Freedom of Information and Coins

In 2009 I noted the filing of papers by Scott A. Hodes on behalf of "non-profit numismatic groups". This was followed by the turning down of the request. Last week I observed the ruling that there had indeed been no "cover up" by the US State Department.

Hodes has now issued a statement about the appeal. But he has also been less than transparent. He refers to comments made by an "ancient coin collector" without noting that this same "collector" is in fact a paid Washington lobbyist for the three numismatic organisations who appear to have fronted the FOIA request.

It is also interesting that the IAPN and the PNG continue to be silent on the FOIA request made in their names.

A misleading Washington lobbyist?

I note that a Washington lobbyist responded to my latest PR Newswire release, "Do Coin Collectors Care About the Archaeology of Cyprus", by writing:

Archaeologist David Gill has issued another misleading press release about the ACCG's test case related to import restrictions on "coins of Cypriot type."

I wrote: "Earlier in February 2010 a Washington law-firm acting for the Ancient Coin Collectors Guild filed an action against (among others) the US Department of State and the US Customs and Border Protection." I hope the lobbyist will have observed that somebody from his Washington law-firm has filed an action on behalf of the Ancient Coin Collectors Guild (ACCG).

So to my next paragraph: "The government of Cyprus had urged the US State Department to sign a MOU in order to restrict the movement of archaeological material from the island to the US." There is a MOU in place.

So to paragraph three: "A Brussels-based numismatic trade organization was one of three bodies, along with the ACCG, to initiate a Freedom of Information Act (FOIA) court-action against the US State Department." I have commented on the FOIA case before.

Leaving aside the lobbyist's "another" (which press release(s) did he have in mind?), there is a suggestion that the following items are unconnected:

• a test case over the seizure of coins from Cyprus (and China) at Baltimore - to which the lobbyist's name appears in the filed action
• a FOIA action that cited the following, "The State Department recently imposed unprecedented import restrictions on ancient coins from Cyprus—requiring importers of even a single common coin of “Cypriot type” to provide unfair, unworkable and unnecessary documentation."
• an appeal against the FOIA decision that "seeks to overturn Judge Richard J. Leon's November 20th decision to uphold the State Department's (DOS) repression of information about the process by which import restrictions were placed on common collectable coins of Cypriot and Chinese types."
• the raising of coins at last year's consideration of the CPAC review of Article II of the MOU with Italy that related to "the Imposition of Import Restrictions on Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy".
• the "project" by the Cultural Property Research Institute to "study" "unprovenanced ancient objects in US private hands" - and the same lobbyist is the legal officer for the CPRI.

Or did I raise inconvenient issues that would draw thoughtful collectors along a path different to the one that had been waymarked for them by a lobbyist retained by a commercial European-based numismatic organisation?

The Baltimore Coin Test Case

Last November, after the decision over the FOIA case, it was announced, "the Ancient Coin Collectors Guild still plans to pursue a test case regarding whether those import restrictions were promulgated in an arbitrary and capricious fashion".

Now a Washington-based attorney, Jason H. Ehrenberg of Bailey & Ehrenberg PLLC, has filed an action on behalf of the Ancient Coin Collectors Guild (ACCG) (plaintiff) against the US Customs and Border Protection, Department of Homeland Security; the Commissioner,  US Customs and Border Protection; the US Department of State; and, the Assistant Secretary of State (educational and cultural Affairs), United States Department of State. (The pdf can be found here.)

Ehrenberg's expertise lies, according to his firm's website, in "employee benefits, employment and civil rights law, and higher education law, representing both individual and organizational clients on a broad spectrum of issues within the employment relationship".

Apart from wanting the return of coins brought into the United States apparently without the appropriate paper trail, the action seeks:

ACCG requests the Court: (a) to declare that the decision to impose import restrictions on ancient coins of Cypriot type is arbitrary and capricious because, pursuant to applicable law, State failed to disclose to Congress a rational basis for the reason, or reasons, behind State’s decision to reject the advice of its own advisory committee and also in departing from prior agency practice; (b) to declare that the decisions to impose import restrictions on ancient coins of both Cypriot and Chinese type are also arbitrary and capricious because they are both contrary to law and the product of bias, prejudgment and ex parte contact; and (c) to declare that under the applicable statutes Customs must prove that the Cypriot or Chinese coins at issue were illicitly removed from Cypriot or Chinese find spots before they may be forfeited.

However this "test case" is more than about Cyprus and China.

There is an attack on the Archaeological Institute of America (AIA):

Upon information and belief, the Archaeological Institute of America (“AIA”) is a nonprofit group that promotes professional archaeology. Upon further information and belief, although the AIA maintains it has some 200,000 members, this figure is derived from the circulation of its magazine, Archaeology. In contrast, upon further information and belief, a small number of professional archaeologists – many of whose careers are dependent on excavation permits issued by Cultural Nationalist states like China, Cyprus and Italy—actually govern the AIA and formulate its public stances. According to one such pronouncement, the AIA maintains that all unprovenanced artifacts should be deemed to be “stolen” and repatriated to their supposed countries of origin.

