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Seminar Transcript - Cultural Property Implementation Act: Is it Working?

Cultural Property Implementation Act: Is it Working?
The proceedings of the CPRI Seminar held March 21, 2011 in the Russell Senate Office Building, Washington DC.

Kate Fitz Gibbon, CPAC member from 2000 to 2003. She is now an attorney practicing law in Santa Fe, New Mexico, with a focus on cultural heritage issues, matters involving international and Native American arts, and law pertaining to art collection and museums.

James Fitzpatrick, senior partner of Arnold & Porter LLP’s legislative practice group.  He represented the interests of the antiquities trade during in the passage of the CPIA.  He is an adjunct professor at Georgetown University Law School where he teaches a course on cultural property law. 

Richard Leventhal, Professor of Anthropology at the University of Pennsylvania.  His areas of research interest include Mesoamerica; Complex societies; archaeological theory and method; and the intellectual history of archaeology in the USA.

Jay Kislak, chairman of CPAC from 2003 to 2008. Mr. Kislak founded the Jay I. Kislak Foundation, a private nonprofit cultural institution engaged in collection, conservation, research, and interpretation of rare books, manuscripts, maps, and indigenous art and cultural artifacts of the Americas and other parts of the world.

Michael McCullough, attorney. has extensive experience in customs law and international trade matters. He has counseled multi-national companies on the development and implementation of global policies and procedures related to U.S. Customs and Border Protection regulations, international trade agreements, export controls, economic sanctions constraints, anti-corruption rules, U.S. Fish and Wildlife regulations, and other government agency requirements.  He is a former VP for compliance issues at Sotheby’s Auction House.

Andrew Oliver, who served as curator at the Met, a field archaeologist excavating in Cyprus and Turkey, and  a program officer at the National Endowment for the Humanities.

Page 1

10 9:30 a.m.
11 Monday, March 21, 2011

20 ROOM 485
22 WASHINGTON, D.C. 20515

Page 2
1 P R O C E E D I N G S
2 MR. HOUGHTON: You know, it's nice having an audience
3 where I know so many of the people who are here. I'm
4 thrilled to have so many friends here. I speak personally.
5 And those of you who don't know me, I'll give you a little
6 introduction.
7 So, but first, this really needs a note of thanks. A
8 note of thanks to Senator Kirsten Gillibrand for her
9 sponsorship of this session, her staff for organizing this
10 room.
11 Special thanks for organizing this event to Peter Tompa,
12 who is a board member of the Cultural Policy Research
13 Institute, legal officer of the institute, who helped recruit
14 the speakers and make this happen. It really is an enormous
15 amount of work. Thank you, Peter. It's taken you a year to
16 bring us together here.
17 I should mention this is the first of what we perceive
18 to be a series of events of this nature. I should mention,
19 for those of you who do not know the Cultural Policy
20 Institute, we are available on the Web, cpriinst.org. And
21 what we do is niche research into areas that nobody else
22 wants to deal with, including orphan objects that museums

Page 3
1 don't want to have because they passed policy objectives that
2 now put into jeopardy objects within private collections;
3 including issues related to museum policy concerns,
4 government policy concerns; and certainly, this event is one.
5 I should mention to you that this event is recorded, and
6 I will ask people who would like to ask questions to address
7 their questions to whoever is standing here. And I've asked
8 Peter Tompa to take care of that. And he will then formulate
9 the question in a manner that it can be recorded by our own
10 recorder and then responded to by panelists here.
11 Why are we here? Why? Why, indeed? I have a few
12 thoughts on that subject, which, if I can find them, I will
13 make some points. I think -- are they still in my -- well,
14 that's all right. I'll wing it, but maybe I won't wing it.
15 There is loose in the land the view that there has been
16 a terrible train wreck, that somehow the vehicle that was
17 constructed to carry American concerns for America's response
18 to an international desire to preserve sites and monuments
19 and the cultural property of other nations, something has
20 gone wrong somewhere. That what started as a good idea that
21 was well formulated, that brought together people from varied
22 backgrounds, that was created in a manner to have a balance

Page 4
1 of views is now in smoking ruins before us.
2 There is a view that the Cultural Property Advisory
3 Committee, set up to advise the President, has reached
4 wrongful conclusions. There is a view that the staff of the
5 Department of State, or the Department of State itself as
6 steward of the act, has mishandled this responsibility, has
7 acted in a manner so clandestine as to raise the question as
8 to whether an abuse of authority might not be involved and
9 concealed. This is a view, and it's not universally held.
10 There is another view, and that other view has to do
11 with everything's fine. The act is doing what it should do.
12 Just keep trafficking -- let's keep on going ahead. The
13 people on the committee are distinguished. The staff is
14 knowledgeable. The State Department does what it should do.
15 There is no problem. I expect we'll hear different views
16 about that today.
17 We will today -- we do today have a distinguished panel.
18 And what I plan to do is to introduce each panel separately
19 at the beginning, ask them to address their concerns for 5
20 minutes. And I will sit in the audience here somewhere, over
21 there, and at the end of 4 1/2 minutes, I will rise with an
22 expectant look on my face as a way of signaling my interest

Page 5
1 in that 5-minute period.
2 I will then ask those who are on this current panel and
3 who are staying here, which, in this case, means Professor
4 Leventhal and James Fitzpatrick, to remain. Andrew Oliver
5 will vacate. Members of panel two will come up. I'll
6 introduce the new members, and we'll carry on from there.
7 For those of you who wish to applaud, please wait until
8 the end.
9 (Laughter.)
10 MR. HOUGHTON: And --
11 MALE SPEAKER: You can boo at will.
12 (Laughter.)
13 MR. HOUGHTON: And so, with that, I would like to
14 introduce our first panelists. Let me introduce myself
15 briefly first. This is not about me. I am Arthur Houghton.
16 I'm a former CPAC member from 1983 to 1987, earliest phase
17 of CPAC. I was associate curator, curator-in-charge.
18 I was a lot of former things, formerly a member of the
19 State Department, former member of the White House National
20 Security Council staff, former member of congressional staff,
21 formerly on the Getty Museum curatorial staff. Current
22 novelist, humorist, many things.

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1 (Laughter.)
2 MR. HOUGHTON: But this is not about me. This is about
3 others, and I want to introduce them at the moment.
4 First of all, I'd like to introduce in order of their
5 appearance -- I hope I have the order of appearance down
6 somewhere -- Richard Leventhal, professor of anthropology at
7 the University of Pennsylvania, whose areas of research
8 include Mesoamerica, complex societies, archeological theory
9 and method, and the intellectual history of archeology in the
10 United States. He has testified frequently at various CPAC
11 hearings. I would add that he, like I, is a humorist.
12 Andrew Oliver began his career in the 1960s as a curator
13 in the Department of Greek and Roman Art at the Metropolitan
14 Museum of Art. More recently, from 1982 to '96, he was
15 director of the Museum Program at the National Endowment for
16 the Arts. Over the years, he has participated in
17 archeological excavations at Sardis in Turkey, Cyrene in
18 Libya, and Kourion in Cyprus.
19 And James Fitzpatrick, who probably has been involved in
20 cultural property law beyond the age of a number of us in
21 this group, senior partner of Arnold & Porter, adjunct
22 professor of Georgetown University Law School, and someone

Page 7
1 who has spent 10 years of life helping to argue the formula
2 that eventually ended up as the Cultural Property
3 Implementation Act.
4 Welcome to you all. I'd like to start with Richard
5 Leventhal.
6 DR. LEVENTHAL: Thank you.
7 I think I'll stay down here, if I could, and I'll put
8 the mike over here.
9 Thank you very much, Arthur, and I appreciate being
10 invited here to speak.
11 The one comment I'd like to begin with, in terms of an
12 introduction, and I'm not sure I'm going to move into the
13 humor side of things. But that I also am director of the
14 Penn Cultural Heritage Center, where we are focused on the
15 preservation of cultural heritage around the world. This is
16 a relatively new center at Penn that we are still developing
17 and working. We do have projects around the world.
18 As well as a curator in the museum at the University of
19 Pennsylvania and also the past director of the museum. So I
20 have both the museum set of interests in front of me, a
21 cultural heritage set of interests, and perhaps an
22 archeological set of interests. And so, the first panel

Page 8
1 really focuses upon the background to why the CPIA was
2 created, was developed, and was passed. And so, I'd like to
3 talk both as an archeologist, but also as somebody who works
4 around the world.
5 And let me start out by saying heritage is an incredibly
6 important part of people's identity around the world. This
7 is not secondary stuff. This is not things that people
8 occasionally think about. The question of identity in the
9 globalized world has raised its head over and over again, and
10 really being able to focus upon why heritage is important.
11 Identity has become of great importance in the world today.
12 And I think the idea that the world is flat and the
13 globalization is all part of that process whereby people want
14 to see the fact that they are different. So identity and
15 that connection to the past is very critical. That
16 connection to the past brings us into the connection to the
17 present.
18 We are losing heritage around the world. We were losing
19 when CPIA was created. We continue to lose archeological
20 sites, ethnographic sites, historic sites around the world.
21 And that process is one that I think the CPIA was intended to
22 help try to alleviate.

Page 9
1 Has it? I think it has to a certain degree, and I think
2 we can talk about that as we move forward. But clearly, in
3 1983, and certainly before that, archeological sites were
4 being looted. They still are being looted. I can see that.
5 As an archeologist, I am in the field, and I can see the
6 destruction of the archeological sites firsthand. I have
7 been shot at by looters. So I do know the issues that are
8 involved in some of these things.
9 When we lose heritage, we all lose. We are losing
10 information about the past. We are losing information about
11 us. We are losing information about the nature of who we
12 are. And I think that's heritage both in the United States,
13 and we're losing an awful lot of heritage in the United
14 States, but also heritage around the world. So this, I
15 think, is a very critical element in terms of what we lose
16 when archeological sites are destroyed.
17 I do want to make the comment that both back in 1983 and
18 today antiquities are still being imported into the United
19 States. If it can be proven that objects fit the
20 requirements under the law, if host countries do give export
21 permits, there are ways that museums, there are ways that
22 there are objects that do move around the world in terms of

Page 10
1 the existence of a trade system.
2 And I think it's important to acknowledge that that
3 exists and not just simply say that's the next step that we
4 have to move toward. It already does exist.
5 And the final point I'd like to make is that I think
6 museums, and we see with their primary professional
7 organizations -- the AAM and the AAMD -- both have
8 identified, in fact, much tougher restrictions on the
9 acquisition of objects than, in fact, CPIA indicates within
10 its own structure. AAM and AAMD have identified 1970 as the
11 cutoff date whereby the identification of potentially viable
12 objects must be assessed.
13 And so, I think that we see that, in fact, the process
14 that we have been moving through over the past 18 years is
15 one, in fact -- actually, 28 years, 27 years -- is one, in
16 fact, where we see an awareness of museums to stop the
17 acquisition of objects that were illegally acquired or
18 illegally imported into the United States.
19 And so, I think this type of movement is a positive one.
20 It does not mean that those museums will not be able to
21 borrow objects from countries around the world, from other
22 museums around the world. What it does mean is that they are

Page 11
1 aware that the acquisition of objects does cause difficulties
2 in terms of where the objects came from and, therefore, in
3 relation to countries.
4 So I think the background to why CPIA was created is
5 very clear back in 1983, and I think it remains today. But I
6 think progress has been made.
7 Thank you very much.
8 (Applause.)
9 MR. HOUGHTON: Thank you. I think we'll hold our
10 applause to the end. Thank you.
11 Andrew Oliver?
12 MR. OLIVER: Thank you for suggesting that we remain
13 seated.
14 I want to take, as my point of departure, a letter
15 written just about a year ago in April by Patty Gerstenblith,
16 who was, I believe, one of the early members of the
17 committee, to the Cultural Property Advisory Committee,
18 addressing some of the gains that have been made in certain
19 countries. And she singles out among them Italy, because
20 Italy was not yet a signatory when she was a member of the
21 committee. So she's addressing that issue.
22 And she, rightly or wrongly -- I shouldn't be the judge

