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Steve Kurtz, Robert Ferrell, bioterrorism and Mail Fraud

By Charlie Gere, Birkbeck College, University of London

The title of this piece is taken from the Internet banner that is being distributed
following the arrest of artist Steve Kurtz, genetics professor Robert Ferrell and their
indictment for mail fraud. Before discussing these arrests and their ramifications in
more detail it is instructive to look at this statement and to consider its implications.
At first glance it seems so obvious a statement as to be barely worth saying; of course
art is not terrorism. And yet on closer examination the difference between the two is
not so clear. Inverting the statement makes this clear. The statement ‘terrorism is not
art’ is ostensibly far harder to justify. Days after September 11th Karlheinz
Stockhausen famously commented that…
…[W]hat happened there is - they all have to rearrange their brains now - is the greatest work of art
ever. That characters can bring about in one act what we in music cannot dream of, that people
practice madly for 10 years, completely, fanatically, for a concert and then die. That is the greatest
work of art for the whole cosmos. I could not do that. Against that, we composers are nothing.

A year later, on the anniversary of the atrocities, the British artist Damien Hirst
suggested that…
…[Y]ou've got to hand it to them on some level because they've achieved something which nobody
would have ever have thought possible - especially to a country as big as America. So on one level
they kind of need congratulating, which a lot of people shy away from, which is a very dangerous
thing. The thing about 9/11 is that it's kind of an artwork in its own right. It was wicked, but it was
devised in this way for this kind of impact.

Unsurprisingly perhaps, such comments were widely condemned and Stockhausen

and Hirst were forced to apologise. In comparing the events of 9/11 to a work of art
Stockhausen and Hirst were both right and wrong. Right in the sense that avant-garde
art and terrorism are in some ways quite similar, and could possibly be shown to have
developed out of the same historical context. Many avant-garde artists, from the
Futurists through Dada to the Destruction in Art Symposium and beyond, have used
art as a kind of cultural ‘terrorism’ and have pursued strategies of staging spectacular
events, which are intended to shock people out of their complacency and thus, in
theory at least, to change the world, much like terrorism. But the comparison is also
wrong at a deeper level. To describe an act of terrorism as a work of art is a kind of
category error, which fails to take into account the ineluctable differences between
terrorism and art.

The purpose of terrorism is to directly invoke terror in its potential and actual victims,
usually terror of death or injury. Whatever the sophistication of their implementation
acts of terrorism are simple minded in their intentions. In invoking such terror those
responsible intend to disrupt the lives of those targeted by making them fearful of
going about their normal activities. By contrast art works through symbolic action and
mediates the sensations it invokes. In a sense it is the direct opposite to terrorism in
that it precisely allows us to face that which we fear, or which makes us anxious, from
a position of safety. A good example of the difference between art and terrorism is to
be found in the work of Gregory Green, who makes fully functioning nuclear bombs
and guided missiles, lacking only the explosive and fissile materials necessary to
make them destructive. Their effectiveness as art works resides precisely in their
ineffectiveness as bombs or missiles. Were Green actually to arm them they would
cease to be works of art and would become instead chilling terroristic devices.
Because they are unarmed we are able to contemplate the destructive force they
represent symbolically and thus allow us to come to terms with it rationally.

Thus, pace Hirst and Stockhausen, the atrocities of 9/11 were not works of art,
however much they might have appeared as such. Furthermore it is important that art
and terrorism are not conflated, whether by artists themselves, commentators and
critics or those hostile to the experimental and radical nature of much contemporary
art. It is important to maintain the difference because it is only thus that art can retain
its autonomy as a means by which it can be used to open up discussion about complex
and controversial issues and ideas, which otherwise might be a source of terror or
anxiety. This point has been foregrounded by the arrest of and subsequent indictment
against Steve Kurtz and Robert Ferrell for Mail Fraud.

