I have previously written about how in September 2019 US law enforcement agents seized the so-called Gilgamesh Dream Tablet from the possession of the Museum of the Bible in Washington DC, though at the time I didn’t say much about the tablet itself. On 18 May 2020 the US Attorney’s Office opened civil proceedings to forfeit the tablet for return to Iraq and on the same day Hobby Lobby sued Christie’s auction house to recover the tablet’s purchase price together with associated interest, fees and costs. The court documents associated with these two cases have much to say about the movement of the Dream Tablet after its purchase in London in 2003, though sadly, nothing much about how it reached London in the first place.
The US attorney’s complaint records that in or before 2001, an unnamed US dealer visited London to view a group of cuneiform tablets in the possession of Jordanian dealer Ghassan Rihani. In spring 2003, the US dealer returned to London in the company of a ‘cuneiform expert’ and paid a Rihani family member $50,350 for a group of cuneiform tablets, which included what would come to be known as the Gilgamesh Dream Tablet. Once the tablets were in the USA, the cuneiform expert recognised the tablet for what it was, and in March 2005 shipped it to Princeton New Jersey for study and publication by Andrew George, who was at the time visiting professor there.
In February 2007, the US dealer sold the Gilgamesh Tablet accompanied by a preliminary translation prepared by the cuneiform expert to two unnamed buyers for $50,000. When requested, the US dealer supplied as provenance a letter stating falsely that the tablet had been purchased in 1981 as part of lot 1503 at a Butterfield & Butterfield auction in San Francisco. The catalogue described the lot as comprising a ‘box of miscellaneous bronze fragments’ – there was no mention of a cuneiform tablet. The letter further stated that the tablet had been deaccessioned from a small museum.
George’s translation was published in 2007, stating that the owner of the tablet, presumably the US dealer, wished to remain anonymous. George also noted that the tablet had been offered for sale by bookseller Michael Sharpe. Sharpe’s catalogue priced the tablet at $450,000, observing that it had been ‘professionally conserved according to established archival standards’. It noted that the text was to be published by Andrew George. It also offered some preliminary textual analysis by Renee Kovacs and finished by stating that Kovacs had supplied an authentication and ‘clear provenance’. The mention of Kovacs has caused speculation that she was the ‘cuneiform expert’ mentioned in the DA’s complaint.
By late 2013, the Gilgamesh Tablet was in the possession of Tel Aviv resident Joseph David Hackmey, who approached the London office of Christie’s to discuss selling it. He had purchased the tablet from a presently unknown person who had in turn bought it from Sharpe.
The US attorney alleges that in December 2013 Christie’s contacted the US dealer who had purchased the tablet from the Rihanis asking about provenance, but he replied by warning that the Butterfield’s provenance would not hold up to scrutiny in a public auction. Christie’s decided in consequence to opt for a private rather than public sale. (Christie’s denies these allegations). Christie’s then contacted Hobby Lobby about a possible purchase, and in March 2014 a representative of Hobby Lobby viewed the tablet in London. Christie’s provided Hobby Lobby with a specially-prepared illustrated sale catalogue, which included the following provenance information:
Butterfield and Butterfield, San Francisco, 20 August, 1981, lot 1503.
with Michael Sharpe Rare and Antiquarian Books, Pasadena, California.
A.R. George, “The civilizing of Ea-Enkidu: an unusual tablet of the Babylonian Gilgamesh epic”, Revue d’assyriologie et d’archeologie orientale, vol. 101, 2007, pp. 59–80.
The catalogue also included a translation of the tablet’s text and discussed George’s published findings.
By 15 July 2014, Christie’s had shipped the tablet to New York. Around 23 July 2104, Hobby Lobby asked Christie’s to amend the supplied invoice to include the tablet’s approximate date of production and Iraq as its country of origin. Christie’s responded accordingly. Christie’s also supplied copies of the Butterfield’s and Michael Sharpe catalogues and on 24 July e-mailed Hobby Lobby the revised invoice, stating that:
Here is the revised invoice for the Gilgamesh tablet, stating its place of creation and date.
