 What happened to Steve Kurtz?
What materials
did the FBI seize during their raid on Steve's home?
What
is the violation he is accused of and what is the possible sentence?
Why is
this a politically-motivated prosecution?
Why
should this case concern me?
What
legal precedent would be set if we lose this case?
Why
are eminent scientists alarmed by this prosecution?
What
is Critical Art Ensemble and why do they use harmless bacteria in their art?
Is the USA Patriot Act at work here?
What is a Grand Jury?
Why
Did Steve Kurtz's Colleagues Refuse to Testify to the Grand Jury? (link
to pdf file)
Why
is this absurd "case" still being pursued? (via Overview page)
Background to the case
Dr. Steven Kurtz is a Professor of Art at SUNY Buffalo and a founding member,
with his late wife, Hope, of the internationally acclaimed art and theater
collective Critical Art Ensemble (CAE). Over the past decade cultural institutions
worldwide have hosted CAE’s participatory theater projects that help
the general public understand biotechnology and the many issues surrounding
it.
In May 2004 the Kurtzes were preparing to present Free Range Grain, a project
examining GM agriculture, at the Massachusetts Museum of Contemporary Art (MASS
MoCA), when Hope Kurtz died of heart failure. Emergency personnel who responded
to Steve Kurtz's 911 call deemed the couple's art suspicious, and called the
FBI. The art materials consisted of several petri dishes containing three harmless
bacteria cultures, and a mobile lab to test food labeled “organic” for
the presence of genetically modified ingredients. As Kurtz explained, these
materials had been safely displayed in museums and galleries throughout Europe
and North America with absolutely no risk to the public.
The next day, however, as Kurtz was on his way to the funeral home, he was
illegally detained by agents from the FBI and Joint Terrorism Task Force, who
informed him he was being investigated for "bioterrorism." At no
point during the 22 hours Kurtz was held and questioned did the agents Mirandize
him or inform him he could leave. Meanwhile, agents from numerous federal law
enforcement agencies - including five regional branches of the FBI, the Joint
Terrorism Task Force, Homeland Security, the Department of Defense, and the
Buffalo Police, Fire Department, and state Marshall's office - descended on
Kurtz's home in Hazmat suits. Cordoning off half a block around his home, they
seized his cat, car, computers, manuscripts, books, equipment, and even his
wife's body from the county coroner for further analysis. The Erie County Health
Department condemned his house as a possible "health risk."
A week later, only after the Commissioner of Public Health for New York State
had tested samples from the Kurtzes' home and announced that there was nothing
in the home that posed any sort of public or environmental health or safety
risk, was Kurtz allowed to return home and to recover his wife's body.
While most observers assumed the Task Force would realize its initial investigation was a terrible mistake, the Department of Justice instead chose to press their "case" against Dr. Kurtz (see below for more information on the charges). Despite the Public Health Commissioner's conclusion as to the safety of Kurtz's materials, and despite the fact that the FBI's own field and laboratory tests showed they were not harmful to people or the environment, the Department of Justice continues to waste vast sums of public money on this outrageous and politically motivated persecution.
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FBI Seizes Artworks
To
this day, the FBI has refused to return most of the tens of thousands of dollars
worth of impounded materials, including a book Kurtz was working on. Kurtz
and his acclaimed art collective Critical Art Ensemble (CAE) were using the
harmless bacteria and materials in several projects:
1) GenTerra used a harmless form of gut E. coli
(which resides in the intestinal track of all humans) to educate the public
about transgenic organisms. When the FBI seized the materials for this project
during their raid on Kurtz's home, it had already been commissioned by, and
performed at, major cultural institutions and other public spaces throughout
North America and Europe (such as the London Museum of Natural History) with
absolutely no risk to the public.
See documentation of the GenTerra projec at the London Museum
of Natural History: www.critical-art.net/biotech
To see documentation of another performance of GenTerra at Oldham Gallery,
Manchester: click
here
2) The second project seized by the FBI, Marching Plague,
was commissioned by the Arts Catalyst, UK, and received its American premiere
in the 2006 Whitney Biennial. Marching Plague used the benign bacteria Bacillus
subtilis and Serratia marcescens in an installation, performance and film dedicated
to demystifying the issues surrounding germ warfare. To learn more about Marching
Plague please see:
www.artscatalyst.org/projects/biotech
www.critical-art.net/biotech/
CAE's companion book, Marching Plague: Germ Warfare and Global
Public Health (Autonomedia, 2006) had to be reconstructed
after the FBI refused to return the manuscript. Read
a review of the book here.
