Afghanistan: Hidden Treasures from the National Museum, Kabul

The NGA has done a spectacular job with its installation of the Afghanistan's Hidden Treasures Exhibit. The Government of Afghanistan should be quite proud about what the show says about Afghanistan's glorious multi-cultural past and the enduring spirit of the Afghani people.

The story about how the objects were brought to light after the fall of the Taliban is quite a tale to tell, but I found the artifacts themselves transcended even that. Walking through the exhibit one is struck with the diversity of objects and the cultures they represent. Ancient Afghanistan saw influence from multiple cultures during its ancient history, including Classical Greek and Roman, the Kushan and others. This makes sense when one considers that Afghanistan was on the Silk Road that linked China with the Classical Civilizations of Greece and Rome. As a coin collector, I was particularly interested to see indisputable evidence that "coins travel." One of the cases displayed a Roman Aureus of Emperor Tiberius along with a Parthian Silver Drachm that were found together in a Kushan era grave.

Looking at this mix of artifacts, I could not help but think of how ridiculous it is for cultural nationalists in countries like Greece and Cyprus to claim that "anything Greek anywhere in the world" should belong to the modern Greek or Cypriot nation states.

The Hill Newspaper Highlights Pending Chinese Import Restrictions Request and FOIA lawsuit

Kevin Bogardus interviewed me and others about the pending Chinese import restrictions and FOIA litigation against the State Department: http://thehill.com/business--lobby/coin-collectors-art-dealers-fear-restrictions-on-chinese-imports-2008-05-27.html

Overall, I think Mr. Bogardus did well. Trying to simplify fairly complex issues is no easy task. My one real quibble is that the story implied that only archaeological groups are interested in cultural heritage preservation. Plainly, however, collectors and dealers are also interested in cultural heritage preservation as well. After all, they spend a great deal of time and money collecting, preserving and displaying cultural artifacts. In many such cases, their efforts literally save artifacts from oblivion. The dispute with the archaeological community really is over how best to reconcile collectors' and dealers' efforts to preserve, study and display objects with the archaeological community's efforts to preserve archaeological context.

I would also note that the motivations of the archaeological community are not always as "pure" as is portrayed. It's not that I doubt the sincerity of their views. Rather, I have come to believe that the fear of losing an excavation permit acts as a powerful disincentive when it comes to criticizing host governments' approaches to cultural property matters or advocating "common sense" proposals like a Treasure Trove law to address the need to record as many artifacts as possible.

China offers a good example. During the 2005 CPAC hearing on the Chinese request, there was considerable testimony that it was Chinese government policy to repress Tibet's culture by destroying its cultural artifacts. Yet, members of the archaeological community either ignored the issue altogether or tried to discount its importance. As far as I know, the archaeological groups that support the import restrictions, including AIA, SAFE and Lawyers' Committee for Cultural Heritage Preservation, have much critical to say about collectors, dealers and Western museums, but nothing at all critical to say about Chinese treatment of Tibetan artifacts. In this regard, the views of archaeological advocacy groups would seem to run counter to those of the Dalai Lama. He has specifically recognized the importance of Western collectors' effort to preserve Tibetan cultural artifacts, particularly in the dark days after China's invasion of Tibet, when many of its monasteries were destroyed.

One final point. While there may be considerable disagreement about the merits of the Chinese request, it is refreshing to read that such figures as Patty Gerstenblith (quoted in the article) and Derek Fincham (in his blog: http://illicit-cultural-property.blogspot.com/2008/05/china-and-cpia.html) have expressed at least some qualms about State Department treatment of these issues as "State secrets." Perhaps, this will help prompt State to rethink its opposition to providing basic information to the public about its decision making processes. One would hope that the State Department would want to provide countries like China with shining of examples of American transparency of process.

Cash and CAARI-- the Cyprus American Archaeological Research Institute, ECA, the Department of Antiquities and the Bank of Cyprus Cultural Foundation

Archaeological pressure groups like Saving Antiquities for Everyone are fond of claiming that antiquities and coin dealers have a "profit motive" for arguing against import restrictions. Yet, the Cyprus American Archaeological Research Institutes's ("CAARI's") efforts to support Cyprus' request for import restrictions on cultural artifacts, including coins, raises its own questions. These questions have yet to be explored in any detail.

