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Reflections on the Case by the U.S. Justice Department Against Steven Kurtz and Robert Ferrel


Reflections on the Case by the U.S. Justice Department against Steven Kurtz and Robert Ferrell
by Claire Pentecost

Many people have asked us why the Justice Department is pursuing this case.

Meaning, when the Buffalo Health Department affirmed that there was nothing dangerous in the Kurtz home and that Hope Kurtz died of natural causes, when the FBI saw that the possession of scientific equipment and materials in Kurtz's home studio was completely consistent with his practice as an artist and that his practice has a long, public and institutionally validated record, then, why didn't they drop the case? When it became clear even through the Grand Jury investigation that this was not a case of bioterrorism, why did they pursue it? Couldn't they see that this is art?

As often as not the questioner answers their own question, saying it must be a matter of saving face: the Justice Department now has to justify the time and money they spent on this case in the first few weeks and has to answer to the publicity the case has attracted.

An overview of prosecutions since 9/11 originating with suspicion of terrorism suggests that the Department has a different logic of evaluating its results than might first be apparent to the public. And "saving face" is not at the top of the list.


One can imagine that investigative agencies and U.S. attorneys are under enormous pressure to produce results in the "War Against Terror." To put it crudely, in the last three and a half years, probably nothing has influenced promotions and funding more. Less crudely, there are no doubt many dedicated people in the Justice department genuinely concerned to prevent more terrorist events large or small. But like most of the Bush administration, this department manages to account for itself by its own warped calculations, while a typically meretricious press and a complicit public have all but spared U.S. Justice the shame of its waste, incompetence and brutal racism.

Numbers of such cases and their outcome are difficult to put together accurately for several reasons, most prominently that the Justice Department has ceased publishing its data. Also, after 9/11, for its internal record keeping, the Department created many new categories of crimes it considered terrorist, most significantly an umbrella category called, confusingly enough, "Anti-Terrorism", which is "intended to prevent or disrupt potential or actual terrorist threats where the offense conduct is not obviously a federal crime of terrorism." [2] This category includes immigration, identity theft, drug and like cases. In short, the domestic version of preemptive strike. And then there is the problem that the DOJ may be distorting the figures it does release: In January 2003 the General Accounting Office reported that at least 46 per cent of all terrorism-related convictions for FY 2002 were misclassified, and of cases alleged to meet the qualifications for international terrorism a minimum of 75 per cent did not. As a consequence one finds a variety of numbers published, for instance:

David Cole, legal affairs correspondent for The Nation,[3] tells us that since 9/11, of over 5000 foreign nationals detained by Ashcroft's department on suspicion of terrorism, exactly none have been convicted of terrorism. Many detainees have been indicted for routine violations involving immigration, fraud, laundering, and identity theft. On the one hand it would seem that the Justice Department has devised some new tools to help the INS sweep for visa problems. On the other hand it seems the INS and the Social Security Administration are becoming as important as the FBI in referring cases of possible terrorism to the DOJ[4].

Transactional Records Access Clearinghouse (TRAC), an independent analyzer of federal records based at Syracuse University, reports that in the two years following 9/11, Federal investigators (primarily the FBI) recommended 6,400 matters for prosecution by the government either on suspicion of having committed terrorist acts or on charges that fit the new "Anti-Terrorism" category described above. By September 30, 2003 the government had processed 2,681 of these cases. A total of five had been sentenced to twenty years or more in prison. In the category of international terrorists the median sentence was 14 days.[5] These kinds of punishments do not suggest that for all the people being investigated and dragged through the system, serious terrorists are being snagged.

At the March 2003 hearings before the senate judiciary committee, Ashcroft boasted that his 9/11 investigations had led to 478 deportations. It was not mentioned that most of these were for visa violations, and that in fact the FBI must clear a deportee of suspicion of terrorism *before* deporting him. Maybe some of these were illegal deportations to the offshore torture centers we have learned about since cases like that of Maher Arar have begun to surface. Arar, a Syrian-born Canadian citizen, was detained by U.S. agents at Kennedy Airport in September 2002. Without being charged, he was sent to Syria where he spent a year in prison being tortured and interrogated. He was released in October 2003 after Canadian authorities intervened on his behalf. He is now suing the U.S. government.[6]

What is going on here? Let's look at the kinds of cases that we do know about.

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