3) The 3rd project seized by the FBI, Free Range Grains, examined questions
surrounding Genetically Modified (GM) agriculture, and allowed participants
to test food labeled "GM Free" for the presence of GM ingredients.
Like GenTerra it had also been performed internationally and was then scheduled
for exhibition at the Massachusetts Museum of Contemporary Art (MASS MoCA):
www.critical-art.net/biotech
4) The FBI also took the seeds CAE was using in Molecular
Invasion, a participatory
science-theater work done in cooperation with students from the Corcoran School
of Art and Design, at the Corcoran Museum, Washington, DC:
www.critical-art.net/biotech/
www.corcoran.org/exhibitions/press_results.asp?Exhib_ID=56
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What is the violation
he is accused of?
In their initial investigation, the Justice Department sought charges under
Section 175 of the US Biological Weapons Anti-Terrorism Act of 1989, as expanded
by the USA PATRIOT Act, Title 18, Part 1, Chapter 10 Sec. 175 - Prohibitions
with respect to biological weapons.
Read the Patriot
Act Sec. 817: Expansion of the Biological Weapons Statue
Possible sentence of 20 years for "mail fraud" charges
On June 29, 2004, a federal Grand Jury appeared to reject those charges and
instead handed down indictments of 2 counts each of "mail fraud" and "wire
fraud" under Title 18, United States Code, sections 1341 and 1343. Also
indicted was Robert Ferrell, former head of the Department of Genetics at the
University of Pittsburgh's School of Public Health, and a collaborator on several
of CAE’s projects. (Since Ferrell is ill at this point, his case has
been indefinitely postponed.) The charges concern technicalities of how Ferrell
allegedly helped Kurtz obtain $256 worth of harmless bacteria for one of CAE's
art projects. Although they are a far cry from the charges originally sought
by the District Attorney, these are still serious federal charges, which – thanks
to the PATRIOT Act – carry the same potential sentence as the original “bioterrorism” charges
would have: up to 20 years.
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Attempt to cast alleged contract discrepancy as criminal offense
Charges
of mail fraud, and more recently, wire fraud, are designed to dismantle phony
financial schemes that defraud the public out of money through mail, credit
card or internet. Because these laws are written very broadly they are often
used to convict figures in organized crime – and they have
also been used selectively against social and political dissidents such as
Marcus Garvey. In Kurtz's case, they are evidently being used in an attempt
to silence an artist and a scientist whose work questions the policies of
the current administration, by making what could at best be a civil contract
discrepancy over $256 worth of harmless, legally obtained materials into
a criminal charge.
Having wasted millions of taxpayer dollars and failing to
produce any evidence of “bioterrorism,” the government is now claiming
that Dr. Ferrell used his contract through the University of Pittsburgh to
purchase the samples from American Type Culture Collection (ATCC), which he
then gave to Steve for use in one of art CAE’s projects, thereby "defrauding" the
University and ATCC. If true, this would constitute a minor contract discrepancy
concerning $256 of harmless materials, to be settled between the parties involved.
But neither the University of Pittsburgh, nor ATCC, nor any state authorities,
have brought any complaint against Ferrell or Kurtz! In fact, scientists frequently
share materials in this manner because such academic collaboration is necessary
for research.
This the first time in the history
of the federal courts that the U.S. Department of Justice is intervening
in the alleged breach of a Material Transfer Agreement (MTA) of nonhazardous
materials in order to redefine it as a criminal offense. Furthermore, the
Department of Justice (DoJ) going far outside its own guidelines in an attempt
to make this into a federal "crime":
the DoJ publishes a Criminal
Resource Handbook available online in which it clearly states a general "Prosecution
Policy Relating to Mail Fraud and Wire Fraud" as follows:
"Prosecutions of fraud ordinarily should not be undertaken if the scheme
employed consists of some isolated transactions between individuals, involving
minor loss to the victims, in which case the parties should be left to settle
their differences by civil or criminal litigation in the state courts. Serious
consideration, however, should be given to the prosecution of any scheme which
in its nature is directed to defrauding a class of persons, or the general public,
with a substantial pattern of conduct."
The interpretation of wire
and mail fraud being used by the federal government in this case is so broad
as to make incorrectly filling in a manufacturer's warranty for a TV set into
a federal crime. In a July 2005 hearing on the case, Magistrate Judge Kenneth
Schroeder noted that such an interpretation would be akin to opening a "Pandora's
box."
