I ran across an article that makes John Ashcroft look bad. It
caught my attention, because it referred to a case I had read about
earlier in the journal, Nature. The Nature article was in the 17 June 2004 issue:
Bacteria raid may lead to trial for artist tackling biodefence
Nature 429, 690 (2004)
Geoff Brumfiel, Washington -
artist who uses live organisms and laboratory equipment in his
performances is being scrutinized by federal officials who suspect he
has broken bioweapons laws.
prosecutors are deciding whether to file charges against Steven Kurtz,
an art professor at the State University of New York at Buffalo, for
possessing strains of bacteria, laboratory equipment, and several books
on biowarfare. But Kurtz's friends and supporters say that the
materials are part of his group's performance pieces.
1987, 46-year-old Kurtz has been part of a Buffalo-based performance
group, the Critical Art Ensemble, whose work offers political
commentary on scientific topics. They often incorporate laboratory
techniques into their shows, according to Nato Thompson, a curator at
the Massachusetts Museum of Contemporary Art in Boston who has seen the
group's work. "The lab experiment is the performance," he says.
The news article I saw today is from the Utah Daily Herald:
Ashcroft targets protesters to pad antiterror record
The Daily Herald
Thursday, July 29, 2004 - 12:00 AM
Attorney General John Ashcroft recently went to Congress to herald
another record year of fighting terrorism, showcasing numbers showing
310 defendants charged as evidence that "the Patriot Act is al-Qaida's
Few would argue about the nightmare part, but it is hard to see
al-Qaida losing much sleep: To a large degree, Ashcroft has used
antiterrorism laws against citizens with no ties to al-Qaida or even
With many in Congress opposed to renewing parts of the USA Patriot Act,
the 29-page report by Ashcroft attempts to show "a mountain of evidence
that the Patriot Act continues to save lives," but it omits critical
facts that seriously undermine that claim. In fact, the report is part
of an annual effort by Ashcroft to prod local prosecutors to bolster
their terrorism numbers -- often by using terrorism laws against
conventional criminals and a curious hodgepodge of nuns, protesters and
(Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School)
The Daily Herald article goes on to cite many specific examples of the
questionable practices of Mr. Ashcroft. Although it is not
possible to know what the motivation is for sure, the examples
certainly give the impression that the DOJ
is trying to inflate its record of fighting terrorism-related
cases. they give an example of three nuns who got on top of a
nuclear missile silo, then got arrested and labeled "national security
threats." Quite a nasty outcome, for people who merely were
expressing their pro-life philosophy.
Dr. Turley does miss one point. Remember Dr. Kurtz, the art
professor who was arrested for having bacteria, etc. ? He is not
being prosecuted under antiterrorism laws, although that was the intent
originally. Again, from the Nature article:
The US attorney's office in Buffalo declined to
comment on the case, but a website that supports Kurtz's group says the
case is being pursued under the Biological Weapons Anti-Terrorism Act
of 1989. The act was amended under the USA Patriot Act of 2001 to allow
the prosecution of "whoever knowingly possesses any biological agent,
toxin, or delivery system".
The bacteria were identified as Serratia marcescens, Bacillus globigii, and a nonpathogenic strain of Escherichia coli. Of course, anybody who has a functioning intestine has ready access to E. coli; S. marcescens can be gotten over the Internet, from companies that supply material to high school biology labs; and B. globigii is so harmless that it is spread freely in the environment during experiments
to test bacterial detection systems. It is used in such
experiments precisely because it is harmless. True, they all are
"biological agents," but it would appear that Dr. Kurtz deliberately
used bacteria that are quite safe. That would make it hard to
infer malicious intent.
As an aside, S. marcescens sometimes grows on Catholic
communion wafers when stored in a damp place. It is bright
red. Once, this was thought to be a miraculous recreation of the
blood of Jesus Christ.
Back to the point: what did happen to Dr. Kurtz? He still faces criminal charges, but the charges have been changed to mail fraud.
He faces up to $250,000 in fines, and up to 20 years in prison.
Apparently, the B. globigii was obtained from a supply company that
sells only to legitimate laboratories. Dr. Kurtz, being an art
professor, could not order it directly. So he had someone else
order it for him.
This all seems rather pointless. You would think that, once
was clear that there was no criminal intent, and no threat to public
safety, the DOJ would spend their time going after real
criminals. What would cause them to pursue Dr. Kurtz so avidly,
on such flimsy grounds? Could the fact that his artistic
performances are "political commentary," a protest against the
government, have anything to do with it??? The nuns were
protesting against the government, and now they are being called
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