Jordanian MOU Backstory: A Window into How MOU's are Orchestrated

The US Embassy in Jordan has helpfully confirmed what many who have closely followed the process of creating MOU's "protecting" cultural heritage already knew, i.e., that the process is orchestrated in advance by the State Department itself with the help of archaeological advocacy groups.

Here is what the US Embassy in Jordan itself has said about the process:

The idea of holding an agreement to protect the Jordanian cultural heritage from smuggling had begun on the margins of the meeting of the second ministerial conference entitled “Heritage under Threat” which was held in Amman on September 8, 2016, and was organized by the Ministry of Foreign Affairs and Expatriates Affairs, the Ministry of Tourism and Antiquities, the Middle East Institute and the Archaeological Institute of America (AIA), where the cultural section of the Embassy of the United States of America in Amman expressed the desire of the United States of America to conclude a bilateral agreement with the Government of the Hashemite Kingdom of Jordan represented by the Department of Antiquities, with the aim of protecting Jordanian cultural heritage from smuggling.  Accordingly, many meetings were held with specialists from the US State Department, the US embassy, and from the Ministry of Foreign Affairs and the Department of Antiquities, during which the broad lines were agreed upon to prepare a memorandum of understanding on preventing the import of Jordanian artifacts and recovering the artifacts from the United States and returning them to Jordan.  Workshops, lectures, and visits were organized for experts from the United States of America to introduce international agreements on preventing the trafficking of antiquities and protecting cultural heritage.  

In other words, despite what the Cultural Property Implementation Act contemplates, the decision to enter into a MOU does not actually depend on recommendations of the Cultural Property Advisory Committee, but rather a Committee meeting merely provides an opportunity for public comment before a body that has also been dominated by members sympathetic to the views of the same advocacy groups involved in orchestrating MOU's in the first place.

No wonder no MOU request has ever been turned down.

The US State Department Imposes Import Restrictions on a Wide Variety of Jordanian Archaeological Objects-- Including More ROPE!

The Federal Register has announced broad import restrictions on Jordanian archaeological objects, effective Feb. 5, 2020.  The Federal Register Notice along with the "designated list" of objects subject to restrictions can be found here.

The U.S. Embassy in Jordan announced the Memorandum of Understanding that authorized these import restrictions back in December.  While we now know what has been restricted, the MOU-- which should detail any promises Jordan has made as part of the agreement-- has yet to be released.

Exceptionally Broad List

As with other recent MOU's, the designated list is ridiculously broad.  For example, the State Department has concluded that Jordanian rope must be subject to detention, seizure and repatriation, just like Algerian rope  which was restricted earlier.  One really has to wonder how either could possibly  meet the CPIA's "cultural significance" test for objects to be restricted. 19 U.S.C.  § 2601.

Thankfully, the "designated list" for coins at least leaves out Greek and Roman types made elsewhere that circulated not only in Jordan, but throughout the Middle East and beyond.  Nonetheless, the list remains quite broad, incorporating not only local bronze issues, but Nabataean and Byzantine coins that circulated regionally.  

Here is the list for coins:

10. Coins—Some of the best-known

types include:

a. Nabataean—Coins in silver, lead,

copper or bronze and struck at Petra.

They typically have cornucopiae or

wreaths on the reverse and portrait of

the ruler or rulers on the obverse.

b. Roman Provincial—Coins in silver

and bronze were struck through the

third century A.D. at Roman and Roman

provincial mints of Abila (Abel), Adraa

(Daraa), Charachmoba (Al-Karak), Dium,

Esbous (Heshbon), Gadara (Umm Qais),

Gerasa (Jerash), Medaba (Madaba), Pella,

Petra, Philadelphia (Amman),

Rabbathmoba (Aroer) Capitolias/Dion

(Beit Ras), and Raphana. This type also

includes the pseudo-autonomous

coinage of the second and first centuries

B.C.

c. Byzantine—Coins in bronze and

struck at the Arab-Byzantine mint of

Aylah/Elath (Aqaba).

