Germany v. Phillip: The Foreign Sovereign Immunities Act (FSIA) and Art Restitution following World War II

Jennifer Linares is a junior in the College studying government, history, and French and serves as a blog editor for GUULR.

Among the many atrocities that Nazis committed against victims of the Holocaust was the stripping of property from Jewish people before being sent to concentration camps. In recent decades, these acts of expropriation have become a highly contested subject in the field of international justice, as many Holocaust victims and their descendants have been filing suits in attempts to reclaim seized property, particularly works of art.

One of the most famous cases to come out of these art restitution efforts was Republic of Austria v. Altmann. In this case, the plaintiff, Maria Altmann, filed a suit against the Austrian government to reclaim five family-owned Gustav Klimt paintings that were stolen by Nazis after her family fled Austria following its annexation by Nazi Germany in 1938. As with many art restitution cases that were filed after World War II, Republic of Austria v. Altmann concerns interpretations of the Foreign Sovereign Immunities Act (FSIA), which establishes the circumstances under which a foreign sovereign nation can be sued in American federal or state courts.[1] In this case, the Supreme Court of the United States held that the FSIA applies retroactively.[2] Therefore, because the FSIA’s standards apply to situations that precede its creation, retroactive immunity did not apply to Austria and the Austrian government could be tried by an American court.[3] This allowed Altmann to move her case from its initial status as a domestic case in Austria to an international case in front of the U.S. Supreme Court, which ruled in favor of the restitution of the paintings to Altmann.

However, the ruling in Republic of Austria v. Altmann is by no means an indicator that all art restitution cases have been successful in their efforts. In fact, the court’s interpretation of the FSIA in this case is quite exceptional, as there have been many art restitution cases in which states have been granted immunity from litigation. This is particularly true of the ruling in Germany v. Phillip, in which the U.S. Supreme Court decided against the descendants of Holocaust victims seeking art restitution and did not allow them to file suit against Germany in an U.S. court.[4] The artwork in question was the Guelph Treasure, a collection of medieval ecclesiastical art that was purchased prior to World War II by Jewish art dealers. During the war, these art dealers were forced to sell the collection at a fraction of its original value to the agents of Hermann Wilhelm Göring, one of the most powerful figures in the Nazi Party.

In Germany v. Phillip, the Supreme Court ruled that exceptions of foreign immunity did not apply, arguing that because this act of expropriation was committed against German citizens and the FSIA’s exceptions “do not extend to a sovereign’s taking of the property of its own nationals,” the Guelph Treasure was not taken in violation of international law.[5] Additionally, while there are exceptions to the FSIA’s standards in cases of state-sponsored terrorism and international terrorism, there are no mentions of exceptions in cases of other heinous acts such as genocide or torture. The act’s failure to address these circumstances is especially unjust in the context of the Holocaust, as the court’s ruling in Germany v. Phillip fails to recognize how the forced sale of the collection constituted part of the Nazi’s greater plan to destroy the livelihoods of Jewish people. As a result, the court’s narrow interpretation in this case fails to consider genocide as a violation of international law and interprets the FSIA in a manner that not only prevented the plaintiffs from pursuing justice but also creates a negative precedent for future World War II art restitution cases.


[1] The Foreign Sovereign Immunities Act, Title 28, § 1605 (1976).

[2] Republic of Austria v. Altmann, 541 U.S. 677 (2004).

[3] Id.

[4] Federal Republic of Germany v. Philipp, 592 U.S. 19 (2021).

[5] Id.

DOES THE STATE SECRETS DOCTRINE REQUIRE A SECRET?

Lauren Scarff is a senior in the School of Foreign Service majoring in International Politics. She is currently the Editor-in-Chief for the Georgetown University Undergraduate Law Review.

On October 6th, 2021, the Supreme Court heard United States v. Zubaydah, a peculiar case that calls into question, among other pertinent national security law issues, the state secrets doctrine. Abu Zubaydah is a Palestinian man who was captured in Pakistan in 2002 under suspicion of being a top al-Qaeda leader. Although the CIA concluded in 2006 that Zubaydah is not a member of al-Qaeda, Zubaydah has remained in U.S. custody, primarily in Guantanamo Bay, since 2002.[1] This case, however, centers not on Pakistan, Cuba, or Guantanamo, but Poland. The European Court of Human Rights determined that, from December 2002 to September 2003, Zubaydah was held at a CIA black site located in Poland where he was subjected to waterboarding 83 times, locked in a small box for hundreds of hours, denied sleep, and forced to remain in stress positions. Polish officials are now investigating whether any Polish nationals were complicit in Zubaydah’s torture and, if so, to what extent. Pursuant to their investigation, Abu Zubaydah, his lawyers, and Polish prosecutors want to subpoena CIA contractors James Mitchell and John Jessen, but the federal government has blocked the subpoena by invoking the state secrets doctrine.[2][3]

