Reason Magazine - Staff

Ancient Treasures for Sale

info@reason.com (Steven Vincent) — Fri, 01 Apr 2005 00:00:00 EST

As you read this, criminals somewhere in the world are destroying portions of mankind's past. With backhoe and shovel, chainsaw and crowbar, they are wrenching priceless objects from sites in the mountains of Peru, the coasts of Sicily, and the deserts of Iraq. Brutal and uncaring, these robbers leave behind a wake of decapitated statues, mutilated temples, and pillaged trenches where archaeologists were seeking clues to little-understood civilizations. The results of this looting include disfigured architectural monuments, vanished aesthetic objects, and an incalculable loss of information about the past. And it shows no signs of diminishing.

As you continue to read, other people across the globe are purchasing some of mankind's oldest and most exquisite creations. Contemplating ancient statues, vases, and stelae, many of these purchasers experience antiquities' near-mystical power to connect them to the past or to transcend time through beauty. Proud of their efforts, these private collectors, commercial dealers, and museum curators view themselves as temporary caretakers of timeless treasures. Their love for these artifacts often resembles the passion one associates with religious fervor. It, too, shows no signs of diminishing.

At first glance, the connection between those who loot antiquities and those who collect, trade, and preserve them seems the stuff of academic seminars and journals. Yet such is the allure of ancient treasures that, since the 1970s, this relationship has spawned global treaties, inflamed Third World nationalism, created a secretive Washington bureaucracy, and triggered federal prosecutions. To some, this international cooperation reflects the ability of the world's nations to unite to protect an endangered world resource. To others, it demonstrates the hazards resulting when "feel-good" multinationalism collides not only with the sovereignty of the United States but with the basic human desire to surround oneself with objects of beauty.

"We have a situation in this country today where American citizens pursue their legal rights under the shadow of prosecution by foreign laws, and private and public collections of antiquities are at risk to the demands of cultural ministers in other countries," says New York lawyer William Pearlstein. "The antiquities situation is a mess," echoes Kate Fitz Gibbon, a Santa Fe dealer in Central Asian artifacts. "We're heading for a major crisis in the near future."

Artifactual Dispute

It's been a decade since I first wrote about "cultural patrimony," the question of who has the right to own and exhibit mankind's aesthetic and archaeological treasures. At the time, stories were proliferating about looters plundering the temples of Cambodia's Angkor Wat and the tombs of Mali's Niger River delta. Archaeologists were still buzzing about the Metropolitan Museum's 1993 repatriation to Istanbul of the so-called "Lydian Horde" of gold objects, which smugglers had illegally excavated from Turkey and sold to the museum. I found the topic abstruse, filled with mind-numbing legal documents and visually stunning artifacts. All I knew for sure was that collector demand for these objects created incentives for looters to pillage archaeological sites in Third World countries. End the international antiquity trade, I thought, and the looting in those "source" nations would stop.

In the late 1990s, though, my investigations brought me to an urbane but down-to-earth antiquities dealer named Frederick Schultz. In his 57th Street gallery, filled with vitrines displaying relics of Chinese, Etruscan, and other ancient civilizations, the boyish Schultz explained the viewpoint championed by the "trade." Looting is indeed a problem, he conceded, but critics of dealers were wrong. The international antiquities market--together with the private and public collections it supplies--preserves ancient treasures and disseminates their beauty and influence across the globe. "A strong market assures a free flow of antiquities and acts in the best interests of everyone--archaeologists, collectors, and the people in source and market nations," Schultz argued.

He was persuasive. But then, as the head of the New York�based National Association of Dealers in Ancient, Oriental, and Primitive Art, he had to be; he was a high-profile defender of the trade and an adviser to the Clinton administration on issues involving antiquities.

Cultural patrimony was the focus of a complex, three-sided debate. On one side, there are the "internationalists": academics, dealers, and collectors who advocate a vigorous but regulated market as the best way to protect antiquities and promote global understanding and universal values. "The moment the Soviet Union fell, the world plunged into ethnocentricity," says George Ortiz, a celebrated collector of classical and Middle Eastern antiquities. "Instead of each group claiming its own heritage, we need to create a common culture by allowing art and antiquities to circulate around the world."

Opposed to this view is a second group comprised of source nation officials and Western academics who believe cultural patrimony is linked to a people's identity and sense of self-determination. As Claude Daniel Ardouin, then director of Senegal's West African Museum Program, once told me, "Our cultural heritage tells us who we are. I find it unacceptable that big dealers are sitting around in their shops in Paris and New York thinking about the pretty objects they are going to take from my country." These "nationalists" generally call for a trade that is limited, heavily regulated, and open to public scrutiny.

The third party is the most extreme. It consists of archaeologists who castigate the trade for removing cultural artifacts from their indigenous context, rendering them useless for scientific study. Unlike the nationalists, many archaeologists oppose the export of cultural property to insure its preservation and accessibility. "One cares about the people and the area in which we work, but our primary interest is to understand the history of the country," says Colin Renfrew, a member of the British House of Lords and director of the Cambridge University�based McDonald Institute for Archaeological Research. Many in this group would like to see the antiquities trade shut down altogether. According to Boston University archaeologist Ricardo Elia, "Collectors and dealers are dinosaurs. They think it's still the 18th century, when you could rip things out of the ground and put them on your mantle."

The Long Arm of Mexican Law

The nationalists' and archaeologists' illiberal amalgam of Third World nationalism, anti-capitalist sentiment, and distrust of aesthetic connoisseurship dates back to the U.N. Educational, Scientific, and Cultural Organization's (UNESCO) 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The first major international agreement to protect cultural property from thieves and smugglers, the convention created a legal framework allowing signatory governments to negotiate for the return of looted items. Over the years, UNESCO followed with further "recommendations" that clarified international rules for protecting and exchanging cultural property. These pronouncements reflected an increasingly anti-market bias. In 2001, for example, UNESCO declared that "underwater cultural heritage shall not be commercially exploited."

The U.S. signed the convention in 1972, and in 1983 Congress passed the Cultural Properties Implementation Act (CPIA), which established a process by which source nations could request U.S. import bans on archaeological material originating within their borders. Legislators hoped restricting entry into the American market would help reduce looting. Mindful of UNESCO's anti-market bias, however, they included in the CPIA measures to protect dealers, collectors, and museums. "We felt we were in the business of encouraging the legitimate circulation of cultural objects," says Meredith Palmer, who as a State Department official in the 1970s helped develop the legal and intellectual framework for the CPIA. "We took pains to ensure that any law based on the convention reflected the interests of the American people."

Be that as it may, the result was a classic example of what happens when the state decides to limit or prevent people from doing what they feel is their natural right, in this case purchasing antiquities. Under the CPIA, a nation seeking U.S. import restrictions on cultural objects must submit a petition giving its reasons for the request, documenting, among other topics, the severity of the looting problem and the country's own efforts to curtail it. Further, it must identify categories of endangered objects and specific sites jeopardized by robbers. An advisory committee reviews the request, then passes its recommendations to an anonymous State Department official empowered to approve the petition, generally for a period of five years.

The law does not require this official to declare reasons for the restrictions. Nor must the State Department provide the public with any documentation to support the decision. Even the advisory committee is not privy to all information. "The process is frustrating and shrouded in secrecy," says Santa Fe dealer Fitz Gibbon, who served on the committee from 2001 to 2003.

Worse, the CPIA proved ineffective in protecting the interests of American citizens. In November 1995, U.S. Customs agents entered the New York home of collector Michael Steinhardt and confiscated a third-to-fourth-century Sicilian gold bowl, or "phiale," that Steinhardt acquired from a New York dealer for $1.2 million. In February 1995, Italian authorities had requested the U.S. government's help in retrieving the phiale, which they claimed was part of Italy's cultural patrimony. (Italian law claims state ownership of all antiquities located in Italy, except for those privately owned before 1902.) Using the guidelines of the National Stolen Property Act (NSPA), U.S. officials agreed the phiale was stolen property. But as Steinhardt's defenders noted, Italy had not requested import restrictions under the CPIA. So what right did customs agents have in accusing Steinhardt of possessing stolen property and invading his home to confiscate it?