d. Early Islamic—Coins in bronze or

silver and struck at the Umayyad mints

of Adraa (Daraa), Gerasa (Jerash),

Philadelphia/Rabbath-Ammon (Amman)

and under the Abbasids at Philadelphia/

Rabbath-Ammon (Amman). These coins

are epigraphic in design, featuring one

or more lines of Arabic script. Some

Abbasid bronze coins from

Philadelphia/Rabbath-Ammon (Amman)

feature a small flower-like design in the

center of one side.

e. Crusader—These coins appear as

thin, light-weight, low-quality-silver

billon. Examples usually feature crosses

and/or crude portraits or buildings as

central images.

Jewish artifacts are another hot topic because import restrictions recognize the rights of Arab governments to the material culture of displaced Jewish minorities.  Presumably,  the State Department will argue it addressed the concerns of Jewish groups when it limited restrictions on manuscripts to archaeological objects dating before 1750 AD—but there was no specific exemption for Torahs and other Jewish artifacts as Jewish groups have requested.

What's All the Fuss About?

The archaeological lobby supporting import restrictions have pitched them as  a "consumer protection" measure designed to keep U.S. collectors from buying recently looted material.   Yet, they must know that import restrictions are controversial to the trade and collectors because, as construed by U.S. Customs and Border Protection, they embargo all undocumented items of types on designated lists imported after the effective date of the regulations, not just items illegally exported from a UNESCO State party after the effective date of import restrictions as required under CPIA, 19 U.S.C. §§ 2601, 2604, 2606, 2610. Such regulatory actions have converted CPIA import restrictions into embargoes of all objects of restricted types rather  than targeted, prospective import restrictions that do not impact the purchase of artifacts from the legitimate marketplace abroad.

Import restrictions have been particularly hard on coin collectors and the small businesses of the numismatic trade because most collector's coins (which typically are of limited value) lack detailed provenance histories necessary for legal import. This has greatly damaged the legitimate trade in such items with fellow collectors, especially from within the E.U.

There is also the question of what will happen when U.S. Tourists return with common ancient coins sold openly at Petra and at an annual numismatic bourse that takes place in Amman.  Presumably, if Jordan does not provide for export certificates for such items, they will be subject to detention, seizure and repatriation back to Jordan-- rough treatment for law abiding Americans that will be sure to sour any positive experiences for tourists simply wanting a memento of their journey.

Report on January 21, 2020, CPAC hearing to discuss proposed MOU's with Turkey and Tunisia

               On January 21, 2020, the U.S. Cultural Property Advisory Committee (“CPAC”) met to consider proposed MOU’s with Turkey and Tunisia.   CPAC is currently constituted as follows.  (1) Stefan Passantino (Public); (2) Adele Chatfield-Taylor (Public); (3) James Reap (Public); (4) Karol Wight (Museums); (5) Nancy C. Wilkie (Archaeology); (6) Ricardo A. St. Hilaire (Archaeology); (7) Lothar Von Falkenhausen (Archaeology); and  (8) Anthony Wisniewski (Collector-Sale of International Cultural Property).

                Due to the large number of speakers, the Chair indicated each speaker would only be allowed two (2) minutes rather than the usual five (5) minutes.  Those speakers in favor of MOU’s with Turkey and/or Tunisia were as follows: (1) Dr. Lynn Dodd; (2) Dr. Jane Evans; (3) Sam Hardy; (4); Dr. Christina Luke; (5) Dr. Brian Rose; (6) Tess Davis; (7) Dr. Nathan Elkins; (8) Dr. Elizabeth Greene; and (9) Katie Paul.  Those opposed to one or both MOU’s or their application to certain types of artifacts were as follows:  (1) Stephen Knerly; (2) Elias Gerasoulis; (3) Carol Basri; (4) Kate FitzGibbon; (5) Douglas Mudd; (6) Peter Tompa; and (7) Randolph Myers.

