Easier Said Than Done

In light of the upcoming close of the comment period for the Egyptian MOU, at least one in the archaeological blogosphere has engaged in a disinformation campaign to suggest that complying with MOUs is no big deal, and to imply that anyone saying otherwise is a liar.

Never mind that individual has presumably never tried to import cultural goods into the United States, nor is there any suggestion that he has consulted with anyone who has actually imported artifacts themselves or represented those who do.

In any case, this is how a former top Customs official described the process at a recent public forum in New York City:

Page 11

One of the things that customs does when an object comes in from one of the 14 countries that has a bilateral agreement under the CPIA, the CPIA says that if an object is imported without a permit from the source country then the import can be allowed under the statute by providing “satisfactory information” that the object was out of the country before the imposition of the bilateral, or has been out of the country for more than ten years. And there are two paragraphs that quote what that satisfactory evidence consists of and what it should state. It was out of the country for 10 years prior to import - it was out of the country before the imposition of the bilateral, and so on. Just to show you what happens in that case. An affidavit that satisfies this should be sufficient for the piece to be released, but it is not. You can literally lift that language right out of the law and have your client sign an affidavit that attests to that. Because it states exactly what the statute requires it should be sufficient. The shipment should be released, right? No. The CPIA does not put limitations on customs and homeland security to stop asking for more. The agent or inspector comes back and says, I want more. They say, I don’t like that affidavit, give me another. I don’t know that person, give me one from another person. They continually ask for more and create, at a whim, what they want. The question is do you feed the government more? If you don’t give them more, they seize it. If you do give them more, they ask for more again. Maybe they are looking for you to establish that you made a false statement and take you down the path you never intended to go down. Then the case goes from civil to criminal. Don't forget that behind the scenes, any document you give them, they are sending collateral requests to the agents in foreign countries to verify the document. And if they can catch you with a false document or a false statement, intentionally or unintentionally now you have a criminal problem. There is no limitation on what is called quote unquote satisfactory evidence. I have a client who had an object seized in April 2011 – this is April 2014, and I still haven’t got it released. This could go on for another 30 years. Again, there is no limitation on what they can ask for and what is satisfactory evidence and that is what is wrong with the CPIA.

And this is how another customs law practitioner who has represented clients in the area has described the process at an earlier public forum in Washington, D.C.:

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16    Generally speaking, the act requires that if you're
17 importing an object that could possibly be import restricted,
18 it can be imported if you can show that the object was
19 outside of the state party before the date the MOU was
20 signed. The act is clear that all that is required is a
21 statement from the exporter and a statement from the importer
22 confirming that the object was outside the state party before

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1 the date the MOU was signed. That object is outside of the
2 act. The act is not retroactive.
3 The problem is that although the act is clear, and Jim
4 could probably speak to this better than me, it is my belief
5 that that was the negotiated settlement that because many
6 objects don't have a documented provenance, the affidavit or
7 the declarations would be enough to import the object without
8 any other information.
9 MR. FITZPATRICK: Ashton Hawkins spent a year on behalf
10 of the museum community negotiating that with the
11 archeologist community and with the State Department.
12 MR. MCCULLOUGH: And on the enforcement side, I could
13 tell you today that that requirement is ignored. The
14 declarations are collected. However, the importer is asked
15 to provide additional documentation supporting those
16 declarations, at least in the trade that's true. I don't
17 know if that's true in the museum community, but in the
18 trade, for dealers and collectors, they are required to show
19 documentary proof that the object was outside the country.
20 The declarations are not enough.
21 And last, on the ICE side, so we have CBP or the cargo
22 people who deal with the entry of the object at the time it

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1 shows up at the airport. We then have Immigration and
2 Customs Enforcement, which is a law enforcement branch of
3 Homeland Security.
4 They are very aggressive. We've heard a lot of stories
5 of seizures, detainments. There has been a de facto sort of
6 rule at ICE that we seize first and we ask questions later.

So who is more believable?  An archaeo-blogger with an axe to grind or those who have actually practiced in the area and have real, hands on experience?

So, sure, if you think complying with MOUs is no big deal and you will still be able to easily purchase coins for your collection, by all means take this archaeological blogger's advice and sit back and do nothing.  On the other hand, if you are concerned about the prospect of new import restrictions on Egyptian cultural goods and the cumulative impact these and other import restrictions are having on our hobby, please comment to CPAC "prejudged" MOU or not by the May 14, 2014 close date.

Sectarianism on the Rise in Egypt

The archaeological community has said that import restrictions are also necessary to protect Coptic Christian artifacts from looting.  But even as Egypt's military government has meted out more severe punishments against Muslim Brotherhood supporters, that same government continues to stoke sectarian conflict that has been so detrimental not only to the Christian minority itself, but to early Christian artifacts.

The archaeological blogosphere has tried mightily to distance the done MOU deal from the Egyptian military government, but the headlines keep intruding on such an effort.

Zahi Hawass the Martyr?

Yes, at least according to fringe elements within the archaeological blogsphere.  And no, his alleged crime is not having a poor agent who got the world famous archaeologist an unfavorable deal compared to other reality TV stars. Rather, it's instead allegedly using his public office for private gain.  If true, that presumably should be of concern to the archaeological community.  After all, isn't that stealing from the Egyptian people?  And shouldn't that be considered far more serious than some poor farmer doing some illicit excavation work to feed his family?

Money Laundering?

Archaeo-blogger Rick St. Hilaire seeks to smear an entire industry by suggesting that a difference in values of art and artifacts exported from the UK to the US as recorded by the authorities may be due to money laundering.  But both the US and UK use the same customs codes and UK and US authorities should have access to the same customs documentation.  Moreover, there is no tax dodge involved; art and artifacts enter duty free.  So, isn't it far more likely that instead of evidence of money laundering, what we have is simply evidence that UK authorities are more efficient at data collection?

