ANNALS OF OVERREACH Making a federal case out of political art BY ALEXANDER PROVAN

The US government accuses somebody of committing acts related to terrorism or possessing agents for use in acts of terror. Intelligence officials provide the requisite information, and the government acts, disabling the accused by destruction or detention. Later, scant evidence — if any at all — is found to support the government’s case, leading officials to backtrack while nonetheless suggesting that some crime may have been committed. The innocent may still be found guilty.

What does this sound like? The case of Wen Ho Lee, the nuclear scientist accused of spying? Brandon Mayfield, an Oregon lawyer who had converted to Islam and was mistakenly detained for two weeks as part of the Madrid bombing investigation because of faulty fingerprint identification? The missing WMDs in Iraq?

This time the accused is Steven Kurtz, an artist and University of Buffalo professor. Detained briefly in mid-May, he until recently remained under investigation on charges of unlawfully possessing a biological agent without, as stated in the Patriot Act a "prophylactic, protective, bona fide research, or other peaceful purpose." On June 29, a grand jury in Buffalo indicted Kurtz on a charge of what his lawyer, Paul Cambria, calls embellished "petty larceny" — four charges of wire and mail fraud that each carry maximum prison terms of 20 years. Prosecutors had originally pursued charges related to bio-terrorism.

Kurtz’s ordeal began in a phantasmagoric fashion when his wife died unexpectedly of cardiac arrest on May 11. He immediately called 911. One of the responding paramedics noticed Kurtz’s laboratory, artwork, and several books on biological agents. The Joint Task Force on Terrorism was contacted, and within hours, FBI agents swarmed Kurtz’s house, confiscating his computers, books, and laboratory equipment before sequestering the building and his wife’s body for two days. Despite the seemingly suspicious materials that triggered the investigation, there was another explanation: Kurtz is a member of the Critical Art Ensemble (CAE), a collective that makes art about the politics of biotechnology.

According to Kurtz’s spokesman, Gregg Bordowitz (Kurtz has been advised not to speak about the case), Kurtz possessed E.coli and two other biological agents. Each is unregulated and widely available to the public. Kurtz was using them for a couple of projects, one having to do with assessing the actual threat of bio-terrorism, and the other with testing genetically engineered food. The Eerie County Health Commissioner eventually cleared the house and its contents, allowing Kurtz to return.

Paul Moskal, a Buffalo FBI agent assigned to the case, asserts that the legality of the contents in Kurtz’s house remain up in the air. The office of Michael Battle, US attorney in charge of the case, declined to comment.

In the end, Kurtz and Robert Ferrell, head of the department of genetics at the University of Pittsburgh’s School of Public Health, were indicted on charges of illegally helping Kurtz obtain $256 worth of bacteria. It’s a far cry from bio-terrorism, though Cambria argues that to pursue such a minor case at the federal level is still absurd. Prosecutors face the task of proving Kurtz obtained the bacteria with criminal intent. Yet despite support in the form of demonstrations — in Buffalo and elsewhere — and expressions from artists, writers, scientists and even the esteemed Nature magazine, the CAE, in Bordowitz’s words, is effectively "already dead."

Steve Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union, says that nothing like Kurtz’s ordeal has happened here. "My guess would be that colleagues of Kurtz and others who know of his work are to some extent chilled," Brown says, "by seeing what has happened to him." While declining to speculate on the FBI’s motivation in targeting a radical group of artists, Brown acknowledged that the investigation has worked as a scare tactic, irrespective of whether Kurtz faced indictment on the original charges. "The damage has already been done by the convening of a grand jury," Brown says, and because the biological agents in Kurtz’s possession were benign, "the fact that the government is going after him nonetheless is very troubling."