                Chairman Passatino welcomed the speakers.  He indicated that the Committee had read all the comments, particularly those of the speakers.  Given the large number of speakers, Mr. Passatino indicated that speakers would be limited to 2 minutes.  After all the speakers were finished, he would open up the floor to questions.

                Dr. Lynn Dodd is an archaeologist.  She supports Turkey’s MOU.  She indicates Turkey has met all the criteria to be granted a MOU.

                Dr. Jane Evans indicates coins are at risk from metal detectors.  She indicates excavation coins typically are local issues that do not circulate far from where they are made so they should be restricted.

                Sam Hardy starts his presentation honoring an archaeologist who took his own life rather than taking the blame for embezzlement.  He indicates trafficking is a real problem in Turkey.  He finds it odd that Turkey would not be granted a MOU because of problems within the country because granting a MOU will encourage positive forces in Turkey to clean up the country’s act.

                Dr. Christina Luke works in Turkey.  She echoes her support of others for a MOU with Turkey.

                Dr. Brian Rose of the University of Pennsylvania has seen looted sites.  Looting is a lucrative business that needs to be addressed. Turkey allows US Archaeologists to work in the country, which promotes educational exchange.

                Tess Davis and her organization, the Antiquities Coalition, supports the MOU with Turkey.  She focuses her comments on the third determination. She indicates there is a concerted international response of market nations now that the EU has promulgated import controls on cultural artifacts.

 

                Stephen Knerly spoke for the Association of Art Museum Directors.  He indicates that a MOU in this case would not be appropriate because the Turkish government is involved in state sanctioned looting and destruction of Turkey’s cultural patrimony.

                Elias Gerasoulis speaking for the American Hellenic Institute opposes any MOU with Turkey.  There is no rule of law in Turkey under Erdogan.  A number of Byzantine era cathedrals have been turned from museums into mosques.  Over 400 churches have been destroyed in Cyprus. Erdogan has shown disdain for religious minorities and the material remains of their culture.

                Dr. Nathan Elkins notes that prior MOUs have focused on coins that have circulated locally, but is time to expand upcoming MOU’s to include Roman Republican, Roman Imperial and Byzantine coins.  There are enough MOUs already where coins have been included that now is the time to treat all coins like other objects that are found on different designated lists.

                Dr. Elizabeth Greene supports the MOU.  MOUs ensure that objects of minority groups are preserved. From her work on shipwrecks, Greene knows that even common artifacts like transport amphorae are important to understanding the past.

                Katie Paul speaks for the Athar Project.  She shows images of artifacts from Tunisia and Turkey on sale on Facebook.  She indicates some buyers are located in the US.  She also indicates that she is Pontic Greek.  She wants Greek artifacts protected as evidence of the Greek Diaspora.

                Carole Basri contrasts her prior work for the State Department to more recent State Department efforts to recognize the rights of authoritarian MENA governments to the artifacts of displaced minority populations.  At some risk to her personal safety, Ms. Basri collected records of Jews in Iraq on December 11, 2003 for the State Department.  Some of these records were later deposited in the US Holocaust Museum.  Carole Basri believes there needs to be a carve-out in any MOU for religious artifacts of displaced Jews and other minority populations. 

                Kate FitzGibbon speaks for the Committee for Cultural Policy and the Global Heritage Alliance.  It is essential that CPAC adhere to the CPIA’s requirements.  Turkey has engaged in legalized theft of minority religious artifacts.  A book written by a US diplomat discusses the artifacts available in the Grand Bazar for sale to foreigners. 

                Doug Mudd speaks for the American Numismatic Association.  Import restrictions on coins have had a negative impact on the ANA’s educational mission.  An instructor at the Summer Seminar was afraid to bring his coins from abroad because he was concerned they would be seized.  People can learn from ancient coins which are amongst the most common ancient artifacts.

