What happened to Steve Kurtz?
 What materials did the FBI seize during their raid on Steve's home?
What is the violation he is accused of and what is the possible sentence?
<empty> Why is this a politically-motivated prosecution?
Why should this case concern me?
What legal precedent would be set if we lose this case?
<empty> Why are eminent scientists alarmed by this prosecution?
What is Critical Art Ensemble and why do they use harmless bacteria in their art?
Is the USA Patriot Act at work here?
What is a Grand Jury?
Why Did Steve Kurtz's Colleagues Refuse to Testify to the Grand Jury?
(link to pdf file)
Whyis this absurd "case" still being pursued? (via Overview page)



Background to the case

Dr. Steven Kurtz is a Professor of Art at SUNY Buffalo and a founding member, with his late wife, Hope, of the internationally acclaimed art and theater collective Critical Art Ensemble (CAE). Over the past decade cultural institutions worldwide have hosted CAE’s participatory theater projects that help the general public understand biotechnology and the many issues surrounding it.

In May 2004 the Kurtzes were preparing to present Free Range Grain, a project examining GM agriculture, at the Massachusetts Museum of Contemporary Art (MASS MoCA), when Hope Kurtz died of heart failure. Emergency personnel who responded to Steve Kurtz's 911 call deemed the couple's art suspicious, and called the FBI. The art materials consisted of several petri dishes containing three harmless bacteria cultures, and a mobile lab to test food labeled “organic” for the presence of genetically modified ingredients. As Kurtz explained, these materials had been safely displayed in museums and galleries throughout Europe and North America with absolutely no risk to the public.

The next day, however, as Kurtz was on his way to the funeral home, he was illegally detained by agents from the FBI and Joint Terrorism Task Force, who informed him he was being investigated for "bioterrorism." At no point during the 22 hours Kurtz was held and questioned did the agents Mirandize him or inform him he could leave. Meanwhile, agents from numerous federal law enforcement agencies - including five regional branches of the FBI, the Joint Terrorism Task Force, Homeland Security, the Department of Defense, and the Buffalo Police, Fire Department, and state Marshall's office - descended on Kurtz's home in Hazmat suits. Cordoning off half a block around his home, they seized his cat, car, computers, manuscripts, books, equipment, and even his wife's body from the county coroner for further analysis. The Erie County Health Department condemned his house as a possible "health risk."

A week later, only after the Commissioner of Public Health for New York State had tested samples from the Kurtzes' home and announced that there was nothing in the home that posed any sort of public or environmental health or safety risk, was Kurtz allowed to return home and to recover his wife's body.

While most observers assumed the Task Force would realize its initial investigation was a terrible mistake, the Department of Justice instead chose to press their "case" against Dr. Kurtz (see below for more information on the charges). Despite the Public Health Commissioner's conclusion as to the safety of Kurtz's materials, and despite the fact that the FBI's own field and laboratory tests showed they were not harmful to people or the environment, the Department of Justice continues to waste vast sums of public money on this outrageous and politically motivated persecution.

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FBI Seizes Artworks

To this day, the FBI has refused to return most of the tens of thousands of dollars worth of impounded materials, including a book Kurtz was working on. Kurtz and his acclaimed art collective Critical Art Ensemble (CAE) were using the harmless bacteria and materials in several projects:

1) GenTerra used a harmless form of gut E. coli (which resides in the intestinal track of all humans) to educate the public about transgenic organisms. When the FBI seized the materials for this project during their raid on Kurtz's home, it had already been commissioned by, and performed at, major cultural institutions and other public spaces throughout North America and Europe (such as the London Museum of Natural History) with absolutely no risk to the public.
See documentation of the GenTerra projec at the London Museum of Natural History:
To see documentation of another performance of GenTerra at Oldham Gallery, Manchester: click here

2) The second project seized by the FBI, Marching Plague, was commissioned by the Arts Catalyst, UK, and received its American premiere in the 2006 Whitney Biennial. Marching Plague used the benign bacteria Bacillus subtilis and Serratia marcescens in an installation, performance and film dedicated to demystifying the issues surrounding germ warfare. To learn more about Marching Plague please see:

CAE's companion book, Marching Plague: Germ Warfare and Global Public Health (Autonomedia, 2006) had to be reconstructed after the FBI refused to return the manuscript. Read a review of the book here.

