An update on the Kurtz case (art in Science for the People vein becomes
Begin forwarded message:
> From: Ricardo Dominguez <[log in to unmask]>
> Date: July 25, 2005 6:31:06 AM PDT
> To: [log in to unmask]
> Subject: <nettime> The $256 Question - and CAE
> Reply-To: Ricardo Dominguez <[log in to unmask]>
> The $256 Question
> By Stan Cox, AlterNet. Posted July 25, 2005.
> By prosecuting Steven Kurtz and Robert Ferrell, is the Justice
> Department trying
> to clamp a lid on political art or looking to chalk up a win by
> exploiting fears
> of bioterrorism?
> by Stan Cox
> S. marcescens: dangerous bacteria or harmless art material?
> The way William Hochul sees it, the situation couldn't be simpler: "We
> take an
> oath to follow the Constitution and enforce the law. The law says you
> acquire any property by fraud -- whether it's a gun or an automobile or
> something biological, it doesn't matter."
> As an assistant U.S. attorney for the Western District of New York,
> based in
> Buffalo, Hochul is leading the prosecution of Steven Kurtz and Robert
> who were indicted a little over a year ago for mail and wire fraud.
> Kurtz, a
> professor of art at the University of Buffalo and co-founder of the
> internationally acclaimed Critical Art Ensemble (CAE), is accused of
> bacterial cultures illegally through the mail.
> Ferrell, a geneticist and professor at the University of Pittsburgh,
> provided Kurtz the organisms for use in an artwork, rather than using
> them in
> his own research, thereby violating an agreement he had signed when he
> purchased the cultures for $256 from the American Type Culture
> Although Hochul doesn't say so, this has to be a frustrating time for
> him. Last
> spring, he and the Terrorism Division that he heads appeared to be
> their sights on a big-time conviction. Federal agents in biohazard
> suits had
> confiscated laboratory equipment and bacterial cultures from Kurtz's
> home. And
> they had served subpoenas -- under the U.S. Biological Weapons
> Act -- on several of Kurtz's colleagues and a company that publishes
> Then, in July 2004, after health authorities declared Kurtz's bacteria
> to be
> harmless, and once it became clear that his lab equipment was to be
> used for
> art, not bioterrorism, the grand jury produced indictments only for
> mail and
> wire fraud.
> A year later, Ed Cardoni of Hallwalls Contemporary Arts Center in
> Buffalo and a
> friend of Kurtz's, told me the prosecution still has no case. "They're
> sifting through a lot of chaff, trying to find a few kernels of wheat
> in it."
> Why is this case in federal court?
> A dispute involving $256 worth of merchandise would seem to be more at
> home in
> Judge Judy's courtroom than in a high-profile federal prosecution.
> Indeed, the
> United States Attorney's Manual published by the Department of Justice
> to discourage prosecutors from bringing such a case to the federal
> The manual states, "Prosecutions of fraud ordinarily should not be
> undertaken if
> the scheme employed consists of some isolated transactions between
> involving minor loss to the victims, in which case the parties should
> be left
> to settle their differences by civil or criminal litigation in the
> It goes on to describe the sort of case that federal authorities
> should pursue:
> "A scheme which in its nature is directed to defrauding a class of
> persons, or
> the general public, with a substantial pattern of conduct." The
> case does not appear to meet any of those criteria.
> A mail or wire fraud conviction can result in up to 20 years
> imprisonment. But
> this case does not appear to have any of the characteristics -- large
> of victims, large sums of money, physical endangerment, etc. -- that
> the U.S.
> Sentencing Commission applies when weighing the seriousness of a fraud
> When I asked Hochul about the U.S. Attorney's Manual guidelines, he
> his office's actions this way: "All of our practice is guided by
> our supervisors, and levels of review. I can't answer more
> Buffalo attorney James Harrington, who is not representing Kurtz or
> Ferrell but
> has squared off against Hochul in the past, thinks that in a case like
> guidelines are not the determining factor.
> "There's no way of knowing whether it's Bill Hochul or the U.S.
> Attorney in
> Buffalo or their superiors in Washington making the decisions. But
> this has
> gotten a lot of publicity, and, generally, the more publicity a case
> the higher in the food chain it goes before decisions are made."
> Is a sneeze-guard all you need?
> Members of Kurtz's defense team fear that once Hochul is in front of a
> jury, he
> will try to make the government's case seem more substantial by
> the hazard posed by the bacterial cultures Kurtz obtained from
> Ferrell. If
> that's his plan, Hochul isn't talking. He emphasized to me that Kurtz
> Ferrell, "were never prosecuted for anything but fraud. ... Read the
> So I did, and he's right. But I noticed something interesting.
