Homeland Security State Leaves Wrongly Accused In Limbo

by William Fisher

(IPS) NEW YORK -- Expanded powers and a heightened sense of alert have helped U.S. law enforcers take some dangerous people off the country's streets since the White House declared its "war on terror." But they also have triggered some bizarre missteps.

Take the case of the two 16-year-old Muslim girls arrested in New York and detained in Pennsylvania for six weeks as would-be suicide bombers. The government last week quietly released one of the girls pending deportation to Guinea and allowed the other one to return to Bangladesh with her family.

They did not know one another. They were taken into custody separately March 24 and held at a detention center. The Bangladeshi girl, her mother, and two brothers have left the country voluntarily, according to the U.S. Immigration and Customs Enforcement (ICE) Service, part of the Department of Homeland Security (DHS). Her name is being withheld because she is a minor not charged with any crime.

ICE said the Guinean girl, Adama Bah, still faces removal proceedings.

The agency has insisted the girls were never accused of crimes, only administrative immigration violations.

Yet, media reports at the time of their arrest cited a government document that said the FBI believed the girls posed "an imminent threat to the security of the United States based upon evidence that they plan to be suicide bombers." Federal officials have refused to provide any additional details.

The matter has been shrouded in secrecy, marked by closed hearings and sealed declarations. Lawyers have been barred from disclosing information held by the government.

The girls' cases "illustrate that the war on terrorism has larger political and social goals -- in these two cases to intimidate members of the Muslim community," said Beau Grosscup, professor of international relations at California State University.

"Armed with the domestic and foreign policy powers handed to them in the post 9/11 frenzy, they now can invoke those broad and ill-defined powers any way they want to knowing neither the corporate media nor a cheering public will object," Grosscup added, referring to the Sept. 11, 2001 terrorist attacks against the United States.

In another strange case, this one involving domestic defendants, prosecutors have not yet let go.

One year ago next month, Hope Kurtz died of a heart attack in the northern New York State city of Buffalo. Her husband, Steve, an art professor at the University of Buffalo, called police and the emergency medical services.

What the police saw when they got to the Kurtz home, aside from Hope Kurtz's body and a distraught husband, were vials, bacterial cultures, and an assortment of laboratory equipment including a mobile DNA extracting machine used for testing food products for genetic contamination.

Kurtz explained to the police that these were some of the materials for an art exhibit he and his wife had been preparing on genetic modification. The Kurtzes were founders of a group called "The Critical Art Ensemble," a collective of "tactical media" protest and performance artists.

The police did not buy his story. They called the FBI. A hazardous materials team carried out testing. County health officials declared the Kurtz home a potential health risk and sealed it for two days while a state lab examined the bacterial cultures found inside. They confiscated Hope's body and Steve's computer, notebooks, and art supplies. They cordoned off part of the street, quarantined the Kurtz home, and took Steve to a hotel, where the FBI questioned him for two days. Meanwhile, the special agent in charge of the Buffalo FBI office gave interviews to the press.

Officials eventually made it known that there was no danger to public health, and Kurtz was allowed to move back to his home.

But federal authorities obviously thought something in the Kurtz home was illegal, because prosecutors subsequently convened a grand jury, with Kurtz as its target. Instead of bioterrorism, he was indicted for mail and wire fraud, charges normally used against those defrauding others of money or property, as in telemarketing schemes.

Also indicted was Robert Ferrell, head of the Department of Genetics at the University of Pittsburgh's School of Public Health, for allegedly helping Kurtz obtain 256 dollars worth of bacteria for one of his art projects.

In Buffalo, a judge heard motions Tuesday to dismiss the federal criminal case against Kurtz, whose attorney argued that a dangerous precedent would be set by "exalting" into a federal crime a case of wire and mail fraud, which is customarily a minor, civil contract issue -- the purchase of the bacterium Serratia marcescens by scientist Ferrell for use in Kurtz's artwork.

The prosecutor acknowledged that there is no federal law or regulation concerning Serratia, whose alleged danger forms the basis of the government's argument for making this a criminal case.

Kurtz's lawyer further argued that the FBI intentionally misled a judge into issuing the original search warrant. The judge was told of Kurtz's possession of a photograph of an exploded car with Arabic writing beside it, but not of the photograph's context: An invitation to a museum art show. The original warrant called for the seizure of anything with Arabic writing.

Even if the judge grants the motion and throws out the case, Kurtz's lawyer says it is certain that the prosecution will appeal the decision.

No trial date has yet been set. But while the case is pending, FBI agents have been talking with people connected with Kurtz -- museum curators in Massachusetts and the state of Washington, colleagues in New York and California, and current students at Buffalo.

Brian Foley, a law professor who teaches criminal procedure at Florida Coastal School of Law in Jacksonville, Florida, told IPS "the Kurtz case violates at least the spirit of our constitutional protections against unreasonable searches and seizures. Police are not supposed to be able to come into our homes and rummage around. Fine, they thought they saw 'evidence' of possible bioterror. But once they realized it wasn't, any rummaging into Kurtz's life should have stopped. To pull out charges of mail and wire fraud is overreaching to say the least."

The Justice Department, under which the FBI falls, declined to comment on the case.