                Peter Tompa speaks for the International Association of Professional Numismatists.  Any MOU would recognize the Erdogan Government’s rights to “claw back” cultural goods of “ethnically cleansed” Greek, Armenian and Assyrian populations.  Since 2007, a series of grossly over broad import restrictions placed on common ancient coins of the sort widely collected worldwide (including within most of the countries for which import restrictions have been granted) have done quite a bit of damage to ancient coin collecting. Their cumulative impact has been problematic because outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.  Another embargo, this time potentially impacting a wide variety of Greek, Carthaginian, Roman Provincial, Roman and Byzantine coins struck or sometimes found in Turkey and Tunisia, will bring even more damage. As set forth in IAPN's submissions, there are many statutory reasons why this should not happen. Moreover, CPAC also needs to consider whether import restrictions on coins are really necessary, particularly because it appears that both Turkey and Tunisia allow for the internal sale of ancient coins.

                Randolph Myers is a coin collector.  Coins struck in large multiples lack cultural significance. CPAC should also consider whether less drastic measures, like the institution of a Treasure Act or Portable Antiquity Scheme, should be tried first.  Finally, there is no evidence presented that either Turkey or Tunisia are undertaking adequate self-help measures.

Questions:

              Karol Wight asks if the AAMD polled its members about loans from Turkey.  Stephen Knerly indicates that because the State Department has started using a standard Article II in their MOU’s there is no reason to seek this information from members.  He does note, however, that Turkey demands high loan fees.  It would be beneficial to all concerned if Art II of MOU’s (which relate to requirements placed on the foreign country) are written individually.

            Anthony Wisniewski asks Kate FitzGibbon if restrictions should be placed on coins.  She indicates it is important to look to the wording of the CPIA to ascertain whether restrictions are appropriate.  She then defers to Peter Tompa.  Peter Tompa indicates restrictions should not be placed on coins, but if they are so placed they must take care that they only apply to coins both first discovered within a country and subject to its export control.  He notes that restrictions would be wholly inappropriate on Roman coins which circulated from England to Sri Lanka and which are found in many more countries than where there are MOUs on coins.  Dr. Nathan Elkins is allowed to comment.  He believes restrictions should come in as long as over 50% of coins are found in a given place, but this should be further expanded to everywhere coins are found.

           Anthony Wisniewski asks Dr. Rose about the provenance of coins found in the University of Pennsylvania Museum.   Dr. Rose said that the Museum secured these coins years ago under a system of partage.

          Chairman Passatino asks Elias Gerasoulis if his group could live with any MOU with conditions to address concerns of the Greek community.  Mr. Gerasoulis indicates that his group is unalterably opposed to a MOU because the Erdogan government cannot be trusted. He believes a MOU would make the situation worse, not better.   Moreover, this MOU raises questions not only about Greek property, but other minority property as well.  For example, how can we trust Turkey to respect Jewish minority property, when Erdogan hosted the leader of Hamas, an anti-Israel U.S. designated terrorist group, at the Presidential palace in Turkey last month?  This issue is not simply one of archeology. The political context needs to be looked at and understood. 

Look Hard Before You Leap Again!

I planned to say this at today's Cultural Property Advisory Committee meeting on MOU's with Turkey and Tunisia, but had to limit my actual comments.  Due to the large number of speakers, the Chair only allowed 2 minutes not the usual 5 minutes to speak:

Any MOU with Turkey raises serious legal and ethical questions because it would recognize the Erdogan Government’s rights to “claw back” cultural goods of “ethnically cleansed” Greek, Armenian and Assyrian populations. Moreover, one or more CPAC members recently resigned over President Trump’s tweet threatening Iranian cultural sites, and House Foreign Relations Chair Elliot Engel—with the approval of archaeological advocacy groups supporting this MOU—has introduced H.R. 795 that declares that, “the intentional targeting or destruction of cultural property in the absence of imperative military necessity is a violation of the law of armed conflict and runs counter to the values of the United States.”  Yet, the Erdogan government has recently bombed an important Hittite site in Syria, flooded ancient cities, and has even threatened to turn Justinian’s Great Patriarchal Church, Hagia Sophia, from a museum into a mosque.  These measures are the polar opposite of the “self-help” obligations embedded in 19 U.S.C. § 2602 (a) (1) (b), and granting Erdogan a MOU will only encourage him on his destructive path.   As to coins, let me make the following points for both MOU’s:

·        There are large numbers of coin collectors and numismatic firms in the US.   Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses.

