Three Felonies a Day

by Harvey Silverglate

  How could this happen? According to the indictment,26 the bacteria came from a non-profit corporation in Virginia, the American Type Culture Collection (“ATCC”), the principal business of which is “to supply biological materials and related products to registered customers.” ATCC is both a manufacturer of lab organisms and a clearinghouse to which registered customers supply their own specimens. ATCC maintains accounts only for registered businesses and institutions (including colleges and universities), not for individuals. Hence, any person wanting to obtain a specimen must do so through an approved, registered institution. Registered customers have to demonstrate that they take certain precautions, including the employment of a bio-safety officer. In addition, customers are restricted from further transferring specimens obtained from ATCC; an ATCC Material Transfer Agreement provides that a registered customer “may make and use” the acquired biological material “for research purposes in your laboratory only.”

  The indictment acknowledged that the two types of organisms, serratia marcescens and bacillus atrophaeus, ordered through the University of Pittsburgh Human Genetics Laboratory, a registered customer of ATCC, posed no danger to public health.27 But then the feds got creative. First the indictment regarded the organisms as “university property.” Under the University of Pittsburgh’s own regulations, any transfer of organisms from its lab to a third party was subject to a “material transfer agreement” to be kept on file at the university’s Office of Research. The “scheme” to “defraud” occurred when Kurtz and Ferrell used the registered ATCC account of the University of Pittsburgh to order the bacteria, when in fact the intention was to transfer the bacteria from Pittsburgh to Kurtz. The idea was that, since it would have been impossible for Kurtz, an art professor rather than a scientist, to acquire the bacteria through SUNY/Buffalo, which also had an ATCC account, the defendants used “the mails and interstate wire communications” in the “furtherance of their scheme and artifice to defraud” when they arranged to move the bacteria to Kurtz via the University of Pittsburgh’s account.

  “I am absolutely astonished,” commented Donald A. Henderson, Dean Emeritus of the Johns Hopkins University School of Hygiene and Public Health and a resident scholar at the Center for Biosecurity of the University of Pittsburgh Medical Center. “Professor Kurtz has been working with totally innocuous organisms.” Henderson added that the two microorganisms involved in the case are not found on lists of substances of utility to biological terrorists. Addressing the precise assertion in the indictment (concerning the “fraudulent” nature of the transfer of innocuous organisms from one academic to another without the completion of detailed university departmental paperwork), University of California/San Diego Professor of Design Engineering Natalie Jeremijenko said that scientists engage in precisely this kind of cooperative and informal conduct with frequency. “I do it, my lab students do it. It’s a basis of academic collaboration…. They’re going to have to indict the entire scientific community.”28 SUNY/Buffalo Law Professor Stephen Halpern, a constitutional law specialist, agreed. The prosecution of Ferrell and Kurtz, he said, is “really going to have a chilling impact on the type of work people are going to do in this arena, and other arenas as well.”29

  While scientists expressed concern about the deadening effect this kind of prosecution would have on scientific collaboration and research, those engaged in literary and artistic pursuits focused more on its impact on First Amendment liberties. After all, as CAE explained, the project in which Professor Kurtz was involved was part of an artistic critique of the history of American involvement in germ warfare experiments. It was all too ironic (but, one naturally asks, was it really coincidental?) that this indictment was directed against political artwork concerned with bio-contamination resulting from government-funded research in germ warfare.30 The PEN American Freedom to Write Committee sent a letter to the FBI supporting “strong, targeted laws to apprehend terrorists,” but decrying what appears to be “the impulse to censor.” Art needs to examine and bring public attention to biological research and “otherwise arcane bodies of knowledge.”31

  None of this is to say, of course, that some minor infraction was not committed. That is unclear. The Buffalo News, though assuming that there must have been some kind of legal violation, however trivial, got it about right when it editorialized: “Jaywalkers, beware.”32 But Professor Kurtz’s defense attorney, the noted First Amendment lawyer Paul Cambria, Jr., got closer to the heart of the problem when he commented: “If the University of Pittsburgh feels that there was a contract breach, then their remedy is to sue Steve for $256 in a civil court” (the estimated value of the bacteria involved).33 He was too restrained, however, when he referred to the indictment merely as “a stretch.”34 There is, or should be, a real question of whether the federal criminal fraud arsenal even applies to what, looked upon more dispassionately, is arguably a contract dispute between a non-profit organization, two universities, a professor, and an academic artist over $256 worth of benign bacteria.

