FBI HARASSMENT CONTINUES--ARTIST FACES 20-YEAR CHARGES
Read this release in German here.
July 8, 2004
FOR IMMEDIATE RELEASE
FBI HARASSMENT OF ARTIST AND SCIENTIST CONTINUES Kurtz and Ferrell face 20-year charges of mail and wire fraud in federal court arraignment
Dr. Steven Kurtz, Associate Professor of Art at the University of Buffalo, was arraigned and charged in Federal District Court in Buffalo today on four counts of mail and wire fraud (United States Criminal Code, Title 18, United States Code, Sections 1341 and 1343), which each carry a maximum sentence of 20 years in prison.
The arraignment of Dr. Robert Ferrell, Professor of Genetics at the University of Pittsburgh, who was indicted along with Kurtz, has been postponed for a week for health reasons.
The defendants were charged not with bioterrorism, the investigative reason that was state on the original FBI subpoenas, but with a glorified version of "petty larceny," in the words of Kurtz attorney Paul Cambria. The laws under which the indictments were obtained are normally used against those defrauding others of money or property, as in telemarketing schemes. Historically, these laws have been used when the government could not prove other criminal charges. (See http://www.caedefensefund.org/ for background and full text of indictment.
Under the arraignment conditions, Kurtz is subject to travel restrictions, random and scheduled visits from a probation officer, and periodic drug tests.
EMINENT SCIENTISTS CONFUSED AND ALARMED
A great number of people are wondering why this seemingly absurd case is still being pursued.
"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... to discuss something of the risks and threats of biological weapons--more power to him, as those of us in this field are likewise concerned about their potential use and the threat of bio-terrorism." Henderson noted that the organisms involved in this case--Serratia marcescens and Bacillus atrophaeus--do not appear on lists of substances that could be used in biological terrorism (http://newstandardnews.net/content/?action=show_item&itemid=646).
University of California at San Diego Professor of Design Engineering Natalie Jeremijenko noted that scientists ship materials to each other all the time. "I do it, my lab students do it. It's a basis of academic collaboration.... They're going to have to indict the entire scientific community."
Perhaps with such an outcome in mind, 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" (http://www.caedefensefund.org/press/CAEed.pdf).
FACE-SAVING MEASURE OR WARNING TO ARTISTS?
Some believe that the entire case is merely a face-saving tactic by the FBI: "Recently, federal agents arrested University at Buffalo art professor Steven Kurtz, implying he was a bioterrorist. Now, officials have downgraded that to a mail fraud charge.... The FBI always gets its man, even if it has to change its charge. Jaywalkers, beware" (http://www.buffalonews.com/editorial/20040707/3028537.asp).
Others, like the editors of Nature quoted above, see the intent as much more insidious. "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 (http://newstandardnews.net/content/?action=show_item&itemid=646).
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."
"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] re-create [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" (http://www.tribnet.com/entertainment/story/5238040p-5173016c.html).
CAE had intended to use the bacteria concerned in a project critiquing the history of US involvement in germ warfare experiments, including the Bush administration's earmarking of hundreds of millions of dollars to erect high-security laboratories around the country. Many eminent scientists likewise view these plans 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" (http://www.nytimes.com/2004/06/29/science/29cont.html).
In a letter to the FBI, the PEN American Freedom to Write committee writes that "PEN supports strong, targeted laws to apprehend terrorists and those who would carry out terrorist attacks. In seeking to meet the terrorist threat, however, we must not give in to the impulse to censor or ban whole bodies of basic knowledge. The tools of terrorists are the tools of modern life, and many of these tools, including biotechnology, have wide-ranging, non-criminal applications. They also pose challenging ethical and policy questions, which it is both the right and responsibility of a free society to consider. Arts such as literature and performance are indispensable tools that often serve to stimulate and advance public awareness and understanding of otherwise arcane bodies of knowledge.... Actions [of the FBI and the Joint Terrorism Task Force] could exert a chilling effect on kinds of speech that clearly enjoy full First Amendment protection. You have pledged to carry out antiterrorism efforts without compromising civil liberties and constitutional protections."
Innumerable other scientists, artists, institutions, and others have written letters of support for Kurtz and Ferrell. A number of these can be viewed at http://www.caedefensefund.org/letters.html.
