PRINT September 2004

The United States of America v. Steven Kurtz

Dispatches from the front: On May 30, after the opening of “The Interventionists: Art in the Social Sphere” at Mass MoCA, in North Adams, Massachusetts, some fifty artists gathered outside the museum for a hastily called meeting. In the waning light, Beatriz da Costa, who works in collaboration with the artists’ collective Critical Art Ensemble (CAE), described having been visited that morning by FBI agents, who served her a subpoena citing the Biological Weapons Anti-Terrorism Act and requesting her appearance before a federal grand jury. This was the latest step in an investigation into CAE cofounder and SUNY Buffalo art professor Steven Kurtz, who awoke on May 11 to find that his wife, Hope, had stopped breathing (she died of natural causes). Local police, responding to the artist’s 911 call, discovered in his home a DNA-extraction laboratory for Free Range Grains, a CAE project intended for the Mass MoCA show, as well as bacteria cultures for another future project, and summoned the FBI and Joint Terrorism Task Force, whose agents arrived in haz-mat suits, detained Kurtz for twenty-two hours, and impounded the contents of his studio. Da Costa was unequivocal about the safety of the bacteria, asserting, “You can’t possibly build a weapon out of that”—and indeed, the cultures in Kurtz’s possession are commonly found in high school science labs and readily available for online purchase—but the Justice Department’s case continued to escalate. “I suspect there’s someone here from the FBI,” da Costa said, addressing the group, which nonetheless proceeded to outline a plan of defense.

Two weeks later, on June 15, an estimated two hundred placard-carrying Kurtz supporters rallied a block from the Buffalo courthouse in which the grand jury was convened. Performance artist Sharon Hayes was on the bullhorn. Members of the Yes Men collective filmed interviews for a documentary. Reports circulated that seven of the eight witnesses thus far subpoenaed, most of them activist artists themselves, had taken the Fifth as protection against self-incrimination. Official charges against Kurtz were still pending an indictment, so protesters like Doug Ashford, a founding member of Group Material, had to speculate as to the FBI’s motives. “That they would follow up with something that seems so innocuous and ridiculously minor indicates that they have some kind of political agenda. It’s because of the critical content of the work,” he argued. Founded in 1986, CAE engage in “tactical projects” that aim to create “semiotic shocks that contribute to the negation of the rising intensity of authoritarian culture.” For all the government’s bioterror talk, would this turn out to be a classic First Amendment case?

Perhaps. On June 22, at a fund-raiser for the CAE Defense Fund at Passerby in Chelsea, Jim Fleming, cofounder of Autonomedia, which has published five of CAE’s books, made an announcement. That afternoon he had bumped into two men in suits outside his Williamsburg apartment. He took them for real-estate agents, but they were FBI investigators, and Autonomedia became yet another subpoena recipient in the ongoing investigation. “This is starting to feel like a new McCarthyism,” Fleming observed.

But the FBI’s scrutiny didn’t silence Kurtz’s supporters. Early summer saw a rally in San Francisco, a fund-raiser in London, and flyering outside a Chicago movie theater (playing Fahrenheit 9/11, of course). A Listserv frequented by artists, scientists, and activists from around the world aided in organizing such events. The CAE Defense website supplied a legal-fee donation form, links to articles about post-9/11 civil-liberties violations, and, significantly, keenly crafted and well-targeted press releases. Dozens of articles appeared locally and nationally; everyone from the New York Times to Nature gave Kurtz’s story sympathetic coverage. In short, Kurtz’s tribulations galvanized a network of activist friends and colleagues who were well prepared to take up the cause—affirming, in effect, two decades’ worth of CAE’s theorization of technology and political resistance.

On June 29, Kurtz was indicted on four counts of wire and mail fraud, each carrying a maximum twenty-year prison sentence (he pleaded not guilty). The indictment also names Robert Ferrell, chairman of the genetics department at the University of Pittsburgh, who, the prosecutor alleges, knowingly mailed Kurtz bacteria cultures (at Kurtz’s request) in violation of the university’s contract with its biological-products supplier. In other words, the indictment makes no allegation of illegal possession of or intent to criminally misuse the bacteria; only the means by which Kurtz obtained it is at stake. Following the indictment, Kurtz’s attorney called the alleged fraud at best “petty larceny,” and the CAE Defense site suggested the charge was a “face-saving” measure on the part of the FBI. It would be surprising if the case were tried before next year. In the meantime, without bioterrorism charges looming, supporters may be hard-pressed to convey the urgency of the situation.

No matter the outcome of Kurtz’s case, the Justice Department’s warning shot has been heard. Jeffrey Skoller, a film professor at the School of the Art Institute of Chicago and a friend of Kurtz’s, said, “In pursuing this, the FBI sends a message to the academic and cultural community: ‘If you’re going to be outspoken, you will be responded to in a very powerful way.’” A chilling effect is not unlikely, but ironically, CAE’s message has never reached a wider audience nor seemed more pertinent. Their latest book, Molecular Invasion (2002), argues that governments and corporations have intentionally obscured biotechnology to keep the public in the dark about perilous—and profitable—transgenic agendas. CAE’s projects aim to correctively demystify biotechnology through “appropriation of the products and processes developed by imperial powers.” Free Range Grains, for instance, would have offered Mass MoCA visitors a chance to test their own food for the presence of genetically modified ingredients. That this opportunity was wrested from the public’s hands by government authorities certainly drove CAE’s point home—and the mainstream press took note like never before. While no one would ever argue it’s worth the price, Skoller couldn’t help but observe, “If the circumstances around Hope’s death weren’t so tragic, this could be a CAE piece.”

Jennifer Liese is a Brooklyn-based writer.