18 June 2016

Highlights from Senate Judiciary Committee hearing held on 7 June 2016 regarding S. 2763.

loosely transcribed by Marc Masurovsky

Note: The questions and answers might not have been rendered using those exact words. Hence, in many instances, the gist of the exchanges between Senators and witnesses has been provided as carefully as possible. Should there by any misrepresentations, they are my sole responsibility.


12:11 pm: After waiting in a hallway for nearly three hours, we are inside a near empty meeting room inside the Dirksen Building waiting for the inevitable. The lobbyists for the art market are huddled in a corner, dressed in appropriately expensive outfits, mostly dapper men, not a single strand of hair out of place, caricatures of male fashion models.

Act One: The Testimonies

The hearing began at one in the afternoon.

Senator John Cornyn (R-Tex) declared that heirs should come forward to achieve just and fair solutions. The proposed legislation sets up a period of six years during which they must discover their objects and claim them. It eliminates laches and statutes of limitations. However, « claimants are given a chance but that chance should not last forever. »

No sooner than he entered the hearing room, Senator Charles Schumer (D-NY)  announced that he was going to leave in five minutes because of a lunch. Before leaving, he announced that there is work to be done, reclaiming art that had been stolen, even though the statute of limitations has passed. Schumer asked Ronald Lauder about the actress, Helen Mirren, who had played the role of Maria Altmann in her historic bid for restitution of her family’s Klimt paintings held at the Belvedere in Vienna. 

Schumer expressed his gratitude to the movie « Woman in Gold» which paved the way to give claimants their day in court. Morally it is the right thing to do. S. 2763 will be a drop of justice in an ocean of injustice. He also took the opportunity to take full credit for S. 2763 and asked that the bill be passed as soon as possible. Then he left the room.

Senator Ted Cruz (R-Tex), in his introductory remarks, evoked D-day, the liberation of Nazi camps, the discoveries of stolen treasures in Europe, « not just spoils of war, » but the fruit of Nazi policies stretching back to 1933. « The Nazi goal was to dehumanize the Jewish people, leading to the Final Solution… We are still trying to cope with the consequences of the Holocaust. Today it’s about looted art, the ‘greatest displacement of art in human history.’ Many works found their way into American museums, often by happenstance. It has been difficult for claimants to prove their losses, due to absence of documentation.

The HEAR Act (S. 2763) is intended to ease the burden on families by establishing a six year suspension of the statute of limitations, during which cases can be filed on the merits which will not be thwarted by technical legal defenses. Families are encouraged to come forward and make known their claims and steps taken to achieve fair and just solutions (Washington Principles), resolve claims expeditiously based on the June 2009 Terezin Declaration. Senator Cruz acknowledged that there were many issues « on which we disagreed. However bipartisan cooperation made the bill a reality. »

Senator Cornyn left the room.

Senator Richard Blumenthal (D-CT) declared that this hearing is a milestone to ensure that this Congress speaks on the side of justice. He discussed his family’s escape from Europe and the loss of life for those who remained behind. « Time is long past to return these ill-gotten gains of that unspeakable horror. » Echoing Cruz’s words, he mentioned that the destruction of documentation had aggravated the theft. Statutes of limitations should not be invoked to deny justice.

It is already starting to feel like theater.

Chairman Chuck Grassley (R-IA) thanked the witnesses for appearing. « We need to fulfill our commitment to return the artwork to its rightful owners. And when the senators are ready to place the bill on the agenda, we will put it on the agenda. » Strong words whose import we did not realize at the time because of Grassley’s close ties to the American museum lobby.

The witnesses were sworn in.

Ronald Lauder, representing the World Jewish Restitution Organization, indicated that he represented Jewish people everywhere. After the war, art theft was continued by governments, museums. People who should have known better participated in this. That’s what brings us together today. How do we render just and fair decisions for art works in dispute and still missing ? We’d like to see every piece of art returned to rightful owners. A confiscated work of art may have been purchased with good intentions, without knowing that it was stolen.