Even after today's arraignment, the FBI's investigation of Kurtz and Ferrell is not over. The grand jury is still hearing testimony of subpoenaed witnesses including Autonomedia, an independent publisher who has published five CAE books (http://www.autonomedia.org/). Autonomedia, summoned to appear in court on July 13 and to submit all records and editorial correspondence pertaining to their dealings with CAE, is represented by the New York Civil Liberties Union with an amicus curiae brief from the American Booksellers Committee for Free Expression.
Organizers and supporters of the defense committee have pledged to continue their information, education, and protest activities. Several campuses have already organized teach-ins on the case in the fall, and fund-raisers and speak-outs are scheduled in Chicago, London, New York, and other cities throughout July and August.
To donate to the defense fund, please visit http://caedefensefund.org/donate.html.
Updates on the case will be posted at http://www.caedefensefund.org/.
To receive more frequent updates by email, please join http://groups.yahoo.com/group/CAE_Defense/.
ADDITIONAL ARRAIGNMENT DETAILS
July 8, 2004
The courtroom was packed with press as Steve Kurtz and his lawyer Paul Cambria arrived. The proceedings lasted almost two hours. The charges are the same as in the http://www.caedefensefund.org/indictment.pdf indictment. Kurtz pleaded "not guilty." Most of the court time was devoted to working out the restrictions on the accused (or shall we call him the perp? He certainly did a good perp walk yesterday).
It is important to note that the harassment which continues to characterize this case was evident in the courtroom also. Prosecutor Hochul had filled the jury box with invitees from the FBI and Joint Terrorist Task Force (Department of Defense) guys (they were recognized by Cambria and another lawyer). Since they were not there to give testimony, the purpose of their presence seemed to be to make the situation look more serious legally than it is, thereby hoping to influence the judge to make harsher conditions for the accused. However, the judge did not seem to be intimidated.
Steve will have to see a probation officer every week, and is subject to random visits and inspections by the officer to his home. He is also subject to random drug testing and may have to wear a drug patch. He can travel within the continental United States but has to get special permission for foreign travel (which he can do only for business or family reasons, surrendering his passport every time he returns to the US). He also has to get special permission for any travel that would interrupt meeting with the probation officer. Steve will be allowed to order more "biological materials," but will have to first alert his US probation office, his University Health and Bio-safety officer and his lawyer, Paul Cambria.
Upon being booked, Steve did not have to post bond--if he violates any of the conditions he will have to pay a $1000 fine. He is obligated to report parking tickets or any other official problem, or any interaction with law enforcement authorities. Upon arraignment Steve was finger-printed, photographed, and he gave a urine sample for drug testing. He passed the test!
Steve is still not talking to the press. The next court date is July 28--Ferrell's arraignment, which will include a discussion of the trial.
"BIOTERROR" CHARGES AGAINST ART PROFESSOR DOWNGRADED TO "MAIL FRAUD" IN STEALTH INDICTMENT \$256 technicality may be face-saving move by FBI - June 29th, 2004
Read this release in German here.
Professor Steve Kurtz was charged today by a federal grand jury in Buffalo, New York--not with bioterrorism, as listed on the Joint Terrorism Task Force's original search warrant and subpoenas, but with "petty larceny," in the words of Kurtz attorney Paul Cambria. (See http://www.caedefensefund.org/ for background.)
Also indicted was Robert Ferrell, head of the Department of Genetics at the University of Pittsburgh's School of Public Health. The charges concern technicalities of how Ferrell helped Kurtz to obtain $256 worth of harmless bacteria for one of Kurtz's art projects.
The laws under which the indictments were obtained--Title 18, United States Code, sections 1341 and 1343, covering mail and wire fraud--are normally used against those defrauding others of money or property, as in telemarketing schemes.
This is a far cry from the bioterrorism charges originally sought by the District Attorney. To make a "federal case" out of such minor allegations, the District Attorney will have the burden of proving criminal intent.
"There was very obviously no criminal intent," said Kurtz attorney Cambria. "The intent was to educate and enlighten." Cambria suggested that the pursuit of such a minor case at the federal level was profoundly absurd. "If the University of Pittsburgh feels that there was a contract breach, then their remedy is to sue Steve for $256 in a civil court."
