Affirmation of Audacity

During the period from July 2004 through August 2007 the numismatic community, by way of the Ancient Coin Collectors Guild (ACCG), the International Association of Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG), submitted eighteen requests for information to the U.S. State Department (DOS). These were formal requests under the provisions of the Freedom of Information Act (FOIA). By November of 2007, not one of these requests had produced responsive information. Repeated appeals to DOS for response were either ignored or denied. Related queries from U.S. Senators and Representatives on behalf of the numismatic community were stonewalled. While the requests covered a range of issues, one common thread was the request for information regarding reports produced by the Cultural Property Advisory Committee (CPAC) following their deliberation on requests for import restrictions that included ancient coins.

One major objective of these requests was to ascertain whether DOS had followed the advice of CPAC when they imposed restrictions on the importation of ancient coins from Cyprus. Even though a report to Congress is mandated when DOS deviates from CPAC guidance, neither the public nor Congress have been provided access to the CPAC reports. Another objective was to determine whether import restrictions imposed on ancient coins from China had actually been asked for by the Chinese. These are not questions affecting national security or the sensitivity of diplomatic relations. They are questions that any American citizen ought to be able to pose regarding the activities of their government. They are the very sorts of questions that the Freedom of Information Act was designed to sanction. When answers to these questions were not forthcoming, and it became clear that DOS would not address them, the ACCG with the cooperation of IAPN and PNG launched a FOIA law suit to seek judicial review of DOS actions.

The numismatic community's lawsuit (which by the way is not over quite yet) challenges a veil of secrecy that permeates DOS and allows extralegal activities within its bureaus to flourish. It is a multi-faceted complaint, but the primary objective of the litigation is to illuminate the process by which Memorandums of Agreement with foreign nations are generated, approved and implemented. These MOUs have deeply and immediately affected ancient coin collectors. The initial complaint was filed in U.S. District Court at Washington, DC on November 15, 2007. As might be expected, the Department of Justice (DOJ) defended DOS with the standard tools of their trade. One delay after another pushed the issue aside. During this period, the State Department did begin to release documents (70 in their entirety, so they claim). Having read every document produced, I can say unequivocally that the exercise was a sham and an insult to FOIA. The majority of documents that were released in their "entirety" were pages of general information from web sites, transcripts of public meetings or copies of material that the plaintiffs themselves had submitted. Those documents that related directly to the question at hand were heavily redacted, sometimes to the point that the only text on a page was the page number itself. One can only imagine the glee with which those responsible must have reveled in their audacity as they submitted these "responses". The releases were not in good faith, they were a subterfuge that DOS and DOJ would later use in their arguments to claim responsiveness. The number of documents provided sounds impressive on paper, but is far less impressive in the hand. The facts are quite clear on this point, DOS was totally unresponsive over a three year period and then disingenuously responded with primarily useless information only when forced by litigation. They boldly circumvented the spirit and intent of the Convention on Cultural Property Implementation Act (CPIA) and of FOIA.

Quite by accident, I'm sure, DOS failed to redact some information that gave ACCG clues about activity of the Bureau of Educational and Cultural Affairs (ECA) in the MOU and CPAC processes. One series of documents suggested that DOS had communications with the archaeological community about ancient coins prior to any actual request for the addition of coins by the government of Cyprus. When an 11th hour request for this addition materialized, it seemed to validate the suspicion of ACCG that the request was being orchestrated from the U.S. contingent, not from the Cypriot. On November 20, 2009, more than two years after the initial filing, Judge Richard J. Leon issued a ruling of Summary Judgment in favor of the defendant (DOS). On December 22, 2009 ACCG filed an appeal to this decision in the United States Court of Appeals, Washington DC. Predictably, DOJ moved for Summary Affirmation. Naturally, that involved additional argument and filings. The three-judge panel denied the DOJ motion for Summary Affirmance on June 9, 2010 thereby agreeing to hear the case and at the same time allowing the introduction of an amici curiae (friend of the court) brief by certain former members of CPAC.

The introduction of testimony by former members of CPAC lent a new dimension to this case, clearly elevating it to a matter of public concern as opposed to the concern of what might have been argued to be a special interest. The "amici" were not a group of "experts" for rent, they were people of impeccable credentials appointed by the President of the United States to serve on the committee that was under criticism in the suit. What they had to say about DOS secrecy should have raised more than one eyebrow, even in Washington. The Amici included Jay Kislak, Kate Fitzgibbon, Arthur Houghton and Gerald Stiebel — quite a distinguished group. The Amici spoke to "a Congressional intent that federal agencies disclose records to the fullest extent possible while withholding records only to a limited extent." They expressed a concern with "the undesirable public policy consequences, and with the frustration of the CPIA’s statutory aims, that would come from federal courts’ too-readily upholding boilerplate FOIA exemption claims made by the State Department." Amici also expressed their view that "If this Court were to accept the State Department's position, the Court would in effect allow the State Department to withhold everything submitted by the private sector simply because some people request confidentiality."

