Tuesday, October 29, 2013

NAT GEO Under Investigation for Bribery

Reports have surfaced that US Government investigators are looking into whether National Geographic's business relationships with former Egyptian Antiquities Pharaoh Zahi Hawass violated the Foreign Corrupt Practices Act.  CPO first raised questions about this business relationship back in 2011.  In CPO's opinion there needs to be far more scrutiny of such relationships between foreign cultural bureaucrats and US archaeologists and their related organizations.  As it is, there is virtually none at this time.

State Department Rebuffs Schumer

The U.S. State Department and its Cultural Heritage Center have rebuffed Senator Schumer's effort to stop the repatriation of the property of Iraqi Jews to the same country that deported them.  In 2009, the State Department and its Cultural Heritage Center also imposed import restrictions on Chinese cultural goods, despite prior assurances to the Senator to the contrary.

Will Senator Schumer press the State Department on the matter or let it drop as was done with import restrictions on Chinese cultural artifacts?

Monday, October 28, 2013


This is what I said, more or less, to the audience of 100 or so people at the New York City Bar last week.   The sponsors of the event commemorating the 30th Anniversary of the Convention on Cultural Property Act asked me to speak about the ACCG's test case.  So I did.

I’ve had the honor and pleasure of representing a small non-profit advocacy group, the Ancient Coin Collectors Guild, in an effort to test import restrictions which as a practical matter make it impossible to import ancient “coins of Cypriot type” and “coins from China.”  

Although the courts in the 4th Circuit have not been kind to us to date, let me explain why such an effort is not as crazy as it might seem to some.  And while you yourself might not be as interested in ancient coins as I am, they make for an excellent type of artifact to use for a test case, because restrictions on them should raise serious questions of how far the State Department, US Customs and the archaeological community are taking the concept of “cultural property.”

Ancient coins are by far the most common ancient artifact.  There are millions extent if you are talking about ones produced by classical civilizations in the West and billions extent if you include coins made in China and the rest of Asia.  They are hardly rare as a class or “culturally significant,” if you like.  They are not only widely and legally collected in the US, but also in Europe (including Cyprus), China and pretty much anywhere for that matter.  Moreover, it’s hard to link them to a specific modern nation state.  Like the $100 bills of today, ancient coins circulated far and wide well outside the borders of the ancient city states and empires that made them.  And yet, despite this commonality, despite this widespread circulation, and despite this widespread popularity for collectors of many countries—including countries like Cyprus, China, Greece and Italy for which restrictions have been given, our State Department and Customs have seen it fit to restrict Americans from access to what the rest of the world enjoys.  Talk about being “holier than the pope!”  Or the Cultural Property Advisory Committee (CPAC) for that matter—because 2 CPAC members have stated publicly that State and Customs have acted against CPAC’s recommendations on coins.   

Next, let’s discuss the governing statute, the Convention on Cultural Property Implementation Act or CPIA.   You’ve already heard something about how the CPIA is the product of legislative compromise—and so it was.  But how was this compromise worked into the law?  In short, it was done—quite deliberately-- by drastically limiting executive authority.

Indeed, the CPIA contains significant procedural and substantive constraints on the executive authority to impose import restrictions on cultural goods.  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.  Moreover, the CPIA contemplates that CPAC is to provide the executive with useful advice about this process, including what types of cultural goods should be subject to restriction.

The CPIA also limits the government’s authority to promulgate regulations imposing such import restrictions. In particular, once the State Department decision-maker imposes import restrictions, U.S. Customs and Border Protection (“CBP”) must then designate the material restricted by type or classification, making certain that the list of restricted material is sufficiently specific and precise to ensure that the restrictions are only applied to the material covered by any agreement to impose import restrictions and that “fair notice” is given to importers.  

 Why is this important for purposes of testing the regulations?  Well, these limitations on executive discretion embedded in the statute give litigants an opening to argue that the decision making should be subject to judicial review.  How should this work?  And why didn’t courts in the 4th Circuit buy that argument?

