Saturday, September 24, 2011

While My Guitar Factory Gently Weeps: The Government and Gibson

Great news, folks: there's a convenient new way to get a complete list of conservative media in the U.S.! Just Google "Government raids Gibson guitar factory". Yes, they are all there, from The Wall Street Journal and Fox News to Human Events and the American Family News Network (AFN), lining up with all the music blogs to show their outrage at the Obama administration's attempt to enforce the Lacey Act, which (in effect) regulates the importation of endangered rainforest wood species. Those cruel, senseless feds jacking up innocent people at a guitar factory. For shame!

Could they be upset because, according to the Christian news service OneNewsNow, Henry Juskiewicz, the CEO of Gibson, "has a long history of supporting Republican candidates"? Which of course demonstrates beyond a shadow of a doubt that the government targeted Gibson to intimidate Juskiewicz from making his game-changing contributions to the Republican cause, whereas the liberal Democrat Chris Martin was spared the raids as a sort of musical salute to his politics.

Or are they genuinely concerned about the overextension of federal authority in sending armed marshalls to the workplace? Funny, then, that their heartstrings didn't get equally bent when the government stepped up raids of factories suspected of employing illegal immigrants.  I wonder what's up with them? Isn't a raid a raid? Isn't the evil Obama administration the evil Obama administration? Aren't overzealous federal marshalls Public Enemy #1 ever since Waco? Yet somehow, the rightwing noise about the Gibson raid is as deafening as 20 Les Pauls at maximum volume on 100 Marshall stacks... while they managed to maintain a calm disinterest in the illegal immigrant raids (note that that last phrase can be parsed two ways).

The author's Gibson Custom acoustic
Actually the gaggle of googled Christian rightists just want to get a litle mileage out of the fact that the "victim" in this case is Gibson, the known and loved maker of Les Pauls and Hummingbirds, not to mention a couple of LG's and ES 335's I've owned (and loved). Anyone still on the fence about Obama - that is, anyone who has not yet decided that he is ruining the country through his liberal policies (as opposed to the folks who think he is ruining the chances of turning the country around through his concessions to the radical right) - must surely be persuaded by his callous and uncalled for raid that he should be dumped. "Vote your musical tastes!" is what the message seems to be. (If I were to have followed that advice a few years ago, for example, I never would have voted for Bill Clinton - not a Fleetwood Mac fan, as I have no doubt confessed elsewhere in blog posts past.)

Gibson was accused of violating the Lacey Act, which bars the importation of products that are not in compliance with the export laws of a foreign country. This led to a raid in 2009 in connection with Gibson's obtaining ebony from Madagascar. It's not that the wood has been shown to violate laws of harvesting in Madagascar, but that Gibson could not properly verify the source as legal. Though Juskiewicz feigns a certain amount of bewilderment about the government's case, it is laid out pretty clearly in a Justice Department document that is available online:

A second civil forfeiture action... remains ongoing. The action involves wood materials seized from the premises of Gibson Guitars in Nashville, Tennessee. According to the affidavit of a USFWS Special Agent in support of that forfeiture, on September 28, 2009 Customs and Border Protection reported the import of a shipment of Madagascar ebony wood at the Port ofNewark, New Jersey. Immigration and Customs Enforcement notified the USFWS Special Agent of the importation that consisted of 5,200 pieces of ebony, sawn sizes, and 2,133 pieces of sawn Madagascar black ebony, sawn sizes, with a total value of approximately $76,437.59. The shipment was exported by Nagel GMBH and Company KG (Nagel) of Hamburg, Germany to its U.S.-based affiliate, Hunter Trading Company (Hunter) of Westport, Connecticut for its customer, Gibson Guitars of Nashville. CBP notified Hunter that the required Lacey Act declaration had not been submitted upon importation and an employee of Hunter subsequently submitted a declaration for 1,664 cubic meters of ebony, sawn sizes, and 700 cubic meters of Madagascar black ebony, declaring the country of harvest for both as Madagascar.

Since at least April of 2000, the Republic of Madagascar has had various laws that restrict the harvest and export of ebony wood. In 2006 a Madagascar Interministerial Order was entered that required all existing, legally harvested stocks of ebony wood to be declared to the relevant office of the Madagascar Ministry of Environment, Water and Forests. Any ebony not declared under that order is subject to seizure by Malagasy authorities. According to the search warrant affidavit in the public record, investigators have been unable to discover any authorizations for exports of unfinished, semi-worked, or sawn ebony to Nagel from Madagascar since at least September 2006. The Special Agent also examined 2008 inventory records of existing stocks of Madagascar ebony maintained by the Madagascar Ministry 102 UNITED.of Environment, Water and Forests and was unable to find any stock of Madagascar ebony wood recorded for Nagel's supplier.