CAARI has certainly "cashed in" as a bridge between US archaeologists and the Cypriot government. CAARI has received Fulbright grants from the Bureau of Educational and Cultural Affairs ("ECA"), the same part of the State Department that imposed import restrictions on coins of Cypriot type: http://us.fulbrightonline.org/program_country.html?id=26 In addition, CARRI has also received a $500,000 challenge grant from the NEH to support the expansion of its library in Nicosia. See E. Hersher, "CAARI Awarded NEH Challenge Grant," CARRI News, Winter 2006 at 1. Finally, the CAARI website also touts the fact that it has received annual subsidies from the U.S. Department of State since its inception. http://www.caari.org/Research.htm Presumably, these grants also come from ECA, though the particular State Department funding source is not identified on CAARI's website.

I could not find any up to date reference to the financial support, if any, CAARI receives from the Cypriot government or Cypriot institutions, but I have to assume that at least some level of financial support beyond the Embassy dinners mentioned on the CAARI website is possible. Certainly, CAARI maintains close contacts with the Cypriot Government, its Department of Antiquities, and the Bank of Cyprus Cultural Foundation. A review of the CAARI website indicates each have hosted or participated in CAARI events in one way or another.

This last relationship is of particular note for coin collectors. The Bank of Cyprus Cultural Foundation ("BOCCF") "was born out of the Bank’s growing concern to assist in the rescue of the island’s cultural heritage, which has been pillaged or stolen by the Turkish forces from the occupied areas, and to promote the Hellenic culture of Cyprus at a professional and scholarly level." http://www.boccf.org/main/default.aspx?it=1&tabid=46&itemid=178. The BOCCF probably maintains the largest collection of coins of Cypriot type on the Island. http://www.boccf.org/main/default.aspx?tabid=46. Interestingly, while US institutions and collectors must now provide provenance information before importing such coins into the United States, the BOCCF (and Cypriot collectors) have no such requirement before importing such coins into Cyprus. Thus, import restrictions in effect put US collectors and institutions at a competitive disadvantage with the BOCCF and Cypriot collectors who wish to "repatriate" coins of Cypriot type. The BOCCF certainly buys coins on the open market for display in its coin museum.

In my opinion, there is at least an appearance of conflict of interest here. CAARI gets funding from ECA, the decision maker for import restrictions. CAARI asks ECA to support Cyprus' last minute demand for import restrictions on coins of Cypriot type. Those restrictions will benefit the Cypriot government and Antiquities Authority's nationalistic stance against foreigners owning "their cultural property." Meanwhile, the BOCCF now gets a competitive advantage against US institutions and collectors when it buys coins on the open market. Thus, the Cypriot government's nationalism is served when either US Customs repatriates unprovenanced coins back to Cyprus or the BOCCF purchases them on the open market. At a minimum, CAARI ingratiates itself with its host government and perhaps with one of the most important financial entities on the Island, the Bank of Cyprus.

Hopefully, over time we will learn more about CAARI and what, if anything, it received directly or indirectly for its support for import restrictions on coins of Cypriot type. In the meantime, one thing is clear. If groups like CAARI stuck solely to cultural exchanges and research, such questions simply would not arise.

Behind the Scenes Consultations Between State and CAARI Potentially Compromise Decision to Impose Import Restrictions on Coins of Cypriot Type

The State Department had a legal and ethical obligation to act as an "honest broker" in deciding whether to impose import restrictions on coins of Cypriot types. However, the facts discovered to date suggest that the State Department failed to meet this basic obligation, and indeed, the State Department may have even stacked the deck in favor of a foreign power and its allies in the Cyprus American Archaeological Resarch Institute ("CAARI") before imposing import restrictions on coins of Cypriot types.

From the beginning, serious concerns have arisen about how the process of imposing import restrictions on coins unfolded. These included: (1) receipt of a request from Cyprus for new restrictions on coins after the period for public comment elapsed; (2) failure to publish notice of receipt of the request in the Federal Register as was done in the past; (3) public announcement of the request only at the CPAC hearing meant to address extension of other restrictions; (4) after complaint, provision of only 10 days for public comments; and (5) failure to recuse a CPAC member who is beholden to the Cypriot government for the right to continue to excavate on the Island from voting on the request.

