Dear Senator Leahy:
I am Executive Director of the Lawyers' Committee for Cultural Heritage Preservation (LCCHP), a not-for-profit organization that fosters the stewardship of the objects, places, and traditions that define us as societies, nations, civilizations, and even human beings.1 We are lawyers, legal scholars, and law enforcement agents --- as well as anthropologists, archaeologists, architects, art historians, students, and others --- who champion preservation through the justice system. I am joined in this letter by our President, who is also Director of International Programs and a Professor of Legal Writing at Villanova University School of Law.
We respectfully ask you to postpone consideration of the United States Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 2212/H.R. 4086) until the Senate has addressed concerns with this bill through open hearings, in which all interested parties are offered the opportunity to participate or are otherwise consulted.
The U.S. has long criminalized the receipt, possession, and transport of stolen property. More specifically, it has been national and state policy to prevent the movement and display of illicit art. Based on a careful balancing of interests, a narrow exception currently exists to prevent the judicial or administrative seizure of artwork imported for exhibition, but only in these limited circumstances:
(1) there must be an agreement between “the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions;”
(2) the importation must be for a not-for-profit exhibition; and
(3) “before the importation of such object the President or his designee has determined that such object is of cultural significance and that the temporary exhibition or display thereof within the United States is in the national interest, and a notice to that effect has been published in the Federal Register.”2
The Department of State, acting on authority delegated by the President, requires each applicant for immunity from seizure to certify that:
it has undertaken professional inquiry undefined including independent, multi-source research undefined 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.3
Nonetheless, even objects subject to notorious claims have slipped through this process, and been exhibited at our most prestigious cultural and educational institutions.4
S. 2212/H.R. 4086 goes beyond clarifying this current law, which again, prevents only seizure. Rather, the proposed law would dramatically divest all courts of jurisdiction to entertain any claim, suit, or proceeding concerning an object here on loan, whether it is stolen or not. In other words, the law has the power to preclude theft victims from bringing any legal action regarding any artwork granted immunity, not just to prevent its seizure.
Additionally, the proposed legislation does not impose a statutory obligation on the Department of State to consider whether a piece is subject to a valid claim before immunity is granted, let alone deny immunity if it is. The only exception is for Nazi-era looted items, and this exception itself is riddled with limitations. Other deserving claimants are left without recourse to recover their rightful property.
By allowing museums to knowingly exhibit stolen or looted artwork, S. 2212/H.R. 4086 would upset the current balance, which allows claims but not seizure. This bill counters the U.S. commitment to cultural preservation and its respect for individual property rights. It also sends a terrible message that our legal system is powerless to remedy a wrong, no matter how egregious, if the Department of State rightly or wrongly grants immunity.
Congress has not been able to adequately consider these concerns because of the unnecessary speed at which S. 2212/H.R. 4086 is moving forward. Many interested parties are unaware of it and have not had the opportunity to make their voices heard. Given that there is no apparent reason for such undue haste, we again urge you to postpone this bill, pending open hearings.
We do support S. 2212/H.R. 4086’s purpose of encouraging art lending to the U.S. and cultural exchange undefined and your own efforts to advance such an important goal undefined but believe that the Senate should work to achieve this objective in a way that benefits both museums and deserving claimants.
Tess Davis, Executive Director
Diane Penneys Edelman, President
4) For example, in 2003, the Department of State immunized 14 pieces by renowned Russian artist Kazimir Malewicz. Immunity was granted even though the Malewicz heirs produced a considerable amount of evidence that these works were subject to valid ownership claims. This process was documented in Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 303 (D.D.C. 2005).