Revisiting Senate Bill 2212, Part Two

by Nikki Georgopulos, special to plundered art

As explored in Part One of this article, the so-called Nazi exception in Senate Bill 2212 (S.2212) has myriad weaknesses and loopholes through which claimants who identify as Holocaust victims and their heirs can be barred from bringing a case to court. The current language of the bill not only fails to provide sufficient protection for the people that it is ostensibly designed to protect, but is also misleading about the goals and motivations of the legislation’s sponsors.  

In addition to the suspect nature of the bill’s protections regarding works taken within the Nazi era, the bill strictly precludes the possibility of ownership claims for all art objects that were stolen, looted, or otherwise illicitly obtained outside the Nazi era that cross over US borders.

Illegal excavation of antiquities and trade in illicit artwork has been a serious problem since well before the introduction of S.2212 in March of this year. Illegal trade is endemic, and has deeply permeated the legitimate art market. As both Saving Antiquities for Everyone (SAFE) and the Lawyers' Committee for Cultural Heritage Preservation (LCCHP) point out on their websites, if passed, the bill would allow American museums and institutions to knowingly exhibit illicit artwork and antiquities without fear of litigation.

When questioned about the exclusivity of the bill, a Capitol Hill source familiar with the inner workings of the proposed legislation was notably unconcerned, stating that while the Senate Judiciary Committee (where S.2212 is currently trapped) is taking its time to perfect the language of the bill, they do not intend to “stretch the carve-out ” (referring to the “Nazi exception”) to include additional claimants. Indeed, the same source openly admitted that even “Holocaust-related concern is not at the heart of the bill.”

“This is not the Holocaust Victims Protection Bill,” the source asserted. “The purpose of this bill is to restore harmony between the Immunity from Judicial Seizure Statute and the Foreign Sovereign Immunities Act.” He went on to add that the “primary goal of S.2212 is to reverse one court decision. Congress wants to correct a misinterpretation of the Foreign Sovereign Immunities Act.” The source was referring to the 2007 US District Court decision that upheld the right of the heirs of Kazimir Malevich, the Russian abstract artist, to sue the City of Amsterdam to recover fourteen artworks that were in possession of the Stedelijk Museum. The Foreign Sovereign Immunities Act (FSIA) outlines the extent to which a foreign sovereign nation is protected from being sued in a US court. In Section 1605, which, enumerates the exceptions to the act, the FSIA indicates that a “foreign state shall not be immune from the courts of the United States […] in which rights in property taken in violation of international law are in issue.”

From the source’s perspective, this conflicts with the Immunity from Judicial Seizure Statue (also known as 22 USC 2459), which “protects from seizure or other judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition.”  S.2212, therefore, has been designated a “clarification act” in order to amend the extent to which the rights guaranteed by FSIA can be exercised with regard to works of art and antiquities. Considering the current language of the bill and the widespread misperception regarding its altruistic intent, such revelations are troubling.

More troubling still are the weaknesses in importation standards and procedures, many of which belie the low priority that potential claimants are currently granted under US law.

As specified by 22 USC 2459, US institutions must submit an application to the US State Department at least six weeks before importing cultural objects in order to qualify for judicial immunity. According to the State Department website, the institution must submit a statement that asserts:

The applicant certifies that it has undertaken professional inquiry - including independent, multi-source research - into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership.

The first thing that is objectionable about this statement is that it suggests that provenance is important primarily because it establishes the national and cultural significance of the objects in question. That clean and complete provenance would assure that those objects were not obtained via the illicit market seems to be of secondary importance. As the signing of this statement is the only required protection against the importing of illicit art objects, it is clear that the State Department is not properly armed to prevent it. As Marilyn Henry wrote during the Malevich trail, “The State Department relies on an honor system, accepting a boilerplate statement that the provenance research has been done. It is not equipped to confirm that borrowers have undertaken research; it does not check for proof of provenance or conduct its own provenance research.”

Perhaps this would not be so much of a problem if the standards for provenance today were not already so devastatingly low. The unfortunate truth is that most American museums, even if their intentions are pure, do not have the resources to thoroughly research the provenance of every object in their collections, whether temporary or permanent. Indeed, a complete and flawless provenance is a very rare thing, and questionable histories are often overlooked for the sake of obtaining an object. Matthew Taylor, a UK-based architect and author of the Elginism blog, points out that objects with dubious histories continue to make their way into the global art market:

If you look at the antiquities trade today, there are still major problems with it - many items that [are] of poor provenance regularly turn up at auction - and furthermore, there are many more items that are known with certainty to have been looted at some point. In many of these cases though, the auction houses appear to shrug off the need for proper due diligence, in favour of selling the item anyway [and] taking their cut.

He goes on to highlight the important point that this issue of accepting unclear provenance is not limited to the auction houses: “The actions of art dealers such as Bob Hecht [and] Giacomo Medici are clear evidence of this less reputable side of the industry[, and] they are know to have had involvement with the sale of items to various US museums, particularly the Met in New York.”

