Cracking Down on Antiquities Trafficking by Changing Homeland Security’s “Seize and Send” Policy

ICE’s seize and send policy is illustrated by many of the agency’s press releases. It was restated last week during a Chasing Aphrodite interviewwith James T. Hayes, Jr., Special Agent-in-Charge of HSI New York.  Hayes defended the seize and send policy:

“The focus is always to return stolen property to its rightful owners,” Hayes acknowledged, saying making criminal cases was desirable but challenging. “You have to have a legal basis to prove those items, and you have to prove certain things and that proves very difficult.  We’re dealing with laws around the world, in foreign courts and different jurisdictions.”

HSI’s chief added, “At the end of the day, our primary responsibility is to get stolen property back to its rightful owners.”

The decision not to pursue prosecutions and instrumentalities forfeitures on a regular basis produces several negative outcomes:

First, because antiquities traffickers go unindicted, the risk of offenders facing the consequences of prosecution–jail, fines, probation, and/or a criminal record–is eliminated. Naturally, there is neither general nor specific deterrence against the commission of antiquities trafficking when there is no fear of getting caught.

Second, court sentences will continue to be light in those rare circumstances when antiquities smuggling prosecutions are actually brought forward. That is because the judiciary, not seeing many cases on their dockets, will believe that this criminal activity is insignificant in scope or impact.

Third, the infrastructures used to facilitate antiquities trafficking remain intact. Seizures of ancient pots or Egyptian sarcophagi may remove the fruits of an antiquities trafficker’s crime, but their confiscation by authorities likely represents a only portion of the trafficker’s illegal inventory at any given moment. Such limited seizures cannot be expected to shut down expansive global networks operating continuously. Seizures of the instrumentalities used to commit antiquities trafficking, by contrast, could help dismantle large swaths of trafficking infrastructures. Just as asset forfeitures in drug cases confiscate the automobiles, boats, planes, homes, etc. used in unlawful narcotics manufacturing and distribution networks, seizures of the instrumentalities used to traffic illegal antiquities could disrupt or shut down antiquities trafficking chains.

Finally, prosecutors and police will continue to confront both a learning curve and inefficiency so long as there is no change in enforcement policy. Routine antiquities trafficking prosecutions and enforcement, by contrast, would prompt prosecuting attorneys and detectives to meticulously learn how the crime operates, what evidence is commonly found in such cases, and what legal defenses typically arise. The experiences gained would foster more efficient criminal investigations in the field and more effective legal cases in the courtroom.

HSI’s chief is correct to observe that antiquities trafficking cases can be complex. But law enforcement authorities over the decades have discovered ways to unravel complex transnational transactions. If complicated international money laundering, commodities smuggling, and drug trafficking cases can be solved and prosecuted, so too can antiquities trafficking cases. Indeed, criminal organizations have little incentive to cease trafficking operations if law enforcement concede that their activities are too hard to prosecute.

When criminal investigations become too complex to warrant effective action under one set of laws, one enforcement tactic is to separate the overall crime into component parts, examining the parts under different statutes. So instead of building an antiquities trafficking case broadly around the National Stolen Property Act, for example–which relies on an review of foreign ownership laws to determine if a trafficking suspect has knowingly received stolen antiquities in violation of the statute–authorities might shift their focus to build a case on the basis of false statements. Put another way, one method of not “dealing with laws around the world, in foreign courts and different jurisdictions” is to focus on the cover-up rather than the crime.

Cicero said, “What one has, one ought to use: and whatever he does he should do with all his might.” HSI agents are seasoned investigators who should be given the green light to use their skills with all their might in an effort to expose the illegal antiquities trade and take down its networks. Partnering with prosecutors, HSI should systematically apply the National Stolen Property Act, the false statements law, and many other federal laws to successfully combat antiquities trafficking. Referring cases for state prosecution should also be a routine consideration rather than an occasional one. Coupled with the seizure of assets used to facilitate antiquities trafficking, regular prosecutions in the courts would dismantle or disrupt these criminal networks more effectively than the current seize and send policy.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com