Regarding earlier provenance:
We can safely say it left Iraq before 1981 as that is the date it was sold in a Butterfield’s auction in San Francisco. The person who bought it in the Butterfields sale told us it was part of lot 1503 and that it was heavily encrusted with salts and unreadable. [He or She] also mentioned that at the time, it was said to have been de-accessioned from a small museum, and so in all likelihood it was in the US well before 1981. Unfortunately Butterfields no longer have their consignor records so we could not corroborate this further. It was subsequently with Michael Sharp[e].
Receiving this communication, Hobby Lobby agreed to purchase the tablet and on 30 July paid Christie’s $1,674,000. In September 2014, Christie’s flew the tablet from New York to Oklahoma City for delivery to Hobby Lobby. After purchase, Hobby Lobby transferred the Gilgamesh Tablet to the Museum of the Bible for display at the museum’s opening in November 2017.
I am a sucker for a good graphic, and the recent Rand report into illicit antiquities has a bunch of good ones, in particular a quadrant plot used for exploring the structure of the antiquities market (Rand 2020: figures S.1, 4.10, 4.11, 4.12, 4.13). This graphic offers a means of looking at market structures generally, using axes of visibility (covert to overt) and legality (legal to illegal) to construct a conceptual transaction space. Two of the quadrants (covert-legal and open-illegal) are considered to demarcate gray market space, with the antiquities market placed firmly towards the overt end of the visibility axis and straddling the divide between legal and illegal on the legality axis (Figure 1).
Once I had managed to overcome my initial excitement at seeing the graphic, I became concerned about how it portrays the gray market. The idea of a ‘gray’ trade or market was introduced into criminological discussions of antiquities trading about 15 years ago. There was some confusion about the concept until it was systematized by Simon Mackenzie and Donna Yates (2019), who identified three possible usages:
Mixed streams of supply. Legally-obtained and illegally-obtained antiquities sold on the open market cannot be distinguished because of undisclosed provenance. An antiquity with an undisclosed provenance is regarded as gray, possibly on the market legally (white) or illegally (black).
Changing status of individual objects passing through trafficking networks. An illegally-obtained antiquity can be cleaned through time and space as it moves through jurisdictions up the trading chain for sale on the open market. So although its sale is technically legal, the antiquity might still be considered illicit, having been subject to an illegal transaction at some point in its trading history. Legally white but ethically black – gray.
Neutralization and the graying of the moral psychological processes of engagement. Actors justify or neutralize their engagements with illegally-obtained antiquities by appealing to a greater common good. Thus their engagement can be considered somewhere between good and bad – gray.
The Rand report recognizes Mackenzie & Yates (1) when it says:
Although illicit drugs, for example, are primarily sold on the black market because of their near universal illegality and strong law enforcement action against them, illicit antiquities can be advertised and sold through more-visible channels because it is often difficult to prove an individual item’s illegality (Rand 2020: xiii).
Unfortunately, the report doesn’t use this definition for defining its own gray market quadrants, deciding instead that:
… illegal items are sold relatively openly and, conversely, legal transactions may be conducted in private. These two cases are classified as gray market transactions (Rand 2020: 63).
While Mackenzie and Yates focused upon the status of the object (1 & 2) or actor (3), the Rand report has looked instead at market circumstances:
Illegal transactions conducted overtly
Legal transactions conducted covertly
Thus the Rand report has defined and portrayed the ‘gray market’ differently to most established usage in the literature dealing with the antiquities trade. This is not necessarily a problem, as the report’s definition might better suit its own purposes, but it does threaten to cause confusion if the graphic is used unwittingly by others to depict what is usually understood to be the gray antiquities market, when it does nothing of the sort (and doesn’t claim to). Having said that, it is not clear to me anyway why the two quadrants are marked gray. Their grayness does not feature in the associated analyses of market structure and appears superfluous.
Prompted by this gray mood to look more closely at the graphic, I began to think there are some deeper problems. It shows the antiquities market straddling the line between legal and illegal, though firmly placed on the overt side of the plot. While it is true that many antiquities are offered for sale openly, either at traditional bricks-and-mortar establishments such as Sotheby’s and Christie’s or on electronic platforms such as eBay, many more transactions, legal or illegal and often high-value, occur privately – in other words covertly. So, for an accurate representation of the antiquities market, the defining circle would need to be expanded outwards into the covert side of the plot (Figure 2). That would have the disadvantage of suggesting visually but inaccurately that the antiquities trade is much larger than the drugs trade, which is clearly not the case, and something the Rand report is rightly concerned not to imply.