Enter McClain v. the United States, the most controversial aspect of the cultural patrimony issue in this country and a source of continuing acrimony and contention. When federal agents entered Steinhardt's home to confiscate the "stolen" phiale, they based their action on the 1977 case of an appraiser, Patty McClain, whom American authorities had arrested for carrying pre-Columbian antiquities across the Mexican border into the U.S. In that judgment, the U.S. Court of Appeals for the 5th Circuit in New Orleans, using Mexican law to define stolen archaeological property, upheld McClain's conviction. To put it another way, an American citizen was arrested, convicted, and jailed in the U.S. based on the cultural property laws of a foreign nation. "In my opinion," says Stanford University law professor John H. Merryman, a staunch supporter of regulated international antiquities trade, "McClain was poorly decided."

In Steinhardt's case, that 25-year-old ruling permitted Italy to assert its state ownership laws in American courts, thus turning the phiale into stolen property under U.S. law. Steinhardt unsuccessfully appealed in 1997, and the phiale was returned to Italy. The shock waves from the case are still being felt. Says Ashton Hawkins, former counsel to the trustees of the Metropolitan Museum: "The government made a lot of people apprehensive by seeming able to seize anything on the basis of a complaint from a foreign government. When the U.S. begins to enforce foreign laws against private citizens without due process, this is trouble."

The Antique Dealer in the Flak Jacket

Emboldened by the Steinhardt case, anti-market forces, particularly archaeologists, intensified their attacks. They began portraying dealers and collectors as greedy plunderers running what one archaeologist called a "vast international network" to loot countries in Central America, Europe, Egypt, and the Middle East. Ricardo Elia once declared to me that he wanted to make collecting as "socially distasteful as smoking cigarettes, wearing fur, or eating an endangered species." Lord Renfrew has accused major American museums of "stimulating much of the looting in the world." One Park Avenue collector told me he felt like donning a "flak jacket in public, like I was an abortion doctor." A new clamor arose concerning the world's most notorious case of "cultural plunder": the Elgin Marbles, sculptures from the Parthenon that Britain's Lord Elgin purchased in the early 19th century and shipped back to England. The British Museum has them on display, ignoring Greece's repeated requests for their return.

Whenever I dropped by Schultz's gallery, I found the director writing letters, articles, and legal briefs defending the trade. "This is ridiculous!" he griped one afternoon. "I read that archaeologists liken our profession to international drug dealers. They're saying we rake in $5 billion a year in dirty profits! Do you know what we estimate the entire international antiquities trade amounts to? Around $200 million a year! Where do they get the nerve?"

As the archaeologists stepped up their assault, the trade sharpened its arguments and continues to assert them today. "We have to," says New York dealer Jerry Eisenberg. "The charge that we're somehow responsible for the 'rape of the land' makes a greater impact on the public than our arguments about the benefits of trade." Stanford's Merryman frequently criticizes source country laws that define antiquities as state property. Egypt and Turkey, for example, assert ownership of certain privately held objects within their borders, including some owned for generations. Merryman argues that such laws ensure that the supply of material remains short, thereby creating a lucrative black market. Others, such as collector Ortiz, note that source countries maintain warehouses and storerooms filled with thousands of uncatalogued antiquities, many of which are just "rotting away."

Critics also observe that source countries are often unable or unwilling to pay their citizens for the antiquities they discover. Dealers maintain that many items are tomb objects uncovered by accident, for instance by farmers tilling their fields. If the farmers cannot sell what they discover in a legitimate market, and if their government will not buy such artifacts from them, they have two choices (aside from simply letting the state appropriate the finds): destroy the objects or sell them illegally.

There is also a problem of terminology, trade supporters argue. Many source country export laws blur the distinction between "looted," "illegally exported," "stolen," and "unprovenanced" objects, thereby making it appear as if dealers operate some vast criminal enterprise, when there are subtle but significant differences between those terms. For example, critics of the trade, including many journalists, unjustifiably assume that any antiquity without a solid early provenance probably has been looted.

"The burden of proof is on us, and that's unfair," Schultz frequently argued. "For hundreds of years, people have been buying and selling objects without keeping or publishing proper records. Many collections were built decades ago; contrary to what the archaeology Hezbollah maintains, there are bona fide old collections."

Teachings of Buddhas

In the winter of 2001, an event occurred that bolstered arguments in favor of an international antiquities market: Afghanistan's Taliban regime destroyed two colossal third-century sandstone sculptures of Buddha at Bamiyan. Although the statues, each standing more than 100 feet tall, were too large for purchase, their fate posed uncomfortable questions for source country nationalists and archaeologists. What happens when a country's government decides to eliminate rather than retain its cultural heritage? In such a case, wouldn't leaving objects in their archaeological sites threaten their existence? International trade, by contrast, would bring artifacts to safe harbor in private collections and museums.

"The market gives objects value," contends noted New York collector Shelby White. "Like we saw at Bamiyan, source countries often destroy temples for political or religious reasons. Other times, they simply use ancient columns and pillars for new construction. Then you have cases where common people who find antiquities often melt them down for the gold, or simply throw them away. They don't care about the craftsmanship or beauty of the object."

These problems are not confined to rogue nations. For example, China's Three Gorges Dam project, when completed, will submerge countless undiscovered antiquities beneath a 400-mile reservoir. "A stronger market system could have created incentives for Chinese officials to excavate and preserve the objects and sell them," notes Jim Fitzpatrick, a Washington, D.C.-based lawyer who lobbies Congress on behalf of the trade. "When they permanently flood untold numbers of irreplaceable artifacts, how much does China really care about their antiquities?"

But if market supporters felt the destruction of the Bamiyan Buddhas and the Three Gorges Dam had finally given the trade the moral high ground, their victory was short-lived. In July 2001 federal prosecutors accused a prominent antiquities dealer of handling objects that a confederate had smuggled from Egypt. For the trade, this was a catastrophe. Because the government based the indictment largely on McClain, a conviction in the case risked confirmation of that notorious ruling by the U.S. Court of Appeals for the 2nd Circuit, which has jurisdiction over the New York art market. Not only that, but the indicted dealer was none other than Frederick Schultz.

Schultz's trial, held in February 2002, was a veritable how-to guide for smuggling ancient artifacts. The star witness against the dealer was the former British cavalry officer and master antiquities restorer Jonathan Tokeley-Parry. According to Tokeley-Parry's testimony, from 1990 to 1994 he purchased numerous items, including statuary, from Egyptian "farmers and builders," used his restoration skills to disguise them as tourist tchotchkes, and spirited them out of the country.

His actions violated Egyptian Law 117, which states that any antiquities found within the country's borders are state-owned and thus cannot be exported or sold. Tokeley-Parry (who evidently turned against Schultz in order to shorten a prison sentence in England involving other smuggled Egyptian antiquities) testified that Schultz sold these and other illegally acquired objects to Western collectors, claiming they originated from the fictitious "Allcock Collection," supposedly begun in the 1920s.

Buy an Antique, Hire a Lawyer

In response, Schultz portrayed himself as an innocent associate of Tokeley-Parry, hounded by overzealous prosecutors. Egypt itself had made no claim for the objects the Englishman had taken out of the country, the dealer argued. Furthermore, Egypt had never requested import restrictions as required by the CPIA. The only justification the U.S. government had in declaring Tokeley-Parry's objects as "stolen property" was Law 117. And the only reason it could use foreign law to accuse Schultz of a crime was the McClain ruling. "If the court agrees that Congress intended the CPIA to set our country's policies toward antiquities, then Fred has a good chance of acquittal," a lawyer supporting Schultz told me at the time. "If the court decides to apply McClain, he could be in trouble."

