After a four-year legal battle, a US federal
judge has dismissed all charges against an avant-garde artist who public officials
condemned as a bio-terrorist in a case critics are calling "a persecution,
not a prosecution."
The artist is Dr. Steven Kurtz, a professor of Visual Studies at the University
of Buffalo, and a founding member of the award-winning collective Critical Art
The case started in May of 2004. While Kurtz was preparing for an exhibition
of an art installation at MASS MoCA, a museum in North Adams, Massachusetts,
his wife of 20 years died in her sleep. When police responded to his 911 call,
they noticed a small food-testing lab and petri dishes containing bacteria cultures.
The lab was part of the scheduled installation, which would have allowed museum
visitors to see if their store bought food contained genetically modified (GM)
organisms. The cultures were part of a multimedia project commissioned by the
British-based art-science initiative, The Arts Catalyst, and produced in consultation
with scientists from the Harvard-Sussex Program.
The project used the harmless bacteria Bacillus subtilis and Serratia marcescens
in an installation, performance, and film dedicated to demystifying issues surrounding
germ warfare programs and their cost to global public health. Some of CAE's
work is designed to protest the potential risks of genetically modified (GM)
Local police called the Federal Bureau of Investigation (FBI). While politicians
and federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz
was detained under the PATRIOT Act on suspicion of bioterrorism. The street
where Kurtz's home was located was cordoned off, his house searched, and his
Federal agents confiscated Kurtz's art projects, computers, and all copies
of a book manuscript Kurtz was working on, as well as his reference books and
notes. The book, Marching
Plague: Germ Warfare and Global Public Health, had to be entirely reconstructed
and was finally published in 2006.
The then governor of New York, George Pataki, lauded the work of the FBI for
disrupting a major bioterrorism threat. And the then US attorney in Buffalo,
Michael A. Battle the lawyer who was later to become the Department of Justice
employee who notified eight US attorneys that they were being fired praised
the work of the Buffalo Joint Terrorism Task Force.
But after a several-month-long investigation, the FBI and the Department of
Homeland Security (DHS) failed to provide any evidence of "bioterrorism."
On the contrary, FBI tests revealed within a few days of the incident that there
were no harmful biological agents in Kurtz's house and that his wife had died
of heart failure.
Forced to drop its charges of weapons manufacture, the government instead accused
Kurtz and Ferrell of mail and wire fraud. The government claimed that when Dr.
Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the
University of Pittsburgh and the supplier, American Type Culture Collection
Neither the university nor ATCC had brought any complaint, and observers pointed
out that scientists routinely share non-hazardous cultures. The Department of
Justice further claimed that this alleged contract discrepancy constituted federal
mail and wire fraud.
Because the charges against the two academics were brought under the PATRIOT
Act, the maximum penalty was increased from five years to 20.
Earlier, Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than
facing a prolonged trial for the mail and wire fraud felonies. During the legal
wrangling, he had two minor strokes and a major stroke that required months
of rehabilitation. He was indicted as he was preparing to undergo a stem cell
transplant, his second in seven years.
But Kurtz rejected any plea deal, instead demanding a public trial. Most of
the art world has rallied behind him. His colleagues in the Critical Art Ensemble
set up a website and a legal defense fund, and Kurtz continued to teach at the
University of Buffalo.
When the case finally arrived in a courtroom this month, Federal Judge Richard
J. Arcara ruled to dismiss the indictment. It is unclear whether the government
will appeal the dismissal.
Lucia Sommer, coordinator of the CAE Defense Fund, which raised funds for Kurtz'
legal defense, told IPS that the judge's decision "is further testament
to our original statements that Dr. Kurtz is completely innocent and never should
have been charged in the first place."
Kurtz's supporters said, "The government has pursued this case relentlessly,
spending enormous amounts of public resources. Most significantly, the legal
battle has exhausted the financial, emotional, and physical resources of Ferrell
and Kurtz, as well as their families and supporters. The professional and personal
lives of both defendants have suffered tremendously."
The case against Kurtz and Ferrell came to a nation still gripped by the terrorist
attacks of 9/11 and the 2001 anthrax attacks. The anthrax attacks occurred over
the course of several weeks beginning in September 2001. Letters containing
anthrax spores were mailed to several news media offices and two Democratic
US senators, killing five people and infecting 17 others. Despite a massive
government investigation costing millions and covering several continents, the
crime remains unsolved.
The FBI named a government researcher, Dr. Steven Hatfill, as "a person
of interest" in the investigation. His name was widely publicized in the
media for months, but he has never been charged with any crime. Hatfill sued
the New York Times for libel, contending that that the newspaper erroneously
linked him to the anthrax attacks.
In an unusual legal maneuver, the New York Times invoked the "state
secrets" doctrine in a motion to dismiss the libel suit. The Times
argued that the classification restrictions imposed on the case by the government
were tantamount to an assertion of the state secrets privilege.
The "state secrets" doctrine, the newspaper said, "precludes
a case from proceeding to trial when national security precludes a party from
obtaining evidence that is... necessary to support a valid defense Dismissal
is warranted in this case because the Times has been denied access to
such evidence, specifically documents and testimony concerning the work done
by (Hatfill) on classified government projects relating to bioweapons, including
The court agreed and the case was dismissed in January 2007.
The Kurtz-Ferrell prosecution has drawn widespread criticism from both the
art world and from legal experts. The New York Civil Liberties Union (NYCLU)
questioned the propriety of a grand jury investigation into Kurtz's work. "It
doesn't appear that this investigation satisfies the FBI standards that the
facts and circumstances of the case must reasonably indicate that a crime has
been committed," said Donna Lieberman, executive director of the NYCLU.
Patricia J. Williams, professor of law at Columbia University, questioned whether
the Kurtz-Ferrell prosecution is part of a larger government reaction against
anti-administration expression in the arts.
She wrote, "Recently scholars from around the world have been barred from
the US for reasons stated and unstated, but all in the name of Homeland Security.
They include a South African peace activist, a Canadian antipoverty worker,
an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British
musician, a Bolivian historian."
Critical Art Ensemble, which Kurtz co-founded in 1987 with Steven Barnes, has
won numerous awards for its bio-art, including the prestigious 2007 Andy Warhol
Foundation Wynn Kramarsky Freedom of Artistic Expression Grant, honoring more
than two decades of distinguished work.
(Inter Press Service)