Case 1:08-cv-00502-RCL Document 105 Filed 01/23/15 Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MARY NELL WYATT, et al.,
)
)
Plaintiffs,
)
)
v.
)
Case No. 08-CV-502-RCL
)
SYRIAN ARAB REPUBLIC, et al.,
)
)
Defendants.
)
____________________________________)
STATEMENT OF INTEREST
OF THE UNITED STATES OF AMERICA
Plaintiffs seek to enforce a default judgment that this Court entered against the Syrian
Arab Republic by attaching funds that the Embassy of Syria attempted to transfer from its
diplomatic account at the Washington, D.C., branch of Abu Dhabi International Bank (ADIB).
The funds were intended to be used to pay a legal fee, but the bank separated the funds into a
holding account pending a licensing request to the United States Department of Treasurys
Office of Foreign Assets Control (OFAC). OFAC has now authorized the transfer of these
funds pursuant to a specific license. On October 28, 2014, this Court issued an order inviting the
United States to submit its views on two questions related to plaintiffs efforts to attach the
funds: (1) whether the funds are exempt from attachment under section 201 of the Terrorism
Risk Insurance Act or sections 1610(a)(7) or 1610(g) of the Foreign Sovereign Immunities Act
as diplomatic property because of the United States obligations under the Vienna Convention on
Diplomatic Relations; and (2) whether a license from OFAC is required before ADIB may
transfer Syrian funds in response to a court order entered pursuant to the attachment provisions
described in question one.

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Pursuant to 28 U.S.C. 5171 and in response to this Courts October 28, 2014 Order, the
United States respectfully submits this Statement of Interest in light of its substantial interest in
ensuring that the United States fulfills its obligation under the Vienna Convention on Diplomatic
Relations (VCDR). The VCDR requires the United States to ensure that diplomatic missions
are accorded the facilities they require for the performance of their functions, including ensuring
that embassy bank accounts and funds from those accounts intended for payment of mission
expenses, are free from attachment. It is the United States view that the funds at issue are
immune from attachment under the VCDR.
The United States further notes that, even if the funds at issue here were not immune
from attachment under the VCDR, the requirements of the Foreign Sovereign Immunities Act
(FSIA) for attachment of a foreign states property are not satisfied in this case. In addition,
the United States explains that the Terrorism Risk Insurance Act (TRIA) does not permit
attachment of funds where, as would be the case here, the funds do not meet the definition of
blocked property under TRIA, because they are property subject to United States obligations
under the VCDR and are used exclusively for a diplomatic purpose. Moreover, because the
funds at issue are subject to a specific license from OFAC, which authorizes payment for legal
services, the funds at issue do not satisfy the definition of blocked property under TRIA,
because they are not seized or frozen assets within the meaning of TRIA.
Finally, because the funds are immune from attachment, it is the position of the United
States that the second question raised in the Courts October 28, 2014 Order whether a license
from OFAC is required for ADIB to transfer the funds to the plaintiffs pursuant to a court order
1

That statute authorizes the Attorney General of the United States 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, or in a court of a State, or to attend to any other interest of the United
States. 28 U.S.C. 517.
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of attachment need not be reached. If the Court concludes otherwise, however, it is the view
of the United States that a license would not be required if the Court were to order the attachment
of the funds pursuant to TRIA. However, if the Court concludes that the funds fall outside TRIA
but somehow are attachable by operation of the FSIA alone, it is the position of the United States
that a license would be required before the funds could be transferred to plaintiffs.
BACKGROUND
Plaintiffs, Mary Nell Wyatt, individually and as executrix of the Estate of Ronald E.
Wyatt, Daniel Wyatt, Amanda Lippelt, Michelle Brown, Marvin T. Wilson, Renetta Wilson,
Marty R. Wilson, Gina R. Brown, Bradley G. Key, Kimi L. Johns, and Barry T. Key, filed this
action against Syria and the Kurdistan Workers Party (collectively, defendants) under the
FSIA and the Antiterrorism Act, 18 U.S.C. 2231 et seq. Plaintiffs, who are former hostages
and their families, alleged that they suffered personal injury and related torts when defendants
abducted Ronald E. Wyatt and plaintiff, Marvin T. Wilson, and held them hostage in Turkey in
1991. See Compl. 4-16, 38-92, ECF No. 1 (Mar. 24, 2008). Plaintiffs sought, among other
things, compensatory and punitive damages against defendants. See id. 38-92.
On December 17, 2012, the Court entered a $338 million default judgment against
defendants, see Order & Judgment, ECF No. 37, which the D.C. Circuit affirmed in March
2014.2 Shortly after the D.C. Circuit affirmed the entry of default judgment against defendants,
plaintiffs filed a motion under 28 U.S.C. 1610(c), seeking to enforce the judgment. See Pls
Mot. for Entry of 1610(c) Order, ECF No. 59. The Court granted plaintiffs motion on May 19,
2014. See May 19, 2014 Order, ECF No. 60. In the Courts May 19, 2014 Order, the Court
found that a reasonable period of time had elapsed since the Courts entry of judgment and
2