Who Are the Real Cultural Racketeers?

Colleagues of former Egyptian Antiquities Pharaoh Zahi Hawass have charged him with amassing $14 million in ill-gotten gains in US Banks. 

Presumably, US Prosecutors, who are said to be investigating National Geographic, a former member of the International Coalition to Support the Protection of Egyptian Antiquities, for bribery in an exclusive TV access for cash scheme will get to the bottom of all this.  But given current realities, one suspects any indictments will be delayed until well after the pre-judged MOU with Egypt is announced.

All this does, however, raise an important question that should be discussed whatever the results of these particular investigations.

Is it possible that some of the biggest "cultural racketeers" the Antiquities Coalition say exist are in fact associated with the Egyptian Government itself?   And, if so, does it follow that a MOU with Egypt may only foster yet more corruption?

Lazy Journalism

More lazy journalism on Egyptian antiquities, this time from Reuters and the Chicago Tribune.   Egyptian antiquities have been widely and legally collected since at least the 19th c. and were also widely and legally collected in Egypt itself, until the Mubarak regime declared them state property in 1983.   Many artifacts, particularly those of limited value, have no documentary history, let alone absolute proof that they left Egypt legally before that date.  Yet, no one seems to question this assertion from one of the bureaucrats serving Egypt's military dictatorship: 

[A]nyone seeking to sell an artifact of Egyptian origin should be required to produce a document showing it was lawfully exported from Egypt, whose laws permitted the trade in antiquities until 1983, when all such trade was banned.

Demolish Historic St. Catherine's Monastery?

A retired Egyptian army general who founded Egypt's special operations unit has enlisted Egyptian courts in an effort to demolish the historic St.Catherine's Monastery in the Sinai as a security threat.  While hopefully this effort will be a non-starter, it should give pause to our State Department and thinking members of the archaeological community that such a high ranking officer is taking such a stand.

Of course, any MOU with Egypt will effectively give the "State Department Seal of Approval" to the Egyptian military's control over artifacts from Egypt's past and unleash US Customs to repatriate undocumented artifacts back to Egypt's military rulers.

So again, one must ask is any MOU really about conservation or control and will it really protect Egyptian artifacts or award them to those whose interests lay elsewhere?

Reality Check

Something that should give pause to the thinking members of the archaeological community who are not unalterably opposed to private collecting:

Does "Saying Yes to the Egyptian MOU" really mean "Saying Yes to Egypt's Military Dictatorship?" 

CPO submits as Egypt's phony election for President draws near, the answer will only become increasingly clear.

Clampdown on US Collectors Won't Stop Egyptian Military Dictatorship's Tilt to Russia

If the State Department thinks sacrificing the interests of American collectors and small businesses with a pre-judged MOU will arrest the Egyptian military dictatorships's tilt to Russia, it's probably kidding itself.  CPO suspects that Egypt's generals want Russian weapons that come with no strings attached far more than any "legitimacy" the US Government's grant of a MOU would provide.  Control over antiquities has some nationalist appeal, but there is nothing like a Russian helicopter gunship if you are a military man.

Petition to Save Metal Detecting on Massachusetts Beaches

Here is a petition to sign if you think metal detectorists should be allowed to continue to explore Massachusetts beaches.   CPO is unsure why the nanny state thinks that it needs to control such a pastime in this way.  If anything, along with small change and jewelry, metal detectorists pick up a lot of unwanted metal trash, some of which could hurt other beach goers or wildlife.

Repatriation For Whose Benefit?

The New York Times has published this interesting article about what happens to artifacts after they are repatriated.  The answer seems to be that for the most part they are unseen and subject to "benign" neglect.  As Nation States and their allies in the archaeological community press for more and more repatriations, the question should be asked for whose real benefit?

37% Fear the Federal Government, 17% Unsure

According to a new poll that should give government decision makers serious pause, 37% of likely voters fear the Federal Government and 17% are unsure.  One can only wonder what the percentage is amongst collectors and owners of the small businesses of the numismatic trade, but it would not surprise CPO if these numbers were considerably higher.  And why not, what with recent news of a pre-judged MOU with a Middle Eastern military dictatorship, a heavy-handed raid on the home of a 91 year old war veteran and missionary, and a bureaucracy made ban on the transport and interstate sale of antique ivory of the sort that has been held in families for generations.

“Done Deal” or Not— Say NO to the Dictators and Oppose the Egyptian MOU

Press reports suggest that the State Department has already promised Egypt’s military government that it will impose import restrictions on its behalf.  Still, if one feels strongly about their continued ability to collect Egyptian artifacts and/or historical coins, CPO believes they should comment on the regulations.gov website.  Why? Because silence will only be spun as acquiesce by US and Egyptian cultural bureaucracies as well as the archaeological lobby with an ax to grind against collectors.

A.    The Law

The Cultural Property Implementation Act (“CPIA”) contains significant procedural and substantive constraints on the executive authority to impose import restrictions on cultural goods.  “Regular” restrictions may only be applied to archaeological artifacts of “cultural significance” “first discovered within” and “subject to the export control” of a specific UNESCO State Party.  They must be part of a “concerted international response” of other market nations, and can only be applied after less onerous “self-help” measures are tried.  They must also be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

“Emergency restrictions” are narrower.  They focus on material of particular importance, but no “concerted international response” is necessary.  The material must be a “newly discovered type” or from a site of “high cultural significance” that is in danger of “crisis proportions.” Alternatively, the object must be of a civilization, the record of which is in jeopardy of “crisis proportions,” and restrictions will reduce the danger of pillage.

