CAE Legal Defense Fund caedefense at caedefensefund.org
Fri Jul 9 05:08:48 CEST 2004

July 8, 2004

Contact: mailto:media at 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" (http://www.caedefensefund.org/press/CAEed.pdf).


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

"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 (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
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