There is a comment on the Cyprus American Archaeological Research Institute (CAARI):

Upon information and belief, the Cyprus American Archaeological Research Institute (“CAARI”) is a nonprofit group formed to promote the study of Cypriot archaeology and related disciplines. Upon further information and belief, the careers of many CAARI associated archaeologists are dependent upon the Cypriot Department of Antiquities issuing them excavation permits. Upon further information and belief, CAARI also maintains that all unprovenanced artifacts should be deemed to be “stolen” and repatriated to their supposed countries of origin.

I note that among the grumbles in the submitted action is this one:

Allowing Undersecretary of State Nicholas Burns to influence the decision to impose import restrictions on coins of Cypriot type, though he had just received an award from Greek and Greek Cypriot interests and had displayed bias in favor of such interests.

I have commented on this issue before. I asked then:

What about organisations that reward congressmen for supporting "collector rights" or intervening "in issues of importance to ancient coin collectors"? Or is that different?

Given the recent comments about academic journals by a partner at Bailey & Ehrenberg, it is curious to see that one of the authorities cited in the legal papers is Wikipedia (section 61).

It is interesting to note that among the cases cited was one where "Supreme Court ruled agency’s decision to be arbitrary and capricious because the agency failed to offer any reasoned explanation for its refusal to decide whether greenhouse gases caused or contributed to climate change" (section 132). Does Mr Ehrenberg side with those who believe that there is no climate change? Or does he prefer to drive a "gas-guzzler" rather than do his little bit to save the planet?

And does he care if archaeological sites on Cyprus are being looted to provide archaeological material for the market? Or is the issue about the right to collect and to own antiquities?

Numismatic dealers raise concerns about the AIA

The Professional Numismatists Guild (PNG) has at long last broken its silence about the Freedom of Information Act suit that was filed against the US Department of State in response to the restriction of ancient coins from Cyprus back in November 2007 (see my original comment). On Wednesday last week (August 19, 2009) the PNG issued a press release on its website, "PNG Assists in Combating Import Restrictions".

The PNG defines itself as follows:

The Professional Numismatists Guild, Inc. is the only numismatic organization in the United States that restricts its membership to dealers who possess and demonstrate three essential qualifications: Knowledge, Integrity and Responsibility.

Robert Brueggeman, the Executive Director of PNG (and of Positive Protection Inc. [as stated on the PNG website]), is quoted:

The PNG Board of Directors unanimously agreed to contribute the funds to assist IAPN in its lobbying efforts to combat unfair import restrictions. We are concerned that overzealous Customs Bureau agents may unfairly misconstrue even well-meaning regulations by mistakenly claiming that any undocumented ancient coin is a stolen cultural property artifact of another country.

Paul Montgomery, the new President of PNG (and President of Paul Montgomery and Associates of Houston, Texas) says:

This is a frustrating and ironic situation ... The U.S. already has agreements with Cyprus and China that hinder the importation of coins that may have widely circulated centuries ago and, in fact, are now easily available for purchase by the public in those countries. Yet, Customs officials are seemingly doing nothing to stop the egregious importation into the U.S. of counterfeit coins from China and elsewhere.

The PNG is now offering to support "the work" (i.e. "to oppose irrational bans on the importation of coins into the United States") with $12,000.

The Belgium-based International Association of Professional Numismatists (IAPN) has yet, as far as I can see, to make a formal statement on its own website; however, a press release was posted on the ACCG website in December 2007.

The PNG goes further in its press statement.

PNG and IAPN officials are concerned about efforts by the Archaeological Institute of America to train Customs inspectors to detect and seize coins suspected of being imported in violation of the Convention on Cultural Property Implementation Act.

What this means is that officers of the PNG and the European-based IAPN hold the view that US Customs inspectors cannot receive specialist training to detect potentially "stolen" archaeological material. Why? Are there commercial concerns?

The issue is explained by "attorney Peter K. Tompa of the Washington, D.C. law firm of Bailey & Ehrenberg PLLC." (I note that Bailey & Ehrenberg PLLC appears to be "retained" by the IAPN and the PNG.)

The use of trainers from the archaeological community with ‘an axe to grind’ against professional numismatists and collectors carries with it the danger that unfair enforcement will actually result ... Historical coins have been traded for at least 500 years as collectibles and traditionally have no provenance track record, other than relatively recent sales receipts. It is unreasonable to assume that a coin is ‘stolen’ or illegally imported merely because the holder can not establish a chain of custody beyond receipt from a reputable source.