> Throughout the
> first one-third of the document, in which ATCC and University of
> policies are described, the neutral terms "biological materials" or
> are used. However, once the indictment turns to the actions of Kurtz
> Ferrell, all 11 references to the bacteria they purchased from ATCC --
> species called Bacillus atrophaeus and Serratia marcescens -- employ
> the term
> "biological agent."
> Of course, "biological agent," defined as "a cultivated micro-organism
> cause damage to biological material" has become firmly associated in
> the public
> mind in the past few years with weapons of mass destruction.
> But B. atrophaeus is non-pathogenic, and S. marcescens, as we will
> see, does not
> cause disease except under special conditions. And, as Hochul has
> admitted in
> court, no laws or regulations govern possession or use of either
> S. marcescens has drawn the greater interest because it is implicated
> in at
> least 1% of serious infections that occur in hospitals, where large
> numbers of
> immunologically vulnerable people undergo injections and invasive
> surgery. At
> the same time, it has been declared "safe for health and the
> environment" when
> used in student science projects.
> Jonathan Ewbank, a Group Leader at the Centre d'Immunologie de
> in France, routinely uses S. marcescens in his research. I asked him to
> evaluate the risk that the species would pose to healthy museum-goers
> if used
> with care in an art exhibit, assuming a hazard scale on which water
> would be
> rated at 0 and weaponized anthrax at 1,000. His answer: "I'd rate it a
> According to Ewbank, "A healthy person can eat or drink something
> with S. marcescens, and nothing will happen. You can inject very large
> quantities into healthy mice without seeing any symptom worse than a
> "However, it is important to be aware that for immunocompromised
> Serratia can be a very nasty bug, and that it can cause eye infections
> even in
> healthy people."
> Ewbank considers the use of S. marcescens in art to be "a rather silly
> idea, but
> nothing close to bioterrorism." If minimal precautions are taken --
> for example,
> by keeping the cultures behind salad-bar-style Plexiglas screens -- he
> would not
> be concerned.
> Bill Picking, Associate Professor of Molecular Biosciences at the
> University of
> Kansas, is more cautious. Even though S. marcescens is considered a
> Level One organism (that is, it does not necessitate the use of special
> containment equipment), Picking told me his laboratory handles all
> even those generally considered harmless, under Biosafety Level 2 or
> While acknowledging that if cultures were displayed, say, in covered
> dishes, "the public would be safe," he prefers to err on the side of
> He believes that using S. marcescens in works of art "is not a good
> idea." But
> Ewbank told me that to put things in perspective, we should remember
> Mary Kelly, who caused a stir in the 1970s with a piece called Post
> Document, Part I (Analysed faecal stains and feeding charts) that
> soiled diapers.
> He noted, "These represented about as much of a health hazard as would
> artwork with Serratia, and probably less of a risk than walking in a
> park full
> of dog feces, or spending an afternoon in a baby's daycare or a
> waiting room in winter."
> What's really dangerous
> CAE artists may have drawn unwelcome attention by doing some of their
> well-known work in the controversial area of biotechnology. For
> example, the
> group's projects in nonviolent Contestational Biology are designed to
> the new capitalist colonial campaign in the organic realm," according
> to their
> Ed Cardoni pointed to what he sees as the government's political
> motives: "The
> FBI confiscated all of Steve's files. I could be wrong, but I think
> that as
> they looked at the writings of CAE, they saw radical ideas they didn't
> The CAE artists' only threat is their ideas."
> Hochul insisted, however, that "this case has nothing to do with art.
> The only
> question is, did they acquire property illegally?"
> If that's the only question today, things seemed to have been
> different in the
> spring and summer of 2004. Back then, federal authorities were
> what appeared to be quite a deep interest in artistic matters. In
> asking a
> judge for a warrant to search Kurtz's home and office, prosecutors
> described a
> photograph accompanied by Arabic writing that had been seen in Kurtz's
> They failed to mention that the illustration was part of a fictional
> work by
> artists of The Atlas Group, examining the violence that wracked
> Lebanon in the
> 1970s and '80s.
> The photo was featured on an invitation to a show entitled "The
> Interventionists: Art in the Social Sphere" at the Massachusetts
> Museum of
> Contemporary Art. That show incorporated provocative work by 29
> artists and
> collectives, including the Atlas Group and CAE. (CAE's group effort,
> "Free Range Grains" ended up as a near-empty space at the show,
> because the FBI
> had confiscated key elements of it from Kurtz's house.)
> Kurtz and colleagues believe the FBI was present at the show. Agents
> got at
> least as far as the Holiday Inn in North Adams, Mass., where the
> museum is
> located -- in order to serve subpoenas on two other artists involved
> in the
> "Free Range Grains" project. One of them, Beatriz da Costa, told me she
> believes that the FBI continues to visit CAE shows.
