When Greenpeace activists illegally scrambled aboard the cargo ship APL Jade, it was the start of a pretty typical day. Convinced the ship was hauling contraband mahogany from Brazil, the environmentalists aimed to draw attention to it by unfurling a banner with this message: “President Bush, Stop Illegal Logging.” Their arrests by the Coast Guard were also part of a day’s work. But the later use of an obscure 19th century law to charge the entire organization with criminal conspiracy has Greenpeace defenders claiming that they are the target of U.S. Attorney General John Ashcroft’s attempts to stifle political criticism of the government.
The Greenpeace demonstration off the coast of Florida on April 12, 2002, was one of a series of similar “direct actions” taken by the international organization near ports around the world as it attempted to draw attention to the mahogany shipment, which violated a Brazilian moratorium on mahogany lumbering in the Amazon, and violated the international treaty controlling trade in endangered species, CITES.
It was standard practice for the international organization, which for more than three decades has used this in-your-face method to fight for causes it deems just. It is a method of civil disobedience that has been used by activists on both ends of the political spectrum, from civil rights campaigners to anti-abortion groups. In Florida, as in the mahogany protests elsewhere, a handful of individuals were charged with minor crimes and released shortly thereafter.
But 15 months after the APL Jade incident, the U.S. Justice Department in Florida’s Southern District dramatically upped the ante. Drawing on an 1872 law, it filed criminal charges against Greenpeace USA for boarding a ship before its arrival in port, and with conspiracy to do so — in a case scheduled to be heard in December.
Critics and some legal experts say the pursuit of an entire organization for this type of civil disobedience by its members is a break with 200 years of American tradition, and appears to be an attempt by the Bush administration to silence a vocal critic. In the words of former Vice President Al Gore, the legal move looks to be “aimed at inhibiting Greenpeace’s First Amendment activities.”
Because the case is pending, the Department of Justice declined any specific comment on this case. However, said Matthew Dates, special counsel for public affairs: “We would evaluate the case like any other, based on the facts and the law.”
If convicted, Greenpeace USA faces a statutory maximum penalty of five years’ probation and a fine of $10,000, according to a press release from the U.S. attorney general for the Southern District of Florida.
Some observers say it is possible that Greenpeace could lose its tax-exempt status in the United States — a death knell for a non-profit organization. The Miami attorney general’s office declined to comment on that possibility.
More broadly, say rights activists, a conviction could have a chilling effect on other organizations that practice nonviolent protest.
Despite taking place on a ship, the protest itself was nothing unusual. “It was a classic sit-in in the sense that it was non-violent, overt, and non-threatening,” says George Washington University constitutional law professor Jonathan Turley. As is also typical of this type of protest, says Turley, “the protesters want to be arrested.”
But he says the response has been highly unusual. While organizations sometimes face criminal prosecution for the actions of their members, especially in racketeering, fraud and securities cases, it is extremely rare — if not unprecedented — for the government to pursue criminal charges against organizations in “the free speech area,” he says.
Also suspect, says Turley, is the use of an obscure statute of federal law in the case. Passed 131 years ago, Title 18, Section 2279 was written to prevent organizations such as boarding houses from “sailor mongering” — which involved boarding ships before they had moorage, often using alcohol or prostitutes to lure the crewmen ashore, leaving the vessel unattended. His research indicates that the law has been cited in only two cases, most recently in 1890.
Turley says these factors strongly suggest a campaign of selective prosecution as a means of silencing a vocal critic, which is prohibited by law.
Greenpeace girds for battle
The ACLU of Florida and People for the American Way Foundation, which on Nov. 7 weighed in with a brief to the court on behalf of Greenpeace, say the case is of “profound importance” because it “imperils the core values of the Constitution.”
“For two hundred years, the United States government has refrained from prosecuting advocacy groups whose members occasionally engage in peaceful civil disobedience to convey a constitutionally protected message,” they wrote in their brief. “The prosecution of Greenpeace indicates a sea change in that policy.”
Greenpeace, which has led an aggressive pro-environmental campaign since its founding in 1971, has been at odds with the Bush administration since its earliest days in office, decrying the president’s position on the Clean Air Act and the Clean Water Act, staging protests against the National Missile Defense Initiative and the opening of roads on national forest land. Just a few months after Bush took office, Greenpeace activists climbed a water tower near his ranch in Crawford, Texas, and unfurled a banner that read: “Bush the Toxic Texan, Don’t Mess with the Earth.” They were arrested after a two-hour stand-off during which they refused to climb down, ignoring demands by the mayor, the county sheriff and the Secret Service.
“We have been critics across the board,” says John Passacantando, executive director of Greenpeace.
He says the organization has never before been challenged at this level in the United States, and characterizes it as the way the Justice Department operates under Ashcroft.
“The parallel I see is with the McCarthy era — the overreach by the government to stifle its critics,” he says. “It is a fight we are willing to take on ... a fight for our right to dissent peacefully in this country in areas we think society is wrong.”
Greenpeace will seek additional discovery to lay out what went into the decision to charge Greenpeace, says legal counsel Tom Wetterer. “We have found no previous examples of where the government has charged an organization for a political protest,” he says.
“The prosecution, if indeed it is selective, amounts to nothing more than an act of intimidation by the government, apparently directed at silencing political speech,” says the ACLU/PAWF brief.
DOJ builds its case
From the point of view of the activists, the events of April 12 were mostly unsurprising, but ominous signs emerged later on. In Coast Guard custody for most of the day, a Friday, the mood was relaxed and they were led to believe they would soon be released.
“They told us to order pizza,” says Scott Paul, Greenpeace’s forest campaign coordinator, who was among those arrested. “Later in the day, the FBI got involved and the atmosphere changed dramatically.”
He was one of 14 activists who ended up spending the weekend in a federal penitentiary before release the following Monday. Within two months, the case was resolved. Six people, including the two who boarded the ship, pleaded guilty under the “sailor mongering” law on condition that other charges would be dropped.
Later, says Greenpeace’s Wetterer, it was clear that the Justice Department had launched a separate federal grand jury investigation, which led to the criminal indictment in July of this year.
Public affairs officer Dates declined to comment on what prompted the government to further pursue the case, or its “deliberative process.”
Speculating about that process, Turley of George Washington University says it seems “truly remote” that the case was pursued independently by the DOJ in Miami. “DOJ guidelines give a great deal of decentralized powers to state offices, except when they use statutes in unusual ways,” he says. Since this is such an unusual prosecution, “this had to be approved at the central level,” he says.
Meanwhile, Greenpeace says it confirmed that the original target of the protest, the APL Jade, went on to Charleston, S.C., where it discharged its cargo of mahogany for shipment to a forest product company.
In November 2002, the United Nations Environmental Program upgraded protection of mahogany under the Convention on International Trade in Endangered Species (CITES), a move that places even stricter controls on trade in the wood. The United States is a signatory to the treaty.