Thus, the question must be asked – is the State Department asking enough of applicants? Is there a better system by which proper provenance could be established, perhaps by a third-party entity which has no stake in the outcome of the inquiry? In any case, it’s clear that US law does not sufficiently protect against the exhibition or sale of looted, stolen, or otherwise illicit art objects.

At an informal discussion and luncheon last week at Washington DC’s National Press Club led by Marc Masurovsky, the question of whether or not the State Department has the resources and wherewithal to monitor the import of cultural objects was one of many that were discussed. Organized by Keri Douglas of Nine Muses International, the October 19 discussion brought together participants from varied backgrounds and disciplines with equally diverse opinions. As Masurovsky describes, “The conversation was a first for most of the participants since it is rare that one can bring together around [the] same table both sides to a fiery and contentious debate such as art restitution and ethics in museums.”

That the issues on hand are both delicate and complex would seem to be the obvious explanation for why S.2212 is still stalled in the Senate Judiciary Committee. The aforementioned Capitol Hill source, however, reported that the Committee Chairman, Senator Patrick Leahy of Vermont, has yet to decide whether or not the bill merits a full hearing. According to the source, the committee is currently working to “perfect the language” of the legislation in order to “accomplish the narrow, specific goal of the bill,” namely, to “clarify [FSIA]” while avoiding “unintended consequences.”

American lawmakers, museum directors, and educators need to stand in staunch opposition to the illicit trade of art objects and antiquities. Both the LCCHP and SAFE are currently running campaigns related to S.2212—one to call for open hearings and one to abandon the legislation completely. If passed into law, the “unintended consequences” of S.2212 would be to stymie the rights of would-be claimants, whether they are victims of the Nazi era and their heirs or not.

Desk and Room, Kazimir Malevich
Source: Malevich Paintings

Suprematism, 18th Construction, Kazimir Malevich
Source: Malevich Paintings

Paintery Realism of a Football Player, Kazimir Malevich
Source: Malevich Paintings

Suprematist composition (blue rectangle over purple beam), Kazimir Malevich
Source: Malevich Paintings

Mystic Suprematism, Kazimir Malevich
Source: Malevich Paintings

    

Repatriation of looted antiquities to Italy

by Keri Douglas (Special to plundered art)

Artifacts
Source: Keri Douglas

In an official ceremony held on April 26, 2012, at the Italian Embassy in Washington, DC, seven rare and priceless artifacts were repatriated to Italy, as part of an on-going international effort to track down, recover and return trafficked works and objects of art.

"The story of each of these of artifacts tell us about the talent of great masters of painting, of sculpture and of the written word as well as tell of the time that each of the masters dedicated to beauty, to art, civilization and of course, the Lord." said Italian Ambassador Claudio Bisogniero hosting the ceremony at the Italian Embassy in Washington, DC with U.S. Secretary of Homeland Security Janet Napolitano.

Ceremony
Source: Keri Douglas

Ceremony
Source: Keri Douglas

The objects in pristine condition with a value well over a million and a half dollars were displayed on simple easels and pedestals. Two vessels, 2000 years old, were dug from the earth in Italy, smuggled into Switzerland and then transferred to Beverly Hills before being seized in New York at Christie's Auction House. A small Roman marble statue, a janiform herm, also was smuggled from Italy into Switzerland before being auctioned at Christie's Auction House. Three 13th century illuminated choir book leaves, ripped from two separate books, one at St. Paul's Church in Pistoia and the other from the Monastery of Monte Oliveto Maggiore in Siena, were found on-line for sale by a rare book dealer in Portland, Oregon. The last object, unveiled with great flare, was the renaissance painting, "Leda e il Cigno" (Leda and the Swan) by Lelio Orsi, most rare for it is an oil painting on copper, had been illegally imported into the United States and was auctioned at Sotheby's in New York.

Ambassador Bisogniero said, "Criminals should have no illusion Italy and the US are firmly together in this effort and are strongly committed to combat these crimes."

However, when asked to explain the rare prosecutions in the United States despite the stated link of art trafficking to organized crime, John Morton, U.S. Immigration and Customs Enforcement Director explained that these cases are very difficult to prosecute. The challenges are due to the complicated patterns traffickers create; the time elapsed from the actual theft and the time of sale or appearing in the public domain; and the forgery of documents. Often, Morton said, the perpetrator is dead.

Morton made clear though that the Italians are monitoring the global art market and the evolving Italian organized crime networks. The office of the Italian Carabinieri for the Protection of Cultural Heritage General B. Pasquale Muggeo is arresting and prosecuting individuals. In fact, the discovery of these seven objects were the result of the Italian law enforcement community aggressively monitoring the internet and art sale catalogues for stolen Italian art.