The Cultural Property Advisory Committee (“CPAC”) is to provide the executive with useful advice about this process. The CPIA contemplates that CPAC is to recommend whether import restrictions are appropriate as a general matter and also specifically whether they should be placed on particular types of cultural goods.  

In the past, CPAC has recommended against import restrictions on coins.  Initially those recommendations were followed, but beginning with the renewal of Cypriot import restrictions in 2007, this has changed.  Now, there are restrictions on coins made in Cyprus, China, Italy, Greece and Bulgaria.
  

Import restrictions make it impossible for Americans to legally import collectors’ coins widely and legally available worldwide.   Foreign sellers are typically unwilling or unable to certify the coin in question (which can retail as little as $1) left a specific UNESCO State Party before restrictions were imposed as required by the CPIA and U.S. Customs and Border Protection rules.   Restrictions have drastically limited Americans’ abilities to purchase historical coins from abroad and have negatively impacted the cultural understanding and people to people contacts collecting fosters. 

B.     The Request

Egyptian artifacts have been actively and legally collected here and abroad since the early 19th c.  Egyptians also actively and legally collected objects from their past until a series of military governments cracked down on the practice.  Finally, in 1983, the Egyptian Government of Hosni Mubarak declared all such objects state property.  Most common and less valuable Egyptian artifacts, like coins and amulets have lost their provenance over time.  Even many more valuable pieces have lost any provenance information as well.  There simply was no reason to keep such information in most cases.  

There certainly has been looting in Egypt, as has been the case since ancient times.  However, there is a real question whether there is an “emergency” of “crisis proportions” and, if so, if any “emergency” is of Egypt’s own making.   During a recent public forum meant to publicize the need for import restrictions, Egyptologist Monica Hanna conceded that government officials were intimately involved in illicit antiquities trafficking, that much damage is due to urban encroachment onto archaeological sites, and that common people don’t respect their past because they believe it belongs to Egypt’s abusive military government and not them.  This, of course, is the real root of Egypt’s problems.  Since prior military governments made the trade in all antiquities illegal, artifacts have been either illegally traded or devalued so much that they are either destroyed or dumped in landfills.

Archaeological groups have been seriously lobbying for import restrictions on Egyptian cultural artifacts since at least 2011.   The Arab Spring Revolution, the fall Egyptian antiquities Pharaoh Zahi Hawass, an ongoing bribery investigation involving Hawass and National Geographic (which had joined the lobbying effort), and the rise and fall of Muslim Brotherhood President Mohammed Morsi derailed things for a time, but Egypt’s new military government has now pressed the issue, probably because it believes that a MOU with the United States that recognizes its control over Egypt’s past will give it much needed legitimacy.   Indeed, from the Generals’ perspective, what better timing than to link a MOU to orchestrated elections in late May that are expected to anoint Egyptian Army Chief Abdel Fattah el-Sissi,  President.  

The State Department certainly seems to have been treating the Egyptian Government’s request as requiring an immediate, positive response. Egypt apparently made its formal request in mid-March.  A New York Times Editorial, dated March 20, 2014, states that the US Government immediately agreed to this demand.   See “Egypt's Heritage Plundered Anew” (March 20, 2014) ("The United States — a leading buyers’ market for Egyptian antiquities — was quick to respond, with the State Department promising cooperation by relaxing standards that currently require customs officials to have precise information in hand about a stolen item before they can act.").   Egyptian press reports then placed Assistant Secretary of State Evan Ryan, the decision maker on any import restrictions, in Egypt to discuss the details in early April.   Dr. Hanna was then given a platform to make her case at the Wilson Center, a prestigious think tank associated with the U.S. Government’s Smithsonian Institution.  Two days later, on April 16, 2014, a CPAC hearing was announced for June 2, 2014, presumably to provide legal “cover” for this farce. 

Certainly, the public notice itself tells nothing of the basis for the request and even whether Egypt seeks “regular” or “emergency” restrictions.   All we know is the June 2, 2014 date for CPAC’s open session, that Egypt seeks an import ban on artifacts that date from pre-historic to Ottoman times, and that public comments are due no later than 11:59 PM (Eastern Standard Time) on May 14, 2014.  For more background, see http://culturalpropertyobserver.blogspot.com/search/label/Egyptian%20MOU

C.     What You Can Do

Admittedly, all the evidence points to the matter being already decided—no matter what the CPIA says, what the facts really are, and what American citizens or others interested in collecting Egyptian artifacts may think.  Still, to remain silent is to give the Egyptian generals, the cultural bureaucrats and archaeologists with an ax to grind against collectors exactly what they want-- the claim that any MOU is not controversial. So, to submit comments concerning the proposed MOU, go to the Federal rulemaking Portal and enter Docket No. DOS-2014-0008 and by all means speak your mind. 

What should you say?  Provide a brief, polite explanation about why the request should be denied or limited.  Indicate to CPAC how restrictions will negatively impact your business and/or the cultural understanding and people to people contacts collecting provides.   Coin collectors should add that it’s typically impossible to assume a particular coin was “first discovered within” and “subject to the export control” of Egypt and that Egyptian historical coins are very common and widely and freely available for sale elsewhere, particularly in Europe.  And, of course, feel free to mention any concerns you might have about government transparency, whether this is a real “emergency” of “crisis proportions,” and how the State Department has generally handled this request.   Finally, you don’t have to be an American citizen to comment—you just need to be concerned enough to spend twenty or so minutes to express your views on-line. 

CPAC Hearing Scheduled for Pre-Judged Egyptian MOU

Egypt has scheduled an election for President on May 26-27 to formally replace its deposed Muslim Brotherhood President, Mohammed Morsi.  Although there will be others on the ballot, there is only one real candidate, former army chief, Abdel Fattah el-Sissi.  So, while Egyptians will go through the motions of electing their leader, the result has been predetermined.  El-Sissi will be Egypt's next President one way or the other.