Even limited discovery to date in the ACCG, IAPN and PNG FOIA litigation has raised further questions. First, as noted in a prior post, even with extensive redactions, it remains clear that the State Department only provided the decision maker with the false choice of continuing the current MOU adding coins or discontinuing the MOU in its entirety. See http://culturalpropertyobserver.blogspot.com/2008/05/accg-report-on-pending-freedom-of.html This false choice seriously undercuts the State Department's ability to claim that it administers the Convention on Cultural Property Implementation Act without favor to one side.

In addition, it now also clear that the State Department consulted with a CAARI-affiliated archaeologist about restrictions on coins of Cypriot type-- EVEN BEFORE Cyprus asked the State Department to amend the MOU to include coins. The e-mail chain in question is heavily redacted. Nevertheless, from what was produced, it appears likely that the State Department was shopping for an "expert opinion" that State could legally impose import restrictions because it could be reasonably assumed that all unprovenanced coins of Cypriot type were illicitly removed from the ground in Cyprus. Of course, the numismatic community contested the claim that Cypriot coins did not circulate beyond the Island. Instead, they argued that published hoard evidence showed that one could not assume-- as is required under the CPIA-- that unprovenanced coins of Cypriot type were first found in the ground of Cyprus. Indeed, such coins have been found as far and wide as Egypt and Afghanistan. As such, they argued that it would be inappropriate to impose import restrictions on coins of Cypriot type.

There is no evidence that the State Department consulted with academics associated with neutral bodies like the ANS or the British Museum on this subject. As such, the State Department's reliance on an expert associated with CAARI belies any claim that the State Department only sought an unbiased version of the facts. Unfortunately, such reliance on a CAARI affiliated archaeologist appears all too consistent with State Department bias in favor of the archaeological community, which, after all, is heavily involved in the institution to institution cultural exchanges the State Department favors. Indeed, further review of CAARI's own newsletters suggests the State Department Bureau of Educational and Cultural Affairs (ECA) has had a long history of collaborating with CAARI. Apparently, ECA support has even included the provision of Fulbright grants to CAARI to carry out its work.

Educational exchanges are one thing. Actively working against the interests of collectors and the small businesses of the US numismatic trade is another thing altogether. In particular, it is also clear that CAARI -- which relies on the good graces of Cyprus to operate on the Island-- also has acted as a facilitator for Cypriot officials to plead their case for import restrictions on cultural artifacts. Thus, in 2005, CAARI VP Ellen Herscher organized consultations between the Cyprus Director of Antiquities Pavlos Florentzos and Maria Kouroupas and Andrew Cohen of the U.S. State Department's Cultural Heritage Center. See CAARI News, Winter 2oo6, at 3.

CAARI can certainly "lobby" the State Department within the provisions of US law. On the other hand, any State Department decision to reject CPAC's recommendations based on CAARI's self-interested support of a foreign power only raises additional questions about not only the fairness of the State Department's decision making, but its potential legality as well. Again, hopefully, we will learn more as the ACCG, IAPN and PNG FOIA lawsuit moves to its conclusion.

Harrison Ford Named To AIA Board

The AIA has named Harrison Ford to its Board and is promoting his new Indiana Jones movie on its website. See
http://www.archaeological.org/webinfo.php?page=10477. While I agree that Indiana Jones is a cultural icon and probably has done much to stimulate interest in archaeology, I find it a bit humorous that the AIA is honoring Ford for playing a character whose excavation methods must be viewed as "unscientific" to say the least. Even worse, doesn't Indy rip artifacts from their original context and spirit them out of source countries which likely have laws that declare all artifacts "found in the ground" state property? And then, doesn't Indy arrange for such artifacts to be displayed in [fictional] US Museums where they cannot possibly be appreciated in their original cultural contexts? Perhaps by honoring Ford and Indy, the AIA has signalled that the past transgressions of the museum and collecting community are not as bad as they have been made out to be and that the AIA is willing to offer an olive branch after all.

