The Work

December 10, 2010 6:43 PM

As Assange Indictment Looms, WikiLeaks Cables Tie Two Treasure Cases Together

Posted by Brian Baxter

British lawyers for WikiLeaks founder Julian Assange said Friday they are preparing for the possibility that their client will be indicted in the U.S.

Jennifer Robinson, an attorney at London's Finers Stephens Innocent, said that Assange is entitled to First Amendment protection as a publisher and that any planned prosecution under the Espionage Act would "in my view be unconstitutional and puts at risk all media organizations in the U.S."

While Assange and his lawyers prepare to fight extradition from the U.K.--whether to Sweden, where the WikiLeaks leader faces sex charges, or to the U.S.--confidential U.S. State Department cables released by the whistle-blowing Web site reveal that the federal government took sides in a pair of unrelated litigations in order to further bilateral relations with Spain.

Citing cables published by The Guardian--one of five media organizations collaborating with WikiLeaks in its document dump--Tampa Bay Online reports that U.S. diplomats discussed a potentially lucrative shipwreck and a priceless French painting with their Spanish counterparts. The twist: both items are currently tied up in ongoing litigation in federal courts.

In the nautical matter, The American Lawyer reported three years ago on Covington & Burling's efforts in advising the Spanish government in its ongoing battle with U.S. treasure hunters seeking to cash in on materials recovered from sunken Spanish galleons. In June 2009, a U.S. magistrate judge ruled against one of those treasure hunting outfits, Tampa-based Odyssey Marine Exploration, and ordered that two planeloads of materials pulled from a site at the bottom of the Atlantic Ocean called the Black Swan be returned to the Spanish government.

Lawyers for Odyssey argued that gold coins taken from the Black Swan site were not from a Spanish vessel and claimed there should be a trial to determine the booty's origin. Odyssey's lawyers appealed the magistrate's ruling and the case is currently before the U.S. Court of Appeals for the Eleventh Circuit and could ultimately wind up before the U.S. Supreme Court, according to Tampa Bay Online.

WikiLeaks cables show that U.S. diplomats sought to broker a deal whereby U.S. embassy officials stationed in Spain would provide confidential customs documents prepared by Odyssey to the Spanish government. In exchange, Spain was to assist U.S. efforts to reclaim for U.S. citizen Claude Cassirer a Holocaust-era painting that was allegedly stolen by the Nazis during World War II.

Cassirer is being represented by lawyers from Davis Wright Tremaine in his quest to get back the painting, a French impressionist masterpiece by Camille Pissarro allegedly taken from Cassirer's grandmother. (Click here for a previous story by The Am Law Daily on the Cassirer case, including a photo of the picture at issue.)

The U.S. government's support for Spain in the Odyssey litigation is no secret. The Justice Department filed an amicus brief on Spain's behalf at the trial court level in which it argued that the case should be dismissed for lack of jurisdiction.

Blank Rome maritime litigation partner John Kimball and Beveridge & Diamond environmental practice chair K. Russell LaMotte, who are representing Odyssey in the case, referred questions to the company. (Allen von Spiegelfeld of Tampa's Banker Lopez Gassler and Emory University law professor David Bederman are also advising Odyssey in the litigation.)

Odyssey general counsel Melinda MacConnel tells The Am Law Daily she is unsure what impact the WikiLeaks revelations might have on the Black Swan litigation, but admits to being a bit surprised by the contents of the cables.

"There seems to at least be an implication that the U.S. interest was not completely divulged, that there was more behind this," MacConnel says. "It is rare for the State Department to get involved at [the district court level], especially when the issue is one of jurisdiction. So we thought there might be something more going on, and this certainly seems to suggest it was more than just an objective interest in an interpretation of the law."

MacConnel says that Odyssey has the support of a congressional delegation led by U.S. representative Gus Bilirakis, a Florida Republican and local maritime attorney. MacConnel adds that Bilirakis's office has expressed outrage at the nature of the leaked cables and could follow up with a congressional investigation. (The State Department is staying silent on the leaked cables; a lawyer for Spain, Covington of counsel James Goold, did not respond to a request for comment.)

While the Odyssey case continues its journey through U.S. courts, its counterpart in the alleged diplomatic quid pro quo, the Cassirer suit, is set to proceed following a 9-2 en banc ruling in Cassirer's favor by the U.S. Court of Appeals for the Ninth Circuit Court.

A lawyer representing Spain in that case, William Barron of Smith, Gambrell & Russell in New York, says that he filed a cert petition with the U.S. Supreme Court on Friday. He says the WikiLeaks cables are dated--most are from 2008--and that there is currently no agreement between the Spanish and U.S. governments.

Barron, who has been representing Spain since 2005 when he was a partner at Alston & Bird, says he's not worried about old cables affecting the litigation. (Nixon Peabody partner Thaddeus Stauber is also representing Spain.)

Cassirer's lawyer, veteran Davis Wright partner Victor Kovner, also notes that many of the confidential State Department communiqu├ęs are from 2008 and thus predate much of the litigation. He declined to express a view on whether or not any of the leaked cables could be relevant in the litigation going forward.

"What we knew all along, and we expressed this to the State Department, was that Spain should return this painting," Kovner says. He adds that Spain has agreed to international declarations that obligate nations to return works of art or negotiate equitable consent.



Ninth Circuit Says Suit Against Spain Over Pissarro Painting Can Proceed
August 12, 2010

Davis Wright Seeks to Reunite Holocaust Survivor's Heir With $20 Million Painting
September 9, 2009

Covington Helps Spain Sink Salvage Claims in Shipwreck Suit
June 5, 2009

Yo Ho! New Shipwreck Raises Legal Questions from the Muck
February 3, 2009

Endless Odyssey: A D.C. Lawyer's Quest to Reclaim Sunken Artifacts Continues
December 1, 2007

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Very disturbing. The Spanish seem to have difficulty distinguishing between outright theft (of artwork) and an act of God (sinking ship).

Odyssey Marine found the gold through their own hard work and capital. Unless it was found in Spain's territorial waters, it doesn't belong to them anymore.

One wonders, now, why the federal district court wrote a so utterly wrong-headed decision in the Black Swan case. A few phone calls from well-placed officials in the State and Justice Departments, perhaps? I guess quid pro quos are okay when you have diplomatic immunity!
Let's hope Congressman Bilirakis follows up with a Congressional investigation. Abuses of power and influence like this should not get swept under the rug.

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