Read more about MTAs and why the Department of Justice may be prosecuting
this case:
"Reflections
on the Case by the U.S. Justice Department against Steven Kurtz and Robert
Ferrell”
by Claire Pentecost
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"Terrorism" charges still possible
The Department of Justice has not closed their investigative file on Steve
Kurtz and “bioterrorism.” The FBI refuses to return any of the
tens of thousands of dollars worth of seized materials, including the manuscript
for a book Kurtz was working on. On March 17, 2005, Steven Barnes – also
a founding member of Critical Art Ensemble – was served a subpoena to
appear before a Federal Grand Jury in Buffalo on April 19, 2005. According
to the subpoena, the Justice Department was again seeking charges under Section
175 of the US Biological Weapons Anti-Terrorism Act of 1989, as expanded by
the USA PATRIOT Act.
Read the Patriot
Act Sec. 817: Expansion of the Biological Weapons Statue
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A politically-motivated prosecution
Why is an Attorney General pursuing a "case" that even the company
who sold the material has not bothered to pursue? Why is the Department of
Justice going far outside its own guidelines in an attempt to make this into
a federal "crime"? According to affidavits obtained by Kurtz's lawyer,
government agents misled a judge to obtain search warrants for Kurtz’s
home. The judge was never told of Kurtz's complete, cooperative and easily
verifiable explanation about the harmless bacterial substances he used for
his artwork, or that this material had been frequently exhibited in museums
and art galleries with no risk to the public, or of the fact that Kurtz tasted
the Serratia in one of the petri dishes in front of an officer to prove it
was harmless. Also, in a blatant and illegal use of racial profiling, the judge
was told of Kurtz's possession of a photograph with Arabic writing beside it,
but not of the photograph's context: an invitation to an art exhibition at
the Massachusetts Museum of Contemporary Art! The photograph, by The Atlas
Group, was one of several exhibited pieces pictured on the invitation.
In bringing these charges the Department of Justice (DoJ) is acting with extreme
selectivity: This is the first time in the history of the U.S. Justice system
that anyone has ever been indicted or charged with federal mail fraud for allegedly
breaking a material transfer agreement (MTA). In the prosecution's radical
interpretation of mail fraud law, incorrectly filling in a warranty card would
be grounds for federal criminal prosecution.
As in many of the political trials that occurred during the height of the
early cold war in the 1950s, the defendants are both high-profile intellectuals
who are critical of government policy. Kurtz is one of the best-known political
artists working today. The Critical Art Ensemble has exhibited and performed
in many of the most important cultural institutions worldwide, including the
Whitney Museum, New York; The Corcoran, Washington D.C.; The ICA, London; The
MCA, Chicago; Schirn Kunsthalle, Frankfurt; Musée d’Art Moderne
de la Ville de Paris, and many more. CAE’s writings have been translated
into at least 16 languages and their work has been covered by most major art
journals, including Artforum, Kunstforum, and The Drama Review, which recently
honored Critical Art Ensemble (CAE) with a special section. Robert Ferrell
is similarly renowned in science, and as director of the Department of Genetics
at the University of Pittsburgh consistently sought to distance it from corporate
and military funding and to instead work in the interests of public health.
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Why Should This Case Concern
Me?
This is a precedent-setting case with profound implications for all Americans’ constitutionally
guaranteed rights to freedom of speech, expression, and inquiry; and for artists,
scientists, researchers, and anyone engaged in vital public discussion about
the actions of their government. It threatens to set dangerous legal and political
precedent by vastly expanding the government’s reach into our homes and
public institutions; by eroding the boundary between civil and criminal law;
and by intimidating and criminalizing those who would legitimately and legally
criticize government policy. In addition, the case has already led to dispossession
of the public's fundamental right to scientific knowledge. Because of this
case, many of the manufacturers that formerly supplied amateurs and science
hobbyists no longer will for fear of litigation. The case therefore threatens
to end independent research and seriously damage the public's ability to critique
corporations and the military, which will exercise even more exclusive control
of scientific knowledge.
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Dangerous Precedent
If the Department of Justice wins this
case, it would mean that any discrepancy in a civil contract that involves
the mail or the Internet in any way (such as incorrectly filling in and mailing
a warranty card, or making a minor mistake in any contract that is mailed,
sent via email, or signed online) – could
be prosecuted as a federal crime, punishable, thanks to the PATRIOT Act,
by up to 20 years in prison. In a July 2005 hearing on the case, Magistrate
Judge Kenneth Schroeder noted that such a precedent would be akin to opening
a "Pandora's box." Given that Mail fraud law is already the most
broadly written law on the books (and one historically used selectively against
political dissidents, such as Marcus Garvey) the government's power of selective
prosecution would become almost unthinkable. This would give the DoJ the means
to truly enforce its post-Ashcroft scheme of preemptive
justice.