·        The brief of the State Department Bureau of Educational and Cultural affairs is to foster people to people contacts and the appreciation of other cultures. It does so with a huge budget of over $500 million. Ancient coin collecting fosters those same goals, but at no cost to the US Taxpayer.

·        Yet, since 2007, a series of grossly over broad import restrictions placed on common ancient coins of the sort widely collected worldwide (including within most of the countries for which import restrictions have been granted) have done quite a bit of damage to ancient coin collecting.

·        Their cumulative impact has been problematic because outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.

·        Another embargo, this time potentially impacting a wide variety of Greek, Carthaginian, Roman Provincial, Roman and Byzantine coins struck or sometimes found in Turkey and Tunisia, will bring even more damage. As set forth in IAPN's submissions, there are many statutory reasons why this should not happen. Moreover, CPAC also needs to consider whether import restrictions on coins are really necessary, particularly because it appears that both Turkey and Tunisia allow for the internal sale of ancient coins.

·        At a minimum, CPAC should ensure that Customs only applies the CPIA as written to items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly, and the one Court that has looked at this issue decided to defer to that decision making on “foreign policy grounds.”  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

·        CPAC should also make any import restrictions on coins contingent on the creation of a Portable Antiquities Scheme and the provision of export permits.  Turkey already pays for finds in some circumstances and both Turkey and Tunisia already allow for internal sales of ancient coins, which should make both programs possible under local law.  Thank you. 

Please Comment on the Proposed MOU's with Turkey and Tunisia

            The United States Department of State has proposed new Memorandums of Understanding (MOU’s) with Turkey and Tunisia.  Both proposals will be extremely problematical for coin collectors as MOU's could impose embargoes on the import of a wide variety of widely collected Greek, Carthaginian, Roman Provincial, Roman, Byzantine, and Islamic coins.  Further information about the January 21, 2020 Cultural Property Advisory Committee (CPAC) meeting and how to comment before the January 7, 2020 deadline can be found here:  https://www.federalregister.gov/documents/2019/11/26/2019-25683/cultural-property-advisory-committee-notice-of-meeting 

A.  Background for Coin Collectors

             There are large numbers of coin collectors and numismatic firms in the US.  Very few collectors do so to “invest.”  Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses. Private collectors and dealers support much academic research into coins.  For example, an American collector collaborated with academics to produce an extensive study of Seleucid coins. A further clamp down on collecting will inevitably lead to less scholarship.

            While what became the Cultural Property Implementation Act (CPIA) was being negotiated, one of the State Department’s top lawyers assured Congress that “it would be hard to imagine a case” where coins would be restricted.   In 2007, however, the State Department imposed import restrictions on Cypriot coins, against CPAC’s recommendations, and then misled the public and Congress about it in official government reports.  What also should be troubling is that the decision maker, Assistant Secretary Dina Powell, did so AFTER she had accepted a job with Goldman Sachs where she was recruited by and worked for the spouse of the founder of the Antiquities Coalition, an archaeological advocacy group that has lobbied extensively for import restrictions.  Since that time, additional import restrictions have been imposed on coins from Algeria, Bulgaria, China, Egypt, Greece, Iraq, Italy, Libya and Syria. 

            The cumulative impact of import restrictions has been very problematical for collectors since outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.  The CPIA only authorizes the government to impose import restrictions on coins and other artifacts first discovered within and subject to the export control of either Turkey or Tunisia. (19 U.S.C. § 2601). Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly.  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

      B.  What You Can Do

                Admittedly, CPAC seems to be little more than a rubber stamp.  Still, to remain silent is to give the cultural bureaucrats and archaeologists with an ax to grind against collectors exactly what they want-- the claim that any restrictions will not be controversial. 

