An image from Critical Art Ensemble's SRA (the Society for Reproductive Anachronisms). [Image: CAE]   

The case of American artist Steve Kurtz, held as a suspected bioterrorist because of his art materials, sent shockwaves through the worldwide art community.

In 2004, Kurtz, a University of Buffalo art professor and well respected practitioner, called the paramedics after his wife died suddenly of a heart attack. While at Kurtz's home, they stumbled on part of his current art project, and promptly called the FBI. Kurtz recalls being surrounded by hazmat teams. “They flooded my house,” he says. “Basically they hit the panic button.” The Feds hauled the 47 year old teacher off under suspicion of treasonous activities. What else could explain the fact he had biology equipment and bacteria in his private possession?

But there was an explanation. Kurtz (and his late wife) were founding members of the Critical Art Ensemble, an artist collective devoted to exploring the intersections between art, technology, radical politics, and critical theory. They first burst onto the scene in 1987, but have become well known in the last decade for imaginative biotech projects that challange the status quo and establishment norms.

“We were a bunch of alienated students who felt they weren’t getting the curriculum they needed from the University, who banded together to try and make something else happen on the local scene,” explains Kurtz. “The one thing we all had in common was a commitment to anti-authoritarian culture. It was those two elements that started it off and it’s kind of evolved from there.”

Though the subjects they were dealing with were often incredibly serious (genetic modification, bio-warfare) Kurtz says the ensemble tried to weave brevity in amongst the gravitas as much as possible. “We have a belief that analysing and understanding social issues does not have to be a painful process," he says. "It can be pleasurable, it can be fun, it doesn’t have to be punishing. We try to throw in things, whether it’s through participatory structures, or whether it’s through comical elements, that lighten the load a little bit. It’s a communication device, an attractor, a way to keep an audience there so you can have a more complex discussion that if they’re just watching you for a few minutes before moving on.”

Complex discussion wasn't on the agenda of government officials when they raided Kurtz's home and seized his working materials ("a centrifuge and an incubator, three different sample of harmless bacteria"). The items had been used in many CAE projects - all of them ethical, all of them safe.

In July 2004, after allegations of terrorism proved too difficult to prosecute, Kurtz was indicted by a federal grand jury for mail and wire fraud, a felony offence. The focus was now on the exact origin of the bacteria and how it came to find it's way into Kurtz's possession. Genetics professor Robert Ferrell was also charged with helping Kurtz obtain the biological material in question, despite serious doubts to the legality of both claims. In April 2006, the artist who dialled 911 thinking he'd get help now faces a possible 20 year jail term for his work and ideas.

The precedent-setting case has made a major impression on media outlets around the world, transforming Kurtz from mild-mannered art teacher to dissident martyr.

“It’s a role I could do without," he says, "but it’s one that, for whatever reason, I have to serve, so I certainly intend to do it. A lot of my friends joke that I’m fated to do this. But I’ll act as an ambassador, I’ll stand up to the Department of Justice and fight this. When authoritarianism shows itself like this you have to stand up to it or it’s going to get worse and worse and worse."

Kurtz deconstructs his predicament with academic poise. “There’s a lot of layers and registries involved in this,” he says. “One is very practical. The Buffalo FBI Office and Department of Justice pulled a scam around 1993 where they railroaded a bunch of Yemeni kids and called it a terrorist cell, and they all got medals and met the President and all this hoopla, even though all they really did was blackmail some kids into making a plea bargain to call themselves terrorists. With me they thought they’d get to do it again.”

Kurtz says once the authorities realised “they had nothing”, the situation became about face-saving. “They began wondering if they could make something out of this,” he says. “Here was an artist, a dissident, a known activist. You have to remember too that this was during the Ashcroft Department of Justice, when the overriding belief was pre-emptive justice. If someone looks like they could do something at any time then you want to put them in jail for whatever you could as soon as possible. So, because of the work I do and the books I’ve written the order was passed down that I was someone who needed to be put in jail as soon as possible.”

Kurtz believes he's being used as a pawn in the construction of 'the internal enemy'. "They have the Arabs, illegal immigrants and the Mexico situation, the gay and lesbian backlash for the moral outrage, but they needed the white guy, the guy that could be your art teacher, and that was me. I’m their alibi. Now they can say their policies aren’t racist, they’re after the white guy too.”

“Finally there’s the intimidation factor. Let’s intimidate as many artists and activists as we can. Let’s tell them, you’re not just going to lose your job anymore, we’re going to actively pursue you, put you in jail if you go around criticising the government or show preoccupation with peace and social justice. They’re also trying to say that this is going to be the end of scientific studies that aren’t in the military or corporate hands. And those people who go outside of that, particularly with political purpose, are going to get put in jail and they want everyone to know that. Especially at universities, places that tend to breed dissidence, to make it shut up. They’re being very successful with that, whether they get a conviction on me or not.”