In other venues, former members of CPAC expressed their concerns more pointedly. At a public event held by the International Foundation for Art Research (IFAR) at the National Academy in New York on April 17, 2008, former members of CPAC gave their candid assessment of the committee and its management. Former member Kate Fitz Gibbon said "The secrecy under which the Committee operates harms it, as does the lack of transparency...". Jay Kislak related that "This is the only advisory committee that I have been able to find that conducts everything in secret and will not disclose anything." He went on to say "I want to make it clear that I am not necessarily against any actions that were taken or any of the MOUs which were recommended by the Committee and put into action. I am, however, opposed to the way it was done because I think it is absolutely, completely, un-American, and I don't mind saying that." At a Cultural Policy Research Institute (CPRI) symposium held in Washington, DC on March 21, 2011 Ms. Fitz Gibbon said "CPAC's committee review and recommendation process fails to meet the law. And, when CPAC's administration is called on these failures, it will not let that sunshine in. It cloaks its processes in quite extraordinary secrecy. It has refused multiple times Freedom of Information Act requests." At the same CPRI event, Mr. Kislak amplified on DOS secrecy at CPAC, "We'd get a memo this big each meeting, probably 75, 100 pages, maybe more, with mostly reprints of articles of newspapers and magazines, et cetera, all marked 'confidential information, do not disclose.' And I'd ask why it was done that way, 'Well, it's just we do it every page.' There was no rhyme or reason. The secrecy is inexcusable."

Unwarranted and unjustified secrecy has been the hallmark of State Department policy for a very long time. National reporters, elected officials, advocacy groups, and even State Department insiders have complained about it. Even though some points of the Circuit Court ruling were reversed, the Appellate Court decision of April 15, 2011 was in large measure a stamp of approval on the secrecy that permeates DOS. Ironically, the first of the ACCG objectives mentioned above was achieved when members of CPAC confirmed publicly that DOS did not follow CPAC's advice and expanded restrictions to ancient coins over CPAC's vote to exempt them. Some information obtained from the cryptic redactions of DOS will certainly be useful in the Baltimore suit filed by ACCG against DOS and CBP. Other information pertinent to that case may still be forthcoming under the Appellate Court reversal of the lower court's Summary Judgment. More importantly, the State Department wall of secrecy is a stain on government by the people and this challenge was long overdue. The result, unfortunately, is less than encouraging for those who would like to believe that America is still a land of freedom and justice. The U.S. Appellate Court had a chance to right a grievous wrong and failed to step up when the opportunity was presented.

Relegated to Insignificance

In reading documents recently released to ACCG under the Freedom of Information Act, it struck me as odd that the Treasury Department was in the loop for approval of the Customs and Border Protection (CBP) rule that would implement the Italian Memorandum of Understanding (MOU).  A document titled "Memorandum for Executive Secretary" answered that question. The first restrictions on artifacts from Italy were imposed by Treasury Decision 06-01 when Customs was still under Treasury. Apparently, CBP still needs to get Treasury to sign off on any actions related to the original imposition even though CBP (now under Homeland Security) is responsible for all of the actions and enforcement. CBP sent a request for review to Treasury (Asst. Secretary Timothy E. Skud) on 5 January 11. They asked for an "expedited" review in order to meet the statutory 19 Jan 11 deadline on which the MOU would expire if not extended. 

The proposed rule included a revised Designated List that includes for the first time a restriction on certain coins of Italian type. Although CBP did advise Treasury that "Coins of Italian Type" were included in the extension, they stated "We believe that this document will not generate press coverage or controversy." Apparently they do not consider litigation in Federal court "controversy"!  They also stated that "We believe that it is not necessary for the Secretary or Deputy Secretary to review this document." In other words, CBP led Treasury to believe that this was not an important issue and a perfunctory approval was in order (keep in mind that Treasury is generally coin collector friendly and may have delayed the response for further input if they had been aware of significant collector opposition).  In the resulting "Notice of Planned Regulatory Action Pursuant to Executive Order 12866" the nature of this action was designated by CBP as "Not Significant".   This has a statutory bearing under the Administrative Procedures Act (APA) on how the rule is processed since rule changes that are not significant are exempt from the otherwise mandatory public comment period.  The CBP agency contact in this matter was Michael Craig, Chief, Interagency Requirements Branch, Office of International Trade.  

The individual who handled this review at the Treasury Department undoubtedly knew nothing about the DOS agenda to stifle trade and collecting of ancient coins.  I'm confident that he was also unaware that DOS received some 2,000 faxes opposing the addition of coins to the Italian MOU, or that about half of the individuals testifying at the CPAC hearing represented the collecting community's opposition, or that the Cultural Property Advisor Committee actually voted against adding coins to the extended MOU and that Department of State (DOS) added them nonetheless.  None of this information was presented to the Dept. of Treasury reviewer, only a simple request to sign off on an "insignificant" issue.  