U.S. District Judge Jed Rakoff applied McClain. Ruling that the CPIA and McClain were not mutually exclusive, he upheld the government's contention that under U.S. law Tokeley-Parry stole objects from Egypt; prosecutors then worked to prove that Schultz knowingly handled these pilfered artifacts. After a brief deliberation, the jury found the dealer guilty of a single charge of conspiring to handle stolen property. In June 2002 Rakoff sentenced him to 33 months in prison and a $50,000 fine.

For the anti-trade camp, this was Wellington at Waterloo. A highly respected dealer had been convicted for his involvement in a smuggling operation, proving beyond a doubt the link between the antiquities trade and looting. Moreover, Schultz's conviction affirmed McClain in the 2nd Circuit, the heart of the antiquities trade. "McClain is now established in the 5th, 2nd, and 9th circuits," notes Patty Gerstenblith, a DePaul University law professor and former president of the Archaeological Institute of America. "I don't think market people recognize what an important legal development this is. They're in denial."

Not all of them. "The fact that the 2nd Circuit upheld McClain is huge, no doubt about it," agrees Fitzpatrick, the Washington lawyer. "But how far will prosecutors take it? Does this mean that anyone who purchases an antiquity in the U.S. has to hire a lawyer first, to make sure the purchase doesn't violate a foreign country's patrimony laws? What's the state of these laws around the world? Which ones apply, which ones don't?" Fitz Gibbon, the Santa Fe dealer, says, "I fear the government is gearing up for more prosecutions, using McClain and the NSPA. Where will it end? This will only be settled by some huge court case involving a museum collection, I'm afraid."

Schultz's conviction did not bring a truce to the cultural patrimony wars. The bitterness continues, with archaeologists and the trade each rallying around a new cause c�l�bre. For the archaeologists, it is the purchase last fall by the Cleveland Museum of a bronze statue of Apollo, between 1,700 and 2,400 years old. The object's documentation dates back to an East German lawyer who claims to have discovered it on his family estate in the 1990s. "This is just simply not a convincing provenance," contends Malcolm Bell, a professor of art history at the University of Virginia and a vice president of the Archaeological Institute of America.

Worse, the museum purchased the work from Phoenix Ancient Art, a business headquartered in Geneva, Switzerland, owned by brothers Ali and Hicham Aboutaam. Last year an Egyptian court sentenced Ali in absentia to 15 years in prison for smuggling; last June, Hicham pleaded guilty in New York to a federal charge of falsified documents pertaining to an ancient silver vessel that the Phoenix Gallery sold for $950,000. "How, in this day and age, can a respectable museum do this?" demands Lord Renfrew. "Doesn't the American taxpayer realize they are subsidizing the purchase of items like these through government support of museums? I find it curious there is not more outrage."

As for the trade, its members are currently preparing to do battle over a CPIA request submitted last May by the People's Republic of China asking for restrictions on an array of objects, including nonarchaeological works like calligraphy and paintings dating from as recently as 1912. Says the New York�based Asian dealer James Lally, "I fear that these import restrictions are so broad they may inhibit the legitimate trade in Chinese material and chill the honorable practice of collecting."

In the past, dealers note, the Chinese government did not want to shame itself by seeking U.S. help to curb its looting problem, relying instead on Chinese collectors to buy back the nation's cultural patrimony. So why make a request now?

One theory posits that a new and more nationalistic director of the State Bureau of Cultural Relics has pushed for these restrictions. Others believe it's part of a quid pro quo: China cracks down on pirated CDs, and we close off our shores to Chinese material, helping to boost China's domestic market for antiquities. Or perhaps, as the dean of Chinese dealers, Robert Elsworth, suggests, "Instead of letting construction projects like the Three Gorges Dam destroy objects, China may simply let looters take them out of the country, then use U.S. Customs officials to intercept and return them back to China." In keeping with the secrecy surrounding these petitions, a State Department spokesman says officials are reviewing China's request and have yet to schedule private or public meetings on the issue.

Hidden Objects

No resolution to this conflict is in sight. Changes have certainly occurred, though. Take Iraq. So far, few objects looted from the war-torn country have appeared on the market. "Five years ago, you would have seen Iraqi objects up and down Madison Avenue," comments DePaul's Gerstenblith. "Our efforts have proven successful in that area." (Others argue that thieves simply have filled up warehouses with pilfered Iraqi antiquities, waiting for the statute of limitations to expire.)

Has the rate of worldwide looting actually diminished? "I don't think so," says collector White. "Objects are going elsewhere--to Japan and Europe and the Middle East. All we've done is make public and private collections more vulnerable to claims from foreign countries. At the same time, we've made it harder for Americans to see the glories of the past."�

Grave Injustice

info@reason.com (Steven Vincent) — Thu, 01 Jul 2004 00:00:00 EDT

Imagine an America where the federal government takes an active role in promoting the spiritual values of a certain cultural group. This group rarely documents its largely unknown religious practices and in fact considers many rituals too secret for public knowledge. Yet should outsiders violate its beliefs, the government can threaten them with lawsuits, fines, or prison sentences.

Many people believe this scenario needn't be imagined at all, because this America exists now. A statute called the Native American Graves Protection and Repatriation Act (NAGPRA) has created a legal and cultural imbroglio that has scientists frustrated, art dealers scared, and the general public befuddled. In the words of one archaeologist, Geoffrey Clark of Arizona State University, "What we're seeing here is the triumph of political correctness over logic and reason."

To Native American groups and their supporters, NAGPRA and similar laws are long-overdue measures that protect burial remains and sacred objects, helping redress the wrongs Indians have suffered since 1492. According to Arizona Judge Sherry Hutt, speaking before the U.S. Senate in 1999, NAGPRA is "one of the most significant pieces of human rights legislation since the Bill of Rights." For Fort Lewis College anthropologist Kathleen Fine-Dare, author of Grave Injustice: The American Indian Repatriation Movement and NAGPRA, "This was more than a law; it was a change in the American consciousness." Cherokee tribe member Steve Russell, an associate professor of criminal justice at Indiana University, says the law "has helped transform Indian bones from archaeological specimens to the remains of human beings."

The law's critics disagree. "This law presents a clear and present danger to our study of the past," says Alan L. Schneider, an attorney with the Oregon-based pro-archaeology group Friends of America's Past. "The people in Congress who voted for this measure never thought it would go this far." The sentiment is echoed by a leading dealer of Indian artifacts who, like many people interviewed for this article, prefers not to be identified by name. "NAGPRA frightens everyone -- dealers, collectors, everyone," he says. "I don't want Big Brother snooping around my business."

How did a well-intentioned piece of legislation come to provoke fears of Orwellian snooping? The answer involves the weighted history of Indian relations, a vaguely written federal law, and the zealous agencies that seek to enforce it, as well as aspects of Native American culture that strike some non-Indians as confusing and often contradictory.

Repatriation Rising

Signed by the first President George Bush in 1990, NAGPRA requires federal agencies, and institutions that receive federal money, to inventory any bodily remains or important cultural artifacts of Indians, native Alaskans, or Hawaiian peoples in their collections -- and to return those items, on request, to "culturally affiliated" tribes or descendants. In addition, the statute restricts commercial trade in those objects. Exempt from the law are objects held by the Smithsonian Institution (a separate statute, the 1989 National Museum of the American Indian Act, covers those) or objects found after 1990 on state-owned lands (most states have their own repatriation laws). Nor does NAGPRA apply to items amassed in private collections before 1990 or discovered on private land.