Well, first the Administrative Procedure Act (APA) provides for judicial review of final agency actions.  There is certainly a good argument that the “final agency action” here was US Customs’ promulgation of import restrictions, but the district court instead sided with the Government and its claim that the “final agency action” was the decision of the President’s designee approving a MOU with Cyprus and China.    This allowed the Government to escape judicial review under the APA based on an old case, Franklin v. Massachusetts,  that held that held that the actions of the president are not subject to judicial review because he is not an “agency” for purposes of the APA.   

Frankly, I think that the district court got it wrong.   Supreme Court case law says the final agency action is only the one where any liability attaches—and here any liability only flows from the regulations themselves, not the initial decision from State.  Moreover, there is a presumption of judicial review embedded in the APA—so why did that presumption not control here?     And let’s not forget, the decision maker was not the president himself, instead it was an assistant secretary in the State Department, who acted as his designee.   It’s not at  all clear in those circumstances whether Franklin should really apply.

Second, there is the rarely used but judicially recognized “non-statutory” or “ultra vires” review of whether the executive exceeded its statutory authority that applies where the APA does not.  Interestingly, while the district court agreed with the Guild that the CPIA’s limitations on executive discretion made judicial ultra  vires review appropriate, the district court then only undertook what purported to be ultra vires review of compliance with the CPIA with respect to two discrete issues, to the exclusion of all others, most notably the “concerted international response” requirement, before dismissing the case without allowing for any discovery.  Presumably, a more sympathetic judge might undertake such a review of whether the executive complied with all the limitations on their authority.

Finally, there is the question of whether the courts should stay out of these issues altogether because import restrictions on cultural goods are “foreign policy matters.”   The district court never reached this issue, mentioning it only in a footnote, but the Court of Appeals based its decision affirming the district court on this basis.  The court of appeals completely ignored the Supreme Court’s “political question” test in doing so even though the Supreme Court has also held that it applies to such “foreign policy” claims.

That test calls for “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in a specific case, and the possible consequences of judicial action.” Baker v. Carr, 369 U.S. at 211-12.  One wonders if a court that honestly applied this test could really conclude that import restrictions on coins constituted such a “foreign policy matter.”   I submit not.   But we will not know unless, of course, another test case is filed in another circuit, perhaps one less known for its pro-government leanings.  

Okay, you might with ask with perfect 20-20 hindsight why then did the Guild file in the 4th Circuit?  Well, the Guild is a small non-profit and it was done because filing elsewhere would have added unnecessary expense since my law firm is based in Washington, D.C.  As a D.C. firm, we certainly would have liked to file in D.C. Circuit, which is well known for its expertise in administrative law.  However, to get standing we needed to actually import some coins on the designated lists—and the most convenient ports for an import from Europe were in Baltimore and Dulles Airport in Virginia, both in the 4th Circuit.  It was only after the coins were imported and seized by U.S. Customs in Baltimore that the case could go forward.

And what of those coins?  Well, the government finally filed a forfeiture action against the coins the Guild imported.  So we will soon see what, if any, of the same issues will be litigated in the context of that action.    If you invite me back again in a few years, perhaps I will have more to say on that.    For now though, let me thank you for inviting me to discuss this issue that is so important to the small businesses of the numismatic trade and collectors tonight.

Chinese Art Market Rife with Fakes

Chinese citizens are rightly proud of their ancient culture.  And even my friends in the archaeological world will no doubt agree that collecting antiquities is better than smashing them, as was done during the dark days of Mao's Cultural Revolution.  Yet, the rush of Chinese collectors has led to a host of problems, most notable the production of fakes.  I hope Chinese authorities are able to sort this out in such a way that does not dampen the enthusiasm of Chinese citizens for their own history.  Collecting and enjoying artifacts is far better than smashing them or warehousing them in my opinion.

Friday, October 25, 2013

Symposium on the 30th Anniversary of the Cultural Property Implementation Act

On October 22, 2013, the New York City Bar conducted a symposium about the Cultural Property Implementation Act (CPIA) to mark its 30th Anniversary.   The event was co-sponsored by the American Society of International Law (ASIL).  The panel was introduced by Michael McCullough (MM) (Michael McCullough LLC) and Josh Lipsman, the Chair of the Bar’s Cultural Property Subcommittee.  Irina Tarsis of ASIL also helped coordinate the event.

