June 5, 2004

Feds can’t tell art from terrorism

by Michael Mateas · , 12:59 pm

A couple of weeks ago I received the sad news that my friend Steve Kurtz’s wife Hope had passed away in her sleep. This personal tragedy was compounded by the bizarre twist that, when police and medical workers arrived in response to Steve’s call, they saw some of the biological equipment in his home studio that Steve uses for biotech art performances with the Critical Art Ensemble. Hyped up on “War on Terror” fervor, they called in the Feds to investigate a potential bioterrorism case. While this was shocking, and certainly added insane stress to an already emotionally intense situation (Steve was even denied access to his wife’s body for awhile), I assumed that the bioterrorism case would blow over, as investigators discovered the ridiculous mistake they’d made. But, as many GTxA readers may already know, in the last few days the situation has grown ever more Kafkaesque, prompting me to make this public post on what was initially a private tragedy. Steve is now being brought before a Grand Jury on bioterrorism charges. Other artists have been called in to testify, including my friends Paul Vanouse and Beatriz (Shani) da Costa. Below I’ve included the text of a CAE defense fund press release.

Be careful what kind of art you make. The Feds may come a knockin’…

June 2, 2004

Contact: Beatriz da Costa, media@caedefensefund.org

Feds STILL unable to distinguish art from bioterrorism
Grand jury to convene June 15


Three artists have been served subpoenas to appear before a federal
grand jury that will consider bioterrorism charges against a
university professor whose art involves the use of simple biology

The subpoenas are the latest installment in a bizarre investigation
in which members of the Joint Terrorism Task Force have mistaken an
art project for a biological weapons laboratory (see end for
background). While most observers have assumed that the Task Force
would realize the absurd error of its initial investigation of Steve
Kurtz, the subpoenas indicate that the feds have instead chosen to
press their “case” against the baffled professor.

Two of the subpoenaed artists–Beatriz da Costa and Steve Barnes–are,
like Kurtz, members of the internationally-acclaimed Critical Art
Ensemble (CAE), an artists’ collective that produces artwork to
educate the public about the politics of biotechnology. They were
served the subpoenas by federal agents who tailed them to an art show
at the Massachusetts Museum of Contemporary Art. The third artist,
Paul Vanouse, is, like Kurtz, an art professor at the University at
Buffalo. He has worked with CAE in the past.

The artists involved are at a loss to explain the increasingly bizarre
case. “I have no idea why they’re continuing (to investigate),” said
Beatriz da Costa, one of those subpoenaed. “It was shocking that this
investigation was ever launched. That it is continuing is positively
frightening, and shows how vulnerable the PATRIOT Act has made freedom
of speech in this country.” Da Costa is an art professor at the
University of California at Irvine.

According to the subpoenas, the FBI is seeking charges under Section
175 of the US Biological Weapons Anti-Terrorism Act of 1989, which has
been expanded by the USA PATRIOT Act. As expanded, this law prohibits
the possession of “any biological agent, toxin, or delivery system”
without the justification of “prophylactic, protective, bona fide
research, or other peaceful purpose.” (See the 1989 law and its USA
PATRIOT Act expansion

Even under the expanded powers of the USA PATRIOT Act, it is difficult
to understand how anyone could view CAE’s art as anything other than a
“peaceful purpose.” The equipment seized by the FBI consisted mainly of
CAE’s most recent project, a mobile DNA extraction laboratory to test
store-bought food for possible contamination by genetically modified
grains and organisms; such equipment can be found in any university’s
basic biology lab and even in many high schools (see Lab Tour for more details).

The grand jury in the case is scheduled to convene June 15 in Buffalo,
New York. Here, the jury will decide whether or not to indict Steve
Kurtz on the charges brought by the FBI. A protest is being planned at
9 a.m. on June 15 outside the courthouse at 138 Delaware Ave. in


Financial donations:
The CAE Defense Fund has so far received over 200 donations in amounts
ranging from $5 to $400. This is a wonderful outpouring of sympathy,
but a drop in the bucket compared to the potential costs of the case.
To make a donation, please visit the CAE Defense Fund.

Letters of support:
Letters and petitions of support from biologists, artists, and others,
especially those in positions of responsibility at prominent
institutions or companies, could be very useful. See the CAE Defense Fund for a sample letter of support.

