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 Kurtzs 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 Kurtzs 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 Bibles 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 Buffalos local news station, WKBW, of Kurtzs art the morning after his house was searched, and maybe not something everybody can relate to.
Beatriz Da Costa, Kurtzs close friend and now spokesperson, claims that authorities quickly concluded that the bacteria found in Kurtzs 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 hed acquired the bacteria, she says. All of its 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 didnt get it. I dont think they get the irony of the art at all. At this point they just think hes part of a cult.
Paul Moskal, a special agent with the FBI in Buffalo, wont comment on Kurtzs work: We dont know anything about an art project, he says. Thats not something that concerns the FBI nor should it. (And, As a matter of fact, he adds, Mr. Kurtz teaches where Im an alumni. It makes no difference.) He will confirm, however, that his agency searched Kurtzs house for about 36 hours or a little bit longer, between May 12 and May 14. He claims no knowledge of the investigations 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 Kurtzs 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 Kurtzs 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 youre going to do something illegal, he told the San Diego Union Tribune in a 2001 interview, all youve 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. Attorneys 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 didnt think the investigation was closed, but we thought it would be in a matter of days.
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Kurtzs lawyer, Paul Cambria, was surprised, too. Its hard to believe theyre 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 theyre trying to justify the attention theyve 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 didnt 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 Mayfields 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 Kurtzs legal defense claims the USA-PATRIOT Act was used against Kurtz, too. Moskal wouldnt 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 dont know what the basis for that is, says Moskal. No one needed the PATRIOT Act to search Kurtzs 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. Thats something they might not have done before.
Moskal worries that Kurtzs friends are making other spurious claims in the press release, but he cant say he objects to the attention. Its kind of fun for me, he says. In the past three or four days, Ive gotten 10 calls from the national outlets for a case thats a couple of weeks old, and some of them are well, just really fun.
As for Kurtz, Hes miserable, says Da Costa. He lost his wife two weeks ago. That should have been enough for him to be dealing with.