Rand figure 4.11 (Figure 1 here) is used to argue that antiquities are not sold on the Darknet because they are not generally sold covertly on the black market. Unfortunately, they are. They are routinely transacted covertly and illegally. The 2010 Hobby Lobby private (covert) purchase in the United Arab Emirates of looted Iraqi antiquities offers just one example. There are many more. Most of the source trade in countries of origin is covert and illegal. It is true that antiquities are not traded on the Darknet, but it is not because they are not traded covertly and illegally as the graphic suggests.
Perhaps I am being unfair. In its introduction, explaining Figure S1, the report states:
We first conceptualized the antiquities market in relation to other illicit markets by considering it in terms of two characteristics: the openness versus secrecy of the transactions and their relative legality or illegality. Viewed in these terms, the differences between the illicit antiquities trade and drug or weapon trafficking is more clearly evident (Rand 2020: xiii).
This introductory explanation gives the clear impression that the graphic is meant to describe the antiquities market in its entirety, which is what I initially thought. Later, however, when the graphic is used to analyse market structure, as in Figure 1 here, the report states it is a “structural analysis of online markets”, presumably not including the bricks-and-mortar trade. Almost by definition, antiquities sold online are sold overtly, and perhaps there is no need to sell them covertly, as the report states (page xx). But that doesn’t mean that no antiquities are sold covertly. But looking more closely still, there is also confusion over what market exactly the graphic is meant to be depicting – source or destination? In countries such as Syria and Iraq, antiquities sales are illegal and mostly covert. Even when antiquities are offered for sale on platforms such as Facebook, it is in closed groups open only to vetted access and further limited by the use of a local language (in this case Arabic), and as the report notes (page xx) actual transactions take place covertly, often using encrypted messenger apps such as WhatsApp. An alternative characterisation would place this source market in the covert-illegal quadrant (Figure 3).
On the destination market, Facebook isn’t a major platform for marketing antiquities. As the report states, ‘auctions and online storefronts dominate’, where illegally-obtained antiquities can be sold on the open market. On the graphic, this market would be placed in the overt-illegal quadrant (Figure 4).
The point to be made here is that when travelling from source to destination, antiquities transition across quadrants because of the gray trade, in the sense of Mackenzie & Yates (1), whereby provenances are suppressed and invented so that antiquities are not identifiably illegal by the time they appear on the open market (Figure 5).
Another cause of initial confusion for me was how ‘legality’ could be a continuous variable – surely it is a binary variable: a transaction can be legal or illegal, but not ‘just about legal’, or ‘tending to the illegal’ etc. But having sourced the graphic back as far as 2006 to a paper by H. Brinton Milward and Jörg Raab (2006: 335, figure 1; reproduced here as Figure 6), I think I understand it better. Their idea was to characterise dark and bright networks in terms of their overall legality and visibility, and the Rand report seems to be doing likewise for markets instead of networks, or markets conceived as networks.
That observation does raise an interesting question, however. Could the transaction space be used to plot objects instead of networks? Could it be used to plot the progress of a single antiquity, thereby showing in detail how the gray trade operates? On Figure 7, I have plotted the known biography of the Gilgamesh Dream tablet using six real and one hypothetical transactions.
T1. Sometime before 2001, the tablet was looted in Iraq and bought in Jordan covertly by a dealer who must have recognised it to have been on the market illegally.
T2. In 2003, a US dealer visited London and bought the tablet covertly from the Jordanian dealer. The US dealer must also have recognised the tablet to have been obtained illegally, or at least strongly suspected it to be the case, as he invented a fake provenance in the shape of a letter stating that the tablet had been sold in San Francisco in 1981.
T3. In 2007, the US dealer sold the tablet covertly to another US dealer, along with the newly invented provenance to show that it was ‘clean’. At that point, the tablet was grayed, with its true, illegal provenance suppressed – an example of Mackenzie & Yates (1).
T4. Later in 2007, still in the United States, the second US dealer offered the tablet for sale overtly in a sales catalogue, accompanied by the new provenance.
