Friday, October 26, 2018

An Epic Legal Battle

The Long Legal Contest Against Arbitrary Import Restrictions

An Epic Battle: U.S. v. 3 Knife-Shaped Coins

Peter K. Tompa, of Bailey & Ehrenberg PLLC, Washington, D.C., lead attorney in the ACCG test case.

Upholding the CPIA: Congressional Mandate or Unlimited Executive Authority

A lawsuit involving fifteen coins from China and Cyprus, none very beautiful or valuable, began as a test case in 2009, and has been vigorously contested at every one of its many steps by the Ancient Coin Collectors Guild (ACCG). 

An important goal of this test case was to challenge the State Department’s actions in going far beyond the definitions and requirements enacted by Congress for import restrictions under the 1983 Convention on Cultural Property Implementation Act (CPIA).

The result, after nine years of litigation, is that the U.S. Court of Appeals for the Fourth Circuit affirmed the original seizure of the coins, and also re-interpreted the plain language of the CPIA, by emphasizing ease of enforcement over due process and the clearly defined legal requirements in the original legislation.


I won't go into all the details of the history and complex legal issues of this landmark case, which are ably and clearly presented in the Cultural Property News article by Peter Tompa. 

Instead I will comment upon the results achieved, and their significance, and why this case was of such great importance to all collectors of antiquities - not limited to, but importantly including, ancient coins - everywhere.

I'm able to do so with significant background knowledge of this case because I was intimately involved in the initial decision to begin this legal initiative, and in much of what went on behind the scenes. This was, essentially, a dramatic and tense legal battle between an unscrupulous bureaucracy with a secret agenda, dedicated to using every possible legal and regulatory artifice to advance that ideological agenda, and a much smaller collectors' rights advocacy, dedicated to requiring the law to be interpreted as Congress intended it to be.

Every important participant on both sides of this battle knew very well that the key personalities in the deliberations and proceedings involved in the drafting and enactment of the 1983 Convention on Cultural Property Implementation Act did not intend or expect that it would be twisted into a tool for relentlessly and zealously pursuing the ideological objectives of the Archaeological Institute of America, without regard for legislative intent or anything resembling fairness and equity to all concerned interests, as Congress clearly expected. 

That was, however, the end result of appointing archaeologist Maria Kouroupas to oversee the advisory committee of experts created to review and comment upon all requests for US imposition of import restrictions on cultural property. In hindsight, that end result could have been foreseen. 

In 1983 however, none of the key personalities - including those in the State Department - realized the extent to which archaeologists think of "protecting the archaeological record" as a sort of "higher law" that takes precedence over all considerations of impartiality, fairness and equity in administering the regulatory responsibilities with which they are entrusted.

What this test case did achieve was to force the bureaucrats of the Cultural Heritage Center to understand that everything they did was being scrutinized and analyzed by very competent observers who were out to publicly expose their private agenda and their disregard for observing fairness and equity in administering the law, to all concerned interests, as Congress had intended. 

One way to describe the effects of this steadfast, relentless opposition is to draw an analogy to a well-known military operation. 

At the beginning of the 1864 campaign of the Army of the Potomac, a Northern newspaperman asked General Grant how long it would take to reach Richmond. Grant responded airily, ‘About four days–that is, if General Lee becomes a party to the agreement; but if he objects, the trip will undoubtedly be prolonged.’

It took Grant two months of extremely bloody battles, during which Lee's army inflicted more casualties upon the Army of the Potomac than the total strength of Lee's army at the beginning of the campaign, to reach Richmond - and then a siege that lasted nine months began. 

In April 1865, superior resources ultimately prevailed and Lee was forced to abandon Richmond. His outnumbered, exhausted army was unable to elude the Union pursuit, and ten days later Lee surrendered at Appomatox.

The Union won the Civil War, and at this point, many would be inclined to think that the Cultural Heritage Center bureaucracy led by Maria Kouroupas has won the Cultural Property War. That isn't over yet, and the test case is still being pursued by appeal. 

The tremendous resistance put up by the gallant Army of Northern Virginia in the 1864 campaign and the later siege became an enduring part of US history. At the surrender ceremony, the Union army treated the dejected Confederates with great respect. An unexpected and much appreciated formal military salute expressed deeply felt admiration for their legendary fighting qualities.

The legal battle against the immense resources of the State Department has, from the beginning, likewise been a struggle against impossible odds. The question was, whether to delay the onset and limit the extent of the threatened isolation of the US antiquities market from the rest of the world. 

Ten years after the decision to begin the struggle was taken, it is apparent that much was achieved. As unpleasant as the import restrictions are, they would have been far worse and come sooner without that effort.

The legal parameters and issues involved have been clarified and in part tested, although the State Department has thus far prevented the "day in court" sought by the collectors' rights advocacy. 

This clarification, and the manner in which an open and fair legal hearing has been evaded and denied, are important grounds upon which a case can be made for future legislative action to restore proper respect for Congressional Mandate instead of unlimited executive authority.