So, how fitting then that weeks after Egyptian authorities and the New York Times both suggested that the US had already agreed to ban imports of Egyptian artifacts and days after Egyptologist-Heritage Hero Monica Hanna finished promoting restrictions on American collectors at events staged in New York and Washington, D.C., the State Department's Bureau of Educational Affairs has announced that CPAC will meet to discuss a proposed MOU with Egypt.

Given this history, does anyone seriously believe the upcoming CPAC meeting will in the end be anything more than an orchestrated farce not dissimilar to what's happening in Egypt itself?  Still, if one feels strongly about their continued ability to collect Egyptian artifacts, CPO believes they should comment on regulations.gov website.  Why? Because silence will only be spun as acquiesce by the US and Egyptian cultural bureaucracies as well as the powerful archaeological lobby.

More later on how to comment, but the above link about the CPAC meeting should provide the basics.

Monica Hanna: The Arab Spring and the State of Egyptian Antiquities

On April 14, 2014, Monica Hanna, an Egyptologist and social media activist, spoke at the Woodrow Wilson Center in Washington, D.C.  She was introduced by Haleh Esfandiari, the Director of Middle East Programs at the Center.  There were approximately forty (40) attendees in the audience.

Esfandiari indicated Hanna’s talk was co-sponsored by the Antiquities Coalition.  Hanna is a Post-Doctoral Fellow at Humboldt University (Berlin) and was recently awarded the SAFE Beacon Award.  She created Egypt’s “Heritage Task Force” as a social media platform to combat looting.

Dr. Hanna discussed serious damage done at several Pharaonic, Ptolemaic, Coptic, and Islamic sites. Those most at risk are in urban areas.  A “Land Mafia” typically repurposes sites over time so they lose their character as archaeological sites in the mind of locals.  Tactics include using the sites as garbage dumps, farms and cemeteries.  Cemeteries in particular are difficult to remove for obvious reasons.   Local government, Religious Institutes or even National Government ministries have also been at fault.  They have built football pitches or even buildings adjoining or directly on archaeologically sensitive sites.  In the process, monuments are either defaced or utterly destroyed.  In this regard, Dr. Hanna displayed several slides that compared 19^th century prints with present day vistas.  In each case, significant monuments are no longer visible at all or have suffered considerable damage.

Villagers are a problem.  Families with children go out for a picnic and then loot.   There also is more organized looting that Hanna attributes to the illicit international antiquities trade.  They use bulldozers and dynamite to destroy sites in search for loot.  Hanna showed pictures of a looted Coptic site where religious reliefs were pried out from stonework.  She also showed other pictures of looters’ pits where remnants of mummies and mummy cases were left behind.  Apparently, families know not to store looted material in their houses because of the danger of arrest.  Instead, they bury it elsewhere for later retrieval once a middleman is found.

Hanna next discussed looting and destruction at the Malawi Museum in Minya.  She showed before and after slides of mummies that had been burnt by the mob.  Unfortunately, mummies burn quite easily.  Little kids destroyed pottery and other artifacts.  She asked one teenager why he did it.  In response, he told her, “Because they belong to the Government and I’m mad at the Government.”   [Looting of the museum was tied to rioting following a military coup that overthrew the Muslim Brotherhood Government of deposed President Mohamed Morsi.]  Hanna blamed the government for a slow response.  She was finally able to persuade a local police official to bring his family along to drive out the looters.  It took the army three days to send one tank to protect the museum.  [This sounds familiar.  The archaeological community registered similar complaints against the American Army’s alleged slow response to the looting of the Iraq National Museum.]

Hanna asserts that looting destroys history because 70% of an object’s historical value comes from the context in which it was found.  [Others will disagree.]  She advocates that activists report on anyone they believe is selling looted material.

Hanna  then answered some questions.  The first questioner [who appeared to be associated with the Wilson Center] asked about government involvement in looting, but Hanna did not answer that question.  Instead, she maintained that 20% of the looting came from locals selling to antiquities dealers and 80% was attributable to “the Mafia.”  She did not explain how she came by these figures.  She indicated that there needs to be much better community outreach to stem looting.  She wants to use social media to get information about sites being looted.  She said that the same networks that move drugs and guns move antiquities. Again, she did not disclose the source of this information.  She also stated that there are direct channels to middle men in the United States.  Again, no source was provided for this information.  She stated that two (2) recently looted artifacts surfaced at auction in London.  These were discovered because they were from museum stores and were published in 1956.  

The first questioner again asked Hanna if the authorities were involved.  In response, she stated the Mubarak regime was certainly involved and that the Chief of Police for Cairo was arrested for running a smuggling ring.  The questioner then pressed Hanna about any involvement by the current government.  Hanna indicated that it was too soon to tell.

Another questioner asked about whether there was a “concerted international response” to looting.   Hanna indicated it was essential to get the UN involved.  There are markets in the US and the Gulf.  If these markets were closed, the problem would be lessened.  Over the long term there needs to be more investment in local communities in Egypt.  The people must see that antiquities have a value to them.  One reason they loot is that they think it’s their right to do so because corrupt government officials are doing it too.  

Another questioner asked Hanna about the MOU with the United States.  Hanna indicated that it is essential to close markets.  She indicated that Egyptian authorities recently recovered 6,000 artifacts destined for a Swiss collector.   

Another individual indicated he had a State Department contract with a company that planned to assist Egypt create a database of artifacts in State Museum stores.  He wanted it to be known that two consecutive US Ambassadors had tried to get the Egyptian government to cooperate with the project, but the Mubarak Government stymied it.