3) The 3rd project seized by the FBI, Free Range Grains, examined questions surrounding Genetically Modified (GM) agriculture, and allowed participants to test food labeled "GM Free" for the presence of GM ingredients. Like GenTerra it had also been performed internationally and was then scheduled for exhibition at the Massachusetts Museum of Contemporary Art (MASS MoCA):

4) The FBI also took the seeds CAE was using in Molecular Invasion, a participatory science-theater work done in cooperation with students from the Corcoran School of Art and Design, at the Corcoran Museum, Washington, DC:

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What is the violation he is accused of?

In their initial investigation, the Justice Department sought charges under Section 175 of the US Biological Weapons Anti-Terrorism Act of 1989, as expanded by the USA PATRIOT Act, Title 18, Part 1, Chapter 10 Sec. 175 - Prohibitions with respect to biological weapons.
Read the Patriot Act Sec. 817: Expansion of the Biological Weapons Statue

Possible sentence of 20 years for "mail fraud" charges

On June 29, 2004, a federal Grand Jury appeared to reject those charges and instead handed down indictments of 2 counts each of "mail fraud" and "wire fraud" under Title 18, United States Code, sections 1341 and 1343. Also indicted was Robert Ferrell, former head of the Department of Genetics at the University of Pittsburgh's School of Public Health, and a collaborator on several of CAE’s projects. (Since Ferrell is ill at this point, his case has been indefinitely postponed.) The charges concern technicalities of how Ferrell allegedly helped Kurtz obtain $256 worth of harmless bacteria for one of CAE's art projects. Although they are a far cry from the charges originally sought by the District Attorney, these are still serious federal charges, which – thanks to the PATRIOT Act – carry the same potential sentence as the original “bioterrorism” charges would have: up to 20 years.

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Attempt to cast alleged contract discrepancy as criminal offense

Charges of mail fraud, and more recently, wire fraud, are designed to dismantle phony financial schemes that defraud the public out of money through mail, credit card or internet. Because these laws are written very broadly they are often used to convict figures in organized crime – and they have also been used selectively against social and political dissidents such as Marcus Garvey. In Kurtz's case, they are evidently being used in an attempt to silence an artist and a scientist whose work questions the policies of the current administration, by making what could at best be a civil contract discrepancy over $256 worth of harmless, legally obtained materials into a criminal charge.

Having wasted millions of taxpayer dollars and failing to produce any evidence of “bioterrorism,” the government is now claiming that Dr. Ferrell used his contract through the University of Pittsburgh to purchase the samples from American Type Culture Collection (ATCC), which he then gave to Steve for use in one of art CAE’s projects, thereby "defrauding" the University and ATCC. If true, this would constitute a minor contract discrepancy concerning $256 of harmless materials, to be settled between the parties involved. But neither the University of Pittsburgh, nor ATCC, nor any state authorities, have brought any complaint against Ferrell or Kurtz! In fact, scientists frequently share materials in this manner because such academic collaboration is necessary for research.

This the first time in the history of the federal courts that the U.S. Department of Justice is intervening in the alleged breach of a Material Transfer Agreement (MTA) of nonhazardous materials in order to redefine it as a criminal offense. Furthermore, the Department of Justice (DoJ) going far outside its own guidelines in an attempt to make this into a federal "crime": the DoJ publishes a Criminal Resource Handbook available online in which it clearly states a general "Prosecution Policy Relating to Mail Fraud and Wire Fraud" as follows:
"Prosecutions of fraud ordinarily should not be undertaken if the schemeemployed consists of some isolated transactions between individuals, involvingminor loss to the victims, in which case the parties should be left to settletheir differences by civil or criminal litigation in the state courts. Seriousconsideration, however, should be given to the prosecution of any scheme whichin its nature is directed to defrauding a class of persons, or the general public,with a substantial pattern of conduct."