The United States committed itself to recover works of art that had been looted, by endorsing the Washington Principles and the Terezin Declaration.

According to Lauder, there are museums in the US which run the clock to allow the statute of limitations to kick in in order not to return the art. They feel no need to uphold the Washington Principles [of December 1998].

The HEAR Act provides that claims should not be denied because of the passage of time and especially because they would not have had knowledge. Once the claimants have knowledge, they should not wait and they should file their case within a six year period to be heard without technical defenses used against them.

Why should we care now ? We should care deeply. Denying the justice is wrong and perpetuates the crimes of the Nazis. Behind every stolen work of art, a murder was committed. If people are interested in justice, they should support this legislation.

Helen Mirren recounted Maria Altmann’s saga. As an actress, Mirren had to go on her own journey and put Altmann’s memories in her mind. She read a lot of research material, to render the absolute reality of those days when Altmann lost everything and had to flee Vienna. In her view, lack of transparency, lack of access to information and the lack of assurances that they could have their day in court discouraged the victims. « The right thing to do is to return the art to its rightful owner. The act of removing the art by the Nazis was unconscionable. »

In her words, "Restitution is more than reclaiming a good. It’s a moral imperative. Art restitution has very little to do with financial gain, it is about retaining their (the Jewish people’s)history, their culture, their memories and most importantly their families. Maria’s story is a story of noble justice, it deserves to be told by future generations."

And finally, Mirren hit it on the nose :

« Art is a reflection of memories. Dispossession loses memories. It’s like having no family. Lives of so many people could be rejuvenated. Greed, self-interest will always be with us. Justice is so much more difficult. We all dream of justice. We have the ability to make changes today. »

Monica Dugot, a senior executive at Christie’s auction house in New York took no position on the HEAR Act. However, she shared her personal experiences as a restitution advocate while at the Holocaust Claims Processing Office in New York and then as a senior executive at Christie’s overseeing restitution matters. She made a point of emphasizing that smaller looted pieces were recirculating and that was inevitable. And yet the emotional value of the art works is beyond estimates.

Thorough due diligence protects Christie’s reputation on the market. Its role is that of an intermediary or a broker, a neutral third party between current possessors who consign their objects for sale and those claiming the pieces as their stolen property. The choices are either restitution or a negotiated financial settlement which might lead to the sale of the piece.

« We vet all pre-1945 works that pass through our hands. » Although Christie’s resources are limited, it has handled at least two hundred claims. Ms. Dugot indicated that Christie’s preferred negotiated settlements.

Agnes Peresztegi, representing the Commission for Art Recovery, is committed to assist to the restitution of looted art. In her words, « expropriation is a form of genocide. Works of art removed during an act of genocide should be viewed as permanently tainted. »

The burden has been too often placed on the claimant to prove ownership. She made a point of emphasizing that the HEAR Act would not be retroactive.

It should not extinguish claims in States which are more sympathetic to claimants.

Simon Goodman, a relative of Friedrich Guttman whose vast collection of art works and objects of art was plundered during the German occupation of Holland and France, has spent twenty years « trying to recover Friedrich’s collection. » When his father died in 1994, Simon discovered the correspondence detailing the often-fruitless attempts to recover the family’s objects. The Dutch government wanted to be paid before returning any art work or it simply absorbed looted objects in Dutch state collections.

Simon’s quest began in 1995. In late 1995, a pastel by Degas was found in Chicago. The current possessor, Daniel Searle, claimed that the statute of limitations had run out. He had exercised no digilence at the time of purchase.  In 2002, he found a Nazi inventory of each room in his parents’ house.

Act Two : The Questioning

Senator Cruz: Why are we still working on this ? 

Ron Lauder :  Many records were destroyed. Although families had no records, museums had records and they stonewalled. Lauder wonders whether the hearing would have taken place had the movie [The Woman in Gold] not been made.