It is worth reflecting on the archaeological material that had (to use Tompa's phrase) "no provenance track record" which has been returned to Italy and Greece (see the names of North American institutions listed in the Nostoi exhibition). Why?

And how many of those archaeological items now returned to Rome and Athens had been acquired from so-called "reputable sources"?

Antiquities, ancient coins and changing attitudes in North America

Over the last few years over 100 antiquities have been returned to Italy from major North American museums. The piece that attracted the most publicity was the Sarpedon krater by Euphronios; it was returned by New York's Metropolitan Museum of Art. Other items include a Roman portrait statue of Sabina, and quantities of pottery made in Apulia, southern Italy. These voluntary returns, offered without active legal action, have done much to restore the patinated reputations of museums.

The Association of Art Museum Directors (AAMD) that serves as an umbrella organisation for museums has now changed its policies on the acquisition of undocumented antiquities. The AAMD now advises constituent organisations not to buy objects that are unknown prior to 1970, the date of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. A public object registry has been launched by the AAMD with the object of letting interested parties check what is passing into public collections. (The scheme has had limited use since its launch with a total of four items in the register by mid-June 2009.)

Some senior figures in the North American museum world --- for example, James Cuno --- have continued to voice their disquiet over the changing situation. But such views appear to be in a minority. Museum curators who handle archaeological material understand the issues and are aware of the level of destruction sustained by archaeological sites around the world to supply "museum quality" objects for the market.

The growing realisation that action needs to be taken about the antiquities market has been reflected in the work of the US Cultural Property Advisory Committee (CPAC). The most noticeable action was over antiquities from Iraq in the wake of the Second Gulf War and the looting of the Baghdad Museum. However there have also been memoranda of agreement with countries such as Italy, China and Cyprus.

The workings of CPAC are now under scrutiny. A Freedom of Information Act suit (FOIA) was filed against the US Department of State back in November 2007; this was in response to the restriction on the imports of ancient coins from Cyprus. This action was supported by three bodies: the Ancient Coin Collectors Guild (ACCG), the International Association of Professional Numismatists (IAPN), and the Professional Numismatists Guild (PNG).

The purpose of the FOIA suit is made clear on the ACCG website:

The State Department recently imposed unprecedented import restrictions on ancient coins from Cyprus—requiring importers of even a single common coin of “Cypriot type” to provide unfair, unworkable and unnecessary documentation.

Why have these bodies taken such action against the US Department of State?

The IAPN, based in Brussels, Belgium, states on its website:

The IAPN is a non-profit organisation of the leading international numismatic firms founded 1951. The objectives of the Association are the development of a healthy and prosperous numismatic trade conducted according to the highest standards of business ethics and commercial practice.

The PNG describes itself as follows:

The PNG is a nonprofit organization composed of the world's top rare coin and paper money experts. As numismatic professionals, our primary mission is to make the hobby safe for collectors and investors by maintaining rigid standards of excellence for our member dealers.

This is clarified as follows:

The Professional Numismatists Guild, Inc. is the only numismatic organization in the United States that restricts its membership to dealers who possess and demonstrate three essential qualifications: Knowledge, Integrity and Responsibility.

Is this alliance of three organisations in reality acting over freedom of information? Could there also be an implicit commercial interest in the liberalisation of the market in ancient coins?

The US State Department, as Defendant in the case, seems to suspect ulterior motives and made this statement in their formal reply (dated May 19, 2009):

Consequently, Plaintiffs’ claims that they are advocating the public interest are properly viewed with some skepticism given ACCG’s “two phase” “coordinated plan” to attempt to rescind the import restrictions, which would commercially benefit a number of its benefactors, who appear to be U.S.-based dealers and brokers of ancient coins.

This statement has been refuted by the Plaintiffs (the ACCG, the IAPN, and the PNG).

In April 2009 the ACCG tested the agreements with Cyprus and China by deliberately bringing a set of ancient coins in the USA by air ("Coin Collectors to Challenge State Department on Import Restrictions", PR Newswire May 13, 2009).

As mandated, U.S. Customs detained the coins upon arrival. The ACCG now plans to use this detention as a vehicle to strike down the unprecedented regulations banning importation of whole classes of ancient coins. The collectors' advocacy group claims that, among other abnormalities, the decision process for these agreements was orchestrated contrary to the spirit and intent of governing law.

The ACCG seems intent on criticising a policy that is intended to offer some protection to the archaeological heritage of Cyprus and China by placing restrictions on the movement of material that may have been derived as a result of illicit diggings on archaeological sites.

So will the legal action and test case merely serve to inflame the situation? Do such actions present to the world an image of North American collectors of archaeological material (and that includes ancient coins) who are more interested in owning objects than preserving archaeological contexts and integrity?