Page 12
1 -- says that Italy in recent years has been one of the
2 countries most given to protecting its archeological sites
3 and essentially capturing or recapturing works of art,
4 whether they're antiquities or paintings, that have been
5 taken out of the ground or taken out of churches. And she
6 draws attention also to the efforts of the Italians to
7 repatriate certain antiquities that have been offered for
8 sale at Christie's and Sotheby's in New York City.
9 Now I think what she says is probably true. She draws
10 attention to the Carabinieri in Sicily, in southern Italy,
11 who have worked very closely with local authorities to
12 apprehend the objects.
13 What she doesn't address, however, in my opinion, is
14 that the objects are out of the ground. The damage has
15 already been done. The Italians may very well have been
16 adept at finding looted antiquities and later works of art.
17 It's one thing if the picture that they apprehend is a
18 Caravaggio and is known to have come from a church is
19 Messina. It can go back to the church in Messina, and the
20 cultural value of the work of art is not lost.
21 But if you're talking about, let's say, south Italian
22 Greek vases that are found in a warehouse in Switzerland,

Page 13
1 there's not much difference there between finding them in
2 Switzerland or in the basement of the Museo Nazionale in
3 Naples, where they may have been excavated in the 19th
4 century and nobody knew where they came from, or in the
5 Medelhavs Museum in Stockholm. And it seems to me that a
6 missed opportunity should be drawn attention to.
7 When I was a curator at the Metropolitan Museum in the
8 1960s, I spent a lot of time working with the staffs of the
9 museums in Magna Grecia, in Bari, in Lecce, in Taranto --
10 wonderful towns that no tourist then ever visited and not
11 many tourists today visit -- because this was the region of
12 the Greek settlements in antiquity. And the museums in Bari
13 and Lecce and Ruvo and Taranto and Metaponto were full of
14 absolutely marvelous antiquities.
15 And the staffs of the museums in the late 1960s began to
16 recognize that while many of the antiquities that they had in
17 the museum had been professionally excavated by themselves in
18 the late 19th and early 20th centuries, looters were
19 beginning to discover that there was an opportunity. And it
20 didn't take very long for the authorities in the museums to
21 realize that the looters were being protected by the Mafia,
22 among other people.

Page 14
1 And Bari, for instance, which was a wonderful, open town
2 in more recent years, is not a very pleasant place to go to.
3 You no longer really can go and have a fine meal at the
4 Cercle Sportif by the banks of the shore.
5 What several of these curators and directors proposed to
6 me was to form alliances with American institutions, or
7 French or British or German institutions, to help the local
8 people excavate the known archeological sites. And these
9 were mostly tomb sites. They were burial grounds. They were
10 necropoles. They were not cities.
11 It was really a question of discovering where, in a
12 patch of somebody's field, some 40 or 50 tombs might be
13 located. Open the tombs. Photograph the objects. Make good
14 notes. And then, for a fee, distribute the antiquities to
15 the partners, who might be American institutions. They might
16 be American private collectors or European institutions or
17 private collectors.
18 Well, you can imagine how far those ideas, which were
19 proposed over a bottle of wine at lunch to me and,
20 presumably, to my colleagues, got with the officials in
21 Italy. Nowhere.
22 And so, I would end, as I look at Arthur smiling at me,

Page 15
1 by saying that the perfect has become the enemy of the good
2 and that other ways should be found to help prevent
3 antiquities losing their cultural message.
4 MR. FITZPATRICK: Yes, thanks. Thanks to everybody for
5 putting this provocative session together.
6 I was involved through the full length of the 10-year
7 fight to move from the State Department proposal to the
8 Congress to create a cultural property law in 1973 through
9 1983, when the law was finally passed. And what I want to do
10 is, as a baseline, second part of our discussion is going be
11 has the CPAC, the State Department gone off track?
12 But what I want to do is very briefly identify what, to
13 me, are the foundational principles of the law that was
14 passed in 1983, and then against that, I think we can measure
15 in the second session whether there have been deviations and
16 whether the deviations are, in fact, justified.
17 The first central point is that the law was, at the end
18 of the day, a compromise that recognized explicitly and
19 powerfully two fundamental facts -- the importance of the
20 international trade in art and the necessity of creating an
21 institution that could respond to serious, precise problems
22 of looting. Crisis situations abroad.

Page 16
1 This law was not a mandate to close down international
2 trade in art. It was not a vehicle to eliminate one half of
3 the interest groups that were there. It was an attempt to
4 create a mechanism that would balance both those interests.
5 The law created the Cultural Property Advisory
6 Committee, A, as the critical forum to assess foreign
7 nations' requests. And that was to be a source of expertise,
8 and there was widespread understanding that that committee
9 and its expertise was to play a central role in the
10 administrator's decision.
11 There is a relationship between the advisory committee,
12 this was an advisory committee within the law, within the
13 act, and there was first USIA and State Department officials
14 that would act on those recommendations. But it was agreed
15 that that broad constituency was going to be the first line
16 of expertise in evaluating the propriety of an embargo.
17 And you have to understand that the whole concept of an
18 American embargo of art was directly contrary to 100-plus
19 years of American law and tradition. We had essentially free
20 trade in art for years and years and years, and that was the
21 vehicle that created the great collections that, in turn,
22 populate the major museums in America.

Page 17
1 The third foundational point is the logjam was broken
2 ultimately when it was agreed that the United States would
3 not act unilaterally and that they would act as part of a
4 concerted international response to the problems of looting.
5 And it was clear from the legislative history and the
6 explicit terms of the law that we were going to be part of a
7 group, would create import bars to respond to the problem of
8 looting.
9 And that was a very fundamental concept because if we
10 were not part of a group of market nations that said no, you
11 simply would transfer the market from New York and Los
12 Angeles to Geneva and London and Paris. So that concerted
13 international response was critical, and at the time, the
14 archeologists, the dealers, the museum people, State, all
15 agreed that there had to be a concerted international
16 response. Something meaningful that the world market
17 community responded to legitimate concerns about looting.
18 And in that process, the Senate rejected what was the
19 approach of the House, which was, as a moral matter, the
20 United States act as a leader and act unilaterally. It was
21 clear that those were two models of action, and the model
22 that the Congress chose was a cooperative model and a

Page 18
1 compromise model in which we were a participant with others
2 in terms of dealing with serious and severe problems of
3 looting.
4 The final foundational principle is that the United
5 States would make its own decisions. It would not rely upon
6 a foreign nation's characterization that something is of
7 cultural significance or that something is critically
8 important to their society. We would make this decision
9 ourselves, and essentially, the Cultural Property Advisory
10 Committee was central to that U.S. decision-making.
11 Finally, let me say that the problems of looting, at the
12 end of the day, were recognized then and are less recognized
13 now as not a difference between good guys and bad guys. I
14 think then and now problems of looting are severe, and the
15 essential question is how does one deal with that? What is
16 the most constructive way?
17 Are embargos the way to deal with it, that open a market
18 in Geneva and close a market in New York? That is something
19 I hope we can talk about later, and I beat Arthur's smile.
20 Thank you.
21 MR. HOUGHTON: Thank you.
22 There are issues. There are going to be some questions.

Page 19
1 So I'm going to ask Peter Tompa to take the questions and
2 repeat them so that the transcriber can have them accurately.
3 MR. TOMPA: Arthur, before we start that, I think we
4 should acknowledge I think there are people from
5 congressional offices here. I wonder if you could just
6 identify yourselves, if there is anyone?
7 (Audience member responds.)
8 MR. TOMPA: Okay. Anyone else? Okay. Thank you.
9 Okay. Is there any questions?
10 MR. HOUGHTON: Maybe I could?
11 MR. TOMPA: Okay.
12 MR. HOUGHTON: If I could ask Richard Leventhal if he
13 would reflect, one moment, on what Jim has said with respect
14 to the original intent of the law and let know your view as
15 to whether, in fact, the law is being honored. And within
16 the context of your associations with both museums and the
17 archeological community whether you believe that, in fact,
18 something is going on that is shifting the ground from
19 underneath the law to some other course that it never
20 intended?
21 DR. LEVENTHAL: I think the law is a compromise. It's
22 still very much in play, I think. I think the issues of

Page 20
1 looting that I brought up, that were also brought up by Jim,
2 clearly, this is an ongoing issue. And so, we haven't
3 necessarily solved that problem yet.
4 Has the law helped with this? I think there is both
5 evidence that there may be some help for it and maybe it
6 hasn't. Has the law gotten off track? I'm not sure that it
7 has. I mean, I think the law, as the existence of the law
8 and the implementation of the law, they are following the
9 basic structure.
10 These clandestine issues that have come up, the secrecy
11 issues that have come up, I will not get into that only
12 because I don't know enough about that. And I'm not sure
13 that if there are issues with that, then perhaps it has to go
14 to court, and we have to talk about that and think about
15 that.
16 But I think the law, as it's intended, as a compromise
17 in terms of museums, in terms of the archeological
18 institutions, in terms of the collector institution, I think
19 that we see all three of those, the needs of all three being
20 met within the framework of and within the structure of the
21 law.
22 So I actually feel that the law is performing reasonably

Page 21
1 well in allowing us to continue to move forward because, as I
2 said, there are ways to bring artifacts into the United
3 States. There are ways to have museums borrow objects and
4 have exhibits, and there are ways that the law structures
5 that help in the preservation of heritage.
6 MR. TOMPA: Kate Fitz Gibbon?
7 MS. FITZ GIBBON: Arthur asked Dr. Leventhal to respond
8 to something. That being said, I'd like to ask Oliver to
9 respond to something Dr. Leventhal said regarding the
10 adoption by American museums through the AAMD of the 1970
11 cutoff date and how that relates to this impact discussion.
12 MR. TOMPA: Okay. So, basically, the question is how
13 does the AAMD's and the AAM's adoption of a 1970 provenance
14 date relate to this discussion today?
15 MR. OLIVER: It's a question that I've thought about a
16 little bit, not recently. I would be tempted to argue that
17 the museums that have adopted a cutoff date of 1970 have done
18 so reluctantly, through the advice of legal counsel, so as
19 not to get into trouble.
20 That is based on conversations that I've had with a
21 selected number of staff members of some of the museums who
22 have publicly stated that that's what their policy is. It's

Page 22
1 the realization that this is the best way to proceed.
2 I don't know that that really answers your question or
3 not. And please, ask me to follow it in a further direction
4 if I can. Do I answer your question or do I --
5 MS. FITZ GIBBON: I think you answered it very, very
6 well.
7 MR. HOUGHTON: There will be an opportunity for further
8 questions at the end of all the participants, and I'd like to
9 move on to the second session.
10 Thank you very much.
11 If I could invite Richard Leventhal and Jim Fitzpatrick
12 to stay? If I could invite Kate Fitz Gibbon and Mr. Kislak
13 to join the panel?
14 And I should mention, if I haven't before, that as a
15 guest, Robert Korver, formerly a member of the Cultural
16 Property Advisory Committee, has come from Texas to be with
17 us today, and I will be calling on him to give whatever
18 remarks he chooses to make at the end of this session. And
19 then all of those can respond to questions for a few minutes
20 at the end of that.
21 The order in this session is Mr. Fitzpatrick, Kate Fitz
22 Gibbon, Richard Leventhal, Mr. Kislak, and at the end of

Page 23
1 that, I'll call for Mr. Korver to say something.
2 Jim?
3 MR. FITZPATRICK: I'm coming.
4 MR. HOUGHTON: Sorry. This session, I should mention,
5 is -- congressional intent was the last session. This is how
6 it's operated in practice. And the question really is, is it
7 doing what it should do? We have partial answers to that.
8 Or is there some problem that is either perceived or
9 material?
10 Thank you.
11 MR. FITZPATRICK: Thank you, Arthur.
12 The question is, has the administration of the law been
13 faithful to congressional intent? As I understood it and as
14 I tried to outline in its fundamentals, I think the square-on
15 answer is no.
16 Now one has to understand that answer "no" comes from a
17 position of someone who has represented museums and
18 collectors and dealers in this fight. So everyone in this
19 debating this issue has a point of view, and one has to
20 discount any statements that are made here with the fact that
21 we are all coming to this issue with very strongly held, but
22 I hope conscientiously derived points of view.

