Opinio Juris

With so many failed terrorism prosecutions to cover — see, for example, here, here, and here — the media can be forgiven for overlooking one here or there. Still, it's a shame that the Bush administration's most recent failure, the baseless prosecution of Dr. Steven Kurtz on bioterror charges, has not received more attention.

It's an ugly story. Kurtz, a professor of visual arts at the University of Buffalo, fell asleep next to his wife of 20 years one night in May, 2004. When he woke up, she was dead. He immediately called 911, the police came to his house — and thus began what can only be described as a Kafkaesque nightmare:

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 multi-media project commissioned by the British-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Programme.

The project used the harmless bacteria 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. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.

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 property seized.

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" (New York: Autonomedia), 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 U.S. attorney in Buffalo, Michael A. Battle — the lawyer who was later to become the Department of Justice employee who notified eight U.S. attorneys that they were being fired — praised the work of the Buffalo Joint Terrorism Task Force.

The initial investigation went nowhere — FBI tests revealed that the bacteria were harmless — and a grand jury ultimately refused to indict Kurtz on bioterrorism charges. The end of the case? Of course not. This is, after all, the Bush administration, for whom "justice" is a four-letter word:

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 (ATCC).

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 defence 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.

If Kurtz's four-year ordeal is any indication, the Bush administration most certainly will appeal. Why stop now? The absence of evidence that Kurtz did anything wrong never stopped them before.

Full disclosure: I was involved in the early stages of Kurtz's defense, providing the defense team with legal advice and giving the keynote lecture at a conference at the University of Buffalo on the PATRIOT Act and artistic freedom.