The long summer of 2016

by Marc Masurovsky

I confess.

The absence of any postings on the plundered-art blog this past summer was as a direct result of the thrashing that we suffered at the hands of the American museum lobby, its auction house allies and a handful of well-established community groups which found it easier to support museum boards than claimants suing them to foster some form of justice 80 years after the genocide against the Jews of Europe.

It’s not as if the roof collapsed over our heads. But it felt like a sucker punch, one that we had not been dealt in quite some time.

What am I referring to here? The US Senate Judiciary committee and its processing of two legislative proposals critical to the claims process affecting art objects displaced in Axis-controlled Europe—S. 2763 known as the HEAR Act and S.3155.

Round 1-- June 2016

The HEAR Act (S. 2763) was the subject of a hearing on 7 June 2016. Helen Mirren, a highly talented and versatile actress, was the star witness for claimants seeking the restitution of their cultural assets on US territory. Senators, Republican and Democrat, fawned over her when it came time for photo ops and autographs. A Hollywood actress always plays well in Peoria. She could have sold used cars to these elected fools, the result would have been the same.

Members of HARP, myself and counsel, Pierre Ciric, suspected that something was up at this Senate hearing. On the Republican side, Senator Cornyn (Texas) uttered menacing words (seize this opportunity because there won’t be another one like it, or something to that effect), Senator Charles Grassley (Iowa) advised Senator Orrin Hatch (Utah) that he could introduce his other bill (in effect, S. 3155). On the Democrat side, Senator Charles Schumer, great friend of museum lobbies, trial lawyers and mainstream Jewish organizations, abandoned the hearing five minutes after it had begun. These minor events contributed to an almost surreal atmosphere in the Senate hearing room. Added to the mix, the absence of a genuine debate on whether or not looted art claims would be extinguished after the proposed “truce” or sunset period lapsed (by this, I mean that the HEAR Act’s lure was to propose that  current possessors could not invoke echnical defenses when defending against cultural claims, only up to 2026. After that date, who knows? It’s been the ambition, no, the goal, of the art market in the US, including museum directors and their boards, to extinguish all cultural claims that could be filed on the US market.) And, last but not least, the unfortunate and misguided collusion of certain American Jewish groups, like the American Jewish Committee in its mistaken belief that the HEAR Act was a great gift to claimants, considering that the AJC never did anything constructive to support cultural claimants. Period.

Round 2--July 2016

The onslaught by the museum lobbyists of the AAMD (Association of American Museum Directors) and the leadership of New York museums was finding its mark. Their success among members of the Senate Judiciary Committee relied on the fact that the Republican and Democrat senators and their staff members had no basic understanding of the massive losses suffered by Jewish victims of the Nazis, the complexities of burdensome and costly recovery in postwar America of art objects confiscated and misappropriated between 1933 and 1945. In short order, Republican Senator Orrin Hatch introduced S. 3155 and was able to have it processed speedily through the Senate Judiciary Committee with unanimous consent. Even Democrat Senator Pat Healey who had vehemently opposed its forerunner, S. 2122, felt that he could not pursue his opposition to the museums’ attempt to create a claims-free market inside the United States.

Round 3--August 2016

HARP tried to rebuild the successful coalition of 2012-2013 against Senate Bill 2212 in order to neutralize its successor, S. 3155. In vain.

The newest and most visible group promoting the protection of cultural heritage and antiquities in the Mideast war zone, the Antiquities Coalition, was nowhere to be found and seemed to ignore the very existence of these two pieces of legislation.

It’s hard to tell what exactly happened. But it could be that its full attention was focused on overseas recruitment of and negotiations with source countries as part of their campaign to forge new coalitions among all source countries, in order to safeguard antiquities and archaeological sites under threat of destruction and crack down on the illicit trade. Despite all of this maneuvering on the international arena, no attention was being paid to the domestic US market and its complex, often absurd and confusing legislative environment. Only ARCA, the Association for Research into Crimes against Art, has been a steadfast and reliable ally because its leadership understands the linkages between Nazi confiscated art, looted antiquities, and looted indigenous sacred objects on the international market.

