The Bio-terrorism Case That Wasn’t

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Original Article by IPS News Service By William Fisher

It is simply amazing to me the way the Justice system is used in the promotion of fear. If the least provocation exists, there will be a court case. Not to mention the personal humiliation of a trial, your life laid out for the public eye and most of the information may or may not be incorrect. No wonder the Law field is the fastest growing industry turnout there is. If you don’t currently need a lawyer, chances are you will very soon.

Take the case of a New York artist. For the past four years he has been accused of being a bioterrorist, of plotting to unleash some “unknown” plague upon unsuspecting New Yorkers. The reality of the case though is much simpler and goes under the heading of scratching my head here…

After four years a federal judge has finally thrown the whole thing out of court, dismissing the charges, one and all. The artist, one Dr. Steven Kurtz, is an artist and was preparing for a show when his wife died suddenly.

Dr. Steven Kurtz is a Professor of Visual Studies at the University of Buffalo. He is a distinguished member in good standing and a founding member of the award-winning collective Critical Art Ensemble (CAE). We aren’t talking just some starving artist off the street here. Dr. Kurtz is respected in his field.

In 2004 while preparing for an exhibit of his work, his wife suddenly died in her sleep. They had been married for 20 years. Understand that the exhibit he was preparing for called for such things as a small food-testing lab and petri dishes containing bacteria cultures.

This small lab setup would have been used at the exhibit to allow people to test their food to see if genetically modified foods, (GM), were present in their store bought food. Sounds very innocent doesn’t it? (See my article on Monsanto) But when the police responded to the 9-11 call they saw the petri dishes, the small cultures of bacteria, and well… imagination set in!

Some types of bacteria are harmless, others of course are not. The police obviously didn’t know the difference in what they were seeing. The bacteria Dr. Kurtz was using was Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programmes and their cost to global public health. And, in part, to protest such things as GM foods which have no long term testing on humans OR animals to tell us if they are safe or not. Dr. Kurtz’s work was to protest some of the potential risks of GM foods. Hmmmmmmm

The police called the FBI. They had no idea what to do with what they found. In the meantime, politicians and the federal prosecutor couldn’t WAIT to tell EVERYONE that they had just stopped a major bio-terrorist plot. Oh ya, they really did! Using the Patriot Act, Dr. Kurtz was held and charged with suspicion of plotting bio-terrorism. Dr. Kurtz’s home was cordoned off, searched and seized. All his computers, his manuscript for his new book, everything was taken. Dr. Kurtz had to recreate his book from nothing…

The Joint Terrorism Task Force searches Professor Steven Kurtz’s home

The FBI even took Dr. Kurtz reference material for his book, his art projects, and his notes, everything. And only after painstaking effort was Dr. Kurtz able to rewrite it. The book, entitled: Marching Plague: Germ Warfare and Global Public Health was finally published in 2006.

Then governor George Pataki of New York, hailed the efforts of the FBI, claiming they had indeed stopped a major bio-terrorist threat. Michael A. Battle then US Attorney for Buffalo, praised the work of the Buffalo Joint Terrorism Task Force. You remember Mr. Battle, he would later be the one notifying the 8 lawyers that they had been fired… Just a stand up guy!

But after investigating for several months, neither the Department of Homeland Security nor the FBI could find any evidence of bio-terrorism. On the contrary, within days the tests done on the cultures revealed the harmless nature of the them. Oopsie… His wife, had also not died of some mysterious biological agent, but of a simple heart attack. Now what were they going to do???

Well, they couldn’t charge the doctor with manufacturing bio-terrorism weapons, so they settled for fraud. Dr. Kurtz and Dr. Ferrel were charged with both mail and wire fraud. The FBI and DHS claimed that 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 (ATCC). ~rolls eyes here~ Better to get them for something than have to face the fact they had made a mistake…

Now, no one at either the University of Pittsburgh or the American Type Culture Collection (ATCC) had complained of any wrong doing. And others reported that it was a regular occurrence for those in the science field to share non-hazardous cultures. But the Department of Justice claimed otherwise…

Due to the Patriot Act, the charges these two were alleged to have committed made the time in prison go from 5 years to 20 years. Dr. Ferrell, not wishing to face a long trail and even longer sentencing for the wire and mail fraud felonies, plead guilty to a lessor misdemeanor charge.

But Dr. Kurtz said no to the plea bargain and requested a public trial. His colleagues and those in the art world rallied around him. The Critical Art Ensemble set up a website for his defense fund and he continued to teach at the University of Pittsburgh.

Finally after four years the case arrived in court where Federal Judge Richard J. Arcara dismissed the case. There is no word on whether or not the government will appeal the case.

One person who spoke with IPS, Lucia Sommer, coordinator of the CAE Defence Fund, said it was further proof that they had told the government all along Dr. Kurtz was innocent of all charges, that he never should have been charged to begin with…

The government is known for its relentless pursuit of cases. In one person’s words,” 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.” There have been NO apologies either…

This and other cases which came shortly after 9/11 and during a time when the nation at large was horrified and stunned by what had happened in 2001. You might remember that during this time anthrax was sent through the mail, anthrax spores being discovered in letters that were mailed to several news media outlets and two Democratic Senators. In all, 5 people died and 17 were infected. Despite a massive search covering several Continents and millions of dollars, the case still remains unsolved. Only one person was ever described as “of interest” in the search.

Dr. Steven Hatfill was the only person ever named as the “of interest” in the anthrax cases, but after months of investigation, and massive media publicity, he was never charged. Dr. Hatfill eventually sued the NewYorkTimes for libel claiming that they made an error when they linked his name with the anthrax.

And this part here just boggles the mind so I’m going to put it just as the IPS article wrote it:

In an unusual legal manoeuvre, 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 bio-weapons, including anthrax.”

You got it, the Judge agreed with them and the case was dropped January of 2007. No mention of the damage it had done to Dr. Steven Hatfill.

Widespread criticism from both the art world and legal experts concerning the Ferrell/Kurtz case has been lodged against the prosecution. The New York Civil Liberties Union said it doesn’t appear that this case met the standards of the FBI for investigation or of a grand jury investigation into Dr. Kurtz’ work.

Donna Lieberman said, “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.” Donna Lieberman is the executive director for the New York Civil Liberties Union, (NYCLU).

A professor of law at Columbia University, Patricia J. Williams, asked whether or not the case was, in fact, the governments way of saying “Don’t be anti-administration or you will be prosecuted.”

Ms. Williams wrote, “Recently scholars from around the world have been barred from the U.S. 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, honouring more than two decades of distinguished work.

~ by justmytruth on May 6, 2008.