Part of the problem, according to the artist, is the esoteric, often confounding air surrounding bio-art.

“The authorities have no idea what they’re looking at. They’re not given any training in science, so all they know is ‘this isn’t a university lab, so it must be terrorism’. We were working in Halifax once, installing these little LCD screens, and the authorities thought we must be making bombs and closed down Halifax Harbour. These people are idiots. They’re only trained in the military side of things, they’re not culturally schooled at all.”

According to Kurtz, it's not just the suits who are floundering. Thanks to a rising tide of what he calls "proto-fascism", the gap between black and white is rapidly growing into a chasm.

Kurtz elaborated on this 'grey zone' when he was in Australia last month to speak at not one, but two arts events: the Australian Network of Technology’s Media States Forum in Adelaide, and the Sydney conference New Constellations: Art, Science and Society at the Museum of Contemporary Art.

“CAE has a very long history of interventionist projects and we’ve pretty much had run-ins with about every kind of disciplinary agency you can think of: cops, the church, corporate lawyers, you name it," he explains. "But there was a predictability about these encounters, whereas what has happened after 9/11 and the rise of proto-fascism under Bush, is that justice becomes more arbitrary and discretionary, becomes incredibly more unpredictable. The grey zone, which is usually a clean line, becomes this gaping fog. That's what I was speaking about in Adelaide."

The MCA event, concerned with "the construction of collaboration between the arts and sciences,” pressed the issue into a specific corner: "within that matrix, what constitutes a risky or dangerous collaboration from the eyes of authority - how an art and science collaboration that’s framed through an analysis of political economy is viewed as a danger.”

“The risk factor for artists in negotiating this grey zone is increasing exponentially," says Kurtz, and he ought to know. "I mean, this isn’t the first time we’ve [CAE] been called terrorists. But it’s becoming harder to predict. A lot of times this has happened it’s been over what I would think is the most friendly of things. Some of the tougher things we’ve done, like Molecular Invasion, we’ve had minimal trouble. Yet with something like Free Range Grain, we’re just testing food to see if it’s been genetically modified – which seems like a friendly intervention, yet the authorities go crazy. How can you explain that? It doesn’t make sense. There’s no linear scale at all.”

Kurtz stresses that he's not the only person to feel the sting of post 9/11 paranoia. “Discretionary arrest is definitely being used," he says. "Many are having this kind of experience."

The experience, although frightening, is nothing new. The issues at play in Kurtz's case are touchstones from history: freedom of speech, freedom of expression, academic freedom, and the power of ideas. Since it was attacked five years ago, the US has borne the brunt of criticism for exerting pressure on it's citizens in the name of catching the culprits and rooting out the ideology that spawned them. Although allies have followed degrees of suit, Kurtz believes his country's response is culturally unique. "I think the neo-con movement is a very peculiar kind of proto-fascism unique to the United States," he says. "And because it is such a rabidly nationalist movement, about creating a national philosophy and mythology for the US and the US alone, it’s hard to see that exporting out to other places. It’s not like say, Islamic fundamentalism, which spreads in a different way. That’s nation Islam, it recognises no border."

Kurtz observes that Australia seems swept up in the wake of these movements. "They always accuse Blair of being Bush’s lapdog, but Howard, he’s totally 'Mini-Me'. But ultimately, he can’t be a true neo-con, because you have to be in the ‘American club’ to be that.”

Still, the artist thinks the pressure will eventually ease, at least on the surface. “It’s not going to last for them. The pendulum will swing, if only to different kinds of authoritarianism, but I don’t think the neo-con’s will carry the day.”

For now, Kurtz stays in the hotseat, sharing headlines with bedfellows avian flu and anthrax.

"Another element of all this is people's fear of bacteria," he says. "Since the late nineteenth century there’s been a monstrous industry based around disinfectants and cleanliness. It turned out to be a really, really huge market. So the only way to build that market, because you only need to be so clean, was to inject safety into the equation, to make it about fear – watch out for germs, germs kill! Then of course you have the aesthetics of the body itself. God forbid we went from soft solid to liquid – organic meltdown – and that’s what germs tend to do with us. Then you throw in the final piece of the puzzle – biological warfare – and they’ve got this little triad and everyone’s afraid of germs. So when you see bacteria you know it equals bad.”

It’s as though Kurtz, by fraternising with this microscopic enemy, implicates himself as co-conspirator in the eyes of the authorities, for whom sterile homes and sterile minds a happy citizenry make.

Bogged down in the legal process, the artist says nothing is expected to happen with his case for 8 months to a year, but things aren't looking good. "The law says a grand jury indictment can’t be overturned even if the grand jury was intentionally misinformed or not given a full picture," he says. "You can't really win."

A fund has been set up to help raise money and awareness for the Kurtz case.