"Congress was seeking a balance between private rights and the rights of Indians," says Jack Trope, executive director of the not-for-profit Association on American Indian Affairs (AAIA), who served as an instrumental adviser to legislators during the creation of NAGPRA. "But at the same time, most people drafting this law felt that our legal system needed to do a better job of representing Native American culture."

The act was the latest in a series of often faltering efforts to preserve Native American culture and grant Indians equal protection under the law. Congress established the Antiquities Act of 1906 in part to prevent the looting of Native American sites. In 1978 legislators passed the American Indian Religious Freedom Act, under which the government recognized Indian religious values and rituals, and in 1988 they created the Archaeological Resources Protection Act, which mandated stiff penalties for removing Native American objects from public lands without a permit. The law, however, stipulated that recovered objects remained the property of the United States, to be "preserved by a suitable university, museum, or other scientific or educational institution" rather than repatriated to tribes.

The sea change in public attitudes toward Native American culture began in the most unlikely of places. In 1976 Maria Pearson, a Yankton-Sioux woman living in Iowa, learned that a road crew had excavated a grave site, unearthing 26 Caucasian skeletons and one of an Indian woman. State officials reburied the white bones in a new cemetery but shipped the Indian remains to Iowa City for further study. "That's discrimination," said Pearson, recalling the incident for an Iowa newspaper in 2002. "What made those white people not worth studying? The Indian has got to remain buried just like everyone else."

Arguing that the issue was a civil rights violation, Pearson went to Iowa's governor, only to be rebuffed. Undeterred, she fought on, rallying a grassroots movement that led, in 1982, to the first state law requiring that public agencies return Native American remains to their affiliated tribes. Coupled with a rising interest nationwide in Indian rights, Iowa's statute gave impetus to a legal groundswell that eventually led to NAGPRA.

Today museums across the country are inventorying and repatriating thousands of bones and funeral objects held in their collections. For example, the Smithsonian's Museum of Natural History is returning some of the 18,500 human remains and tens of thousands of artifacts it possesses from over 90 indigenous peoples. In the largest repatriation case to date, the Robert S. Peabody Museum at Phillips-Andover in 1999 returned the bones of 2,000 Pecos Indians and over 500 funerary items to the pueblo of Jemez, New Mexico. As recently as last October, Chicago's Field Museum returned the bones of 150 people to the Haida tribe in British Columbia.

"It's been good for everyone," says Fort Lewis College's anthropologist Fine-Dare, who applauds her own institution's efforts to inform more than 25 Indian tribes about the school's holdings of Native American bones. "It helps show that historical wrongs can be corrected -- and that museums don't have to be gutted in the process." Still, in part because of the huge number of bones possessed by American museums, "only around 10 percent have found their way back to their tribes since NAGPRA's passage," estimates Karenne Wood, repatriation coordinator for the AAIA.

Abusing the System

Few, if any, critics take issue with returning bones of Indians to their descendants. It's the abuse of the process that angers many archaeologists and anthropologists. They argue that NAGPRA has given Native Americans license to claim human remains whether or not there is a genealogical link, often at the expense of scientific knowledge.

In 1988, for example, an 8,000-year-old skeleton was found in Hourglass Cave in the Colorado Rockies. The National Parks Service repatriated that skeleton to the Ute Indians after a study that many leading anthropologists thought was inadequate. In 1989, similarly, an 11,000- year-old skeleton was discovered in Idaho. State officials turned it over to the Shoshone-Bannock -- permitting only one anthropologist to examine the bones -- even though the tribe is believed to have dwelled in the region for only 2,000 years. "NAGPRA and similar laws have created expectations among Native American activists and some government officials that they can use these statutes to impede scientific study," says Schneider of Friends of America's Past.

Worse, critics contend, the law encourages Indians to assert claims based on myths, rituals, oral traditions, and other tribal practices not normally recognized by the scientific community. Some Indians now argue that information garnered from the study of their ancestors' bones is "proprietary" and thus the exclusive possession of the tribe. Others attempt to prevent the publication of photographs of sacred objects or to dictate the circumstances in which institutions exhibit certain artifacts, based on claims that the items are "alive" or otherwise possess a divine spirit.

In many cases Indians have persuaded state agencies to uphold tribal taboos, such as preventing menstruating women from handling certain objects. "A lot of this nonsense comes from the politicization of NAGPRA," says one physical anthropologist who wishes to remain anonymous. "Many Indian tribes are just creating traditions as a way of pursuing social, legal, and cultural power."

The issue came to a head with Kennewick Man. In this much-publicized case, the chance discovery of a skull along the Columbia River in Kennewick, Washington, in 1996, led to the finding of 9,000-year-old skeletal remains. Although scientists believed the bones originated from a Caucasian man, a coalition of Indian groups claimed the remains, asserting that the skeleton lay in territory that has traditionally belonged to their people. Or, as one tribal leader stated, "From our oral histories, we know that our people have been part of this land since the dawn of time." The U.S. Army Corps of Engineers -- which has jurisdiction over the Columbia River -- accepted this argument and announced it would repatriate the skeleton.

Members of the scientific community cried foul and filed a lawsuit; the government and Native American tribes appealed. As the case awaited resolution, archaeologists found they had to battle Indians and their government supporters for every scrap of information they could glean from the skeleton. "The government did a CAT scan of the bones and we asked for the results," says Schneider, who served as a lawyer representing the scientists in the case. "Native Americans objected, and we had to file a motion to see the data." In the words of one physical anthropologist, "It's clear to me that Native Americans are eager to block study of the skeleton. Otherwise it might prove they were not the first to inhabit this continent."

On February 4, a three-judge panel of the 9th Circuit Court of Appeals ruled in favor of the scientists, arguing, in effect, that the Indians had put forth an "extreme" definition of "Native American." At press time, the tribes had not yet decided whether to appeal the ruling.

To NAGPRA's credit, the law has been used to deny many of the more outrageous claims. In 1993, for instance, archaeologists working on a 10,000-year-old site in Montana discovered some ancient human hairs and announced their intention to study them. Although there was no evidence of burials at the site, two Indian tribes, the Confederated Salish and Kootenai and the Shoshone-Bannock, filed a NAGPRA suit, contending in part that such research was sacrilegious. The government rejected their argument -- although the lengthy court battle prevented study of the hairs for years.

A similar case involves the Fallon Paiute-Shoshone, who in 1997 attempted to assert "cultural affinity" with the 9,500-year-old remains found in Spirit Cave, Nevada, basing their claim largely on tribal traditions that indicated their ancestors had lived in the area since "time immemorial." In that case the tribe's claim was rejected. In November 1999 the Confederate Tribes of Grand Ronde, Oregon, claimed the Willamette Meteorite on display in New York's Museum of Natural History, calling it a "holy object" that conveyed messages from the spirit world. The case was settled with an arrangement that allows the Indians access to the meteorite for cultural and religious purposes.

Perhaps the most bizarre NAGPRA case involves Honolulu's Bishop Museum. This institution had in its collection 83 artifacts and human remains taken in 1905 from the Kawaihae Cave complex on Hawaii. In 2000 the museum gave the objects to an ethnic Hawaiian organization called the Hui Malama, which proceeded to rebury them somewhere in the cave complex. Several other native Hawaiian groups complained, arguing that the Bishop had not allowed them time to assert their claims to the objects, as stipulated by NAGPRA. The issue was taken up by the NAGPRA Review Committee, which last May castigated the museum for giving the Hui Malama possession of the objects and ordered the group to return the objects to the museum. When the Hui Malama refused, the Bishop requested the right to break into the complex and seize the objects. The Department of Hawaiian Homelands declined the request, and the matter is heading for the courts.

