Critical Art Ensemble, Steve Kurtz, and "Bioterror"

3 October 2004

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I was of course shocked to learn of the Critical Art Ensemble bust – it happened right at the time that a big Museum show which we were both part of, "The Interventionists," was opening in Massachusetts. As a matter of fact, the CAE never got to exhibit their installation – it was seized by the FBI. At first. many thought that this must be a political/practical joke ... such an outlandishly grotesque prank! But it was no joke. —Craig Baldwin

Art and science are forms of human enquiry that can be illuminating and controversial, and the freedoms of both must be preserved as part of a healthy democracy - as must a sense of proportion. —'On with the show: Why scientists should support an artist in trouble', Nature, Volume 429 (2004)

[ Editor's note: What follows is an incomplete digest of excerpts from articles concerning the case of Professor Steven Kurz and the Critical Art Ensemble. ]

What Happened to Steve Kurtz?

from the Critical Art Ensemble Defense Fund
www.critical-art.net/
www.autonomedia.org/
www.caedefensefund.org/
CAE flyer (pdf)

Early in the morning of May 11, 2004, Steve Kurtz awoke to find his wife, Hope, dead of a cardiac arrest. Kurtz called 911. The police arrived and, after stumbling across test tubes and petri dishes Kurtz was using in a current artwork, called in the Joint Terrorism Task Force.

Soon agents from the Task Force and FBI detained Kurtz, cordoned off the entire block around his house, and later impounded Kurtz's computers, manuscripts, books, equipment, and even his wife's body for further analysis. The Buffalo Health Department condemned the house as a health risk.

Only after the Commissioner of Public Health for New York State had tested samples from the home and announced there was no public safety threat was Kurtz able to return home and recover his wife's body. Yet the FBI would not release the impounded materials, which included artwork for an upcoming exhibition at the Massachusetts Museum of Contemporary Art.

While most observers assumed the Task Force would realize that its initial investigation of Steve Kurtz was a terrible mistake, the subpoenas indicate that the feds have instead chosen to press their "case" against Kurtz and possibly others.

Reports in the Press

SUNY Buffalo Art: It's Not Bio-Terror, But Is It Illegal Anyway?

By Al Matthews
CNN Headline News
Tuesday, July 13, 2004 Posted: 3:33 PM EDT (1933 GMT)
www.cnn.com/2004/SHOWBIZ/07/12/buffalo.art/

(CNN) -- SUNY Buffalo art professor Steven Kurtz, his publisher, and their scientific and artistic colleagues are embroiled in court proceedings that began as a full federal bio-terrorism investigation, and ended up as charges of wire and mail fraud.

CAE is radical at least in gesture. The group explores issues such as "contestational biology," i.e. science in the interest of activism, such as releasing harmless but visibly mutant houseflies near a chemical or nuclear facility ...

Kurtz was arraigned Thursday in Buffalo, New York. He entered a plea of not guilty on all counts. University of Pittsburgh scientist Robert Ferrell, chairman of the Human Genetics Department, faces the same charges but was not present to enter a plea, citing illness....

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Artist Ensnared by Patriot Act

By Stephanie Cash
Art in America: Front Page pdf
September 2004
www.artinamericamagazine.com/images/AiAfrontpage09_04.pdf

Since May, Buffalo artist Steve Kurtz has been the subject of a highly publicized federal investigation involving his possession of bacterial agents and lab equipment. The trouble began on May 11, when the artist awoke to find that his wife, Hope, was dead. After emergency workers arrived, they discovered what they considered to be suspicious items and called in the FBI. Invoking a 1989 bioterrorism law and the Patriot Act, which grants the federal government unprecedented search-and-seizure powers, federal agents detained Kurtz for 22 hours; they searched his home for two days, as well as his office at SUNY-Buffalo, where he is a faculty member. The bureau confiscated his wife's body, his house, car, equipment, computer hard drive, books, writings, correspondence, art projects and other items, even his cat. His house, cat and car were returned to him after one week, once it was determined that his wife's death of heart failure, at age 46, was unrelated to the bacterial matter.

legal costs for Kurtz and Ferrell together are expected to be at least $300,000 ...

