005 Massachusetts Avenue was rented out to Turkey for a period of time; and the parking lots
have been rented out periodically to other foreign missions or private parties. Id at p. 6-8.
At the moment, however, the properties are not being rented and the buildings on the properties
are in need of repair. ld; Dk. # 35 at p. 7
According to Deputy Assistant Secretary Nebel, the OFM’s "actions in connection with the
maintenance and rental of Iran’s diplomatic and consular property have been and to be taken
exclusively for diplomatic and consular purposes as such actions are in furtherance of
obligations of the United States, as the receiving State, to protect the property pursuant to the
Vienna Conventions." Id at p. 5. The proceeds from the rental of the properties are used to
maintain and repair the properties and any excess funds "are deposited in a blocked Iranian
diplomatic account and not used for any other purpose." Id.
Notably, OFM "protects and preserves the Iranian diplomatic properties in a manner
consistent with the offices’s management of other countries’ diplomatic properties when, in the
absence of diplomatic relations, custody has not been tumed over to a protecting power." Id at
p. 5. ln the l980s, for example, OFM renovated and rented out the diplomatic properties of
Vietnam and Cambodia. Since the United States resumed normal diplomatic relations with
those countries, both nations have retumed their foreign missions to their respective properties
here in the United States. Moreover, Assistant Deputy Secretary Nebel claims that, "as a direct
result of the actions of the United States protecting Vietnam’s properties during the absence of
relations and retuming those properties when relations resumed, Vietnam returned to the U.S.
numerous U.S. diplomatic properties in Vietnam." Id at p. 6
21
President Clinton, who norrnalized United States diplomatic relations with Vietnam, twice
executed waivers with respect to provisions of the FSIA that would have otherwise permitted
the attachment of diplomatic properties owned by state sponsors of terrorism, as explained above
When President Clinton first exercised his express waiver authority in order to protect
diplomatic properties of states sponsors of terrorism, the White House issued the
following statement:
[T]he Struggle to defeat terrorism would be weakened, not strengthened, by putting
into effect a provision of the Omnibus Appropriations Act for FY 1999. lt would
permit individuals who win court judgments against nations on the State
Department’s terrorist list to attach embassies and certain other properties of foreign
nations, despite U.S. laws and treaty obligations barring such attachment.
The new law allows the President to waive the provision in the interest of national
security interest of the United States. President Clinton signed the bill, and in the
interests of protecting America’s security, has exercised the waiver authority. lf the
U.S. permitted attachment of diplomatic properties, the other countries could
retaliate, placing our embassies and citizens overseas at grave risk. Our ability to use
foreign properties as leverage in foreign policy disputes would also be undermined.
Statement by the Press Secretary (October 21 , 1998) (reproduced in Suits Against
State Sponsors of T errorism, Congressional Research Serv. Rep. RL3 1258 at
p. 51 (updated August 8, 2008).
As the White House’s statement clearly indicates, the Clinton Administration feared that
permitting FSIA judgment-creditors to attach "embassies and certain other properties of foreign
nations" would undercut United States’ treaty obligations and have substantial negative
consequences with respect national security and foreign relations matters.
Last summer, the Justice Department, then under the control of the Bush administration
filed the pending motion to quash the five writs of attachment on Iran diplomatic properties
issued in this case on behalf of Michael and Linda Bennett and the Estate of their daughter,
22
Marla Ann Bennett. As Deputy Assistant Secretary Nebel’s declaration makes clear, the State
Department’s position then, and presumably now, is entirely consistent with the position taken
by the State Department throughout the preceding two decades during which the Department
has stressed, time and again, that Iran’s diplomatic properties are under the protective custody of
the OFM in accordance with the F ederal Govemment’s responsibility to respect and protect
protect those premises under Articles 22 and 45 of the Vienna Convention.
A review of the relevant Executive Branch decisions and actions since the termination of
diplomatic relations with Iran in 1980 reveals that there has been universal agreement - as
specifically expressed by at least four different Presidential administrations and through the more
than 30 years of continued preservation of Iranian diplomatic properties - that the protection of
these properties is an important foreign policy objective of the United States.
(5) Prior Decisions Regarding Efforts to Attach Iran Former Diplomatic Properties
As noted above, this case is not the first time that a judgment-creditor of Iran has sought to
attach properties that Iran formerly maintained for its diplomatic mission. lndeed, this Court
has ruled on three different occasions with respect to efforts to attach many of the very same
Iranian embassy properties that are now at issue in this case. See Flatow, 76 F.Supp. 2d 16;
Mousa v. Iran, 00-cv-2096 (D.D.C. 2003) (Bryant, J.)', Elahi v. Islmaic Republic of[ran, 99-cv-
02802 (D.D.C. 2003) (Lamberth, J). Moreover, a few other courts have had opportunity to pass
on similar efforts to attach Iranian diplomatic or consular properties within their respective
jurisdictions See Hegna v. Islamic Republic oflran, 376 F.3d 485 (5°" Cir. 2004); Hegna v.