Page 24
1 I think -- I believe that the guidelines and the
2 safeguards that were built into the act have quite powerfully
3 been brushed aside in the following ways. First, the
4 administration of the CPAC has left us not with rifle-shot
5 responses to problems of looting, which was the situation for
6 the first 5 or 6 years of CPAC's history, where there were
7 procedures that went after Moche items from Peru or textiles
8 from Bolivia, to comprehensive bans that basically span tens
9 of thousands of years.
10 One is barring, embargoing from this country an entire
11 cultural history without any specific recognition that those
12 items in a given place are being looted. The easy way out
13 now is to have a universal ban of everything that a nation
14 has produced over the course of thousands and thousands and
15 thousands of years.
16 What one has come up with, a central provision of the
17 1983 act was that the items that were to be barred were items
18 of "cultural significance," a word of art. That has been --
19 that is a term that had within it some sense that there was
20 importance and uniqueness and power of a particular item.
21 That concept has been substituted for archeological
22 significance that anything that an archeologist thinks might

Page 25
1 be significant to her profession is culturally significant
2 and can be kept out of the country.
3 Second, there has been, through a series of
4 contrivances, the entire concerted effort, concerted response
5 has been read out of the law. And that has been largely
6 prompted, I believe, by the State Department legal staff and
7 the staff within the administration of this act.
8 And the concept has really led to the result that was
9 attempted to be avoided. Markets have simply been shifted
10 elsewhere because, in fact, the net effect -- the third point
11 is the net effect is that the United States and only the
12 United States has on-the-ground import bars to looted
13 cultural property. Other nations have a hodge-podge of
14 provisions or have adopted, have ratified a UNESCO convention
15 but done nothing more.
16 Great Britain, which is the major market behind the
17 United States for many of these antiquities, announced that
18 they weren't going to impose any import bars. They have
19 simply passed a criminal law, which they've acknowledged has
20 never been enforced. So the other major market country
21 simply has not done anything comparable to us.
22 And the bottom line is that in this, in the given that

Page 26
1 there has to be a broad response to problems of looting,
2 nobody else is standing in line. We're closing our markets
3 to our museums and our collectors and our dealers, but
4 France, Great Britain, the rest of the world goes its merry
5 way.
6 The administration of this law has turned out to be not
7 a balance but has protected source countries and has not
8 protected, on balance, U.S. museums and U.S. collectors.
9 Indeed, in one of the major import restrictions involving
10 China, I know of no other nation outside of the United States
11 that comes even close to an import bar on Chinese objects.
12 We stand alone, and the Chinese, in fact, are the greatest
13 market in the world for their objects.
14 And one of the things that we presented in the China
15 proceeding to the CPAC committee were page after page after
16 page after page of items that were freely available in
17 Chinese auction houses to Chinese, and those very same
18 objects were part of an embargo list that couldn't come into
19 the United States. If the concept gives you diminished
20 demand and, thereby, diminished looting, the Chinese
21 themselves today are the major engine behind looting in
22 China, not the United States.

Page 27
1 The final point is that what was contemplated, I
2 believe, was to be a fair and impartial staff administration
3 and view of the requests that came to the committee, came to
4 the State Department. I don't believe -- and this is point
5 of view, I don't believe that the staff has had a sense of
6 balance that recognizes that fundamental point that the
7 international trade in antiquities is an important part of
8 the world's cultural concern. And that a balkanization of
9 world culture, that everybody keeps its own objects at home,
10 that from the beginning, from the get-go, was recognized as
11 not the best response to the problem of looting.
12 In conclusion, it seems to me, from my perspective, that
13 it really would be immensely useful for the Congress to look
14 again and see if the administration of this act has gone off
15 the wheels and to determine whether a second, fresh
16 examination of the administration of the law and the basic --
17 the fundamentals that drove the law have been honored.
18 Thank you.
19 MR. HOUGHTON: Thank you. Kate?
20 MS. FITZ GIBBON: Me? Okay.
21 Well -- can you hear me? All right.
22 I understand that this last week ending on Sunday was

Page 28
1 Sunshine Week. It's a week for celebrating transparency in
2 government and freedom of information. So while we're all
3 about sunshine here, we're hoping to start a conversation
4 about the Cultural Property Advisory Committee and its
5 actions and processes and whether CPAC has seriously abused
6 some of those processes and distorted Congress's intentions
7 in the process.
8 CPAC had a meeting last month on establishing a
9 bilateral agreement with Greece -- not a struggling African
10 nation, not a tiny atoll in the Pacific, Greece. And Greece
11 will, in all probability, become the second member of the EU,
12 along with Italy, for whom it will be claimed that the
13 country's own government is incapable of preserving their
14 vital cultural heritage, which will be defined, if things go
15 as they have in the past, as practically everything produced
16 over a several thousand year period.
17 Greece will join a club that includes a super power,
18 China, as Jim mentioned, which also claims it cannot manage
19 its cultural crisis without the help of American policemen.
20 That is a really tough one to swallow.
21 I'm guessing, of course, that an agreement will be
22 signed with Greece and what its contents might be. Because

Page 29
1 although Americans have a very tight connection with Greece
2 and its cultural heritage, philosophically, politically,
3 architecturally here in Washington, the one place where the
4 American public is not engaged with Greece is behind the
5 closed doors of the Cultural Property Advisory Committee.
6 I was appointed to CPAC in 2000 and sat on the committee
7 until 2003, and I'm here today because during my tenure, and
8 as far as I have been able to gather in subsequent years, the
9 committee, supported and encouraged by its staff, has
10 routinely violated the rules established by Congress. And
11 often, this has been done in the face of complaints from
12 sitting committee members.
13 The consequences of these violations have had a ripple
14 effect that damage important public interests here in the
15 United States -- our educational interests, our museum
16 interests. CPAC's committee review and recommendation
17 process fails to meet the law. And when CPAC's
18 administration is called on these failures, it will not let
19 that sunshine in. It cloaks its processes in quite
20 extraordinary secrecy. It has refused multiple times Freedom
21 of Information Act requests.
22 No one can be expert in art from all over the world, as

Page 30
1 the CPAC members are supposed to be, without access to
2 additional resources. We need the help of other American
3 experts in making the very wide-ranging decisions that form
4 part of the recommendations to the President. But the public
5 is routinely denied access to key information about country
6 requests that is supposed to be helping the committee through
7 its comments with.
8 When I first arrived in 2001, there was a shortened
9 version of the determinations in the voting process. I
10 remember sitting there and wondering, hey, what happened to
11 Part 2 of the Section C determination, the one about using
12 less drastic remedies? I mean, it wasn't even mentioned.
13 These sorts of omissions didn't last long. That was too
14 obvious, as soon as others and I pointed them out. But it
15 seemed to me that the process of reviewing requests and
16 making determinations was always a sort of concession to the
17 statute rather than a commitment to abide by it.
18 Some of the key points about not meeting statutory
19 requirements have been raised already. Any evidence of past
20 looting was taken as sufficient to meet the requirement that
21 the source country have a crisis in looting. The smallest
22 effort on the part of the source country to halt looting or

Page 31
1 smuggling fulfilled the requirement that the country act on
2 its own. And often -- I can remember one time when that came
3 to putting up a few posters in the airport.
4 Any traveling show from the source country within the
5 last 5 years to the United States was sufficient evidence of
6 cultural exchange. And as the thresholds got lower and lower
7 for setting up an agreement, the consequences of recommending
8 one became bigger and bigger because the list of restricted
9 items covered more and more objects over many thousands of
10 years of history.
11 And they weren't limited to items that were of
12 importance to the citizens of the country that was making the
13 request. They were everything. Objects that were traded in
14 the hundreds of thousands and even the millions like such as
15 coins in the ancient world could not be imported into the
16 United States, regardless also of what country they were
17 finally discovered in, because the requirement that the place
18 of first discovery be the country that was making the request
19 was Customs took a broader position on that.
20 Let me give you an example of the sort of casual
21 disregard for the statute that shows how committee staff
22 manipulated the system. Mali is the only African country

Page 32
1 that has applied under the statute. The statute is -- oh,
2 Arthur is -- all right. Let me finish this bit.
3 The statute is underused and over implemented, okay?
4 Mali received an emergency grant of restrictions in 1992, but
5 as we later learned, the committee at that time found that
6 nothing but an emergency grant should be made because Mali's
7 actual -- the largest markets for Mali were France and
8 Belgium, not the United States. And the committee at that
9 time explicitly said no bilateral agreement is possible
10 because it doesn't meet the statute.
11 So by the time I came on the committee, we were already
12 looking at a renewal of a bilateral. A bilateral had been
13 put in place in 1997. I said where is the old committee
14 recommendation? I'd like to see that in order to be able to
15 assess progress, in order to see whether the earlier
16 committee made some suggestions, whether Mali has implemented
17 them.
18 And I learned at that time, after a lot of stalling,
19 that there had been no committee review in 1997, that the
20 staff had simply said the conditions that the prior committee
21 set up for Mali to be able to have a bilateral have been
22 fulfilled, which seemed a little odd to me because Belgium

Page 33
1 and France were still the primary markets for that.
2 I think I'll just leave that and move on to the next.
3 MR. HOUGHTON: I would like to apologize because I had
4 intended to introduce the new members of the panel before
5 this panel, and I did not.
6 And I'd like to let you know that Kate Fitz Gibbon,
7 who's come here from New Mexico for this event and who just
8 spoke, was a member of the Cultural Property Committee from
9 2000 to 2003, which she mentions. She is an attorney
10 practicing law in Santa Fe, a founding member of the New
11 Mexico Lawyers for the Arts with a focus on cultural heritage
12 issues, matters involving international and Native American
13 arts, and law pertaining to art collection and museums.
14 The other new speaker, panelist is Mr. Jay Kislak, who
15 was the chairman of the Cultural Property Advisory Committee
16 from 2003 to 2008. Mr. Kislak founded the Jay I. Kislak
17 Foundation, a private nonprofit cultural institution engaged
18 in collection, conservation, research, and interpretation of
19 rare books, manuscripts, maps, and indigenous art and
20 cultural artifacts of the Americas and other parts of the
21 world.
22 We're honored to have you here.