CAARI- A Shadow CPAC for the Cyprus MOU?

Reading the "choices" as laid out to Assistant Secretary Dina Powell in the State Department's "action memo" I can only conclude that the "fix was in" on imposing import restrictions on coins of Cypriot type, perhaps even before the prospect of including coins was first disclosed during Cyprus MOU hearing in January 2007. See http://www.accg.us/issues/news/lawsuit-pries-loose-documents-more-being-contested.

Preordained decisions going against past precedent do not just happen. Rather, they are usually the product of some undue influence behind the scenes. Thinking about which group might have been best situated to have had such influence has led me to consider the Cyprus American Archaeological Research Institute ("CAARI") as a prime "suspect." See http://www.caari.org/index.htm.

CAARI's primary purpose is to promote cultural exchanges with Cyprus in the form of US sponsored archaeological investigations on the Island. In addition, however, CAARI has also emphasized its stand on collecting. In particular, CAARI's code of ethics states that "the illicit trade of antiquities [must] be actively discouraged." See http://www.caari.org/CodeofEthics.htm. While this sounds noble, in practice this means support for the dubious proposition that any artifact without a detailed ownership history should be deemed "stolen" as a matter of law. As such, groups like CAARI support imposing the "Devil's proof" on collectors of even common artifacts, like coins, to prove the negative. Not surprisingly, imposing the Devil's proof is just what import restrictions do -- like those now in place on coins of Cypriot type.

Certainly, CAARI publicly supported the renewal of the Cyprus MOU and the inclusion of coins. That, of course, is its perogative. However, what makes me queasy is the suspicion that CAARI likely traded on its contacts with the Department of State ECA over cultural exchanges to plead Cyprus' case for import restrictions behind the scenes. The board of CAARI certainly has more than its fair share of former diplomats. In addition, Ellen Herscher, a well known advocate of the proposition that unprovenanced artifacts should be deemed stolen, serves as the organization's VP. See http://www.caari.org/Trustees.htm.

Did CAARI exercise undue influence to press for the inclusion of coins in the Cypriot MOU? Was that influence so great it's recommendations could even supplant those of the Cultural Property Advisory Committee, the committee of experts which by statute has the role to advise the State Department on such matters? Hopefully, we will learn more as the FOIA litigation brought against the State Department by ACCG, IAPN and PNG unfolds.

ACCG Report on Pending Freedom of Information Act Lawsuit against State Department

I prepared this report after reviewing the State Department's initial production of documents. This lawsuit should be of importance to anyone who thinks transparency of government processes is important:
http://www.accg.us/issues/news/lawsuit-pries-loose-documents-more-being-contested
Stay tuned for more information as the lawsuit progresses.

National Gallery of Art Exhibit of Afghan Treasures

I am really looking forward to the National Gallery of Art's exhibition of treasures from the National Museum, Kabul. See http://www.nga.gov/exhibitions/afghanistaninfo.shtm. What I am not looking forward to is activists from the archaeological community using a selective version of the events behind the recovery of these treasures to push their own anti-collecting agenda. Such a selective version of the cultural property issues facing Afghanistan was behind a bill introduced in Congress several years ago that would have authorized "emergency import restrictions" similar to those enacted under the "Emergency Restrictions on Iraqi Cultural Antiquities Act of 2004." Thankfully, that bill (H.R. 915) died in Committee after the House Ways and Means Committee accepted public comment about the legislation. For more, see the House Ways and Means Committee Subcommittee on Trade web site at: http://waysandmeans.house.gov/hearings.asp?formmode=comment&hearing=440
The bill's defeat does not mean that Afghanistan cannot seek "emergency import restrictions" itself. Rather, it means that if it does so, there will be no bypass of CPAC review and the opportunity for public comment. This, of course, was one of the major complaints about the "Emergency Restrictions on Iraqi Cultural Antiquities Act of 2004."