T5. In 2014, the then owner of the tablet sold it to Hobby Lobby through a private (covert) sale arranged by Christie’s auction house in London. Depending upon what had happened to the tablet between 2007 and 2014, and what jurisdictions it had passed through, it might have been on the market in London legally, through with a fraudulent provenance – an example of Mackenzie & Yates (2). That remains to be determined in court, and that is the problem of the gray market. It is difficult if not impossible to ascertain the exact legal status of an object offered for sale.
T6. Hobby Lobby put the tablet on display in the Museum of the Bible, but subsequently recognising that it had probably been taken illegally from Iraq, agreed to return it.
? T7. In the unlikely event that Iraq decides to sell the tablet, the transaction would be open and legal.
This object biography shows how the illegally-obtained tablet was grayed through the invention of a fake provenance and also possibly by its (hypothetical) movement through jurisdictions and the passage of time. Time is a crucial element here. As time passes, and illegal actions diminish into the distancing past, gray antiquities slowly fade to white.
Another problem with the original graphic is that it doesn’t take adequate account of provenance. Provenance is a defining feature of the antiquities trade in a way that it isn’t for the drugs trade, as the Gilgamesh Dream tablet biography shows. Unfortunately, provenance adds another variable that cannot be included in the two-dimensional transaction space. But if the space is constructed differently using visibility and provenance as its defining axes, binary legality can then be indicated using symbol colour. In Figure 8, I have indicated illegal objects with a known provenance as black, legal objects with a known provenance as white, and objects of undisclosed provenance as gray. Gray objects are transacted covertly and overtly. White (legal) objects are also transacted covertly (privately) and overtly. Black objects, that is to say objects known to be on the market illegally, can only be sold covertly (unless by someone with a prison-wish). These might seem trivial observations, but they demonstrate a fundamental truth of the antiquities trade, which is that it is not possible to talk about a black market, at least not in this transaction space. The market can be invisible, in that legal (white) or illegal (black) antiquities can be sold covertly; or gray in the sense of Mackenzie & Yates (1) in that legal and illegal antiquities can be sold (overtly and covertly) with an undisclosed or false provenance; or white, in that legal (white) antiquities can be sold overtly. The policy challenge is to force a white market by improving provenance provision, as shown in Figure 9.
Although I was initially excited by the Rand graphic, I found much to disagree with, yet disagreement in itself has been a stimulating exercise. The Rand report has done us all a great service by suggesting how such simple graphics might be used profitably to explore the structure of the antiquities market and its structural relations with other markets. I look forward to seeing more.
(Notice I didn’t call this post ‘fifty shades of gray’. I am better than that).
Mackenzie, Simon and Donna Yates (2016). What is grey about the ‘grey market’ in antiquities, in J. Beckert and M. Dewey (eds), The Architecture of Illegal Markets: Towards an Economic Sociology of Illegality in the Economy. Oxford: Oxford University Press.
Milward, H. Brinton and Jörg Raab (2006). Dark networks as organizational problems: elements of a theory, International Public Management Journal 9: 333-360.
Rand (2020). Sargent, Matthew, James V. Marrone, Alexandra Evans, Bilyana Lilly, Erik Nemeth, Stephen Dalzell, Tracking and Disrupting the Illicit Antiquities Trade with Open-source Data. Santa Monica: Rand.
There is a lot of public money being spent these days on capacity building projects designed to help protect cultural heritage in the Middle East. I am not too convinced personally that professional training of this type translates well into cultural heritage protection, but at least some people in the area are benefiting from opportunities that were not previously available, so I can’t complain too much. What I do want to complain about is the opposite of capacity building, what I propose to call ‘capacity degrading’. What is capacity degrading? I intend it to mean reducing a national fund of professional expertise or competence in such a way as to diminish the public good – the opposite of capacity building in fact.
