Ashcroft Pursues Greenpeace

On Friday, April 12, 2002, the 965-foot cargo ship APL Jade approached Miami with contraband cargo -- nothing unusual for a port through which large quantities of illegal drugs pass every week. Three miles off Miami Beach, a crewman lowered a 50-foot ladder to allow a harbor pilot aboard. When the pilot boat departed, two small inflatables pulled alongside. Climbers Hillary Hosta, 28, and Scott Anderson, 29, clambered up the ladder, wearing T-shirts labeled "Greenpeace illegal forest crime unit."

Greenpeace transmitted a radio communiqué to the Jade: "We are conducting a peaceful demonstration. We have personnel on your ship." The Jade reportedly carried 70 tons of Amazon mahogany, which Greenpeace claimed violated Brazilian, U.S., and international trade laws. "I am not against the trade in forest products," Anderson explained. "I'm against the illegal trade -- and cannot believe that the U.S. turns a blind eye in the face of overwhelming evidence."

The U.S. Coast Guard arrested Hosta and Anderson as they prepared to unfurl a banner that read, "President Bush, Stop Illegal Logging." They spent a weekend in the Miami Federal Detention Center, along with 12 compatriots.

"We knew we'd be arrested for boarding the ships," said Scott Paul, one of the detainees. "Everyone was relaxed. The officers in jail told us to order pizza. They released us on Monday morning, and everything seemed normal." Six protesters pleaded guilty, received minor fines, and were sentenced to time served, a typical result for a Greenpeace protest.

Fifteen months later, the U.S. Attorney for south Florida, Marcos Daniel Jimenez, indicted Greenpeace USA for "boarding a vessel before its arrival in port and the conspiracy to do so."

"The conspiracy charge implies serious consequences," Greenpeace lawyer Tom Wetterer said. "It transforms a trivial offense into a federal felony."

In order to invoke the conspiracy statute, there had to be a crime committed by the organization. For this purpose, the U.S. Department of Justice harkened back to an 1872 law prohibiting "sailor-mongering." Lawmakers enacted the statute to stop brothels from sending hawkers, armed with liquor and prostitutes, to entice sailors to their establishments.

The obscure law has been enforced only twice. The New York judge who presided over the first conviction called the language "inartistic and obscure." In 1890, a second conviction followed the boarding of a ship by seedy characters at the mouth of Oregon's Columbia River. For the next 112 years, the law remained unused and obsolete, until the Greenpeace arraignment in Miami.

The case against Greenpeace represents the most direct attack on free speech in America since the dawn of the civil rights movement, according to longtime observers. Said the NAACP's Julian Bond, "This is a government assault on time-honored nonviolent civil disobedience."

Redressing Grievances

Greenpeace claims it is the victim of selective persecution by U.S. Attorney General John Ashcroft.

Ashcroft grew up in a family of devout Pentecostal fundamentalists in Missouri. As that state's attorney general, he opposed school desegregation. As governor, he used black prisoners for domestic help and publicly insulted women and gays. In his memoirs, he described his political defeats as "crucifixions" and his victories as "resurrections."

When named U.S. Attorney General, Ashcroft swathed the exposed breast of the Statue of Justice and instituted a Justice Department prayer group. "The law is not about forgiveness," he advised his new group. "It is oftentimes about vengeance."

This is not the first time Greenpeace has faced Ashcroft's wrath. After Greenpeace activists violated a security zone in California, protesting the "Star Wars" missile defense program, government attorneys sought curiously long prison sentences for 17 defendants. To avoid the excessive jail time -- and in deference to U.S. sentiment after the Sept. 11 attacks -- Greenpeace USA signed a consent decree, waiving its right to protest Star Wars research for five years.

The deal marked a turning point in Greenpeace history and in the saga of American civil liberties. The First Amendment to the U.S. Constitution states "Congress shall make no law... abridging the freedom of speech... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The American Civil Liberties Union (ACLU) has claimed that Ashcroft used the Sept. 11 attacks to roll back civil rights and unleash Homeland Security snoops on American citizens. For example, he imposed a policy of selective deportation against men of Middle Eastern descent, charging 1,200 with petty immigration violations, and imprisoned them in secrecy without access to lawyers. The ACLU claims Ashcroft violated the First, Fourth, Fifth, and Sixth Amendments to the Constitution by targeting Muslims and citizen activists.

A conviction against Greenpeace for conspiring to monger sailors could cost the organization its tax-exempt status and expose it to further government inspection of finances and membership roles. "This kind of prosecution is unprecedented in American history," said executive director John Passacantando. "It is designed to stifle public dissent by an entire organization."

In October 2003, Greenpeace filed motions to dismiss the indictment and to compel the federal government to turn over evidence supporting its claim that the mahogany aboard the Jade had been legally harvested and traded. Since the government had no such evidence, the Justice Department revised its indictment, deleting those claims and purging any mention of mahogany.

Friends of the Court

"Seventy percent of Brazilian mahogany is destined for the U.S. market," said Greenpeace's international head Gerd Leipold. "Most of it illegal."

Big-leafed, or "genuine," mahogany (Swietenia macrophylla) is a reddish hardwood valued for fine furniture, musical instruments and boat decks. At the time of the 2002 incident in Miami, the Convention of International Trade in Endangered Species (CITES) had placed the tree on a list of vulnerable species requiring export "certificates of origin." Brazil's environmental agency, IBAMA, had halted mahogany logging due to depletion of the species and destruction of the Amazon by logging roads. The wood aboard the Jade lacked an IBAMA certificate. "The mahogany was illegal," said Greenpeace lawyer Wetterer. "The prosecution is political."

Assistant U.S. Attorney Cameron Elliot disagreed. He told the court, "There is no evidence that the government has discriminated against Greenpeace because of its political views." He claimed that Greenpeace's opposition to the government's environmental policy "makes it no different from thousands of other political advocacy groups."

That's precisely what other groups are worried about. The Natural Resources Defense Council, "troubled by the apparently political nature of this prosecution," filed an amicus brief with the court, supporting Greenpeace. So did the ACLU, Sierra Club, NAACP, Al Gore and lawyers across the country. The ACLU claimed the prosecution "threatens every advocacy group whose message may offend the government of the moment."

"If John Ashcroft had done this in the 1960s," said Julian Bond, "black Americans would not be voting today."

On October 30, 2003, The Miami Herald urged the Justice Department to drop the prosecution. "There seems no point to it beyond vindictiveness toward a group that riles the administration," the editorial stated. "Why hasn't Justice applied the same standards to... pro-life activists that use similar protest tactics?"

"The Greenpeace case is particularly chilling," wrote George Washington University law professor Jonathan Turley in the Los Angeles Times. "The extraordinary effort made to find and use this obscure law strongly suggests a campaign of selective prosecution."

The sailor mongering case has placed Greenpeace on the front lines of the battle for citizen rights in America. "We didn't pick this fight over civil rights," said Greenpeace's Passacantando, "but we will defend ourselves. This attack on an American tradition is unconstitutional and unpatriotic.

"This case woke us up," he added. "I never took the environmental issues for granted. I knew we faced severe opposition over the environment, but I did take my civil liberties for granted. I always assumed, in America, I had the right to dissent."

Rex Weyler is author of the forthcoming GREENPEACE: How a Group of Ecologists, Journalists and Visionaries Changed the World (Rodale Press/September 2004).

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