Syria appealed the District Courts award of punitive damages but the D.C. Circuit held that
Syria had not properly preserved for appeal this question.
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defendants notice of receipt of judgment, and authorized plaintiffs to proceed with their
judgment enforcement efforts. Id.
Around the same time period, plaintiffs served a subpoena on OFAC, seeking
information about Syrian assets. OFAC responded to plaintiffs subpoena by, inter alia,
identifying funds deposited at the Washington, D.C. branch of ADIB. On May 21, 2014,
plaintiffs served a writ of attachment issued by the deputy clerk of court and interrogatories on
ADIB in an effort to execute the judgment against Syria. See Pls Mot. for Condemnation &
Recovery, at 2, ECF No. 63 (July 7, 2014). ADIBs response stated that it was holding a
$150,036.21 deposit that had been blocked under OFAC sanctions against Syria, and refused to
transfer the funds to plaintiffs without first obtaining a license from OFAC. ADIBs response
also stated that all other Syrian Embassy accounts at ADIB had been closed on March 31, 2014
(the date on which the Syrian Embassys operations in the United States were suspended), and
had a zero balance. See id. Exhibit A, ECF No. 63-1, at 3.
On July 7, 2014, plaintiffs filed a motion for condemnation and recovery, requesting that
the Court direct ADIB to deliver to plaintiffs the funds in the ADIB account. On July 11, 2014,
W. Ramsey Clark and Lawrence W. Schilling filed a motion to intervene. See Defs Mot. to
Intervene in Garnishment Proceedings by W. Ramsey Clark and Lawrence W. Schilling Pursuant
to Fed. R. Civ. P. 24, ECF No. 65 (July 11, 2014). In their intervention motion, Clark and
Schilling argued that the funds in the ADIB account constitute payment of a legal fee for services
provided to Syria in connection with litigation in the United States as authorized by General
License No. 2 issued by OFAC pursuant to Executive Order 13582 and other authorities. Clark
and Schilling explained that the Embassy of Syria held its accounts at ADIB and intended to pay
the legal fee via a wire transfer through ADIB, which originated on or before June 5, 2013. See

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id. at 3. The intervention motion also noted that, although Clark and Schillings position is that
authorization from OFAC via a license was not legally necessary, they nevertheless submitted
such a request. See id. Clark and Schillings motion takes the position that the funds are not
properly subject to attachment to satisfy a judgment against Syria because the funds belong to
them and not to Syria.
On October 28, 2014, three months after Clark and Schilling filed the motion to intervene
in plaintiffs garnishment proceedings, the Court issued an order inviting the United States to
submit its views on two issues:

1. Are the funds at issue exempt from attachment under section 201 of the Terrorism
Risk Insurance Act or sections 1610(a)(7) or 1610(g) of the Foreign Sovereign
Immunities Act as diplomatic property because of the United States obligations
under the Vienna Convention on Diplomatic Relations?
2. Is an OFAC license required before ADIB may transfer Syrian funds in response to a
court order entered pursuant to the attachment provisions described in question one?

Oct. 28, 2014 Order, ECF no. 96.

Shortly thereafter, on November 7, 2014, OFAC issued a specific license authorizing
ADIB to process the transfer [of the blocked funds] in accordance with the original payment
instructions. See Ex. 1 to Defs Supplement of Record Regarding Motion to Intervene, ECF
No. 103-1 (Dec. 16, 2014). Notwithstanding OFACs issuance of the specific license, ADIB has
not transferred the funds given the pending litigation.

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ARGUMENT
I.

