Robert Hirsch
The Strange Case of Steve Kurtz:
Critical Art Ensemble and the Price of Freedom

By Robert Hirsch

From Afterimage: the Journal of Media Arts and Cultural Criticism,
May/June 2005

afterimage On the morning of May 11, 2004 Steve Kurtz, an Associate Professor of Art at the University at Buffalo (UB) and cofounder of Critical Art Ensemble (CAE), awoke in his Buffalo, New York home to discover that Hope Kurtz, his wife of 27 years and one of the original members of CAE, was not breathing. Kurtz called 911, but upon arrival the emergency medical team was not able to revive her. Because Hope’s death was unexpected and she was under 50 years old the Buffalo police came to investigate. They found a table with scientific equipment in plain sight and fearing terrorism, notified the Federal Bureau of Investigation (FBI). The following day, as Kurtz was leaving home to make funeral arrangements, FBI agents arrived and detained him for extended questioning.

Kurtz’s longtime friend and collaborator, Claire Pentecost, an artist, writer and associate professor at the School of the Art Institute of Chicago, arrived in Buffalo shortly thereafter to support Kurtz. Pentecost provides the following account of what happened:

After a couple of hours of questioning, the very courteous FBI agents told Steve he could do whatever he needed to do but they were going to accompany him, so I was picked up at the airport by two FBI agents who were driving Steve around to do his errands. We were cooperative because we were both stunned by Hope’s death, and we figured we had nothing to hide. Our detention lasted until the afternoon of the next day, or until finally, by way of our cell phones, we were able to get in touch with a lawyer who immediately told us that our detention was not legal and we should walk away. At this moment the FBI also informed us that we were, of course, free to go, but not to go home, because the FBI, working with Homeland Security, the Joint Task Force on Terrorism, the ATF [Bureau of Alcohol, Tobacco and Firearms], Immigration and Customs Enforcement and the Niagara County Sheriff ’s office, closed Steve’s street with police cars, fire engines and medical emergency personnel while they sent a team of agents in hazmat suits in to search the house for biohazards.

Five days later Kurtz was able to return to his home, it having been determined that nothing there was dangerous or illegal. Nevertheless, the FBI had confiscated his scientific equipment; his computers; his notes; a shelf of books on science, epidemiology and the history of biowarfare; his passport; other personal documents and Hope’s body (after two autopsies, it was determined that she had died of natural causes—heart failure).

Two weeks later, other CAE members and collaborators began receiving subpoenas to appear before a grand jury investigating Kurtz for charges related to The Biological Weapons Statute (H.R. 3162) which had been expanded by the USA PATRIOT Act, or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. In the name of defense against terrorism, this set of laws greatly expands the powers of the executive branch of the federal government to obtain information on citizens without notifying them. It authorizes the indefinite detention of aliens for nothing more than a visa violation and allows the FBI to obtain an individual’s or business’ financial, educational, library usage, retail purchase and medical records without a warrant [author’s emphasis].

The section that appeared to be applicable to the CAE case prohibits possession of a biological agent for any purposes except "prophylactic, protective bona fide research toward educational or other peaceful purposes." The Justice Department apparently thought the equipment and research materials they confiscated from an artist were being used for something other than "research or educational purposes, something terroristic," as the new anti-terrorism laws read.

This extensive investigation resulted in both Kurtz and Dr. Bob Ferrell, a collaborator and science advisor to CAE and professor of Genetics at the University of Pittsburgh, being indicted for mail and wire fraud for obtaining a strain of bacteria commonly used in high school lab experiments and not considered physically dangerous. CAE had planned to use the bacteria in a project critiquing United States involvement in germ warfare. Normally those charged with mail and wire fraud have been accused of defrauding others of money or property in telemarketing schemes.

Appropriate Tools Required

"Art, Law and the PATRIOT Act," a symposium which was held at the University at Buffalo (UB) on April 13, 2005 featured a diverse, interdisciplinary panel of artists, scholars and civil rights proponents discussing the detrimental impacts of post-9/11 government security policies. Included in the discussion was UB professor and Critical Art Ensemble (CAE) cofounder Steve Kurtz, who was unable to speak about details concerning the charges brought up against him following the Federal Bureau of Investigation’s (FBI) search of his home last May. The members of the panel took turns presenting their perspectives on Kurtz’s situation and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act).

Panel at UB Symposium. Photograph by James Rajotte
Panel at UB Symposium. Photograph by James Rajotte.

First to speak was CAE co-founder Steve Barnes, who has recently been subpoenaed as a witness in the case against Kurtz. Barnes opened with a video showing Kurtz’s home as the FBI had left it after their search, essentially ransacked and void of much of Kurtz’s personal belongings. The presentation highlighted what the government can now legally do without notice and before obtaining a warrant under the PATRIOT Act.