Legal offers and letters of support:
If you are a lawyer, offers of pro bono support or offers to write
amicus briefs would be very helpful.


Early morning of May 11, 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.

To donate to the CAE Defense Fund, and for up-to-date information on
the case, please visit the CAE Defense Fund.

For more information on the Critical Art Ensemble available here.

To join a list about the case, go here.

Articles and television stories about the case:

On advice of counsel, Steve Kurtz is unable to answer questions
regarding his case. Please direct questions or comments to media@caedefensefund.org.

11 Responses to “Feds can’t tell art from terrorism”

  1. Gonzalo Says:

    The urban myth goes that in Uruguay in the 70s, somebody got locked up by the military because he was carrying a book on Cubism. Some soldier assumed it had something to do with Cuba, so the art student ended up in jail. I was never sure if the story was real or not, but it was certainly plausible during our banana republic dictatorship times. Who would have thought it? I can feel now safer in poor, dirty, underdeveloped Uruguay than in allmigthy, tall and blond America. I guess nobody is inmune to fascism. By the way, here’s a free tip from a friend who’s been around: burn your books on Cubism. Actually, burn them all, just in case. You never know…

  2. Jose Zagal Says:

    Wow! There was a similar urban myth that went around in Chile since (at least) the early 80’s. I guess it must be totally false then, since I had never heard it outside of Chile…

  3. andrew Says:

    Here’s a NYTimes article about it from a few days ago — read it now before it goes into the pay-to-read archive.

  4. Michael Says:

    NPR ran a news story yesterday. You can listen to it here.

  5. andrew Says:

    Today’s the day Shani and Paul testify in front of a grand jury, right? I hope it goes alright.

  6. Michael Says:

    Yes, today is the grand jury. After today we’ll hopefully know what Steve is really being charged with. So far the feds haven’t been forthcoming about the exact nature of the charges.

  7. Michael Says:

    Bioterrorism charges against Steve Kurz have been downgraded to mail fraud. The grand jury indicted both Steve and Robert Ferrell, head of the Department of Genetics at the University of Pittsburgh’s School of Public Health. The charges concern technicalities of how Ferrell helped Kurtz to obtain $256 worth of harmless bacteria for one of Kurtz’s art projects. In order for federal mail fraud charges to stick, the prosecution will have to prove criminal intent. So the stupidity marches on, but at least with a more minor charge.

  8. Michael Says:

    The latest press release from the CAE defense fund includes quotes from a number of scientists who are concerned about the mail fraud arraignment (which carry a maximum sentence of 20 years in prison) of Steve Kurtz and Robert Ferrell. Some samples:

    Based on what I have read and understand, Professor Kurtz has been working with totally innocuous organisms… to discuss something of the risks and threats of biological weapons–more power to him, as those of us in this field are likewise concerned about their potential use and the threat of bio-terrorism.
    Donald A. Henderson, Dean Emeritus of the Johns Hopkins University School of Hygiene and Public Health and resident scholar at the Center for Biosecurity of the University of Pittsburgh Medical Center

    They [Steve Kurtz and the Critical Art Ensemble] re-create [scientific] ideas using their own way of imaging, and then say, ‘Maybe you’d like to look at it this way.’ To me, that’s teaching. It does not seem to me to threaten homeland security. In fact, I would be threatened to live in a homeland in which that was perceived to be a threat.
    Mary-Claire King, the University of Washington geneticist who first proved the existence of a gene for hereditary breast cancer

  9. andrew Says:

    A NYTimes article today, that mentions Kurtz’s situation, describes a new show at the New Museum called “Rules of Crime”.

  10. michael Says:

    More craziness in the Steve Kurtz case. Now, in addition to the mail fraud charges, the feds are trying to revive the bioterrorism charges…

    April 13, 2005

    Contact: mailto:auction@caedefensefund.org

    More benefits and donations needed

    An April 17 benefit auction at Paula Cooper Gallery in NYC has
    attracted donations from some of the biggest names in the
    contemporary art world, including Hans Haacke, Richard Serra, Cindy
    Sherman, Martha Rosler, Sol LeWitt, Rubn Ortiz Torres, Kiki Smith,
    Lorna Simpson, Chris Burden, and many others. (See details at bottom
    or at http://www.caedefensefund.org/auction/PaulaCooperGallery.html.)