UNDER AN INTERNATIONAL TREATY TO WHICH THE UNITED STATES IS

A PARTY, FUNDS TRANSFERRED FROM A SYRIAN EMBASSY ACCOUNT
INTO A HOLDING ACCOUNT FOR THE PAYMENT OF LEGAL SERVICES
ON BEHALF OF SYRIA ARE IMMUNE FROM ATTACHMENT OR
EXECUTION
The first question raised by the Court concerns whether the challenged funds are

immune from attachment. As discussed in detail below, it is the United States position that this
question should be answered in the affirmative.
An applicable treaty, which is binding on federal courts to the same extent as a domestic
statute, establishes the immunity of funds in Syrias Embassy bank accounts, including funds the
mission attempts to transfer from such an account into a holding account in connection with the
functions of the diplomatic mission. Although the FSIA serves as the exclusive basis for
jurisdiction over foreign states in federal and state courts and also governs the execution of
judgments obtained against foreign states, it is well-established that the FSIA does not displace
the immunities provided by a treaty such as the VCDR. See generally Cook v. United States, 288
U.S. 102, 120 (1933) (A treaty will not be deemed to have been abrogated or modified by a
later statute, unless such purpose on the part of Congress has been clearly expressed.). When it
enacted the FSIA, Congress recognized that the United States had existing international legal
obligations with respect to the protection of diplomatic and consular property. Congress
therefore provided in Section 1609 of the statute that the provisions addressing the immunity
from attachment and execution of a foreign states property were [s]ubject to existing
international agreements to which the United States is a party at the time of enactment of this
Act. 28 U.S.C. 1609; see also H.R. Rep. No. 94-1487, at 12 (1976), reprinted in 1976
U.S.C.C.A.N. 6604, 6610 (noting that the FSIA is not intended to affect either diplomatic or

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consular immunity); 767 Third Avenue Assocs. v. Perm. Mission of the Republic of Zaire to the
U.N., 988 F.2d 295, 298 (2d Cir. 1993) (Because of this provision the diplomatic and consular
immunities of foreign states recognized under various treaties remain unaltered by the Act.).
At the time the FSIA was enacted, the United States had already entered into several
international agreements establishing its obligations to protect the property of diplomatic and
consular missions from interference. These include the VCDRto which Syria is also a party,
which obligates the United States to ensure that diplomatic missions are accorded the facilities
they require for the performance of their diplomatic functions. Article 25 of the VCDR provides
that the receiving state shall accord full facilities for the performance and functions of the
mission. VCDR, art. 25, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. 7502. Article 3 of the VCDR
delineates the functions of a diplomatic mission, which include, among other things,
[p]rotecting in the receiving State the interests of the sending State and of its nationals, within
the limits permitted by international law.
Numerous courts interpreting Article 25 of the VCDR have recognized that bank
accounts of diplomatic missions that are used for mission purposes are immune from attachment
or execution, because a missions access to its funds in the receiving state is critical to the
functioning of a mission. In Liberian Eastern Timber Corp. v. Government of the Republic of
Liberia, 659 F. Supp. 606, 608 (D.D.C. 1987), for example, the court relied on Article 25 of the
VCDR to grant Liberias motion to quash writs of attachment seizing its embassys bank
accounts. The court determined that [t]he Liberian Embassy [would] lack[] the full facilities
the Government of the United States has agreed to accord if, to satisfy a civil judgment, the
Court permits a writ of attachment to seize official bank accounts used or intended to be used for
purposes of the diplomatic mission. Id.; see also Devengoechea v. Bolivarian Republic of

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Venezuela, No. 12 Civ. 2373 (S.D. Fla.), Report and Recommendation at *8 (adopted Nov. 13,
2014) (In addressing the full facilities language from the VCDR and [the Vienna Convention
on Consular Relations], courts have found that bank accounts used by a mission for diplomatic
purposes are immune, as they are necessary for the mission to function.); Sales v. Republic of
Uganda, No. 90 Civ. 3972, 1993 WL 437762, at *1 (S.D.N.Y. Oct. 23, 1993) (It is well settled
that a foreign states bank account cannot be attached if the funds are used for diplomatic
purposes.).3
It is the view of the United States that the VCDRs full facilities provision applies to
protect from attachment funds under the circumstances here, where the mission attempted to
transfer the funds from an embassy account to pay a legal fee, and the funds were then
segregated into a separate holding account at the same bank. Funds intended to be used by
diplomatic missions to pay for legal representation of the sending state in the courts of the
receiving state are properly considered funds used in connection with the performance of the
diplomatic functions of [p]rotecting in the receiving State the interests of the sending State and
of its nationals, as contemplated by Article 3 of the VCDR. Indeed, the United States has a
strong interest in ensuring that courts interpret the VCDR in a manner that protects funds used by
a foreign government to pay for legal representation from attachment. That is because the