Unprovenanced Ancient Greek Coins on Exhibit at Smithsonian

"Classically Greek: Coins and Bank Notes from Antiquity to Today," is a travelling exhibit from Greece on display in the Smithsonian Castle until June 10, 2008. There are only a few ancient Greek bronze coins and modern Greek bank notes in the exhibit, but it is nice to see coins and bank notes of any sort on display at the Smithsonian. It has been some years since the Smithsonian closed its venerable numismatic display, and plans for a new exhibit will have to wait for the reopening of the American History Museum, which has been closed for renovations for several years.

In any event, I find it telling that the Greek institutions that organized the travelling exhibit did not include "provenance information" with their descriptions of the ancient Greek coins in the display. Perhaps, such information is not as critical for common artifacts like coins as some in the archaeological community would have us believe.

Israel Government Coins and Medals Corporation Makes Ancient and Modern Coins Available Together for Sale

Despite what one might think from reading certain well-known archaeological blogs, most foreign governments don't see anything wrong with the public being given access to common ancient artifacts, like coins. Ancient coins are openly sold in most of Europe with no readily apparent restrictions. Even Italy-- with its aggressive repatriation efforts against US Museums--has a vibrant internal market for ancient coins. Moreover, this is not just a European phenomenon. There is a large and quite open trade in early Chinese coins within China itself. Indeed, it has been reported that the Bank of China has a joint venture with a Chinese entrepreneur to sell coins from a 500 ton stash to tourists. Yet, for some reason, coins ended up on the list of items up for potential restriction under the still pending request for import restrictions on Chinese cultural artifacts.

Recently, news that the Israel Government Coins and Medal Corporations is selling sets containing both ancient and modern coins caught my eye. For more information, see http://www.isragift.co.il/asp/subcat.asp?cat=1&sub=103&lang=eng Modern Israeli coin designers have looked to ancient coins for inspiration. What better way to celebrate Israel's 60th anniversary than purchasing a set containing Israel's well-designed ancient and modern coinage for your favorite archaeologist!

John Russell of the State Department-- From Sanctions Breaker to Regulator?

John Russell has had quite an interesting few years. Like many archaeologists who excavated in Iraq during Saddam Hussein's Baathist regime, Russell was very critical of UN Sanctions and US Policy. His activism included a visit to Iraq in 2001 to attend a conference on the "Birth of Writing" that seemed to be designed as much as a propaganda effort to help break international sanctions as anything else. More about this conference can be found in an earlier posting on this blog: http://culturalpropertyobserver.blogspot.com/2008/04/tarik-aziz-goes-on-trial-for-executions.html.

In any event, after the looting of the Iraq Museum, Russell was at the forefront of criticising the US Government's efforts at protecting Iraqi cultural property, particularly from early Mesopotamian cultures. His activism included lobbying the US Congress to pass a bill that ultimately became "the Emergency Protection for Iraqi Cultural Antiquities Act of 2004." See http://www.house.gov/english/press_2003_2004/iraq.html.

As part of this lobbying effort, on June 15, 2003, the Washington Post published an op-ed piece Russell authored entitled, “"We're Still Missing the Looting Picture.” In that piece, Russell at least impliedly accused US dealers and collectors of wanting to buy looted Iraqi materials. I suspect he may have been even more harsh in his criticisms of US Museums, collectors and dealers in private meetings with members of Congress and their staffs. Certainly, there is reason to believe that Russell adheres to the view, common in archaeological circles, that any artifact without a demonstrable provenance should be deemed "stolen" as a legal matter.

That said, Russell also showed his personal commitment to protecting Iraq's heritage by travelling to the country to serve as Senior Advisor to the Coalition Provisional Authority ("CPA") and the Ministry of Culture in Iraq. Subsequently, Russell returned to the United States and in August 2005 was named "Special Coordinator for Iraqi Cultural Heritage" in the Bureau of Educational and Cultural Affairs ("ECA"), Cultural Heritage Center, US Department of State. I have reason to believe he holds this same (or a similar) post with the Department of State today. He certainly identified himself as a State Department employee to me as recently as July 2007.