It's this affirmation of group -- or tribal -- rights over the imperatives of science and the free transmission of knowledge that outrages so many critics. "This is a question of who owns the past," maintains Arizona State's Clark. "I believe in an archaeology that is scientific and belongs to the national patrimony, not to any ideology or 'consciousness group.'" Others worry about the statute's effect on the law in general. Argues attorney Schneider, "A lot of people in government agencies have bought into the idea that they can do anything they want to do right by Indians. Look at the state of Nebraska -- it repatriated all skeletal remains to Indian tribes, even those which were Caucasian."

Meanwhile, Schneider continues, "you have agencies giving tribal oral traditions the same weight as written documentation -- and people in the federal Justice Department contending that scientific study of Indian culture is a savaging of that culture." Add to these concerns the extraordinary sensitivity the government shows toward Native American religion, and you have what many perceive as a kind of touchy-feely attack on fundamental standards of science and knowledge. As the late Clement Meighan, a UCLA archaeologist and fierce NAGPRA critic, wrote in the November 1994 issue of Archaeology magazine, "The New Age disposition to invoke or invent beliefs no one really holds, and to maintain they are of a value at least equal to, if not supremely greater than, those that account for the triumph of Western civilization, is given concrete expression in the repatriation movement."

Crackdown

At least no one's going to jail. Well, not in the museum community. The story is different among commercial traders of Native American artifacts. Says Jeff Myers, a New York dealer of Eskimo artifacts, "What started as a way to return Indian bones and protect Native American burial grounds from looting has turned into something far more complex and troubling."

The first case of a private individual convicted under NAGPRA occurred in 1994. FBI agents arrested an Arizona man, Richard Corrow, for attempting to sell sacred Native American artifacts he had purchased on tribal lands. He also possessed objects containing bald eagle feathers, in violation of the 1940 Eagle Protection Act and the 1918 Migratory Bird Treaty Act (MBTA). He received five years' probation. In 1997 a federal court in New Mexico sentenced Arizona dealer Rodney Tidwell to 33 months in prison for selling Acoma priest robes and Hopi ritual masks. Both Corrow and Tidwell appealed, arguing that NAGPRA is too vague regarding which Native American objects are sacred and which aren't. Although their appeals were unsuccessful, the debate they started continues.

Critics maintain that the whole idea of "sacred objects" is often highly problematic and open to various interpretations and politicization. Many Indians converted to Christianity, they observe, and sold or gave away objects they once considered holy. Now, encouraged in part by NAGPRA, Indians are rediscovering their ancestral beliefs and demanding the repatriation of those items. "A lot of Native Americans are born-again animists," Ramona Morris, president of the Antique Tribal Art Association, notes wryly. Others complain that, given more than 2 million Native Americans of over 769 federally recognized tribes, no one knows the full extent of Indian rituals and methods of worship, including many that Indians keep secret.

The only authorities are Indians themselves. As one leading Santa Fe dealer moans, "The government will ask Indians, 'Is this important to your tribe?,' and of course they'll say yes in order to get possession of the objects. Next thing you know, they're putting it back on the market." Perhaps even more troubling, by relying on the subjective judgment of tribal leaders, government agencies edge closer toward a relationship with Native American spirituality that violates the constitutional separation of church and state.

Tribal art dealers stay on the right side of the law by avoiding human remains, objects known to be deemed sacred (such as tribal masks), and anything containing the feathers of eagles and other birds protected by law. At the same time, dealers handle only artifacts they know have come from private collections, since NAGPRA's jurisdiction over Native American objects is limited to those that originate from federal or tribal lands. But some observers worry that even this affirmation of private ownership is eroding. "Although the law was originally intended just for museums," says Albuquerque's Robert Gallegos, one of the few dealers unafraid to publicly criticize NAGPRA, "federal agencies are trying to make it apply in the private sector."

In the early 1990s this fear was palpable among dealers in the southwest. Back then there were stories of raids by a joint task force that included agents from the FBI, the Bureau of Land Management (BLM), the Bureau of Indian Affairs, and the National Park Service, among others. This task force would storm into even the most respected Santa Fe businesses looking for contraband "as if we were crack houses," in one dealer's words. The feds disbanded the task force in 1992, but a BLM spokesman defended the agents' actions at the time: "For years dealers have had a free hand in illegally trafficking Native American artifacts...so of course they're going to complain and spread accusations against us." These days, dealers say, NAGPRA enforcement has eased up. Unchanged, however, is the government's dismissive attitude toward dealers' concerns. For example, when I asked a spokesman for the U.S. attorney in New Mexico about the trade's criticisms of NAGPRA, he replied that he didn't know of any negative comments. After hearing a list of complaints about the law and its enforcement, he scoffed that "somebody's fed you a lot of paranoia." Dealer Gallegos thinks that paranoia is just the point. "The government wants dealers to get paranoid about the law," he says. "They want us to become so afraid of NAGPRA that we voluntarily stop trading in this field and don't challenge the law in court."

In the view of Gallegos and others, the feds will often bundle a NAGPRA violation together with court-tested laws such as the MBTA. "But prosecutors will get the dealer to plead guilty to NAGPRA," Gallegos adds. "In this way, they build legal precedents to buttress NAGPRA, while spreading a climate of fear through the dealer community."

The Sting

This strategy is what many observers believe lay behind the government's sting operation against respected Santa Fe artifact dealer Joshua Baer, perhaps the most alarming private-sector application of NAGPRA so far. The case began in August 1999, when Baer was approached by an art dealer named Bob Clay. Clay told Baer he was representing a wealthy Norwegian collector named Ivar Husby who was interested in buying some first-rate Indian artifacts. In fact, Clay was undercover FBI agent Robert Whitman and Husby was an agent of the Norwegian National Bureau of Investigation. During the next 16 months, Baer did some $40,000 worth of business with the two men, as they wormed their way into his confidence. In September 1999, the agents expressed interest in purchasing items from the dealer's personal collection. Baer at first declined, noting that the objects contained eagle feathers, which the MBTA forbade him to sell.

The agents persisted in their requests, with Husby threatening to terminate future business dealings. In need of cash -- his gallery was suffering financial difficulties -- Baer relented under the pressure and offered Husby more than a dozen Indian artifacts from October 1999 to January 2000. Federal agents raided Baer's gallery in January 2000, confiscating artifacts and business records; in October 2001, he was indicted for violating NAGPRA and the MBTA.

"This was a classic abuse of the law, when cops enforce a vague statue and make criminals out of people," says Albuquerque lawyer Peter Schoenburg, who represented Baer in the case. "How do you define what's sacred to Indians? The traditions are secretive, sometimes contradictory, and tribes refuse to write them down. Take the Navajo bull-roarers, for instance -- Navajos will say some, none, or all the bull-roarers are sacred. How is anyone to know?" (A bull-roarer is musical instrument consisting of an oval piece of wood attached to a lasso.) Even worse, Schoenburg argues, was the way the two agents manipulated Baer. Agent Whitman actually became a close friend of the Baer family, writing to the dealer soon after the raid on his gallery: "I've been doing this all over the world for a long time. This was the toughest case I ever had because I truly like you and your family." Schoenburg filed a motion arguing that the agents' behavior constituted entrapment, but the court dismissed it.

In September 2002, Baer pleaded guilty to six charges of violating the MBTA and three charges of violating NAGPRA, crimes that carried a maximum penalty of 10 years in prison. But Judge John Edwards Conway sympathized with the dealer, noting at Baer's sentencing that many of the types of objects he had offered for sale had been sold by Native American tribes themselves. Conway refused to give Baer prison time. "This is not my favorite statute, so I'm not going to put him in jail," the judge remarked. Astonishingly, he even encouraged Baer to spread the word about NAGPRA to other dealers because "most people have no idea this law exists."

