A criminal conspiracy?
Many commentators are angry that no criminal charges have yet been brought against any of the actors involved in the Hobby Lobby case. But it seems a fair question to ask ‘what was the crime?’. The assumption is that the material in question was moved out of Iraq illegally, an act that in the US would most likely constitute theft. The situation in Israel or the UAE, which are other possible jurisdictions, is not clear. (Not clear to me at least). In any event, there is no evidence contained in the complaint to prove illegal export after 1936, the year Iraq took all undiscovered artifacts into state ownership.
The acquisition might also be in contravention of United Nations Security Council Resolution 661, adopted on 6 August 1990, in force in the US since then and implemented more specifically for cultural property on 30 April 2008 as the Import Restrictions Imposed on Archaeological and Ethnological Material of Iraq. Under these trade controls, only objects that can be documented as having left Iraq prior to 6 August 1990 can be legally imported. Unless proven false, the statement of provenance supplied by ID3 acts to supply such documentation.
The role of ID3 in the transaction is interesting. This person supplied the document claiming ownership of 5,313 artifacts that had been in the family collection since the 1960s. If the artifacts are ever shown to have been stolen from Iraq, ID3 would be in the position of having admitted possession of stolen property and supplying a false statement in defence of that possession. Yet ID3 was not a direct recipient of any of the money wire-transferred by Hobby Lobby. Who is ID3? An identifiable person? Is whoever it is a convenient front for other dealers, paid by them to face prosecution if evidence of criminal wrongdoing ever does come to light? But what if ID3 never was in possession of stolen property? What is the offence then? Has ID3 now disappeared, leaving a phoney paper trail in his (or her) wake?
Hobby Lobby wire-transferred money to ID1, ID2, UAED and two other unnamed individuals. Assuming for the moment that the purchased material was stolen and trafficked from Iraq sometime during the 1990s or 2000s, which seems most likely, these five people must be the principal actors in what was an organised criminal conspiracy, moving stolen property through a complicated operation of smoke and mirrors, with at least one paid scapegoat, warehousing facilities, access to material moving out of Iraq, and thus presumably from other countries too.
The Israel Antiquities Authority (IAA) has established that during the years 2002-2012 artifacts from throughout the Middle East were being smuggled through the UAE via London or another European country to Israel, where they could be sold legally as non-Israeli cultural property and receive a valid Israeli export licence. The IAA successfully lobbied for a change in Israeli customs law enacted in 2012 that now requires all imported cultural objects to be accompanied by legitimate export documentation from the appropriate country of origin. The IAA believes this new law has ended the trade through the UAE to Israel. The conspiracy documented here between two Israeli dealers, a UAE dealer, and two other unnamed individuals looks to have been part of this larger operation, with the material shipped directly to the US instead of through London to Israel. The IAA’s knowledge of this operation suggests it would have relevant information about the various actors, but not that any offence would have been committed inside Israel itself. Perhaps the relevant jurisdiction for a criminal prosecution would be the UAE, provided the present whereabouts of the potential offenders are known, which again is not certain. Perhaps a joint investigation between Israel, Iraq, the UAE and the US would result in some convictions, but such collaboration seems highly unlikely in the present political circumstances. In other words, the likely perpetrators of any criminal acts involved in acquiring and selling Iraqi artifacts to Hobby Lobby seem safely immune from any law enforcement response.
Individual innocence but collective guilt?
What about Hobby Lobby? If the acquired artifacts could be shown to have been stolen from Iraq (which again I emphasise has not yet happened), would the President or any other officer or employee of Hobby Lobby be guilty of receiving stolen property? From what is known, the answer is likely no. As a hypothetical, two things look to insulate the President from any knowledge or understanding that the acquired material was stolen. First, there is the provenance document from ID3, which documents the material outside of Iraq since the 1960s or earlier and also demonstrates at least a minimum exercise of due diligence on the part of Hobby Lobby. Second, there was the unexplained and perhaps even derelict decision of the In-house Counsel not to communicate to the President the warnings of the outside legal Expert. Perhaps the President should have been more active in investigating provenance himself. The judge in the Frederick Schultz case ruled that conscious avoidance of knowledge is no defence, but that ruling was made with regard to Schultz, who was an experienced and knowledgeable antiquities dealer. In 2010 the Hobby Lobby President was anything but an experienced antiquities dealer, and it would be easier to construe any inaction on his part as arising out of a naïve reliance upon the expertise of those around him rather than as conscious avoidance of knowledge.