Hanna indicated that governments need to be pressured to take a strong stance against illicit antiquities collecting.   The last time this was successful was Iraq.  In response to another question, Hanna indicated that she does not approve of private collecting.  She indicated that private collectors should be satisfied with objects with a demonstrable provenance back to 1970 or 1983, the date of a clear Egyptian patrimony law.   She does not think collectors should be able to “get away with” collecting unprovenanced artifacts.  They are likely stolen.  [CPO disagrees.  Egyptian artifacts have been actively and legally collected since the 19^th c. and Egypt itself has only had clear law vesting title in the State since 1983.   Many Egyptian artifacts, particularly minor ones, have lost any information on how and where they were found over the years.  CPO submits to assume they are “stolen” is both factually wrong and grossly unfair to law abiding collectors.]

Hanna: Mubarak Regime Involved in Antiquities Trafficking

In response to a question from the audience at yesterday's event at the Wilson Center, Dr. Monica Hanna stated unequivocally that the Mubarak Regime (her words) was deeply involved in antiquities trafficking.  Specifically, Hanna identified the former police chief of Cairo as a major smuggler.

But that is not all.  Another speaker from the floor complained that two successive US Ambassadors had offered the Egyptian Government money to help complete an inventory of artifacts in state collections, but this effort was stymied by the Egyptian Government itself.  No wonder. Without an inventory, it's far easier for corrupt Egyptian cultural bureaucrats to sell antiquities from "the museum store" without notice.  And yet, the same Egyptian cultural bureaucracy has  convinced the US Government to bring criminal cases and forfeiture actions to recover Egyptian artifacts from US citizens in the recent past.

When asked if the current military government was also involved in antiquities trafficking, Hanna could only meekly state that it was too soon to tell.  But just how different is the current military government from the Mubarak regime, which was also dominated by military men?   And, if the differences are as it appears only "skin deep," why should the US Government clamp down on US collectors on behalf of a deeply hypocritical and corrupt Egyptian cultural establishment?

CPO hopes to post a full report of  Dr. Hanna's talk in the not too distant future, but in the interim will highlight some of her admissions that should give US Government decision makers and the press pause.

"I destroyed them because they belong to the Government and I'm mad at the Government."

So a young man reportedly said to SAFE award winner Monica Hanna to explain his participation in the looting and destruction of the Minya Museum with other locals angry that the military had  deposed their Muslim Brotherhood president.

CPO will report more on other revealing admissions Ms. Hanna made at an event organized by the so-called Antiquities Coalition soon, but this statement in particular gets to the heart of what's wrong with Egypt's cultural establishment and why US Collectors should not be made to pay the price for a mess entirely of Egypt's own making.

The Military Government that has run Egypt for decades,  like its much more bloodthirsty cousins in Syria and the former Baathist state of Iraq, has declared ownership of all antiquities as part of nationalist campaign to associate the regime with the glories of the ancient past.  This may sit well with collector-hating foreign and domestic archaeologists, but it also means that common people associate antiquities with their government oppressors.  The results have been sadly predictable in all three countries, what with wanton destruction of archaeological artifacts during times of strife.

And yet, rather than facing this basic truth, the media and government decision-makers uncritically accept the received wisdom from archaeologists with an axe to grind against collectors and self-interested foreign cultural bureaucrats that the real culprits are foreign collectors and shadowy antiquities dealers.  No, the real problem is the state ownership model they support, particularly when this approach awards absolute control to violent and venal governments at war with their own people.

FBI Believes Antiquities Laws Apply Retroactively?

The FBI's actions in descending on the home of a 91 year old war veteran and missionary who has collected artifacts all his life has become even more troubling.  According to a spokesman for the Bureau, some of the treaties and laws that provided a basis for the seizure are "retroactive."

But then what of the US Constitution's strict prohibition on ex post facto or retroactive criminal laws?  Does the FBI believe such constitutional protections no longer apply to collectors?  And, if so, who will tell them otherwise?

Egypt's Face to the World

While the archaeological community seeks to make archaeologist Monica Hanna the Face of Egypt when it comes to "emergency import restrictions," we must not forget Ms. Hanna is in effect doing the bidding of a military government that has presented quite another face to the world.

Looting in Egypt may or may not be a serious problem, but the question remains why should American collectors and the small businesses of the antiquities and numismatic trade be made to pay for a mess entirely of Egypt's own making?

BM to Determine Whether PAS Has Led to the Discovery of New Archaeological Sites

While the archaeological blogosphere has raised valid questions about the methodology of a new study that equates the passage of restrictive laws with declines in the discovery of archaeological sites, that study still asks an important question:  Do such laws work or do they just award a monopoly to a chosen few state-sponsored archaeologists and so ultimately discourage reported finds?

Or, stated another, more affirmative way, would a less restrictive approach that actually encourages the public to report their finds and work with professional archaeologists be a better way forward?

CPO suspects so and hopes that a British Museum own study  will help elucidate that issue.  According to the BM's website, that study asks the following:

Comparing the metal detected data with other forms of archaeological information, this research seeks to determine whether the information gathered by the Portable Antiquities Scheme can be used to tell us about previously unknown Roman sites, and whether it can add to our knowledge of those Roman sites that are already known.

Egyptian Coffin Found in Isreal

Will Egyptian cultural bureaucrats demand it back?

Do More Restrictions Equate with Fewer Archaeological Discoveries?

Yes, according to what will surely be an unpopular study with those in the archaeological community who equate conservation with control.

According to the author of the  study,

In country after country, empirical data show that when rigid cultural property laws are put in place, major archaeological excavations and discoveries slow markedly, making source countries — and the world at large — culturally poorer.

I surveyed 90 countries with one or more archaeological sites on UNESCO's World Heritage Site list, and my study shows that in most cases the number of discovered sites diminishes sharply after a country passes a cultural property law. There are 222 archaeological sites listed for those 90 countries. When you look into the history of the sites, you see that all but 21 were discovered before the passage of cultural property laws.

