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.