Monday, December 10, 2012

Cracking Down on Antiquities Trafficking by Changing Homeland Security's "Seize and Send" Policy

Cracking down on the illegal antiquities trade by regularly prosecuting criminal offenders and dismantling their infrastructure must be a leadership priority for U.S. Immigration and Customs Enforcement's (ICE). The Homeland Security Investigations (HSI) directorate of ICE currently pursues a "seize and send" policy focused on recovering and repatriating antiquities rather than investigating and indicting criminals.  That policy must change in order to effectively combat a crime that permanently destroys the archaeological record and injures both history and culture.

HSI Special Agent-in-Charge James Hayes with Indian idols seized last week.
ICE's seize and send policy is illustrated by many of the agency's press releases. It was restated last week during a Chasing Aphrodite interview with James T. Hayes, Jr., Special Agent-in-Charge of HSI New York.  Hayes defended the seize and send policy:
"The focus is always to return stolen property to its rightful owners," Hayes acknowledged, saying making criminal cases was desirable but challenging. "You have to have a legal basis to prove those items, and you have to prove certain things and that proves very difficult.  We’re dealing with laws around the world, in foreign courts and different jurisdictions."
HSI's chief added, "At the end of the day, our primary responsibility is to get stolen property back to its rightful owners."

Returning stolen property to owners is a regular goal of many law enforcement agencies. But there is little indication that simply recovering and repatriating cultural property puts smuggling networks out of business. Criminals engaged in the illegal antiquities trade surely realize that they face little or no risk of legal accountability for their actions. They must also be aware that the occasional confiscations by police of portions of their inventories do not actually take down their supply, transportation, conservation, distribution, marketing, and sales infrastructures.  That is why prosecutions, coupled with forfeitures of infrastructure assets (instrumentalities forfeitures), should be made part of law enforcement's response.

The decision not to pursue prosecutions and instrumentalities forfeitures on a regular basis produces several negative outcomes:

First, because antiquities traffickers go unindicted, the risk of offenders facing the consequences of prosecution--jail, fines, probation, and/or a criminal record--is eliminated. Naturally, there is neither general nor specific deterrence against the commission of antiquities trafficking when there is no fear of getting caught.

Second, court sentences will continue to be light in those rare circumstances when antiquities smuggling prosecutions are actually brought forward. That is because the judiciary, not seeing many cases on their dockets, will believe that this criminal activity is insignificant in scope or impact.

Third, the infrastructures used to facilitate antiquities trafficking remain intact. Seizures of ancient pots or Egyptian sarcophagi may remove the fruits of an antiquities trafficker's crime, but their confiscation by authorities likely represents a only portion of the trafficker's illegal inventory at any given moment. Such limited seizures cannot be expected to shut down expansive global networks operating continuously. Seizures of the instrumentalities used to commit antiquities trafficking, by contrast, could help dismantle large swaths of trafficking infrastructures. Just as asset forfeitures in drug cases confiscate the automobiles, boats, planes, homes, etc. used in unlawful narcotics manufacturing and distribution networks, seizures of the instrumentalities used to traffic illegal antiquities could disrupt or shut down antiquities trafficking chains.

Finally, prosecutors and police will continue to confront both a learning curve and inefficiency so long as there is no change in enforcement policy. Routine antiquities trafficking prosecutions and enforcement, by contrast, would prompt prosecuting attorneys and detectives to meticulously learn how the crime operates, what evidence is commonly found in such cases, and what legal defenses typically arise. The experiences gained would foster more efficient criminal investigations in the field and more effective legal cases in the courtroom.

HSI's chief is correct to observe that antiquities trafficking cases can be complex. But law enforcement authorities over the decades have discovered ways to unravel complex transnational transactions. If complicated international money laundering, commodities smuggling, and drug trafficking cases can be solved and prosecuted, so too can antiquities trafficking cases. Indeed, criminal organizations have little incentive to cease trafficking operations if law enforcement concede that their activities are too hard to prosecute.

When criminal investigations become too complex to warrant effective action under one set of laws, one enforcement tactic is to separate the overall crime into component parts, examining the parts under different statutes. So instead of building an antiquities trafficking case broadly around the National Stolen Property Act, for example--which relies on an review of foreign ownership laws to determine if a trafficking suspect has knowingly received stolen antiquities in violation of the statute--authorities might shift their focus to build a case on the basis of false statements. Put another way, one method of not "dealing with laws around the world, in foreign courts and different jurisdictions" is to focus on the cover-up rather than the crime.

It is widely known that criminals rarely act in the open, committing fraud and deceit to conceal their activities. That is why criminal cultural property importers oftentimes falsify customs paperwork, classifying looted antiquities as something else on import forms. Making a false statement on an official customs form is a crime under 18 U.S.C. 542, and prosecutions under this statute do not require reliance on anything except evidence of criminal falsification. Juries simply need to be shown that an ancient antiquity found in a cargo crate is not a "garden table set" or some other false description written down on a customs form. Criminal knowledge of the false statement, meanwhile, can be demonstrated by additional positive evidence and/or by circumstantial evidence--which counts in a criminal case--showing that the criminal defendant was “without reasonable cause to believe the truth of such statement.” This example demonstrates that there may be other, potentially simpler, legal and investigative options available to authorities.

Cicero said, "What one has, one ought to use: and whatever he does he should do with all his might." HSI agents are seasoned investigators who should be given the green light to use their skills with all their might in an effort to expose the illegal antiquities trade and take down its networks. Partnering with prosecutors, HSI should systematically apply the National Stolen Property Act, the false statements law, and many other federal laws to successfully combat antiquities trafficking. Referring cases for state prosecution should also be a routine consideration rather than an occasional one. Coupled with the seizure of assets used to facilitate antiquities trafficking, regular prosecutions in the courts would dismantle or disrupt these criminal networks more effectively than the current seize and send policy.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: