The remains of the Bamiyan Buddhas destroyed by the Taliban in Bamiyan, Afghanistan, August 2005
Ahmad Masood / Reuters

On January 1, the U.S. Congress passed its annual defense bill over the veto of President Donald Trump. The $741 billion National Defense Authorization Act funded the Pentagon, greenlighted pay raises for U.S. troops, and allocated resources to counter China and bolster cybersecurity. Tucked alongside these provisions was one that addressed a lower-profile concern: illicit activity in the antiquities trade.

The $28.3 billion U.S. art market has long evaded regulation. A culture of secrecy, together with rules that allow buyers and sellers to remain anonymous, has allowed criminals to exploit the art market to launder money, evade taxes, and finance terrorism. In July 2020, for example, a Senate report revealed that Russian oligarchs had skirted U.S. sanctions in the aftermath of Russia’s annexation of Crimea by buying more than $18 million in art through shell companies and an intermediary. When the major auction houses ran their due diligence, they investigated the intermediary but never asked whom he was buying for.

For the better part of the past century, the federal government capitulated to the wishes of a powerful coalition of museums and art collectors who lobbied against efforts to regulate the industry. But over the past two decades, in response to high-profile accounts of looting in Afghanistan and Iraq, as well as the discovery that the Islamic State (or ISIS) was using the sale of stolen antiquities to bankroll its operations, lawmakers have started to see an unfettered art market as a threat to national security, and they have acted accordingly.

The new law brings some welcome accountability to this realm: it subjects the trade in ancient artifacts to the transparency requirements of the Bank Secrecy Act, a 1970 law that requires designated entities to help federal authorities detect and prevent financial crimes. Antiquities dealers fought the measure, but it passed with wide bipartisan support.

The defense bill marks a real advance in the decades-long evolution of Washington’s approach to the art market. But its transparency requirements are only a first step. Congress and the State Department need to make it easier for the United States to assist countries whose patrimony is at risk—and not only when national security is clearly implicated. Protecting cultural property cuts off a major source of funding for terrorists and other transnational criminal organizations, but it is also smart diplomacy, a way to signal respect for a country’s heritage and build lasting goodwill. For a new administration looking to repair relationships around the globe, cultural protections are a win-win.    

PROTECTING PATRIMONY

Since at least 1970, when the UN Educational, Scientific, and Cultural Organization (UNESCO) adopted a landmark convention to protect cultural property, the United States has been reluctant to combat antiquities theft. The convention asked states to stop importing stolen cultural property and to help return looted items to their countries of origin. Although the United States participated in drafting the treaty—exerting its influence primarily to water down the text—it was not among the first group of countries to sign on. When the Senate eventually gave its advice and consent to the ratification of the convention in 1972, it added a reservation requiring Congress to pass implementing legislation before the treaty could take effect domestically.

Congress tried and failed to pass such legislation for the next decade. The State Department argued that the United States should help countries protect their cultural property “on grounds of principle, good foreign relations, and concern for the preservation of the cultural heritage of mankind.” But that plea was no match for art dealers and their congressional allies, who maintained that regulating the art market would put the country at a competitive disadvantage relative to art-importing nations that had not yet signed the treaty. Coin collectors, who worried about aggressive customs enforcement, formed another vigorous lobby against the bill.

For a new administration looking to repair relationships around the globe, cultural protections are a win-win.

The Convention on Cultural Property Implementation Act finally passed Congress in 1983, implementing the UNESCO treaty into U.S. law. It provided a long-sought framework for the United States to help countries protect their cultural heritage, allowing the president to sign bilateral agreements with requesting states to restrict imports of looted antiquities. But the law did not make it easy for states to ask for help. States wishing to secure U.S. assistance had to submit formal requests in writing, documenting their own efforts to protect their patrimony. Bilateral agreements then had to go through a lengthy bureaucratic approval process, and no agreement could last longer than five years without being extended.

Put simply, although the law was an important step forward, tackling the theft of stolen antiquities remained an afterthought in U.S. foreign policy. For policymakers, the issue lacked urgency—it took another 12 years for Washington to negotiate its first bilateral agreement (with El Salvador, in 1995), and even now, the United States has fewer than two dozen such agreements in force.