Courts have similarly concluded that bank accounts of a foreign states permanent mission to
the United Nations are immune from attachment under the full facilities provision of the VCDR,
which is considered to apply to permanent missions through the United Nations Charter, the
United Nations Headquarters Agreement, and the Convention on the Privileges and Immunities
of the United Nations. See Avelar, 2011 WL 5245206, at *4 (vacating plaintiffs execution of a
default judgment against bank accounts of Congos U.N. Mission, because bank accounts used
by the mission for diplomatic purposes are immune from execution under [Article 25 of the
VCDR], as necessary for the mission to function); Foxworth v. Permanent Mission of the
Republic of Uganda to the United Nations, 796 F. Supp. 761, 763 (S.D.N.Y. 1992) (holding that
attachment of defendants bank account is in violation of the United Nations Charter and the
[VCDR] because it would force defendant to cease operations.)
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United States routinely encourages foreign governmentsthrough their embassiesto engage

local counsel and to appear and defend when their government is sued in United States courts.
The same is true with respect to the United States reciprocal interest in protecting from
attachment funds it uses to pay for legal representation of the United States in foreign countries.
Indeed, the United States has vigorously opposed efforts by private parties to attach its
diplomatic accounts abroad, including by seeking to enlist the assistance of the government of
the receiving state in such cases. See generally Boos v. Barry, 485 U.S. 312, 323 (1988)
(respecting diplomatic immunity ensures that similar protections will be accorded those that we
send abroad to represent the United States).
Nor should the location of the funds (in a separate holding account) change the VCDR
analysis. The protections provided by the VCDR would be severely undercut if any funds
segregated by a bank from an embassy bank account could be attached simply because the funds
were no longer located in the mission account. The relevant question is whether the funds in the
segregated bank account were being used in connection with the performance of the functions of
the mission and accordingly protected by Article 25.4 Here, the Embassy of Syria attempted to
transfer the funds in June 2013, almost nine months before the suspension of Syrias Embassy
operations in the United States on March 31, 2014. Nor does the closure of the Embassy mean
that the United States no longer has any obligation with respect to the funds. To the contrary,
Article 45 of the VCDR makes clear the United States has an ongoing obligation under these
circumstances to respect and protect the premises of the mission, together with its property and
archives. VCDR, art. 45 (emphasis added). This obligation extends to the protection of all
property of the diplomatic mission, including its bank accounts, and therefore protects from
4

This result is consistent with the principle that the immunity of foreign state property inheres
in the property itself. Rubin v. Islamic Republic of Iran, 637 F.3d 783, 799 (7th Cir. 2011).
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attachment funds from such an account used to pay an outstanding expense of the mission in the
host state.
It is worth noting that, in each of the cases cited above, the court relied upon an affidavit
from a mission official to determine that the bank accounts at issue were used for the functioning
of the mission and accordingly protected by the VCDR. See, e.g., Devengochea R&R at *8
(noting that declarations filed by mission officials are sufficient to establish that a bank account
is used for diplomatic purposes); Liberian E. Timber Corp., 659 F. Supp. at 608; see also
Avelar, 2011 WL 5245206, at *4 (A sworn statement from the head of mission is sufficient to
establish that a bank account is used for diplomatic purposes.). In this case, there is no such
affidavit. Syria has not filed an appearance in the attachment proceedings and, as noted above,
the United States suspended its embassy operations in March 2014. However, in this case, an
affidavit from a Syrian official should not be necessary to conclude that the VCDR protects the
funds.
Plaintiffs do not dispute that the funds originated from a Syrian Embassy bank account,
nor do they dispute the intended use of the funds as payment for Syrias attorneys for legal
services. Moreover, as the this Courts October 28, 2014 Order recognizes, [d]ocumentation
submitted by proposed intervenors before the Court indicates that the funds constitute a blocked
electronic funds transfer between the Embassy of Syria and an American attorney, W. Ramsey
Clark, as payment for a legal fee. Oct. 28, 2014 Order, ECF No. 96; see also Affidavit of
Ramsey Clark, attached as Ex. 2 to Mot. to Intervene in Garnishment Proceedings by W. Ramsey
Clark and Lawrence M. Schilling Pursuant to Fed. R. Civ. P. 24, ECF No. 65-2, at 2 (The
$150,000 is a payment of a legal fee for the provision of legal services by myself and Lawrence
W. Schilling to the Syrian Arab Republic pursuant to Office of Foreign Assets Control

