Could There Be A Rosa Parks After 9/11?
Last month, in a packed Miami courtroom, a federal judge threw out criminal charges against Greenpeace in mid-trial. It was a dramatic ending to a legal battle that began in April 2002, when two Greenpeace activists tried to hang a banner on a commercial ship off the Florida coast. Whether the case ends up a curious footnote or a turning point depends on what happens next. After 9/11, is peaceful protest, or civil disobedience, a luxury America can no longer afford? Or is it, instead, an essential component of our political life that we must defend? The Miami case was widely noted for several reasons, but none of them led to the judge's dismissal. First, the Justice Department had charged Greenpeace under an obscure "sailormongering" law whose last known use was in the 19th Century. The law was aimed at deterring unscrupulous boardinghouse touts who jumped aboard arriving ships to ply gullible sailors with cheap liquor and comely prostitutes. But the bizarre "Pirates of the Caribbean" background of the law was not the reason for acquittal. Nor was the judge's dismissal related to the fact that Greenpeace was protesting against immoral and illegal activity. The ship, the APL Jade, was carrying 70 tons of mahogany wood illegally cut from Brazil's Amazon rainforest. Mahogany logging has been the key to the rapid destruction of the Amazon by ruthless criminal enterprises. This destruction threatens thousands of plant and animal species, the 20 million people who inhabit the Amazon, and the global environment.
Greenpeace had used multiple means to halt Amazon destruction - research, media work, political pressure. Brazil's environmental agency responded with a total moratorium on mahogany exports. But illegal shipments continued to arrive in the United States - a criminal violation of our Endangered Species Act. Greenpeace devised its protest to shine a spotlight on this continuing criminal activity and to press governments to provide stronger protection for mahogany. The two Greenpeace activists, after climbing up the ship's ladder, tried to hang a banner reading, "President Bush: Stop Illegal Logging."
Judge Jordan's decision to acquit Greenpeace was not even related to the most significant aspect of the case: This was the first time in U.S. history that the Government prosecuted an entire organization for the free speech-related activities of its supporters. This unprecedented legal assault -- on a group that has been a persistent critic of the Bush Administration -- drew criticism from national civil rights and environmental groups and many others. Former Vice President Al Gore called the prosecution "highly disturbing."
Judge Jordan's decision rested instead on the most mundane of factors: The vaguely-worded old law prohibited boarding a ship "about to arrive at her place of destination"; the Greenpeace boarding occurred some six miles and about an hour's travel time from the Jade's assigned berth at the Port of Miami. If not for this circumstance, which the judge called "fortuitous" for Greenpeace, there would have been no acquittal by the judge, and the twelve-member jury might have rendered a guilty verdict. Greenpeace might not be so lucky the next time. Sometimes its protests involve clear violations of the law - such as trespassing - with no wiggle room. So the real question is whether the Government will again prosecute Greenpeace or another organization that sponsors a peaceful, but illegal, protest.
If our historical traditions and values are to be respected, there should be no more prosecutions like the one in Miami. A galvanizing event in the birth of our country was, in fact, an unauthorized ship boarding in protest against objectionable cargo -- the Boston Tea Party. Ever since, peaceful demonstrations in violation of the law have helped transform debate and bring meaningful change: from the right of women to vote to the right of workers to organize, from civil rights for African Americans to equal rights for gays and lesbians. And throughout this history, individuals have been willing to accept responsibility and punishment for protests against immoral laws and policies. The two Greenpeace protestors on the Jade were no exception. They and four colleagues pled guilty to the ship-boarding charges soon after the 2002 incident, and it appeared the matter was closed. The Government's subsequent, unprecedented indictment of Greenpeace itself - fifteen months after the boarding of the Jade - was the legal equivalent of a sucker punch.
Greenpeace never denied that it sponsored the boarding. But the Greenpeace activists who accepted guilty pleas joined many others in denouncing the indictment of the organization. Julian Bond, chair of the NAACP, said, "If John Ashcroft had done this in the 1960s, black Americans would not be voting today, eating at formerly all-white lunch counters or sitting on bus front seats. This is a government assault on time-honored nonviolent civil disobedience as practiced by Martin Luther King and thousands of other Americans."
The reason is clear. As the ACLU of Florida and People for the American Way Foundation wrote to Judge Jordan, "For two hundred years the United States has honored the place of civil disobedience in American political life by prosecuting individuals who engage in civil disobedience while simultaneously respecting the advocacy groups who sponsor it." Brave protestors arise in every generation. But if prosecutors brand as criminals the groups that organize protest - if they treat protest as one more crime to be followed up the chain of culpability - that could undermine the institutional support that makes dissent effective - and peaceful. During the 1980's, hundreds in the liberal elite volunteered to be arrested at the South African embassy in Washington to protest apartheid. The Reagan Justice Department did not prosecute Randall Robinson's TransAfrica as a criminal enterprise. Just a day after Judge Jordan dismissed the Greenpeace case, 98 people protesting AIDS policies were arrested at the Capitol. Should ActUp and other groups connected to the protest expect criminal charges?
If convicted, Greenpeace could have been put on probation, with court monitoring and stiff penalties for subsequent breaking of the law. Senator Patrick Leahy (D-VT), in a letter to Attorney General John Ashcroft, warned of the broader First Amendment implications: "Prosecuting public interest organizations sends a strong message that the actions of their members could jeopardize their tax-exempt status and lead to government oversight of their activities, which could have a chilling effect on free speech and activism of all kinds."
The prosecution's case was peppered with references to 9/11 and terrorism, even though the Greenpeace protestors approached the ship in a tiny open boat, identified themselves clearly as Greenpeace, and halted efforts to hang the banner when stopped by the ship's crew. (The prosecution planned to decorate its opening statement with a blow-up exhibit, supposedly to illustrate the length of the 965-foot ship: A drawing of a similar ship, sandwiched between a skyscraper and an airplane. Our defense team thought of suggesting that the prosecutor sketch in a six foot five Osama Bin Laden, but instead our skilled lead trial counsel, Jane Moscowitz, simply asked the judge to exclude the picture.)
If an action like Greenpeace's is banned, what is next? Authorities may argue it is too dangerous to protest at a shopping mall, a federal building or embassy, or a hotel where an Administration official is speaking.
In fact, there are all kinds of non-essential activities that we accept today, despite the security risks. UPS drivers - or people dressed like them -- gain easy access to offices. Large SUVs are permitted in underground garages. Freedom of expression is no less important than convenient package delivery and parking.
Prosecutors asked why Greenpeace did not simply alert authorities to the incoming contraband. But sometimes, when other means have failed, it has taken an iconic protest to capture attention and bring change. If Rosa Parks had simply picketed the bus stop, civil rights might have been much slower in coming. Do today's risks of transit terrorism mean that the Government would not tolerate a Rosa Parks now? In the post-9/11 world, there are tough challenges in balancing concerns of order and concerns of freedom. The only way to meet these challenges appropriately is to take seriously both sets of concerns. George Bush and John Ashcroft seem remarkably unconcerned about wholesale restrictions on freedom - when it comes to surveillance and detention, as well as to protest. They choose order every time.
There are, of course, countries where order is always valued over freedom, and peaceful protest is treated harshly. The list begins with North Korea. After 9/11 we must all be more security conscious. Protestors should communicate their aims clearly, minimize risks, and guard against violence. But our country's values will be undermined if the Government destroys peaceful protest by criminalizing organizations that sponsor it.