Islamic Republic ofIran, 287 F. Supp. 2d 608 (D. Md. 2003).
Without exception, every court that has passed on the question has determined that the
23
properties Iran once used for diplomatic purposes here in the United States are not subject to
attachment or execution. ln Flatow, for example, this Court ruled that the commercial activity
exception to the FSIA, § l6l0(a)(7), does not permit the attachment of Iran’s real properties that
were once used for diplomatic purposes when these properties are held and maintained in
protective custody by the OFM.. 76 F. Supp. 2d at 23. Moreover, in an unpublished ruling in
Elahz', this Court determined that the attachment of these properties would violate multi-lateral
treaty obligations owed by the United States under both the Vienna Convention. 00-cv-02802, p.
2-3. Consequently, this Court ruled in that case that the TRlA had excluded these former
diplomatic properties from the definition of "blocked assets," and thus the properties maintained
their immunity from attachment under the FSIA. See Id. Judge Bryant of this Court, Judge
Motz of the District of Maryland, and the 5"‘ Circuit Court of Appeals have all reached the same
conclusion. See Hegna, 376 F.3d at 495-96,' Mousa, .00-cv-02096 at p. 8; Hegna, 287 F. Supp. 2d
608 at610-611.
Analysis
This Court’s review of the relevant legal sources - when considered in light of the Office of
Foreign Mission’s continued assertion of authority over Iran’s former diplomatic properties
under the Foreign Missions Act - leads to inescapable conclusion that the real properties at
issue are currently immune from attachment under the laws of the United States, and therefore
the Govemment’s motion to quash will be granted. With the preceding legal discussion as the
foundation for this Court’s decision, the Court will now briefly address the key arguments raised
by the parties during this litigation.
24
(1) T he United States Has standing to Move to Quash the Writs of Attachment
The plaintiffs’ argument that the United States lacks standing in this action is without
merit and essentially frivolous. This Circuit has consistently recognized that the United States
has standing to bring actions necessary to uphold its foreign policy obligations under
international agreements, particularly those relating to Iran. See e.g., Roeder v. Islamic
Republic of[ran, 333 F.3d 228, 233-34 (D.D.C. 2003); Persz``nger v. Islamic Republic oflran,
729 F.2d 835, 837 (D.C. Cir. 1984). lndeed, this Court has recognized on numerous occasions
that the United States has standing, pursuant to 28 § U.S.C. 517, to bring a motion to quash
writs of attachment issued against Iran foreign mission properties and other protected assets.
See e.g., Weinstein v. Islamic Republic ofIran, 274 F. Supp. 2d 53, 55 n.l (D.D.C. 2003)
(Lamberth, J.); Flatow, 76 F. Supp. 2d at 18 n.l. Moreover, longstanding Supreme Court
precedent establishes that the Attomey General has standing to initiate civil litigation in order to
uphold United States foreign policy obligations under intemational treaties. See Sanitary Dist.
OfChicago v. United States, 266 U,S. 405, 425-426 (1925).
Whatever might be said of the decisions issued by the Northem District of Illinois in
Rubin, those rulings simply do not apply here. See Rubin v. Islamic Republic of Iran, 408 F.
Supp. 2d 549 (N.D. Ill. 2005), aff'd, 436 F. Supp. 2d (N.D. Ill. 2006). In Rubin a magistrate
judge considered efforts by private parties, namely the University of Chicago and others, to
defeat writs of attachment issued against Persian artifacts on loan to the University from Iran.
The University of Chicago claimed that it had standing to challenge the writs on sovereign
immunity grounds or to otherwise serve as Iran’s proxy in the litigation. Thus, in Rubin the
plaintiffs were literally seeking to represent the interests of Iran..
In contrast to private interests asserted in Rubin, the United States in this action seeks to
25
uphold its own, independent foreign policy obligations under the Vienna Convention and the
Foreign Mission Act. As explained above, the Federal Govemment’s duty to protect and respect
the diplomatic properties of other nations does not depend on the current state of our relations
with those foreign powers. The level of hostility between the United States and Iran simply
make no difference. Quite the contrary, under Article 45 of the Vienna Convention, the United
States must meet its obligations to protect and respect diplomatic properties, even when, as in
this case, diplomatic relations have been strained and, at times, are openly hostile.