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(OFAC) General License No. 2 issued pursuant to Executive Order 133582.); Letter from
ADIBs Compliance Manager to the Embassy of Syria (June 24, 2013), attached as Ex. 1 to Mot.
to Intervene in Garnishment Proceedings by W. Ramsey Clark and Lawrence M. Schilling
Pursuant to Fed. R. Civ. P. 24, ECF No. 65-1 (This letter will serve as a notice that on June 13,
2013, Abu Dhabi International Bank, N.V. blocked a $150,000 wire transfer originated by the
Embassy of Syria going to the final beneficiary of Ramsey Clark.).
As noted earlier, Section 1609 of the FSIA expressly provides that the statutes
exceptions to immunity are subject to existing international agreements. As a result, where, as
here, the VCDR governs the immunity of funds from attachment, the FSIAs exceptions to
immunity from attachment discussed below, see infra., Argument II, are simply inapplicab[le]
to an analysis of the validity of attachment. 767 Third Avenue Assocs., 988 F.2d at 297. Thus,
funds in a mission bank account that the Embassy intends to use in connection with the
performance of mission functions, are immune under the full facilities provisions of the
VCDR, even if the use of the funds may be considered commercial for other purposes. See
VCDR, art. 25. Accordingly, courts have concluded that the fact that an embassy bank account
includes funds used for commercial transactions that are incidental to or connected with the
performance of the functions of the missione.g., transactions to purchase goods and services
from private entitiesdoes not vitiate the entire accounts protection from attachment under the
VCDR. Liberian Eastern Timber Corp., 659 F. Supp. At 610; Connecticut Bank of Commerce v.
Republic of Congo, 309 F.3d 240, 257 n. 7 (5th Cir. 2002).
For the reasons identified above, the Court should conclude that the funds held in a
segregated account by ADIB that the Embassy of Syria intends to use to pay for legal services

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rendered in connection with litigation in the United States are immune from attachment and
execution under the VCDR.
II.

THE SYRIAN EMBASSY FUNDS IN THE HOLDING ACCOUNT ARE NOT

SUBJECT TO ATTACHMENT UNDER THE FSIA
Even if the funds at issue were not immune from attachment under the VCDR, plaintiffs

have failed to establish that the requirements of the FSIA have been met. Pursuant to 28 U.S.C.
1609, a foreign states property in the United States is immune from attachment and execution
unless a specific statutory exception applies. Furthermore, 1610(c) of the FSIA prohibits
attachment of or execution on a foreign states property unless the court has issued an order
determining such attachment or execution to be appropriate under the statute after a reasonable
period of time following entry of the judgment (including service of a default judgment under
1608(e), where required). See 28 U.S.C. 1610(c); H.R. Rep. 94-1487, at 30 (explaining that
allowing a judgment creditor to attach or execute on a foreign states property simply by
applying to the clerk or a local sheriff would not afford sufficient protection to a foreign state);
Avelar, 2011 WL 5245206, at *5 n.8 ([T]he FSIA requires that any steps taken by a judgment
creditor to enforce the judgment must be pursuant to a court order authorizing the enforcement,
independent of the judgment itself, and not merely the result of the judgment creditors unilateral
delivery of a writ to the sheriff or marshal.). Prior to issuing such an order of attachment, courts
are required to determinesua sponte if necessarywhether an exception to immunity
applies, a determination that must be made regardless of whether the foreign state appears.
Rubin v. The Islamic Republic of Iran, 637 F.3d 783, 785-86 (7th Cir. 2011); see also Peterson v.
Islamic Republic Of Iran, 627 F.3d 1117, 1128 (9th Cir. 2010) ([C]ourts should proceed
carefully in enforcement actions against foreign states and consider the issue of immunity from
execution sua sponte.). The judgment creditor bears the burden of identifying the particular
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property to be executed against and proving that it falls within a statutory exception to immunity
from execution. See, e.g., Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280,
297 (2d Cir. 2011).
Thus, the Court must ensure compliance with the FSIAs provisions governing the
attachment of or execution on a foreign states property. See, e.g., Liberian E. Timber Corp.,
659 F. Supp. at 608-10. Here, the writ of attachment at issue was signed by the deputy clerk of
court; it was not issued pursuant to a court order determining that ADIB holds property subject to
attachment under the FSIA. See Avelar, 2011 WL 5245206, at *5 n.8 (Plaintiff's failure to
procure an independent court order requires also that the enforcement mechanisms be vacated.);
FG Hemisphere Assoc., LLC v. Republique du Congo, 455 F.3d 575, 594 (5th Cir. 2006) (Prior
to issuing a garnishment order, a district court must make factual findings that support
application of the 1610(a) exception to executional immunity during the situs snapshot for each
form of property. (first emphasis added; second emphasis in original)). Nor have plaintiffs
demonstrated that the funds at issue meet the substantive requirements for attachment of a
foreign states property under 1610(a)(7) or 1610(g), both of which require that the funds be
used by the foreign state for commercial activity in the United States. See 28 U.S.C.
1607(a)(7) (authorizing the attachment of property in the United States of a foreign state used
for a commercial activity in the United States where the judgment relates to a claim for which
the foreign state was not immune under 1605A); id. 1610(g) (authorizing in certain cases the
attachment of property as provided in this section, notwithstanding whether the property is
property of the foreign state itself or one of its agencies or instrumentalities). Funds used in
connection with the functions of a diplomatic mission, including funds intended to be used to pay
for legal representation for the foreign state in litigation in U.S. courts, should not be considered