> Claire Pentecost, an associate professor at the Art Institute of
> Chicago, has
> worked with CAE on two projects. She said that artists who
> participated in "The
> Interventionists" draw suspicion because they're "asking the real
> Who's controlling technology, how is it being applied, who has
> benefited so
> Kurtz himself is convinced he and Ferrell are being prosecuted for
> political and
> economic reasons. He asked me to join him in a thought experiment:
> "Suppose we
> were using living organisms just to make something pretty, that we
> were making
> biotech seem safe and fun. Would we be prosecuted? No way! They'd love
> He sees two main motives for the government's actions: "First, they
> want to show
> that they can turn what should be civil cases into crimes. They think,
> 'This is
> the best way ever that we can get more power.'
> "Second, they are creating an internal enemy. They aren't satisfied
> with Middle
> Easterners and undocumented immigrants. They want to really scare
> people by
> saying, 'Even that nice white art teacher next door could be
> dangerous. You
> must look to your leaders. Only we can make you safe.'"
> Anything for a conviction?
> James Harrington believes that intimidation of artists is probably a
> of the government's actions, not its ultimate goal: "To justify what
> they do,
> they need to get a statistic, get a conviction. Subtly raising the
> subject of
> bacterial cultures can serve that purpose -- it's not too hard to
> scare the
> public these days."
> He added, "Bill Hochul is a very able prosecutor who can be very
> Harrington speaks from experience, having helped defend the Lackawanna
> Six in
> another highly publicized case prosecuted by Hochul. That group of
> young men
> from a Buffalo suburb ventured to Afghanistan in 2001 (which was legal
> to do at
> the time they went, before 9/11). Once they met jihadists up close,
> they decided
> to hightail it back to Lackawanna. After 9/11, they were arrested and
> guilty to supporting terrorism.
> John Curr, Assistant Director of the New York Civil Liberty Union's
> Regional Office sat through those hearings. "We believe they pled
> guilty only
> when they were threatened with being shipped off to Guantanamo and
> spending their lives in prison. Now you have a boy spending 10 years
> in prison
> for buying a $20 surplus uniform -- which he never wore. Hochul's
> office called
> that 'material support' for terrorism."
> The conviction was hailed by the Justice Department as a major victory
> in the
> "war on terror," and the hapless band was promoted to the status of a
> "al Qaida cell" by President Bush in his 2003 State of the Union
> Ed Cardoni claims that the Buffalo FBI office was "beefed up"
> during the Lackawanna investigation, and that when they found bacterial
> cultures in Kurtz's house, the Justice Department smelled another
> triumph. "They were ready to pounce," he said.
> No winners, plenty of losers
> In a practical sense, it may not matter if we never discover the
> motive behind
> the Kurtz-Ferrell prosecution. Whether the Justice Department is
> trying to
> clamp a lid on political art or looking to chalk up a win by
> exploiting jurors'
> microbe-phobia, or, as Hochul maintains, simply "taking the law as we
> find it,"
> there are likely to be lots of losers and no winners.
> Whereas the prosecutors in Buffalo's Terrorism Division may have once
> seen the
> Kurtz prosecution as a potential PR windfall, they now find themselves
> down under a continuing barrage of bad publicity, with little prospect
> of a
> graceful way out.
> Meanwhile, Steve Kurtz says his ordeal "has definitely scared people.
> And I
> think it has scared scientists more than artists."
> Claire Pentecost worries about small museums and galleries. "They'll be
> reluctant to sponsor experimental shows. They don't have a lot of
> and will fear being shut down."
> Even so, says Kurtz, "We're going full speed ahead, even though we
> can't get as
> much work done these days. A lot of our time goes to fighting the
> case. I'm
> required to ask for permission to purchase any 'organic materials'
> other than
> food! And we can't work on our books, because the prosecutors still
> have all of
> our research materials. But we're not going to shut up or give up."
> Whatever the future holds, Kurtz intends to honor the words of his
> wife Hope,
> whose sudden and tragic death attracted the attention of federal
> and plunged him into this ordeal. "In her last couple of years, angry
> at the
> way this country is heading, my wife kept telling me, 'We'll never
> Never.' She was right -- you've got to be willing to go to jail."
> A decision on a defense motion to dismiss the Kurtz-Ferrell case is
> pending. You
> can keep up with developments at www.caedefensefund.org.
> Stan Cox is a plant breeder and writer in Salina, Kansas.
> # distributed via <nettime>: no commercial use without permission
> # <nettime> is a moderated mailing list for net criticism,
> # collaborative text filtering and cultural politics of the nets
> # more info: [log in to unmask] and "info nettime-l" in the msg
> # archive: http://www.nettime.org contact: [log in to unmask]