Kevin Jon Heller, assistant professor of law at the University of Georgia, elaborated on the various sections of the PATRIOT Act that seem to impose on privacy and personal expression. For instance, Heller gave the example of Section 213, which states: "With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed."

Heller’s descriptions of the various sections of the PATRIOT Act were met with snickers and slow head-shaking by many of those in attendance who were collectively disgusted at how Kurtz’s work with benign biological agents was seen as a threat by the government.

Phillip Thurtle, assistant professor of Sociology and Anthropology at Carleton University in Ottawa, Canada, introduced the term "Biopower." "Biopower," credited to postmodernist philosopher Michel Foucault, was brought into context by relating it to the PATRIOT Act’s restriction on biological research having to be "bona fi de." Thurtle pointed out that the PATRIOT Act seeks to limit "bona fi de" research to companies and government-controlled organizations (i.e., universities, the military). Thus, under the PATRIOT Act, the defense of Kurtz’s research is complicated by his lack of any such affi liations.

As it stands now, Kurtz is being charged with wire and mail fraud. On May 17, a judge will hear motions of dismissal by Kurtz’s defense team, but coincidentally, it is the same judge that originally signed the warrant to search Kurtz’s residence. CAE plans to maintain its "dedication to exploring the intersections between art, technology, radical politics and critical theory" but has no special projects planned in light of its current situation.

In an 81-page legal counterattack filed on January 21, 2005, defense lawyers asked Federal District Court Judge John T. Elfvin to dismiss fraud charges against Kurtz, accusing prosecutors and federal agents of wrongly charging Kurtz, illegally questioning him and illegally searching his home after his wife’s death. Paul J. Cambria, lead attorney for Kurtz said, "We moved to have the case dismissed because, clearly, this is a real stretch by the government. There are all kinds of problems with the case, including the search of his home and the statements they took from him."

In these court papers, Cambria said federal agents unfairly tried to characterize Kurtz as a "bioterrorist" and asked the judge to dismiss the case for three key reasons:

• No actual crime was committed. "This was a small amount of harmless bacteria that was going to be used in an art exhibit to make a political point," Cambria said. "If the company that sold the bacteria feels its conditions were violated, they can sue. That doesn’t make it a federal crime."

• Buffalo police and federal agents illegally searched Kurtz’s home and his offi ce computer at UB. Cambria stated there was "no probable cause" for search warrants because police had no proof any crime had been committed.

• Kurtz was questioned illegally, without being "fully advised" of his Miranda rights, by Buffalo police and the Joint Terrorism Task Force of Western New York. Kurtz’s attorneys allege he was illegally "detained" for more than a day after agents came to his home, one day after his wife’s death.

Prosecutors say they charged Kurtz and Ferrell because they committed mail and wire fraud, breaking regulations designed to keep bacterial agents from getting into the wrong hands. They have not yet charged either with bioterrorism.

The defense papers also provide an initial look at statements made by a Buffalo police detective and an FBI agent with the Joint Terrorism Task Force that led to the search warrant. Buffalo detective Chris Dates said police were called to the home because Hope’s death "appeared suspicious." Dates said he was surprised to fi nd "an apparent biological laboratory" in the house and questioned Kurtz about it. Dates stated that Kurtz told him he used bacteria in art shows and it was harmless. To demonstrate, Kurtz stuck his finger into a petri dish of bacteria and licked it. Then, according to Dates, Kurtz gave him a printed invitation for an upcoming CAE exhibition at The Massachusetts Museum of Contemporary Art (MASS MoCA). FBI Agent Michael R. Hickock stated the invitation had a depiction of an automobile on it and Arabic writing referring to "a past car bombing involving 25 pounds of TNT in the country of Morocco."

Cambria said law enforcement officials used harmless remarks and events to render Kurtz as a dangerous "bioterrorist." The lawyer said Kurtz is a nonviolent person who uses his art and writings to raise vital questions about our government’s actions. In addition, Cambria said the FBI tried to connect Hope’s death to the bacteria her husband possessed even after "the original autopsy showed she died of natural, medical causes," Cambria said. "The FBI has just sent me a report showing they had U.S. military medical examiners review the autopsy, and they came to the same conclusion. The FBI tried to make a link between this bacteria and her death, and they fell flat."

Officials have declined to comment on Cambria’s statements regarding the death. William J. Hochul, Jr., who also prosecuted the "Lackawanna Six" case1 said he would not discuss Cambria’s charges until the government files its answers with the court. Ironically, while this was transpiring, Kurtz’s probation officer recommended that his passport be returned and it was. As of this writing, and after a number of postponements, no new hearing date has been set.

Meanwhile, the legal bills for Kurtz and Ferrell are estimated at $150,000 each and mounting. A CAE Defense Fund has been set up to help pay the legal expenses. Sources close to Kurtz report it is essential to raise more money to file motions to get the case dismissed without going to trial. (next page)

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