The interpretation of wire and mail fraud being used by the federal government in this case is so broad as to make incorrectly filling in a manufacturer's warranty for a TV set into a federal crime. In a July 2005 hearing on the case, Magistrate Judge Kenneth Schroeder noted that such an interpretation would be akin to opening a "Pandora's box."

Read more about MTAs and why the Department of Justice may be prosecuting this case:
"Reflections on the Case by the U.S. Justice Department against Steven Kurtz and Robert Ferrell”
by Claire Pentecost

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"Terrorism" charges still possible

The Department of Justice has not closed their investigative file on Steve Kurtz and “bioterrorism.” The FBI refuses to return any of the tens of thousands of dollars worth of seized materials, including the manuscript for a book Kurtz was working on. On March 17, 2005, Steven Barnes – also a founding member of Critical Art Ensemble – was served a subpoena to appear before a Federal Grand Jury in Buffalo on April 19, 2005. According to the subpoena, the Justice Department was again seeking charges under Section 175 of the US Biological Weapons Anti-Terrorism Act of 1989, as expanded by the USA PATRIOT Act.

Read the Patriot Act Sec. 817: Expansion of the Biological Weapons Statue

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A politically-motivated prosecution

Why is an Attorney General pursuing a "case" that even the company who sold the material has not bothered to pursue? Why is the Department of Justice going far outside its own guidelines in an attempt to make this into a federal "crime"? According to affidavits obtained by Kurtz's lawyer, government agents misled a judge to obtain search warrants for Kurtz’s home. The judge was never told of Kurtz's complete, cooperative and easily verifiable explanation about the harmless bacterial substances he used for his artwork, or that this material had been frequently exhibited in museums and art galleries with no risk to the public, or of the fact that Kurtz tasted the Serratia in one of the petri dishes in front of an officer to prove it was harmless. Also, in a blatant and illegal use of racial profiling, the judge was told of Kurtz's possession of a photograph with Arabic writing beside it, but not of the photograph's context: an invitation to an art exhibition at the Massachusetts Museum of Contemporary Art! The photograph, by The Atlas Group, was one of several exhibited pieces pictured on the invitation.

In bringing these charges the Department of Justice (DoJ) is acting with extreme selectivity: This is the first time in the history of the U.S. Justice system that anyone has ever been indicted or charged with federal mail fraud for allegedly breaking a material transfer agreement (MTA). In the prosecution's radical interpretation of mail fraud law, incorrectly filling in a warranty card would be grounds for federal criminal prosecution.

As in many of the political trials that occurred during the height of the early cold war in the 1950s, the defendants are both high-profile intellectuals who are critical of government policy. Kurtz is one of the best-known political artists working today. The Critical Art Ensemble has exhibited and performed in many of the most important cultural institutions worldwide, including the Whitney Museum, New York; The Corcoran, Washington D.C.; The ICA, London; The MCA, Chicago; Schirn Kunsthalle, Frankfurt; Musée d’Art Moderne de la Ville de Paris, and many more. CAE’s writings have been translated into at least 16 languages and their work has been covered by most major art journals, including Artforum, Kunstforum, and The Drama Review, which recently honored Critical Art Ensemble (CAE) with a special section. Robert Ferrell is similarly renowned in science, and as director of the Department of Genetics at the University of Pittsburgh consistently sought to distance it from corporate and military funding and to instead work in the interests of public health.

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Why Should This Case Concern Me?

