Nettime — CAE — The $256 Question

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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
can’t 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
Ferrell, 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
obtaining bacterial cultures illegally through the mail.
Ferrell, a geneticist and professor at the University of Pittsburgh,
allegedly 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
Collection (ATCC).
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
setting 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 Anti-Terrorism Act — on several of Kurtz’s colleagues and a company
that publishes CAE’s books.
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
just 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 appears to discourage prosecutors from bringing such a case to the
federal courts. The manual states, “Prosecutions of fraud ordinarily should
not be undertaken if the scheme employed consists of some isolated
transactions between individuals, 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 state courts.”
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
Kurtz-Ferrell 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 numbers of
victims, large sums of money, physical endangerment, etc. — that the U.S.
Sentencing Commission applies when weighing the seriousness of a fraud
crime. When I asked Hochul about the U.S. Attorney’s Manual guidelines, he
explained his office’s actions this way: “All of our practice is guided by
guidelines, our supervisors, and levels of review. I can’t answer more
specifically.” 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 this, 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
receives, 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
exaggerating 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 and Ferrell, “were never prosecuted for anything but fraud. … Read
the indictment.”
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
Pittsburgh policies are described, the neutral terms “biological materials”
or “organisms” are used. However, once the indictment turns to the actions
of Kurtz and Ferrell, all 11 references to the bacteria they purchased from
ATCC — two species called Bacillus atrophaeus and Serratia marcescens —
employ the term “biological agent.”
Of course, “biological agent,” defined as “a cultivated micro-organism that
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 species.
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
Marseille-Luminy 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 5.” According to Ewbank, “A healthy person can eat or drink
something contaminated with S. marcescens, and nothing will happen. You can
inject very large quantities into healthy mice without seeing any symptom
worse than a mild fever.
“However, it is important to be aware that for immunocompromised people,
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
Biosafety Level One organism (that is, it does not necessitate the use of
special containment equipment), Picking told me his laboratory handles all
bacteria, even those generally considered harmless, under Biosafety Level 2
or higher.
While acknowledging that if cultures were displayed, say, in covered petri
dishes, “the public would be safe,” he prefers to err on the side of
caution. 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 artist Mary Kelly, who caused a stir in the 1970s with a piece
called Post Partum Document, Part I (Analysed faecal stains and feeding
charts) that included soiled diapers.
He noted, “These represented about as much of a health hazard as would an
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
doctor’s waiting room in winter.”
What’s really dangerous
CAE artists may have drawn unwelcome attention by doing some of their most
well-known work in the controversial area of biotechnology. For example, the
group’s projects in nonviolent Contestational Biology are designed to
“combat the new capitalist colonial campaign in the organic realm,”
according to their website.
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 like. 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
demonstrating 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 home. 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, called
“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
questions: Who’s controlling technology, how is it being applied, who has
benefited so far?”
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 that.”
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
byproduct 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
aggressive.” 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 pled guilty to supporting terrorism.
John Curr, Assistant Director of the New York Civil Liberty Union’s Western
Regional Office sat through those hearings. “We believe they pled guilty
only when they were threatened with being shipped off to Guantanamo and
maybe 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
broken “al Qaida cell” by President Bush in his 2003 State of the Union
address. Ed Cardoni claims that the Buffalo FBI office was “beefed up”
considerably during the Lackawanna investigation, and that when they found
bacterial cultures in Kurtz’s house, the Justice Department smelled another
high-profile 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 hunkered 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 resources, 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
authorities 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 surrender. Never.’ She was right — you’ve got to be willing to go to
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.