A member of the collective Critical Art Ensemble (CAE), Kurtz had obtained the lab equipment and two strains of harmless bacterial material-one of which is used in high-school biology classes-for a project that was to have appeared in the current exhibition at MASS MoCA, "The Interventionists: Art in the Social Sphere." The group planned to set up a lab in the museum so that visitors could bring in food products to be tested for genetically modified ingredients. At this writing, Kurtz's remaining property has not been returned. The gallery at MASS MoCA where the work was to have been installed contains computers with which viewers can access information about the piece, a few packaged food items and copies of news stories covering Kurtz's ordeal....

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Art Becomes the Next Suspect in America's 9/11 Paranoia

Gary Younge in Buffalo
The Guardian
Friday June 11, 2004
www.guardian.co.uk/usa/story/0,12271,1236288,00.html

On May 10 Steven Kurtz went to bed a married art professor. On May 11 he woke up a widower. By the afternoon he was under federal investigation for bioterrorism.

What began as a personal tragedy for Mr Kurtz has turned into what many believe is, at best, an overreaction prompted by 9/11 paranoia and, at worst, a politically motivated attempt to silence a radical artist.

His art often involves blending biology with agricultural issues.

Several of Mr Kurtz's colleagues and artistic collaborators have been subpoenaed and a date for a federal grand jury hearing set for Tuesday. Both artist and his art are set to go on trial for their alleged links with terrorism.

The ordeal started when Mr Kurtz, who teaches at the University at Buffalo, New York state, called the emergency services when he woke up to find Hope, his wife of 25 years, had stopped breathing....

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Biotech Artist Indicted

by Brendan Coyne
The NewStandard
July 7, 2004
www.antiwar.com/orig/coyne.php?articleid=2941

A federal grand jury in Buffalo, N.Y., investigating charges against art professor Steven Kurtz finally handed down an indictment on Tuesday, ending deliberations that began on June 15.

The indictment, technically for mail and wire fraud, also ensnared the University of Pittsburgh's head of human genetics and surprised Kurtz's supporters who had feared more serious charges.

They seized my wife's body, house, cat, and car.

The investigation started when Kurtz woke on the morning of May 11 to find his wife of 20 years, Hope, not breathing. Like most people would, Kurtz dialed 9-1-1 to report the emergency, never imagining the ordeal that was to ensue.

"I was detained for 22 hours by the FBI," wrote Kurtz, prior to being advised not to speak about the incident by his attorney, in an email circulated among supporters and obtained by The NewStandard. Kurtz is a founding member of the Critical Arts Ensemble (CAE), a group of "cutting-edge" artists whose primary medium is science....

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Commentary and Analysis

Background on CAE

by Claire Pentecost
www.caedefensefund.org/background.html

Critical Art Ensemble has very publicly and legally performed scientific processes to demystify them and make them accessible to audiences. "Free Range Grains," CAE's latest project, includes a mobile DNA extraction laboratory for testing food products for the presence of genetically modified organisms.

In a time when there is no public authority willing to protect and inform citizens against the interests of corporations ... and when millions of public dollars are being rerouted toward a militarization of public health research, art has become a place where issues can be brought into public light, understood and discussed.

The biotech industry is a very little understood force transforming our lives with almost no public input. In the case of genetically modified agriculture, transgenic crops were approved by the FDA for commercial use in 1994 with no studies on the long term effects on human health and the natural environment, no plan for tracking those effects, no liability for the corporations selling this technology, and no public debate. Slowly over the last decade, US consumers have become aware that all foods containing corn, soy or canola are genetically modified, unless they are labeled organic. Still the majority of the population does not realize they are part of an immense unregulated experiment. There are no labels for these ingredients. When the industry states that there are no studies on these products indicating harm to human health, what they are saying is that there are no studies. The one bona fide independent study conducted did suggest damage to the intestines and other organs of rats. This study basically ended the 36 year career of Dr. Arpad Pusztai at the Rowett Research Institute in Scotland. Days after he spoke publicly of his findings in August 1998, Dr. Pusztai was removed from service, his research papers were seized, and his data confiscated; and he was prohibited from talking to anyone about his research work....