This is a precedent-setting case with profound implications for all Americans’ constitutionally guaranteed rights to freedom of speech, expression, and inquiry; and for artists, scientists, researchers, and anyone engaged in vital public discussion about the actions of their government. It threatens to set dangerous legal and political precedent by vastly expanding the government’s reach into our homes and public institutions; by eroding the boundary between civil and criminal law; and by intimidating and criminalizing those who would legitimately and legally criticize government policy. In addition, the case has already led to dispossession of the public's fundamental right to scientific knowledge. Because of this case, many of the manufacturers that formerly supplied amateurs and science hobbyists no longer will for fear of litigation. The case therefore threatens to end independent research and seriously damage the public's ability to critique corporations and the military, which will exercise even more exclusive control of scientific knowledge.

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Dangerous Precedent

If the Department of Justice wins this case, it would mean that any discrepancy in a civil contract that involves the mail or the Internet in any way (such as incorrectly filling in and mailing a warranty card, or making a minor mistake in any contract that is mailed, sent via email, or signed online) – could be prosecuted as a federal crime, punishable, thanks to the PATRIOT Act, by up to 20 years in prison. In a July 2005 hearing on the case, Magistrate Judge Kenneth Schroeder noted that such a precedent would be akin to opening a "Pandora's box." Given that Mail fraud law is already the most broadly written law on the books (and one historically used selectively against political dissidents, such as Marcus Garvey) the government's power of selective prosecution would become almost unthinkable. This would give the DoJ the means to truly enforce its post-Ashcroft scheme of preemptive justice.

Eminent Scientists Confused and Alarmed

The 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."

“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] recreate [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.” (

In their May 2004 raid on Steve Kurtz’s home, agents from the FBI and Joint Terrorism Task Force seized art works, research, and the first draft of a book that were to be part of Critical Art Ensemble’s project Marching Plague, dedicated to demystifying the issues surrounding germ warfare and critiquing the history of U.S. germ warfare programs, including the Bush administration's earmarking of billions of dollars to erect high-security laboratories around the country. Like CAE, many eminent scientists view these programs 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.” (

“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."

"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...I am dismayed by what appears to me to be yet one more instance in which knowledgeable persons in the field of bioterrorism are not being brought in and consulted to ascertain what might be real problems and what are purely spurious problems.” Henderson noted that the organisms involved in this case do not appear on lists of substances that could be used in biological terrorism and are harmless both alone and in combination. (

Innumerable other scientists, artists, institutions, and others have written letters of support for Kurtz and Ferrell. A number of these can be viewed at:

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What is Critical Art Ensemble?
CAE (founded in 1987 by Steve Kurtz and Steven Barnes) is a collective of internationally recognized artists who work in public, educational, academic and art contexts. Their writings have been translated into at least 16 languages and their work has been covered by most major art journals, including Artforum, Kunstforum and The Drama Review, which dedicated a special section to CAE in a recent issue. For almost two decades CAE has produced and exhibited art that examines questions surrounding information, communications, and bio technologies.

Why does CAE use harmless bacteria in their art?
Over the past decade, one of CAE’s principal aims has been to help the general public understand biotechnology and the many issues surrounding it. In participatory theater events, CAE very publicly and legally perform basic scientific processes to explain and demystify them. Audiences of all ages who participate in CAE events walk away with a clearer understanding of the issues surrounding genetically altered foods, reproductive technologies and bio-warfare. CAE always undertake their work in a safe and considered way, involving thorough research and in continuous consultation with members of the scientific community, to ensure that the artworks they produce are both accurate and safe. In keeping with their criteria of safety and accessibility, the materials they use are strictly non-hazardous, can be legally obtained by anyone, and are commonly found in undergraduate level biology labs. Indeed, CAE's projects are recognized by artists, scientists, and institutions worldwide as thorough, investigative, educative and safe.