Let us look at Hobby Lobby again. I came across a comment published in 2014 by someone in a position to know that the Hobby Lobby collection contains an ‘enormous collection’ of cuneiform tablets, an observation that chimes well with Hobby Lobby’s own claim to possess ‘One of the largest collections of cuneiform tablets in North America’. So even after the US Customs seizures and returns Hobby Lobby will still retain a large holding of cuneiform tablets that are destined to be studied and published by members of the Green Scholars Initiative. The Green Scholars Initiative comprises ‘Scholars from 60 participating colleges, universities and seminaries around the globe’, but there is no evidence that any of them are Iraqi scholars from Iraqi universities. Similarly, we can look at the Cuneiform Library at Cornell University that holds approximately 10,000 cuneiform tablets formerly in the possession of Jonathan and Jeanette Rosen. This material is being studied and published with commendable alacrity, but again without the visible participation of any Iraqi scholars or universities.
No satisfactory account has ever been offered as to the source of all these tablets. They are widely believed to have been moved illegally out of Iraq in the years following 1990, and are now unavailable to Iraqi scholarship. Furthermore, they are being used to further the careers in Europe and North America of the next generation of cuneiform specialists, none of whom are Iraqi. So Iraq has suffered a double loss, first of the tablets themselves, and then of the intellectual or cultural capital that the tablets engender. Hopefully the next generation of Iraqi specialists is being trained elsewhere. I don’t know. Otherwise, going forward, Iraqi universities might struggle to re-establish themselves as international centres of excellence in the field of cuneiform studies, which is after all the study of Iraq’s history. There will be a long-term loss to the cultural and intellectual life of Iraq, a diminishment of the same public good that capacity building projects are intended to enhance. Thus while projects such as the British Museum’s Iraq Emergency Heritage Management Training Scheme, run in collaboration with the Iraq State Board of Antiquities and Heritage, are busy building capacity, other institutions are just as busily degrading it. Governments and their taxpayers might be excused for asking why their capacity building efforts are being undermined in this way.
Social and mainstream media are alight with speculation and anger after the release last week of an agreement between the US District Court Eastern District of New York and Hobby Lobby in answer to a complaint filed against Hobby Lobby by the Court. In short, the Court alleged that Hobby Lobby had acquired 3,450 archaeological artifacts probably from Iraq that had violated US customs regulations upon entry into the US. In the agreement, Hobby Lobby undertook to pay a $3 million forfeiture, relinquish claims to and possession of 3,599 artifacts, and implement a new antiquities policy to govern its collections. As always, Rick St. Hilaire provides a succinct summary of the case. Hobby Lobby is a US retail chain owned by the Green family. In 2009, the family established the Green Collection of objects related to biblical history and has funded the foundation and construction of the Museum of the Bible in Washington DC which will open later this year. Joel Baden and Candida Moss published a good overview in the January/February 2016 issue of the Atlantic.
Many commentators have complained that what looks to have been a large smuggling bust by US Customs was followed up with a civil complaint and fine but no criminal charges. The complaint is interesting in itself as it details the complex and evasive manoeuvres necessary to smuggle Iraqi artifacts into the US, and the roles played by a large and diverse cast of actors. Over this and the next post, I will describe the main substance of the complaint and agreement and consider some of their implications.
According to the complaint, on 15 July 2010 the Hobby Lobby President and an individual identified as a Hobby Lobby ‘Consultant’ inspected 5,548 artifacts for prospective purchase at an undisclosed location in the United Arab Emirates (UAE). The artifacts comprised cuneiform tablets, clay bullae and cylinder seals most likely from Iraq. Also present at the meeting were two Israeli dealers (ID1 and ID2) and a UAE dealer (UAED). In August 2010 the Hobby Lobby Consultant met again with ID1 and ID2, this time in Israel, and on 23 August reported back to the President and the President’s ‘Executive Assistant’. He had been told the artifacts were the property of a third Israeli dealer (ID3) and were part of ID3’s family collection. The collection had been stored in Washington DC before being moved to the UAE for the July inspection. The Consultant advised the President that the asking price was $2,091,000 but that the material would most likely have an appraised value of $11,820,000. On 30 August 2010, ID1 supplied written confirmation of provenance from ID3 for 5,313 of the artifacts. It states that ID3’s father had legally acquired them in the 1960s from local markets and that the collection had been moved to the US for safe storage in the 1970s. (The alleged US custodian subsequently denied ever having possessed the material).