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property of a foreign state used for commercial activity in the United States. See, e.g., Exp.Imp. Bank of the Republic of China v. Grenada, 768 F.3d 75, 87 n.12 (2d Cir. 2014) (We note
our concern, however, about treating as purely commercial use the expenditure of funds for
securing representation in legal proceedings. This concern, among others, might have weighed
here in favor of denying the motion to stay disbursement, as to which ExIm Bank bore the
burden.). Because the writ of attachment was not issued in accordance with the FSIAs
requirements, it should be vacated.
III.

THE FUNDS AT ISSUE ARE ALSO EXEMPT FROM ATTACHMENT UNDER

TRIA
The challenged funds at issue in this case are also not attachable under TRIA. Section

201(a) of TRIA provides:

Notwithstanding any other provision of law . . . in every case in which a
person has obtained a judgment against a terrorist party on a claim based upon
an act of terrorism, or for which the a terrorist party is not immune under [28
U.S.C. 1605A], the blocked assets of that terrorist party . . . shall be
subject to execution or attachment in aid of execution in order to satisfy such
judgment to the extent of any compensatory damages for which such terrorist
party has adjudged liable.
TRIA 201(a). Plaintiffs may not use TRIA as a vehicle through which to attach the funds at
issue for two separate reasons. First, TRIA does not authorize the attachment of assets protected
by the VCDR and used exclusively for a diplomatic purpose. Second, TRIA does not authorize
attachment of assets where, as here, OFAC has issued a specific license prior to the issuance of a
final turnover order.
A. Assets that are protected by the VCDR and used exclusively for a diplomatic
purpose are not attachable under TRIA
Under TRIA, blocked assets do not include assets being used exclusively for
diplomatic or consular purposes, the attachment . . . of which would result in a violation of an
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obligation of the United States under the [VCDR]. TRIA 201(d)(2)(B)(ii), (d)(3). See
Bennett v. Islamic Republic of Iran, 618 F.3d 19, 22 (D.C. Cir. 2010) (holding that the
adjectives diplomatic and consular modify the noun purpose, not the verb used, and
reading the phrase is being used . . . for to carry its ordinary meaning of ma[de] instrumental
to an end or process. (citations omitted)). As explained above, the challenged funds are
protected by the VCDR, and their attachment would be inconsistent with the United States
obligations under both Articles 25 and 45 of the treaty.
This Courts decision in Weinstein v. Islamic Republic of Iran, 274 F. Supp. 2d 53, 60-61
(D.D.C. 2003) is not to the contrary. In Weinstein, this Court held that funds lying dormant in an
inactive checking account of an Iranian consulatemany years after diplomatic and consular
relations were broken off between the United States and Iranwere subject to attachment under
TRIA.
By contrast, unlike the assets at issue in Weinstein, here, the challenged funds are not
simply excess funds in a long inactive mission account, but rather are intended to be used to pay
an outstanding expense of the mission in the United States, payment for which Syria had initiated
before its embassy functions were suspended.5 Indeed, the Courts Order inviting the United
States views expressly recognizes this fact. As noted above, the Syrian Embassys purpose in
transferring the funds to pay its lawyers was in furtherance of a core function of the diplomatic

