What follows is a document written by Claire Pentecost and dated September 2004. Pentecost is currently spokesperson for Steven Kurtz/Critical Art Ensemble. The document provides background information on the case, and an update on the pending trial.
Selections from “Trials of the Public Amateur”
Claire Pentecost September, 2004
Steve Kurtz, a founding member of CAE, woke up the morning of May 11 in his home in Buffalo New York, to realize that his wife of 25 years, Hope Kurtz, another founding member of CAE, was not breathing. He called the emergency medical team who were unable to revive her. Later it was determined that she had died of heart failure. Because this was an unexpected death of a relatively young woman, the local police came to investigate the scene. In the large hall outside the bedroom they noticed a table laden with scientific equipment in plain view. Like all police in the U.S. the Buffalo police have been trained to think ‘terrorism’ whenever they confront something difficult to explain. They searched the house for several hours and then notified the Federal Bureau of Investigation. The next day as Kurtz was leaving home to make funeral arrangements, three carloads of FBI agents pulled up in front of his house and detained him for extended questioning. As a longtime friend and collaborator eager to support Steve in this tragedy, I myself arrived in Buffalo to visit him not long after the FBI arrived at his house. 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 and the Joint Task Force on Terrorism, 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. So far, only Hope’s body has been returned.
Two weeks later, other CAE members and collaborators began receiving subpoenas to appear before a grand jury investigating Kurtz for charges related to the 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, which I will remind you, was signed into law just over a month after the terrorist attacks of September 11, 2001. 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, authorizes the indefinite detention of aliens for nothing more than a visa violation, allows the FBI to obtain an individual’s or business’ financial, educational, library usage, store purchase, and medical records without a warrant.
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.
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A good example of a CAE project, called “Free Range Grains,” includes a mobile DNA extraction laboratory for testing food products for the presence of genetically modified organisms. In public places like cultural centers or museums, CAE set up the lab to test common brand-name foods like corn flakes or corn chips. [test tubes, various vials of solutions, pipets for accurate measure, a centrifuge, a polymerase chain reaction machine, gel electrolysis plates, etc.—all for a two day process which is not that complex really but extremely exacting, like following a complicated recipe in which you have to get everything right.] Audiences could see the whole process, handle the materials, talk to the artists while they worked and learn about the issues surrounding genetically engineered food.
Why do artists need to assume the role of amateur and set up labs to perform scientific processes in public to get people talking about the implications of these processes in our everyday lives? For one thing, no one else is going to do it. There are lots of reasons why scientists themselves are not able to do this. In fact, I would maintain that it is precisely because of our status as non-scientists, as non-experts, not invested in careers in the field, it’s because of our status as amateurs, that artists are able to render important issues to a public through the public space accorded to art in our culture. This is because of what is happening in the sciences, an intense case of transformation of knowledge for the public good, into knowledge privatized and applied to profit for a few. This transformation is precisely the phenomenon that CAE and artists like them are trying to make public.
Take the biotech industry : a very little understood force transforming our lives with almost no public input. In the case of genetically modified agriculture, transgenic crops were approved by the U.S. Food and Drug Administration for commercial use in 1994 with no studies on the long term effects on human health or on the natural environment, no plan for tracking those effects, no liability for the corporations selling this technology, and no public debate. Slowly over the last decade, US consumers have become aware that all foods containing corn, soy or canola are genetically modified, unless they are labeled otherwise.
The new corn, soy, canola, and also cotton are engineered to resist herbicides that are sold by the same companies selling the seeds. The other marketed form of GMOs are engineered to contain a bacteria toxic to pests that feed on the crop.
When the industry states that there are no studies on these products indicating harm to human health, what they are saying is that there are _no_ studies – at all. The one bona fide independent study conducted did suggest damage to the intestines and other organs of rats. This study basically ended the 36-year career of Dr. Arpad Pusztai at the Rowett Research Institute in Scotland. Days after he spoke publicly of his findings in August 1998, Dr. Pusztai was removed from service, his research papers were seized, and his data confiscated; and he was prohibited from talking to anyone about his research work.
So the experiment we do have is the one we are all part of. We are the lab animals in an immense unregulated experiment. There are no labels for these ingredients. Most Americans either don’t know or don’t think about what they are eating. Free Range Grains, the CAE project in which common foods were tested for transgenes, is one in which we the lab rats are invited to understand more about the experiment in which we are taking part.
This equipment was confiscated by the FBI although field and laboratory tests have shown that it is impossible to use this equipment for the production or weaponization of dangerous germs. Any person in the US who can raise the money, about $9000, can legally obtain and possess such equipment.
The FBI did confiscate a few items owned by CAE on arguably illegal terms. These items are seeds, seeds of the type patented by Monsanto and sold under the brand name of RoundUp Ready because the herbicide they are engineered to resist is called RoundUp. Acquisition of these seeds requires the buyer to sign a contract agreeing not to give, share or sell the seeds to anyone, nor to save seeds from the crop to plant in the next season. I myself obtained these seeds from a friendly supplier in Wisconsin so that we could plant them in a museum and perform our own public experiments on them, to see if we had come up with a compound that would actually disarm the engineered trait, the resistance to the RoundUp herbicide.
