Karin Orenstein, an Assistant U.S. Attorney for the Eastern District of New York has published a new short essay for the North Carolina Journal of International Law titled “Risking Criminal Liability in Cultural Property Transactions”. In the Piece she references the purchases of questionable material by prominent wealthy collectors Michael Steinhardt and Steve Green. From the abstract:
This Comment explores when buyers of cultural property cross the line from taking business risks to engaging in criminal conduct. The Comment applies the National Stolen Property Act (NSPA) and the conscious avoidance doctrine to potential red flags in hypothetical cultural property transactions. When buyers are presented with red flags about a piece’s provenance and choose not to investigate, they cannot rely on deliberate ignorance as a defense to a charge that they knowingly transacted in or possessed stolen cultural property.
Orenstein, Karin, Risking Criminal Liability in Cultural Property Transactions (2020). North Carolina Journal of International Law, Vol. 45, 527, 2020. Available at SSRN: https://ssrn.com/abstract=3583457
Today the United States Attorney for the Eastern District of New York announced the filing of a civil forfeiture action against a cuneiform tablet which was most recently purchased by the Museum of the Bible. The Government’s allegations show a familiar pattern: fake the history of an object, have the object published in a scientific publication, earn the endorsement of a prominent expert, and conduct the sale in secret. The complaint is docketed at Civ. No. 20-2222. Here are some of the best allegations from the government’s complaint, available here.
First off, the Government rightly points out the scourge of looting in Iraq, and the discovery of the epic of Gilgamesh in 1853:
This tablet was seized from the Museum of the Bible in September, and is storing the tablet at at U.S. Customs and Border Protection in Queens, which may help explain why the EDNY U.S. Attorney’s office has filed this action and not another office. It may also be because this office is one which has good track record of successful civil forfeiture actions.
HSI Special Agent-in-Charge Peter Fitzhugh stated in the press release:
“We are proud of our investigation that led to this reclaiming of a piece of Iraq’s cultural history. This rare tablet was pillaged from Iraq and years later sold at a major auction house, with a questionable and unsupported provenance, HSI New York’s Cultural Property, Arts and Antiquity Investigations program will continue to work with prosecutors to combat the looting of antiquities and ensure those who would attempt to profit from this crime are held accountable.”
The laws at issue here are parts of the Customs laws and the National Stolen Property Act:
One interesting aspect here, and I’m not sure what the appetite for the Museum of the Bible will be to defend this action in court given the absolute devastating series of seizures, investigations and scandals, but they may have some legal defenses due to the difficulty in tracing an illicit antiquity to its point of origin. Federal law still hinges in many ways on pinning a specific time and place for a criminal act involving a piece of cultural heritage, whether that act is looting from context, theft, smuggling, etc. The government will have to show I think that this tablet did originate in Iraq after an applicable Iraqi heritage or patrimony law. Of course if the Museum of the Bible wants to do the right thing and just let this object be returned, those legal arguments are moot. But the complaint does I think leave open the specific origin for the fragment, and when. A very typical problem with illicit objects like this one.
The best argument the government laid out in the complaint is that the Museum of the Bible and the Auction House engaged in some really clumsy post-sale due diligence which only made the problems worse, and acknowledge Iraq as the origin:
The forfeiture here alleges some serious fraud and wrongdoing by a prominent new museum, the Museum of the Bible; but also dealers, antiquities experts, and prominent auctioneers.
United States Attorney for the Eastern District of New York Richard P. Donoghue also stated in the release:
“Whenever looted cultural property is found in this country, the United States government will do all it can to preserve heritage by returning such artifacts where they belong, In this case, a major auction house failed to meet its obligations by minimizing its concerns that the provenance of an important Iraqi artifact was fabricated, and withheld from the buyer information that undermined the provenance’s reliability.
The forfeiture action is a very powerful and useful remedy to police specific objects, but it really may not do all that much long-term to disincentivize actors from doing this kind of thing in the future. A forfeiture every now and then is just the cost of doing business.
Federal prosecutors in Brooklyn have announced a civil forfeiture proceeding against 5,500 objects from Iraq. The current possessors of the objects have also quickly announced they will not contest the forfeiture, and have agreed to pay a $3 million fine. The objects were imported by Hobby Lobby and its president, Steve Green, to create the Museum of the Bible in Washington D.C.