On average in art-rich countries, discoveries that landed on UNESCO's list diminished by 90% after these laws were passed. To illustrate: Italy has seven archaeological sites on the World Heritage list; five were discovered before its 1909 cultural property law, but only two after.

Many variables may cause a drop-off in archaeological discoveries country by country, but statistically speaking, it's nearly impossible that the decline shown in the data isn't also related to the passage of cultural property laws.

Addendum (4/8/14):  As anticipated, the long knives are out in the archaeological blogosphere, particularly from those whose careers depend on pushing an anti-collector agenda.  Of course, holes can be poked in any study, but in the end it does raise an interesting point that deserves further attention:  Do strict laws that only allow state sponsored archaeologists and cultural bureaucrats legal access to uncovering the past actually diminish discoveries?    I suspect the answer is yes.  Monopolies have never been good in any field.  Why not instead empower all who care for the past as they do in the UK with its Treasure Act and PAS?

Panel Discussion on Federal Power and the Repatriation of Cultural Artifacts

On April 3, 2014, the New York City Bar Association hosted a panel on federal power and the repatriation of cultural artifacts.   Alexander Wilson (US Attorney's Office, Southern District of New York), Evan Barr (Steptoe), Michael McCullough (Pearlstein &  McCullough LLP), and James McAndrew (Grunfeld, Desiderio, Lebowitz, Silverman &  Klestadt LLP) served as panelists.  Peter Tompa (Bailey & Ehrenberg, PLLC) served as moderator.  There were approximately sixty (60) individuals in the audience, which included lawyers, government and museum officials, the press, and members of the general public.

Peter Tompa (PT) provided an overview of the relevant issues.  Forfeiture laws have a long history going back to the early days of the Republic, but their application to cultural goods imported into the US is of a relatively recent vintage.  These laws allow the forfeiture of artifacts: (1) that have been introduced into the US based on fraudulent misrepresentations on customs forms; or (2) that are considered stolen under foreign laws that declare them to be state property; or (3) that are subject to import restrictions promulgated by the State Department and US Customs and Border Protection (CBP) under the Convention on Cultural Property Implementation Act (CPIA). Controversies include: (1) country of origin and valuation issues related to alleged misrepresentations on customs forms; (2) the existence of open markets for the exact same sorts of artifacts in countries claiming them to be state property; and (3) whether State and CBP can designate artifacts for import restrictions without regard for their findspot.   MLATs are Mutual Legal Assistance Treaties.  They have provided a basis for information requests that can trigger criminal investigations and forfeiture actions.  There have been questions whether these requests are little more than fishing expeditions.

Alexander Wilson (AW) discussed the statutory bases for forfeiture claims.  The major ones are the anti-smuggling statutes, the National Stolen Property Act (NSPA), and the CPIA.  An innocent owner defense is possible for NSPA claims, but not for Title 19 anti-smuggling statute or CPIA claims.  Because the procedures are somewhat cumbersome, MLATs rarely come into play in a cultural property context.    AW then discussed some of his office's successful seizures.  These include the repatriation of a wall panel from a Chinese tomb, a gold phiale, a Mongolian dinosaur fossil and a Khmer statute.   State Department input varies.  It is actively involved if a foreign request for forfeiture comes through State.  State has also provided technical assistance about foreign cultural patrimony laws.

Evan Barr (EB) now represents white collar criminal defendants.   He previously worked as a prosecutor.   His cases as a prosecutor included the forfeiture of a gold phiale found on private land in Italy.  EB wonders if forfeiture claims are now being overused.  He attributes this trend to the government seeking to benefit from a lower burden of proof in forfeiture actions as compared to criminal actions.  EB also indicated that claimants face an up-hill battle due to the strength of the government's resources, the fact that one's reputation is frequently damaged in the press if a forfeiture complaint is filed, and the cost of litigation-- which invariably exceeds the value of an item that is seized.

Those who want to mount a defense typically file an attack on the allegations in the complaint in the context of  motion to dismiss.  This has only worked to date in the Ka Nefer Nefer case, though that dismissal is on appeal and EB thinks the Court will likely reverse and allow the government to amend its forfeiture complaint.  There, the issue was whether an inference of theft provided sufficient basis for a claim that a mummy case was stolen under an Egyptian patrimony law.  Other defenses that can be raised to a forfeiture complaint include inadequate notice that foreign law vests title in the state, a claim that export of the artifact predated a patrimony law, and statute of limitations.  EB believes the Department of Justice should publish prosecutorial guidelines that will preclude forfeiture claims being made where these defenses are clear.  EB also mentioned that some have argued that the CPIA should be the exclusive remedy for foreign states, but the Second Circuit Court of Appeals has rejected this argument.  EB expressed concerns about how the government handled the Mongolian dinosaur case.  Bringing a criminal action after the dinosaur's owner asserted a civil claim is troubling because it may suggest he was being punished for asserting his civil rights.  However, EB assumes the government would say there always was a parallel criminal investigation.

Michael McCullough (MM) abandoned his prepared text in the interests of saving time for questions. Instead, he made several observations.   First, he maintains that "cultural property" is a misnomer as cultural goods are collected as art.  Their art historical value is what gives them monetary value.  Second, he quoted a Cambodian cultural official who indicated that the repatriation of a Khmer statue satisfied the souls of Cambodians ancestors.   MM contrasted this government official's view with our own strong tradition of secular governance.  MM indicated that it is difficult to negotiate anything with any government official who maintained such a world-view. MM also noted that the prevalence of such a world-view in certain source countries has had the effect of shutting-out reasonable people from the negotiation process.  Finally, MM criticized the courts in the Mongolian dinosaur and Khmer statue cases because they deferred rulings on whether foreign law clearly vested title in the foreign state until the discovery process is complete.  This effectively means this issue will not be addressed because of the expense of taking a matter to trial is cost prohibitive.