Keri Douglas is a writer/photographer and communications consultant with www.ninemusesinternational.com. Follow her on Twitter at @keridouglas.

Deconstructing Aphrodite: the Getty Art Museum, looted antiquities and the art trade

The 4th century BC marble sculpture of winged griffins at center of controversy, acquired illegally by the J. Paul Getty Museum in 1985
Source: NPR

An interesting event took place on Tuesday 24 January at the National Press Club in Washington, DC. The theme of this cultural evening, organized by Keri Douglas, the highly-accomplished energetic chief executive of Nine Muses International, focused on the international scandal surrounding the J. Paul Getty Museum’s unabashed no-holds barred acquisitions of illegally excavated Greek and Roman antiquities. To make a real long story short, Marion True, a senior curator of antiquities at the Getty, was left holding the bag and has been the subject of a number of lawsuits, especially in Italy, where she was forced to stand trial.

Getty Center, Los Angeles, CA
Source: Wikipedia

Getty Villa, Pacific Palisades, CA
Source: Wikipedia

The main speakers were Arthur Houghton, formerly of the Getty and a character in the saga of the looted antiquities, Gary Vikan, director of the Baltimore-based Walters Art Museum, and a self-proclaimed reformer amongst his museum director peers, Jason Felch and Ralph Frammolino, co-authors of the book, “Chasing Aphrodite” who led the investigation into the illicit Getty acquisitions, and James Grimaldi, a Washington Post investigative reporter who has undertaken a fair number of inquiries into corruption, high and low.

Jason Felch
Source: Chasing Aphrodite

Ralph Frammolino
Source: Chasing Aphrodite

The story itself is worthy of a mini-series. The comments by all involved, however entertaining and mildly caustic, reaffirmed some long-held truths and realities about the international art market, museums, the search for truth in ownership, and the knotty question of ethics—whether one can be ethical and be a collector, dealer, museum director or curator.

Marion True
Source: The Art Newspaper

Gary Vikan believes in the capacity of a museum to be anchored in “experience” as opposed to “ownership.” Or, put another way (hopefully more clearly), American museums are obsessed with the idea of acquiring and owning pieces, sometimes at any cost, simply for the selfish, narcissistic pleasure of owning, of being the proprietor of something beautiful and beguiling. That insatiable quest for owning gets in the way of the mission of sharing cultural objects with the general public and encouraging heretofore unseen objects to come to the light of day and be exposed for the time to the gaping eyes of the incredulous and starstruck public.   The antidote to "ownership" is "experience" and this can only occur if museums focus on the idea that a carefully-constructed network of mutually-beneficial relationships anchored in long-term loans and exchanges can encourage museums to dig into the second basement and bring to the surface long-forgotten items which are worthy of adoration and can be shared with like-minded institutions worldwide, thus favoring relationships with smaller and less recognized institutions that hold unknown treasures of the past. That is a nice idea, but one that eschews the fundamental problem, which is how the object entered the collection in the first place. By displacing the discussion away from the source of the object and its potentially illicit itinerary into the collection of a museum, the end result simply becomes one whereby the past should be left … in the past and we ought to focus more on the all-inclusivity of the global community of custodians of great art sharing their wealth with the masses. How grand!

Arthur Houghton, on the other hand, was irreverently charming, despite his cynical embrace of the art world’s megalomania for unfettered opacity in trade and demanding to be left alone so that it can continue to play to the tune of fifty billion dollars’ worth of globally-traded assets per annum, mostly under cover of darkness. He predicted, perhaps rightfully so, that nothing human could bring this dynamic, insolently unregulated marketplace to heel and to abide by those boring and annoyingly pesky rules of ethical behavior that require objects to be properly sourced and not to be traded if they are in fact “hot,” as in stolen.

Last but not least, our two co-authors, Felch and Frammolino, made a compelling case for why the Getty Museum’s officers and senior staff should have been dragged in chains before Federal judges on charges of conspiracy to commit grand theft and other violations that come with aiding and abetting international trading in stolen cultural property. But, as was pointed out by various members of the audience and the speakers themselves, no one in their right mind would dare take on the esteemed leadership of the global arts community. Even more interesting, Felch argued that American museums have been abusing their tax-exempt status for decades, a privilege that allows them to acquire and display without much oversight at all from external agencies.  Should they be held accountable for their uses and misuses of their tax-exemption? or is that simply another fruitless windmill?

What’s the lesson here?

Plus ça change, plus c’est la même chose. This would be the view of a cynical realist.

Where there’s a will, there’s a way, would be the view of the cautious, thanklessly persistent and guarded pessimistic optimist. Persistence, perseverance, and relentless patience through constant prodding, investigation, and clinging to uncompromising standards of transparency and truth in reporting—those combined, with help of some deities, should be able to move the rock of Sysiphus further up the hill, and closer to its inevitable tipping point. So, we wish.