Senator Cruz: Has the US lived up to its commitments to resolve claims expeditiously ?

Ron Lauder : Yes and no. Museums tend to stop restitution if the piece being claimed is one of their best pieces. The US has the will to live up to its obligations and the HEAR Act allows the US to do so.

Senator Blumenthal: He credits the movie "The Woman in Gold" to provide support for this cause. 
The HEAR Act is an exceedingly modest proposal for thousands of people who have been waiting to present their case. I felt anger and outrage at the museums and other reputable isntitutions which have invoked these technical obstacles. I won’t name them. They have been complicit in this injustice. Indiretly aided and abetted the thuggery of the Nazis. Made a pretense of following the rules of morality. Do you think we can enlist museums to be on the right side of justice ?

Ron Lauder : yes, you can. No museum wants to go on hanging on to Nazi-looted art. If we can, we win the battle. Too often, these museums have made it so expensive for claimants to do the work. We’ve had dozens of claimants complaining that they were making it very costly for them to recover their objets. This HEAR Act levels the playing field.

Agnes Peresztegi: Museums take the claims to the legal department and their main duty is to preserve their collection. They feel hesitant to even review the claim. If the HEAR Act could remove this obstacle, museums would be more encouraged to resolve the claims.

Simon Goodman : We acted as soon as we could but gathering evidence was the main uphill battle. Most of it became accessible at the end of the 20th century. It’s a point of honor for me to resolve what is outstanding.

Helen Mirren : As far as I understand, Maria Altmann realized after reading some press articles that something was possible to recover. It took a decade. Very long and difficult battle. She had the advantage of a young lawyer [E. Randol Schoenberg] who came on board. Even if she had wanted to, it would have been difficult. We owe Maria Almann a great deal.

Ron Lauder : 12 years and 4 million dollars of travel and time.

Senator Lee asks a question about laches.
Agnes Peresztegi : When Holocaust survivors came to the US, they were not ordinary citizens. It would be unjust to impose a different level of due diligence on Holocaust survivors.

Senator Lee : laches is an equitable doctrine. The application would be inequitable ?

Agnes Peresztegui : Yes. Theft is an issue of state law. Not federal law.

Senator Lee : Why is this an appropriate use of Federal law ?

Agnes Peresztegui : California tried to address this issue and enacted a state law which addressed Holocaust claims, which was struck down by the 9th circuit, ruling that it could only be addressed by Federal law. The argument was grounded on foreign policy of the US since 1943.
Senator Lee : Is it impossible for any one state to recognize this rule without engaging in foreign policy ?
Agnes Peresztegi: Yes. …The US has a consistent policy regarding the restitution of Nazi looted art.

Senator Lee : this law would not preclude us of doing the same for victims of other genocides ?

Agnes Peresztegi: No, it would not.

Senator Cruz has left the room.

Senator Coombs: how would the HEAR Act support your family if it had been passed when you had filed your claims ?

Simon Goodman : We won the first motion to dismiss. But the family felt that we should settle out of court because we did not know what the outcome of litigation would be. We were on strong moral ground and on weak legal ground. …This bill would be a huge help and establishes a moral record.

Senator Coombs: what info would be different under the HEAR Act ?

Agnes Peresztegi: The HEAR Act will bring certainty. It makes clear where the law stands.

Senator Coombs: are there other ways of delays ?

Monica Dugot: The market needs to convey good title and there should not be any taint on the object. Without making any comments on the bill, the template in place at Christie’s is to look at the facts, case by case.

Senator Coombs: What about ISIS looting cultural artifacts ? What impact does this law have on the appreciation of cultural treasures worldwide ?

Helen Mirren : This is happening to people as we speak. Their lives are taken as well as their history. What affected me the most is the idea of losing all trace of your existence on this planet, even if you survived, nothing, no one to talk to, no pictures, the disappearance of simple human things, this is why this has nothing to do with money, reclaiming one’s place in history.