Native Americans and their advocates respond that most people have no idea how important NAGPRA has been in protecting Indian culture from looters, who regularly pilfer objects. (Archaeology magazine once estimated that thieves have ransacked 90 percent of the known archaeological sites in the Southwest.) "Native Americans suffered from a kind of historical trauma," says the AAIA's Trope. "The repatriation of ancestral objects is a very emotional, healing experience for them." Moreover, the horror stories about the statute ignore the ways NAGPRA has increased scientific knowledge. "Through consultation with Indians, we've learned more about tribes than ever before," says Thierry Gentis, assistant curator and collections manager of the Haffenreffer Museum at Brown University.

But even if you grant those points -- and not every critic of the statute will -- that would simply suggest that the law should be reformed rather than repealed outright. In practice, NAGPRA's opponents say, the law has done far more for new age sophistry and legal abuse than for science and justice. "In the end," says archaeologist Clark, the struggle is "all about identity politics and power."

Faith, Shame, and Insurgency

info@reason.com (Steven Vincent) — Mon, 01 Mar 2004 00:00:00 EST

Unless you're a VIP who can fly directly into the Baghdad airport, the usual way to get to the city is from Amman, Jordan -- a 600-mile, 12-hour-plus drive (depending on the vagaries of Jordanian customs officials) across barren terrain only a Bedouin could love. My Iraqi driver picked me up at my hotel at 1 a.m., and after interminable hours bouncing in a GMC Suburban along unmarked pavement lit by stars, we hit the border at dawn. By a neat bit of timing, the sun was just lifting over the horizon when we cleared the final checkpoint and, as I slipped a Nelson Riddle tape into the cassette player, we were off again, roaring across the Mesopotamian desert to the strains of "Route 66."

I'd come to Iraq to test my beliefs. Back in New York, I'd been a firm and vocal backer of the war, though not necessarily of the Bush administration. After witnessing firsthand the horrific events of 9/11, I felt the civilized nations of the world had to take on terrorism at its roots -- roots that included the Middle East's legacy of poverty, hopelessness, and despotism, epitomized by, among other tyrants, Saddam Hussein. Saddam may or may not have contributed to the murder of 3,000 people in downtown Manhattan, but I believed a free and prosperous Iraq, spreading ripples of democracy and the rule of law from Damascus to Riyadh, was a key element in preventing similar attacks in America or elsewhere.

But a question had always nagged me: How could I truly endorse the war unless I actually went to Iraq? How did I know my assumptions were correct? And so last fall I traveled to the cradle of uncivilization, staying in Baghdad from mid-September to late October, with a four-day trip to the southern city of Basra. Although my experiences were by no means exhaustive, I feel confident that they were intense and profound enough to offer a valid perspective on the state of Iraq today. I spoke to cab drivers, Islamic clerics, waiters, Western journalists, American and British soldiers, anti-war activists, human rights activists, Iraqi housewives, employed and unemployed academics, children, U.S. government officials -- as close to a full panoply of current Baghdad life as I could. What I saw and heard surprised, delighted, and horrified me in ways I could never have predicted. I still support the war -- even more so, in fact. But I'm less optimistic than I was on April 9, 2003, the day the statue of Saddam fell in downtown Baghdad, when, through my tears, I believed the good guys had won.

I realize no single account will sway someone as to whether the Iraq war was justified. Indeed, for many opponents of the war, the demise of Saddam Hussein and America's flawed attempts to establish democracy in that country are beside the point. But I wonder how they can assume that their suppositions are correct until they do what I did -- go to Iraq and discover for themselves what the Iraqi people think and feel about Saddam and the U.S.

Taking the Pulse

My education in the realities of Iraq started early. At a truck stop near the "Sunni Triangle," the area west of Baghdad populated by foreign and Ba'athist guerilla fighters, we picked up an Iraqi doctor whose car had broken down. As we passed through the volatile towns of Ramadi and Fallujah, where booby traps and ambushes kill or wound American soldiers daily, the doctor pointed out the surrounding vegetation: verdant fields, hedges, palms, and even, he said, copses of birch trees. "To reward his followers," he explained, "Saddam diverted water from the Euphrates River to turn this area into a Garden of Eden." In doing so, however, the tyrant drained thousands of square miles of fertile wetlands in southern Iraq to punish the local "Marsh Arabs" who revolted against his regime after the first Gulf War. "In this way," the doctor concluded, "Saddam turned a desert into gardens and gardens into desert. He corrupted the very geography of Iraq."

Baghdad is an unlovely place. Thirty-five years of war, economic sanctions, and now looting have resulted in gutted buildings, pitted streets, and garbage-strewn fields where packs of dogs run through monotonous neighborhoods of plaster and poured concrete. The dominant color is brown: brown skin, brown buildings, and brown sky, the last from the smog that chokes the city like a five-pack-a-day habit. Add autumnal temperatures of 100 degrees or more, nightmarish traffic jams, and the ever-present threat of crime and suicide bombings, and you've got a place unlikely to top anyone's vacation list.

But if you're interested in hooking up with the Baghdad scene, there are two places to go. One is the Hewar Gallery, northwest of the city's center. As with Rick's American Café in Casablanca, everyone goes to Qasim Septi's combination art gallery, teahouse, and gossip nexus, where former Ba'ath Party members and former agents for the Mukhabarat, Saddam's secret police, hobnob with many of the same people they spied on for the old regime. (The unspoken rule regarding Saddam supporters: Unless they actively tortured or killed people, Iraqis forgive and forget.) At the Hewar I met what passes for Baghdad's bohemians: young, smart, male artists and writers, whose fluency in English makes them the go-to guys for foreign visitors seeking insights into Iraq. I wasn't sure what I'd hear when I asked them about the war.

"When I saw the statue of Saddam fall, I couldn't believe it; I thought I was dreaming," said sculptor Haider Wady. "We use to pray to live for just five minutes without Saddam Hussein. Now we have the rest of our lives!" Painter Mohammad Rasim remarked: "We were afraid the U.S. wouldn't invade. We knew there would be death, but we chose war to get rid of Saddam." Naseer Hasan, a poet and former member of Iraq's national chess team, put it in personal terms: "Throughout my nearly 40 years, I've seen only oppression, terror, and murder. But the removal of Saddam shows me that history can actually smile. Now, each morning I wake up, I find parts of my soul that I thought were dead are slowly coming back to life. April 9th was like a second birthday for me."

To be sure, not everyone at the Hewar felt reborn, especially among the customers over 40, who remembered the good old days of government-sponsored awards and competitions, lucrative commissions for portraits of Father Saddam, and extra pocket money from spying for the Mukhabarat. "Under Saddam, we could do any kind of art, as long as it wasn't political; things were much better then," Septi, the owner, said nostalgically. "Saddam was good for us; we lived well!" declared former Saddam portraitist Abdul Jabar. Some yearned for Saddam's authoritarian hand, especially when it came to the thieves, called in local slang "Ali Baba," who infested Iraq directly after the invasion. "Saddam good, Saddam strong -- under Saddam, no Ali Baba," an art dealer griped in broken English.

The roughly 50/50 split between pro- and anti-Saddam voices at the Hewar is deceptive, however. Because of the despot's beneficence to artists -- advocates of government arts funding, take note -- support for the tyrant runs deep there. The same can't be said for the country as a whole. Among the Kurdish population in the north, for example, opinion is largely anti-Saddam, pro-U.S. In the south, the dominant Shi'a Muslims despise Saddam but are neutral or somewhat antagonistic toward the U.S. Only in the central Sunni Triangle do you find loyalty to Saddam mixed with deep opposition to America.