The state secrets doctrine was first established in United States v. Reynolds, and it holds that government information should remain secret and not be revealed during litigation, even if the claimant has a right to that information, when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”[4] Given Zubaydah’s case hinges on information about top secret CIA black sites and torture methods, at first glance, it appears that the precedent set by Reynolds would clearly apply here. Zubaydah’s case is peculiar, though, because the information he seeks from the government is not actually secret. In 2014, the Senate Intelligence Committee released an unclassified executive summary of a report on the CIA’s use of torture. In this unclassified executive summary, Zubaydah’s name is mentioned 1,343 times, and the summary details Zubaydah’s torture.[5] The question is thus raised, does invoking the state secrets doctrine require a secret?

Part of the government’s argument hinges on the fact that the CIA has never confirmed or denied much of the information Zubaydah seeks. Therefore, the government argues that, without express government disclosure, information that appears to be public knowledge can still qualify as a state secret. In particular, the government argues that testimony from Mitchell and Jessen could jeopardize “clandestine liaison relationships,” likely referring to relationships with those foreign nationals aware of or operating within the Polish black site, which in turn could threaten other clandestine relationships and security services. The government claims that exposing these relationships could pose a threat to national security. In the government’s petition for a writ of certiorari, it chastised the Ninth Circuit opinion, which ruled in Zubaydah’s favor, for not showing proper deference to the government’s assessment of national security risks and what is or is not considered public information.[6] The government’s argument is bolstered by the fact that it seems that some of the information Zubaydah may want has not yet been made public. For instance, the exact location of the Polish black site and if any Polish nationals were operating in that black site.

However, Zubaydah’s lawyers claim that Polish prosecutors do not seek specific information on the Polish black site that has not already been made public. When asked what information the Polish prosecutors seek, Zubaydah’s lawyer replied “What he [the Polish prosecutor] does need to know is what happened inside Abu Zubaydah’s cell between December 2002 and September 2003. So I want to ask simple questions like, how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And, yes, was he tortured?”[7] In essence, Zubaydah, his lawyers, and the Polish prosecutors want further detail on already public information, but supposedly do not seek classified information that has not already been made public in some manner.

The government’s insistence in this case on invoking the state secrets doctrine to protect already public information seems to signal an abuse in the government’s use of the state secrets doctrine. The Court has historically granted great deference to the government when it claims that certain information must be protected under the state secrets doctrine.[8] In fact, the mention of information potentially being a threat to national security effectively muzzles anyone seeking that information. In Zubaydah’s case, the government raises valid concerns about the potential for actual classified information to be released should the state secrets doctrine not be enforced, but if Zubaydah genuinely seeks only further details on already public information, the government’s claim to the privilege of the state secrets doctrine seems absurd. The relentless efforts from the government to protect already public information begs the question, what other information has the government suppressed in the name of state secrets and national security that perhaps should not fall under those privileges?

The Court may not issue an opinion on the government’s use of the state secrets doctrine and whether the doctrine requires an actual secret, as Justices Gorsuch, Sotomayor, and Breyer have asked if Zubaydah himself could testify and provide the information the Polish prosecutors seek.[9] This move would be unprecedented, as Guantanamo detainees’ communications are highly restricted due to security concerns. However, it could provide a compromise that does not require the Court to determine if the government can quash the subpoenas to Mitchell and Jessen in the name of the state secrets doctrine. If Zubaydah testifies to his own torture, the alleged state secrets that would be contained in Mitchell and Jessen’s testimony would not be made public, and the Polish prosecutors could obtain the information they seek. On October 15th, 2021, the government issued a letter to the Supreme Court noting that the Biden administration would allow Zubaydah to provide limited testimony to Polish prosecutors.[10] Zubaydah awaits the court’s decision to see if his testimony will, in fact, be the solution to this complex state secrets issue. 


[1] Rohini Kurup, Supreme Court to Hear State Secrets Case Involving Guantanamo Detainee, Lawfare (June 10, 2021), https://www.lawfareblog.com/supreme-court-hear-state-secrets-case-involving-guantanamo-detainee.

