Art world comes to the cause of arrested artist
By Robert L. Pincus
Union-Tribune, July 3, 2005

Imagine this scenario: You are a well-established artist and respected university professor. You wake up one morning to find your spouse of 25 years isn't breathing. You call 911. Paramedics arrive, accompanied by police.

There are a few petri dishes in the house, because your conceptually oriented work involves scientific-style installations and issues. So, one of those workers decides you just might be a terrorist and calls the FBI.

The next day, as you are on the way to the funeral home, you are detained by the FBI and the Joint Terrorist Task Force. You are held for 22 hours without having your Miranda rights read to you. Your home and even part of your block is cordoned off; your computer, books, manuscripts and anything else deemed suspicious are confiscated by workers in hazmat suits. Even your spouse's body is held for further analysis.

Sound like the outline of a compelling novel or film about governmental abuse of power? Sure. But this story isn't imaginary. It is what University of Buffalo professor Steven Kurtz, a member of the artists' collaborative called Critical Art Ensemble (CAE), experienced in May 2004 when someone who answered his 911 call decided to make a call to the FBI.

This tale doesn't end there; Kurtz is now facing charges that could result in a 20-year prison sentence.

Artists across the United States and beyond have taken up Kurtz's cause, because they feel it is their cause, too. Following an earlier fundraiser in London, an auction to raise money for his defense was held at the esteemed Paula Cooper Gallery in New York in April. Those donating work included some of the best-known contemporary artists Chris Burden, Ann Hamilton, Barbara Kruger, Sol Lewitt, Louise Lawler, Brice Marden and Kiki Smith, among others.

"We feel that artists' and intellectuals' First Amendment rights are in serious jeopardy under this administration," stated Helen Molesworth, one of the auction's co-organizers, shortly before the event opened. "It's so important, for all of us, that our abilities to be creative thinkers are not hampered by government."  (Molesworth is chief curator for exhibitions at the Wexner Center for the Arts in Columbus, Ohio.)

For some years, Kurtz has been a pivotal member of the CAE, a collaborative of artists that, through books, writings on the Web and exhibitions, has reflected on such subjects as what it calls "the flesh machine" (the scientific/medical establishment) and on genetically engineered food. And the group's installations have incorporated bacteria and food testing because of its broader interest in demystifying science for the lay person.

The argument could be made that the FBI and the Terrorist Task Force were being reasonable when they followed up on a phone call and sampled the materials in Kurtz's petri dishes. But the government has continued to pursue prosecution, even after the Commissioner of Public Health for the state of New York declared that the samples of bacteria in the petri dishes were harmless.

While there apparently wasn't enough evidence to bring bioterrorist charges, the government is pursuing wire and mail fraud charges against Kurtz and Robert Ferrell, a former head of the Department of Genetics at the University of Pittsburgh's School of Public Health.

"These laws (on fraud) have been on the books for more than a century. Whether it (the bacteria) is or isn't harmful isn't an element of the offense. The case centers on property acquired by fraud or misstatement," said U.S. Assistant District Attorney William Hochul on Thursday. He's the prosecutor on the case, which is being tried in New York.

Ferrell's crime was to have helped Kurtz obtain $256 worth of benign bacteria, which means he didn't follow the fine print of his contract with a company called American Type Culture Collection. The firm itself has taken no legal action against either Kurtz or Ferrell. Yet if convicted of the government's charges, artist and scientist could serve up to 20 years in prison.

Kurtz, himself, tries to be philosophical about his situation.

"When you stand up to authoritarian parts of the culture, stuff like this will happen," says Kurtz. "People I know say it's inevitable.

"I would temper that point and say it could happen to lots of people, and somehow I got picked. I certainly got the booby prize on this."

Standing up, in CAE terms, means confronting troublesome subjects. As part of The Free Range Project, the CAE lets people have the opportunity to bring in food to be tested for genetic modifications. It had been presented in a European venue but couldn't go on view at the Massachusetts Museum of Contemporary Art in May 2004 because much of the materials were confiscated from Kurtz's home.

"Molecular Invasion" was the CAE's companion book on this subject, which argued that some science can be scrutinized by everyone.

"Amateur discourse clearly has a place in the transgenic debates since some levels of study can be reviewed by nonexperts," they write. "The stakes are too high for product safety testing to be left solely in the domain of corporate and scientific experts."

One can speculate that the government isn't sympathetic to the latest Critical Arts Ensemble project either, which looks at the history of germ warfare and issues of American policy about biological warfare and bioterrorism. Toward this end, Kurtz had acquired three bacteria that have been used as educational tools in schools. They were in his home at the time of the search.

Having to deal with the case has forced him to work a lot slower, he says. But, he adds, "The FBI is not going to stop us. If anything, we're more committed to what we do, not less."

Looking at the government's goals, he speculated, "They are trying to develop an internal enemy that fits into their canon of fear. Bob (Ferrell) looks like a friendly grandpa. And if they can convince people that even he could be a terrorist, then who isn't a potential terrorist?"

The Critical Art Ensemble Defense Fund has raised enough money to defend him adequately. In May, at the most recent hearing before a judge in Buffalo, Kurtz's attorney, Paul Cambria, asked that the case be dismissed. He argued that the government intentionally misled the judge when obtaining the original search warrant. Any ruling on this won't likely happen until late July or August. Still, if events don't go the government's way, it can appeal, of course, forcing Kurtz to raise more funds for his defense.

He believes that his irreplaceable materials won't ever be returned.

"Even if the case concludes," he says, "they'll probably think of some way to keep the investigation going."

While hearings about the wire and mail-fraud charges have gone forward, a Buffalo grand jury subpoenaed CAE member Steven Barnes. After testifying, Barnes told a reporter, "It seems apparent that the prosecution is still trying to pursue some kind of biological weapons charge."

On what basis they might bring charges is unclear, though initially the Justice Department's Assistant District Attorney William Hochul was trying to use a section of the Patriot Act, which expanded the earlier Biological Weapons Statute.

"Apparently," writes the CAE in a recent essay, "the U.S. Justice Department is now trying to make CAE into an example of what can happen to citizens whose only 'crime' is having thoughts of dissent enacted within the sphere of legality and the alleged protection of constitutional rights."

Whether Kurtz and Ferrell's fraud charges are dismissed or not is only one reason for attention to be paid to this case. The larger issue centers on whether the government's "war on terror" is having a corrosive effect on artistic expression.