One preliminary assessement would hold that the American cultural heritage community had failed to understand that S. 3155 affects them and their clientele, those constituencies and nations that they aim to protect. We don’t blame them, we simply nurtured expectations that ran higher than warranted.

As for the lawyers representing plaintiffs in art restitution and repatriation cases, most of them are based in New York, some are in Los Angeles, Boston, and Washington, DC. Some of these attorneys participated in the drafting and amending of both bills that sailed through the Senate Judiciary Committee and therefore aligned themselves with their framers.

One can only wonder whether their tacit or explicit support of S. 2763 and S. 3155 was a business decision aimed at adapting to new realities, that, in their view, Holocaust-era claims are fated to be extinguished by the callousness and calculated hostility of the art world’s leadership and their opportunistic political allies whose main objective is to make sure that history, the kind that affects people’s lives and their cultural assets, no longer enters the sanctum of cultural institutions on American territory. We hope that this was all a big miscalculation, but we won’t know unless we ask them and they agree to go on the record.

S. 2763 and S. 3155, combined with other recent legislative proposals (the so-called Engel bill) that passed through the House of Representatives to protect antiquities and restrict their importation into the US is what we call a cultural policy, one that the US government pretends that it does not have. And yet, those who are on the front line of enforcement have been waging an incredible and outstanding battle to suppress with the few tools at their disposal the resale networks of looted cultural objects operating on US territory. These government agencies—ICE, the FBI, even the BIA--are simply not helped by the failure of other government agencies and a confused and ignorant Congress, and the obstreperousness of museum leaders and their lobbyists in fostering an environment that encourages a general clean-up of the domestic art and antiquities market.

Instead of antiquities and cultural heritage groups, HARP found solace amongst anti-communist and conservative groups which understood that cultural objects plundered in other historical contexts  (like during and after the Bolshevik Revolution of 1917) would end up entering the US market without fear of being confiscated, thus embarrassing the lenders, like Russia, France, the UK, and many other nations with a lot of cultural skeletons to rattle in their display cases and exhibition halls. These groups’ enthusiasm at contributing to the fostering of a more ethical approach to the art market has contrasted sharply with the indifference of antiquities groups and their lawyers in this summer of 2016  Lesson learned.

Round 4--September 2016

Cultural claimants lost several major legislative battles between June and September 2016, for the first time since the Washington Conference on Holocaust-era Assets of December 1998.

Luckily for them, S. 2763 and S. 3155 do not appear to be hastily headed for a vote of the full Senate in the current session which ends on 7 October 2016. Operators like Senators Charles Schumer and Orrin Hatch may try to manipulate Senate procedures to have these two bills passed on voice vote with a quorum plus one in the Senate chamber. What with all of the nonsense generated by the Congressional resolve to hold the Saudis accountable for the attacks on New York, Pennsylvania and Washington, DC on 11 September 2001, budgetary issues and the presidential election campaign, one can only hope that these votes will be postponed. But anything is possible.

There’s a war to fight out there and the stakes are high.

For references, please consult past articles on the plundered-art blog:

plundered art: S. 2763: Restitution kabuki plundered art: Highlights from Senate Judiciary Committee hearing ...

plundered art: The American museums, the US Senate and the art ... plundered art: Revisiting Senate Bill 2212, Part Two

Thoughts about Americans and the Third Reich

by Marc Masurovsky

Volumes could be written about this vast and complex topic. Here are some elements to think about and jump-start the discussion:

1/ the United States and Germany have been joined at the hip since at least World War I. Lawyers, scholars, businessmen, entertainers, artists, art historians, museum directors, curators, government officials, religious figures, bankers, diplomats—their mutually beneficial ties and exchanges have run deep before, during and after the Third Reich (1933-1945). That might explain why J. Edgar Hoover, legendary former director of the FBI, was paranoid (he was about everything, actually) that a fifth column of spies, agitators, and subversives could easily form on American soil without being bullied into serving the Reich. (Note: this line of thinking applied just as well to the perceived "communist threat") In his view, there were more than enough volunteers who would either remain neutral or engage in activities that would support National Socialist policies. In a state of war, that was potentially treasonous behavior. Henry Morgenthau, Franklin Roosevelt’s Secretary of the Treasury, thought alike. Well aware of the interlocking interests that bound American and German businesses, Morgenthau was convinced that the American private sector would have to be held on a tight leash to prevent it from aiding Nazi Germany and from profiting from its discriminatory policies.