Page 34
1 Our next panelist is Richard Leventhal, followed by Mr.
2 Kislak, and as I mentioned, I will call on Robert Korver
3 after this session.
4 Thank you.
5 DR. LEVENTHAL: Thank you very much.
6 The discussion about has the law been followed, has the
7 statute been followed, has gotten into partly a question of
8 transparency. I have not been on the committee. I cannot
9 speak to some of the issues that go on behind those closed
10 doors.
11 But I think from the outside, as I look in, I actually
12 see that the determinations, which are the primary criteria
13 for which an MOU would be approved, seem to be being followed
14 quite clearly and quite closely as we move forward. So I
15 think I feel relatively comfortable that, in fact, the CPIA
16 is, in fact, trying to be followed along the lines of what
17 the legislation is.
18 This is not trade legislation, but rather, legislation
19 that it's clearly stated within the Senate report that these
20 are specifically tied to issues of foreign affairs. Cultural
21 diplomacy is an important part of what we are trying to do in
22 the world today, and this is a central part of the Obama

Page 35
1 administration's foreign policy.
2 The respect and protection of our heritage by other
3 countries also relates to the need to respect and help with
4 the protection of other countries' heritage by the United
5 States. And this is a definite relationship that we have to
6 have.
7 So I think not only have these countries asked us for
8 help, but, in fact, I think through this, we are looking at
9 the process through which we can understand what is important
10 to us in terms of our own heritage. And I wouldn't think
11 that just coming to the United States with a proposed MOU
12 would, in fact, imply that they cannot handle their own
13 heritage, but rather the fact they're looking for help, as we
14 all do, as we all work within the world, within this
15 globalized world as we have always talked about.
16 Another point I'd like to make is in terms of
17 Determination Number 2, source countries are certainly trying
18 to focus on the preservation of their cultural heritage,
19 material that they have identified as being important to
20 them. They have increased vigilance and work related to the
21 protection of that heritage. This is tied to laws. This is
22 tied to law enforcement within the country and at its

Page 36
1 borders. This is tied to public activities, education, and
2 so on.
3 If one looks at countries, some of them have MOUs. An
4 MOU like with Italy or with China or Peru, one can see that
5 there has been quite a bit of attempt by these countries to
6 work internally to protect that cultural heritage. Countries
7 like Mexico or Egypt are very active in their attempt to
8 protect their cultural heritage.
9 There are moments, as we saw in Egypt, of unrest. But
10 even there, the fact that the population, the people of
11 Cairo, the people of Egypt linked arms around the Cairo
12 museum to protect that heritage clearly speaks to both the
13 importance of the heritage, the value of that heritage to
14 them, and the willingness of them to put themselves in danger
15 to protect that heritage.
16 So I think in terms of Determination Number 2, as much
17 of the stuff has come up with CPAC, both in the public
18 presentations, as well as, I assume, behind closed doors,
19 it's very clear that these source countries are being very
20 active.
21 If we look at Determination Number 3, which is, in some
22 sense, something that Jim brought up and relates specifically

Page 37
1 to the international attempt to stop the movement of these
2 goods around the world, again I think that there has been a
3 large concerted effort on the part of market countries around
4 the world to stop the illegal movement of antiquities into
5 their country. And to meet this determination, we do not
6 need to look at exactly the same law that exists in the
7 United States, the CPIA.
8 What we do is we need to look at similar activities,
9 similar laws, similar import restrictions that exist. And I
10 think that we can see that around the world.
11 First of all, we now have 120 countries that have
12 ratified the 1970 UNESCO convention. We have countries, such
13 as Switzerland, who, in fact, had created MOUs quite similar
14 to ours with source countries around the world. And
15 actually, these MOUs do not have to be reaffirmed every 5
16 years. So this is a very similar type of structure that
17 Switzerland has created.
18 And then we do have criminal laws in the UK, along with
19 Italy and Cyprus within the EU that have written laws
20 specifically about the movement of these illegal objects into
21 their country. And when we look at New Zealand, Australia,
22 Canada, we also see the existence of very strong customs

Page 38
1 laws.
2 So, again, if we look at Determination Number 3, in
3 fact, the source countries, some of them had led and we have
4 followed, and sometimes we have led and others have followed.
5 In terms of the source countries, they are making and we are
6 making a concerted effort that falls right within the
7 framework of Determination Number 3.
8 If we look at Determination Number 4, which is talking
9 about the ability to have the international community and the
10 interchange of cultural property around the world, this law
11 has encouraged, in fact, the exchange and the interchange of
12 objects for display and study between universities, with
13 museums, scholars, as well as for the public display of
14 material.
15 We see within Italy the willingness to change their laws
16 to allow for the display of objects in the United States that
17 were being borrowed from Italy from 6 months. Now it's up to
18 4 years, and I think if the process continues, it will
19 continue to be even longer than that. So I think we see
20 that, in fact, these countries are willing to allow this type
21 of shift and change.
22 I will also say, and I know that not everyone in the

Page 39
1 room will agree with me, that coins are, in fact, the same as
2 other archeological objects. Coins have moved around in the
3 past, and they move around today.
4 In the past, other objects moved around, sometimes where
5 there were coins and sometimes where there were not coins.
6 So, as an archeologist, as someone who's interested in
7 context, I see that that is a very important part of this
9 And the final point I'd like to make is I don't think --
10 sorry, I'm a professor. Once I start going, you can't stop
11 me. It is important not just to save objects. I'm
12 interested in saving objects. I'm interested in protecting
13 objects from being destroyed.
14 But most important, to me what's most important and most
15 interested in trying to protect heritage. And heritage is
16 about context. Heritage is about context identified by not
17 just the collectors and museums, but identified by local
18 communities. The local communities can identify what is
19 significant to them and what is important.
20 So, to me, we have to think about not just once the
21 object is already out of the ground what do you do with it?
22 But how do you protect the churches, the museums, the

Page 40
1 archeological sites around the world? How do we protect them
2 from being looted in a variety of ways?
3 Thank you.
4 Oh, you want to be formal?
5 MR. KISLAK: I'll stand up here because I need an excuse
6 to stand up anyway.
7 Before you start your clock going, sir, can I ask a
8 couple of housekeeping questions? Like is there anybody here
9 from the State Department?
10 (No response.)
11 MR. KISLAK: Well, I'm sorry. I would like them to be
12 here. I would like them to hear what I've got to say. Even
13 though they've heard it before, it doesn't seem to help.
14 But is there anybody here from the press?
15 (No response.)
16 MR. KISLAK: We're all just a group of citizens either
17 who had nothing else to do or who wanted to hear something
18 that used to be controversial.
19 You asked earlier why are we here? If I'm the cleanup
20 batter here, I'd like to ask the same darned question, why
21 are we here?
22 I'm going to restrict my few minutes you're going to

Page 41
1 allow me to the subject not of who owns the past. We have a
2 lady here who wrote a great a book or edited a great book on
3 the subject. We've got a professor here, and he said he's a
4 professor and he's entitled to more time. I'm not. I'm just
5 a lowly mortgage peddler from Hoboken, New Jersey, who is
6 trying to make his way through life and somehow got involved
7 with a group of fine people and serving on a committee, which
8 we were asked by the President's people in the White House to
9 serve on, give up our time and our efforts.
10 They gave us some stipend for travel and for overnight
11 if we wanted to stay at the Holiday Inn. And we all came.
12 It was quite a group.
13 The question is, has it been successful? The answer is
14 a resounding no. There's no reason in the world why, when we
15 have the kind of problems we have and the kind of budgetary
16 restrictions that we have and the great deficits that we
17 have, that we should spend the time and effort and the money
18 on something as useless and as poorly conducted as the CPAC.
19 I was in this building in the early '80s when Peter
20 Grace spoke at a meeting. Some of you may be old enough, not
21 too many, to know about the old Grace Commission. The Grace
22 Commission had over 1,000 business people as members to

Page 42
1 review the government and see what had to be done to try and
2 reduce expenses during the early days of the Reagan
3 administration.
4 What happened to that report, which was brilliant?
5 Nothing. What's going to happen to the Simpson and Bowles
6 report, which came out last year? I think two great people.
7 Alan Simpson, I know well. Bowles, I've met. Both from
8 different parties who decided we had a wasteful government.
9 Same thing is going to happen with that report, it seems to
10 be. The government ignores it.
11 Now let's get specific about CPAC, why it's useless. I
12 will give you a few examples. I will attempt not to name
13 names, though I will be somewhat specific. At least one
14 staff member slept 20 percent of the time. When I complained
15 about it to the attorney, I was told leave it alone. We know
16 it. What are we going to do with it? We can't shift her
17 somewhere else.
18 Oh, I shouldn't have even identified the sex. But this
19 person, we can't move them, him or her. So leave it alone.
20 Try something else. I said, okay, what about transparency?
21 There is no other committee that I have been able to find
22 except for the committee about firearms, drugs, et cetera,

Page 43
1 that meets in any partial secrecy. No other advisory
2 committee than this.
3 Well, you know, we're part of the State Department. We
4 may have state secrets. You may have something else
5 involved. Baloney.
6 The reports which we got continually were well done. I
7 say this for the staff. They had an efficient staff, and
8 they were intelligent people. Some of them a little
9 misguided, but still intelligent, and they -- you are
10 agreeing or disagreeing, I don't know.
11 DR. LEVENTHAL: I'm chuckling.
12 MR. KISLAK: Oh, he's chuckling. Well, you see, I went
13 to the school -- pardon?
14 MR. KORVER: I said I'm crying and he's laughing.
15 MR. KISLAK: Well, I went to the school where he's
16 teaching. So if he's chuckling, I don't know what I should
17 do.
18 (Laughter.)
19 DR. LEVENTHAL: It's no reflection on you or the school.
20 MR. KISLAK: I'll think about that. At any rate, I
21 think that the real question of secrecy, I met with the
22 attorneys of the State Department a few times and got some

Page 44
1 sensible answers from them. Mostly, though, it ended up,
2 "Well, we'll get back to you," which they never did.
3 The fact is, they could give us no reason for secrecy.
4 We'd get a memo this big each meeting, probably 75, 100
5 pages, maybe more, with mostly reprints of articles of
6 newspapers and magazines, et cetera, all marked "confidential
7 information, do not disclose." And I'd ask why it was done
8 that way, "Well, it's just we do it every page." There was
9 no rhyme or reason. The secrecy is inexcusable.
10 And not only that, I went down to one of the Central
11 American countries. I happened to be down there at the same
12 time as the staff member was there. I happened to be staying
13 in the same hotel. I was there meeting with some
14 archeologists after I was told you don't dare go down and
15 tell them you're a part of the committee because you're not
16 representing the government, and the only way you can do that
17 is through the Ambassador, and we're not going to do that
18 because the staff will do that.
19 I called the person who was -- I'm trying to restrict
20 from whether it was a male or female -- who was representing
21 staff three floors below, and I was told she didn't have time
22 to see me. I don't care. I told her I was going out to look

Page 45
1 at some ruins the next day with some people, private people
2 who had the rights for -- not the rights, the responsibility
3 through the private foundation of taking care of two big
4 sites of ruins. "Well, no, I can't come. I can't talk to
5 you. I can't do anything."
6 I get back, and I find out that this lady was told by
7 the person running the operation don't you dare talk to him
8 and don't you see him when you're down there.
9 The question that finally ticked me off, of course, was
10 clear violation of the duties of the members of the
11 commission as opposed to staff. Fact is that we had a
12 special vote, and I'm told I can't tell you what happened.
13 But I'm going to tell you because I don't think it's secret.
14 If it is, they can come and take me away. And I'm here.
15 I will write you all from wherever they imprison me.
16 (Laughter.)
17 MR. KISLAK: But it happened to do with coins, on which
18 I'm neutral. I'm not quite neutral, but almost. I'm pre-
19 Colombian art. That's how I got into trouble in the first
20 place.
21 But the coins clearly were a matter that came up for
22 special voting. This is why this was not combined with

Page 46
1 everything else. When you're voting on these four items that
2 Dr. Leventhal talked about, it's confusing enough. Nobody on
3 staff could clearly explain 3 or 4 and what they meant, this
4 Determination 3 or 4. The legal department would give you
5 different answers on all of it.
6 However, when there was a special vote on changing the
7 request of Cyprus from the original request, came in a day or
8 two before the meeting to include coins, and we had a special
9 vote on it for 10 days after the regular vote. This was not
10 partial. It was not confused with everything else.
11 Much to my surprise, the committee voted against the
12 inclusion of coins. I thought it would be included because
13 the committee, which consisted of 11 people, was stacked
14 against the dealers and the collectors. And I see Arthur
15 getting nervous, and I will not look at him.
16 (Laughter.)
17 MS. FITZ GIBBON: Jay, you go on.
18 MR. KISLAK: The vote came in against including coins in
19 the MOU. Somewhere staff and the State Department decided to
20 ignore the committee and included it in their report. What's
21 the sense of having a committee? What do they need us for,
22 to come up there and spend our time and our efforts in

Page 47
1 deciding?
2 And there was some great archeologists on the committee,
3 and I have some good friends who are archeologists.
4 MALE SPEAKER: Some of your best friends --
5 MR. KISLAK: No, some of my good friends. He's raising
6 his hand again. Needless to say, that killed me. When the
7 White House said your time is up, and like he said, do you
8 want to be renewed? And I said no. He didn't ask me to be
9 renewed, but the White House did.
10 I could go on and on, but I won't. I just think it's
11 useless. It's foolish to keep it up. We've got much more
12 important things to do than to spend our time and money when
13 staff is going to do whatever they darned please anyway.
14 Thank you.
15 MR. HOUGHTON: I will make another confession. Last
16 night or yesterday, Mr. Kislak asked if he could be blunt,
17 and I said, "Well, sure, why not? Sure." He said, "I will
18 be." And he was.
19 Thank you.
20 Bob Korver, if you could come up and have a seat and
21 comment on your experience, if you wish? Five minutes,
22 please.