Baghdad is part of this area, but judging by countless conversations I had with residents, including more than 100 cab drivers, Saddam should not consider running for mayor anytime soon. I'd say at least 95 percent of Baghdadis hate him, with maybe 80 percent supporting the U.S. to various degrees. Anti-American sentiment is tricky to gauge: Iraqis are notoriously double-minded about everything -- quite capable, for example, of praising the U.S. for removing Saddam one moment, then castigating it for supporting Israel the next. But an August opinion poll conducted by Zogby International for the American Enterprise Institute found that while 32 percent of Iraqis wanted coalition forces gone within six months, 34 percent wanted them to remain for a year, and an additional 25 percent said it should be two or more years.

Among those less friendly toward the U.S., there's a welter of views, ranging from pro-Saddam, pro-liberation (a tough one to parse) to vehement diatribes against George Bush that Michael Moore might envy. These sentiments were largely drowned out in December when the news that U.S. troops had captured Saddam sent Iraqis into the streets, singing, dancing, and shooting guns into the air. "Saddam is gone and took all his evils with him," said Rand Matti Petros, manager of a Baghdad Internet café, in an e-mail she sent me shortly after the tyrant was pulled out of his hole. "This surely must be the work of God."

Hamlets and Gertrudes

Besides the Hewar, the other must-see destination in Baghdad is the Shabander Teahouse. It's down on Mutanabi Street, in an old part of the city where buildings dating from the Ottoman Empire sag with age and neglect. On Fridays, Baghdad's booksellers crowd the muddy thoroughfare, hawking everything from Saddam's potboilers to English-Arabic dictionaries to American engineering manuals a quarter-century out of date. Friday was also the day my artist friends gathered in a dirty, open-air, turquoise-colored teahouse where, for 1,500 dinar (about 75 cents), you can purchase a glass of bitter lemon tea, rent a narghile (water pipe), and sit for hours. Like the Hewar, the Shabander is a social scene favored by Western journalists eager to interview Iraqi locals. I was one of the few American reporters this crew had met -- and boy, did I get an earful.

"A lot of French journalists are shit," Wady, the sculptor, observed one afternoon as we shared a narghile filled with apple-flavored tobacco. "They come here and talk against the U.S. in a stupid way. They don't care about the crimes of Saddam Hussein." And it's not only the French, noted Esam Pasha, a painter and translator for the U.S. military: "European and Arab journalists talk to us, but they don't care about our happiness in being liberated. They only want us to make anti-American comments." Even a cabbie who took me to the Shabander one afternoon weighed in. "Al-Jazeera and Al-Arabia TV, no good," he said. "They only show pictures of bombings and killings of Americans -- always how things are bad in Iraq, never how they are getting better."

Worse, I heard many stories at the Shabander about foreign correspondents staging news events to discredit the U.S. One young man introduced me to a Spanish photographer who, he later reported, had just finished posing an Iraqi woman in a nearby pile of rubble looking plaintively toward heaven, as if seeking deliverance from U.S. bombs. Rasim, the painter, claimed he witnessed Arab TV journalists pay idle Iraqis to light a car on fire and throw rocks to create an "anti-American" demonstration. "These journalists come here with their minds already made up," he groused. "They're not interested in anything that contradicts their anti-American viewpoint."

I asked Hasan, the poet, why, if the freeing of his country from Saddam Hussein was such a great event, so many people, both in Iraq and throughout the world, view it so negatively. "Think of Hamlet," he told me. "In the play, the young prince is haunted by his murdered father. At the same time, his mother, Gertrude, wants to forget the murder in order to get along with her life and encourages her son to do the same. But Hamlet can't forget; he won't forget. We see the same in the world: Hamlets who refuse to forget the crimes of Saddam, and Gertrudes who refuse to remember them."

In a small building north of the city center lie the final traces of many victims of those crimes. Their bodies are dust, their voices gone; now only documents exist to indicate their unpleasant fates. Imprisonment, exile, torture, rape, disfigurement, amputation, execution -- the list of the horrors experienced by Iraqis at the hands of the Ba'athist regime goes on. I stood in an upstairs room of this small building, home to the National Iraqi Association of Human Rights, surrounded by thousands of battered folders, many of which were taken from the Ba'athist headquarters in Baghdad, each folder an individual story of misery, loss, and death. "We have 17 more rooms like this in our offices across Iraq," said Asad Abady, deputy director of the human rights group.

As Saddam's role model Josef Stalin once noted, "The death of one man is a tragedy, the death of millions a statistic." For that reason I hesitate now to recite the horrendous acts of Saddam: the hundreds of thousands killed in his wars; the thousands buried, sometimes alive, in mass graves; the barbaric tortures involving acid baths and wood chippers, electricity, power tools, and ravenous dogs. For what do they mean? Amnesty International reports how Ba'athist guards sliced chunks of flesh from the bodies of women prisoners and then force-fed them to the captives. Abady told me of seeing buildings in northern Iraq filled with captive Kurdish women: A man could go to these buildings, fill out a form, and take a woman away for his own pleasure. The mind resists contemplating such deeds -- and this resistance is the first step to denial, and then forgetfulness.

I had gone to the association precisely to know, as best I could, the evil of Saddam Hussein. There I found more than files and statistics. In Abady's office, I met a woman whose husband and son were executed by the regime (which diligently charged her for the bullets) and buried in graves she was forbidden to visit. I met with people who were among the first on the scene when mass graves were uncovered near Babylon. They described the skeletons of men, women, and children killed so abruptly that the jugs they had brought to fetch water from a nearby river that day were still clutched in their hands. "Not since the days of the Mongols and Tartars has there been such brutality," Abady said.

Evidence of Saddam's brutality is everywhere in Iraq. In the Shabandar, I talked with a man I'll call Ahmed. Once a high-ranking Shi'a cleric, he was arrested by the Ba'ath Party in the late 1990s for supposedly conspiring with anti-government Shi'a groups in Europe. Imprisoned for three years, he was repeatedly tortured. Guards tied his wrists behind his back and hung him from the ceiling, sometimes for days at a time. They starved him, beat him with heavy black cables, electrocuted him with wires connected to a hand-powered generator. When he finally regained his freedom, Ahmed told me, the right side of his body had lost most of its feeling, while an untreated disease he contracted in prison had withered his right leg to the size of his arm. "When I went into prison, I was a Muslim," he told me. "When I left, I was an atheist."

But the heart of Saddam's malevolence wasn't only in the awful statistics (5,000 dead in the 1988 poison gas attack on the Kurdish village of Halabja) or stories of individual atrocities (the 1999 murder of Mohammad al-Sadr, in which Ba'athists drove nails into the Shi'a cleric's head after raping his sister in front of him). It was also found in the endless stories of routine harassment, imprisonment, and fear expressed by everyone I talked to in Iraq. "Just a conversation like we're having now," Rasim, the painter, related one afternoon as we walked down Mutanabi Street, "could lead to the police picking me up and questioning me for hours about what we talked of."

Saddam was always watching: Wady described being interviewed by a European film crew interested in his sculpture. "A 'minder' from the regime stood behind the interviewer, next to the camera, and if they asked a sensitive question, she opened her eyes to warn me not to answer incorrectly or else she would report me," he said. "Of course, if I'd hesitated, or looked defiant, she would report that, too." Saddam was always listening: An Iraqi man told me how his son one day blurted out "I hate Saddam Hussein" among a group of friends and was arrested within hours, forcing the man to pay more than 1 million dinars in ransom. Sometimes what you personally had done wasn't even the issue. An Iraqi cab driver told me he spent two weeks in prison because his uncle was a communist. "I had to cover my ears because of the screams of the women being raped," he said.

The climate of terror and uncertainty that Saddam spread throughout the nation lingers today. "I wake up every morning fearing that I've been dreaming and that Saddam is still in power," said Rand Matti Petros, the Internet café manager. "My generation is lost," Pasha, the painter, said sadly. "Maybe in 20 to 30 years Iraqi children will live normal, happy lives outside the shadow of Saddam." Exacerbating the pain of many Iraqis is a keen awareness of the world's record of apathy toward their plight. "Where were the U.N. and our 'fellow Arabs' when we were suffering?" Hasan asked. "Where were the peace activists and leftists? How can they all accept the crimes of a dictator for so many years, then rise up in protest when a war begins to remove that dictator?"