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From the Indictment

www.caedefensefund.org/indictment.pdf

ROBERT FERRELL and STEVEN KURTZ, sought to defraud and defrauded ATCC [American Type Culture Collection] and the University of Pittsburgh by planning to and thereafter acquiring the biological materials serratia marcescens and bacillus atrophaeus, as well as all of the rights, titles and interests in such materials, using the registered account of the University of Pittsburgh with ATCC. To effectuate this scheme to defraud, the defendants, ROBERT FERRELL and STEVEN KURTZ, ordered and caused to be ordered both biological materials from ATCC by misrepresenting, and by using false and fraudulent pretenses and representations, that the biological materials were to be used in accordance with all regulations and guidelines of ATCC and the University of Pittsburgh, including (but not limited to) using the materials by and at the University of Pittsburgh Human Genetics Laboratory.

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Maybe This Got Him In Trouble

from Molecular Invasion
by Critical Art Ensemble

The fuzzy saboteur has to stand on that ambiguous line between the legal and the illegal (both criminally and civilly). From that point, the individual or group can set in motion a chain of events that will yield the desired final result. The opening activity - the only one to which the saboteur should have any direct causal link - should be as legal as possible and hopefully within the rights of any individual. The more links in the chain, the better from a legal standpoint, but extending causal chains increases the difficulty of controlling all the exponentially growing number of variables that could doom the action. For the most part, such actions will only have two phases-the legitimate or fuzzy act and the upheaval it causes. The authorities then have the legal conundrum of proving guilt by indirect action-an unenviable task for any attorney. Moreover, unlike CD, fuzzy sabotage does not require a physical confrontation with authority, and in many cases does not require any type of trespass.

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Saying No to the Prosecutor: Why Steve Kurtz's Colleagues Refused to Testify to the Grand Jury

by Bruce Jackson
Buffalo Report
20 June 2004
buffaloreport.com/2004/040620.jackson.kurtz.html

A Death and a Taste of Blood

Steve Kurtz's wife Hope died of a heart attack May 11. Steve, an associate professor of art at University at Buffalo, called 911. The police who came saw some of the materials for an art exhibit on genetic modification and called the FBI. The FBI came in, cordoned off half the block, confiscated Hope's body, Steve's computer, his notebooks, his art supplies and their cat. They took him into custody. Two days later they let him and the cat go and whoever had the wife's body released for burial. There was no supposition of foul play in the death. Kurtz is a member of the highly-regarded Critical Arts Ensemble, a group that does confrontation art works designed to make people think about the role corporations play in modern life.

Nobody outside of Ashcroft's Justice Department knows what Ashcroft's Justice Department is really up to here.... Maybe they're just doing it because they can, because they have the power to do it.

Federal prosecutors subsequently convened a grand jury, with Kurtz as its target, presumably on charges of bioterrorism. To everyone who knows anything about Kurtz, his associates or his work, this appears lunatic. But this is John Ashcroft's Justice Department and it's only a few months since they tasted blood in nearby Lackawanna.

FBI agents have been talking to almost everyone connected with Steve Kurtz in any way, shape, or fashion. They've interviewed museum curators in Massachusetts and the state of Washington, colleagues in New York and California, and students. Federal prosecutors have convened a grand jury to go after Kurtz. There were reports last week that, on the advice of counsel, Kurtz's two associates in the Critical Arts Ensemble and five of the other six witnesses called by the grand jury refused to testify....

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What is Art? (And What is Bioterror?)

by Paul Schmelzer
adbusters.org/magazine/54/features/patriot.html

The US government hasn't been able to turn up any WMDs during its $120+ billion war in Iraq, but it seems to think it's stumbled upon a bioterror den in the home of a Buffalo, New York, artist: Steve Kurtz, a college art professor and founding member of the Critical Art Ensemble (CAE), faces possible arrest and up to 10 years in prison for work that examines the politics of biotechnology.