Page 48
1 MR. KORVER: I guess I'm the most recent member of CPAC
2 to resign. What's today's date, the 20th, 21st? So it was
3 20 days ago I resigned, and I'll simply state -- some of you
4 have seen my letter. But I chose to no longer be part of
5 putting a veneer of legitimacy on illegal acts.
6 So my best friend tells me that I sometimes occasionally
7 have a slight tendency to be long-winded, and keeping that in
8 mind, I'm going to say, James, you're right. Everything you
9 said is simply correct.
10 Kate, when I first joined the committee, I got a letter
11 from Kate, outlining potential pitfalls, unfortunate
12 circumstances that I might encounter, and I didn't realize it
13 at the time because it was written in a very open spirit. I
14 didn't realize at the time that she was actually an optimist
15 compared to what I actually did encounter.
16 And I would re-emphasize the one thing that hasn't
17 changed and that she brought up and Jay brought it up as
18 well, the lack of transparency. There is a good reason for,
19 it's because things that you do in the night, you might not
20 want to do in the light of day. And when you don't follow
21 the law, it's easier to do it behind a closed door than in a
22 public forum.

Page 49
1 It extends so far, and Kate mentioned this and I think
2 Jay did as well, that members, current members of CPAC were
3 even denied access to the prior decisions and paperwork of
4 CPAC. The cultural memory of the organization is denied the
5 current members because you could check and see what were
6 people thinking, what were the actual recommendations made.
7 It went further than that. The actual paperwork
8 generated by our CPAC, the final reports were denied to us.
9 So that you couldn't see what paperwork was being sent on
10 through the decision-maker to the President to see if it
11 comported with what actually happened and was discussed in
12 the meeting.
13 Is there a need for transparency? Yes. I really don't
14 think there's any question about it.
15 Dr. Leventhal, you know, he and I agree on many things.
16 And in his theoretical construct, I agree with most of what
17 he said. The problem is implicit in his statement -- from
18 the outside, it looks like it's working pretty well. And I'm
19 here to tell you, as Jay bluntly said it, from the inside, it
20 stinks.
21 There are laws. They exist for a reason. No government
22 staff member should be above the law. The act, and I think

Page 50
1 James can confirm this, staff is supposed to provide support
2 for CPAC. CPAC is not supposed to be a rubberstamp for staff
3 activism. And I can't say that more clearly.
4 And I think you would probably agree that that is the
5 function of the committee, and it's done through many devious
6 ways. I'm not going to label them because I don't want
7 Arthur to start twitching at me. But I will give you one
8 example.
9 I am the trade representative. Okay, you would expect
10 that my bias is toward trade, toward a free market solution
11 to these problems, and that would be correct. What is a
12 member of the public? Am I not a member of the public?
13 Should I not be allowed, with my background, to be a member
14 of the public?
15 You might say, well, no. That's what you have a trade
16 slot for. So then why do you have a staff member, prior
17 staff member of ICOM, which takes our staff activism to a new
18 level, as the representative of the public? I mean, that's
19 about as far from public as you can get. That's just one
20 more example to add to Jay's.
21 And finally, Jay, you know, Jay is like a father figure
22 to me. In fact, on several occasions, I've suggested that he

Page 51
1 adopt me. I did warn him I have expensive tastes, and that
2 may have been the reason for his declining the honor, but --
3 (Laughter.)
4 MR. KORVER: I will disagree just with one thing that he
5 said about the reports that are prepared for the committee.
6 They are not well done because they do not address the legal
7 requirements of the act, and that is done intentionally.
8 Anymore than in -- oh, well, maybe they'll come for me, too,
9 on this one. To refresh the memory of the committee as to
10 exactly what Determination 1 is. And have any of you have
11 read the determinations or have -- can I see a show of hands
12 how many of you have actually read the law on what
13 Determinations 1 through 4 are?
14 (Show of hands.)
15 MR. KORVER: Okay. You may not remember all of them,
16 but you know they're rather lengthy, include a number of
17 specific points, and those semi-colons are connected by
18 "ands." So for those of you who have a legal background,
19 these are not options. These are requirements.
20 And before a vote is taken on each determination -- and
21 Jay will well remember this, and this may have been done when
22 you served. So check on me. They would repeat for the

Page 52
1 record an abbreviated version of the requirements. Sounds
2 like an intelligent thing to do. Before you vote on it, this
3 is what you're voting on.
4 Sounds intelligent. Sounds reasonable. Except that it
5 was a redacted version. And it's funny. The things that
6 were not included when they reminded you of what you were
7 doing were the things that are in the law, but that hadn't
8 been done. Coincidence, you say? I think not.
9 I think it's all part of a complex of behavior to hide
10 staff activism. So, in many ways, I think that everything
11 that's been said by these people so far really goes back to
12 Steven Vincent's article from, what, 12, 15 years ago? If
13 you haven't read it, is required reading because nothing has
14 changed in CPAC for that.
15 What I would like to see done, needs to be moved to
16 Commerce perhaps. What is the function of a Department of
17 Defense? Wage war, have a military. What's the function of
18 the State Department? Make treaties, make MOUs. It's their
19 job. It's in their nature. They can't help it. They want
20 to do this.
21 And the kind of people who work there want to do this.
22 They want MOUs, whether they're requested or not. Whether

Page 53
1 the terms are requested or not. If they're not requested and
2 they should have been, we'll make it up. And if they don't
3 like the decision of the committee, we'll ignore it.
4 And the only other thing that I would just make one
5 comment, and this is going back to Dr. Leventhal, this entire
6 discussion and the problem with the discussion and the
7 problem with CPAC is that it's coming in on the tail end of
8 the real problem. The real problem is not in having Customs
9 interdict these illegal shipments.
10 The problem is that once it's removed from the ground
11 that context has been lost and the money that we spend on
12 CPAC would be far better spent helping other countries
13 prevent the looting in the first place, not from making the
14 material legal once it hits our shore. And that context has
15 been lost.
16 MR. HOUGHTON: Thank you.
17 We have about 10 minutes for questions, and then we'll
18 move to Michael McCullough, if we can.
19 Peter, if you would interpret the questions?
20 MR. TOMPA: This lady right here.
21 (Audience question.)
22 MR. TOMPA: So, basically, if I understand, your

Page 54
1 question is what do you think of private citizens using their
2 own actions to repatriate artifacts? Is that right?
3 FEMALE SPEAKER: Using legal mechanisms --
4 MR. TOMPA: Legal.
5 FEMALE SPEAKER: -- to obtain items that are already in
6 America.
7 MR. FITZPATRICK: Peter, this is a very sticky and
8 interesting and important legal issue. In fact, I hope some
9 of my students will -- in fact, some of my students are
10 writing on this because it's the intersection of I think
11 we're talking about the same thing, the loans that went to
12 the Chicago museums many, many years ago and have been held
13 there in trust.
14 And they're here essentially either de facto or either
15 as a matter of practice or a matter of law under an immunity
16 idea, and that whole system of loaning and trusteeship of the
17 Chicago museums has run square into another aspect of the law
18 where there had been a tort suit and a judgment against Iran
19 for fostering violence in Israel. And there was a judgment
20 and the whole issue as to whether that judgment can be
21 enforced in this country by levying against the objects, the
22 Iranian objects that have been loaned to the University of

Page 55
1 Chicago.
2 I must say, I am agnostic on this issue because I don't
3 know enough about the interplay of an immunity statute. But
4 it in broad has very significant implications in terms of the
5 international loaning of art. A fundamental of an
6 arrangement for nations loaning art to this country is that
7 once it's here, it is immune from seizure, and that has
8 facilitated the international interchange of art.
9 That is a policy issue that is involved in this lawsuit.
10 I don't -- I know this is going to be a hugely important
11 issue. But I ain't the guy to give you expert legal judgment
12 in terms of where it's going to come out.
13 MR. OLIVER: And they've raised it --
14 MR. TOMPA: Richard?
15 MR. OLIVER: -- with the (inaudible).
16 MR. TOMPA: Correct. For the Gauguin show.
17 MR. OLIVER: -- it's been recognized (inaudible).
18 MR. TOMPA: Right. Richard, did you want to say
19 something?
20 DR. LEVENTHAL: Just very quickly, just wanted to make
21 it that I think the legal issues that are involved I'm not
22 going to touch upon. You brought them up there. They're

Page 56
1 very large and very important.
2 I do worry about the idea that heritage is equivalent to
3 money and that, in fact, one could convert heritage by
4 selling it and turning it into money so that, in fact, people
5 could be paid because of the judgment. That worries me
6 because I don't think there's a direct connection there.
7 So I would argue that heritage is, in fact, not about
8 money. It may be about ownership, but it's not necessarily
9 about money. And I think we have to be very cautious about
10 conflating those two points and those two concepts.
11 Heritage is what people identify as being important to
12 them in terms of their identity. To turn it into money
13 simply as a mechanism for that doesn't make sense to me.
14 MR. TOMPA: Andrew, you had a question?
15 MR. OLIVER: I have a comment, but I should phrase my
16 comment in the form of a question.
17 (Laughter.)
18 MR. HOUGHTON: You can raise your voice at the end of
19 the sentence.
20 MR. OLIVER: (Off-mike.)
21 MR. TOMPA: I'll just use my discretion to add something
22 to that. There's actually an exhibit. It's actually a good

Page 57
1 exhibit, and I would suggest people go to see it at the
2 Smithsonian. It's from Cyprus. It's archeological artifacts
3 from Cyprus.
4 But amongst the artifacts there is a whole grouping of
5 coins from the Bank of Cyprus Cultural Foundation collection
6 that Mr. Oliver is referring to, and these coins are
7 unprovenanced. They're purchased on the open market by the
8 Bank of Cyprus. They don't have the type of restrictions to
9 deal with when they purchase them that U.S. collectors do
10 now.
11 So, Mark?
12 MR. OLIVER: (Off-mike.)
13 MR. TOMPA: Okay. Do we have one more? We have one
14 more comment.
15 MR. KORVER: Because I'm under all sorts of secrecy
16 constraints and I can't afford the quality of lawyer that Jay
17 can.
18 (Laughter.)
19 MALE SPEAKER: Oh, he'll pay for it.
20 MR. KORVER: Well, you know, actually, it's the friend
21 of my brother-in-law is my lawyer. So it's tenuous.
22 So let's just talk about a country. I don't want to

Page 58
1 mention Cyprus. I state for the record I'm not talking about
2 Cyprus. I'm talking about another country. Let's say
3 country by the name of "Chocknotes." That wouldn't be good.
4 Another country.
5 And the question is asked, okay, you're worried about
6 coins and other metallic artifacts being removed from your
7 territory. Why haven't you outlawed the use of metal
8 detectors? And the representative of the country looked
9 straight at me -- oh, it's hypothetical. At whoever asked
10 the question -- and said, "Well, we can't do that. That
11 would hurt the tourist trade. All the British tourists come
12 and bring them."
13 So let's see. You don't want to hurt your tourist
14 trade, outlaw metal detectors, which would protect the
15 context of the information that the coins bring. But once
16 that context has been destroyed, you want American Customs to
17 be looking for your coins instead of nuclear waste, bombs,
18 and send it back to you? Yes.
19 And that is the kind of concerted international action,
20 best efforts by other countries, and that's it. These things
21 come down from their viewpoint not to these great issues of
22 the value of art and so forth. But well, you know, the

