Tuesday, December 20, 2016

Antiquities Forfeiture Under USA PATRIOT Act Marks Milestone in Cultural Heritage Law

One of four artifacts targeted by federal prosecutors for
forfeiture, featured in a photo found in the possession of ISIS.
Prosecutors last week filed a forfeiture complaint in federal district court to acquire legal title to cultural property accumulated by the terror group ISIS, also known as ISIL. The civil action is the first of its kind, rooted in one of America's most robust anti-terrorism laws.

After the 9/11 attacks on the United States, Congress and President George W. Bush enacted the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). Signed into law on October 26, 2001, Section 806 of the Act created sweeping language in 18 USC § 981(a)(1)(G)(i) to deprive terrorists of a wide range of assets, similar to the Racketeer Influenced and Corrupt Organization Act's (RICO) broad forfeiture provisions found at 18 USC § 1963(a)(2)(D).

The US Attorney’s Office for the District of Columbia triggered the USA PATRIOT Act when it filed its civil forfeiture complaint last Thursday. The Department of Justice (DOJ) said in a press release, "The lawsuit marks the first time that the United States has filed an action to forfeit antiquities that are foreign assets of ISIL."

But of greater significance to cultural property legal watchers is the DOJ's reliance on the PATRIOT Act. The fact that government lawyers tapped the anti-terrorism statute to form the cornerstone of their case showcases the PATRIOT Act as a promising legal tool to combat transnational antiquities trafficking, and the move concretely demonstrates that a fresh legal argument can be forged from facts on the ground showing a link between terrorist activities and antiquities trafficking. This cultural heritage law milestone cannot be overlooked.

The government's complaint is also noteworthy when one considers that most cultural property civil forfeitures filed in federal court are based on 19 USC § 1595a(c)(1)(A), a customs law found in Title 19 of the US Code that allows seizure and forfeiture of stolen and smuggled property brought into the US. The PATRIOT Act 's forfeiture terms, in contrast, are rooted in Title 18, the criminal law portion of the US Code, at section 981. And unlike other kinds of civil forfeitures permitted under 18 USC § 981, which narrowly authorizes the confiscation of property "involved in," "derived from," or "traceable to" a crime, § 981's broader PATRIOT Act authority allows
  • forfeiture of "all assets, foreign or domestic" from any "individual, entity, or organization" engaged in terrorism against the United States and
  • forfeiture of "all assets, foreign or domestic, affording any person a source of influence over any such entity or organization."
This portion of the PATRIOT Act is formidable because it declares that forfeitable property does not have to be part of the proceeds of terrorism, meaning that the assets do not have to be connected in any way with actual acts of terror. The assets do not even have to be connected with theft, smuggling, or any other crimes. The assets simply have to be property (a) from either a terrorist or terrorist organization or (b) from any person that derives influence over a terrorist group because of the property.

These thresholds certainly are lower than those found in other 18 USC § 981 forfeitures. Yet the US Attorney's Office in its forfeiture complaint targeting ISIS antiquities goes the extra mile to allege a nexus between the cultural property it wants forfeited and ISIS's terror financing.

The government's civil complaint seeks title to four cultural objects, consisting of an ancient Hellenistic/Roman gold ring, two ancient Roman gold coins, and a Neo-Assyrian stone carving. The attorneys assert that the cultural properties "are forfeitable as foreign assets of ISIL and as foreign assets affording a source of influence, as ISIL has and is engaged in planning and perpetrating federal crimes of terrorism . . . ." (Federal crimes of terrorism are defined by 18 USC § 2332b(g)(5), which lists a series of grave offenses ranging from bombing to hostage taking).

The artifacts have not yet been seized by American authorities, and they are not located on US soil. The property may not even be in the hands of ISIS at present. But title transfer would give American officials the ability to assert a valid claim to the objects if they turned up in the marketplace, allowing authorities to take lawful possession.

Although the four artifacts apparently were not located among the approximately 700 cultural objects recovered by US Special Operations Forces during a May 2015 raid on an ISIS compound in eastern Syria, they were depicted in digital photographs found in the possession of Abu Sayyaf, an ISIS terrorist that the Department of Defense has said "was involved in ISIL's military operations and helped direct the terrorist organization's illicit oil, gas, and financial operations . . . ." The forfeiture complaint directly identifies Abu Sayyaf as President of the terror group's Antiquities Department. He died in last year's American military operation. The US, meanwhile, repatriated to Iraq the antiquities seized from him.

Abu Sayyaf's "electronic media had a number of images of antiquities," prosecutors write in their court complaint. "The documentary style, lighting, and focus of the photographs indicate that these images were prepared for marketing in order to sell the photographed items internationally." The attorneys describe how "[m]any of the antiquities seized at the time of the raid appeared to have been in the process of being sold internationally," explaining that "the antiquities were cleaned and maintained in a manner consistent with the preparation for sale." "Through law enforcement’s investigation, additional information was discovered regarding these photographed items. These items, which constitute the 'Defendant Properties,' were identified as being connected to ISIL’s antiquities trade."

The forfeiture complaint describes how "ISIL has controlled much of the territory in Syria and Iraq and extorts antiquities excavators working in ISIL-controlled territory. ... [B]ased on their historical characteristics, the Defendant Properties most likely were excavated from areas under ISIL control." Prosecutor contend that "[o]ther documents on Abu Sayyaf’s hard drive indicate that Abu Sayyaf, on behalf of ISIL, received at least 20% of the proceeds of items excavated in ISIL-controlled areas and in some instances personally sold the archeological items. These transactions were often in U.S. dollars."

More factual details can be found on Jason Felch's blog, Chasing Aphrodite.

Because the photographed property is located in a foreign country, the DOJ filed its forfeiture case in Washington, DC, according to the terms of 28 USC § 1355(b)(2). That statute declares, "Whenever property subject to forfeiture under the laws of the United States is located in a foreign country, or has been detained or seized pursuant to legal process or competent authority of a foreign government, an action or proceeding for forfeiture may be brought . . . in the United States District Court for the District of Columbia."

This expansive extraterritorial jurisdiction gives added firepower to the government's cultural property forfeiture based on the PATRIOT Act. The US Attorneys' Manual points out, "The ability to obtain civil forfeiture orders in the United States for property abroad can result in substantial benefits to international forfeiture efforts, both by facilitating the repatriation of illicit assets to this country for disposition and sharing under U.S. law and by providing a means to assist foreign governments in the confiscation and disposition of assets pursuant to their own laws." The risks, alternatively, are "certain issues of foreign sovereignty and domestic resource allocation and coordination ... raised by the jurisdictional law relating to forfeitable property abroad."

Assigned to this notable forfeiture case is Chief Judge Thomas Hogan. The case is captioned of United States of America v. One Gold Ring with Carved Gemstone, An Asset of ISIL Discovered on Electronic Media of Abu Sayyaf, President of ISIL Antiquities Department et al. (16-cv-02442-TFH)

Photo credit: US Department of Justice

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