More fundamentally, plaintiffs’ counsel fail to note that the Magistrate Judge in the Rubin
action discussed this Court’s ruling in Flatow and expressly acknowledged that the United
States Govemment does have standing, consistent with its obligations under the Foreign
Mission Act, to challenge writs of attachment issued against Iran’s diplomatic properties
See 408 F.Supp. 2d at 558-59. By doing so, the magistrate judge distinguished his case, which
involved private third parties and generalized Executive Branch concems about foreign policy
under the FSIA, from the specific duty of the Federal Govemment to protect and respect foreign
diplomatic properties, Accordingly, it is hard for this Court to understand how the Rubin
decision supports plaintiffs at all. Moreover, this Court is concemed that while counsel has
vigorously urged this Court to adopt his selective reading of case precedent from the Northem
District of lllinois, he has failed to discuss, let alone cite, the controlling case precedent from
this District Court and the D.C. Circuit.
Finally, this Court observes that plaintiffs’ counsel, much like counsel in Roeder,
consistently offers up mischaracterizations of the nature of the interests the United States seeks
to assert in this action. See 195 F.Supp. 2d at 155. The United States, as emphasized
throughout this discussion, is not appearing in this action in order to defend the the Islamic
26
Republic of Iran, as counsel’s rhetoric tends to suggest; rather the United States seeks to uphold
its obligations under multi-national treaties in furtherance of broader foreign policies objectives
ln fact, the statement issued by the Clinton White House in 1998, supra, p.22-23, seems to
accurately summarize the foreign policy and national security interests the United States has at
stake in this highly charged, politically sensitive context.
This Court recognizes that plaintiffs believe that the United States is misguided in its
conduct of foreign policy in this instance. To all the victims in these actions, it must certainly
feel as if the United States has tumed against them in favor of state sponsors of terrorism.
Nonetheless, counsel’s rhetoric is neither accurate nor fair, and it certainly does not establish a
basis on which this Court can deny the United States standing in this action. Plaintiffs have a
right to express their frustration with respect to United States foreign policy, but that frustration
should be directed to the foreign policy decision makers within the Executive Branch, or in
Congress, who have the power to authorize the relief plaintiffs’ desire.°
9 Plaintiffs claim that the Office of Foreign Missions is laboring under a
misunderstanding of the United States’ obligations under the Vienna Convention. ln support of
this claim, plaintiffs note that whereas Article 22 states that diplomatic properties are immune
from attachment and execution, Article 45 is silent on the matter. Plaintiffs therefore argue that
under Article 45 of the Vienna Convention, foreign mission properties are subject to attachment
and execution whenever diplomatic relations are severed. Plaintiffs’ interpretation of Article 45
is untenable. As an initial matter, nothing in Article 45 indicates that it is intended to abrogate or
otherwise supplant the Receiving States’s duties to protect and respect foreign mission property
as described in Article 22. lndeed, Article 45 by its plain terms serves to clarify and reinforce
that the Receiving State must respect and protect the property of a foreign mission even after
relations with that foreign power tum cold or hostile. In addition to underscoring the inviolable
nature of the Receiving State’s responsibility to protect and respect a foreign nation’s mission
properties, Article 45 serves to offer the Receiving State a number of practical approaches that
the Receiving States may use to fulfil those obligations after diplomatic relations have been
severed. For example, the Receiving state may entrust the premises of the mission to a third
state. See Article 45(b). Thus, rather than supplant Article 22, as plaintiffs suggests, Article 45
merely supplements that provision with some practical approaches that the Receiving State may,
within its discretion, utilize to fulfil its Article 22 obligations More fundamentally, however,
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(2) T he Supplemental Materials Filed by Plaintiffs Are Not Properly Before the
Court and therefore the Court will Strike those Documents from the Record
Plaintiffs’ supplemental filing, Dk. #37, is untimely and was filed without leave of
the Court and therefore it will be struck from the docket. See e.g., D.L. v. District of Columbia,
450 F.Supp. 2d ll, 20 (D.D.C. 2006) (Lamberth, J.). Additionally, the supplemental
memorandum and related materials are simply not relevant to any matter of consequence in this
action, and thus this Court need not consider them. See Judicial Watch, Inc. v. U.S. Dep ’t of
commerce 224 F.R.D. 261, 263 (D.D.C. 2004)(Lamberrh, J.).
(3) F or the reasons stated in Flatow, the Commercial Activity Exception does not Apply in
this Case.
1n the decade since Flatow was decided, the factual circumstances relating to the Iranian
Embassy Properties have not changed in a way that would require this Court to revisit its prior
what plaintiffs have articulated in this case is best characterized as an expression of disagreement
and frustration with United States foreign policy as it relates to the diplomatic properties of state
sponsors of terrorism. As explained in this portion of the opinion, however, those disagreements
and frustrations are best directed to the policy makers within two political branches of the federal
government. Much like this Court cannot deny the United States standing to defend its foreign
policy positions in connection with multilateral treaties this Court also lacks the authority to
pass judgment on the merits of those foreign policy determinations See e.g., Holmes v. Laird,
459 F.2d 1211, 1215 (D.C. Cir. 1972) (stressing that questions conceming the extent of United
States treaty obligations toward other foreign governments are largely nonjusticiable political
questions) Kucinich v. Bush, 236 F. Supp. 2d l, 16 (D.D.C. 2002) (stressing issues conceming
the interpretation of treaties and other agreements between sovereign powers "are largely
political questions best left to the political branches of the government, not the courts, for
resolution."
28
ruling with respect to the commercial activities exception of the FSIA, § 16l0(a)(7). The
plaintiffs’ arguments on this issue lack merit. As this Court explained in Flatow, the availability
of the commercial activity exception tums on whether the foreign state - in this case Iran - is
using the properties at issue for a commercial purpose Flatow, 76 F.Supp. 2d at 23. Iran was
using the properties at issue exclusively for diplomatic purposes when the United States severed
diplomatic relations in 1979. To the extent that there has been any commercial activity in
connection with those properties since then - such as the leasing of those properties to private
parties - that activity has been carried out by the United States under the auspices of the Foreign
Mission Act. "Put simply, although the leasing of property by a private party might be
commercial in nature, taking custody over diplomatic property under the authority granted by a
federal statute or treaty is decidedly sovereign in nature." Id at 23.
lt makes no difference that the Iranian Foreign Mission properties here in Washington are
currently unoccupied and apparently in poor condition. Under the Foreign Mission Act -
particularly §§ 4301(c) and 4305 - the Department of State is vested with exceedingly broad - if
not exclusive - discretion with respect to the preservation of those properties ln exercising that
discretion, the Office of Foreign Missions undoubtedly must consider an array of issues and
competing priorities in light of limited resources This Court is not free to second guess that
Executive agency’s decision making under these circumstances
Moreover, the Foreign Mission Act expressly provides that properties held in protective
custody by the Department of State are not subject to attachment or execution See § 4308(f).
Thus, the manner in which the Office of Foreign Missions has exercised its own prerogative to
29
maintain Iranian diplomatic properties within its custody simply has nothing to do with the
ultimate question of whether those properties are entitled to immunity from attachment. To be
blunt, even if the properties at issue have been so poorly maintained that they are not currently
capable of being occupied, as plaintiffs suggest is the case, it simply does not follow that, as
consequence of that neglect, the United States has somehow forfeited these properties to the
judgment-creditors of Iran.
(4) § 1 61 0(g) Does Not Strip Away Sovereign Immunity Accorded to Iran ’s
Diplomatic Properties
As noted above, plaintiffs are not entitled to rely on § l6l0(g) because their FSIA
judgment is under § l605(a)(7), and they have not elected to proceed under latest state sponsor of
terrorism provision, § 1605A. More fundamental1y, however, this Court finds that even if the
plaintiffs could suddenly bring their action under § l605A, it would not alter the outcome with
respect to their writs of attachment As noted above, nothing in § l6l0(g) indicates that
Congress intended to strip away the immunity long afforded to diplomatic properties This plain
language interpretation of § l6l0(g) is reinforced by the legislative history relating to that
enactment Moreover, in other enactments under the FSIA, such as the TRIA and the VTVPA,
Congress has clearly and directly addressed the issue of whether and to what extent diplomatic
properties of terrorist states should be afforded immunity from attachment and execution.
Congress’ complete silence on the matter in this most recent enactment indicates that they did not
intend to pare back the immunity that they have long afforded to diplomatic properties
Even if plaintiffs could offer up some contrived reading of § 1610 to support their claim
30
that Iranian diplomatic properties are now subject to attachment, this Court would have to resolve
the statutory ambiguity on this matter in favor of the Govemment in light of the clear immunity
accorded such properties under both the Foreign Missions Act and the Vienna Convention. See
e.g., Trans WorldAirlines, Inc. v. Franklin Mint Corp., 446 U.S. 243, 252 (1984); Hegna, 287
F.Supp. 2d 610-61l. Moreover, to deny those diplomatic properties immunity in the absence of
express guidance from Congress would, in this Court’s view, constitute an unwarranted
encroachment on the President’s authority to conduct foreign affairs.
1n ruling that plaintiffs’ writs of attachment must be quashed, this Court is certainly
mindful of the long and difficult pursuit of justice that the Bennetts and so many other victims of
terrorism have had to endure. Under the current state of the law, however, this Court has no
choice but to grant the Govemment’s motion to quash. lf, at some later time, Congress or the
President decide that the sorts of diplomatic properties at issue in this case should be subject to
attachment, then this C ourt will of course reconsider the matter.
A separate order consistent with this opinion shall issue this date.
ROYCE C. LAMBERTH
Chief Judge
Signed on March 31, 2009
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