July 8, 2004


Contact: mailto:media@caedefensefund.org

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, as listed on the Joint Terrorism Task Force's original search warrant and 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.


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

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"


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
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"

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"

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

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.


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