While Weinstein involved consular accounts, this Court also stated that, once consular and
diplomatic relations have been broken off between two countries, both the Vienna Convention on
Consular Relations and the VCDR require the United States only to protect the buildings or parts
of buildings used by the relevant mission, see id. at 61, and then concluded that dormant consular
bank accounts manifestly do not fit within this definition. The United States respectfully
disagrees with the Courts statement, in dicta, about the relevant provision of the VCDR
requiring protection only of buildings or parts of buildings used by the mission. The VCDR
expressly requires the host state to respect and protect the premises of the mission, together with
its property and archives. VCDR, Art. 45 (emphasis added).
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mission within the meaning of Article 3 of the VCDRto defend and represent Syrias interests
in the host state. Furthermore, OFACs regulations expressly authorize the provision of certain
legal services rendered on behalf of Syria so long as a specific license is obtained prior to a
lawyers receipt of a payment for such services. See 31 C.F.R. 542.507. Consistent with this
licensing policy, OFAC issued to Clark and Schilling a license to receive the funds in the ADIB
account as payment for legal representation in connection with litigation against Syria in the
United States. Under these circumstances, the Syrian Embassy funds in the holding account are
being used exclusively for a diplomatic purpose and their attachment would result in a
violation of an obligation of the United States under the [VCDR]. TRIA 201(d)(2)(B)(ii),
(d)(3). Because the funds in the account are not subject to attachment under TRIA, the Court
should dissolve the writ of attachment.
B. Because OFAC issued a specific license authorizing the transfer of the
challenged funds prior to the issuance of a final turnover order, the funds are
not blocked and so are not attachable under TRIA
The Syrian Embassy funds in the holding account also are not subject to attachment
under TRIA because they are not blocked. TRIA authorizes attachment and execution against
blocked assets of a terrorist party. TRIA 201(a). The statute defines the term blocked
assets as any asset seized or frozen by the United States under specified statutory authority.
Id. 201(d)(2). Courts interpreting that statutory definition (including this Court) have held that
assets whose transfer has been authorized pursuant to OFACs authority are not seized or
frozen and thus do not constitute blocked assets within the meaning of the statute. See
Weinstein v. Islamic Republic of Iran, 299 F. Supp. 2d 63 (S.D.N.Y. 2004); Bank of New York v.
Rubin, 484 F.3d 149, 150 (2d Cir. 2007); see No. 12-CV-22095 (EGT)(FAM) (S.D. Fla. Aug.

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22, 2011); In re Estate of Heiser v. Islamic Republic of Iran, 807 F. Supp. 2d 9, 18 n.6 (D.D.C.
2011).
At the time the payment at issue was initiated, OFAC had issued a general license
(General License No. 2) authorizing the provision of certain legal services by United States
persons to the Government of Syria, subject to the requirement that receipt of payment for such
services needed to be specifically licensed. This general license was later codified, with some
modification to the payment provision, in OFACs regulations. See 31 C.F.R. 542.507(a), (d).
Because an attempt to make payment for legal services was initiated without a specific license,
the transaction was prohibited and the funds were placed in a blocked account. Subsequently,
however, and consistent with the licensing policy with respect to payments for generally
authorized legal services, OFAC issued a specific license authorizing ADIB to transfer the funds
to Syrias counsel as payment for legal services rendered on behalf of Syria. That specific
license permits the transfer of the assets at issue for this identified purpose. As such, the Syrian
Embassy funds in the holding account are not seized or frozen and therefore are not blocked
for purposes of TRIA.6 Accordingly, the funds are not attachable under TRIA.

In deciding whether to vacate the writ of attachment, the Court must consider the current status
of the Syrian Embassy funds at issue. See Ruth Calderon-Cardona v. J.P. Morgan Chase Bank,
N.A., 867 F. Supp. 2d 389, 396 (S.D.N.Y. 2011), affd in part, vacated in part on other grounds,
770 F.3d 993 (2d Cir. 2014) ([T]he Supreme Court has determined that this passage of TRIA
201 speaks as of the date when the court rules on an application for turnover, not the date when
a judgment creditors claim arises. (citing Ministry of Defense v. Elahi, 556 U.S. 336, 337
(2009)) (emphasis added); see also United States v. Holy Land Found. for Relief & Dev., 722
F.3d 677, 685 (5th Cir. 2013) (referencing the present tense in stating: By its terms [TRIA]
201 does not provide for execution against assets that are not blocked.). Moreover, TRIA
imposes no obligation on the Executive Branch to maintain assets as blocked for future judgment
creditors. See Smith v. Federal Reserve Bank of New York, 346 F.3d 264, 271 (2d Cir. 2003)
([TRIA 201] imposes no obligation on the President to maintain [blocked] funds for
attachment [by judgment creditors].).
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IV.