            For comments, please use http://www.regulations.gov, enter the docket [DOS-2019-0043] and follow the prompts to submit your comments.  Alternatively, click this Federal Register link and click on the Green “Submit Formal Comment” Button which should pull up a screen that allows you to comment:  https://www.federalregister.gov/documents/2019/11/26/2019-25683/cultural-property-advisory-committee-notice-of-meeting)(Please note comments may be posted only UNTIL January 7, 2020 at 11:59 PM.

            Please also note comments submitted in electronic form are not private. They will be posted on http://www.regulations.gov. Because the comments cannot be edited to remove any identifying or contact information, the Department of State cautions against including any information in an electronic submission that one does not want publicly disclosed (including trade secrets and commercial or financial information that is privileged or confidential pursuant to 19 U.S.C. 2605(i)(1)).

C.  What Should You Say?

What should you say?  Provide a brief, polite explanation about why CPAC should deny or limit any import restrictions. Consider the following points:

• The governing statute requires that restrictions only be applied on artifacts "first discovered in” Turkey or Tunisia. But hoard evidence demonstrates that many Greek, Carthaginian, Roman, Byzantine and Islamic coins circulated extensively outside the confines of those modern nation states.  The State Department and U.S. Customs have already recognized this fact for higher denomination Greek coins struck in Greece.  To be consistent, any restrictions should not touch higher denomination coins from Turkey or Tunisia, including Roman Provincial Silver, tetradrachms, and gold coins.  Nor should restrictions be placed on Roman, Byzantine, and Islamic coins struck in these countries. Such imperial coins circulated throughout the Empires for which they were made and beyond.  
• The governing statute requires restrictions only be placed on artifacts of "cultural significance." But coins -- which exist in many multiples-- do not meet that particular criteria.
• The governing statute requires that less drastic remedies be tried before import restrictions. But neither Turkey nor Tunisia has tried systems akin the UK Treasure Act and Portable Antiquities Scheme before seeking restrictions.
• The governing statute requires that restrictions be consistent with the interests of the international community in cultural exchanges. But restrictions diminish the ability of American collectors (particularly Turkish or Tunisian Americans) to appreciate the cultural heritage of these countries and greatly limit people to people contacts with other collectors in Europe.
• Much of what Turkey would be allowed to “claw back” if a MOU is granted are cultural artifacts of displaced Greek, Armenian and Jewish populations.  That simply should not be allowed to happen as it would only reward Turkey for its harsh policies to ethnic and religious minorities. 

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. 

Addendum (Dec. 9, 2019):  For more information about the requests and the process, see the Cultural Heritage Center's post about the upcoming CPAC meeting:  https://eca.state.gov/highlight/cultural-property-advisory-committee-meeting-jan-21-22-2020

Summary of CPAC Meeting on Requests from Yemen and Morocco

On October 29, 2019, the US Cultural Property Committee (CPAC) held an open session on proposed MOU’s with Morocco and Yemen.  Video conferencing was used for speakers in diverse locations to provide oral comments to CPAC members meeting at the State Department.

The following individuals were meeting at the State Department: (1) Andrew Cohen, CPAC’s ED; (2) Jeremy Sabloff, CPAC’s Chair (Santa Fe Institute- Museum Representative); (3) Rosemary Joyce (Berkley- Anthropology Representative); Karol Wight (Corning Glass Museum-Museum Representative: (4) James Reap (University of Georgia Historic Preservation-Public Representative);  (5) Dorit Strauss (Art and Insurance Advisory Services- Expert in the International Sale of Cultural Property); and (6) Stefan Passantino (Michael Best & Friedrich, LLP-Public Representative).  There were other State Department staff in the room and apparently other CPAC members listening remotely.

Andrew Cohen gave a short overview about the purpose of the proceeding.  Jeremy Sabloff then indicated that CPAC had received 185 public comments (mostly relating to Jewish religious artifacts), and that due to time constraints comments of public speakers would be limited to 4 minutes (rather than the usual 5).

