Thursday, March 8, 2012

Half-Truths from a Self-Styled "Cultural Heritage Lawyer?"

Self-styled "Cultural Heritage Lawyer" and past SAFE VP/ New Hampshire Prosecutor Rick St. Hilaire thinks that more people should go to jail for "crimes against cultural property." As evidence, St. Hilaire notes that while CBP reports some 2,500 artifacts have been seized and returned to their supposed countries of origin, actual criminal prosecutions are few. See http://culturalheritagelawyer.blogspot.com/2012/03/seize-and-send-v-investigate-and-indict.html

Yet, St. Hilaire is wrong to assume that any artifact seized by Customs "must be looted." Instead, as I noted in a comment to his blog that he has so far refused to publish:

You might also note that much, if not most, of the material seized and returned is abandoned by the importer. You assume it is because it is looted; in actuality it may very well be because the litigation costs of fighting CBP greatly exceed the value of the artifact. As for the lack of prosecutions, that likely has to do with the fact that the Government cannot show criminal intent. Thankfully, that is still required despite efforts of archaeological fanatics to diminish this bedrock protection of American law.

And if anything, three knowledgeable practitioners confirmed at a DC Bar program I just attended, entitled "What Every Lawyer Needs to Know About Customs and Customs Law 2012," that CBP's modus operandi is all too often to seize all sorts of things for the slimmest of reasons (mostly for supposed "trade mark" or drug importation violations), confident in the knowledge that it is often not worth the trouble to fight to get them back.

This is a national disgrace that has much to do with CBP's change in focus from a "revenue collecting agency" under Treasury to a "national security agency" under Homeland Security. As such, statistics on repatriations are nothing CBP should be bragging about, let alone being used to support a claim that more criminal prosecutions are warranted.

Addendum (3-9-12): Apparently Mr. St. Hilaire is so threatened by alternate views that he has now disabled comments to his blog. He has also deleted an automatic link to this blog, but has retained a link that of fellow archaeo-blogger Paul Barford's work. Talk about half-truths! This is a major problem with the approach of the archaeological community and their supporters to this discussion. All too often they consider their own "archaeology over all" world view as the only legitimate one and seek to suppress the views of others, particularly those representing so-called "commercial interests." But isn't this just archaeological snobbery?

4 comments:

Paul Barford said...

Well, if you are talking about "truth" and "half truth", can you point out where, in the post to which you link, St Hilaire says these items "must be looted"? His text is about smuggling and illicit traffic.

Am I right in thinking that if the items had legitimate export paperwork, then ICE would not normally impound any cultural property at the point of ingress?

What, therefore, "litigation costs of fighting CBP" would be incurred if an importer can show the relevant documentation of lawful export complying with US customs law? Surely that is something importers of all sorts of items where such documents are required should expect to have to do?

Smuggling is a crime, is it not?

Wayne G. Sayles said...

When Mr. St. Hilaire says "provide a meaningful deterrent to archaeological smuggling", do you suppose he means that archaeologists who smuggle artifacts out of the countries they dig in should be prosecuted more aggressively? I've heard that prosecutions of light-fingered archaeologists are rare.

Cultural Property Observer said...

Mr. Barford- You've stirred the pot with your own foolish post claiming Greece is more serious than US law enforcement and then insulting them in the same breath by suggesting US law enforcement should taser or better yet pepper spray customs law violators like an unfortunate squirrel.

The fact is that you in your own posts, St. Hilaire, and SAFE lump "looted," "stolen," "illicitly imported," "illicitly exported" and "smuggled" all together. Are you now conceding that just because an artifact does not have the proper paperwork, that does not suggest that it has been looted? If so, we have made a major breakthrough.

Honest mistakes in paperwork should not lead to seizures, but the often do, not just in the cultural property field but others too. You make it sound easy to comply with complicated regulations, but it is not in many cases.

In any event, St. Hilaire does not need you to speak for him. And this post would have been unneccessary in any case if he simply posted my comments questioning his analysis on his own blog.

Paul Barford said...

There is nothing "foolish" about comparing different approaches in Europe and the USA. What is I think a bit foolish is the insistence that the USA is in some way an exception to everything and should only be regarded from on bended knees.

"The fact is that you in your own posts, St. Hilaire, and SAFE lump "looted," "stolen," "illicitly imported," "illicitly exported" and "smuggled" all together.
No, that is not a fact, that is your interpretation, and in my case I would say one which flies in the fact of the facts.

I asked you to point out where in the post you criticise St Hilaire confuses looting and smuggling, let it be noted that you refuse to do so.

"You make it sound easy to comply with complicated regulations, but it is not in many cases.

Of course, if it were considered "complicated", the ACCG might do worse than produce guidelines for their collector members guiding them through the processes of legally exporting and importing cultural property.

Am I right in thinking that if the items had legitimate export paperwork, then ICE would not normally impound any cultural property at the point of ingress?

What, therefore, "litigation costs of fighting CBP" would be incurred if an importer can show the relevant documentation of lawful export complying with US customs law? Surely that is something importers of all sorts of items where such documents are required should expect to have to do?