Caught in the (Patriot) Act
- Michelle Gonzalez Valdez -
Science is nothing but perception.
-Plato
Art is dangerous. It is one of the attractions: when it ceases to be dangerous, you don't want it.
-Anthony Burgess
Artists often strive to uncover the dichotomies of reality, and the Bush administrations War on Terror certainly proves a worthy target, but at what cost? Real-world eventsepisodes of anthrax infecting the U.S. Postal Service, studies of sarin gas in the subways and, most recently, carcinogenic dioxins on the Ukrainian campaign trailcontinue to feed the avid appetite for fear in this post-9/11 world. Such incidents leave little legal leeway for those caught on the wrong side of terror-related legislation, artists included. In America today, where the climate of resistance percolates with tenuous nerves, it seems federal agencies are ill equipped in their attempt to devour the curious concoction of art as the solute when science is the solvent.
Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or Patriot Act, on October 26, 2001. The Patriot Act quickly became the bane of civil liberty enthusiasts, many of whom predicted several legal debacles currently at hand. According to a 2004 progress report from the U.S. Department of Justice, 310 defendants have been charged with criminal offenses as a result of terrorism investigations since the attacks of September 11, 2001, and 179 of those defendants have already been convicted. While the majority of cases highlighted in the report targeted actual acts of terrorism, many cases remain classified or focused on conspiracy. Actual charges range from kidnapping and child pornography to money laundering and bomb threats.
One pending Patriot Act case concerns Dr. Steven Kurtz, Associate Professor of Art at State University of New Yorks University at Buffalo. Kurtz, a longtime member of the art collective Critical Art Ensemble (CAE), currently faces a grand jury indictment for his use of biological specimens outside a laboratory context. Kurtz troubles started in May when he awoke to a Winston Smith/1984-like state of surrealism. Hope, his wife of over twenty years, was not breathing. Kurtz immediately called EMS. When paramedics arrived, they could do nothinghis wife was already deadbut they did notice a strange array of laboratory equipment in the home: elements of a mobile DNA extraction lab used in the ongoing CAE project Free Range Grains.
EMS personnel contacted the FBI, who responded promptly. The Joint Terrorism Task Force conducted a search and seizure of Kurtz home and office, confiscating any and all questionable items. Said items included Kurtz hard drive, books, written documents, a pet catand, initially, his wifes body. FBI agents detained Kurtz for twenty-two hours and impounded his car for a week. The car and cat were returned after his wifes death was determined to be heart failure and therefore unrelated to the two strains of bacterial agents found in the homeSerratia marcescens and Bacillus atrophaeusboth of which are innocuous. The former may be purchased online (the sale of which is restricted to teachers or people affiliated with an educational institution) for $7.45 per sample; it is often used in high school science projects. The latter specimen, Bacillus atrophaeus, is used in laboratory tests to simulate dangerous organisms like Bacillus anthracis (anthrax). The CAE used these agents to perform DNA extractions as part of their interactive work in progress entitled Free Range Grainsa commentary on the governments pursuit of biological weapons and genetic tampering originally installed and performed at the Schirn Kunsthalle in Frankfurt in 2003. Kurtz ordered the specimens from the American Type Culture Collection (ATCC), a major provider of biological agents for colleges and universities.
Charges of bioterrorism were never filed against Kurtz or any of his colleagues, though such charges did appear on the original FBI subpoena. U.S. Attorney William Hochul and U.S. District Attorney Michael Battle, however, continue to make references to the dangerous biological materials found in Kurtz possession. Instead, the federal government charged him with four counts of mail and wire fraud, claiming he ordered said specimens without following proper University protocolspecifically, that he promised to use these samples only in a laboratory setting and was therefore being dishonest or fraudulent when he brought the samples home and/or ordered them through the mail.
If convicted, each charge carries a maximum penalty of up to twenty years in federal prison. As a point of reference, according to the National Center for Policy Analysis (NCPA), the median sentence for a convicted murder in Texas is 12.8 years and the median sentence for charges of larceny and/or theft is 26.5 months. The charges Kurtz currently faces hold a possible cumulative penalty of 80 years in federal prison.
Kurtz lawyer Paul Cambria equates the charges to petty larceny, legally defined as obtaining property through fraud or deceit. The same charges have been brought against one of Kurtz colleagues, Dr. Robert Ferrell, a professor of genetics at the University of Pittsburgh. At press time, Ferrells arraignment had been postponed due to health reasons, and Kurtz hearing was postponed till late February. Seven other people were subpoenaed by the grand jury last summer, two of whom are also associated with CAEartists Beatriz da Costa and Steve Barnes.
Kurtz is unavailable for comment, since his case is still pending. As a criminal defendant, he must submit to periodic drug tests as well as scheduled and surprise visits from a probation officer. He is also prohibited from traveling.
Certainly, the Orwellian implications of the Kurtz case are not lost on anyone, least of all the contemporary art community. It does, however, bring into question the practices of parody, including the Critical Art Ensembles version of fuzzy sabotage, which currently have the Joint Terrorism Task Force and the FBI paying personal visits to The Station Museum in Houston and confiscating cats in New York. After Made In Palestine opened at The Station in May 2003, a patron apparently placed a call to the FBI to complain about the exhibits content. The fact that agents actually responded summons paranoid McCarthy-era policies, when hearsay was enough to merit suspicion and the subsequent harassment of artists, writers, academics and filmmakers.