What about those around him? The failure of In-house Counsel to communicate the warnings of the outside Expert remains inexplicable and not much more can be said about it, although he or she never took possession of any material. The role of the Consultant is more interesting though. The Consultant was being paid by Hobby Lobby for his or her expertise, and Hobby Lobby might legitimately expect that expertise to include knowledge of the legal requirements of acquiring Iraqi cultural property and the necessary due diligence when making such an acquisition. The Consultant of course was not acquiring the material for himself, simply offering what turned out to be bad advice, bad advice that ultimately cost Hobby Lobby $3 million. It will be interesting to see whether Hobby Lobby tries through civil action to recover some of that money from the Consultant. But the emerging picture of the Hobby Lobby acquisition is one of individual decisions building towards a collective or institutional decision to acquire what still might prove to be stolen material. It has all the hallmarks of a sophisticated white-collar operation aimed at separating dishonest action from intent, but might instead just be the work of a bunch of bumblers. In this case, it does look to have been the work of a bunch of bumblers – innocent bumblers. Going forward, the agreement quite rightly stipulates the need for a training-backed acquisitions policy. One not so obvious consequence of this stipulation is that the bumblers defence will no longer apply.
Should we be thinking about tax?
Rick St. Hilaire emphasises that the $3 million forfeiture is exactly what it says it is – a forfeiture and not a fine. Forfeitable proceeds generated by the customs violations. Rick cannot identify the source of those proceeds, but talk of proceeds does inevitably turn the mind to thoughts of tax. Commenting on the agreement, a spokesperson for the Museum of the Bible denied the museum had anything to do with the case, thereby drawing attention to what might be a significant material separation between the Green Collection and the Museum of the Bible. The Green Collection was established in 2009 and by 2010 was said to be using Hobby Lobby money for acquisitions, a fact confirmed in the July complaint being discussed here. Hobby Lobby is a for-profit corporation. The Museum of the Bible was established as a non-profit in 2010. It claims on its website to hold thousands of objects under agreement with the Green Collection, though does not ay on what terms. So, the question almost asks itself: what exactly is the nature of the agreement under which the non-profit museum holds material from the for-profit corporation. Could there possibly be a tax consideration in there for Hobby Lobby, and is that what is reflected in the $3 million forfeiture? Rick is certainly thinking that way.
A final thought
Finally, it is worth reflecting on Hobby Lobby’s commitment to implementing an antiquities policy in accordance with the AAMD’s Guidelines on the Acquisition of Archaeological Material and Ancient Art. Guideline III(G) requires that a museum should:
promptly publish acquisitions of archaeological materials and ancient art, in electronic form, including an image of the Work (or representative images in the case of groups of objects) and its provenance, thus making this information readily available to all interested parties.
Guideline III(H) requires for objects acquired without a documented pre-1970 provenance that a museum must:
post on the AAMD object registry an image of the Work (or representative images in the case of groups of objects) and its provenance as well as an explanation of why the acquisition of the Work is consistent with Section F above.
The Green Collection used to claim to possess ‘One of the largest collections of cuneiform tablets in North America’, ‘An array of biblical, classical, and documentary texts on papyrus including several previously unpublished New Testament fragments’, and ‘The second-largest private collection of Dead Sea Scroll fragments, all of which are unpublished’. That is a lot of material with potentially dubious provenances. Will the AAMD registry be up to the task, or will Hobby Lobby be forced to construct its own registry? We must wait and see.