CPAC Chair Kislak's Views of the ECA and the Process for Imposing Import Restrictions on Cultural Goods

Then CPAC Chair Jay Kislak also provided his thoughts about the State Department Bureau of Educational and Cultural Affairs' handling of the imposition of import restrictions on cultural goods at the April 17, 2008, IFAR panel discussed further below at http://culturalpropertyobserver.blogspot.com/2009/07/ifar-event-who-what-why-and-how-of.html .

Mr. Kislak is probably best known for his service as a naval aviator in WWII, his successful career in real estate and his extremely generous contributions to the Library of Congress. See: http://www.loc.gov/exhibits/kislak/kislak-about.html Still, anyone interested in CPAC and how it operates can't but also appreciate Mr. Kislak's efforts to bring a level of transparency and fairness of process to that body's proceedings.

Mr. Kislak's comments at the IFAR panel related to those issues, though ironically as Mr. Kislak himself explained, "I did not prepare a speech because if I had, I would have had to present it first for review to the Bureau of Educational and Cultural Affairs and I was not about to do that."

Jay I. Kislak, "The Chairman's View," in “The Who, What, Why and How of the Cultural Property Advisory Committee (CPAC),” 10 IFAR Journal Nos. 3 &4 2008/2009 at 37. (hereinafter IFAR Panel).

Mr. Kiskak first discussed the differing interests of art museums and archaeological museums. He observed, "The archaeological museums are deeply committed to the same doctrine that the archaeologists are. That is, they will not touch anything that they did not take out of the ground themselves or that somebody did not take out in the way they wanted them to." Id.

He continued, "There are extremists on both sides. Some are extreme in the direction of dealers and collectors... To the other extreme, there are archaeologists that won't even look at an item, however how long it has been out, if they do not know where it came from and how and why, and if it was not excavated by a certified archaeologist. They will not even study it and put it in context." Id. at 37-38.

Mr. Kislak then discussed the composition of the Committee, lamenting that trade representatives did not have the breadth of international sales experience the Convention on Cultural Property Implementation Act (CPIA) contemplates. Id. at 38.

He also noted that because the CPIA contemplates that the CPAC will be made up of a "diverse group," "it is not always easy to keep things going." Id. For example, Mr. Kislak suggested that before joining the Committee he was "criticized vehemently by the archaeologists... because [he] collected... some Pre-Columbian artifacts." Id. Indeed, as a collector, he believes that he was "royally hated in some quarters." Id.

Mr. Kislak then expressed concerns about the process and ECA staff. He stated,

CPAC has public hearings, but they are too short. the public does not get enough chance-- five minutes really-- to be heard. To bring people down to Washington, let them make the trip from wherever they are coming [from], and [let them] speak only for five minutes, is not enough. But we do not have much choice based on the time allotted.

To what extent can we talk about the staff? First, let me tell you the definition of a bad bureaucrat that I heard last week at the Library of Congress. A bad bureaucrat is one who does something. The staff, by nature, has to be involved and also knowledgeable about the archaeological and ethnographic materials that are the subject of our discussions. Although the staff that I have seen are capable, extremely bright people who know quite a bit about what they are doing and do a fairly good job of attempting to be evenhanded, sometimes when somebody has a background in archaeology (as is the case), it becomes a bit difficult not to be slanted. However, the staff are government employees-- bureaucrats -- who run what we are doing.

Id.

Mr. Kislak continued,

To some extent I question CPAC’s necessary importance. First of all, the Committee has no power. Patty Gerstenblith stated this clearly. The Committee is purely advisory, and it is advisory to the U.S. President. He has delegated power down through the State Department. Has that power been abused? I can think of at least one occasion where the Committee’s decisions-clear-cut and unequivocal- were not adhered to. Practically every other decision has been adhered to, but on at least one occasion, that was not the case.

Id. at 38-39. (Mr. Kislak subsequently made a declaration in the ACCG, IAPN, PNG FOIA action that confirmed that ECA rejected CPAC’s recommendations with regard to coins. Declaration of Jay I. Kislak (April 20, 2009). filed in Ancient Coin Collectors Guild, et al. v. United States Department of State, C.A. No. 07-2074 (D.D.C). See http://www.accg.us/issues/news/doc19-3.pdf That Declaration also suggested that ECA failed to report to Congress about CPAC’s recommendations as well as the decision to reject them. Id. )

Mr. Kislak also participated in the question and answer period at the end of the IFAR panel.

There, Mr. Kislak first commented on questions of conflict of interest issues that have been raised with respect to various members. He noted,

[N]o longer is anyone requested to recuse himself, at least since I have been chairman.... Complaints on this subject from both ends of the spectrum have been made to the Committee. They have also been made to the State Department, that the Department did not even want it discussed. I insisted that if a letter came in addressed to me as chairman, the Committee would hear about it. I fought tooth and nail not to keep it secret because I don't believe in secrecy. There's no reason in the world for it to be secret. The conclusion was made that whether somebody should recuse him or herself was between that person and his conscious.

IFAR Panel at 40.

Mr. Kislak then commented on issues of secrecy and transparency. He stated,

The question of secrecy has been one of my pet peeves.... Occasionally, people have said, "Well, we do not want to disclose where the sites are." The sites were indicated in their requests, and the looters have already been there. I think this is a rather weak argument. This is the only advisory committee that I have ever been able to find that conducts everything in secret and will not disclose anything. Several members of our committee would like it more open, even some who are dedicated archaeologists.

Id. at 41-42.

Mr. Kislak related Committee transparency to larger issues. He stated,

In every other branch of government, there is disclosure, information is made public. We have a democracy, and it is government of the people, for the people, by the people, not by the bureaucrats over them. A major question with this Committee is: Are we, as members of the Committee, there to receive the information staff chooses to give us, and then, because we are appointed by the U.S. President, sign off and recommend something to the decision maker? Or, are we the Committee for whom the staff works? Even Patty [Gerstenblith] will tell you, the latter is what the law says-- that staff will be provided by the USIA [ECA's predecessor agency] or by another agency of the executive branch. But that's not the way it actually works. It should be that the staff will work for us and do what we want them to do, and look for the information that we want them to look for, where we want them to look for it. But we can look long enough, and we're out of office, and they are still there. Unfortunately, that's the way government works.

Id. at 48.

In response to a question from the audience about how change can be effected, Mr. Kislak concluded,

You cannot do anything by writing the Committee; you cannot do it by writing the State Department. Write your Congressman if you want something done, because this Committee is going to continue in secrecy so long as the people controlling it can control it that way. And I want to make it clear that I am not necessarily against any actions that were taken on any of the MOU's which were recommended by the Committee and put into action. I am, however, opposed to the way it is done because I think it is absolutely, completely, un-American, and I don't mind saying that. Not anywhere in our government do we do things this way, except with this group. Patty seems to disagree, and I know she's wrong.

Id. at 48-49.

This is the last of series of posts related to the IFAR Panel. Critics within the archaeological blogosphere of the ACCG, IAPN and PNG FOIA case and the ACCG's prospective customs action should take particular note. None of the IFAR panelists represent the interests of the numismatic trade or coin collectors. Yet, the statements of at least three former CPAC members (Kislak, Josephson and Fitz Gibbon) raise identical questions to those raised in this litigation.