Saturday, April 22, 2017

The Law and Ultra Vires

Cultural Heritage Lawyer Rick St. Hilaire, an apologist for cultural property nationalists and a critic of private ownership and trade in cultural property, has posted on his blog a quite lucid history of the Ancient Coin Collectors Guild (ACCG) experiences in District and Appellate Court over the past eight years. The post is surprisingly light on the editorializing or histrionics one might expect.  It simply relates the facts and the positions of the two adversaries with reasonable clarity—as well as the judgement rendered.  I highly recommend it to anyone with an interest in cultural property issues.

That legal journey has in many ways reflected poorly on the Federal Bureaucracy and the Justice system in America.  Of course that is not the conclusion of Mr. St. Hilaire, it is my own view and inescapably stems from my own background and experiences.  The "law" in America that implements the cultural property protection resolutions of UNESCO, promulgated in 1970, is the Convention on Cultural Property Implementation Act (CCPIA).  It is often referred to simply as CPIA.  That law was thoroughly debated in Congress and did not reach a point of consensus and approval until 1983.  In the process, the purpose of the Act and provisions for its implementation were very carefully codified.  Specific protections for private ownership and trade in cultural property were intentionally incorporated in terms that were (and still are) unambiguous.  As a result, many collectors and dealers in minor antiquities applauded the implementation of this Act.  Indeed, for some who were infatuated with ancient history and were themselves protecting that flame, that law was a positive force.  Personally, I still defend CCPIA and have done so publicly and in person at nine formal hearings of the State Department's Cultural Property Advisory Committee.  As enacted, I believe it was and still is a good law.  Unfortunately, the law is no longer being administered as it was intended and bureaucratic rule-making has supplanted the will of Congress.  

For the first two decades after enactment, CCPIA worked as intended and focused on serious threats to Cultural Heritage.  Midway in the first decade of this century there were warning signs that change was afoot.  The Archaeological community theme that "Collecting equals Looting",  championed by Lord Colin Renfrew, had by then become a cult-like mantra.  A radical element dominated much of academia and Archaeological Institute of America leadership—and still does.  What had for centuries been a productive alliance between professionals and amateurs evolved into a bitter struggle as Archaeologists became infatuated with control and dominance over what they envisioned as "their" turf.   They were very well positioned to infiltrate and influence government agencies based on their credentials, social standing and natural affinity for institutional networking.  It didn't take long for the protections that Congress wrote into CCPIA to vanish.  By 2007, with bureaucratic intervention, the emphasis had shifted from protection of significant objects of cultural heritage to control of virtually all objects made in antiquity and well into the 18th century.  The objects are targeted in a laundry list of items defined as "Cultural Property" in the UNESCO Convention, including even postage stamps over 100 years old. They include an unfathomable scope of personal and household items sold, traded, lost or disposed of over several millennia of civilization. Among these are hundreds of millions of ordinary coins that traveled far and wide both in antiquity and in modern times.

In the wake of this dramatic change, private collectors and dealers in ancient coins became alarmed at the potential threat to their venerable 600-year-old hobby.  The nonprofit Ancient Coin Collectors Guild was formed in 2004 to provide representation for tens of thousands of American collectors of ancient coins.  It's membership and support come from many foreign lands as well.  In 2009, the Guild chose to challenge in U.S. Federal Court changes in bureaucratic rule-making that law professors Urice and Adler at the University of Miami have cited in Rutgers Law Review as "lawless" and in an earlier paper as "extralegal".  The biggest deviation from law involves a bureaucratic reinterpretation that placed the "burden of proof" over legal/illegal status on an importer of objects rather than on the government.  Must a collector prove, through an evidentiary process other than the standard required declaration, that an administratively detained or seized coin or group of coins was legally imported, or must the government, in a seizure, prove that they were not legally imported?  What is the standard under law?  That rather simple question has been batted around in courts like a tetherball for the past eight years and is yet to be judged on its actual merits.  That in itself is a sad commentary.

When ACCG imported a small mixed group of ancient coins from Cyprus and China, it was with the expectation that they would be detained and ultimately seized.  They were indeed detained, and Customs was advised of the intentions of ACCG to challenge a seizure.  Ignoring the standard deadline, Customs refused to issue the seizure notice that would allow ACCG to contest.  After nearly a year of being stonewalled by CBP, the Guild launched its own complaint against DOS and CBP.  That case wound on, and on, and on in District Court with a final judgement that the complaint was not justiciable.  That is, it could not be tried in a court of law.  That ruling was appealed and the Appellate Court chose not to address the fundamental issues—but said they could be addressed in a Forfeiture Action.  The complaint was then submitted to the US Supreme Court in a Writ of Certiorari, which the Court unfortunately did not entertain.  The Forfeiture Action was scheduled with the same judge in Baltimore that presided over the original ACCG complaint and the result was similar to that of the original case in terms of addressing the merits of the bureaucratic rule-making.  That judgement is now pending appeal.

In Mr. Hilaire's blog post, he describes these legal actions as "...the Ancient Coin Collectors Guild's (ACCG) invitation to strike down or weaken import restrictions that protect endangered ancient coins."  That is misleading on two points.  First, the ACCG is, and always has been, supportive of CCPIA and has no desire to strike down the law nor its provisions as enacted.  That may very well include import restrictions on coins that are truly "endangered" (but most are not).  Secondly, the coins that ACCG imported to challenge the extralegal bureaucratic rule-making are anything but "endangered ancient coins."  They are, in fact, poor examples of common coins that have very little commercial value and no particular historical nor art historical significance and no connection whatever to an archaeological contextAs Urice and Adler mentioned in this very case, the coins were legally exported.  These coins were chosen purposely to illustrate how inflexible the rule-making has become.  The fact that the U.S. government has already invested eight years and an extraordinary sum financially in defense and prosecution expenses, as well as the court's valuable time, just to seize coins worth less than $200 is perhaps an indication that they are more interested in deflecting attention from their so-called "extralegal" action than in saving "endangered coins".   In his second paragraph, Hilaire cites "...ACCG's eight-year long legal struggle to attack American import restrictions placed on ancient coins in danger of cultural heritage looting and trafficking."  He simply, and perhaps innocently, misunderstands ACCG's motivation and the point of this entire effort.

The decision of Judge Blake in Baltimore is accurately cited by Hilaire, but ACCG is obviously not content to accept a judgement that we see as contrary to our fundamental rights as well as the letter and intent of existing federal law.  The government's position and the court's interpretation of CCPIA do not coincide with a reasonable interpretation of that law, nor the existing Congressional record of those who labored in committee to produce this piece of legislation.  We know what they felt about burden of proof in 1983, and specifically about its applicability regarding the importation of ancient coins, because they have told us under oath in documented Congressional hearings.  We also know  because some of the "players" in that event are still alive today.  

For the bureaucracy to arbitrarily reinterpret the meaning of CCPIA is a disservice to the whole concept of representative government.  In the present situation, innocent collectors of ancient coins are unfairly suffering.  In the case of a federal bureaucracy's ultra vires rule-making being validated and confirmed by federal courts, the whole nation suffers from an untenable precedent.  Urice and Adler see the solution to this in statutory reform.  ACCG has also recognized a need for statutory review by Congress of some provisions of CCPIA, but in the meantime feels a moral obligation to fight for justice and rule of law with every resource at its disposal—and will continue to do so.

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