The Spirit of Impotence

Yet the more I investigated Saddam's regime, the more I began to realize that the dictator had bequeathed something perhaps even more corrosive to the Iraqi people than repression, trauma, and fear: shame. This is one of the most sensitive parts of the nation's psyche, one that may prove the most problematic. On some level, many, if not most, Iraqis are ashamed that Saddam Hussein brutalized them -- and even more ashamed that it took foreign troops to end his reign.

At a small social function one evening, I spoke to an Iraqi woman who expressed excitement over the fall of Saddam. Yet in almost the same breath, she declared, "I hate the Americans so much I fantasize about taking a gun and shooting a soldier." When asked how she expected Saddam to fall without the hated U.S. soldiers, she looked at me miserably. "I know," she said, "and you can't imagine how that humiliates me."

A waiter admonished me, as if I'd advised Rumsfeld and Bush: "You should have waited just a little longer. We would have risen up and overthrown him ourselves." When I asked why the Iraqi people hadn't toppled Saddam before, other Baghdadis claimed that the tyrant had support from "outside" forces -- most notably, the Jews. Speaking of Iraq's disastrous invasion of Iran in 1980, the piano player in my hotel confided, "You know, of course, that the Jews manipulated Saddam into attacking Khomeini in order to keep the Arabs down -- and Israel on top."

This sense of impotence and humiliation, exacerbated by every Humvee that rumbles down a Baghdad street and every Bradley Fighting Vehicle that ties up traffic, is the flip side to the pro-liberation sentiment I heard so often in Iraq. It helps explain the "thanks, America -- now go home" syndrome observers frequently note. It also colors U.S. plans to hand over civil and military affairs to Iraqi officials as quickly as possible -- giving them, the theory goes, a stake in their own future. But Iraqi attitudes may be more complicated than that.

Unlike the German acknowledgement of guilt for Hitler, Iraqis, I found, do not blame themselves for Saddam. To them, he is like a gunman who burst into their home, seized their family, and terrorized the neighbors -- until the police finally stormed in and drove him out. Now, standing amid the ruins caused by the police raid, they say: "We weren't responsible for the maniac. You took it upon yourself to remove him. Thanks, but how soon are you going to repair our house?" They overlook the fact that from 1968 to 1980 Iraq lived happily under the control of the nationalist-socialist Ba'ath Party, reaping the benefits of a booming oil economy. (I heard numerous times about how "wonderful" Baghdad was in the 1970s.) Not until Saddam took full control of the nation in 1979 and launched the war on Iran -- and then on the Kurds, and then on Kuwait, and then on the Shi'ites -- did the Iraqis realize they were in the hands of a madman. By then it was too late.

"I hate Saddam! I hate Americans! I hate Iraqis -- and I hate myself! I need a Valium!" cried one woman at the Hewar Gallery. It was, I thought, an apt summation of the mentality shared by many Iraqis today.

Despite Iraq's former claim to be the most "modern" culture in the Middle East -- despite the presence today of high-tech gadgetry, Internet cafés, and multichannel cable TV in a Babel of languages -- the country is in many ways reminiscent of America in the 1950s. In the absence of a civil rights mentality, ethnic, racial, and religious differences are seen as legitimate and natural grounds for discrimination. Ecological consciousness is minimal: Baghdad is a polluted, sprawling city where garbage cans are few and littering a way of life. Women generally live terribly restricted lives, wrapped in black head-to-foot sheets no matter the temperature, excluded from public activities, and confined mostly to the kitchen and the bedroom. (Although Iraqi women once had more extensive rights than women in many other Middle Eastern countries, they lost ground in the 1990s as Saddam increasingly adopted Islamic law to placate his restive Shi'a population. Today they are among the most oppressed women in the region, with illiteracy rates climbing above 75 percent.) Gay rights are unknown.

So is postmodernism. The philosophical tone among the secular educated is a kind of Eastern Europe-style existentialism, dominated by ideas of repression and political cynicism, with a direct connection to the absurd. In 1995, for example, Saddam's son Uday shot his uncle in the leg over a business dispute. To teach his kid a lesson, Saddam had him stripped of power and imprisoned -- but then oversaw the creation of "spontaneous" protests demanding that he free Uday and reinstate him to his former position. "We were hauled out of school, given signs and told to shout out our love for Uday, whom, of course, we all hated," Pasha remembered. (Father Saddam, of course, relented and freed his reckless scion.) Today, a suicide car bombing becomes the occasion for shockingly nihilistic jokes about body parts and explosives. "You have to laugh about the absurdity of these things," Hasan said, "or you will go mad."

Faith in Iron-Fisted Kings

In other ways, Iraqis' consciousness goes back even further -- to the iron-fisted kings of their Babylonian heritage. Many Iraqis told me that as much as they hated Saddam, they still needed a strongman like him to keep their "ungovernable nation" -- which really isn't a nation but a colonialist expediency created by the British in 1922 -- from fracturing into disparate parts. Indeed, it is difficult to imagine the Kurds and Sunnis and Christians and Turkomans ever working together. Then there are the Shi'a Muslims, who comprise some 60 percent of the population and probably hold the future of Iraq in their Islamic hands. On top of all these differences is the terrorism, which, as I write this, seems on the verge of breaking out of control (although Saddam's capture may dampen the will of the insurgency).

The obstacles to democracy posed by these attitudes and social divisions were only heightened by errors the United States made in the immediate aftermath of the war, many Iraqis say. These included the failure to "shoot a few looters" to deter others, disbanding the Iraqi police and army, and stripping former Ba'athists of their jobs before securing order in the country (suddenly unemployed, many Ba'athists joined the fedayeen out of desperation, the theory goes). "It's been downhill since" is the gloomy assessment of Hassan Fattah, editor of the English-language newspaper Iraq Today. "Inevitably, the liberation became an occupation." An occupation, one should add, directed from a heavily defended compound in central Baghdad that is physically, politically, and psychically remote from the average Iraqi.

I don't mean to overstate the problems facing the U.S. in Iraq. Still, it bothers me to see supporters of the war assume that events are going better than the "biased," "liberal" media depict them. That may be true sometimes, but not always. Iraq is too complicated for such simple analysis -- a fact I admit I had not sufficiently considered when I stood up to endorse the war. Now, when I'm asked if the U.S. can succeed, I can only join others in answering: "We must. The prospect of failure in Iraq is too catastrophic to conceive." It's not a policy so much as a statement of faith: that the center will hold, that democracy and freedom will triumph, that tyrants cannot long escape accountability and justice. But if it seems foolish, as it does to increasing numbers of people, to risk American lives and treasure on such an abstract concept, there are others who are risking their lives on something even less substantial: American public opinion.

At the former Iraqi Officers Club, now a base for the Florida National Guard, I interviewed Pasha and a number of other Iraqi men who serve as translators for the U.S. Army. It is an extremely hazardous job: More than 25 translators have died, many by assassination at the hands of fedayeen who consider them traitors. These linguists know they are marked for death, yet they continue to do the job. "We want to help rebuild Iraq," they explained.

I asked them if they ever thought about South Vietnam. When I was there in 1993, I met several Vietnamese who had worked for the American military, including a few translators. Left behind by the U.S., these men spent 10 years in "re-education camps" and were now pulling rickshaws in Saigon. Did the Iraqis worry that a similar fate might befall them?

"Oh no," they told me. "We have faith in the United States." Or, as another translator put it to me, in words that still make me shiver, "Our fates lie with you now. We know Americans will never abandon us."