How Russell was transformed from a harsh critic of US policy willing to buck international sanctions on Iraq to a State Department employee is no doubt an interesting story in itself, but beyond the scope of this blog. Instead, what is relevant here is what this transformation potentially says about how ECA handles cultural property matters. While one can't help but admire Russell's strong commitment to his own beliefs, in my opinion, it would be an inherent conflict of interest for Russell to have anything at all to do with the recent decision to impose "emergency restrictions" on Iraqi cultural property. After all, he was one of the few individuals instrumental in lobbying Congress for its passage! How can anyone reasonably expect he would want anything but the broadest application of import restrictions possible?

Wouldn't ECA ecognize such a conflict of interest and recuse Russell from such work? Don't bet on it. For example, recently the State Department refused to recuse a CPAC member who excavates in Cyprus (and hence must be licensed by Cypriot authorities) from voting on the renewal of import restrictions on Cypriot artifacts.

In my opinion, the infiltration of archaeologists who consider any artifact without a demonstrable provenance to be "stolen" into the decision making framework at State is one of the major problems with the way ECA handles its brief of overseeing the imposition of import restrictions. Moreover, while ECA's staff appears to place a premium on the views of archaeologists and the countries in which they excavate, in constrast, the views of museums, collectors and dealers appear to be discounted as being motivated by financial considerations or even "greed." No wonder the "end" of "cultural property protection" justifies the "means" of violating the provisions of the CPIA and its goal of achieving a balance of all legitimate interests (including those of museums, dealers and collectors) with impunity.

"Emergency" Iraqi Restrictions-- Dry Run for Upcoming Chinese Restrictions?

The breadth of the "emergency restrictions" on Iraqi cultural artifacts reminds me of the breadth of the still-pending request for import restrictions on Chinese cultural artifacts. The State Department has reported that the Chinese request includes material dating from pre-historic times to the end of the Chinese Empire, circa 1911:

As the State Department explains,

"The People's Republic of China seeks import restrictions on categories of pillaged archaeological material from the Paleolithic Period to Qing Dynasty including, but not limited to:

Metals - bronze, gold, and silver vessels, sculpture, utensils, jewelry, coins, weapons, and armor
Ceramic - stoneware and porcelain vessels, sculpture, jewelry and architectural elements
Stone - vessels, sculpture, weapons, utensils, jewelry, architectural elements
Painting and calligraphy - on wood, paper, silk, stone, fresco
Textiles - silk clothing, hangings, furnishings
Lacquer, bone, ivory and horn objects, including inscribed materials
Wood and bamboo objects, including inscribed objects"

See: http://exchanges.state.gov/culprop/cn04sum.html

It seems to me that the State Department may seek to use the Iraqi "emergency" restrictions as precedent to extend import restrictions to virtually any cultural artifact from virtually any era from virtually any state that requests it. Given the inclusion of 20th c. paintings on the Iraqi "designated list," it does not even appear that the State Department feels constrained by the CPIA's definitions of "archaeological" and "ethnological artifacts" in deciding to impose import restrictions.

The United States only agreed to the 1970 UNESCO Convention with the proviso that it would retain its "independent judgment" to decide the extent to which it would impose import restrictions at the behest of foreign states. Early on, import restrictions were only applied against a limited number of artifacts from a limited number of mostly poor, third world countries that had difficulty policing their borders. Now even rich EU countries like Cyprus and Italy have benefitted from US restrictions even as they categorically refuse to undertake "self-help" measures like passing "Treasure Trove" laws. At the same time, restrictions have been imposed on more and more types of artifacts from more and eras, up to and including the 20th c. Unfortunately, there appears to be no end to such "culture creep" in sight.

Emergency Restrictions on Iraqi Cultural Property, Bait and Switch, Repatriate the Torah, Coinage Coincidence, Ex Post Facto Law and Other Maladies

Further review of the Federal Register notice and a State Department press release available here: http://www.state.gov/r/pa/prs/ps/2008/apr/104224.htm has prompted some additional, albeit rambling, thoughts about the recent imposition of "emergency" restrictions on Iraqi cultural artifacts.

