Why Does the State Department Favor Import Restrictions on Cultural Property? Why Is CPAC’s China Recommendation Still Secret?

In Jeremy Kahn‘s excellent article in yesterday’s NY Times, Is the U.S. Protecting Foreign Artifacts? Don’t Ask, he provides a detailed analysis of the State Department’s secretive Cultural Property Advisory Committee, which studies requests by foreign countries for U.S. import restrictions on cultural objects. No such request has ever been turned down by the State Department, but the most controversial one—by the People’s Republic of China—has been pending for almost three years.
Kahn notes:
Dealers and collectors argue that the State Department’s professional staff has manipulated the nominations process in recent years so that a majority of committee members at any given time lean toward broad import restrictions.
What he doesn’t explain is why this might be so.
At least a part of what’s driving this is probably the U.S. government’s desire to score easy diplomatic points. As noted by art-law attorney William Pearlstein (in Who Owns the Past?, a compilation of essays on cultural-property issues):
U.S. enforcement agencies have no incentive to tolerate, much less promote, the importation of cultural property if the result would be to antagonize foreign governments that might, in consequence, withhold cooperation on matters…such as terrorism, drug smuggling, illegal immigration.
In other words, making concessions to foreign governments on matters of cultural patrimony is an easy way for the State Department to build diplomatic goodwill. The United State’s cultural constituency—museums, collectors, dealers—isn’t politically important enough to gain much visibility, let alone sympathy, at Foggy Bottom.
Kahn’s article leads off with the controversy over the sweeping request from China that essentially would mean that every pre-1911 Chinese cultural object still in China would stay in China. (I’ve written more about this here.) What he doesn’t tell us is that CPAC’s recommendation on how to respond to this request is said to have already been been transmitted to the State Department. Not only the deliberations but also the recommendations of the committee are kept secret.
At a recent museum law conference that I attended in Philadelphia, Elaine Johnston, assistant general counsel for the Smithsonian Institution, stated that CPAC had now “made its recommendation [on China’s request], which was never released.” This matter is now awaiting final action by the Secretary of State, she said.
As Kahn noted in his article, the State Department “withholds…the recommendations that the committee makes,” as well as “almost all material presented to the group to aid its deliberations.” One wonders if the decision on Chinese cultural property may be affected by the reportedly imminent formal trade complaint (see UPDATE, below) by our country against China, over pirated movies, music and software. We may never know.
Kahn also reported that C. Miller Crouch, deputy assistant secretary of state, defended the secrecy enshrouding CPAC on the grounds that “the law that created the committee explicitly exempted it from public disclosure requirements that apply to similar federal advisory committees.”
If so, that law runs counter to the spirit of open government and needs to be changed. There’s no good rationale for making an exception that uniquely shields cultural property deliberations from Freedom of Information and Sunshine statutes. No national security interests will be harmed by disclosing what decision CPAC has made on China’s request and how it has reached its conclusion.
If such transparency engenders controversy, so be it.
UPDATE: The U.S. today officially announced that it will “take China to court at the World Trade Organization over suspected trade barriers and piracy of books, music, videos and other goods,” according to a report by Steven Weisman for tomorrow’s NY Times. “All sides agree that the latest American actions portend a period of rough weather in United States-Chinese relations,” Weisman notes. It remains to be seen what this may portend for the cultural patrimony contretemps.