The Museum of the Bible, set to open in November near the National Mall in Washington D.C., has been rapidly acquiring antiquities from the Middle east for the last several years. History shows this kind of rapid acquisition with generous financial backing will inevitably lead to buying objects which may be looted, illegally exported, stolen, or orphaned. The questions surrounding the quick acquisition of all these objects has generated speculation for many years that these objects would cause legal difficulties for the museum.
The government’s civil forfeiture complaint tells a fascinating story of how Green traveled to the United Arab Emirates in July of 2010 and agreed to purchase 5,548 objects, including “500 cuneiform bricks, 3,000 clay bullae, 35 clay envelope seals, 13 extra-large cuneiform tablets, and 500 stone cylinder seals”. These objects were then then shipped via Federal Express to Oklahoma City to various different addresses of Hobby Lobby and its subsidiaries. The complaint notes an important reality of customs—not every shipment raises suspicion. Only some of the shipments of this material were seized by customs agents. Five shipments which traveled through Memphis, Tennessee were seized between January 3-5 of 2011. Other shipments successfully reached their destination in Oklahoma City.
Last week, attorneys filed a civil forfeiture action on behalf of the United States for four antiquities allegedly being held as foreign assets of ISIL. The case marks a couple firsts. For one it is the first forfeiture action targeting foreign assets of ISIL of any kind. Second, it marks the first forfeiture initiated by the U.S. government of this kind, where the objects at issue have not been seized by the government, but rather only photographic and associated evidence of their possible introduction into the antiquities trade exists. As a consequence this is an extra-territorial forfeiture which shares many similarities with the efforts of Italian prosecutors to forfeit the Fano athlete/Getty Bronze.
The best overview of the forfeiture I’ve seen can be found at chasing aphrodite. There, Jason Felch was able to speak with Arvind Lal and Zia Faruqui in the U.S. Attorneys Office for the District of Colombia:
Where are the objects? Lal and Zia declined to say whether they knew where the objects were, citing the on-going investigation of the Abu Sayyaf material. But they said the complaint makes clear they are not currently in the United States.
Why file the complaint now? Lal said that the time between the May 2015 raid and the forfeiture complaint was necessary to conduct a thorough investigation of the records seized from Abu Sayyaf, consult with experts on the objects depicted in those records, coordinate with other federal agencies (FBI, State, Treasury and “other government agencies”) and compile the complaint. “We feel like we’ve done our homework with respect to these four items,” Lal said, suggesting that additional items may be added to the complaint in the future.
The practical implication of this forfeiture will mean that the market for these four objects, and perhaps objects like them, has been sharply diminished. The forfeiture complaint also details the ways in which looting takes place. The traditional rationales for antiquities looting may be much messier than we have thought, with women and family members forced to loot the al-Salihiyyah archaeological site to prevent harm to a young family member, as the documents seized in the Abu Sayyaf raid which have been made public for the first time in this complaint seem to show.
US files first case against ISIS to recover antiquities, http://ara.tv/m65yq (last visited Dec 20, 2016).
I’ll be presenting a short paper on the Ka-Nefer-Nefer forfeiture case at the Society for American Archaeology Annual meeting this Saturday morning. Our panel is scheduled from 8-10.15 A.M. in the Golden Gate 4 room of the Hilton San Francisco Union Square.
Here are the other scheduled papers:
Antiquities, drugs, guns, diamonds, wildlife: toward a theory of transnational criminal markets in illicit goods
The Kapoor Case: International collaboration on antiquities provenance research
Alternative Strategies in Confronting Looting and Trafficking in Defense of Peruvian Portable Heritage
The Ka Nefer Nefer and Federal Intervention in the Illicit Antiquities Trade
Geospatial strategies for mapping large scale archaeological site destruction: The case from Egypt
Bones of Contention: Further Investigation into the Online Trade in Archaeological and Ethnographic Human Remains
Duncan Chappell & Damien Huffer
The ruin of the Maya heartland: successes, failures, and consequences of four decades of antiquities trafficking regulation
Syria: Cultural Property Protection Policy Failure?
Morag Kersel will also be presenting a paper on her project Follow the Pots