Page 59
1 tourist trade is really important to us.
2 But I wasn't talking about Cyprus.
3 (Audience question.)
4 MR. TOMPA: So if I was going to try to summarize that,
5 I'd say what is the view of the panel as to whether or not
6 the CPIA was written from sort of a collectivist view versus
7 an individualist view? And this is a of a philosophical
8 question than anything else. Or is it being implemented?
9 Does anyone want to say something?
10 MR. KORVER: It wasn't written that way, but it
11 certainly is implemented that way. You have no rights. Who
12 do you think you are?
13 Archeologists -- you know, some day, some day, we are
14 making such great advances in DNA technology, we will be able
15 to know -- we will be able to identify all of the people who
16 handled that icon, and we'll be able to establish all sorts
17 of information about trade routes and immigration patterns.
18 And that information belongs to the academic community. That
19 doesn't belong to your family.
20 MR. KISLAK: And they won't publish it.
21 MR. KORVER: Well, it takes a long time. It takes 40 or
22 50 years to gather that much information. So --

Page 60
1 MR. TOMPA: Richard, do you want to respond?
2 DR. LEVENTHAL: I won't get into the details.
3 (Laughter.)
4 DR. LEVENTHAL: Let me simply say I think your point is
5 an interesting one. It gives the construct. It is a point
6 that relates to the individual and the nation state. And the
7 nation states around the world have been identified as the
8 entity that controls land. I mean, that's what the United
9 States is, and we create laws within that land, within that
10 region that specifically relate to what goes on within that
11 land.
12 And so, I think we -- I understand what you're saying
13 about the individual. Even in this country, the land owned
14 by the United States government, by our government, they
15 control the heritage on that land. You don't. I don't.
16 Private property is different in this country than it is
17 other places.
18 But first of all, we have to understand that the laws
19 that exist in other countries are laws that are focused, come
20 from different traditions than our laws come from and have
21 developed over a series of years and centuries that relate to
22 a very different relationship between the individual, the

Page 61
1 government, and land.
2 That's not to say that that's worse, that's better, or
3 different. It's simply different than what we have in the
4 United States. So --
5 (Audience question.)
6 DR. LEVENTHAL: That's not tied into the CPIA. That
7 might be tied into the use of the National Stolen Property
8 Act or other things in relation to territory. So I think we
9 have to be very careful which laws are being utilized at
10 different times.
11 I think, in fact, that one of the things that we see
12 with the CPIA is, in fact, an attempt to work with other
13 countries to identify heritage that is important not just to
14 us as collectors perhaps or to museums as collectors, but
15 also to the people on the ground, the countries on the ground
16 or the people on the ground.
17 And as somebody who has worked in countries around the
18 world, I do see not only the type of destruction that occurs
19 with the looting of archeological sites or the theft that
20 occurs out of churches, out of churches that are active. The
21 material literally being ripped off the wall of these
22 churches. But I begin to see the type of impact that has

Page 62
1 upon the people on the ground and the desire for them to
2 protect that heritage and for their governments to protect
3 that heritage.
4 So I think we have to be very careful about the
5 individual in the United States wanting to purchase
6 something. When you go talk about the Greek family, the
7 details of is it 250 years old? How does it fall under CPIA?
8 How does it fall under the National Stolen Property Act?
9 That's a whole different set of games that I can't get into
10 specifically.
11 But I think it's just because the details are obviously
12 much more complex. But I think in terms of the CPIA, what we
13 are seeing is this attempt not simply to state from our
14 perspective what is important, but to see this as an MOU. A
15 memorandum of understanding on both sides. That, to me, is
16 the critical part of what the CPIA really is.
17 MR. TOMPA: We'll have more time for questions.
18 MR. HOUGHTON: Kate, go ahead.
19 MS. FITZ GIBBON: Well, I think Jim is also eager to
20 jump into this particular area. You know, when we talk about
21 drawing distinctions between different forms of law, I think
22 it's also important to, in reference to what Dr. Leventhal

Page 63
1 had to say, to say that the United States actually welcomes
2 the sharing of our cultural property with the rest of the
3 world.
4 We have long recognized that American creativity,
5 American ingenuity, and American art are one of the ways that
6 we spread our gospel, that it is a very positive way that we
7 are understood around the world. And that it's in the
8 interest of generally cultural understanding and in
9 harmonious relationships between the people of the United
10 States -- and we are an immigrant people, the world is our
11 cradle -- to interact through cultural contacts with the rest
12 of the world. It's the most positive face that can possibly
13 be put on international relations is through art.
14 We do restrict the ownership of only a very few objects
15 in the United States, and those are restricted through -- for
16 our Native peoples through NAGPRA. We ask that American
17 museums that receive or have collections of materials that
18 are kin to particular individuals and particular communities
19 go back to those individuals and those communities. But we
20 recognize that not in terms of sovereign states that can
21 demand things because they belong to the state, but rather as
22 ritual objects that are meaningful to those communities or to

Page 64
1 the bones of the people who are relatives.
2 So that we recognize an individual property right in
3 those materials, but we don't recognize simply a sovereign
4 right here in the United States. We don't exercise that over
5 our own cultural heritage. I think it's a bad picture of the
6 situation.
7 MR. HOUGHTON: There will be a moment, more than a
8 moment, at the end for questions to all people. So what I'd
9 like to do is to move on to our last session, which is really
10 sort of unique in the sense that it deals less with the
11 issues of policy and law than -- I'd like to ask the
12 speakers, if they could, to -- panelists to please remain
13 seated. We don't have to move around now.
14 I'll ask Michael to speak from the podium, if I can, if
15 that works.
16 It deals with consequence, and it has to do with the
17 effect on customs enforcement. Our panelist in this session
18 is Michael McCullough, who is a specialist with experience,
19 long experience in customs law, international trade matters.
20 He's counseled multinational companies on the
21 development and implementation of global policies and
22 procedures related to U.S. Customs and Border Protection

Page 65
1 regulations, international trade agreements, export controls,
2 economic sanctions constraints, anti-corruption rules, and
3 other government agency requirements. He is a former vice
4 president for compliance issues at Sotheby's auction house.
5 I'm here to welcome you. Michael, if you will speak
6 from the podium, and then at the end of that, I'll ask you to
7 join the panelists, and we'll take questions from everybody.
8 Thank you.
9 MR. MCCULLOUGH: Well, thank you to Arthur and the
10 institute for having me today.
11 I will be brief only because I've never heard such a
12 fine panel of speakers on these issues before, and I want to
13 hear more about this. So I'm going to yield most of my time.
14 I'm going to briefly go through some points. I'll take some
15 questions with the rest of the panel if there are any. But I
16 do want to hear more from them.
17 I should say quickly that Customs and Border Protection
18 or, as they're known, CBP, is given the what I would say
19 difficult task of enforcing the CPIA. Second, I don't think
20 that CBP has been very good at establishing policy guidelines
21 that would help implement the act. The act has been around
22 for a while, and the CPIA is something that needs some clear

Page 66
1 policy guidelines on enforcement from CBP. We don't have
2 that.
3 And third, I think CBP enforcement of the act has been
4 fair. However, ICE, or Immigration and Customs Enforcement,
5 which is the law enforcement arm of Homeland Security, has
6 been very aggressive. Let me go through these points
7 quickly.
8 On the difficult task given to CBP, there's a big
9 disconnect between the terms of the act and how property is
10 restricted from import and how the normal import procedures
11 allow for that restriction. So let me give you an example.
12 The act allows an MOU to be negotiated and a designated
13 list to be established by the State Department and given to
14 CBP, and CBP is asked to enforce the import restriction on
15 this designated list. The designated list is simply a list
16 of objects by category, and all of the objects, according to
17 the act, must have been discovered within the state party.
18 So in the example of Italy, for example, here's a list
19 of objects that are restricted from import. As long as they
20 were discovered in Italy, they're restricted. There's no
21 reference to value, and there's only reference to
22 descriptions and discovery.

Page 67
1 In the normal import procedures, CBP collects
2 information about the importation -- the name of the
3 exporter, the name of the importer, the tariff number for the
4 merchandise -- so not a description, a tariff number -- the
5 country of origin of the merchandise, and the value.
6 It's hard to marry these two standards. If you're just
7 looking at the designated list, they're lists of objects by
8 category. They do not fall into one tariff number that the
9 importer is supposed to report. In fact, there's multiple
10 tariff numbers that those objects can fall into.
11 So as far as CBP enforcing the restrictions, there is
12 not one place to look on the paper when you receive it from
13 the importer, saying here are the goods I'm bringing in.
14 Second, CBP requires country of origin of the merchandise,
15 not the place of discovery. The act is place of discovery.
16 The import documentation is country of origin. They're two
17 different things.
18 There has never been any written guidance from CBP on
19 this issue of how importers of cultural property are to deal
20 with this. The obvious answer is for importations of
21 cultural property to have a separate field or open up a field
22 in one of these standard forms where the importer of cultural

Page 68
1 property, if they believe it's covered by the act, can
2 declare where the property was discovered. So we'll have
3 discovery and origin, and that information will be on customs
4 forms.
5 Second, the discrepancies. CBP issued an informed
6 compliance publication in 2003 and 2004 on works of art. It
7 didn't include any of the issues I'm discussing right now.
8 In fact, many people in the trade lobbied for some
9 information to be put in that informed compliance publication
10 that would help us deal with these tariff issues, country of
11 origin issues. It wasn't done.
12 So the trade, the people who collect these objects,
13 people who -- museum collect them, collectors collect them,
14 there is no guidance out there for them on how to deal with
15 these issues. I mentioned the tariff numbers. There are
16 three different tariff numbers that cultural property can be
17 imported under. Only two of them are proper, but the third
18 one is the one that everyone else uses. So that's how
19 unclear these rules are.
20 On country of origin, as I said, the rules for country
21 of origin are where the object was manufactured. There has
22 never been any guidance from CBP how the find spot of the

Page 69
1 work could actually be used as the country of origin. There
2 are people in CBP who believe that, for cultural property,
3 the origin should be the find spot. However, that's never
4 been put out as guidance or as a ruling to the importers.
5 And last, as I mentioned, there should be changes to
6 CBP's electronic system when an importer transmits
7 information about an import to have more information about
8 the cultural property being imported.
9 Last, and then I'm going to yield the rest of my time,
10 as far as enforcement is concerned, on what I call the cargo
11 side, when you import something and report all that
12 information about your import to CBP, on the entry side or
13 the cargo side, the people who process the entries, deal with
14 the importers on a daily basis have been very fair in how
15 they deal with importers.
16 Generally speaking, the act requires that if you're
17 importing an object that could possibly be import restricted,
18 it can be imported if you can show that the object was
19 outside of the state party before the date the MOU was
20 signed. The act is clear that all that is required is a
21 statement from the exporter and a statement from the importer
22 confirming that the object was outside the state party before

Page 70
1 the date the MOU was signed. That object is outside of the
2 act. The act is not retroactive.
3 The problem is that although the act is clear, and Jim
4 could probably speak to this better than me, it is my belief
5 that that was the negotiated settlement that because many
6 objects don't have a documented provenance, the affidavit or
7 the declarations would be enough to import the object without
8 any other information.
9 MR. FITZPATRICK: Ashton Hawkins spent a year on behalf
10 of the museum community negotiating that with the
11 archeologist community and with the State Department.
12 MR. MCCULLOUGH: And on the enforcement side, I could
13 tell you today that that requirement is ignored. The
14 declarations are collected. However, the importer is asked
15 to provide additional documentation supporting those
16 declarations, at least in the trade that's true. I don't
17 know if that's true in the museum community, but in the
18 trade, for dealers and collectors, they are required to show
19 documentary proof that the object was outside the country.
20 The declarations are not enough.
21 And last, on the ICE side, so we have CBP or the cargo
22 people who deal with the entry of the object at the time it

Page 71
1 shows up at the airport. We then have Immigration and
2 Customs Enforcement, which is a law enforcement branch of
3 Homeland Security.
4 They are very aggressive. We've heard a lot of stories
5 of seizures, detainments. There has been a de facto sort of
6 rule at ICE that we seize first and we ask questions later.
7 And that's not coming from me. That's coming from people
8 who've worked in that agency. So that's concerning.
9 Now has the act been successful? I think to the extent
10 that the MOUs are out there, I think, generally speaking, the
11 import community, auction houses, dealers, collectors, have
12 been compliant. I mean, generally speaking, we don't see a
13 great deal of seizure under the act simply because most
14 people know about it and most people comply.
15 There are some people who don't get the message.
16 Recently, some Chinese objects I saw that was seized because
17 they were taken out of China after the MOU. But that's rare.
18 Compared to the rest of the enforcement actions we've seen,
19 it's very rare that anything is seized under this act.
20 So I think has it been successful? Yes, to the extent
21 that it can be. However, the big game out there right now is
22 seizures enforcement outside of the act, the National Stolen