A STEALTH INDICTMENT
The U.S. District Attorney attempted to cast the issue as one of public health and safety in a public press conference called without the knowledge of either defendant's lawyers, thus eliminating the chance of rebuttal. During the conference, parts of which were broadcast on local Buffalo news channels, U.S. Attorney William Hochul and U.S. District Attorney Michael Battle repeatedly alluded to "dangerous" and "bio-hazardous material," even though the charges have nothing to do with such issues, and scientists universally regard the materials in question as safe.
At one point in the press conference, U.S. Attorney Hochul stated that Serratia marcescens, one of the two bacteria ordered by Ferrell, "is in fact a dangerous material in that it can cause pneumonia." Serratia cannot cause pneumonia, only aggravate it in someone who already has it, and very rarely at that. Furthermore, it would be hard to characterize as a "dangerous material" something that high school students routinely use in biology class experiments. (Easily trackable by its bright red color, S. marcescens is commonly used to demonstrate the many ways microbes can be destroyed--e.g. with household bleach. The other bacterium, Bacillus globigii, is also used in experiments as a stand-in for dangerous microbes--precisely because it is harmless.)
Many believe the attempt to cast the $256 technicality as a public health and safety issue is a face-saving measure by the government, which has already expended an enormous amount of time and money in their fruitless pursuit of this case.
ONLY THE BEGINNING
Although the original bioterrorism charges are now completely off the table, the trial still promises to be financially and psychologically draining for the defendants.
The international support of the defendants by artists, scientists and other citizens has been remarkable; it is crucial that this support continue as the government extends this outrageous and wasteful persecution into a grueling trial.
To donate to the defense fund, please visit http://caedefensefund.org/donate.html. Updates on the case will be posted at http://www.caedefensefund.org/. To receive more frequent updates by email, please join http://groups.yahoo.com/group/CAE_Defense/.
TEN SUBPOENAS ISSUED IN FBI CASE AGAINST ARTIST - June 8th, 2004
Nine colleagues of Steve Kurtz have been subpoenaed to appear before a Federal Grand Jury on June 15th. Thus far subpoenas have been issued to: Adele Henderson, Chair of the Art Department at UB; Andrew Johnson, Professor of Art at UB; Paul Vanouse, Professor of Art at UB; Beatriz da Costa, Professor of Art at UCI; Steven Barnes, FSU; Dorian Burr, Beverly Schlee, Claire Pentecost, Julie Perini, and the publisher Autonomedia.
ARTISTS SUBPOENAED IN USA PATRIOT ACT CASE
Feds STILL unable to distinguish art from bioterrorism
Grand jury to convene June 15
Seven artists have been served subpoenas to appear before a federal grand jury that will consider bioterrorism charges against a university professor whose art involves the use of simple biology equipment.
The subpoenas are the latest installment in a bizarre investigation in which members of the Joint Terrorism Task Force have mistaken an art project for a biological weapons laboratory (Background essay). While most observers have assumed that the Task Force would realize the absurd error of its initial investigation of Steve Kurtz, the subpoenas indicate that the feds have instead chosen to press their "case" against the baffled professor.
Two of the subpoenaed artists--Beatriz da Costa and Steve Barnes--are, like Kurtz, members of the internationally-acclaimed Critical Art Ensemble (CAE), an artists' collective that produces artwork to educate the public about the politics of biotechnology. They were served the subpoenas by federal agents who tailed them to an art show at the Massachusetts Museum of Contemporary Art. More recently subpoenas have been issued to: Adele Henderson, Chair of the Art Department at UB; Paul Vanouse, Professor of Art at UB; Andrew Johnson, Professor of Art at UB; And founding members of CAE, Dorian Burr and Beverly Schlee.
The artists involved are at a loss to explain the increasingly bizarre case. "I have no idea why they're continuing (to investigate)," said Beatriz da Costa, one of those subpoenaed. "It was shocking that this investigation was ever launched. That it is continuing is positively frightening, and shows how vulnerable the PATRIOT Act has made freedom of speech in this country." Da Costa is an art professor at the University of California at Irvine.