Stefan Passantino asked Carole Basri (American Filmmaker and Lawyer of Iraqi Jewish Decent) if she would be satisfied with an exemption for Jewish artifacts.   She says a carve out is important, but the problem is that while Jewish artifacts have not been explicitly named in recent designated lists, Jewish artifacts still fall under more general categories.  She also indicated that it is often difficult to tell Jewish artifacts from similar looking Islamic ones.  She notes that Jewish Torahs are in effect private property lent to Synagogues for communal use.  MOUs have in the past have recognized MENA governments’ rights to such private property.

Glenn Corbett (Council of American Overseas Research Centers) has worked to document and preserve the contents of Yemeni museums.  He believes that his Yemeni government colleagues share CAORC’s concerns and truly do want to protect Yemeni cultural patrimony.

Mr. Epstein- Indicates that Torah scrolls are personal property that must be protected.  This property must not be awarded to the anti-Semitic Yemeni regime.

Kate FitzGibbon (Committee for Cultural Policy and Global Heritage Alliance) expressed concern about the short amount of time allowed for speakers along with the short two week long comment period.  She notes that the CPIA has certain criteria that should be met before a MOU is approved.  The State Department’s public summary of the Moroccan MOU request was produced AFTER the close of the public written comment period and did not identify the type of import restrictions or describe the objects for which import restrictions are being sought. Nor did the public summary describe any looting taking place today.   Ms. FitzGibbon appreciates that the CPAC is considering a carve-out for Jewish artifacts, but the issue would not arise if the Cultural Property Implementation Act were applied as written as restrictions would then be placed on far fewer categories of artifacts.  She also indicates there needs to be current looting to trigger the CPIA and that it not clear such looting is taken place in Morocco.  She also notes that Moroccan law is a bit unclear.  She notes that Dr. Sabloff (who also lives in Santa Fe, New Mexico) should recall a local shop that sold Moroccan cultural artifacts that were legally imported, but which would likely be covered under an all-encompassing MOU.

Benjamin Gladstone is a doctoral student.  He is appalled by reports that the US government is considering signing away the cultural heritage of Yemeni and Moroccan Jewry to the governments of those countries.  He is particularly concerned not only about Torah scrolls but grave goods as well.  Yemeni Jews were discriminated against.  Jewish orphans were subject to forced conversions to Islam.  Whether one was an orphan was determined by whether the father was living.  Lots of children were forcibly removed from Jewish widows, and then tortured into accepting Islam.   Young Jewish women who were “orphaned” were also forced to marry Yemeni Muslims.  For many years, the State of Israel sought to preserve the grave of a Jewish holy man in Yemen.  The Yemeni government sought to erase any trace of the grave by erecting a school over it.

Sarah Levin (Jews Indigenous to the Middle East and Africa (JIMENA)) speaks for displaced Jews from Yemen, Morocco and elsewhere in the region.  Her group has contacted Secretary of State Pompeo and House Foreign Relations Chair Eliot Engel to express concerns about the US recognizing the rights of MENA governments to Jewish cultural artifacts when Jews have been ethnically cleansed from the region. Jews are not allowed access to Jewish cultural artifacts that remain in the region because they were not allowed to remove them when they fled.

Katie Paul (ATHAR Project) shows screen shots of Yemeni and Moroccan cultural artifacts available for sale on Facebook pages for groups within the region.  She maintains that some of these groups are very large and also have members in the US.  The images show a range of objects including statuary, Torah scrolls and coins.

Mr. Sissan (Spelling?)  Indicates that Jewish people saw themselves as foreigners in MENA countries and logically MENA countries should not be entitled to their cultural artifacts.

Peter Tompa (International Association of Professional Numismatists) states that CPAC needs to look before it leaps to approve yet another round of MOUs with authoritarian MENA governments.  The Yemeni MOU is very troubling because Yemen is complicit along with its Saudi allies in the intentional destruction of cultural sites, including the Dhamar Museum.  A few images of what purport to be looted material on Facebook is insufficient to establish that Morocco’s cultural patrimony is in jeopardy. CPAC should work to ameliorate damage done to coin collecting by ensuring that any import restrictions are only applied prospectively to coins proven to be illicitly exported from the State Party that received import restrictions after the effective date of any regulations.  Current procedures do not comport with the CPIA because they effectuate an embargo on all coins imported after the effective date of any regulations. 

