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World>Terrorism & Security
posted June 7, 2004, updated 11:00 a.m.

Artist falls afoul of Patriot Act

Artist's use of 'harmless' bacteria spurs investigation

by Tom Regan | csmonitor.com

In a highly unusual use of the USA Patriot Act, which its creators say was designed to prevent terrorist attacks in the United States, The New York Times reports that three artists have been served subpoenas to appear before a federal grand jury June 15. The grand jury is considering whether or not to charge Stephen Kurtz, an art professor at the University of Buffalo whose art involves the use of biology equipment, with "possession of biological agents."

Mr. Kurtz's problems with the Patriot Act began in May when he dialed 911 to report his wife of 20 years was unresponsive. When paramedics came to his house, one of them noticed that Kurtz had laboratory equipment, which he used in his art exhibits. The paramedics reported this to police and the FBI sealed off his house.

Authorities later said that Kurtz's wife had died of "heart failure," but he wasn't allowed to return to his home for two days while the FBI confiscated his equipment, and biological samples. They also carted off his books, personal papers and computer. Eventually his home was declared "not a danger to public health," but the FBI did not return his equipment.


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Kurtz founded the Critical Art Ensemble, an artists' collective that produces artwork to educate the public about the politics of biotechnology. The group has used "harmless" transgenic [genetically modified] forms of the E.coli bacteria [some strains of E.coli can be deadly] in past exhibits. A member of the collective, Beatriz da Costa, an art professor at the University of California, Irvine, said the FBI served her a subpoena last week to appear at the grand jury hearing.

Ms. da Costa told the Times that the bacteria was produced legally in "cooperation with a microbiology lab in Pittsburgh to create a transgenic E. coli that was completely harmless." In an interview with newbrainframe.org, an Italian art website, she said she found the subpeona alarming.

"I have no idea why they're continuing (to investigate)," said da Costa, one of those subpoenaed. "It was shocking that this investigation was ever launched. That it is continuing is positively frightening, and shows how vulnerable the PATRIOT Act has made freedom of speech in this country."

The Washington Post reports that other people who know Kurtz have also been questioned. Adele Henderson, chair of the art department of the State University of New York at Buffalo, says that on May 21 the FBI "asked her about Kurtz's art, his writings, his books; why his organization (the art ensemble) is listed as a collective rather than by its individual members; how it is funded."

The New York Times reports that an FBI spokesman, Paul Moskal, referred all questions to the United States attorney's office in Buffalo. William J. Hochul Jr., the lead terrorism prosecutor for the office, declined to comment on the case, citing Justice Department policy regarding current investigations.

Many US attorneys say they strongly believe in the act. CrainsCleveland.com, a Cleveland business website, reports that US Attorney Greg White said "the law is the best defense against terrorists looking to kill as many Americans as possible."

Mr. White said that many of the act's more controversial provisions, such as wiretaps, are tactics that have been used for decades against organized crime figures and drug pushers. The law simply allowed prosecutors and police to use the same methods against terrorists, he said.

Certain provisions of the Patriot Act will expire in December of 2005, although the Bush administrations wants those provisions extended and new ones added. The Times Record of Washington state reports that President Bush's re-election campaign pushed the Patriot Act last week, calling on governors and state attorneys general to support it publicly. The Olympian, of Seattle, reports that three supporters of the act spoke on its behalf last Thursday.

"What has happened is it has become a political symbol for those who want to criticize the current administration," charged King County Prosecutor Norm Maleng, speaking at a news conference with former US Attorney Mike McKay and former New York City Police Commissioner Bernard Kerik. Maleng also said that "most people who criticize the Patriot Act have never read it." And he declared that "the evidence is clear that we are not immune to the worldwide threat of terror."

Newsweek reports on how even the act of buying a house, or even getting a home equity loan, now comes under the scope of the Patriot Act. The Associated Press reports on how an ex-con from Nebraska, who has been out of jail and out of trouble for 15 years, is being affected by the Patriot Act. Bruce Lingenfelter, a former University of Nebraska foootball player, said he had no trouble finding work as a heavy equipment operator and a steam fitter in the Seattle area, where he now lives, until the Patriot Act came long. Because he was convicted of a felony drug charge, he cannot work on any federal project, which he had done in the years preceding 9/11.

Well-known civil libertarian Nat Hentoff wrote recently in the Village Voice that even the Justice Department believes they are " losing the fight" over the Patriot Act. And some of those who are the most opposed to renewing sections of the Patriot Act, Mr. Hentoff writes, come from the Republican Party.

Bush is pressing hard for Congress to renew those parts now. Standing in his way, however, is Republican conservative James Sensenbrenner, chairman of the House Judiciary Committee. According to The Hill: "Sensenbrenner has made it clear to colleagues that he will not consider reauthorization of the bill until next year."

The Bill of Rights Defense Committee reports on its website that 322 cities and counties and four states have passed resolutions against the Patriot Act. A survey of 65 US criminal justice and legal experts released in late April by legal publishing firm Thomas Wadsworth found that 95 percent felt that the act was passed too quickly. Seventy-four percent felt the act violates individual rights and 68 percent felt that existing laws could be used to protect the nation from terrorism. All of the repondents believed the US federal government had a role to play in protecting the country against terrorism.

"My biggest overall concern for an act as sweeping and as important as this one is that it wasn't vetted for very long. There wasn't a lot of national discussion," says Gary LaFree, professor of criminology and criminal justice and co-founder of the Democracy Collaborative at the University of Maryland in College Park, one of the respondents. "You end up seemingly being on the side of Saddam [Hussein] if you say, wait a second here. [But] this act has some implications that we think we should think through a little more."