2/ American banks and companies have invested heavily in Germany. At Hitler’s rise to power, there were well over 300 American companies active on German soil. By the time the United States entered WWII in December 1941, that number may have dropped somewhat but not by much, many businessmen preferring to “wait it out” and hope for the best. That display of business pragmatism towards National Socialism allowed those companies to continue producing for the Reich either as wholly owned subsidiaries of the American parent or as companies with a majority German interest on their boards. Since the German government forbade profits from being repatriated to the US—the enemy--, those profits were set aside or, in some cases, cleverly concealed and transferred with the connivance of German officials to holding companies established in “neutral” countries where the American company held an interest. After WWII, these same American businesses sent their representatives into the various Allied zones of occupation to inspect their subsidiaries and tally up accounts receivables. Business as usual.

3/ No one knows exactly how many American citizens remained in Europe after 1933 and especially after September 1939. The State Department, through its consular offices, received thousands of requests for exit visas, most of which were not honored for quota reasons. What happened to what we believe were thousands of Americans from all walks of life stuck in every country that fell to the Nazis and their Fascist allies? Special camps and detention facilities were established for Allied enemy nationals—British and American—in France (Vittel is the most well-known) while the concentration camp of Gross-Rosen had a sub-camp where American actors, singers, and musicians were deported to, most of whom were African-American. If you look closely enough, you will find the names of American citizens typed on deportation lists from Western Europe, Italy, Austria, and Eastern European nations.

4/ for those American citizens who remained relatively free of movement throughout the years of Nazi rule, we know very little about their activities. However, we do get hints of what they were up to, like in France, where some frequented the Paris auction house of Drouot and acquired art objects which were later donated to American museums. American banks like Morgan and Chase invested in joint ventures involving the French real estate market under Vichy as it was being aryanized.

5/ In the postwar years, the discourse on Americans and the Holocaust has been a truncated, highly sanitized story. American soldiers and officers, traumatized, returning from the front, have testified about the horrors they witnessed, or rather, their aftermath as their units liberated one camp after another.

6/ After 1945, US government officials might have been upset about the role that American businesses played during WWII, but it was essential, especially in light of the incipient Cold War, to keep the nation on an even keel and not penalize opportunistic businessmen too harshly, or at all, for their dalliances with Nazis and Fascists. That might explain why no American CEO or company was brought to justice in the postwar years for acts of collaboration and abetting plunder. Those whose behavior was most conspicuous received private reprimands, but no more (Chase Bank and Morgan, for instance.). In liberated countries of Western Europe, American subsidiaries might have incurred fines for “wartime illicit profits.” Coincidentally, no sooner than WWII had ended that American intelligence priorities (equal to those of the British and the French) focused in part at using the private sector as a Trojan horse of sorts against real and perceived threats, making businessmen and entrepreneurs, partners in intelligence collection.

7/ And what of non-Jewish American survivors of internment in Nazi concentration camps, prisons and makeshift "confinement centers" set up in Axis-occupied territories? It would be fascinating and very moving to hear the stories of the many jazz and blues musicians who endured and survived the nightmare of Nazi concentration camps.

8/ By the end of 1946, the US had lifted all of its wartime restrictions on trade with Europe and the Far East. By the early 1950s, the Allies had settled financial scores with the neutral countries for having profited from trade with the Axis powers, especially as pertains to the recycling of gold looted by the Third Reich. And then, business resumed.

And so it goes…