Tuesday, April 25, 2017

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.


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.