  The federal district judge to whom the case was assigned spent some time considering the matter. On April 21, 2008, he issued a 12-page decision dismissing the indictment.35 Try as he might, he could not figure out how the case constituted wire or mail fraud. The ATCC from which the bacteria had been ordered was paid in full out of the University of Pittsburgh’s account for its product, and hence there was no fraud on the seller; the ATCC had no particular interest in where the germs were directed by the University of Pittsburgh. Furthermore, Pittsburgh was not a victim since the indictment did not allege “any type of misrepresentation or fraudulent conduct directed toward [it] regarding the biological agents.” The judge did, however, discuss a recent “no-sale theory of fraud” that was being developed by some federal prosecutors and courts in order to establish a mail or wire fraud where a failure to tell the seller precisely to whom it was selling could be seen as violating the statute, but he ruled that it did not apply in Kurtz’s case, adding, ominously, that he gave no assurances that the indictment could not have been drawn up in a manner so as to survive the motion to dismiss.36 One could easily conclude that the judge felt that Kurtz could in fact have been indicted under the almost infinitely malleable mail and wire fraud statutes, but that the court was giving him the benefit of the doubt this time in view, perhaps, of the overall ridiculous nature of the case.

  Sami Omar al-Hussayen was a 34-year-old doctoral candidate studying at the University of Idaho located—where else?—in Moscow, Idaho. This grad student “didn’t exactly fit the profile” of a terrorist “when he was arrested in February 2003 and likened in court documents to Osama bin Laden,” as the press reported.37 His troubles began when he used his computer skills to run a number of Websites for a Muslim charity. Even though the charity “on its face” engaged in normal and traditional religious teaching, prosecutors noted that if a Web surfer burrowed into the various sites linked to items appearing on al-Hussayen’s sites, the surfer would encounter links containing “a handful of violent messages—written by others—encouraging attacks on the United States and donations to terrorist organizations.”

  The investigation started when a Moscow bank teller reported to the FBI that the Arab student engaged in a “suspicious” bank transaction. Al-Hussayen, the FBI learned, was from a prominent Saudi family. His father was a retired Saudi government education minister and his uncle was the president of the holy mosques at Mecca and Medina.38 Al-Hussayen came to the United States in 1994 and obtained a master’s degree from Ball State University in Muncie, Indiana. He arrived in Moscow in 1999 to get his doctorate in computer science from the University of Idaho. His wife and three children lived with him and the oldest two attended public school. At the time of the September 11 attacks, al-Hussayen was the president of the Muslim Student Association. Described by The Seattle Times as “the public face of Islam in Moscow,”39 he organized a blood drive for victims of the attacks, participated in peace vigils, and wrote a letter on behalf of
himself and other Muslim students condemning the attacks. None of this helped him very much with the FBI.

  Al-Hussayen’s federal indictment for providing “material support” and rendering “expert advice or assistance” to terrorists began with an FBI investigation into his rather public activities. Al-Hussayen was reportedly the first person to be indicted under the USA Patriot Act,40 hurriedly enacted into law following the 9/11 terrorist attacks.41 The new statute expanded the notion of “material support” for terrorism to include those who render “expert advice or assistance” to the terrorists and their cause. Because he was a skilled Webmaster and because Internet users could eventually access terrorist Websites by following the links from his site, al-Hussayen was seen as qualifying. “His fingerprints were intricately involved in the building of Websites that called on young people to go and kill themselves,” argued Assistant U.S. Attorney Terry Derden to the jury. “Can you [lawfully] call on people to donate money to attack Americans?” he asked the 12 Idahoans sitting in judgment of the young Saudi student.

