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

S. 2763: Restitution kabuki

an opinionated piece by Marc Masurovsky

Note: The title was inspired by a close friend who is intimately involved in art restitution matters.

The authors of Senate Bill 2763, the “Holocaust Expropriated Art Recovery Act” (HEAR Act), have as a major sponsor Republican Senator and former presidential candidate Ted Cruz. Another Republican co-sponsor is Senator Cornyn. Neither of them has been known to utter a word or express a single public thought about Holocaust claimants and/or about Nazi looted art. Democratic Senator Charles Schumer of New York, who is no friend of art restitution advocates, is a co-sponsor of S.2763 with Senator Blumenthal from Connecticut.

On the afternoon of Tuesday, June 7, 2016, the Senate Judiciary Committee held a public hearing regarding Senate Bill 2763. The witnesses included Ron Lauder speaking on behalf of the World Jewish Restitution Organization (WJRO), Monica Dugot of Christie’s, Agnes Peresztegi of the Commission for Art Recovery, Dame Helen Mirren, actress noted for her role as Maria Altmann in “The Woman in Gold”, and Simon Goodman, one of the heirs to the collection and property of the late Friedrich Gutmann.

Let’s deconstruct the title of the proposed bill:

Expropriated Art: is “expropriated” a legal term or just an evocative word to denote forcible removal without the owner’s consent? It might have been selected so that an acronym could be used to publicize the bill—in this case, HEAR. What if we had used displaced or misappropriated as substitutes for “expropriated”? Then we would get HDAR or HMAR. Not very elegant.

Does this proposed legislation cover all acts of illegal misappropriation of Jewish-owned cultural assets between 1933 and 1945? Or does the proposed legislation only cover those instances where a “public agency”, writ large, orders the “taking” of private property from Jews? Depending on how you answer these questions, the field of objects covered by this proposed legislation could change rapidly.

Recovery: it’s a word like any other, but does it actually mean “restitution” or simply the act of “recovering”? Merriam-Webster defines “recovery” as “the return of something that has been lost, stolen, etc.” What would have occurred if the Act had been called the “Holocaust Expropriated Art Restitution Act”? It would have been far more specific and more claimant-friendly. Then, the framers of the act could not be accused of playing footsy with the art market by keeping the wording ambiguous, because “recovery” is an ambiguous term, much as recovering from addiction leaves room for a relapse. Why ambiguous? Well, US troops “recovered” looted art throughout "liberated" Germany and Austria. Did it mean that it was “restituted”? No, it simply meant that it had to be shipped to countries where local officials would then “restitute” the objects to their rightful owners, or not.

Why the ambiguity? Is S. 2763 really a hat tip to the art market, a flirty wink to indicate that, no worries, your interests will be taken into account when this law finally passes?  In other words, “recovery” might also mean “just and fair” which usually means “financial settlement” where the seller or current possessor of the claimed looted item gets to hang on to the prized ownership title to the looted object.

“Recovery” is another way of saying that the art market continues to hold tremendous sway on how restitution works for Holocaust-era claimants.

At the end of the day, so the expression goes, it is always a business decision how a looted object gets "returned” and “recovered.”

Are claimants’ rights genuinely protected by S. 2763? Or is this bill a subversive sop to the art market and a gift to the Association of Art Museum Directors (AAMD) and to the American Alliance of Museums (AAM)? These two groups have fought for years to put an end to the claims process, callously indifferent and disdainful about how cultural objects are stolen, misappropriated, expropriated, displaced, whatever the word is to connote illegality.

As currently drafted, S. 2763 might be nothing more than a final attempt to address art restitution in the United States, offering the art market the equivalent of a social peace during a six-year period of claims hopefully unimpeded by statutes of limitations and laches (assuming that the final version of S 2763 keeps out laches, no guarantees given!). Claimants would presumably get a « fair day in court » where their claims may be assessed solely on their merits, again within a six year framework or less, depending on when the claimed item had been located and identified and the evidence garnered to back the claim.

S. 2763 is looking more and more like a thinly disguised message to claimants,.a last opportunity to file for restitution assuming that they know where their object is and they have the proper documentation to support their claim. If not, how will they obtain the evidence in the time allotted to them? How will claimants afford a court action against a current possessor especially if it is a museum or a billionaire collector with access to a well-supplied war chest ?

S. 2763 stacks the cards against claimants, however which way you look at it. Even if they do manage to garner the documentation, claimants will not be able to afford the hefty litigation fees associated with a proceeding to obtain restitution.

It is not possible to endorse S.2763 if a mechanism is not explicitly created which ensures that claimants will be supported in their attempt to recover their lost property. The Federal government should subsidize this commitment for at least ten years to ensure that claims are properly addressed and have a fair chance of being heard, by minimizing research and legal costs to claimants.

S. 2763 favors wealthy claimants with access to significant means to support research into their claims and legal action to recover identified objects which sit either in public or private collections. It is clearly not designed to help the vast majority of claimants, who lost cultural assets that are not museum-worthy. It provides succor to the very few, those who are familiar with the claims process and are able to demand the return of high-end items which their lawyers are willing to recover for them at rates the average claimant cannot possibly afford.

The claims process has always been skewed towards those who have lost cultural assets considered of great value in today’s market and towards whom gravitate most lawyers as well as market players.