The Defendant Property in this forfeiture proceeding is identified as ebony that originated in Madagascar. The USFWS Special Agent averred in an affidavit in the public record that he believed the Defendant Property was exported from Madagascar and imported into the United States in violation of 16 U.S.C. § 3372(a), prohibiting the import of a plant product taken, possessed, transported, or sold in violation of an underlying foreign law and imported without the filing of a Lacey Act declaration and was therefore subject to forfeiture under the Lacey Act. It was also alleged that the Defendant Property is subject to forfeiture for being involved in a violation of 18 U.S.C. § 545, that is, the fraudulent or knowing importation into the United States of any merchandise contrary to law or the receipt, concealment, purchase, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law. Gibson Guitars has filed a claim in this forfeiture proceeding and moved to dismiss the forfeiture complaint. Briefing in the case continues.
That is not so difficult to understand. There was a large shipment of undocumented ebony imported from a country where the law requires documentation for export. The subsequent declaration by a Hunter employee is suspect because records in the country of origin make no mention of the shipment. It is not to Gibson's advantage that the current government of Madagascar is not recognized as legitimate by most world bodies. That is one reason that other companies backed away from Madagascar imports before Gibson did. With an illegitimate government ruling in the shadow of the military it is more difficult to determine the legitimacy of exported natural resources. For the right "fee", corrupt officials might permit the removal of natural resources without the proper documentation. One motivation for the Lacey Act was to prevent companies from skirting the law in just such circumstances. It says, in effect, that though you might be able to get around the foreign law overseas, you'd better be able to document compliance with it when you get home. There seems to be a legitimate question as to whether the wood shipment was okay by Madagassy standards, and therefore sufficient cause to seize and hold it.

Gibson claims on their web site that the Justice Department has still not pressed charges in the case, though they continue to hold the materials obtained in the raid. But if you grant that in spite of Madagascar politics the wood should have been documented, then it is hard to see what they are doing wrong. They are entitled to seize the shipment until and unless Gibson can document the provenance of the whole shipment, not just some fraction of it. Though rainforest lovers will no doubt observe that you can't grow any ebony trees from 7300 sawn pieces, so merely seizing them does not do much to solve the problem.

The reason for the recent raid seems to be in doubt, as Gibson claims that the wood seized was from India. In a video posted on their web site Juskiewicz says that there are "similar laws in India". From his discussion and some posts on Gibson's blog, their story appears to be that the JD thinks Gibson may have violated Indian laws concerning the export of unfinished wood products, not that Gibson purchased illegally harvested endangered species in India. The products in question are fingerboards made of Indian rosewood. The fingerboards are "blanks" which have been carved and partially finished by Indian workers. They are then given a final finish, fitted with frets and set on a guitar neck by workers in the U.S. According to Gibson, the Indian government considers the export of these semi-finished "blanks" to be in compliance with their export laws, and the U.S. is interpreting Indian law in a way that is not supported by India.

Though the two charges - illegally harvesting endangered wood species and illegally obtaining wood products that are not completely finished - are not clearly distinguished in either Gibson's press release, their published statements in the media, or Juskiewicz's press conference video, it seems likely that at best, the government has a case here that jumps headlong into gray areas of the Lacey Act, and possibly that the recent raid was conducted in frustration over their inability to come up with hard evidence that Gibson violated the law in the Madagascar case. The fact that Gibson works closely with the Rainforest Alliance and Greenpeace, and that their wood is certified by an independent industry oversight group (the Forest Stewardship Council) adds to doubts that there is wrongdoing worth prosecuting on Gibson's part.

But that is a long way from the outright abuse of federal power that Juskiewicz alleges: “We feel totally abused. We believe the arrogance of federal power is impacting me, personally, our company, personally, and employees here in Tennessee. And it’s just plain wrong.” But if the government does nothing in a case like this it renders the Lacey Act largely ineffectual as a tool to protect endangered species and prevent illegal logging. No one who cares about the environment should want that.