For example, one of CAE's performances, GenTerra, used a harmless form of gut E.coli (which resides in the intestinal track of all humans) to educate the public about transgenic organisms. When the FBI seized the materials for this project during their raid on Kurtz's home, it had already been commissioned by, and performed at, major cultural institutions throughout North America and Europe (such as the London Museum of Natural History), with absolutely no risk to the public.

From the CAE website:
Excerpt from CAE's book Molecular Invasion (Autonomedia, 2002):

"Over the past five years Critical Art Ensemble (CAE) has traveled extensively doing participatory performances that critique the representations, products, and policies related to emerging biotechnologies. When we do projects concerning transgenics, one of the most common questions participants ask is whether CAE is for or against genetically modified organisms (GMOs). The reply from group members is always the same: We have no general position. Each product or process has to be taken on a case-by-case basis. Some appear disastrous (primarily to the environment), while others seem soundly engineered and useful. The real question of GMOs is how to create models of risk assessment that are accessible to those not trained in biology so people can tell the difference between a product that amounts to little more than pollutants for profit and those which have a practical and desirable function, while at the same time have no environmental impact. Making such decisions is further complicated by a general lack of understanding of safety testing procedures. For those without scientific training, the question of what constitutes scientific rigor seems to be a mystery, and reading a study on the safety of transgenic products appears to be a mountain that is too high to climb. The concerned public can be further bamboozled by specialized vocabularies. The result is that individuals are left with the implied obligation that they should just have faith in scientific, government, and corporate authorities that allegedly always act with only the public interest in mind."

Read the "Background on CAE and Bio-Art" by Claire Pentecost

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Is the USA Patriot Act at work here?

The USA PATRIOT Act modified the laws under which the Justice Department has sought charges against Kurtz and Ferrell. It modified the US Biological Weapons Anti-Terrorism Act of 1989 to make the possession of _any_ biological substance potentially illegal (see above). The PATRIOT Act also expanded the maximum possible sentence for wire and mail fraud, under which Kurtz and Ferrell were eventually charged, from five years to twenty.

To our knowledge other aspects of the PATRIOT Act have _not_ been used in the legal proceedings against Kurtz and Ferrell. However, since the PATRIOT Act can be used against individuals without their knowledge, there is no way of knowing for sure. (The PATRIOT Act permits "sneak and peek" searches, in which the law never has to disclose wiretaps, searches, surveillances, or the procurement of confidential information such as medical records deemed necessary to determine suspicion.) Less directly, “the vague language of the PATRIOT Act [see above] allows authorities to enforce its provisions without reasonably evaluating the bona fide professional merit and peaceful purposes of the people involved, nor the danger of the circumstances.” (See Joyce Lok See Fu, “The Potential Decline of Artistic Activity in the Wake of the Patriot Act: The Case Surrounding Steven Kurtz and the Critical Art Ensemble,” The Columbia Journal of Law and the Arts, Vol. 29 No. 1, Fall 2005.)

Read Nancy Murray's (Director of Education, Massachusetts ACLU) speech to the Museum of Fine Arts about current threats to civil liberties, including the USA Patriot Act.

Read the Patriot Act Sec. 817: Expansion of the Biological Weapons Statue

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What is a Grand Jury?

From the American Bar Association:

"The primary function of the modern grand jury is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment.

The original purpose of the grand jury was to act as a buffer between the king (and his prosecutors) and the citizens. Critics argue that this safeguarding role has been erased, and the grand jury simply acts as a rubber stamp for the prosecutor.

Since the role of the grand jury is only to determine probable cause, there is no need for the jury to hear all the evidence, or even conflicting evidence. It is left to the good faith of the prosecutor to present conflicting evidence.

In the federal system, the courts have ruled that the grand jury has extraordinary investigative powers that have been developed over the years since the 1950s. This wide, sweeping, almost unrestricted power is the cause of much of the criticism. The power is virtually in complete control of the prosecutor, and is pretty much left to his or her good faith."

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