[2] Robert Barnes, Supreme Court considers whether information widely known can be state secret, Washington Post (Oct. 6, 2021), https://www.washingtonpost.com/politics/courts_law/supreme-court-guantanamo-zubaydah/2021/10/05/9546913e-261d-11ec-8d53-67cfb452aa60_story.html.

[3] Ian Millhiser, The Supreme Court confronts the CIA’s worst-kept secret, Vox (Oct. 6, 2021), https://www.vox.com/2021/10/6/22701048/supreme-court-torture-cia-abu-zubaydah-state-secrets-guantanamo-united-states.

[4] United States v. Reynolds, 345 U.S. 1 (1953).

[5] Millhiser, supra note 3.

[6] Kurup, supra note 1.

[7] Barnes, supra note 2.

[8] Kurup, supra note 1.

[9] Amy Howe, Argument over state secrets and CIA black sites takes unexpected turn in final few minutes, SCOTUSblog (Oct. 6, 2021), https://www.scotusblog.com/2021/10/argument-over-state-secrets-and-cia-black-sites-takes-unexpected-turn-in-final-few-minutes/.

[10] Ariane de Vogue, Biden admin tells Supreme Court that Guantanamo detainee can provide limited testimony, CNN (Oct. 17, 2021), https://www.cnn.com/2021/10/17/politics/biden-supreme-court-abu-zubaydah-guantanamo/index.html.

The Next Chapter of Vagrancy Laws in the United States

Veronika Matysiak is a junior in the School of Foreign Service majoring in Culture and Politics. She is currently an Assistant Editor for the Georgetown University Undergraduate Law Review.

Vagrancy laws, which regulate public conduct and social order, have been a feature of English and American law for centuries. The body of vagrancy laws was subject to difference across states and localities, but governed offenses that would “unreasonably disturb or alarm the public,” including homelessness, loitering, begging, and other forms of disorderly conduct.[1] Modern jurisprudence, in particular Papachristou v. City of Jacksonville (1972), has found vagrancy statutes to be unconstitutional. However, despite this de jure ban, trespassing laws and anti-homeless measures have become a new method of enforcing the spirit of vagrancy laws.

            American vagrancy laws have roots in English work laws, namely the 1351 Statute of Labourers, which restricted the movement of serfs in search of better pay by requiring “able-bodied persons” to maintain consistent wage labor.[2] This common law tradition was continued in the American colonies and post-revolution order. Article IV of the Articles of Confederation specifically excepted “paupers” and “vagabonds” from receiving the full “privileges and immunities of free citizens.[3] Though this idea was not included in the equivalent article of the Constitution, the notion persisted, especially during the Jim Crow era, as increasingly restrictive vagrancy laws were adopted across the South to limit social mobility for African Americans.[4] The contemporary history of vagrancy laws reached a peak during the Civil Rights and Counterculture movements of the 1960s, when they were used to justify arrests of nearly anyone deemed “subversive” by the police, even being described as “an escape hatch from the Fourth Amendment’s protections against arrest without probable cause.”[5] In 1962, Rev. Fred Shuttlesworth, co-founder of the Southern Christian Leadership Conference, was arrested for loitering on a street corner, solidifying perceptions that vagrancy laws could be applied by police with impunity to make arbitrary arrests.[6]

            Vagrancy laws were not always controversial. The Supreme Court previously upheld vagrancy laws in New York v. Miln (1837), explaining “We think it as competent and as necessary for a state to provide precautionary measures against this moral pestilence of paupers, vagabonds, and possible convicts; as it is to guard against the physical pestilence […].”[7] However, the Court reversed this position in Edwards v. California (1941), rejecting the previous notion that unemployment and poverty would create a threat to society and arguing that “poverty and immorality are not synonymous.”[8] The narrow standing of the Edwards decision allowed local enforcement of vagrancy laws to continue until the decision in Papachristou v. City of Jacksonville (1972). Finally, vagrancy laws were found to be unconstitutional for their failure to provide adequate notice of what constitutes criminal behavior and the lack of minimum guidelines to govern law enforcement.[9]

            Today, the idea of enforcing public social conduct has returned to regulate the actions of homeless people. The availability of official figures on homelessness in the United States is limited, though estimates average around 550,000 homeless individuals per year.[10] The highest homeless populations are concentrated in urban areas, often living in public areas and receiving limited resources from city management. The high visibility of homelessness in cities has led to many laws criminalizing certain behaviors often exhibited by homeless people, including panhandling, sleeping in public areas, and remaining in public places for too long.[11] This increased scrutiny on high-risk populations has significantly increased the incidence of confrontations between homeless people and police. In San Francisco, a 2013 survey found that 10-24% of people in jail had been homeless at the time of their arrest, even though only about 1% of San Francisco’s population is homeless.[12] This disparity is also pronounced when comparing homeless people living in shelters versus those living on the street. A study conducted between 2015 and 2017 reported that unsheltered homeless people experience ten times the number of police incidents as sheltered homeless people.[13] This issue is also important to consider through a racial lens, as nearly 40% of the homeless population in the United States is African American.[14]