While these negotiations were proceeding, on 9 August 2010, at the invitation of Hobby Lobby ‘In-house Counsel’, an invited legal ‘Expert’ made a presentation on relevant aspects of cultural property law to the President, In-house Counsel and Consultant. This presentation was followed up on 19 October 2010 when at the In-house Counsel’s request the outside Expert provided a memorandum detailing the risks associated with acquiring Iraqi cultural property and advising rigorous due diligence. This memorandum was received by the In-house Counsel but not shared with the President, Consultant or any other responsible officer.
On 8 December 2010 the President and ID2 signed a purchase agreement whereby Hobby Lobby agreed to pay $1,600,000 for the artifacts on offer. The associated invoice named ID3 as the seller and stated (falsely) that the artifacts originated in Israel. The President authorised wire transfers of the purchase money to seven personal bank accounts associated with five different people. The payees included ID1, ID2, UAED and two other individuals, but not ID3. Two days after the wire transfers, on 10 December, ID2 asked the President to amend the purchase agreement by replacing ID2 with ID3 as seller. The President complied on 15 December.
The first shipments
UAED starting shipping material through international post in November 2010. None of the shipping labels listed the origin or value of package contents. The shipments were as follows:
Number of objects
23 November 2010
13 or 23
19 December 2010
19 December 2010
19 December 2010
20 December 2010
20 December 2010
20 December 2010
Shipments were processed through JFK in New York. Each package was addressed to the President and/or the ‘Executive Assistant’ at Hobby Lobby or one of its affiliates, Mardel, Inc or Crafts, Etc!. The different addresses were used at the request of UAED. The complaint states that such practice is normal for smuggling cultural property so as not to attract the attention of customs agents.
The seized shipments
On 19 January 2011 US Customs and Border Protection seized five FedEx packages despatched by UAED that had been detained at Memphis, Tennessee. Together they contained 223 cuneiform tablets and 300 clay bullae. Three more FedEx packages had previously passed through Memphis and been received by Hobby Lobby. The seized packages were all described as ‘hand made clay tiles’ with Turkey listed as country of origin:
Actual purchase price
3 January 2011
50 cuneiform tablets
4 January 2011
300 clay bullae
4 January 2011
54 cuneiform tablets
5 January 2011
60 cuneiform tablets
5 January 2011
50 cuneiform tablets
The forfeiture complaint alleges the shipper knowingly falsified customs declarations as to value, description and country of origin.
The forfeiture agreement
On 16 May 2011 Hobby Lobby petitioned for the return of the seized material, submitting in support the provenance statement from ID3 claiming ownership of 5,513 artifacts and a further provenance statement from UAED (dated 1 May 2011) claiming ownership of 527 artifacts – the artifacts that had been seized. On 7 September 2011 Hobby Lobby further petitioned that the separate wire transfers were made to different people so that the original owners were paid directly (in apparent contradiction of the ownership claim made in the ID3 provenance statement).
In September 2011, months after the January seizures, Hobby Lobby received 1,000 clay bullae shipped by ID1 in Israel using international express post. The shipping label accurately described their contents but falsely stated country of origin to be Israel. (If these bullae were amongst those inspected in the UAE in July 2010, they must subsequently have been shipped back to Israel).
On the 5 July 2017 the US District Court Eastern District of New York filed the forfeiture complaint against ‘Approximately four hundred fifty (450) ancient cuneiform tablets; and approximately three thousand (3,000) ancient clay bullae’. The following day (6 July), the court filed the settlement agreement. Rick St. Hilaire has both documents on his blog. The main talking points of the settlement agreement are that:
Hobby Lobby agrees forfeiture of 3,000 bullae and 450 cuneiform tablets, together with a further 144 cylinder seals;
Hobby Lobby agrees forfeiture of $3 million;
Hobby Lobby agrees to implement an internal antiquities policy to govern its collection and future acquisitions of cultural property in compliance with either the Association of Art Museum Directors (AAMD) Guidelines on the Acquisition of Archaeological material and Ancient Art (2013) or its Protocols for Safe Havens for Works of Cultural significance from Countries in Crisis. The policy also provides for training of responsible personnel (including a qualified customs broker) in customs regulations and procedures and the legal and ethical requirements of acquiring cultural property.
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.