Eminent Scientists Confused and Alarmed
The preeminent science magazine Nature has called on scientists to support
Kurtz. "As with the prosecution of some scientists in recent years, it
seems that government lawyers are singling Kurtz out as a warning to the broader
artistic community.... Art and science are forms of human enquiry that can
be illuminating and controversial, and the freedom of both must be preserved
as part of a healthy democracy—as must a sense of proportion."
(www.caedefensefund.org/press/CAEed.pdf)
“Kurtz's materials are politically, not physically, dangerous," said
Mary-Claire King, the University of Washington geneticist who first proved
the existence of a gene for hereditary breast cancer. "They [Steve Kurtz
and the Critical Art Ensemble] recreate [scientific] ideas using their own
way of imaging, and then say, 'Maybe you'd like to look at it this way.' To
me, that's teaching. It does not seem to me to threaten homeland security.
In fact, I would be threatened to live in a homeland in which that was perceived
to be a threat.” (www.tribnet.com/entertainment/story/5238040p-5173016c.html)
In
their May 2004 raid on Steve Kurtz’s home, agents from the FBI and
Joint Terrorism Task Force seized art works, research, and the first draft
of a book that were to be part of Critical Art Ensemble’s project Marching
Plague, dedicated to demystifying the issues surrounding germ warfare and critiquing
the history of U.S. germ warfare programs, including the Bush administration's
earmarking of billions of dollars to erect high-security laboratories around
the country. Like
CAE, many eminent scientists view these programs as a recipe for catastrophe. "I'm
concerned about them from the standpoint of science, safety, security, public
health and economics," writes Dr. Richard Ebright, lab director at Rutgers
University's Waksman Institute of Microbiology and a Howard Hughes Medical
Institute investigator. "They lose on all counts.” (www.nytimes.com/2004/06/29/science/29cont.html)
“It’s really going to have a chilling impact on the type of work
people are going to do in this arena, and other arenas as well," noted
Stephen Halpern, a SUNY Buffalo law professor who specializes in Constitutional
law. Professors and staff from the University of California system express
similar fears. "We are both extremely concerned and disturbed that the
prosecution of the CAE members and research colleagues is continuing.... We
see here a pattern of behavior that leads to the curtailing of academic freedom,
freedom of artistic expression, freedom of interdisciplinary investigation,
freedom of information exchange, freedom of knowledge accumulation and reflection,
and freedom of bona fide and peaceful research. All of which are fundamental
rights and cornerstones of a modern academic environment."
"I am absolutely astonished," said Donald A. Henderson, Dean Emeritus
of the Johns Hopkins University School of Hygiene and Public Health and resident
scholar at the Center for Biosecurity of the University of Pittsburgh Medical
Center. Henderson was awarded the Presidential Medal of Freedom by President
Bush for his work in heading up the World Health Organization smallpox eradication
program and was appointed by the Bush administration to chair the National
Advisory Council on Public Preparedness. "Based on what I have read and
understand, Professor Kurtz has been working with totally innocuous organisms...I
am dismayed by what appears to me to be yet one more instance in which knowledgeable
persons in the field of bioterrorism are not being brought in and consulted
to ascertain what might be real problems and what are purely spurious problems.” Henderson
noted that the organisms involved in this case do not appear on lists of substances
that could be used in biological terrorism and are harmless both alone and
in combination. (newstandardnews.net/content/?action=show_item&itemid=646).
Innumerable
other scientists, artists, institutions, and others have written letters of
support for Kurtz and Ferrell. A number of these can be viewed at: www.caedefensefund.org/letters.html
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What is Critical Art Ensemble?
CAE (founded in 1987 by Steve Kurtz and Steven Barnes) is a collective of internationally
recognized artists who work in public, educational, academic and art contexts.
Their writings have been translated into at least 16 languages and their
work has been covered by most major art journals, including Artforum, Kunstforum
and The Drama Review, which dedicated a special section to CAE in a recent
issue. For almost two decades CAE has produced and exhibited art that examines
questions surrounding information, communications, and bio technologies.
Why does CAE use harmless bacteria in their art?
Over the past decade, one of CAE’s principal aims has been to help the
general public understand biotechnology and the many issues surrounding it.
In participatory theater events, CAE very publicly and legally perform basic
scientific processes to explain and demystify them. Audiences of all ages who
participate in CAE events walk away with a clearer understanding of the issues
surrounding genetically altered foods, reproductive technologies and bio-warfare.
