Wednesday, October 30, 2019

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.

Tuesday, October 29, 2019

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 4th 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. 

Wednesday, October 16, 2019

Slim Public Support for MOU's with Yemen and Morocco

The docket for the upcoming CPAC meeting on proposed MOU's with Morocco and Yemen indicates that 170 comments were received about one or both of these MOU's.  The vast majority of comments came in response to an appeal from JIMENA (Jews Indigenous to the Middle East & North Africa) against State Department efforts to recognize the rights of authoritarian MENA countries to the religious and cultural artifacts of their displaced Jewish populations.

Coin collector-numismatic trade comments were way down (to approximately 10) from 100's in the past, no doubt due to frustration about the likelihood of numismatic logic moving the State Department, as well as the fact that the obscure coin types found in these countries are mainly of interest to specialists. 

Archaeologists and archaeological advocacy groups were only represented with approximately 10 comments as well, which should again confirm that there is very little actual public support for these MOU's.

Oddly, the "Antiquities Coalition" which has worked with the Yemeni Government on this MOU apparently failed to submit any public comments.  Is it possible the Coalition has already received assurances that the MOU's are a "done deal?"

Wednesday, October 2, 2019

Short Comment Period for Proposed MOU's with Morocco and Yemen

The State Department's Cultural Heritage Center is only allowing a mere two weeks for written comment on proposed MOU's with Morocco and Yemen.  For the applicable Federal Register Notice along with a direct link for comments see here .

In what must be an unprecedented move, the State Department only provided public notice about the CPAC hearing the same day it published Yemen's Article 9 request.  While summaries of the requests are promised, none have yet been provided, making intelligent comment even more difficult.

Yemen's request should be controversial.  Yemen is involved in a three way civil war.  Its government and its Saudi allies stand accused of intentionally targeting cultural sites, including bombing the Dhamar Museum into dust. This raises questions whether the Yemeni government has "unclean hands" and whether artifacts should be repatriated to a war zone.  There are also other moral issues related to whether the United States Government should recognize Yemeni government rights to artifacts of displaced Jewish and Christian populations.  Under the circumstances, one has to wonder whether the short comment period is designed to keep potentially embarrassing comments about the merits of the Yemeni request to a minimum.

Addendum (10-7-19):  Additional information, including a Public Summary of the Yemeni request, can be found here.