LOOTING LOOPHOLES

Events in the early 2000s began drawing public attention to the issue of cultural property. In 2001, the Taliban shocked the world by destroying the Bamiyan Buddhas, sixth-century statues carved out of sandstone cliffs in central Afghanistan. But what really galvanized Congress was the looting of the National Museum of Iraq in 2003. More than 15,000 artifacts were stolen from the museum during the mass looting that accompanied the arrival of American troops in Baghdad. Although a U.S. Army unit tried to investigate a report of looting at the museum, retreating under heavy fire, the media blamed American troops for standing by. Under pressure to act, Congress authorized the president to impose import restrictions on Iraqi antiquities without having to wait for a formal request from the Iraqi government.

More than a decade later, stolen antiquities would resurface as a U.S. national security issue with regard to ISIS. In 2015, U.S. Special Forces raided the compound of ISIS leader Abu Sayyaf, near Deir ez-Zor, Syria, and found receipts indicating that the group had made more than $1.25 million from looting and selling antiquities. In fact, ISIS ran a department of antiquities through which it sold permits to looters wishing to raid archaeological sites and then took a cut of any sale. To lawmakers, the national security implications of protecting cultural property had become clear. In 2016, by unanimous consent, the Senate passed the Protect and Preserve International Cultural Property Act, directing the president to impose import restrictions on cultural property from Syria. 

Over the years that followed, lawmakers worked to close loopholes that make the art market attractive to money launderers. Art dealers dispute the prevalence of illicit deals in their market, but the Treasury Department considers the buying and selling of art to be a “well understood method of illicit financial transactions.” In December 2019, for example, the Treasury Department imposed sanctions on a Beirut diamond dealer with close connections to Hezbollah who had been using an art gallery and extensive private art collection to shelter and launder money. The July 2020 Senate report, which detailed how Russian oligarchs had taken advantage of the U.S. art market, confirmed the industry’s vulnerability. Congress could no longer afford not to act.

A WIN-WIN SOLUTION

The new rules specifically extend the Bank Secrecy Act to those “engaged in the trade of antiquities,” but their application affords the United States an opportunity to regulate the art market more broadly. The European Union and the United Kingdom already subject high-value art transactions to regulations against money laundering, and there is no reason the United States—which accounts for 44 percent of the global art market—shouldn’t do the same.

Likewise, the United States should seize the occasion to bulk up its protection of cultural property. Congress could amend the 1983 act to include a blanket ban on importing stolen cultural patrimony; it could model this law on ones already on the books in the European Union. Doing so would build goodwill with countries whose patrimony is at risk—they would no longer have to request U.S. assistance to receive it—and send a clear signal to illicit buyers and sellers.

The United States should seize the occasion to bulk up its protection of cultural property.

Even short of a blanket ban, Congress and the State Department could help clear the roadblocks that prevent states from asking for help. The State Department should encourage diplomats to publicize and advocate for bilateral agreements in high-risk countries, and Congress might consider loosening some of the application requirements—especially for countries that lack the detailed records to prove that they have taken reasonable steps to protect their cultural property on their own. To streamline the process, the advisory committee that processes the applications, which currently meets three times a year, could meet more frequently.

Laws protecting cultural property will ultimately be only as good as their enforcement, and a dedicated effort is needed in this area, as well. The Manhattan district attorney’s office furnishes one promising model: its Antiquities Trafficking Unit has seized more than $175 million worth of antiquities since 2012. At the federal level, the Department of Justice could establish an office for investigating cultural property crimes, including money laundering, antiquities trafficking, and fraud. The most successful prosecutions will have to be global in nature, involving coordinated investigations across multiple countries, and they will need to be sensitive to new developments, such as the proliferation of online sales platforms and social networks, that allow the black market to flourish. 

A broad effort to clean up the art market may make it costlier to do business in the art world in the short term. But the benefits outweigh the drawbacks. Tighter regulation will make the art market less vulnerable to those who would exploit it for criminal purposes. And by strengthening cultural property protections, the new administration can not only weaken terrorists and other criminal organizations but also contribute to rebuilding U.S. friendships abroad.

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