An Enforcement Perspective: Nothing to Fear?

It's worth reading what James McAndrew, a former CBP official said at the recent Asia Society and ACCP event in New York.

James McAndrew: My fans are here! This is great! We are out of order, which is fine for me. Thank you very much I find this very interesting.

Let me talk about my role and background. It is important while we're here, and to share with you my observation quickly about even what I hear what's happening to the panel. It resembles what the discussions are in the trade privately.

One of the terms that you hear come up over and over again is 'fear.' We're supposed to espouse the fear to you, whether you're a private collector or a public institution.

I hear the discussion about how the United States should help out other countries more. I spent many years with the Department of State Audit Task Force. I know the Cultural Heritage Center does go to other countries and try to work with them on issues of looting and protection of archeological sites and implementing certain processes to register and identify what's within their borders. The issue of modern day borders versus cultural borders is not a negative.

What I want to share with you is not to be fearful. US law is very specific on how it can go about, from a law enforcement perspective, taking enforcement action on an object. That specificity is driven by what information is given to them by the source requesting/claiming country. When I was the agent in charge and the requesting country comes to me and says, "I want an auction house to remove all forty lots of my Egyptian artifact," if the claim came from Egypt, I would ask them "What do you have to support that?" More times than not they had little to nothing. On top of that, the object they're asking for might not even have come out of that country.

From an investigative agent's point of view, I didn't care much about the AAMD's 1970 threshold. It's a line. It's nice, it works, it's scholarly, it's a step in the right direction, but from my point of view as an agent, I don't care. I'm focused on this object. Where'd you get it, where'd it come from, what's its history?

We seem to have adopted this mindset that an undocumented object is guilty or illegal, that undocumented means looted. This is not going in the right direction, and it's not the case, as was spoken about in the opening comments. A legitimate fair, commercial, wonderful exchange of culture and objects - the Silk Road for ex ample - has happened for thousands and thousands of years. Somewhere someone drew the line: 1970, the UNESCO convention, countries sign on, and forty years later, this hysteria.

For you the collector the important thing is this: when you import something, the weak point is going to be the point of entry. Whether you acquired an object domestically or at auction, the agent is going to evaluate, with whatever method they have - subpoenas, search warrants, developing sources, interviewing people in the trade - how that piece came into the country. We are a market country. We don't have that 10,000 year-old history. The source countries have the objects. By the time an object winds up here domestically in the United States it has probably passed through a hundred hands and as many countries over the last 10,000 years.

The burden of proof is on the source country to establish how and when that piece left their borders and if that information fits within the timeframe. Not 1970. The ball game has advanced. The government is looking now at when the country established a natural ownership law. 1932, 1934 for Italy. They may say 1906, some countries have 1897. Pick a date. It's not much past the twentieth century. It's up to them. The problem- what's happening with the trade- is this fear factor.

When you import something, it's in the Customs documentation that the Homeland Security agent would love to find that one discrepancy, that one anomaly, that one thing that doesn't exactly match the description of what an import is supposed to say or have. That's the basis of the seizure. If an agent can make that seizure based on a Customs technicality or violation of the regulations, that agent just did a monumental favor to the source country.

What the trade is doing is to try to undervalue. All of a sudden we start thinking too much. We think, "Well, I purchased it for a million dollars. If I value it at $100,000 maybe there will be less scrutiny." Or, "If I order it through an exporter from the source country, maybe that's too easy a line. So let's bring it to London, or Germany or Mexico." When you add those layers, you're asking for trouble.

Because somewhere in there there's going to be a technical Customs problem, and there can be a seizure. Now the burden is on you to explain why you made this technical problem, and you're fighting from the back going forward.

If you document your imports properly, exactly as it should be, you should have nothing to worry about. You leave the burden where it belongs. The CPIA [Cultural Property Implementation Act] is very clear: before a country can get a bilateral agreement to restrict your imports, before the US government sits down, they need to be working within their borders first.

US agencies receive requests from foreign governments. How big is that? Not requests from your competitor next door - you get a massive request on fancy letterhead from the Supreme Council of Antiquities from Iraq or Egypt or Thailand - you pick it - of course you have to react. You don't have much of a choice. I'm out of time. I have a lot to say. Look me up later.

Chiu: Thank you, Jim. Some practical comments and guidelines for collectors today.

Comment:  Former Agent McAndrew won an award from SAFE for his aggressive enforcement efforts.  In my opinion, sometimes these efforts went well beyond what the law allows.  For example, customs sources have indicated that under his watch, Customs typically demanded that imports of artifacts designated for restriction under the CPIA be accompanied not only by the certifications required by the CPIA, but also by a picture from an auction catalogue proving that the artifact was out of the country for which restrictions were granted before the date of the restrictions.  Obviously, this makes it impossible to import many minor objects like coins even with the statutory certifications, because only a small number of such artifacts are significant enough to be pictured in auction catalogues.  For example, perhaps only one of every 10,000 coins that appears on the Cypirot, Greek, and Italian designated lists is actually pictured in an auction catalogue.  For Chinese coins, I would estimate the number as perhaps literally one in a million.

Former Agent McAndrew's words also underscore the fact how faulty paperwork can lead to an item being seized.   Thus, sometimes even innocent mistakes can have serious consequences.  Finally, it is troubling that the US is enforcing foreign cultural patrimony laws under our own law, no matter the date and no matter the circumstances.  For example, such foreign laws typically apply to artifacts found on private land when the US Constitution would preclude the US Government from taking such artifacts in similar circumstances without fair compensation.

For more on the ACCP, see http://www.theaccp.us/

For a video and a copy of the transcript of this event, see http://www.theaccp.us/events.html