First, collectors like me can't help but feel like the victims of a "regulatory bait and switch." Let's face it. There is a huge contrast between the restrictions as advertised in 2003-2004 and the nature and extent of the "emergency restrictions" that were actually imposed in 2008. Reading the laundry list of "Iraqi cultural property" on the designated list, I could not help but think Congress was bamboozled into thinking they were authorizing import restrictions tailored to combat the effects of looting of the Iraq Museum and archaeological sites, primarily of things like cylinder seals and cuneiform tablets, in other words, the stuff of early Mesopotamian civilizations. See http://www.house.gov/english/press_2003_2004/iraq.html However, instead of targeted restrictions relating solely to such early artifacts, State and Customs have instead imposed import restrictions on "any cultural property of Iraq" from pre-historic times to the 20th c. with little apparent regard for whether or not such "archaeological or ethnological material " is "culturally significant," whether or not the record of the particular culture that produced the material (some of which cultures were not even centered in Iraq) is in fact in jeopardy from pillage of "crisis proportions, " whether or not there is evidence the restrictions will reduce the incentive for pillage, and whether or not State and Customs in fact has produced a "sufficiently specific and precise" designated list of material that ensures the restrictions "are only applied to the archaeological and ethnological material" that is subject to the emergency action. All these criteria are required under the Convention on Cultural Property Implementation Act ("CPIA"), which remains the legal basis for imposing emergency restrictions under the 2004 legislation on Iraq.

Rather than following the law, State and Customs have instead simply decided to give untrained Customs inspectors absolute discretion to force importers to prove that any cultural artifact whatsoever that "looks Iraqi" either is not in fact Iraqi or that it left the country before 1990. For many types of common artifacts--like coins-- this "Devil's proof" will simply be impossible to meet. As a result, it is at least possible that many artifacts will be repatriated back to Iraq for no other reason than it is not financially worthwhile to contest a claim made by Customs. True, there have been relatively few seizures of Iraqi cultural property to date, but then again, Customs has not previously published such an exhaustive "designated list" that carries with it the implication that an item is "Iraqi," even if it may not in fact be. This problem is exacerbated because many of the artifacts on this designated list are identical to others typically found around the Middle East and/or artifacts that have been widely collected in the West for generations. It will be interesting to see if Customs now reports a major "uptick" of Iraqi materials that have been seized at our borders. If so, watch out for claims that the long-promised "tidal wave" of looted Iraqi material has finally left its secret warehouses for our shores!

Second, I find it particularly disturbing that our government has seen fit to empower Customs to seize Torah scrolls for repatriation to Iraq. (See Fed. Reg. Notice 4/30/08 at 2334.) Once there, they certainly will not be turned over to Jewish authorities. There once was a vibrant Jewish community in Iraq, but virtually all Jews have left the country under what can only be politely characterized as strained circumstances. I have read stories that many old Torahs remain in the country as unwanted relics of a vibrant Jewish past. Recently, American Jewish groups have rescued some of these uncared for Torahs and have turned them over to synagogues here in the United States. For more, see http://www.thejewishbugle.com/community-news/a-400-year-old-sifrrei-torahs-journey-from-iraq-to-am-2.html Yet, such good works are suspect to ideologues. In the minds of cultural nationalists in the archaeological community and cultural bureaucrats at State, the Iraqi Government alone has an unqualified right to these materials-- even though sadly this government (like its murderous predecessor) is not exactly known for its heroic efforts to preserve and protect Jewish culture.

Third, I also noticed an interesting coincidence related to coins. The very first restrictions on coins under the CPIA were announced in July 2007 around the same time the State Department apparently made the requisite findings to impose import restrictions on coins from Iraq. (See Fed. Reg. Notice 4/30/08 at 23334.) The numismatic community suspects State decided to impose import restrictions on coins of Cypriot type against the recommendations of the Cultural Property Advisory Committee. Is it possible that was done in part so that restrictions could be justified on Iraqi coins too? Perhaps, the ongoing FOIA law suit brought against State by three numismatic groups will determine whether this is indeed a coincidence or not.

Finally, I wonder if a clever lawyer can attack the Emergency Protection of Iraqi Cultural Antiquities Act of 2004 as an "ex post facto law." That law arguably imposes an ex post facto requirement to document any Iraqi material back to 1990 as of 2004.

Anyway, the new "emergency regulations" leave much to consider and I am sure this will not be the last post on them.