Bush ... reacted to a spoof site created by the conceptual art collective ®™ark by declaring, "There ought to be limits to freedom."

On May 11, Kurtz awoke to find his wife of 25 years dead from a heart attack. But when he called 911, paramedics and police seemed most concerned with the petri dishes and laboratory equipment they found in his house. They called in the Joint Terrorism Task Force, who took Kurtz into custody for two days, cordoned off the entire block, and confiscated his artmaking supplies - research and scientific equipment related to an art project scheduled to be shown at the Massachusetts Museum of Contemporary Art later in the month-along with his wife's body. That the bacteria (including E.coli, which occurs naturally in the human intestines) was tested and found harmless makes no difference to the government; it called for a grand jury hearing and subpoenaed at least nine of Kurtz's colleagues. If charged, he'll likely be tried under a provision of the Patriot Act that prohibits the possession of biological agents for use as a weapon....

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Historical Background of the US Biowarfare Program

by Eugene Thacker (eugene.thacker@lcc.gatech.edu)
CAE_USbiowar.pdf

In light of the current FBI/Patriot Act investigations against Critical Art Ensemble (CAE), it is worthwhile to point out two moments from the history of the US government's involvement in biowarfare. The first concerns the specific issue of access to knowledge, education, and resources in the life sciences. The second concerns the general backdrop of US biodefense ideology. All of this information has been confirmed by several sources, and has been in the public domain for some time (see the references below).

The tightening of security measures, as well as civil liberties within the US is happening at the same time that the US Biodefense Program is broadening the scope of its research and application.

Needless to say, this is not meant to be a comprehensive "history" of biowarfare. Instead, it is a perspective on biowarfare from the vantage point of US involvement. What is evident is that the US government's involvement in biowarfare raises far more substantial questions than the investigation of dissenting artists.

1. US Biological Warfare Program Simulant Field Tests, 1949-68

Although the particulars of the investigation against CAE have not been made clear, the charges made against them surround particular strains of bacteria which Steve Kurtz was culturing: Serratia marcescens and Bacillus globigii. As has been noted, both bacteria are non-lethal, commonly found in wind-blown dust or the soil, and are often used for educational purposes in biology labs across the US. They have also been used by the US biological warfare program. A short chronology follows: ...

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Art or Bioterrorism? The Implications of the Kurtz Case

by Margaret E. Kosal, PhD
cns.miis.edu/pubs/week/040727.htm (Center for Nonproliferation Studies at the Monterey Institute of International Studies)

July 27, 2004

One spring morning, Professor Steven Kurtz of the State University of New York (SUNY), Buffalo campus, woke to the horrid discovery that his wife of 20 years had died overnight from a cardiac arrest. He called 9-1-1. Paramedics arriving at the Kurtz home noticed technical equipment that would normally only be found in a laboratory. If the emergency responders had not been suspicious and reacted, it would have been worrisome, particularly given the unexpected death. What happened later - the investigation of Kurtz and colleagues by the Department of Justice and the Federal Bureau of Investigation's (FBI's) Joint Task Force on Terrorism under bioterrorism statues - may have more worrisome implications.

The question of a "chilling effect" is probably less critical for iconoclastic artists than researchers seeking tenure track positions or National Institutes of Health grant renewals.

The Art

Professor Kurtz is a founding member of the Critical Arts Ensemble (CAE). CAE is a multi-media, artist collective exploring the political and social implications of science, particularly biotechnology, on people and for people who aren't scientists.

Many of the CAE productions are theatrical in nature. One current project is intended to evoke dialogue regarding the historical and modern roles of the United States in biological warfare (BW). As part of a mock "anthrax" attack, the CAE uses BW simulants - some of the same microbes that the U.S. military used for testing the dispersal and spread of BW agents. Some of these simulations were done over civilian areas.[1] Among the materials seized from Kurtz's home were unspecified books on BW, books which had been incorporated in the CAE's "The Marching Plague" project....

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