Jim McAndrew (JA) drew on his long experience as a top customs official for his talk.  JA indicated the burden of proof  in forfeiture cases effectively allows the government to bring weak cases, confident in the knowledge that most will not be contested.  JA estimates approximately 95% of the time during the period he was active as a Customs agent focusing on such issues (1999-2010) foreign countries could not support their own claims.   When JA was in charge, he made sure that CBP would only seize artifacts if there was some indicia that US law was broken.  Now, however, it appears that artifacts are being detained and seized based on vague allegations of illegal conduct.  Provenance is not a legal requirement, but CBP agents demand it as if it is.  JA realizes many artifacts have no provenance attached to them.   JA joked the demands are like asking someone if he still has the paperwork for a business suit.

If an artifact is seized, JA advocates avoiding the administrative process and instead opting for a court to determine the matter.  This will require a US attorney to look at the seizure and they are far more likely to drop dubious cases.  JA disagrees with AW about the use and potential abuse of MLATs as information gathering devices.

JA also expressed frustration that CBP regularly ignores statutory time limits relating to when an item must be seized or released. JA has had situations where CBP has held artifacts for some eighteen  (18) months with nothing other than the statement that "the matter is under investigation" provided in response to inquiries.   JA has filed FOIA requests, but this usually does not provide useful information.

JA believes that the State Department views its mission as promulgating MOUs.  The interests of US small businesses and collectors don't really matter.   JA has also been frustrated because forfeiture actions are filed ignoring statutes of limitations in foreign countries as well as private ownership of antiquities in these countries.   When JA was head agent, JA sent around a five (5) point check list through INTERPOL  It was his practice to only act if at least three (3) of the five (5) points were satisfied.  JA is concerned that CBP agents may now be confusing their roles.  They are US Customs, not Chinese, Italian or Egyptian agents.

The panel next answered some questions from the floor.  Barbara Hoffman, an art law practitioner, wondered what could be done about the problems that were raised during the presentation.   PT indicated that there would be more discussion of this topic during an April 10th seminar.  MM suggested that the law could be changed to require determinations if a forfeiture was supported by a valid foreign patrimony law at the outset.  Another questioner wondered if investors could be protected by an innocent owner defense.  Both AW and PT indicated that was possible for a Title 18 stolen property claim, but not for a smuggling or CPIA claim under Title 19 of the US Code.  Another speaker contested MM's view that antiquities only have value as art.  She indicated some artifacts, like the Khmer statue mentioned, had religious significance for those within source countries.  She also indicated that the religious value of the Khmer artifact was seriously damaged when the statue lost its hands, possibly when it was looted.  A speaker from the State Department wanted to know how Holocaust art was treated.  EB indicated that Holocaust art is considered stolen property under traditional views of what is stolen.  He also indicated that provenance research is much easier for Holocaust era art because good records were often kept of its original owners.

Former Top Customs Official Expresses Serious Concerns About State, Customs Program

Jim McAndrew, a former top customs official detailed to head up enforcement of  laws relating to cultural property, expressed serious concerns about the US State Department's and DHS' current handling of cultural property laws at this week's panel discussion at the New York City Bar.   In brief, McAndrew believes US Customs agents may be confusing their roles.   When McAndrew was in charge, he made sure whenever there was a foreign request for a seizure there was some suspicion US law was being violated.   Now, however, McAndrew is concerned that while their badges say US Customs, DHS appears to be acting as Chinese, Egyptian, Italian, etc. Customs, i.e., there seems to be a "seize first" mentality based on little more than a foreign request.

Moreover, McAndrew, who also was a member of the State Department's "Cultural Antiquities Task Force," believes State views its sole mission as completing as many MOUs as possible.  Whatever the law says or whatever the negative impact on US collectors and small businesses don't appear to be considerations.

Jim McAndrew thus joins former Deputy Legal Adviser Mark Feldman and former CPAC members in expressing serious concerns about how our government handles these issues.  And with what appears to be a pre-judged Egyptian MOU on the horizon, it's well past time for members of Congress and the media to take notice.

CPO hopes to provide a complete summary of Thursday's panel discussion in the near future.

Cuture Cops Descend on 91 Year Old Veteran

One hundred FBI agents have descended upon the Indiana home of a 91 year old WW II veteran who collected the objects over an 80 year period as a missionary abroad.

The veteran evidently held the items in a home museum that was open to local school groups.

Some reports suggest the collector had actually contacted the FBI himself wanting to repatriate some of the items.   If so, the collector apparently got far more than he bargained for.  Shame on the FBI for treating an elderly collector in such a way just to "polish a few resumes" with a big "antiquities bust."

Couldn't the matter been handled far more discretely?

More Evidence of a Pre-Judged Done Deal Banning Import of Egyptian Antiquities?

An Egyptian news source is reporting that that,

Assistant US Secretary of State for Educational and Cultural Affairs Evan Ryan will arrive on Monday 7/4/2014 to discuss a proposal submitted by Egypt to illegalize trading of Egyptian monuments in America.

Just more evidence of a pre-judged done deal with Egypt's military government cooked up with the help of politically connected academic insiders?

Feldman on State Department's Administration of CPIA

Mark Feldman, the State Department's point person on accession to the 1970 UNESCO Convention and the passage of the CPIA, continues to express concerns with how State has administered the statute. In conjunction with the upcoming April 10th Panel Discussion on the  reform of our cultural policy, he has stated,

In recent years, the State Department has implemented the program vigorously believing strongly in its mission to help protect the cultural heritage of mankind and responding to the demands of foreign states.  This is commendable provided the Department complies with its statutory mandate.  The Executive is not authorized to establish import controls without international cooperation unless an emergency condition exists as defined by law, and Congress did not intend to authorize comprehensive import controls on all archeological objects exported from a country of origin without its permission.  The purpose of the program is not to keep art at home, but to help protect archeological resources from pillage; the findings required by the CCPIA were established for that purpose.