When we planted the seeds in the museum, we were written by Monsanto’s lawyers telling us to cease and desist. We ignored the letter and they didn’t pursue it probably discouraged by all the bad publicity they have received thanks to years of activists’ work in many countries. As artists in a museum we had the publicity on our side. Hundreds of U.S. farmers who have been threatened by Monsanto for violating the patent agreement are not so lucky. Usually they settle out of court paying fines that no farmer can afford and signing gag statements, ensuring that they are not allowed to talk about the case publicly.
Expensive patented seeds, legally terrorized farmers, For what? Of all the traits that have been developed for the agricultural market so far, none are about better nutrition or better flavor or even increased crop yield. Claims that the transgenic products would reduce the use of pesticides and herbicides in the field (and incidental claims that they would produce higher yields) have proven to be false.
What the new technology is about is the privatization of ancient, collective technologies that have been developed by people for 1000s of years. It’s about transferring the knowledge to do farming, the knowledge of how to reproduce daily life, from the farmer’s head to the corporate laboratory and law office.
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On June 30, the Attorney General finally secured charges from the Grand Jury investigation. Together with his longtime colleague and collaborator, Dr. Robert Ferrelll, Professor of Genetics at the University of Pittsburgh, Kurtz was indicted for mail fraud and wire fraud. Interestingly the laws on which these charges are based have nothing to do with bioterrorism; they have to do with property. What did Kurtz and Ferrelll actually do to earn such charges?
For a new CAE project Ferrelll helped Kurtz obtain samples of three harmless bacteria that are commonly used in biology labs. These microbes occur naturally in our environment, but to ensure getting a pure sample, a researcher would buy them from a company like American Type Culture Collection that produces biological samples for research labs and educational institutions. As evidenced by the emails between Kurtz and Ferrell, quoted in the legal documents used to accuse them, Kurtz wanted to be sure the supplies he was getting were as safe as possible, because he knew that some variations on these bacteria are in fact pathogenic. Now certain biological samples are regulated because they pose health risks, but all commercial biological samples, both the potentially dangerous and the certifiably safe are regulated as property. University labs enter into agreements with the companies from whom they are buying biological agents. These are called Material Transfer Agreements or MTA’s, and they somewhat resemble the contracts signed by farmers buying seeds from Monsanto. At the University or research institution the scientist who is head of the lab signs a contract saying the lab will not share, sell or give away the materials being transferred. This may get especially sticky when you consider than, like seeds, bacteria reproduces itself.
When Ferrelll used his university contract with American Type Culture Collection to obtain $256.00 worth of bacteria samples which he then mailed to Kurtz, they broke what is essentially an intellectual property contract. The U.S. Attorney prosecuting them maintains that they obtained these materials under the fraudulent representation that they would be used only in Ferrelll’s lab. These are simply contractual agreements surrounding the sale and purchase of a material whose reproduction, once it’s in the hands of the consumer, is impossible to control.
In biological research, sharing of samples and other materials is about as common as sharing music has become in the world of a generation of listeners. Even though these regulations exist, the culture of the biological research laboratory pretty much ignores them.
The MTAs are signed by the head scientist of any given lab but they are otherwise handled by Technology Transfer offices, which also handle patents. The growth of these offices in universities is a small bureaucratic sign of the increasing involvement of private interests in scientific research. This influence is working from inside and outside the scientific community, in the form of patents, which can be obtained on living materials produced or modified in the lab and also on processes. The fact that legislation in the USA in the 1980s made it much easier for scientists themselves to profit from patenting their own research has made the question of what kind of research scientists actually decide to do, a question of the money they stand to make.
And the money is potentially very big. The so-called life sciences have become one of the big investment fields of our time. For instance, for several years the pharmaceutical industry was the top profit-making industry in the world. For another instance, look at the money that has been poured into all kinds of biotechnology ventures.
Typically what happens in the States is that scientists become partners with investors or venture capitalists and create small start-up companies to develop discoveries into marketable products. The successful ventures from this level grow, they may go public, they may be bought out by a larger corporation. So, effectively, scientific research has acquired a substantive role as driver of the economy. What looks like a great opportunity for the scientists to make more money than scientists ever used to expect to make, is also a mechanism for a certain idea of market forces to control the direction of research at public institutions.
To get an idea of how market forces may be affecting research in the life sciences, consider the following: According to a 2001 UN Development Report, 1,223 new commercial drugs were released worldwide between 1975 and 1996, but only 13 were developed to treat tropical diseases. In other words, drugs aimed at the problems of an impoverished population and hence a poor market are much less likely to command the R&D resources that an affluent market enjoys.