Into the genuine confusion of this case (or cases) steps the radical rightwing media, suggesting that Gibson's status as the maker of the guitars that produced some of the world's best-loved music automatically means that the U.S. is wrong, overbearing, and possibly singling out a Republican CEO for his political views. Playing to the crowd, the WSJ and others make sure to invoke the alleged plight of the itinerant busker with a piece of mahogony in his 1958 Martin and no documentation of the guitar's age. Give those Obama marshalls an inch and they'll take your ax" they seem to be saying. Check this out:
Lady Antebellum guitarist Jason ‘Slim’ Gambill says: “I think its terrifying for musicians to know that they could be going through an airport and get stopped by a customs agent somewhere overseas and have someone say ‘I’m taking this because it might have potentially something illegal that was, you know, harvested, 60, 80 year ago and I’m taking it because now it’s a protected wood. It doesn’t make sense.” (Cited on Gibson's blog.)

Yo, calm down Jason. You have a wild imagination, dude, if you think that all these customs officials are standing there with a copy of the Lacey Act just waiting for someone to walk through the gate with a guitar. That is so far from a customs agent stopping a shipment of more than 7300 pieces of wood it's not even funny. I wouldn't give the redstate types who are trying to get mileage out of this the satisfaction of thinking they've got guitarists the world over worrying about getting their vintage instruments appropriated at the airport. (Anyway, what's up with the "customs agent somewhere overseas" thing? Since when is France or Egypt enforcing the Lacey Act?)

               Hands off the Brazilian rosewood fingerboard on my 1970 Gibson ES-335!
(Though I don't really believe they're coming to get me. And besides,
I'm just guessing it's rosewood. What else would it be?)

Now we've got to deal with the mom-and-pop thing, since the rightwing media are doing their best to play this up into a classic David-and-Goliath story. Gibson Guitar Corporation is a highly profitable conglomerate which does not only make fine wooden instruments to play on back porches in the Ozarks. Gibson has acquired top music and electronics brands such as Epiphone, Dobro, Baldwin, Chickering, Wurlitzer and Oberheim. They make consumer electronics lines, fashion lines, video games, jukeboxes and run a variety of other enterprises including even ice cream parlors. In an interview with BusinessTN in August 2007 Juskiewicz stated an intention to take the company public and even to advance into the Fortune 500. Don't imagine that's going too well given the state of the economy since then, but the point is that this is not just yer innocent little craft shop cobbling away to make fine instruments. In the same BusinessTN interview Juskiewicz claims revenues of close to $500 million. Poor little abused guitar maker.

Speaking of abused, I doubt that CEO Juskiewicz is a regular reader of, the employer ratings site. Check out the comments on Gibson. The company gets an embarrassing 1.8 (out of 5.0) rating. The preponderance of reviews, from what I can see, give them the lowest available rating (1.0). A good number of complaints mention "the CEO" (that would be Juskiewicz) specifically, and some suggest that he regularly reminds employees how easily they can lose their jobs. This casts a different light on the words of employees cited in interviews and in videos about the raids posted on Gibson's web site: "Randy Ferrell, a final assembly worker at Gibson, says that the raids make him very concerned about lay-offs and that the company may be forced to close its doors because 'If they take our wood away and we can’t work our ownership has no choice.'" What exactly is the value of testimonials by employees with an axe of the nonmusical type hanging over their heads?

So, ye buzzards of the right, buzz off. Or should I say, pluck off. Gibson is not exactly your local candy store, Juskiewicz is not the down-home small business owner driven to poverty by the federal bureaucracy, and the feds, though very likely heavy-handed and lacking solid proof of an intention to break the law, are not chasing down paper tigers in the Malagassy jungles, but attempting to enforce an act with important consequences for biodiversity and other ecological benefits.

Wherefore all this rumination on guitars and rainforests? Well, it raises the interesting question of whether a company that is part of the supply chain for the production of art should be held to a different ethical standard than other companies. My opinion is that it should not, but the standard itself should include caveats about the nature of the enterprise. Were ebony, mahogony and rosewood merely in short supply, there would be a reasonable argument that guitar and piano manufacturers should have access to them at the expense of, say, the makers of tourist trinkets or bookcases for luxury apartments. That is part of what it is to have standards, to make judgments about what is and isn't an appropriate way to use a valuable resource.

But that does not mean we should simply look the other way when art-related manufacturers utilize rare resources. This is what the rightwing media are counting on, that our sympathy for the great music made on Gibson instruments will automatically cause us to shift the blame onto Obama, first of all, and zealous environmentalists, second. But we should not dance to the beat of their drum. By and large, guitar makers have managed to get by and make great guitars in spite of the restrictions on rainforest woods. Let's hope Gibson works out this issue with the feds, but let's not go jumping on the big bad federal bureaucracy just because some Fortune 500 wannabe cries foul.

1 comment:

Michael Hurwicz said...

Good piece,Tony! I agree it's important to have enforcement for these laws. Time will tell whether this particular action was justified.