Friday, February 6, 2015

The CPIA's Burden of Proof: How it is Supposed to Work...

Here is how Mark Feldman, the State Department's Deputy Legal Adviser, explained how what became the CPIA's burden of proof was supposed to work:

Now, if I may pass for a moment to the question of procedures and burdens of proof, which is the area of one of the great improvements in the bill.   I do want to clarify a matter which involves a difference of interpretation between the art dealers and the State Department. One of the major changes made in the legislation was to alter the presumption normally applied in customs cases putting the burden of proof on the Government in most particulars. One issue where the burden of proof is placed on the Government is to demonstrate that the object fits within the proscribed list.  The Government must show both that it fits in the proscribed category and that it comes from the country making the agreement.  So the burden of proof of provenance is on the Government, a burden which I don’t think has been appreciated by all the critics of this legislation.  This means in a significant number of cases it will not be possible to require an object’s return.   Now this is a policy judgment.   The burden of proof on provenance could have been placed on the importer, which would preclude importation where provenance could not be established.  We have not gone that far; it may be that Congress, when it focuses on this issue, may decide otherwise.  To put the burden of proof of provenance on the importer may be the only truly effective way of avoiding importation of objects illegally removed from their country of origin.  But we in the State Department have not promoted that solution, recognizing that where the facts are obscure, U.S. collectors should not be precluded from competing for the material. . . . .

The only country that would have the right to claim such an object under the bill is the country where it was first discovered.  It would have to be established that the object was removed from the country of origin after the date of the regulation. 

Proceedings of the Panel on the U.S. Enabling Legislation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 4 Syracuse J. Int’l L. & Com. 97 1976-1977 at 129-130. 

As Feldman explains, questions of burden of proof -- particularly where they relate to forfeitures of private property rights--are for Congress to determine, not cultural bureaucrats, DOJ attorneys or even the Courts.   Yet, there seems to be an assumption by some bloggers associated with the archaeological lobby that advocating for one's rights to due process is somehow misguided or even the work of "idiot" "cowboys."  But due process is what is supposed to separate this country from dictatorships.  So, perhaps the ACCG should be commended not condemned for continuing to assert its rights to due process on its own behalf and on behalf of collectors everywhere in ongoing litigation and, if necessary, on appeal.


Wayne G. Sayles said...

What ACCG and I personally have advocated for the past ten years is adherence to law. In the matter of ancient coin imports, CPIA (when invoked through the MOU process) is the law in America. Every citizen and government agency is bound by the provisions of that law. The fact that CPIA was very carefully scrutinized and debated before enactment is very well documented and the plain meaning of the law is outlined within the congressional testimony that arose during that debate. Mr. Feldman was the spokesperson for the government position and his recorded assurances to members of the legislature (cited above) were part of the basis for the final compromises that led to enactment of the law as it exists today. The law has not changed, but the burden of proof so carefully articulated in 1983 (even by the bureaucracy) has been reversed by bureaucratic rulemaking without any authorization on the part of congress or the courts. Justice demands that the law be enforced as written or that the law be amended. The ACCG litigation is a call for justice, no more and no less. All of the sharp tongued criticisms by ideolologues who would have it another way are simply a call for lawlessness.

Dave Welsh said...

The real "idiots" in this ungodly mess are the Federal judiciary, which has cravenly sought arcane technicalities to find cover from the risk of doing its Constitutional duty: to uphold the clear legislative intent of the CPIA.

Such kowtowing to devious, extralegal bureaucratic conduct sets the stage for tyranny: dictatorship of the bureaucrats. The ACCG's struggle to receive due process of law is a battle for freedom and Jeffersonian principles of inherent individual rights.

It seems clear that there will not be a "judicial solution" to tyranny of the bureaucrats. The time has come to seek a legislative solution.

Mr. Barford in his "bog" []
recommends that it is "Time to scrap this anachronistic law and rewrite it to meet the realities of the global antiquities market of the 21st century."

I don't often find myself in agreement with Mr. Barford, but I believe it is high time that the CCPIA should be reviewed and overhauled.

On the one hand it is conceivable that certain aspects of the law could be revised to make illicit trafficking in major antiquities (of the sort that are routinely used as examples to justify clamping down on the antiquities trade) more difficult and more perilous.

On the other hand I believe it is high time that US accession to the 1970 UNESCO Convention should be revised to eliminate classification of many minor items which do not to any appreciable extent "incentivize looting" of archaeological sites. I believe that coins, postage stamps, books and manuscripts, and a wide variety of other so-called "artifacts" should be explicitly exempted from US acceptance in the revised CCPIA and US Instrument of Accession.

I would even go so far as to support Mr. Barford's Japanese prints being excluded.

Dave Welsh