In addition to the pull of patents imagined down the pipeline, more and more research at public institutions is pushed, or funded at the front end, by partnerships with private corporations. The neo-liberal presumption is that these joint ventures are proven by competition and hence the best way to drive scientific progress, good for the scientists and good for society, because they drive the economy. Of course, like the patent system, reliance on such funding shapes the very questions that science sets out to ask. But it also reshapes the WAY scientists work.
Research being done in the interest of commercial development and likely to become patentable or trade secrets, is as jealously guarded as research that becomes military secrets. So the commercialization of science has been transforming the cooperative way that biologists have traditionally worked into a much more tightly controlled, individualistic pursuit. And now, since 9/11, the working and intellectual restrictions that accrue around the life sciences conducted as economic enterprise are being tightened even more by the induction of the life sciences into military service.
Since 2000 in the USA there has been a six-fold increase in annual spending for biodefense. A lot of this money is going toward the construction of several new biosafety level 4 labs in different parts of the country. These facilities are built for research into very deadly infectious pathogens and so they are capital-intensive complexes with very high tech security systems that have to be maintained round the clock. All the people working in these labs from the scientists to the janitors have to be highly restricted, their backgrounds checked and their daily routines subject to intense surveillance.
In addition, the major public funding opportunities for research in universities are being severely skewed towards biodefense so that labs in educational institutions will also be subject to high security restrictions, affecting the culture of the entire institution, making it more hostile to the free and open sharing of research materials and information.
It so happens that the materials obtained by Dr. Bob Ferrelll and shared with Steve Kurtz were acquired for a new CAE project about exactly this issue, a project to raise public discussion about US policy towards biodefense. This is the kind of discussion our government and its corporate backers do not want us to have.
What if we understood that the threat of bioterrorism is actually very unlikely because, from a weapons point of view, with the exception of anthrax, biological agents are unstable, hard to work with and a lot more trouble than explosives and chemical toxins? What if we understood that the problem with an aggressive biodefense program is that it is essentially indistinguishable from an aggressive bioweapons program? That the new biosafety level 4 labs will actually be developing _new_ deadly pathogens in order to figure out how to defend against them and that these facilities actually _increase_ the likelihood of previously unknown lethal microbes? What if we looked at who is gaining from contracts to build and maintain these high security facilities? What if it dawned on us that in the only bioterrorism scare in the U.S., the anthrax anonymously sent through the mail was traced back to one of the government defense labs studying bioweapons, and three years after that discovery the government still can’t locate the perpetrator? What if we realized that increased biodefense spending comes at the expense of research into common infectious diseases that kill people every day? What if we started thinking about the militarization of public health and the corporatization of all things military?
The tools of the terrorist are available everywhere. It is assumed that so-called ‘dual use’ technologies like those now required for disease research –which can be used for enormous good or enormous destruction –pose a special problem. At this point the solution our government proposes to us is one of guarding such tools and the knowlege to use them under increasingly hi-tech and capital-intensive security and police systems. These strategies seem obvious in a technocratic society in which the technological solution is privileged over the social solution. The technical solution is always the expensive one, the one controlled by the people who control the most resources, the one that requires even more expensive technology in the form of security and more supervision of the populace.
But as it turns out, the terrorist’s tools are less likely to be stolen from a specialized lab and more likely to be borrowed from everyday life—boxcutters, fertilizer, cheap wiring, cell phones—so we are not just talking about the lock-down on specialized knowledge and apparatus, we are talking about lock-down, period. The prospect offered by the technological solution is one of increasing restriction into every dimension of our lives. Under its logic there is no plausible place to release the constraints. The social solution offers a different possibility. This is the one in which we recognize that as long as our interests are pursued by destroying the culture and economies of populations disadvantaged by a grossly inequitable global system, those populations will find ways to retaliate. The one in which we concentrate on creating conditions of fairness, openess and trust.
Among other things it looks like Kurtz and Ferrelll are being punished for disregarding the corporate and military trends toward increasingly policed knowledge. They are being punished for collaborating, sharing materials, information and trust. Steve Kurtz had developed a relationship with Dr. Ferrell over a number of years on the basis of mutual interest in each other’s work. The artist had consulted the scientist when educating himself in scientific procedures and even worked under his supervision in his lab. Ferrell trusted Kurtz and shared knowledge and materials with him. In service to corporate interests, the government — and I don’t think this only applies to the US government– does not want scientists going outside of their field to help people who are critical of the system and are educating and empowering the public. They want their scientists isolated, quietly doing their military and corporate duty, beholden to the big budget projects that allow them to do any science at all. Just like they want their artists quietly self-destructing in the sterile circuits of art-world careerism, divorced from the consequential debates of modern life.
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The case is currently at a standstill common in the legal system.
The date of the trial itself will not be determined until sometime in October. It is generally expected to be scheduled for the sping of 2005.
The legal bills are estimated at $150,000 for Steve Kurtz and another $150,000 for Bob Ferrell.
We’ve heard rumors in Buffalo that the prosecution has been shocked and awed by all the publicity and support this case has received. There is no way to overestimate the importance of widespread, continued, public noise about these abuses of justice.
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