Two weeks ago, on their way to the opening of "The Interventionist" at the Massachusetts Museum of Contemporary Art, UC Irvine art professor Beatriz da Costa and a colleague were handed subpoenas by a Buffalo FBI agent.
As a woman whose art picks happily at social, corporate and government intrusion into our "data," our food and our very flesh (usually in sexy lab coats), really, da Costa should have seen it coming. But it never occurred to her—or to her four colleagues in the Critical Art Ensemble (CAE)—that life would so closely imitate art, that one of the Ensemble's members would feel the full force of federal agents convinced that an artist is a terrorist.
The feds' interest in the Ensemble began in May, when member Steven Kurtz's wife suffered a heart attack at their Buffalo home. Kurtz called 911. Police who entered the home saw Petri dishes filled with bacteria and called in the health department and the FBI, who in turn called in the Joint Terrorism Task Force. Kurtz's home, his computers, books he'd written, his students' term papers, his wife's birth certificate—and his wife's body—were confiscated.
All seemed to end well enough. Within a week, da Costa says, agents found nothing dangerous among Kurtz's effects and returned them—although investigators had left a few dangerous elements in the home, from vials with which to collect bacteria samples to Haz-Mat suits.
Ensemble members assumed the FBI would let the matter drop once the Health Department cleared the house and Hope Kurtz's body and once the FBI had spoken to university colleagues and artists about the CAE's work.
Then came the subpoena. Now, da Costa and colleague Steve Barnett are to testify before a grand jury June 15 in the FBI's renewed case against Kurtz. The subpoenas claim possible violations of Chapter 10, Title 18, Section 175 of the U.S. Code, which states that "whoever knowingly develops, produces, stockpiles, transfers, acquires, retains or possesses any biological agent, toxin or delivery system for use as a weapon or knowingly assists a foreign state or any organization to do so, or attempts, threatens or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both."
Section 175 of the U.S. Biological Weapons Anti-Terrorism Act of 1989 has been expanded by the USA PATRIOT Act to prohibit the possession of "any biological agent, toxin or delivery system" without the justification of "prophylactic, protective, bona fide research or other peaceful purpose."
"[Kurtz] had documentation as to what the bacteria are, how we obtained them [they ordered them, legally, through a university lab in Pittsburgh], and what we're using them for," da Costa says. One particle was used in the '50s by the military, who sprayed the Pentagon with it to see how it traveled; it's now used by hospitals to ensure employees are washing their hands properly, as it turns a vibrant shade of red. Were any of the samples potentially dangerous? "No. You can eat them," da Costa says. "I did."
The CAE is a wry, political and conceptual troupe that delves into issues such as genetically engineered foods, data surveillance and the "hidden eugenics" of reproduction technologies' donor profiles. Companies specializing in reproduction ask clients "if there is homosexuality in the family or if there are criminals," da Costa says in her melodic accent. "They think the 'crime gene' is related to the genetic profile, which is absolute bullshit."
Da Costa in short order mentions the dilemma of national sovereignty vs. corporate trade, pesticide residues in soil from genetically modified corn, and some of the properties of certain strains of E. coli; UC Irvine's faculty website calls her a "Tactical Media Practitioner." The group's projects have included explorations of the U.S.'s "appalling" lack of medical care; Useless Technology, a newspaper insert they covertly slipped into Sunday papers around the country; and Child as Audience, a survival kit for teen boys that included instructions on how to hack a Gameboy, a hardcore CD and a pamphlet on the oppression of youth.
Like the legendary rtmark, whose best-known (but by no means sole) antic was switching the voice boxes in a batch of talking GI Joes and Barbies, CAE's tactics are flip and funny, but behind the lab coats and flying spores, the group is holding actual and little-noticed social issues out to whomever will notice. They're interactive, too. The exhibit "The Interventionist" at Massachusetts Museum of Contemporary Art included CAE's Free Range Grains. It uses a simple lab, like those found in universities and even high schools, to test processed foods brought in by viewers for "transgenic" traces of genetic modification.
"We purify the DNA, amplify it and read it," says da Costa. "It's pretty straightforward. You could learn how to do it in two weeks." The FBI confiscated the lab, too, but left a drawing of it, which was used in the exhibit in its place.
The FBI, it seems, is taking a break from prosecuting porn cases and moving in the direction at least of prosecuting terrorism. But unless they've got some anthrax spores nobody knows about, "terrorism" is in the form of benign and completely legal intestinal flora the group had collected for a piece about DNA they've been performing for years.
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"I have no idea why they're continuing this," da Costa says. Kurtz's lawyer, Paul Cambria (who represented Larry Flynt before the Supreme Court), told LA Weekly's Judith Lewis, "It's hard to believe they're calling witnesses before a grand jury in light of the fact that the county health commissioner released the house back to Kurtz and indicated there was no finding of anything that was a problem," he said. "My gut tells me they're trying to justify the attention they've directed toward Mr. Kurtz."
The sheer ridiculousness of the case doesn't mean there's nothing to worry about: before a grand jury, defendants are denied lawyers, and the prosecution is under no obligation to include exculpatory evidence, so only the FBI's version of events will be heard. Prosecutors' ability to indict a ham sandwich, while a particularly tasty clich, is widely seen in law circles as about right. Mix in Sept. 11 and Judith Miller's treatise Germs, and there's enough possible hysteria and overreaction to keep Kurtz up nights; he certainly foresees charges and detention for his political art.
You know—like in Cuba.
For more information, visit caedefensefund.org.