Kate Fitz Gibbon and a Critique of CPAC

Kate Fitz Gibbon critiqued the State Department Bureau of Educational and Cultural Affairs' administration of CPAC at the IFAR panel held in New York on April 17, 2008. See below at http://culturalpropertyobserver.blogspot.com/2009/07/ifar-event-who-what-why-and-how-of.html .

President Clinton appointed Ms. Fitz Gibbon, a specialist in Central Asian art, to CPAC. She served as a trade representative from 2000-2003. Today, Ms. Fitz Gibbon is in private practice in Santa Fe, New Mexico. See: http://www.fitzgibbonlaw.com/Home She also serves as the Vice-President of the newly formed Cultural Policy Research Institute. See: http://www.cprinst.org/cpri-bo/kate-fitz-gibbon

On the panel, Ms. Fitz Gibbon first focused upon the disagreements in the Committee about the meaning of statutory language she deemed clear. She stated,

Often the question is, what is cultural patrimony? Some members think it is a subset of special objects with special meaning to a country’s history or religion; or something that is the highpoint of art or simply touches a nation’s heart. Others think it is everything from coins to potsherds. Ancient coins from Cyprus have recently become the subject of embargo through the efforts of the Committee. One of the difficulties of placing an embargo based on the origin of materials, however, is that ancient coins were circulated in many millions throughout the ancient world and are often unidentifiable as to the place of origin. The committee is not much interested in the difficulties of ascribing place of origin to widely circulated objects….

The Cultural Property Implementation Act is a very good, very sensible law as far as it goes, and we ought to be capable of a reasonable interpretation. The problem is that different factions on the Committee have read the words very differently. In many instances, from my ‘plain reading,” the Committee has substantially altered Congressional intent…Too many times, when Congress intended the Committee to use a scalpel, it has used a club instead.

IFAR Journal Vol. 10 Nos. 3 & 4 2008/2009 at 34-36. Later on in a question and answer period, Ms. Fitz Gibbon elaborated,

I’m a plain reader, and, to me, a threshold is a threshold and not a bump in the rug. I see the Committee’s work as largely aspirational…. [A]lthough I can’t talk about what went on in the Committee and don’t want to-I’m speaking from my perspective and reading of the law-it seemed to me that there were a lot of contortionist moves on CPAC that were made necessary because the requests were inadequate in some way or another. I was shocked when I first came on the Committee that we were handed a list of the four determinations and the second half of Part C was missing. I went to the Committee as a layperson, but I have since been inspired to go to law school as a result.

Id. at 46-47.

Ms Fitz Gibbon also expressed serious concerns about lack of transparency and related issues. She stated,

The secrecy under which the Committee operates harms it, as does the lack of transparency, the absence of Congressional oversight and any kind of a corporate memory among the Committee members. At my first meeting, which was a renewal meeting, we were not supplied with either the country's request or the Committee's recommendations from the previous granting of import restrictions. I asked for it, and we were given it, but it astounded me that the information was not part of the process. I am also shocked that repeated Freedom of Information ... requests for information have gone unanswered in recent years. How can the public give testimony if they don't know what's at issue? .... [I]t ill serves the Committee when the source of a country's request is obscured or hidden.

Id. at 35.

She also elaborated in the question and answer session:

We're not just talking about diplomacy and the ability of the State Department to refrain from stepping on other people's toes. We're talking about important decisions that are going to be made about what type of art will be accessible to the American public.... To permit a situation in which the actual request by the country in terms of the detailed information regarding the items that will no longer be allowed to enter the country .... to have that information not available, as was the case when there was a last minute addition of coins to a certain request [Cyprus], that does a real disservice to the American public interest. It is also a disservice to the principle that the People can come to Washington to have their five minutes "in the sunshine" and to argue for or against an element of the request.....

Id. at 43.

Finally, Ms. Fitz Gibbon also touched upon philosophical concerns about the Committee's mandate. She stated,

Congress gave the Committee only one tool: embargo. Embargo by itself is the equivalent of "zero tolerance" or "just say no" or "choose abstinence," and it is about as effective. When the only tool that you have is a blanket one like embargo, it can be used in ways that do more harm than good.

Most requesting countries are desperately poor-- they need help in building local museums and educational programs. They need assistance in documenting what they own so that if it is stolen they know what they are missing. The Cultural Property Implementation Act was not set up to establish such programs. However, we are enjoined to make recommendations for actions that will further the preservation of cultural heritage. Such recommendations would be more likely to be acted upon if they did not disappear into some filing cabinet at the end of the meeting, never to be seen again. There is terrible archaeological loss when sites are looted. The loss is the same when a massive hydroelectric project inundates twelve thousand sites, as recently happened in China. It seems silly for the U.S. to address one situation and ignore the other.

Government is all about sovereignty; it is about control: about controlling your own people, your own art, your own history. All nations share that impulse for control. But society should be wary of delegating the control of history to government. When ethnic strife and hatred of your nearest neighbor result in the destruction of hundreds of mosques and monuments in the former Yugoslavia, the loss of art is a symptom of much greater social harm.... I will end with just one thought: that we might be placing art in bad company when we grant exclusive control to governments. It makes me really nervous.

Id. at 35-36.