            A relatively recent focus has been placed on the use of trespassing charges as a novel method of arresting homeless people without infringing upon First Amendment freedoms. In 2019, Eugene, Oregon, a city with one of the highest homelessness rates in the country, issued more trespassing charges than speeding tickets.[15] Strikingly, 75% of trespassing defendants were homeless.[16] This statistic is compounded by findings that African Americans are arrested on trespassing and vagrancy charges twice as often as white Americans.[17]

            Some hope remains for reversing this alarming trend. Courts have acknowledged the unique challenges facing homeless people before the law and carved out exceptions. In 2016, the Massachusetts Supreme Court ruled that necessity could be used as a legal defense for addressing criminal trespassing charges.[18] In 2019, the Ninth U.S. Circuit Court of Appeals ruled that camping and sleeping bans could not be upheld in Boise, Idaho if there were no alternative options for shelter.[19] These lower-level verdicts correspond with national trends seeking to avoid criminalizing homelessness. In 2015, the Department of Justice argued that “criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.”[20] Indeed, the criminalization of homelessness and associated activities is the next legal challenge in the arena of civil rights. As long as localities criminalize homelessness, this will continue to be the modern iteration of vagrancy laws, disproportionately targeting low-income communities and people of color in urban areas.


[1] Garner v. Louisiana, 368 U.S. 157 (1961).

[2] Vagrancy and Disorderly Conduct, American Law and Legal Information, https://law.jrank.org/pages/2240/Vagrancy-Disorderly-Conduct-History.html (last visited Oct 17, 2021).

[3] U.S. Art. of Confed. art. IV.

[4] Vagrancy and Disorderly Conduct, American Law and Legal Information, https://law.jrank.org/pages/2240/Vagrancy-Disorderly-Conduct-History.html (last visited Oct 17, 2021).

[5] Risa Goluboff, The Police Power That Shaped the 1960s: Vagrancy Law Time (2016), https://time.com/4199924/vagrancy-law-history/ (last visited Oct 17, 2021).

[6] Ibid.

[7] New York v. Miln, 36 U.S. 102 (1837).

[8] Edwards v. California, 314 U.S. 160 (1941)

[9] Vagrancy Laws, Encyclopedia of the American Constitution (2021), https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/vagrancy-laws (last visited Oct 17, 2021).

[10] The State of Homelessness in America, National Alliance to End Homelessness (2019), https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-report-legacy/ (last visited Oct 17, 2021).

[11] Ryan Little, Cities Try to Arrest Their Way out of Homeless Problems ABC News (2020), https://abcnews.go.com/US/wireStory/cities-arrest-homeless-problems-71511969 (last visited Oct 17, 2021).

[12] Vera Report Links Homelessness to the Criminal Justice System, Vera Institute of Justice (2020), https://www.vera.org/newsroom/vera-report-links-homelessness-to-the-criminal-justice-system (last visited Oct 17, 2021).

[13] Five Charts That Explain the Homelessness Jail Cycle, Urban Institute (2020), https://www.urban.org/features/five-charts-explain-homelessness-jail-cycle-and-how-break-it (last visited Oct 17, 2021).

[14] Ryan Little, Cities Try to Arrest Their Way out of Homeless Problems ABC News (2020), https://abcnews.go.com/US/wireStory/cities-arrest-homeless-problems-71511969 (last visited Oct 17, 2021).

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] State Supreme Court Affirms Law Does Not Permit Criminalization of Homelessness, American Civil Liberties Union (2016), https://www.aclu.org/press-releases/state-supreme-court-affirms-law-does-not-permit-criminalization-homelessness (last visited Oct 17, 2021).

[19] Andrew Weber, Supreme Court passes on Boise Camping Ban Case, opening up Austin’s rules to lawsuits KUT Radio (2019), https://www.kut.org/crime-justice/2019-12-16/supreme-court-passes-on-boise-camping-ban-case-opening-up-austins-rules-to-lawsuits (last visited Oct 17, 2021).

[20] In The Shadow of Bell V. Boise, Street Spirit (Jan. 14, 2016), https://thestreetspirit.org/2016/01/14/in-the-shadow-of-bell-v-boise/.