Critical Art Ensemble (CAE), Beatriz da Costa and Shyh-shiun Shyu, Free Range Grain, Technical Media Project, 20002004
Most recently installed in conjunction with The Interventionists: Art in the Social Sphere, Massachusetts, Museum of Contemporary Art, 2004
In the unicorn and rainbow days of the late nineties, the legal consequences for creating controversial artwork seemed all but nonexistent. In 1999, San Francisco-based artist and computer scientist Dr. Eric Paulos exhibited a virulent vending machine called Dispersion, Your easy one stop choice for personal lethal biological pathogens at Ars Electronica in Austria. The machine purported to collect participants fingerprints and, after asking a series of questions, create for them a customized pathogen. Participants received a small plastic test tube full of the deadly spores of their choice. The actual content of the capsules has never been disclosed and Paulos quietly walked away without any legal hassles.
South African artist Kendell Geers also managed to get away with quite a bit of questionable practice in the years preceding 9/11. Once labeled an art fraud by his constituents, Geers turned his career around through a long list of criminal mischief cloaked by artistic license. Hes chucked bricks through gallery windows, busted up his own opening with a bogus bomb threat and imploded a museum wallall in the name of art. Still, on a continent where genocide and civil war percolate throughout quotidian events, Geers ludic antics continue to slake and instigate critics and crowds alike. But it is safe to say he wont be phoning in a bomb threat anytime soonat least not stateside.
Here at home and post 9/11, our three-letter-word agenciesthe FBI, CIA, NSA, DEA, ATFand the three-year-old DHS (Department of Homeland Security) frown upon the mere ideology of dissent, let alone the CAEs brand of creative chemistry, mock bioterrorism la Eric Paulos or Kendell Geers brand of not-so-civil disobedience. So where do artistic liberties now end and criminal statutes begin? On their own work, the CAE is most eloquent:
We do not want to make it easy for capitalist spectacle to label resisters as saboteurs, or worse, as eco-terrorists. These terms are used very often and generously by authority and tend to have the profound effect of producing negative public opinion, which in turn allows state police and corporate posses to react as violently as they desire while still appearing legitimate and just. Escaping these labels completely seems nearly impossible; however, we can at least reduce the intensity and scope of these forms of labeling, and hopefully escape the terrorist label altogether. In any real sense, the association with terrorism is completely unwarranted, since it is not possible to terrorize plants, insects, and single-celled organisms.
excerpt from CAEs Contestational Biology for the exhibition Molecular Invasion at the Corcoran Gallery in Washington, D.C., 2002.
The CAE is not the only group of contemporary artists under scrutiny by the authorities, but personal misfortune certainly seems to play a role in attracting their attention. In January 2004, robotic and pyrotechnic artist Chris Hackett suffered massive injuries when a confetti gun he was working on detonated in his face. Hackett is the founder of the Madagascar Institute, a performative collective mirrored after Mark Paulines Survival Research Labs (who by their very nature have always been plagued by legal woes) and Kal Spelletichs SEEMEN Robotics Collective, both based in San Francisco. Hackett sustained a broken jaw, multiple facial fractures and substantial burns over much of his body. Shortly after he was injured, the New York Police Departments Counter-Terrorism Unit confiscated his personal computers and other personal/professional materials including a collection of maps of NYC. Formal charges have not been filed, but authorities are in no hurrynor do they need to be. Under the Patriot Act, they are under no obligation to file formal charges within any preset time, nor are they obligated to return the artists personal possessions.
Cases like CAE and the Madagascar Institute might seem isolated, but watchdogs of civil liberties find such things rather disturbing. Jim Cornehls, Director of the Law and Public Policy Graduate Certificate Program at The University of Texas at Arlington claims civil liberties are rarely recovered once theyve been rescinded. He says that one governmental procedure becomes clandestine, it is difficult to gauge the success of laws like the Patriot Act.
One of the principal reasons we dont have hard evidence on the successes or failures of counter-terrorist intelligence activities in the U.S. is because they all are shrouded in secrecy. This administration is the most secretive in modern American history. We now have secret courts, secret investigations, secret subpoenas, secret arrests, secret incarcerations, secret deportations, and on and on. This is the antithesis of an open, Democratic society.
Online Interview
While Cornehls might be outraged by cases like Kurtz and Hacketts, proponents of the Patriot Act are quick to cite more palatable cases of the Patriot Act in actionlike successfully thwarted child pornography ringsand equally fast at pointing out the legislations increased ability to connect the dots when it comes to intelligence gathering. Amaury Gallais, a University of California Berkeley junior and Managing Editor of the conservative collegiate magazine California Patriot, maintains that cases like the Critical Art Ensembles have nothing to do with art or the limitations of artistic practice under the law.
In no way does the Patriot Act single out artists as specific targets in the war on terror. The case of Steve Kurtz has nothing to do with the fact that he was an artist. It is clear that he obtained dangerous bacteria without proper authorization and lied about the way he was going to use them. What is clear is that he showed utter contempt for specific rules regarding a product that could potential [sic] unleash a deadly epidemic, stated Gallais in an online interview.
The young Berkley College Republican activist implies that the intent of the artist was unquestionably devious from the get-go and therefore federally offensive. Professor Cornehls says the case against Kurtz bodes ill for the hushed voices of dissent.
The suppression of art and artists is one of the earliest manifestations of a slide towards totalitarianism...this is dangerous in a Democratic society. Artists always are [sic] regarded with suspicion in certain circles because so many artists are free thinkers and have associated themselves historically with left-radical thought and politics, said Cornehls in a recent online interview.
Subversive art often penetrates thin skin. That is its purpose. But the case of the art professor and his spores could set a legal precedent for anyone intent upon merging art and science to create an aesthetic polemic. Perhaps the next Culture War will be fought in something resembling a fusion of the halls of Orwells Ministry of Love and Steve Kurtz apartmenta place where thought crimes manifest themselves in tiny, suspicious vials and tragedy, (call it an act of terror, heart failure or hapless accident), and become an excuse to nullify basic civil liberties with impunity.