The Devil is in the Details

In America, the concept of Representative Democracy theoretically provides each citizen a proportionate voice in government through the election process.  Those elected officials serve their constituents, and the nation in general, by creating the laws under which we all manage to co-exist.  The faithful enforcement of those laws is delegated to the Executive branch of government and executed through a wide array of bureaus, departments and agencies.  As the number of laws has increased over time, so too has the number and size of the enforcement entities.  The resulting bureaucracy is managed through a pyramidal system that ultimately becomes difficult to manage in the chaos of election vagaries and changing leadership priorities.  In this environment, "top down management" only works to a limited degree.  Changes in policy at the bureau management level happen slowly in most cases, if at all.  By the same token "undoing" bureaucratic action is easier said than done.  Consequently, mid-level managers who have inherent protections—including job security that elected officials lack—are effectively empowered far beyond normal expectations.  They make decisions daily that affect literally millions of people.  For the most part, I believe these bureaucrats have the best interests of the nation at heart and do their best to serve.  But, they are human.  Some will inevitably be influenced by a special interest that strikes a chord with them.  Since the enforcement of law can require more detail than legislation typically provides, rule-making at agencies becomes a critical element of the process.  These rules can either support the letter and intent of legislation or they may reflect the interests or preferences, or even the training, of enforcement agency personnel.  As always, the devil is in the details and they can be more subtle than politically appointed managers realize.  This is especially true when there is a significant span of time between enactment of law and bureaucratic rule-changes.  When agency rules fail to enforce a law in the manner intended and anticipated by Congress, the system suffers a break-down in confidence, effectiveness and credibility.  At that point, law becomes a hammer rather than a harbor.

Although the "rules" of enforcement for the Convention on Cultural Property Implementation Act (CCPIA) are guided by the State Department's Bureau of Educational and Cultural Affairs, the action agency is actually Homeland Security's U.S. Customs and Border Protection (CBP).  Customs agents at every U.S. port of entry are trained, often by Archaeologists, to identify, detain and seize cultural property that is restricted from importation in accordance with a Memorandum of Understanding (MOU) between the United States and a foreign nation.  The MOU is consummated and its scope determined, according to strict parameters of law, by the U.S. State Department (DOS) with guidance provided to CBP for implementation.  Therein lies the devil—in the details of implementation.  What may start out as a rational effort to protect cultural heritage can become a repressive and extralegal process that infringes on the rights of ordinary law abiding citizens.

Recent press coverage of an event held by CBP's U.S. Immigration and Customs Enforcement agency (ICE), at the Boston Public Library, highlights a few objects being repatriated to Italy that were allegedly determined by ICE to be illicit.  In addition the occasion was apparently convenient for transferring to Italy "nearly 200" ancient Roman coins that ICE had originally detained in Cincinnati  more than three years ago.  Although some of the objects at this public repatriation were significant and worthy of press coverage, the coins were very low grade and exceedingly common late Roman bronzes of a general type and character found in Middle Eastern "desert" climates.  Virtually any serious collector of these coins would immediately recognize the powdery yellow and reddish patina that distinguishes them.  In all but the very rarest of cases these types of coins are not the sort of significant cultural property that CCPIA protects.  One can't help but wonder why they were detained, much less seized, and why they were being repatriated to Italy?

There are several paths that might lead CBP to seize ancient coins.  If the appraised value of imported coins is greater than $5,000, and there is evidence that the coins were stolen, the coins may be seized by CBP under the authority of the National Stolen Property Act (NSPA).  Most source countries for ancient coins have National Patrimony laws that vest ownership of all artifacts, including coins from antiquity, with the State.  Therefore, any object exported from these lands without a State permit is by default "stolen" from the State.  The recipient of such property in the U.S. may in some cases be guilty of a criminal law violation with serious consequences.  A second path to seizure would be illegal importation of a coin or coins that have been restricted through a Memorandum of Understanding between the U.S. and a country from which the coins had been exported.  Import restrictions are authorized under specific criteria outlined in CCPIA and enforced by CBP on a case by case basis as determined by the State Department in a "designated list" of items.  These coins would by law need to have first been found in, and subject to export control of, the MOU partner nation.  Bureaucratic rule-making has expanded that and other criteria in alarming ways.  A third path that ancient coins and other private property may be seized by ICE is through the process of "Civil Forfeiture" which allows law enforcement agencies to seize objects that are suspected of being involved in criminal activity—whether or not the owner was actually charged or convicted.  This increasingly controversial action is not particular to coins nor the importation process.   A fourth way is if imported coins are entered into the U.S. by means of a false statement.

The coins seized in Cincinnati were evaluated by a CBP contract "expert" who identified them as Roman Imperial bronze coins and apparently determined their value to be less that $5,000, which ruled out the NSPA.  The stated invoice price was actually $1,000, which seems reasonable considering the nature of the coins shown in press releases. Under no circumstances would they meet the NSPA threshold.  At some point, CBP must also have realized that the coins were exported from United Arab Emirates, and the U.S. does not have an MOU with UAE under the authority of CCPIA.   Since there was no evidence of associated criminal activity, Civil Forfeiture was apparently ruled out.  It would have been appropriate at that point for CBP to release the shipment with an apology and move on.  However, three years ago there was a clamor in the Archaeological community and surrogate Media for widespread prohibitions on importation of virtually all cultural property.  Returning these coins to their rightful owner might have been politically embarrassing.  That left CBP with only one option—the false statement route.  These coins were obviously found in the Middle East—not in Italy—based on photos released by CBP.  Mint names on some of the coins, iconographic details on others and "desert patina" on virtually all leave no doubt as to their source.    When CBP interviewed the importer they reportedly were told that the coins had a Middle East origin.  The only viable explanation for seizure by means of "false statement" seems to be that ICE agents erroneously assumed Italy was the point of origin for all Roman Coins.  Any other explanation would suggest intentional extralegal enforcement.  Once the coins were seized, the importer had the right under law to appeal and contest the seizure.  However, the cost of doing so and effecting a reversal of this action would far outstrip the value of the coins themselves.  Keep in mind that the Ancient Coin Collectors Guild has been in court for eight years, with significant costs to both the Guild and the U.S. Government, fighting the extralegal seizure of $275 worth of low grade ancient coins.   It is understandable that the importer simply gave up the coins.  Whether intentional or not, this amounts to intimidation by a government agency charged with serving the public.  The private property of a citizen in cases like this is seized without justification—and that is the basis of the ACCG court case which is in effect a class action suit on behalf of all collectors.  Even if the documentation in Cincinnati were inaccurate, and it does not seem to be, the typical penalty in minor cases like this would be a reasonable fine, not seizure.  Ironically, even if the coins had all been struck at the mint in Rome they were still not covered by the existing MOU with Italy because that MOU does not include Roman Imperial Coins, only early Italian and Republican coins and coinage of Greek colonies in southern Italy.

Adding insult to injury, CBP has now repatriated the coins to Italy—where they had probably never seen the light of day—and then self-applauded their "protection of cultural antiquities".  There was no reason to detain or seize the above coins and no reason to repatriate them to Italy or anywhere else for that matter.  One could easily imagine that a Customs Agent in Cincinnati might not be familiar with ancient Roman coins and might need to hold a shipment for a few days pending examination by a more knowledgeable party.  One could even imagine that a person contracted by CBP as an "expert" on ancient coins might err or be misunderstood, but the above case is not a unique example of collateral damage. Extralegal and unduly aggressive seizures by CBP and ICE are of increasing concern to the many thousands of Americans who buy coins legally from foreign vendors.  That concern will not be alleviated until the letter and intent of existing law is restored.