Page 72
1 Property Act that was discussed before. The material
2 misdeclarations on customs forms. Negligent and sometimes
3 just mistaken misdeclarations could lead to a seizure.
4 And last, there are many cases where simply a form, a
5 commercial invoice might have a misstated country of origin,
6 accidental. That can be grounds for a seizure because under
7 Title 18, if you have a false declaration on a form given to
8 government official in the act of the import process, that's
9 ground for seizure.
10 So that's where the game is. It's on the sort of ICE
11 enforcement side. It's national stolen property. It's Title
12 19 misdeclarations. It's Title 18 misdeclarations. Very
13 rarely is something seized under the act, in my view.
14 That's all I have to say. I'll take any questions with
15 the rest of the panel. Otherwise, I'm passing it back.
16 Thank you.
17 MS. FITZ GIBBON: I had a question specific to you, or
18 did you want to start us off on general questions?
19 I heard from an attorney from another auction house that
20 they routinely now receive letters from the government of
21 Peru asserting that everything in the auctions upcoming are
22 illegal artifacts and are stolen. And usually 2 days before

Page 73
1 the auction and at which point, the auction house has to
2 respond by pulling all the materials from sale because
3 there's not enough time to determine, I guess, whether or not
4 something has been stolen or is legitimately being requested.
5 And I've also heard that the FBI has taken upon itself
6 as a friend of the country of Peru to visit these auction
7 houses and demand from them the information about the
8 consigner and for proof that the items were purchased prior
9 to implementation of the MOU, even though these items are
10 purchased here in the United States, the material is already
11 here. Is that something that comes up?
12 MR. MCCULLOUGH: Yes, I mean, it is routine for auction
13 houses especially, because they're the only fully public
14 sellers of cultural property, to receive requests from
15 countries like Peru, Guatemala, even countries that don't
16 have MOUs -– Mexico, Italy, Greece -- sort of the day of the
17 auction sometimes, the night before the auction to remove
18 material from the auction because it is the cultural property
19 of that government.
20 It's not even couched in terms of the act or violations
21 of this act. It's simply, "This is ours, and we want it
22 back."

Page 74
1 And I think, in all fairness, I think ICE and the FBI
2 have been relatively fair in how they've dealt with those
3 requests. However, it doesn't stop them from putting those
4 requests forward. So they do come at the last minute, and it
5 is unfair to a seller to do that, especially since it's such
6 a -- there's at least 30 to 45 days of lead time before an
7 auction catalogue comes out and the date of the sale.
8 So it seems unfair, absolutely, and it happens all the
9 time.
10 MR. TOMPA: Mr. Kislak?
11 MR. KISLAK: You've talked about customs, Mr.
12 McCullough. Can you tell us is there much smuggling still
13 going on of items?
14 MR. MCCULLOUGH: There are always people who do not get
15 the message, and that's true with any law. It's not specific
16 to cultural property. It's specific to anything you import.
17 There are people who don't understand the rules, don't --
18 either are naïve or don't want to understand the rules.
19 And there are objects that are seized because they
20 either violate the National Stolen Property Act --
21 MR. KISLAK: So that's not the question. There were
22 many items came into this country, mostly from South America,

Page 75
1 over the years through various much of them are things like
2 drugs and human beings and other things.
3 MR. MCCULLOUGH: Yes, yes.
4 MR. KISLAK: And there were many pre-Colombian artifacts
5 that were smuggled into this country. Has that stopped any?
6 MR. MCCULLOUGH: I think it's dramatically reduced.
7 MR. KISLAK: How do you know?
8 MR. MCCULLOUGH: I can't say that it's stopped
9 altogether. I hear -- I don't have any cases myself, but
10 I've heard of other cases where objects have been seized
11 because they have recently come out of those countries. So I
12 think it exists. However, I can't -- I don't think it's as
13 prevalent as it was 30 years ago.
14 MR. KISLAK: Pardon?
15 MR. MCCULLOUGH: I don't think it's as prevalent as it
16 was 30 years ago.
17 MR. KISLAK: Why? What makes you think it's not?
18 MR. MCCULLOUGH: Just because of sort of the instances
19 that I hear of. You know, what we hear of is we hear of the
20 enforcement side of this, and there is far fewer cases than
21 there were at that time.
22 DR. LEVENTHAL: If I could actually just speak to that

Page 76
1 for just a moment, I think there are two points to make. I
2 think, first of all, there is very clearly a relationship
3 that we can see certainly in Latin America between drugs and
4 antiquities in terms of both the people who are producing and
5 running the drugs, the people who are moving antiquities.
6 There are many stories I could talk about that, but I
7 think that's very clear. I think arms have also come into
8 play along those lines, that these three are, in fact,
9 interconnected.
10 I think one of the difficulties, however, is to be able
11 to say is CPIA or are any of these other laws being effective
12 in stopping looting on the ground? And the answer is, no, it
13 has not stopped. The difficulty then is to say what would it
14 have been without this law, and what is it today?
15 And that's where the difficulty comes in, in terms of
16 the sort of negative evidence. I don't know what looting
17 would have looked like if this law didn't exist or if other
18 laws weren't utilized like the National Stolen Property Act
19 in terms of stopping material from coming into this country.
20 What I can say is, number one, on the ground, I have
21 physically seen the continuation of looting. I have not
22 necessarily seen a dramatic increase, which may speak to the

Page 77
1 fact that, yes, there is -- this law is having an impact.
2 But looting is continuing. The destruction of
3 archeological heritage, the destruction of church heritage,
4 the destruction of historic heritage is continuing in
5 certainly Latin America, but I've also seen it in Africa.
6 I've seen it in China. I've seen it other places. So it is
7 continuing.
8 The difficulty of being able to try to say is it slowing
9 down? Is it stopping? That's -- how does one quantify that?
10 How does one deal with it? I don't know. But it is
11 certainly happening.
12 And it's rampant, and it's clearly happening not just
13 for internal consumption within these countries. It's
14 clearly happening at a level where the material is moving out
15 of the country into the market countries like the United
16 States, and the United States is obviously one of the bigger
17 market countries.
18 MR. FITZPATRICK: One of the difficulties is how one
19 deals with destruction of heritage that Richard is speaking
20 of that comes through just straight economic development.
21 There is, in fact, an immense amount of destruction of the
22 very sacred heritage you speak about that a nation will

Page 78
1 tolerate in the name, the cause of building a Three Gorges
2 Dam or building a subway system.
3 DR. LEVENTHAL: Or the Olympic village.
4 MR. FITZPATRICK: Or Olympic village. And so, this
5 destruction of heritage has a lot of causes, some
6 subterranean and some out in the open where it is national
7 policy to build a road, no matter what happens to the
8 heritage.
9 DR. LEVENTHAL: And clearly, as someone who is on the
10 ground, I understand those differences. And what I'm talking
11 about is not the stuff on the road. I know that's happening.
12 We all know that's happening, and that's a decision that we
13 make in the United States. What buildings do we tear down,
14 what buildings do we not tear down for the future?
15 But I do think that what I'm talking about is when I'm
16 in the jungle in Central America and I see a mound, a temple,
17 a huge structure that 12 months before had been intact, and I
18 go back and I see holes in it, tunnels in it, a complete
19 destruction of it, that is not some sort of societal decision
20 that we're going to develop this region. This is pure wanton
21 destruction to get pots out of the ground, to get jade out of
22 the ground to sell it and to try to make some money.

Page 79
1 Now do we need to talk about one of the ways -- and we
2 were talking about this earlier, Kate, that one of the ways
3 that we're dealing with heritage has to be about the
4 relationship of development and issues of poverty. Issues of
5 poverty are rampant in many of these countries, and we're not
6 going to simply stop destruction of heritage nor, in fact,
7 the growing dissemination of drugs simply by saying "don't do
8 it."
9 There has to be, and I think this is where cultural
10 diplomacy begins to be -- and developmental diplomacy begins
11 to come into play. That's very, very critical.
12 And just as a side note, this is the type of thing that
13 the Penn Cultural Heritage Center is focused upon, not simply
14 -- I mean, I think laws are important. But I also think it's
15 critical to think about how do we create processes within
16 communities for the desire to create a framework for the
17 preservation of heritage, both economically and culturally.
18 MR. HOUGHTON: I'd like to take a moment here, if I
19 could? We're supposed to move into a question and answer
20 session, and I love the idea that you will be talking to each
21 other. Not being a panelist, I feel I can ask a question at
22 this moment, if I may?

Page 80
1 Many of the points that you raise, Jim, have to do with
2 something I would call political archeology, although in my
3 judgment and experience, archeologists tend to go strangely
4 mute when it comes to trying to put restraints on countries
5 in which they work to curbing their own activities with
6 respect to internal sales, development, or other issues that
7 have a direct and seriously negative impact on sites itself.
8 American archeologists are at deep fault on this one
9 because they do fall silent in countries in which they work
10 for fear that their excavation permits will be pulled.
11 They'll no longer be able to be welcomed there, and they're
12 dead in the water as far as their own professional careers
13 go. We understand this happens.
14 How can we make this better for the countries of
15 concern? Is it really a political issue rather than one
16 related to the law?
17 With respect to the law, and I'd like to narrow the
18 discussion to only one issue, and that's really a
19 philosophical question that relates to the country that Jim
20 mentioned earlier, China. How effective can we say this law
21 is if our country chooses to restrict material from a country
22 90 percent of whose consumption and destruction of property

Page 81
1 comes from its own citizens, internal to its own country
2 borders?
3 I don't have a question for that. I don't know why we
4 accede to that country's request. I never have, never will.
5 How does it get laid upon us in a manner where the act
6 itself becomes the vehicle for compliance with a foreign
7 country's request when that foreign country is at serious
8 fault with respect to the destruction of its own culture?
9 Thank you.
10 MR. FITZPATRICK: Hear, hear.
11 MR. HOUGHTON: There must be an answer somewhere.
12 MR. FITZPATRICK: Applause from me.
13 (Laughter.)
14 MR. TOMPA: I think we have time maybe for one more
15 question, and I think we probably should wrap it up. Did
16 anyone else have a question? Yes, sir?
17 (Audience question.)
18 MR. TOMPA: So I guess the question is, is there broad
19 agreement that the statute, as written, is a good statute,
20 but maybe there are issues as to implementation? Is that
21 accurate?

Page 82
1 MR. TOMPA: Okay.
2 MR. KISLAK: No, not at all. The answer is no.
3 MR. TOMPA: Okay.
4 MR. KISLAK: Not at all.
5 FEMALE SPEAKER: No to the act or no to the idea that
6 it's not just implementation --
7 MR. KISLAK: Both. The act is so fouled up to begin
8 with. I mean, the act was a compromise. It was a camel.
9 You know what a camel is, don't you? It's a horse put
10 together by a committee. And this act doesn't make any sense
11 in the implementation.
12 We had a committee of 11 people. Three either
13 archeologists or anthropologists, and we had some pretty good
14 people, dedicated to their profession. We had three dealers
15 who were supposed to be dealers in antiquities
16 internationally. One of them was, dealt in African material.
17 Another was my friend Mr. Korver, who dealt primarily in
18 coins. And a third was a wonderful gentleman with whom I
19 became very friendly who is a leading dealer in modern and
20 contemporary art in Texas and a great guy who would rather be
21 out hunting rather than be at the meetings --
22 MR. KORVER: Don't forget fishing.