It is not clear how the State Department makes the findings required by law as it has never explained its interpretation of the statute or disclosed the bases for those findings.  I am concerned about the lack of transparency in the decision-making process and reports of administrative manipulation of the Cultural Property Advisory Committee (CPAC).  If Bill Pearlstein is correct  that State has never filed CPAC reports with Congress, as required by law, that failing should be corrected by Congress.

New Law Firm to Service Art Market

Art law experts Bill Pearlstein and Michael McCullough have formed a new firm to service clients in the art market.  According to their website, 

Pearlstein & McCullough LLP provides high-level services to the domestic and international art market (including U.S., U.K., E.U., Latin America and Asia). William Pearlstein is a seasoned New York transactional lawyer with a background in corporate and commercial law. Michael McCullough spent over ten years as counsel at Sotheby’s and has a background in international trade. Together, they have a combined 45 years of experience in counseling individuals and institutions in transactions, disputes, litigation and regulatory matters relating to the domestic and international trade in fine art, collectibles and antiquities.

 CPO wishes them both well on this new effort.  

Panel on U.S. Federal Power and the Repatriation of Cultural Artifacts

The  New York City Bar Association, 42 W. 44th Street, NY, NY, will be hosting a panel on the repatriation of cultural artifacts today @ 2 PM.  It's free, and despite the suggestion otherwise on the NY City Bar's website, it's not really necessary to pre-register on-line.

If you read this blog, you will be interested in what experts have to say about this topic.  More details are available here.   Please note due to a last minute family issue, Sharon Levin will not be able to attend, but the US Government will be ably represented by one of her colleagues, Alexander Wilson, who was her co-counsel in the recent forfeiture case involving Sotheby's and a Khmer statue.

Is That It?

Archaeo-blogger David Gill is making much of the fact that two lots have been withdrawn from auction based on the work of a confederate who combed through the April catalogues at Bonham's and Christie's.

Is that it?  Bonham's has 496 lots in their two sales and Christie's has 199.  Of course there are many lots with multiple objects but after their effort it appears at most only 0.288% of the objects appear problematical.  Even then, appearance of the photos in the archive don't necessarily prove looting.    But even assuming it does, that's still one-quarter of one percent of this particular market.  

So what do these numbers really tell  us?   That an epidemic looting continues in Italy?  Of course not.  That auctions are filled with looted material?  Of course not.  Or that Italy long ago won its war on looting and its time to rethink the need for its MOU with the US?  Most certainly.  

Repatriation by Purchase

Hungary's Central Bank has announced that the recent purchase of part of the Sevso Hoard is part of a larger program to repatriate significant pieces of art by purchase.  This will cost money, but it will avoid the court battles and bad feelings associated with the repatriation demands of countries like Egypt.

Unclassified Archaeological Remains Piling Up in Storage

BBC News Northern Ireland has reported that

"Hundreds of thousands of archaeological items recovered from historic sites in Northern Ireland are lying unclassified in plastic bags and boxes."

One wonders about the situation in countries that aggressively seek to control all archaeological items, like Egypt, Greece, Cyprus, etc.  

Yet, such information never finds its way into the archaeo-blogosphere, which instead insists every last shard must be under the control of state sponsored archaeologists so it can be properly studied and preserved.

Collection Point for Stolen Egyptian Antiquities to Be Established at New Egyptian Museum

Egyptology Today (Egypttod.com) reports that a new museum affiliated with the Egyptian Government set to open in the Washington, D.C. area will also act as a collection point for stolen Egyptian antiquities:

Alexandria, Egypt, April 1, 2014: The Egyptian Government announced today the re-launch of a new museum devoted to ancient Egypt in a Washington, D.C. suburb.   The new museum will replace a Masonic memorial to George Washington, built in Alexandria’s sister city in Virginia. The monument, built in the 1920’s, is based on the imagined design of the famous Pharos Lighthouse. According to world famous archaeologist and once and future Antiquities Pharaoh Zani Hanass,  plans for the museum, which were put on hold during Egypt’s so-called “Arab Spring,”  are back on track under the leadership of Egypt’s glorious military, with new funding from their fraternal brothers in arms in the Chinese People’s Liberation Army, and its wholly owned subsidiary, PolE Group.

 PolE Group is a world renown expert in Chinese antiquities, but hopes to apply its knowledge and collector contacts to artifacts from another great ancient culture, that of Egypt.   According to world famous archaeologist Zani Hanass, PolE will lend its expertise in identifying and valuing stolen Egyptian antiquities that will be turned over by US Government authorities pursuant to a long planned MOU with Egypt.   That MOU, which will be signed at the museum’s grand opening, halts the U.S. sale of any antiquity lacking a stamp of approval from the government in Cairo.

 Asked to comment about the use of the new Museum as a collection point for stolen antiquities, Gill Barmore, a spokesman for Das Kapital Archaeological Institute, was ecstatic, “Finally, America will cleanse itself of the Pharaoh’s curse of stolen heritage, and all with the help of the Chinese, who also have been victimized by Colonialist powers.  Whether these decontextualized trinkets end up in Beijing or Cairo makes no real difference; the American public should be well satisfied by what will be on display at the museum.”

 No ticket price has yet been decided, but Hanass and other Egyptian officials are confident that Americans will pay almost anything to see stolen Egyptian antiquities recovered from American connoisseurs.   There are even plans for a wall of shame, which will pair  actual antiquities with mug shots of their prior owners, again with generous funding from the PLA and PolE Group.