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Feds Won't Let Go of Case Accusing Artist of Bioterrorism

Pity artist Steve Kurtz, whose life has been turned upside down for a few petri dishes police found in his house which were going to be part of his latest installation.
 
 
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In May 2004 Steve Kurtz's life was turned upside down. Kurtz, a founding member of the award-winning collective Critical Art Ensemble, was a tenured art professor at SUNY, Buffalo. His work and that of the collective was of a kinetic conceptual sort, much of it aimed at informing audiences about the lack of regulation and potential risks of genetically modified (GM) food. Shortly before his show was to open at MASS MoCA, a museum in North Adams, Massachusetts, Kurtz's wife of twenty years died in her sleep. When police responded to his 911 call, they saw petri dishes in his home -- part of the scheduled installation -- filled with bacteria cultures. They called the FBI.

At that point, the nation was still reeling from the 2001 anthrax scares. Kurtz was detained (not arrested, not charged but held beyond the range of due process, under the USA Patriot Act) on suspicion of bioterrorism. Within days, FBI tests showed that there were no harmful biological agents in his house and that his wife had died of natural causes. But the case against Kurtz has not gone away.

Forced to drop charges of weapons manufacture, a federal prosecutor charged mail fraud against both Kurtz and Robert Ferrell, a professor of genetics at the University of Pittsburgh who sent Kurtz the uncontestedly harmless, legal, unregulated bacterial cultures used in his artwork. The "fraud" alleged is that they did not reveal, in a requisition form, the purpose of the mailing. Neither the University of Pittsburgh nor Buffalo has asserted fraud, and neither Ferrell nor Kurtz believed that there was anything fraudulent in their dealings. The allegation of fraud is made exclusively by the federal prosecutor -- a first as far as anyone knows.

Even assuming that there was a defrauded party, one wonders why any putative misrepresentation regarding paperwork isn't being handled as a civil rather than a criminal matter. But to give it the ultimate Kafkaesque twist, the charges against Kurtz and Ferrell have been pursued under the Patriot Act. This means that the sentence for otherwise ordinary crimes will be doubled. Since mail fraud carries a sentence of ten years, Kurtz and Ferrell each face a possible sentence of twenty years.

After all this time, the prosecution has yet to set a date for trial. For the record, I do not like commenting on cases before they are resolved in court. That said, the implications of Kurtz and Ferrell's continued prosecution are far-reaching enough to warrant comment. The dropped charges make it clear that this case has nothing to do with the threat of terrorism or Al Qaeda or violence. Yet Steve Kurtz, like Andy Warhol, works in a genre of art that inverts, performs and challenges the iconography of common understanding.

If Warhol made us re-examine the representational power of a Campbell's Soup can, Kurtz opens up the proverbial can and takes a good hard look at what's inside. His art is designed to label GM food, even though it is not marked for consumers except in the European Union. He illustrates the processes by which that food is engineered as much as grown, and how corporate control of that genetic modification challenges the notion of what we think of as farming.

Consider Monsanto Canada v. Schmeiser , the subject of one of Kurtz's exhibitions. Percy Schmeiser, former mayor of Bruno, Saskatchewan, is the owner of a family canola farm. In the early 1990s Monsanto patented a gene in a variety of canola resistant to common weed killers. With Monsanto's seed, one could spray weed poison over the face of the earth, and if everything else were obliterated, these plants would spring forth in the emptiness, bushy and green. Indeed, it was precisely the relentless liveliness of said canola plants that nudges the story forward. In 1997, some of Schmeiser's canola plants were found flourishing in areas that had been sprayed with an otherwise comprehensive weed killer. Yet Schmeiser Enterprises had never purchased Monsanto seed and was never party to Monsanto's licensing agreement, which required farmers to pay royalties on each replanting of any seeds with this particular immunity.

Farmer Schmeiser's plants were probably cross-pollinated by accident -- anything from the wind carrying the seed to a sack of seed dropped from a truck to plant roots from a neighboring farm migrating beyond the lawyerly dictates of property boundary. Nevertheless, in 2004 the Supreme Court of Canada held that it didn't matter how the seeds ended up on Schmeiser's farm: if he harvested and thereby profited from the weed-resistant canola plants on his land, Schmeiser could be found guilty of patent infringement. The case has raised questions: if genetically modified organisms cross-pollinate with other plants, do we all become sharecroppers eternally indebted to corporate seed gods? This question brings us back to Kurtz. If the stuff of life is corporatized, does art about it become a form of interference in business? Does education about GM food become a theft of trade secrets? And if Kurtz is not accused of bioterrorism, why are he and Ferrell still being prosecuted so aggressively for something as seemingly minor as failing to fill out a requisition form?

But there are other questions, particularly in academia, where Kurtz's case has caused a storm of apprehension: Kurtz is, after all, not the only professor or artist seen as trouble. Recently scholars from around the world have been barred from the United States for reasons stated and unstated, but all in the name of Homeland Security. They include a South African peace activist, a Canadian antipoverty worker, an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British musician, a Bolivian historian. And as other countries have adopted their own versions of Homeland Security, the tables are turning on our own: Medea Benjamin, founder of the exuberant antiwar group Code Pink, was denied entry to Canada because of her numerous arrests for peaceful acts of civil disobedience.

Anyway, I hereby attest to the above as based on my best knowledge and good faith. I plan to mail this to my mother. In case I've made a mistake, I'd hate to risk twenty years for mail fraud.

For more information about this case go to caedefensefund.org.

Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column "Diary of a Mad Law Professor."

 
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