According to the subpoenas, the FBI is seeking charges under Section 175 of the US Biological Weapons Anti-Terrorism Act of 1989, which has been expanded by the USA PATRIOT Act. As expanded, this law prohibits the possession of "any biological agent, toxin, or delivery system" without the justification of "prophylactic, protective, bona fide research, or other peaceful purpose." (See http://www4.law.cornell.edu/uscode/18/175.html for the 1989 law and http://www.ehrs.upenn.edu/protocols/patriot/sec817.html for its USA PATRIOT Act expansion.)
Even under the expanded powers of the USA PATRIOT Act, it is difficult to understand how anyone could view CAE's art as anything other than a"peaceful purpose." The equipment seized by the FBI consisted mainly of CAE's most recent project, a mobile DNA extraction laboratory to test store-bought food for possible contamination by genetically modified grains and organisms; such equipment can be found in any university's basic biology lab and even in many high schools (see "Lab Tour" at http://www.critical-art.net/biotech/free/ for more details).
The grand jury in the case is scheduled to convene June 15 in Buffalo, New York. Here, the jury will decide whether or not to indict Steve Kurtz on the charges brought by the FBI. A protest is being planned at 9 a.m. on June 15 outside the courthouse at 138 Delaware Ave. in Buffalo.
May 25, 2004
FBI ABDUCTS ARTIST, SEIZES ART
Feds Unable to Distinguish Art from Bioterrorism
Grieving Artist Denied Access to Deceased Wife's Body
DEFENSE FUND ESTABLISHED - HELP URGENTLY NEEDED
Steve Kurtz was already suffering from one tragedy when he called 911 early in the morning to tell them his wife had suffered a cardiac arrest and died in her sleep. The police arrived and, cranked up on the rhetoric of the "War on Terror," decided Kurtz's art supplies were actually bioterrorism weapons.
Thus began an Orwellian stream of events in which FBI agents abducted Kurtz without charges, sealed off his entire block, and confiscated his computers, manuscripts, art supplies... and even his wife's body.
Like the case of Brandon Mayfield, the Muslim lawyer from Portland imprisoned for two weeks on the flimsiest of false evidence, Kurtz's case amply demonstrates the dangers posed by the USA PATRIOT Act coupled with government-nurtured terrorism hysteria.
Kurtz's case is ongoing, and, on top of everything else, Kurtz is facing a mountain of legal fees. Donations to his legal defense can be made at http://www.caedefensefund.org/
FEAR RUN AMOK
Steve Kurtz is Associate Professor in the Department of Art at the State University of New York's University at Buffalo, and a member of the internationally-acclaimed Critical Art Ensemble.
Kurtz's wife, Hope Kurtz, died in her sleep of cardiac arrest in the early morning hours of May 11. Police arrived, became suspicious of Kurtz's art supplies and called the FBI.
Within hours, FBI agents had "detained" Kurtz as a suspected bioterrorist and cordoned off the entire block around his house. (Kurtz walked away the next day on the advice of a lawyer, his "detention" having proved to be illegal.) Over the next few days, dozens of agents in hazmat suits, from a number of law enforcement agencies, sifted through Kurtz's work, analyzing it on-site and impounding computers, manuscripts, books, equipment, and even his wife's body for further analysis. Meanwhile, the Buffalo Health Department condemned his house as a health risk.
Kurtz, a member of the Critical Art Ensemble, makes art which addresses the politics of biotechnology. "Free Range Grains," CAE's latest project, included a mobile DNA extraction laboratory for testing food products for possible transgenic contamination. It was this equipment which triggered the Kafkaesque chain of events.
FBI field and laboratory tests have shown that Kurtz's equipment was not used for any illegal purpose. In fact, it is not even _possible_ to use this equipment for the production or weaponization of dangerous germs. Furthermore, any person in the US may legally obtain and possess such equipment.
"Today, there is no legal way to stop huge corporations from putting genetically altered material in our food," said Defense Fund spokeswoman Carla Mendes. "Yet owning the equipment required to test for the presence of 'Frankenfood' will get you accused of 'terrorism.' You can be illegally detained by shadowy government agents, lose access to your home, work, and belongings, and find that your recently deceased spouse's body has been taken away for 'analysis.'"
Though Kurtz has finally been able to return to his home and recover his wife's body, the FBI has still not returned any of his equipment, computers or manuscripts, nor given any indication of when they will. The
case remains open.