CAE always undertake their work in a safe and considered way, involving thorough
research and in continuous consultation with members of the scientific community,
to ensure that the artworks they produce are both accurate and safe. In keeping
with their criteria of safety and accessibility, the materials they use are
strictly non-hazardous, can be legally obtained by anyone, and are commonly
found in undergraduate level biology labs. Indeed, CAE's projects are recognized
by artists, scientists, and institutions worldwide as thorough, investigative,
educative and safe.
For example, one of CAE's performances, GenTerra, used a harmless form
of gut E.coli (which resides in the intestinal track of all humans) to educate
the public about transgenic organisms. When the FBI seized the materials for
this project during their raid on Kurtz's home, it had already been commissioned
by, and performed at, major cultural institutions throughout North America
and Europe (such as the London Museum of Natural History), with absolutely
no risk to the public.
From the CAE website:
Excerpt from CAE's book Molecular Invasion (Autonomedia,
2002):
"Over the past five years Critical Art Ensemble (CAE) has traveled
extensively doing participatory performances that critique the representations,
products, and policies related to emerging biotechnologies. When we do projects
concerning transgenics, one of the most common questions participants ask
is whether CAE is for or against genetically modified organisms (GMOs). The
reply from group members is always the same: We have no general position.
Each product or process has to be taken on a case-by-case basis. Some appear
disastrous (primarily to the environment), while others seem soundly engineered
and useful. The real question of GMOs is how to create models of risk assessment
that are accessible to those not trained in biology so people can tell the
difference between a product that amounts to little more than pollutants
for profit and those which have a practical and desirable function, while
at the same time have no environmental impact. Making such decisions is further
complicated by a general lack of understanding of safety testing procedures.
For those without scientific training, the question of what constitutes scientific
rigor seems to be a mystery, and reading a study on the safety of transgenic
products appears to be a mountain that is too high to climb. The concerned
public can be further bamboozled by specialized vocabularies. The result
is that individuals are left with the implied obligation that they should
just have faith in scientific, government, and corporate authorities that
allegedly always act with only the public interest in mind."
Read the "Background
on CAE and Bio-Art" by Claire Pentecost
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Is the USA Patriot Act at work here?
The USA PATRIOT Act modified the laws under which the Justice Department has
sought charges against Kurtz and Ferrell. It modified the US Biological Weapons
Anti-Terrorism Act of 1989 to make the possession of _any_ biological substance
potentially illegal (see above). The PATRIOT Act also expanded the maximum
possible sentence for wire and mail fraud, under which Kurtz and Ferrell were
eventually charged, from five years to twenty.
To our knowledge other aspects of the PATRIOT Act have _not_ been used in
the legal proceedings against Kurtz and Ferrell. However, since the PATRIOT
Act can be used against individuals without their knowledge, there is no way
of knowing for sure. (The PATRIOT Act permits "sneak and peek" searches,
in which the law never has to disclose wiretaps, searches, surveillances, or
the procurement of confidential information such as medical records deemed
necessary to determine suspicion.) Less directly, “the vague language
of the PATRIOT Act [see above] allows authorities to enforce its provisions
without reasonably evaluating the bona fide professional merit and peaceful
purposes of the people involved, nor the danger of the circumstances.” (See
Joyce Lok See Fu, “The Potential Decline of Artistic Activity in the
Wake of the Patriot Act: The Case Surrounding Steven Kurtz and the Critical
Art Ensemble,” The Columbia Journal of Law and the Arts, Vol. 29 No.
1, Fall 2005.)
Read Nancy Murray's (Director of Education, Massachusetts ACLU) speech to the Museum of Fine Arts about current threats to civil liberties, including the USA Patriot Act.
Read the Patriot Act Sec. 817: Expansion of the Biological Weapons Statue
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What is a Grand Jury?
From the American Bar Association:
"The primary function of the modern grand jury is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment.
The original purpose of the grand jury was to act as a buffer between the king (and his prosecutors) and the citizens. Critics argue that this safeguarding role has been erased, and the grand jury simply acts as a rubber stamp for the prosecutor.
Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.
In the federal system, the courts have ruled that the grand jury has extraordinary investigative powers that have been developed over the years since the 1950s. This wide, sweeping, almost unrestricted power is the cause of much of the criticism. The power is virtually in complete control of the prosecutor, and is pretty much left to his or her good faith."
http://www.abanet.org/media/faqjury.html
http://www.udayton.edu/~grandjur/faq/faq.ht
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