 

Kate FitzGibbon notes that a number of the images on Facebook shown by Ms. Paul may be fakes.  

Ms. Paul indicates she vetted some with experts and that fakes are often used to hide real objects.

Carole Basri asks the Committee to review her Fordham law review article about Jewish cultural heritage. She notes MENA governments treat Jewish archival material poorly.  In one instance, some such material was almost incinerated.

Rosemary Joyce wants Ms. Basri and others to know that the Red List (which has Jewish artifacts on it) is not the same as the designated list. 

Carole Basri argues that any Jewish material that US Customs seizes should be given to Jewish groups in the US and not returned to MENA countries.

Look Hard Before You Leap

Here is what I planned to say during today's CPAC meeting.  My actual comments were somewhat abbreviated:

          I am here to ask that you look hard before you leap to approve yet another round of MOUs with authoritarian MENA governments.  Yemen is a particularly troubling case with an ongoing civil war.  The Hadi government has been propped up by Saudi Arabia.  It is undisputed that Saudi Arabia and its coalition partners are complicit in intentionally destroying cultural sites, including bombing the Dhamar museum.  The other major party, the Houthis, are Iranian proxies.  The Hadi Government has accused the Houthi of doing most of the looting in the country, but if that is true wouldn’t that also mean any looted material is going to Iran, not here?  In any case, the net result of any MOU with Yemen will be repatriating artifacts (that may or not have been in Yemen for decades) back to a war zone.  A MOU with Morocco raises a different issue—is the patrimony of Morocco really in jeopardy or is this just a case where another MENA government has been promised the same treatment as its neighbor, Algeria.  The information that has been provided about a shadowy seizure in France, a few images of what purport to be Moroccan cultural items on Facebook, and even an article that links treasure hunting to sorcery fall well below the quantum of evidence required.

            As to coins, let me make the following points.

·        There are large numbers of coin collectors and numismatic firms in the US.  Very few collectors do so to “invest.”  Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses.

·        Private collectors and dealers support much academic research into coins.  For example, a German collector and a curator at the American Numismatic Society collaborated to produce, “Coinage of the Caravan Kingdoms,” an extensive study which includes research into the coinage of ancient Yemen.  A clamp down on collecting will inevitably lead to less scholarship.

·        While what became the CPIA was being negotiated, one of the State Department’s top lawyers assured Congress that “it would be hard to imagine a case” where coins would be restricted.   In 2007, however, the State Department imposed import restrictions on Cypriot coins, against CPAC’s recommendations, and then misled the public and Congress about it in official government reports.  What also should be troubling is that the decision maker, Assistant Secretary Dina Powell, did so AFTER she had accepted a job with Goldman Sachs where she was recruited by and worked for the spouse of the Antiquities Coalition’s founder.  Since that time, additional import restrictions have been imposed on coins from Algeria, Bulgaria, China, Egypt, Greece, Iraq, Italy, Libya and Syria. 

·        The cumulative impact of import restrictions has been very problematical for collectors since outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.

·        It is probably too late to change history, but even at this late date, the problems facing coin collectors could be ameliorated if CPAC works with Customs to ensure the CPIA is applied as written.

o   The CPIA only authorizes the government to impose import restrictions on coins and other artifacts first discovered within and subject to the export control of either Morocco or Yemen. (19 U.S.C. § 2601). Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly.  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

o   The State Department will no doubt point to a 4^th Circuit case as support for its procedures, but it is important to recognize this decision was ultimately predicated on the view that the Court should not interfere with what it considered to be a “foreign policy matter.” That of course has no bearing on CPAC recommending that State and Customs do the right thing and ensure any restrictions that may be advocated are properly phrased to only apply to coins illicitly removed after the effective date of regulations.  As referenced in our papers, Congress mandated a similar formulation under Syrian import restrictions.  Thank you.