Senator Tills: How many objects are outstanding ?

Ron Lauder : 2-300,000 major works of art are still outstanding. The lesser ones, we will never know.

Senator Tills : How many objects have you recovered ? and prospects to identify the others ?

Simon Goodman : There is a lot of searching left to do. One important painting entered the NY market in 1955. I have recovered and/or received settlements on 20 ptgs. Received 200 antiques. And there was a recent settlement on two golden clocks with Baden-Wurttemberg in Germany.

Senator Tills : What does a settlement look like ?

Simon Goodman : A settlement is for 40-50% of the value. Weigh that against the cost of going to court. For a painting in Switzerland, we have not a leg to stand on. The consignor is willing to provide 50% of the value.

Senator Tills: What is the Difference between legal systems in the US and Europe.

Agnes Peresztegi: After statute of limitations runs out, title is transferred to the current possessor. In the US, title does not pass. European nations set up standing committees because they could not change the laws. In the US, most of the museums are privately-owned. In Europe, they are publicly-owned. Ministries of culture decide on how museums behave. The US does not have such a government body. Hence you need to change the law, and you can.

Senator Klobuchar (D-MN): She invoked the case of a Leger painting at the Minneapolist Institute of Arts. It took 10years to do the research. Can one reduce that time ?

Monica Dugot : Monica would not comment on the law and asked « Aggie » to intercede.

Agnes Peresztegi: in those days, there were hopes that one central database would answer anyone’s question. Today, there are more digitized data available.

Senator Klobuchar: has international cooperation improved ?

Ron Lauder : Swiss stonewalled. Regarding the Leger, people knew it was stolen. Knowledge is one thing, acting on it is another.

Senator Klobuchar: I am impressed you knew about the painting

Ron Lauder : I am a collector.

Senator Klobuchar: Really ? Just joking.

Helen Mirren : I am here because—supposing someone came to my door, walked into my house and took everything that I owned, forced me to sign a piece of paper handing it over. It was wrong then and it is today. I don’t see any difference. I feel very strongly about it.

Senator Hatch : USHMM’s website to reflect on the lessons of the Holocaust. The HEAR act is part of that legacy. The job is still not over.
Ron Lauder : A major part of the Nazi regime’s mission was to destroy/confiscate art, use the art to make a new Museum in Linz. Art was a critical part of the program.

Senator Franken: He makes reference to the Prague conference of June 2009.
What other measures should be passed to ensure that the US facilitate the return of looted art to rightful owners?
Agnes Peresztegi: We need more info about what museums hold. Museums only display 1/3 of their collections. Museums in the UK undertook to digitize all of their paintings and sculptures. You can publish all the objects in a museum. If there is suspicion in the UK, one can consult the images. Why shouldn’t we know what these museums hold ? There are many creative ways by which to move forward.

Senator Franken : If there were digitization of this info, it would be useful. Christie’s returned objects to many different claimants, how have other parties been involved in misapproprations ?

Monica Dugot : We look at provenance for everything that comes in. A lot of the work that has not been returned is in private hands. We emphasize that every object has clear provenance and if there are questions, we have to look into the history of ownership. It’s only been 10-15 years that provenance has been highlighted. Published sources might be erroneous, so we have to look at everything. The info out there is voluminous and not centralized. We work on deadline which is a problem for us. We have to do thorough provenance research in a matter of weeks. Or a month.

Simon Goodman : MFA&A [Monuments Fine Arts and Archives] could not deal with individual claimants. They returned what they had found to the countries where the objects had been stolen.

At the close of the hearing, Senator Cruz indicated that Chairman Grassley offered to expedite the legislation through the committee. He hoped to see some justice after 7 decades. The record will be kept open for 5 business days until June 14, 2016.

The end (for now).