The Speakers were Arthur Houghton (AH), a former State Department official, Getty Curator and two-term Cultural Property Advisory Committee (CPAC) member, Larry Mushinske (LM), a former US Customs National Import Specialist for Art and Antiquities, Peter Tompa (PT), of counsel at Bailey & Ehrenberg PLLC, Jonathan Illari (JI), Associate General Counsel at Bonham’s Auction House, and Leila Amineddohleh (LA), the Executive Director of the Lawyers’  Committee for Cultural Heritage Preservation.

MM- The CPIA is compromise legislation that incorporated the 1970 UNESCO Convention into US law subject to reservations to ensure that the US maintained its “independent judgment” over the nature and scope of import restrictions on cultural goods.

Panel I-AH and LM.

AH- Times have changed since AH was on CPAC in its early years.  In those early days, restrictions were very narrow.   The first request was for restrictions on particular types of artifacts from one site in El Salvador.  The early committee had representatives of the trade on it, but they knew nothing of antiquities.  Conflict of interest rules were used to keep knowledgeable dealers off the committee.  Meanwhile, there was no question raised about conflict of interest for archaeologists based on their need to secure excavation permits from source countries.  Today, there is no balance on the Committee whatsoever.  Archaeologists are embedded as representatives of the public.   Public accountability and transparency are absent.   AH does not believe import restrictions have any discernible impact on looting.  Rather, they only move the trade overseas.   European markets are also closing down for similar reasons.   Fresh material is now going to the Middle East and Asia.

LM-LM was US Customs’ National Import Specialist for Art and Antiquities.  During his tenure, there was an effort to reach out to the trade concerning issues of concern.  He did a road show of the Ports to do training for local Customs officers.   Neil Levy is now in his former position.   It is a big job given the limited resources that are assigned to it.   LM thinks importers should use Custom’s procedure asking for determinations about entry of cultural goods.   The goal is to have a maximum 30 day turn around on vetting a piece for entry.  LM also noted that there is confusion about country of origin compared to find spot as well as the findings necessary to renew a MOU. 

MM asked AH what he would do if he were Secretary of State.  AH indicate he would fire the Cultural Heritage Center’s Director who he believes has been acting outside the law.    MM asked LM what he would do if he were Customs Commissioner.  LM believes that there needs to be more coherent rules concerning stolen and illegally imported property.  He thinks it’s odd that Customs is applying Egyptian cultural patrimony laws dating back to 1983 when Egypt has not even asked for a MOU.  

Panel II- LA, JI, and PT.

LA- MOUs have helped stem looting, show respect for other cultures and provide a bridge for contacts between academics and museums.   Import restrictions have a broader reach than criminal prosecutions under the National Stolen Property Act and do not require a showing of scienter or guilty knowledge.   Italy and Cambodia are two success stories.   The market needs to be more transparent.

JI discussed how Bonham’s vets articles for auction.  The analysis always considers both the National Stolen Property Act and import restrictions.   Auctions are the most transparent way of selling cultural property.   JI is concerned that our tough rules are driving material to private sales.  He also suggests US firms are losing consignments to foreign ones.   Most Chinese material is no longer sold here.   He is very concerned about subpoenas for information received pursuant to Mutual Legal Assistance Treaties.   They can request information about sales that took place years ago.

PT discussed the ACCG test case.  Coins make for a good test article because they are extremely common, collected world-wide and are difficult to associate with any one single modern nation state.   He explained that the significant procedural and substantive constraints on executive discretion within the CPIA provide a basis to argue that State Department decision-making should be subject to judicial review.  He also noted that the Court of Appeals' conclusion that import restrictions on coins were a “foreign policy matter” is at odds with Supreme Court case law.

After the presentations, there was a question and answer period.  There was much back and forth over whether import restrictions have really helped staunch looting.  There was also discussion about whether import restrictions should be placed on coins, and, if so, whether documentation requirements should be lessened  for coins compared to more significant artifacts.  Finally, there was some back and forth about the definition of ethnological objects under the CPIA. 