What kind of review was actually performed?  A redacted email exchange in which one party is addressed as "Lesleyanne" (apparently CBP attorney Lesleyanne Koch Kessler) sheds some light on this.  A 14 December 2010 query from a redacted agency (presumably DOS) to Lesleyanne was responded to on 21 December 2010 with the message:  

"I am reviewing this and I don't think we will have comments. I will get sign-off and send forward."

This evoked the response (from DOS?):

"Thanks for emailing me on the status.  I was beginning to wonder if CC had a problem with the package."

To which Lesleyanne replied "You were probably perplexed if you thought we had a problem with it...pretty standard stuff!" 

In another correspondence of 5 January 2011 from CBP to Treasury, the immediacy of the Treasury sign-off was highlighted.  The proposed rule needed a high ranking official's signature and CBP was having logistical problems getting that.  The Commissioner was apparently not available and the Deputy was heavily committed.  In an attempt to get the package to Treasury for a signature, a member of the CBP staff wrote:  

"As we discussed on the phone, this is a plain vanilla rulemaking which extends for another 5-years the import restrictions.  If Chief Aguilar could sign as Acting Commissioner, we would appreciate it very much to prevent a lapse in restrictions if this does not get published on time."  

Another CBP staff email to Treasury said: 

"After I received word from ---- (redacted) that DVA [David V. Aguilar] signed last night, I sent an email to Treasury attaching an electronic copy of the document for them to informally start reviewing the document and stating that the hard copy would be taken over there this morning. ---- (redacted) mentioned to me last night whether we wanted to take a risk with FR [Federal Register] and use auto pen.  If a document does not contain an original signature, the Federal Register will reject it.  If Chief Aguilar will be back today, I think we should wait as I don't want to have to tackle another hurdle when we deliver the document to the FR on 1/14/11."

A flurry of emails document the Chinese fire drill at CBP obtaining that signature, but the document did apparently get signed and delivered to Treasury sometime on the 5th of January.  Treasury reviewed, signed and returned the document to CBP by January 11.  That meant it was at Treasury for part of a six day window that included a weekend.  In other words, Treasury had no more than three full work days to review the document and its implications.  That is, three days to review a document that was formally described to them as "not significant".  One can hardly fault Treasury under the circumstances for signing-off with the expectation that the change was staffed and found justified by CBP.  In reality, the reason that Treasury was put in this impossible position is that CBP was negligent in processing the rule change that had been in their possession since November.  They were not staffing the rule change, they were blissfully ignoring it.  For example, one CBP email dated 5 January 2011 states:

"There will be a delay in getting the package over to Main Treasury this morning.  I hope that we can get it to you later today.  The document was taken over to CBP Front Office on 12/21/10 and it just sat.  I had hoped to get this to Treasury well before the end of the year so that Tim [Timothy E. Skud] would have the document when he returned to work on January 3rd.  Best laid plans have gone awry."

Another said: " It should not be difficult for Treasury to expedite this.  They've seen quite a few of these things."

It is obvious from the FOIA released documents that the rule change was never actually reviewed for content, it was merely massaged, with apparent difficulty, through the various offices that needed to sign-off.  The biggest issue and, aside from a couple grammatical comments, the only one discussed in the released FOIA documents was getting the designated reviewing officials in the office long enough to get a signature.  There was no attempt whatever to solicit public comment for this rule change either at CBP or at Treasury.  The provisions of 5 U.S.C. 553 (the APA) were ignored because the rule was arbitrarily designated by CBP or DOS as "Not Significant".

So, we have at hand an action that is classified as "not significant", and described by government bureaucrats as "plain vanilla rulemaking" and "pretty standard stuff".  All it really did, in essence, was to cripple a 600-year-old avocation that has infinitely expanded our understanding and appreciation of past and distant cultures.  

To put this all into perspective, let me summarize.  A mid-level bureaucrat at DOS orchestrates the addition of coins to the Memorandum of Understanding with Italy after the Cultural Property Advisory Committee has already heard extensive comment from the public and voted to exempt coins.  A politically appointed Assistant Secretary of State signs off on the MOU even though it ignores specific provisions of the Convention on Cultural Property Implementation Act that only authorize the use of Memorandums of Understanding and consequent import restrictions in special cases.  The enforcement of these import restrictions falls to CBP, which receives a Designated List prepared by DOS and essentially sits on it for more than a month.  When the rule and new Designated List are finally sent to legal staff for review they are quickly approved and sent to the Treasury Department for their mandatory review.  Treasury returns them in six days, which includes a weekend, and the rule change is announced in the Federal Register.  It does not appear that CBP or Treasury reviewed or cared about the content of the change.  They were only concerned with getting the signatures necessary to make the document legal.  In effect, the decision of one bureaucrat at ECA went unchallenged through the entire government rule making process.  This, unfortunately,  has become the modus operandi at the Bureau of Educational and Cultural Affairs and not even legislators in Washington seem to have any significant influence over it.  Bureaucracy has in this case become the enemy of the American people rather than their servant and the only people who appreciate the scope of this travesty are their victims.  But then we already know that those victims are usually plain vanilla folks and not very significant, so why care?  A rule usurping their rights is no big surprise, "They've seen quite a few of these things."