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The strange case of Steve Kurtz: Critical Art Ensemble and the price of freedom
Afterimage, May-June, 2005 by Robert Hirsch
On the morning of May 11, 2004 Steve Kurtz, an Associate Professor of Art at the University at Buffalo (UB) and cofounder of Critical Art Ensemble (CAE), awoke in his Buffalo, New York home to discover that Hope Kurtz, his wife of 27 years and one of the original members of CAE, was not breathing. Kurtz called 911, but upon arrival the emergency medical team was not able to revive her. Because Hope's death was unexpected and she was under 50 years old the Buffalo police came to investigate. They found a table with scientific equipment in plain sight and fearing terrorism, notified the Federal Bureau of Investigation (FBI). The following day, as Kurtz was leaving home to make funeral arrangements, FBI agents arrived and detained him for extended questioning.
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Kurtz's longtime friend and collaborator, Claire Pentecost, an artist, writer and associate professor at the School of the Art Institute of Chicago, arrived in Buffalo shortly thereafter to support Kurtz. Pentecost provides the following account of what happened:
After a couple of hours of questioning, the very courteous FBI agents told Steve he could do whatever he needed to do but they were going to accompany him, so I was picked up at the airport by two FBI agents who were driving Steve around to do his errands. We were cooperative because we were both stunned by Hope's death, and we figured we had nothing to hide. Our detention lasted until the afternoon of the next day, or until finally, by way of our cell phones, we were able to get in touch with a lawyer who immediately told us that our detention was not legal and we should walk away. At this moment the FBI also informed us that we were, of course, free to go, but not to go home, because the FBI, working with Homeland Security, the Joint Task Force on Terrorism, the ATF [Bureau of Alcohol, Tobacco and Firearms], Immigration and Customs Enforcement and the Niagara County Sheriff's office, closed Steve's street with police cars, fire engines and medical emergency personnel while they sent a team of agents in hazmat suits in to search the house for biohazards.
Five days later Kurtz was able to return to his home, it having been determined that nothing there was dangerous or illegal. Nevertheless, the FBI had confiscated his scientific equipment; his computers; his notes; a shelf of books on science, epidemiology and the history of biowarfare; his passport; other personal documents and Hope's body (after two autopsies, it was determined that she had died of natural causes heart failure).
Two weeks later, other CAE members and collaborators began receiving subpoenas to appear before a grand jury investigating Kurtz for charges related to The Biological Weapons Statute (H.R. 3162) which had been expanded by the USA PATRIOT Act, or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. In the name of defense against terrorism, this set of laws greatly expands the powers of the executive branch of the federal government to obtain information on citizens without notifying them. It authorizes the indefinite detention of aliens for nothing more than a visa violation and allows the FBI to obtain an individual's or business' financial, educational, library usage, retail purchase and medical records without a warrant [author's emphasis].
The section that appeared to be applicable to the CAE case prohibits possession of a biological agent for any purposes except "prophylactic, protective bona fide research toward educational or other peaceful purposes." The Justice Department apparently thought the equipment and research materials they confiscated from an artist were being used for something other than "research or educational purposes, something terroristic," as the new anti-terrorism laws read.
This extensive investigation resulted in both Kurtz and Dr. Bob Ferrell, a collaborator and science advisor to CAE and professor of Genetics at the University of Pittsburgh, being indicted for mail and wire fraud for obtaining a strain of bacteria commonly used in high school lab experiments and not considered physically dangerous. CAE had planned to use the bacteria in a project critiquing United States involvement in germ warfare. Normally those charged with mail and wire fraud have been accused of defrauding others of money or property in telemarketing schemes.
In an 81-page legal counterattack filed on January 21, 2005, defense lawyers asked Federal District Court Judge John T. Elfvin to dismiss fraud charges against Kurtz, accusing prosecutors and federal agents of wrongly charging Kurtz, illegally questioning him and illegally searching his home after his wife's death. Paul J. Cambria, lead attorney for Kurtz said, "We moved to have the case dismissed because, clearly, this is a real stretch by the government. There are all kinds of problems with the case, including the search of his home and the statements they took from him."
