Germs for Art’s Sake 

What does the FBI want with Steven Kurtz?

Thursday, Jun 3 2004

The day started out badly enough for Steven Kurtz when he woke to find his 45-year-old wife and longtime collaborator, Hope, had died in her sleep. But when the Buffalo, New York, police arrived at the scene, it got incalculably worse: Perplexed by Kurtz’s collection of DNA-extraction equipment, petri dishes and bacteria samples, officers alerted the FBI. By afternoon, the Joint Terrorism Task Force (JTTF) had been called in to investigate, as was the Erie County Health Department, which closed down the block around Kurtz’s Allentown home, and Kurtz himself was detained by the Buffalo police.

Kurtz, an associate art professor at the State University of New York at Buffalo, is a member of the Critical Art Ensemble, a collective of activist artists who investigate new technologies and their effect on everyday life. In the past 17 years, CAE has staged work to raise public awareness of everything from inadequacies in the health-care system to genetically modified food; in one project, “Cult of the New Eve,” the collective replaced the Bible’s creation stories with scientifically accurate narratives; in another, members donned lab coats to play bioengineers releasing harmless bacteria into the audience. “It is weird stuff,” opined Buffalo’s local news station, WKBW, of Kurtz’s art the morning after his house was searched, “and maybe not something everybody can relate to.”

Beatriz Da Costa, Kurtz’s close friend and now spokesperson, claims that authorities quickly concluded that the bacteria found in Kurtz’s home, which included an innocuous strain of E. coli and several common intestinal flora, were inert. “Steve even had the paperwork to show them how he’d acquired the bacteria,” she says. “All of it’s perfectly legal to obtain; anyone can get it.” A CAE member and an associate professor in the Department of Engineering at the University of California at Irvine, Da Costa explained that the bacteria and lab equipment were part of a new CAE project called “Free Range Grains,” in which members would perform tests onstage to determine whether certain food had been contaminated by transgenic contamination. She suspects the FBI didn’t get it. “I don’t think they get the irony of the art at all. At this point they just think he’s part of a cult.”

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Paul Moskal, a special agent with the FBI in Buffalo, won’t comment on Kurtz’s work: “We don’t know anything about an art project,” he says. “That’s not something that concerns the FBI nor should it.” (And, “As a matter of fact,” he adds, “Mr. Kurtz teaches where I’m an alumni. It makes no difference.”) He will confirm, however, that his agency searched Kurtz’s house “for about 36 hours or a little bit longer,” between May 12 and May 14. He claims no knowledge of the investigation’s results or the contents of the house, which were turned over to the health department and the Buffalo HazMat team, according to Moskal.

On May 17, the Erie County Department of Health cleared Kurtz’s home for habitation, confirming that Hope Kurtz had died of cardiac arrest and that no illegal substances were found in the residence. Kurtz, who had earlier been released after 22 hours in detention, was allowed to go home, drive his car and feed his cat, which, according to Da Costa, had been locked up without food and water for at least 24 hours. (“The cat was fine,” she reassured me, “but traumatized, like all of us.”)


Last week, it seemed that Kurtz’s story would end there: a difficult ordeal for Kurtz; an expensive investigation for the FBI, which could have resolved the mystery with a few lab tests and perhaps some knowledge of Kurtz, who has gone on record in the past condemning lawbreaking in the name of art. (“If you’re going to do something illegal,” he told the San Diego Union Tribune in a 2001 interview, “all you’ve done is put more cops on the street and put more people under surveillance — for nothing.”) Last Sunday morning, however, Da Costa and her CAE colleague Steve Barnes were stopped on their way to a gallery opening in North Adams, Massachusetts, and served subpoenas by the U.S. Attorney’s Office demanding they appear before a federal grand jury on June 15. The document makes no mention of Kurtz, but it does allude to possible violations of Chapter 10, Title 18, Section 175, of the U.S. Code, which states that “whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery system for use as a weapon or knowingly assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both.”

“We were shocked,” says Da Costa. “We didn’t think the investigation was closed, but we thought it would be in a matter of days.”

Kurtz’s lawyer, Paul Cambria, was surprised, too. “It’s hard to believe they’re calling witnesses before a grand jury in light of the fact that the county health commissioner released the house back to Kurtz and indicated there was no finding of anything that was a problem,” he says. “My gut tells me they’re trying to justify the attention they’ve directed toward Mr. Kurtz.” Cambria has advised Kurtz not to speak to the press until the case is resolved.

The FBI has already suffered an embarrassment within the last month when it detained Oregon lawyer Brandon Mayfield as a suspect in the Madrid train bombing based on a faulty fingerprint identification. (It apparently didn’t matter that Mayfield had not left the U.S. in at least 10 years; it did, however, matter that he had converted to Islam.) Authorities had searched Mayfield’s house twice without his consent, which authorities can do more readily under the terms of the USA-PATRIOT Act; a press release soliciting funds for Kurtz’s legal defense claims the USA-PATRIOT Act was used against Kurtz, too. Moskal wouldn’t comment on the Mayfield case, but he objects to the suggestion that the USA-PATRIOT Act had anything to do with the Kurtz investigation: “I don’t know what the basis for that is,” says Moskal. “No one needed the PATRIOT Act to search Kurtz’s home. We can do that with an ordinary criminal warrant.” He will allow, however, that “post-9/11 there is more awareness about potential biological hazards than there used to be. The reason the Joint Terrorism Task Force got called is because the first responders — in this case, the local police — saw some things that gave them pause for thought based on their expertise. That’s something they might not have done before.”

Moskal worries that Kurtz’s friends are making other “spurious claims” in the press release, but he can’t say he objects to the attention. “It’s kind of fun for me,” he says. “In the past three or four days, I’ve gotten 10 calls from the national outlets for a case that’s a couple of weeks old, and some of them are — well, just really fun.”

As for Kurtz, “He’s miserable,” says Da Costa. “He lost his wife two weeks ago. That should have been enough for him to be dealing with.”

Reach the writer at judith.lewis@laweekly.com

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