Page 83
1 MR. KISLAK: And fishing. And a great guy, but there's
2 no way he would find himself in a dispute with anybody at the
3 committee. It wouldn't be gentlemanly.
4 Then we had three members of the public. I was one. I
5 am a book collector and a map collector and a documents,
6 deeply involved in the early history of America. And after
7 we had obtained 2 of the 53 known copies of the Columbus
8 letter back to the King of Spain, which was published in,
9 what, 1493, there were 50-odd of them that are known,
10 published in the first 2 years. And we ended up with two of
11 them.
12 Before, we could get nothing earlier written about
13 America. So we began to collect Mayan vases, pots. It was
14 the only thing written really, a little bit of Aztec
15 occasionally, but it was the only written language in
16 America. He doesn't like this, but we began to collect it
17 and exhibit as part of the early history.
18 Now the other one of the three public members was a
19 wonderful lady from Washington who is a decorator and who is
20 a prominent citizen, and we had a third -- oh, the third was
21 a committed archeological supporter, whose income came from
22 dealing with the archeological projects in South America.

Page 84
1 Then the act called for 11, not 12. Why? I don't know.
2 You seem to question why the act doesn't make sense. Why
3 were there only two museum members instead of three? And why
4 were the two museum members on our committee both from an
5 archeological museum which demanded -- who were completely
6 subservient to the countries in which they were doing some
7 excavating, completely?
8 So, no, the act doesn't make sense. And no, the
9 implementation makes even less because it's conducted by
10 bureaucrats who at first I thought that, well, you're not
11 going to really find people to be staff people who are not
12 archeologists or not committed to this. And after a while --
13 because this is the nature of what they do. But after a
14 while, I became convinced by some of the people even at State
15 that there were people who are art historians who are not
16 necessarily from an archeological background, who could do
17 just as well in staffing the committee.
18 But the real question, as my friend Robert said, this
19 committee did not end up having staff report to it, which
20 gathered material and conducted the meetings. This staff ran
21 the committee, fed the committee whatever it wanted to feed
22 it, and used the committee to rubberstamp and to sign on

Page 85
1 these four determinations, and then on a fifth, which made as
2 little sense as the other four because the fifth, which was
3 the determining determination -- whatever that means -- said
4 that in view of everything else, we determine that this MOU
5 should be done.
6 I think that's what the fifth says. Do you know what it
7 says?
8 MS. FITZ GIBBON: Basically.
9 MR. KISLAK: Then there are the articles that appear
10 under Section 2 of something else, which include what is to
11 go into the MOU. And we've been told on some occasions, oh,
12 you guys don't really get involved in that. We'll ask you
13 about it, but we don't want to pay any attention to it.
14 We're going to put whatever we darned please into the Section
15 2 because that involves state secrets.
16 Sorry.
17 DR. LEVENTHAL: So -- go ahead.
18 MS. FITZ GIBBON: I rarely disagree with Jay on
19 anything. I do think, though, simply looking at the text of
20 the act, that it was a viable and a worthwhile compromise.
21 However, it has suffered from being implemented too rare and
22 far too broadly. I can certainly conceive of a situation

Page 86
1 where the act was meritorious and it was protecting the key
2 artifacts, the important and meaningful cultural heritage as
3 sought by the countries of origin.
4 And if it did so in a way that, as the act stated, does
5 not compromise the general interest in exchange of cultural
6 materials, that, to me, is a laudable -- it serves a laudable
7 purpose to protect archeological sites. Nobody is for
8 looting. I'm not for looting.
9 But in its implementation in so few countries, only one
10 in Africa, in seeking -- in making a request and in those
11 requests being granted so broadly that they tarnish this
12 ideal that was sought by Congress, and they warp the
13 intentions of Congress by including everything. That is not
14 serving the purpose of the act, and I certainly agree with
15 Jay in terms of its implementation.
16 Richard?
17 MR. KORVER: If I might make a few observations?
18 DR. LEVENTHAL: Go ahead.
19 MR. TOMPA: Why don't you let Richard go and then?
20 MR. KORVER: Yes, go ahead because I want to talk about
21 shipwrecks. So do your philosophical first.
22 DR. LEVENTHAL: If you don't want to listen to me, it's

Page 87
1 easier that way.
2 Just a couple of quick points because I think a lot of
3 what we hear is about how the staff is implementing this, and
4 I think this does go back to your comment. And so, I think I
5 agree that Kate has made the comment that, in fact, as a law,
6 as a statute, it makes some sense, and it is to try to stop
7 looting, and this is what we're trying to do.
8 We're all opposed to looting, I assume. I think the
9 idea that suddenly it has become so broad for each country,
10 you know, when I wander around the jungles in Central America
11 and I see looting, looters aren't saying, "I'm only going
12 after the stuff a meter down." They go after the stuff, they
13 destroy everything in the excavation.
14 And if they can't find it from one time period, and
15 usually if we see in the Middle East with tails and other
16 things, you're going through multiple time periods, and the
17 destruction that occurs is all throughout it.
18 And if they find in Central America at least, or in
19 Mexico, an Olmec thing that's 1000 B.C., they're very willing
20 to get that out of the ground and sell it as much as a Maya
21 object that might be from 800 A.D. And so, when I've seen
22 looting in Central America personally, or if I've seen

Page 88
1 looting in China or Africa, what I see is the destruction of
2 all of the material getting down to anything that people are
3 able to find that, therefore, is viable in terms of sale.
4 And so, the statement that only certain things are being
5 targeted by the looters, that's not right.
6 MS. FITZ GIBBON: That's not what I said.
7 DR. LEVENTHAL: You were looking at specific objects.
8 You want specific objects. This culture, what's
9 Determination Number 1 is that, in fact, all of these
10 cultures are being destroyed within a particular culture.
11 MS. FITZ GIBBON: Does the act say we're going to stop
12 looting at all costs?
13 DR. LEVENTHAL: No. It says that there is a problem,
14 and pillage is a problem.
15 MS. FITZ GIBBON: Right, and it says we should target
16 that pillage in these crises situations, and we should
17 provide --
18 DR. LEVENTHAL: No, that's for the emergencies, the
19 MOUs.
20 MS. FITZ GIBBON: We should provide -- okay, we should
21 provide remedies.
22 DR. LEVENTHAL: Okay. I'm not going to get into the

Page 89
1 individual details. What I will say, the thing that I think
2 is very important is to acknowledge that it's countries
3 coming to the United States with the MOUs. This is not the
4 United States saying we want to have an MOU with you. These
5 are countries coming to us and saying we want to have this
6 conversation.
7 MR. KISLAK: Can you prove that? Can you prove that,
8 Richard?
9 DR. LEVENTHAL: Can I prove that?
10 MR. KISLAK: Yes.
11 DR. LEVENTHAL: Yes, in some cases, the ones I know,
12 yes.
13 MR. KISLAK: You can prove that our bureaucrats have not
14 talked to other countries and suggested --
15 DR. LEVENTHAL: No, I can't. I can't, obviously.
16 MR. KISLAK: Thank you.
17 DR. LEVENTHAL: I can in some of the countries that I
18 work in, where I speak to some of the people who are
19 developing this, who are interested in MOU, the answer is
20 they are interested. They want to do it, and they want to
21 move it forward.
22 Were they told about it by somebody from the United

Page 90
1 States? It could have been me. It could have been somebody
2 in the office. I have no idea.
3 MS. FITZ GIBBON: Well, in terms of focusing on the
4 goals of the act, if we look to the focus, how Congress
5 pinpointed the need for cooperative activities by different
6 governments and we look to the breadth of the current
7 agreements as they're being put together, we are -- if we're
8 seeking cooperation with other governments, if we're seeking
9 to actually not just move this problem around the world, but
10 to actually work together with the source countries and with
11 the other market nations in order to prevent looting, aren't
12 we going -- when we go so far, aren't we precluding that sort
13 of cooperation?
14 MR. TOMPA: I think that's a good question. And with
15 that, I'll let Bob say 2 minutes or a minute, and then we
16 have to close out that shipwreck.
17 MR. KORVER: Do we still care about shipwrecks?
18 MR. TOMPA: Yes, we still care.
19 MR. KORVER: Over the years, I've sold, I don't know, $5
20 million or $6 million worth of shipwreck coins, most of that
21 value coming from Kip Wagner's, the Spanish treasure fleet of
22 1715. And I just had a small part of what he found at great

Page 91
1 cost.
2 Very interesting, all due respect to lawyers. When
3 someone finds a shipwreck, anybody who may have a potential
4 claim runs to their lawyers and finds some legal
5 justification to put a petition before the court. The boat
6 was made in our country. The cargo passed through our
7 country. We waved to the ship as it was offshore.
8 (Laughter.)
9 MR. KORVER: And this becomes very interesting. For
10 example, the Spanish treasure fleet of 1715, whose national
11 patrimony is it? You have metal, M-E-T-A-L, coming out of
12 the ground in Spain, and this is true for other Latin
13 countries. But we'll just stick with this. It's minted into
14 coins. And yes, they're coins, not quite the way that we
15 think of coins. It's more for accounting purposes so that
16 you know how much metal is being shipped back to the mother
17 country. It's in a Spanish fleet and it's done on behalf of
18 the Spanish government.
19 But a hurricane intervened. Ship goes down. The
20 Spanish government has had a couple hundred years to recover
21 their treasure and usually not always the case, but sometimes
22 in international waters, depending on how you want to define

Page 92
1 that. That's been redefined now. They choose not to.
2 Along comes an individual who does all the research,
3 locates the wrecks, and as soon as he starts to excavate the
4 great treasure, then all these other parties suddenly become
5 interested and want their piece of it. You know, is it
6 Mexican cultural heritage? Yes. The coins are Spanish dies.
7 Well, so it's kind of Spain. Kip lost family members in the
8 process. He certainly has blood invested in retrieving the
9 treasure.
10 It is amazing the thicket of legal issues that are
11 raised around this. And my favorite, though, are when you
12 come back to American ships, SS Central America, where you
13 have an American ship, registered in America, carrying coins
14 minted at the San Francisco mint, clearly a government
15 product, runs into -- by incidentally the captain was
16 Herndon. Your city of Herndon about 15 miles from here was
17 named after him.
18 And you know, jeez, everybody wants it. Insurance
19 companies that were distancing themselves from eight
20 generations of purchases of other companies back because we
21 don't want to have to pay any of those claims from the San
22 Francisco fire now are asserting, well, because that company

Page 93
1 that was purchased by the company that we purchased by the
2 company that we purchased by the company, they paid on that
3 claim. So, therefore, that treasure belongs to us now that
4 somebody else has invested the time and effort to raise it.
5 All I can say to you is good luck, and be prepared to
6 pay a great deal of money on this issue because the number of
7 legal arguments that can be raised is greater than the number
8 of coins that they're pulling off the ocean floor.
9 MR. TOMPA: And I think with that --
10 (Audience question.)
11 MR. KORVER: Yes, and philosophically, we're involved.
12 But to get back to the specific, is the CPIA is really not
13 your best bet for coins. There is, as Peter will be only too
14 glad to tell you, evidence that coins were intended to be
15 specifically included.
16 While they are a part of our greater world cultural
17 patrimony, and I would not argue that -- I would argue in
18 favor of that proposition -- they were intended to be
19 excluded from this act. Recently, through staff activism,
20 they've been coming back in. But unless you're planning on
21 finding a Roman ship off of Charleston harbor, you know, I
22 don't think CPIA is the act that you're going to make any

Page 94
1 progress on.
2 So --
3 MR. TOMPA: Well, I think this could be the topic for
4 our next CPRI seminar -- shipwrecks. I'll work with Arthur
5 on that.
6 We just have to get some funding. So if anyone wants to
7 write CPRI a check, I'm sure we could put together a seminar
8 on that.
9 But anyway, I'd like to thank everyone for coming, our
10 guests who made it here and listened to the panel. But
11 especially the panel, and particularly those who came in from
12 the wilds of New Mexico and Texas and Florida. So thank you
13 again.
14 MS. FITZ GIBBON: And Pennsylvania.
15 MR. TOMPA: Philadelphia.
16 (Laughter.)
17 (Applause.)
18 (Whereupon, at 11:49 a.m., the meeting was adjourned.)