Thursday, October 24, 2013

Schumer Seeks to Block Return of Jewish Artifacts

Senator Chuck Schumer, who was highly critical of the State Department's handling of import restrictions on cultural goods from China, has now sought to block the State Department's proposed repatriation of Jewish artifacts to Iraq. The New York Daily News quotes Senator Schumer as follows:

"These sacred artifacts were taken from the Iraqi Jewish community and thus do not belong to the Iraqi government,” the senior New York senator told the Daily News. “They belong to the thousands of Iraqi Jews, an ancient and once-vibrant community, who were exiled many years ago," Schumer said.

Will the State Department defy Senator Schumer yet again in pursuit of its Cultural Heritage Center's repatriationist agenda?

Wednesday, October 23, 2013

US State Department Presses Foreign Governments on Repatriation at the Expense of the US Taxpayer

Dustin Roasa has written a comprehensive report about the ongoing forfeiture dispute between the US Government and Sotheby's over the fate of a Khmer statue.   Whatever the moral case for a return, the story should raise troubling questions about how elements within the US State Department, acting in concert with archaeologists with an axe to grind against private collecting, actively press foreign governments to seek repatriations from American interests.  And all at the expense of the US taxpayer.

Monday, October 21, 2013

Is the Honduran MOU an Instrument of State Repression of Indigenous Rights?

Two comments on regulations.gov about the Honduran MOU stand out because they hint at national-local divide within Honduras itself as to who should control Honduran "cultural property" produced by its indigenous groups. That of "Black Man Soul" hints at the repression the Garifuna people have felt at the hands of national authorities since before there was a Honduras.  Meanwhile, Dorie Reents-Budet's statement discusses tensions between the national government and local indigenous groups concerning loans of artifacts.  

All this raises an issue that deserves serious consideration.  Should the MOU with Honduras be renewed when it recognizes the primacy of the Honduran state (which is no friend to indigenous interests) over  indigenous artifacts?  

Why shouldn't the indigenous peoples of Honduras be able to do what they want with their own artifacts—even if that means selling them or loaning them with a fee to make ends meet? 

Friday, October 18, 2013

My Comments to CPAC re Honduran MOU Renewal

Here are my self-explanatory comments to CPAC regarding the proposed renewal of a MOU with Honduras.  They relate to the need for greater transparency and concerns about the "culture creep" that has resulted from overbroad readings of statutory authority:

October 7, 2013 
VIA Regulations.gov Portal
Prof. Patty Gerstenblith, Chair
Cultural Property Advisory Committee
Cultural Heritage Center (ECA/P/C)
U.S. Department of State
2200 C Street, NW Washington, DC  20037

Re:      Meeting of the Cultural Property Advisory Committee (CPAC) Regarding Proposed Renewal of the Memorandum of Understanding (MOU) with Honduras

Dear Prof. Gerstenblith:   

            Thank you for this opportunity to comment on the proposed renewal of the Memorandum of Understanding (MOU) with Honduras. Although I collect no Honduran material and have no specialized knowledge or interest in cultural goods from the area, I am concerned about the “culture creep” that has marked recent decisions to impose import restrictions on ever more categories of artifacts, with little, if any, attention to their cultural significance.  It is for that reason that I am commenting on this proposed extension as a citizen concerned about how the State Department exercises its statutory authority under the Convention on Cultural Property Implementation Act (“CPIA”).

            Here, I understand that the State Department is considering expanding the current MOU that covers Pre-Columbian archaeological objects to now include Colonial and Republican era cultural goods under the theory that they are “ethnological objects.”  In that regard, as a preliminary matter, it would be helpful to both CPAC and the public if the State Department would provide more detail. Without more information about the types of material being considered for restriction and any justification for doing so, it is difficult for the public to comment intelligently on the subject, which, of course, should be the point of this exercise.

            In any event, my fundamental concern is the prospect of an expansion of import restrictions based upon an overbroad construction of the term “ethnological object.”  In that regard, please note that the term has already been defined by Congress.   According to CPIA, 19 U.S.C. § 2601 (2) (C) (ii),

no object may be considered to be an object of ethnological interest unless such object is -- (I) the product of a tribal or nonindustrial society, and (II) important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people.