  Various aspects of al-Hussayen’s life and work had attracted the feds’ suspicions. He had switched dissertation advisers in the middle of the school year, leading investigators to conclude that he was intentionally slowing down his graduate studies to prolong his stay in the United States. His courses included computer security. He moved his campus office from the computer science building to another building that previously contained the science department’s nuclear reactor. According to one report, this led the FBI to believe that he might have been looking for radioactive material to make a “dirty bomb.”42 The feds got a national security wiretap of the student’s phone, since there was not adequate “probable cause” to get a regular wiretap, and managed to snag about 20,000 emails and 9,000 phone calls during a year-long period. A team of 20 law enforcement officials followed him.

  Providing “material support” to terrorism was not a new crime. In 1994 a law had been enacted under which, to secure a conviction, the government had to demonstrate some connection with an actual terrorist act. After the September 11 attacks, when Congress expanded the statute to cover “expert advice or assistance” to terrorist organizations, it did not bother to define the term. Georgetown University Law Professor David Cole, an expert on criminal law in the terrorism area, cited this particular provision as the “linchpin” of the DOJ’s war on terror “precisely because it doesn’t require proof that an individual engaged in any sort of terrorist act or even supported any terrorist activity.”43

  Notwithstanding the uncertain reach of the “material support” language of the statute, Judge Edward J. Lodge instructed the jury about the scope of the First Amendment’s protection of free speech. “Freedom of speech,” the judge noted, relying on traditional legal understanding that became shakier with each passing year of the war on terror,44 “protects an individual’s or a group’s right to advocate their beliefs even if those beliefs advocate the use of force or violation of law unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”45 This jury instruction, the formulation of the line to be drawn between free speech and unlawful incitement to violence, led the jury to acquit the grad student of the terrorism-related charges “in two or three hours,” according to one of the jurors.46 (One juror explained that the evidence “showed he was involved in what he was doing, but it seemed rather innocent, the stuff he was talking about.”47) The case did little to clarify the meaning of “expert advice or assistance,” however. What it did do was confirm the breadth of the First Amendment’s protections in this particular case, where the “assistance” consisted of maintaining or linking to mere Websites. The loose statute remained on the books.

  The jury deadlocked, however, on relatively minor charges that he had violated immigration laws by engaging in visa fraud. After his acquittal of the more serious charges, al-Hussayen’s lawyer negotiated a deal with the government. He agreed not to contest the student’s deportation, and in exchange the prosecutors agreed not to retry him on the deadlocked counts. He was deported to Saudi Arabia a few weeks after the trial ended. Mr. al-Hussayen settled in Riyadh where he worked as an instructor at a technical university. His wife took employment as a kindergarten teacher.

  Until his 2005 criminal indictment, Emadeddin Z. Muntasser was living the American dream. He came to the United States from Libya in 1981 at the age of 16 to attend school. After graduating from college in 1986, Emad, as he was known to friends, decided he liked what he saw of American life and settled down. He founded a successful retail furniture business, married, and started a family.

  Muntasser, a legal permanent resident, filed an application for citizenship in October 2002, and was exasperated at the long delays in having his case processed. Even after the terrorist attacks of September 11, when suspicion suddenly seemed to focus on foreign-born Muslims, Muntasser didn’t foresee the hurdles he would encounter in trying to become a citizen.