    Organizers of this Sunday’s auction expect to raise at least a
    six-figure sum to help artist Steven Kurtz and scientist Robert
    Ferrell defend themselves against politically-motivated federal
    charges of mail and wire fraud–and, it now seems likely,
    bioterrorism charges as well.

    If convicted of the wire and mail fraud charges, Kurtz, a founding
    member of the Critical Art Ensemble (CAE) and Professor of Art at the
    University of Buffalo, and Ferrell, a Professor of Human Genetics at
    the University of Pittsburgh, could face up to 20 years in prison.

    But worse is possible. On March 17, Steven Barnes, also a founding
    member of the Critical Art Ensemble, was served a subpoena to appear
    before a Federal Grand Jury in Buffalo on April 19. According to the
    subpoena, the FBI is once again seeking charges under Section 175 of
    the US Biological Weapons Anti-Terrorism Act of 1989, as expanded by
    the USA PATRIOT Act–charges which a previous Grand Jury appeared to
    reject when they handed down indictments of mail and wire fraud last
    summer. (See http://www.caedefensefund.org for full details.)

    The addition of bioterrorism charges will add to the heavy financial
    and emotional burden of the defendants. But the rising cost to
    taxpayers is significant too. Although the New York State Department
    of Health quickly deemed that the materials used by Kurtz in his art
    posed no threat to public health or safety, and the FBI’s own field
    and laboratory tests showed that they were not used for any illegal
    purpose, the U.S. District Attorney continues to waste vast sums of
    public money prosecuting this outlandish, politically motivated case.

    Since June 2004, public events in support of the CAE Defense Fund in
    the US, Canada, Europe, Mexico, Latin America and Australia, as well
    as thousands of individual contributions, have met the rising
    defense costs. But as the case moves to trial, Kurtz and Ferrell’s
    expenses will increase dramatically, and more fundraisers and
    donations will be needed. The April 17 auction organizers hope the
    auction will serve as a spur for people worldwide to organize new
    benefit events and contribute to the fund. Please visit
    http://caedefensefund.org for more information about how you can help
    publicize this auction, organize your own event, donate funds, or
    otherwise help support Kurtz and Ferrell in this exceedingly
    important case that could widely impact freedom of expression and
    more in the US.


    When: Sunday, April 17, 2005 (viewing and silent auction 2-8pm, live
    auction 5-7pm)

    Where: Paula Cooper Gallery, 521 West 21st Street, NYC 10011, tel:
    212-255-1105 / day of auction: 212-255-5247

    Master of Ceremonies: Wallace Shawn

    Artists who have donated work: Acconci Studio, Dennis Adams, Carl
    Andre, The Atlas Group, Nayland Blake, Mel Bochner, Cecily Brown,
    Chris Burden, Paul Chan, Jeremy Deller, Mark Dion, Sam Durant, Tony
    Feher, Andrea Fraser, Joseph Grigely, Hans Haacke, Ann Hamilton,
    Rachel Harrison, Emily Jacir, Mike Kelley, Barbara Kruger, William
    Pope L., Louise Lawler, Zoe Leonard, Sol LeWitt, Glenn Ligon, Sharon
    Lockhart, Brice Marden, Allan McCollum, Julie Mehretu, Arnold
    Mesches, Donald Moffett, Dave Muller, Vik Muniz, Takashi Murakami,
    Yoshitomo Nara, Cathy Opie, Rubn Ortiz Torres, Laura Owens, David
    Reed, Alexis Rockman, Martha Rosler, Christy Rupp, Carolee
    Schneemann, Richard Serra, Cindy Sherman, Amy Sillman, Lorna Simpson,
    Kiki Smith, Janaina Tschape, and many more.

    To view some of the donated art works, please visit:

    This benefit is sponsored by the National Association of Artists’
    Organizations (NAAO) and Hallwalls Contemporary Arts Center
    (Buffalo), and is supported by galleries across the US.

    For more information please contact Lori at Paula Cooper Gallery, or
    visit http://caedefensefund.org. Press inquiries may be directed to

  11. michael Says:

    The New York Times has an article on biotech art, using Steve’s case as an entry point for talking about the debate between political activism (biotech art should stimulate public discourse on the political and economic ramifications of biotechnology) and aesthetic/conceptual exploration (biotech art should use biotechnology as a canvas) that currently polarizes the bioart scene.

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