BECAUSE THE FUNDS ARE EXEMPT FROM ATTACHMENT, THE

QUESTION OF WHETHER AN OFAC LICENSE IS NEEDED TO TRANSFER
THE FUNDS IS MOOT
As explained above, the funds are protected by the VCDR and are not subject to

attachment under the FSIA or TRIA. If the Court agrees with this conclusion, it need not resolve
the second question it posed to the United Stateswhether an OFAC license would be needed to
transfer the funds pursuant to an order of attachment under the FSIA or TRIA.
If, however, the Court nonetheless finds that the funds are attachable under TRIA, it is
the view of the United States that the challenged funds may be distributed without a license from
OFAC. This position is consistent with the United States previously expressed views in other
litigation. See, e.g., Estate of Heiser v. Bank of Tokyo Mitsubishi, 919 F. Supp. 2d 411, 422
(S.D.N.Y. 2013) (accepting the United States assertion in a Statement of Interest that an OFAC
license is not required in the event a court determines that blocked assets are subject to TRIA.).
Finally, if the Court concludes that the funds at issue fall outside TRIA but somehow are
attachable by operation of the FSIA alone, the United States respectfully advises the Court that
an OFAC license would be required before the funds could be transferred to plaintiffs. See Dean
Witter Reynolds v. Fernandez, 741 F.2d 355, 357 (11th Cir. 1984) (while a license is not
necessary to litigate, a district court should not enter a judgment to actually permit the collection
of funds subject to statutory economic sanctions without the issuance of a license); Martinez v.
Republic of Cuba, No. 12-CV-22095, at *2 (EGT)(FAM) (S.D. Fla. Aug. 22, 2011) (Plaintiff
cannot satisfy the default judgment that she obtained against the Government of Cuba by
garnishing payments owed by the listed air charter companies. Since Plaintiff does not have the
required license from [OFAC], the writs of garnishment are null and void.).

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CONCLUSION
For the reasons explained above, the Syrian Embassy funds in the holding account are
immune from attachment or execution under the VCDR, an international treaty to which the
United States is a party, and the attachment of such funds should be vacated based on the record
in this case. Moreover, even if the Court concludes that the funds are not immune under the
VCDR, the requirements for attachment of a foreign states property under the FSIA have not
been satisfied here.
Nor are the funds at issue attachable under TRIA. TRIA does not permit attachment of
assets where, as here, the funds are protected by the VCDR and used exclusively for a diplomatic
purpose. Even if the Court concludes otherwise, the challenged funds are not seized or frozen
assets attachable under TRIA because OFAC has issued a specific license authorizing their
transfer to Clark and Schilling. Because the funds are not subject to attachment, the question
whether an OFAC license is needed to transfer the funds to plaintiffs is moot.

Respectfully submitted this 23rd day of January, 2015,

JOYCE R. BRANDA
Acting Assistant Attorney General
RONALD C. MACHEN, JR.
United States Attorney
ANTHONY J. COPPOLINO
Deputy Director
s/ Tamra T. Moore
_
TAMRA T. MOORE (DC Bar No. 488392)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue N.W. Room 6134
Washington, D.C. 20530
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Case 1:08-cv-00502-RCL Document 105 Filed 01/23/15 Page 20 of 22

Tel: (202) 514-8095

Fax: (202) 616-8460
Email: Tamra.Moore@usdoj.gov
Attorneys for United States of America

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Case 1:08-cv-00502-RCL Document 105 Filed 01/23/15 Page 21 of 22

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served by CM/ECF and
e-mail on January 23, 2015, on all counsel and parties of record on the attached service list.
s/ Tamra T. Moore
TAMRA T. MOORE

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SERVICE LIST
Wyatt, et al. v. Syrian Arab Republic, et al.,
No. 10-CV-502-RCL (D.D.C.)

Attorneys for Plaintiffs

Robert J. Tolchin, Esq.
111 Livingston Street
Suite 1928
Brooklyn, N.Y. 11201
Email: RTochlin@berkmanlaw.com

Attorneys for Intervenors Ramsey Clark and Lawrence Schilling

Carl Messineo, Esq.
Partnership for Civil Justice Fund
617 Florida Avenue, N.W.
Washington, D.C. 20001
Email: Carl@MVHlawfirm.com
Garnishee Abu Dhabi International Bank
Abu Dhabi International Bank
1430 K Street, N.W.
Suite 400
Washington, D.C. 20005

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