  It turned out that federal authorities had for some time been keeping track of Muntasser and some of his friends and associates, who in 1993 had organized a Muslim charity in Massachusetts named Care International, Inc. They referred to their organization as “Care,” though it had no affiliation with the multinational anti-poverty charity CARE. Its purpose was to help Muslims made destitute in war-torn areas of the world, primarily in Afghanistan and Bosnia. Prosecutors during Muntasser’s later criminal trial tried to make it appear that Care’s efforts were focused on helping only the injured “mujahideen,” or holy warriors, and the families of deceased fighters. In fact, the beneficiaries of Care’s charitable efforts were the “martyrs” of the conflict, a much broader concept in Islam, as it covered anyone killed in the Afghan conflict.

  Muntasser’s charitable efforts ran into a rather sudden change in American policy in that tumultuous region. Ronald Reagan had called these Muslims “freedom fighters,”48 and the U.S. government had supported them with guns and money in their resistance to the Soviet invasion (as readers might recall from the Tom Hanks movie Charlie Wilson’s War), but American opinion gradually turned against the mujahideen through the early-1990s. By 1996, when the Taliban took over control of Afghanistan, the CIA and other orientalists in the American foreign policy establishment were recognizing that some of the American-funded Afghani mujahideen who fought the Soviets were allying with the radically conservative Taliban and turning on their erstwhile American sponsors and other Western interests. Suddenly anyone in the United States who continued to support, among others, the dead and injured fighters and their families became suspect. Despite the fact that Muntasser had left Care in 1996, he became a victim of these changing alliances.

  When Muntasser tired of waiting for the Immigration and Naturalization Service, which by then had morphed into the U.S. Citizenship and Immigration Services (part of the Department of Homeland Security), to approve his application for citizenship, he filed a civil lawsuit in the federal district court in Boston in June 2004, asking Judge Rya Zobel to order the INS to process it. He survived the preliminary skirmishes in which the government sought to get his lawsuit dismissed, and Zobel set a hearing at which, Muntasser and his immigration lawyer felt, she was likely to allow his application.

  The Department of Justice apparently had a similar sense of what Judge Zobel was going to do. In May 2005, the day before Muntasser’s hearing, the U.S. attorney in Boston unveiled an indictment against him reeking of hints that he was sympathetic to terrorism. The accusations necessarily were indirect, based upon political and religious views, since there was no evidence of participation in, nor material support for, any terrorist activity, nor any evidence that Care had ever provided aid to fighters.49 The next day the U.S. attorney asked Judge Zobel to dismiss the citizenship application in light of the indictment. Perhaps smelling a rat, Zobel refused to dismiss the case but put it on hold pending resolution of the indictment.

  The heart of the somewhat ramb
ling indictment charged that, in 1993, when Muntasser filed an application seeking to have the Internal Revenue Service’s exempt organizations office declare Care qualified as a charitable, non-profit, tax-exempt organization, he omitted crucial information supposedly called for in the application. Similar “material omissions,” the indictment charged, characterized Care’s annual filings with the IRS after the group was granted its tax exemption.

  An application for tax-exempt status is supposed to make the case for why the organization’s work qualifies (or, in the case of a new organization, will qualify) as charitable or educational within IRS guidelines. Taxpayers donating to a qualified organization may deduct such payments as charitable contributions on their tax returns. An organization devoted to supporting victims, including widows and orphans of violence and other “man-made disasters” (the phrase used in Care’s application)50 in Afghanistan, Bosnia, Chechnya and other countries caught up in sectarian violence then as now, would clearly qualify for tax-exempt status under applicable guidelines.51 But, said the indictment, Muntasser had failed to disclose certain other facts about Care that, were it known to the IRS, could have led the agency to question, perhaps even deny, tax-exempt status.

  The government’s tax prosecution theory, as simply stated as possible, was that if the organizers and officers of Care had been more explicit in including in its application for tax-exempt status, and in its annual reports, more “material” information about the objects of Care’s charitable undertakings, the IRS might have denied the exemption application altogether. The indictment charged: “The defendants did not disclose to IRS that Care was engaged in activities involving solicitation and expenditure of funds to support and promote the mujahideen and jihad, including the printing and distribution of pro-jihad publications.”