            Furthermore, according to the CPIA’s legislative history, “the [Senate] committee intends this definition, to encompass only what is sometimes termed “primitive” or “tribal” art, such as masks, idols, or totem poles, produced by tribal societies in Africa and South America.  Such artifacts must be important to cultural heritage by possessing characteristics which distinguish them from other objects in the same category providing particular insights into the origins and history of a people.  The committee does not intend the definition of ethnological materials under this title to apply to trinkets or other objects that are common or repetitive or essentially alike in material design, color, or other outstanding characteristics with other objects of the same type, or which have relatively little value for understanding the origins or or history of a particular people or society.”   U.S. Senate Report on the CPIA (Sept. 8, 1982) at 5.

            Given this limitation on the State Department’s authority, I would respectfully urge that CPAC scrutinize any proposed designated list of ethnological objects from the Colonial and Republican period of Honduran history to ensure that it meets Congress’s stringent definition.  Thank you for your consideration of this matter.


Peter K. Tompa

Wednesday, October 16, 2013

Asset Freeze Case Too Close to Call

The SCOTUS Blog assesses the asset freeze case before the Supreme Court as too close to call.  It would seem the obvious downside to a criminal defendant should require more than a grand jury's finding of probable cause before an asset freeze effectively denies them assistance of their desired counsel.  But, of course, that's not how the government and apparently some of the justices see it.  And it does not seem "the elephant in the room"-- the potential abuse of this procedure to force plea deals-- was mentioned at all.

Supreme Court to Hear Arguments on Asset Freezes Today

The SCOTUS blog has further coverage on a challenge to the controversial tactics the government has used in forfeiture cases, including those relating to "cultural property."   As the blog notes, this is a very consequential case that deserves close consideration by the Court.

Monday, October 14, 2013

Looting Case Overstated?

The World Monuments Fund has listed its top five threats to cultural heritage.  But "looting" does not rate any mention except when it is associated with war.  Is it possible then that members of the archaeological community have overstated their case just to further their anti-collecting agenda?

Friday, October 11, 2013

Market Dominance

AFP reports that connected Chinese auction houses have achieved market dominance over their foreign rivals in selling Chinese antiquities:

"Western giants Christie's and Sotheby's are increasingly focused on China but barred from selling the hottest item -- antiques -- by laws aimed at protecting cultural heritage.

Meanwhile Chinese rivals Poly and Guardian have seen tremendous growth thanks to their greater freedom to act within the country, and their political ties." 

The net effect of self-imposed US restrictions is simply to turn the market over to Mainland Chinese auctioneers and dealers.  And again it must be asked: How can restrictions on the entry of ancient Chinese art into the relatively small US market have any impact on any looting within China itself when the much larger and rapidly expanding Chinese art market is allowed to sell the same ancient Chinese art without restrictions in Hong Kong?

Tuesday, October 8, 2013

Supreme Court to Take on Controversial Practice

The Supreme Court will be reviewing a controversial practice that has made it difficult to mount a defense to criminal forfeiture actions relating to cultural goods and fossils.  This practice certainly made it exceedingly difficult for Eric Prokopi to defend his claim to the Bataar skeleton he spent a year creating out of a pile of old fossilized bones.

Here is an article about the Supreme Court case from Sunday's online Wall Street Journal.

 How Prosecutors Rig Trials by Freezing Assets; Is it fair to seize all a defendant owns without showing its criminal source? The Supreme Court will rule.

By Harvey Silvergate,  Wall Street Journal (Online) [New York, N.Y] 06 Oct 2013

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?

Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.

What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson. Beginning in 2005, the feds in Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.

The feds had various theories for why this "gray market" activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys' alleged thefts. The J&J subsidiary never claimed to be a victim.
The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.

The government insisted that as long as the Kaleys' assets--including bank accounts and their home--could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial. But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.

The Kaleys complained that the asset freeze effectively deprived them of their Sixth Amendment right to the counsel of their choice--the couple couldn't afford to hire the defense that they wanted. Prosecutors and the trial judge responded that the Kaleys could proceed with a public defender. This wouldn't have been an encouraging prospect for them, for while public counsel is often quite skilled, such legal aid wouldn't meet the requirements the Kaleys believed they needed for this complex defense. Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge. (The Kaleys' chosen trial lawyers have agreed to stick with the case during the pretrial tussling over the asset-freeze question, but trying the case before a jury would be much more expensive and would require the frozen funds.)