In May of this year Kurtz, internationally respected artist, founder member of the
Critical Art Ensemble and Associate Professor in the Department of Art at the State
University of New York's University at Buffalo, awoke early in the morning to find
that his wife had died in her sleep of a cardiac arrest. He rang 911. A paramedic
spotted some of the equipment he was using in his latest work, which concerned
issues of biotechnology. As a result Kurtz was detained as a suspected ‘bioterrorist’,
his house was rapidly cordoned off by FBI, his computer, work materials, manuscripts
and books, and perhaps most offensively of all, his wife’s body, were impounded for
‘analysis’. He was released almost immediately, as his detention turned out to be
illegal and has since recovered his wife’s body, but the rest of the impounded material
remains in the possession of the FBI, with no prospect of immediate return.

The biotechnological materials the FBI seized turned out to be some harmless and
easily obtained bacteria and a mobile DNA extraction laboratory for testing food
products, equipment that can be found in any university and in many high schools.
Despite the innocuous nature of the material seized, the impossibility of using it to
produce weapons, and Kurtz’s international reputation as an artist, the FBI were first
determined to charge him and other members of the CAE under section 175 of the US
Biological Weapons Anti-Terrorism Act of 1989, which has subsequently been
expanded by the notorious US PATRIOT Act. Since then the charges have been
downgraded to ‘Mail Fraud’, which may sound comparatively unthreatening, but still
carries a maximum penalty of twenty years in prison. Indicted with him is Robert
Ferrell, head of the Department of Genetics at the University of
School of Public Health, who is charged with helping Kurtz
fraudulently obtain $256 of what is widely regarded as harmless

It is plausible that the FBI and the District Attorney, realizing that
charging Kurtz and others under the USA PATRIOT Act was bound to
fail, are trying to save face. Mail and wire fraud legislation are
normally used against anyone defrauding others of money or
property, as in telemarketing schemes. Unfortunately for the
prosecution, to make a federal case for such a minor allegation will
require proving criminal intent, which would be very hard.
Meanwhile the harassment of Kurtz and Ferrell has both horrified
and bemused many in the United States and abroad, not least
because of the implications for both scientific research and artistic

It may seem at first glance that the authorities in the United States
have backed themselves into a corner, while also further
compromising the United States’ already damaged reputation in
terms of the calculated suppression of free speech. Yet there may
be method in this madness. The materials Steve Kurtz and the
Critical Art Ensemble use in their art may well be harmless, but their
ideas are not. The CAE have gained an international reputation for
developing works of art and practices that engage with and promote
discussion of complex and controversial political, technological and
scientific issues. At a time when discussion of such issues in the
mass media appears at best nugatory and at worst deliberately
misleading, work by artists such as those involved with the CAE are
among the only means by which these matters can be properly
exposed and debated.

The current administration in the United States has a particularly

appalling reputation for stifling debate, spreading misinformation
and denying access to knowledge. One wonders if the FBI seized
upon the chance offered by the zealous paramedic to make an
example of a troublesome character with a reputation for exposing
difficult and controversial issues, ‘pour encourager les autres’. To do
so required deliberately making the same category error committed
by Stockhausen and Hirst, of conflating art and terrorism. This may
be attributing forethought to the authorities to a flattering degree.
But even if it is not deliberate the effect is the same. It offers an
extremely worrying precedent if the symbolic actions of artists are
no longer distinguished from the direct actions of terrorists. At the
very least this offers unprecedented scope for the suppression of
debate and free speech.

Whatever the intentions behind the decision to prosecute Steve

Kurtz and Robert Ferrell it is important that the authorities in the
United States are left in no doubt about the degree of disgust and
dismay it has engendered, both in America and abroad. Anybody
who wishes to sign a petition, read about the case and keep up with
events as they happen, find out about benefits, or make a
contribution to the defense fund, go to At
a personal level not only do the defendants face possible twenty-
year sentences, but also exorbitant legal bills. At a more general
level protesting against Kurtz and Ferrell’s indictment and the
harassment that has accompanied it, may help to make such events
less likely in the future. It is worth remembering that Kurtz is lucky
to have an international reputation as an artist and numerous
contacts throughout the world, which means that his case has
received a good deal of publicity. There are many other victims of
the United States’ disastrously misconceived ‘war on terror’, who
are not so lucky.

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