By William Fisher The Huffington Post 11/08/07

A week after 20-year-old charges were dropped against the last two defendants in the longest-running Federal prosecution in US history – the so-called L.A. Eight – another case threatens to take its place.

And critics of the Department of Justice are charging that the newest case is a clear example of prosecutorial over-zealousness.

After numerous defeats in court, the Government late last month agreed to drop deportation charges against Khader Hamide and Michel Shehadeh, who were accused in 1987 on charges of being affiliated with the Popular Front for the Liberation of Palestine (PFLP). The government charged that any association with the PFLP was grounds for deportation under the McCarran-Walter Act, legislation written during the McCarthy era that allowed deportation for association with any organization that “advocated the doctrines of world Communism.”

Two years later, a Federal Judge declared the charges under that law unconstitutional. The Government then charged the men with providing material support to a terrorist organization under the USA Patriot Act of 2001. It finally dropped these charges after the Los Angeles Immigration Court ruled that the Government was in violation of the men’s constitutional, statutory, and regulatory rights.

The other six defendants were in the US on temporary visas when the case began. Three of them have become permanent residents. One became a permanent resident and then a naturalized citizen. Two others are eligible to become permanent residents and have applications pending. So for all practical purposes, the case against Hamide and Shehadeh was the final one.

But the clock is ticking on another case that appears to be similarly endless. It is a prosecution that many are describing as one of the most bizarre in US legal history.

The case pits avant-garde protest artists against government anti-terrorism investigators. The key players are Dr. Robert E. Ferrell, 68, a nationally known genetics researcher at the University of Pittsburgh, and Dr. Steven A. Kurtz, 48, a tenured arts professor at the University at Buffalo and a founding member of the award-winning collective Critical Art Ensemble (CAE). Some of CAE’s work is designed to protest the potential risks of genetically modified (GM) food.

The case started in May of 2004. While Kurtz was preparing for an exhibition at
MASS MoCA, a museum in North Adams, Massachusetts, his wife of twenty years died in her sleep. When police responded to his 911 call, they saw petri dishes in his home — part of the scheduled installation — filled with bacteria cultures.

They called the FBI. While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was illegally 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.

The Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then US Attorney in Buffalo, Michael A. Battle – the lawyer who was later to become the Department of Justice employee who notified eight US Attorneys that they were being fired – praised the work of the Buffalo Joint Terrorism Task Force.

But after a several-month-long investigation, the FBI and the Department of Homeland Security (DSH) failed to provide any evidence of “bioterrorism” On the contrary, FBI tests revealed within a few days of the incident that there were no harmful biological agents in Kurtz’s house and that his wife had died of heart failure.

Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. They had failed to complete a question in the requisition required to transport the admittedly harmless bacteria – the purpose of the shipment. This resulted in Ferrell’s plea to illegally using the mails to transport restricted materials. The charges against the two academics were brought under the Patriot Act, thus increasing the maximum penalty from five years to 20.

The defendants’ supporters in the art world claim that Kurtz and Ferrell were unfairly
targeted for a bogus bioterrorism prosecution because Kurtz’s art exhibitions often attack government actions and policies.

The case against Kurtz and Ferrell came to a nation still terrified by the 2001 anthrax attacks in the US. Also known as Amerithrax from its FBI case name, the attacks occurred over the course of several weeks beginning in September 2001. Letters containing anthrax spores were mailed to several news media offices and two Democratic US Senators, killing five people and infecting 17 others. Despite a massive government investigation costing millions and covering several continents, the crime remains unsolved.

The FBI named a government researcher, Dr. Steven Hatfill, as “a person of interest” in the investigation. His name was widely publicized in the media for months, but he has never been charged with any crime.

Prosecutors say the Kurtz-Ferrell case revolves around public safety concerns, not politics. According to reporting by Dan Herbeck of the Buffalo News, the current US Attorney, Terrance P. Flynn, has declined to comment on the case. But Lucia Sommer, a spokeswoman for Kurtz’s defense fund, said that Kurtz will continue to fight the government’s charges.

The New York Civil Liberties Union (NYCLU) has questioned the propriety of a grand jury investigation into Kurtz’s work. “It doesn’t appear that this investigation satisfies the FBI standards that the facts and circumstances of the case must reasonably indicate that a crime has been committed,” said Donna Lieberman, Executive Director of the NYCLU.

The NYCLU said that if the investigation was based on criticisms of the government espoused by Kurtz and the Critical Art Ensemble, then officials may have violated their free speech rights. “Unless the US Attorney is in possession of facts very different from what has been publicly reported, we call on his office to discontinue its investigation of Professor Kurtz,” Lieberman said.

In Federal District Court earlier this month, the Government won the first of their battles with Ferrell and Kurtz, when Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies.

His wife, Dr. Dianne Raeke Ferrell, an Associate Professor of Special Education and Clinical Services at Indiana University of Pennsylvania, said, “From the beginning, this has been a persecution, not a prosecution.”

She added, “Since this whole nightmare began, Bob has had two minor strokes and a major stroke which required months of rehabilitation.” She said her husband was indicted just as he was preparing to undergo a painful and dangerous autologous stem cell transplant, the second in seven years.

His daughter said, “My dad opted to settle from pure exhaustion.” Ferrell will learn what his penalty will be in a court hearing scheduled for February 2009.

Kurtz’s supporters say, “The government has pursued this case relentlessly for three and a half years, spending enormous amounts of public resources. Most significantly, the legal battle has exhausted the financial, emotional, and physical resources of Ferrell and Kurtz; as well as their families and supporters. The professional and personal lives of both defendants have suffered tremendously.”

Kurtz has 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 have set up a website and a legal defense fund. Kurtz continues to teach at the University of Buffalo.

But no date has been set for his trial, giving rise to speculation by some in the legal and the arts communities that the Justice Department simply plans to ‘run out the clock’ until President Bush’s term ends in January 2009.

Patricia J. Williams, professor of law at Columbia University, questions whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She writes, “Recently scholars from around the world have been barred from the United States for reasons stated and unstated, but all in the name of Homeland Security. They include a South African peace activist, a Canadian antipoverty worker, an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British musician, a Bolivian historian.”

She adds, “As other countries have adopted their own versions of Homeland Security, the tables are turning on our own: Medea Benjamin, founder of the exuberant antiwar group Code Pink, was denied entry to Canada because of her numerous arrests for peaceful acts of civil disobedience.”