Federal asset-forfeiture statutes like the one the Kaleys are fighting are actually a relatively recent invention. Before 1970, when Congress adopted the first provisions seeking to strip organized-crime figures of ill-gotten racketeering gains, there were no such laws (with the exception of the Civil War-era Confiscation Acts providing for the forfeiture of property of Confederate soldiers).

Since 1970, however, such federal statutes have expanded to cover a breathtaking number of crimes, from the sale of fraudulent passports and contraband cigarettes right up to murder and drug trafficking. An authoritative treatise, the 4th edition of the encyclopedia "Federal Practice & Procedure," asserts that federal forfeiture is now available "for almost every crime." In January, the New York Times quoted Manhattan U.S. Attorney Preet Bharara as saying that asset forfeiture is "an important part of the culture" and "an example of the government being efficient and bringing home the bacon." In 2012 alone, federal prosecutors seized more than $4 billion in assets. The Justice Department is allowed by law to put that bacon to use however prosecutors wish--to pay informants, provide snazzy cars to cooperating witnesses, whatever.

The Kaleys are hardly alone. The recently completed prosecution of Conrad Black indicates starkly how such seizures can torpedo a defendant's chance of getting a fair trial. In his 2007 high-profile case, Mr. Black, a former newspaper publisher indicted for alleged fraud and related crimes in the sale of Hollinger International, endured a federal freeze of his major unencumbered asset, the cash proceeds from the sale of his New York City apartment. That freeze prevented him from being able to retain the legal counsel upon whom he had relied before the asset freeze.

Mr. Black ultimately was convicted on two counts, winning on all the others in a shifting array of counts that numbered more than a dozen. Last year, having served his 42-month prison sentence, he filed a petition in federal court seeking to vacate his convictions on the ground that the government's asset-forfeiture tactics had deprived him of his counsel of choice. That effort foundered when the judge concluded that Mr. Black's trial counsel--not his counsel of choice, it must be noted, but rather the counsel he could afford after the asset freeze--had failed to properly raise and hence preserve the issue for later appellate review.

The Supreme Court has now threatened to upset the game that is so lucrative for the government and disabling for defendants. On March 18, the court agreed to consider the Kaleys' claim that the asset freeze without a hearing on the merits of the underlying criminal charge violated their constitutional rights. At oral argument in mid-October, the broader question will be whether, after four decades of federal asset seizures, the high court will put a freeze on the Justice Department.

Mr. Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books, updated second edition 2011).

Sunday, October 6, 2013

What's his "Provenance?"

Archaeo-blogger Paul Barford is quite the critic.  His dislikes include metal detectorists, "coineys," "dealers," the Portable Antiquities Scheme, British archaeologists who cooperate with PAS, other archaeologists who cooperate with collectors, US museums, the US Government (excepting Customs and the State Department's Cultural Heritage Center) and pretty much anyone who disagrees with his archaeological centric views.

Mr.  Barford, like some of his fellow archaeo-bloggers, is also obsessed with the provenance of objects in private and museum collections.  But what do we know about Mr.  Barford's own background or "provenance" if you like?   CPO has touched on this issue before, but Arthur Houghton, who was wondering about this issue, suggested that CPO ask the following questions for Mr. Barford to answer.  He's welcome to answer these on his own blog or on this one, or  to the extent he chooses not to do so, others are welcome to provide any accurate information they may have.

1.  Exactly what academic and professional credentials does Mr. Barford have to back up his claim to be an archaeologist?  What scholarly works has he authored about archaeology?  What digs has he participated in and has any fieldwork he has performed been published?

2.  Mr. Barford has evidently lived in Poland since 1986.  At that time,  Communist Poland was an international pariah for its military crack-down on the Solidarity movement.  Why did Mr. Barford move from the Democratic West to Communist Poland?  Did he work for the Communist Government as has been reported?  If so, in what position and did he make any oath to that Government?  What has he been doing since the fall of Communism in 1989?

3.  Mr. Barford is reported to work as a contractor for UNESCO.  Does Mr. Barford derive any income from organizations or groups that seek to prohibit or limit the access of dealers, collectors and  museums to cultural goods?  If so, what organizations or groups and how much do they give him?  In short, does Mr. Barford have an undisclosed financial interest behind his commentary?

Friday, October 4, 2013


Anti-American archaeo-blogger David Gill is branching out, criticizing a senior Republican Congressman for his efforts to tie the federal budget to changes in the President's signature healthcare law.  Congressman Culberson is indeed passionate about this issue as are many Americans who are on one side or the other.  Coin collectors can agree or disagree with the Congressman on this issue, but they should be grateful that he also cares about State Department transparency and accountability.  But so do Democratic legislators like the Senators Schumer and Gillibrand.   And, of course, let's not forget Democratic Senator Moynihan, who ensured the Convention on Cultural Property Implementation Act contained significant substantive and procedural constraints on Executive authority.  I've noted all this in a comment to Gill's blog, but for some reason he has not yet seen fit to publish it.  Perhaps, he does not want to acknowledge that despite the partisanship in Washington, concern about how the State Department and Customs impose import restrictions on cultural goods is something both liberal Democrats and conservative Republicans can agree upon.

Thursday, October 3, 2013

Not to Worry

Despite the dysfunction in our political system that has led to the closure of our national museums and parks, it's business as usual in at least some government agencies. The State Department and its Cultural Heritage Center continue to operate without furloughs, at least for now.  US Customs--which has an essential law enforcement function-- also remains on alert to interdict illicit cultural property real or imagined.  And today's Federal Register was again full of new regulations, though no new import restrictions on cultural goods were announced today.

Wednesday, October 2, 2013

Symposium on the 30th Anniversary of the Cultural Property Implementation Act

The New York City Bar and the American Society of International Law are sponsoring a symposium on the 30th Anniversary of the CPIA on Tuesday, October 22, 2013, 6:30 PM- 9:00 PM.  To register, click here.

City Bar Member Price : Free
ASIL Member Price : Free
Non Member Price : $15.00

Where: New York City Bar
42 West 44th Street
New York, NY 10036

Passed by Congress in 1983, the Convention on Cultural Property Implementation Act (Public Law No. 97-446, 96 Stat. 2350, 19 U.S.C. §2601 et seq.)(the “CPIA”) was the result of ten years of lobbying and legislative drafting and compromise by U.S. government agencies, dealers, museums, collectors, academics and source countries. This panel will explore the history of the CPIA, its implementation over the past thirty years and new ideas about improving the CPIA in the future. A Q&A to follow.
Introduction: JOSH LIPSMAN, Chair, Cultural Property Subcommittee
Moderator: MICHAEL McCULLOUGH, Chair, International Trade Subcommittee and Managing Partner, Michael McCullough LLC
Speakers: ARTHUR A. HOUGHTON, Former State Department Official and two-term member of the Cultural Property Advisory Committee; LAWRENCE MUSHINSKE, Former U.S. Customs and Border Protection Office and National Import Specialist for Art and Antiques; PETER K. TOMPA, Attorney, Bailey & Ehrenberg; JONATHAN ILLARI, Associate General Counsel, Bonhams; LEILA AMINEDDOLEH, Executive Director, Lawyers’ Committee for Cultural Heritage Preservation and Adjunct Professor, St. John’s University School of Law
Sponsored by: Committee on Art Law, Dean Nicyper, Chair
Co-sponsored by: Cultural Heritage and the Arts Interest Group, American Society of International Law (ASIL), Irina Tarsis, Chair

Tuesday, October 1, 2013

"Accusations" or Facts?

Archaeo-blogger Rick St. Hilaire claims that the amended answer filed by the ACCG in the ongoing forfeiture case is nothing but a bunch of "accusations."  But those "accusations" are based on statements from two former CPAC members who reviewed the Chinese and Cypriot MOUs, the Congressional testimony of State's former Deputy Legal Adviser, and even an admission by the Cypriot Government itself.  If St. Hilaire really believes the ACCG's "accusations" are as insubstantial as he claims, why not post a link to the ACCG's papers and let the reader decide for themselves?