December 03, 2003

Why Target Greenpeace?

Yes, the PATRIOT ACT is an abomination, and they are already abusing its extraordinary UN-constitutional powers. Yes, they are "spying" on the legal activities of US anti-war demonstrators. Yes, in Miami, they sought to intimidate and squeeze anti-globalization demonstrators in an unprecedented way. Yes, they are going to suppress dissent in whatever ways they can.
But please take a few moments and read this excerpt from the ACLU's amicus brief in the US Just Us Dept. prosecution of Greenpeace. The case is shocking and of grave importance. I say "shocking" because it is simply unprecedented in over 200 years of US political life, I say "of grave importance" because of what it portends. Imagine, for example, what course history might have taken if the Southern Christian Leadership Council (Dr. King's organization) had been prosecuted in this way, by federal authorities? This illegitimate, corrupt and incompetent regime is entrenching itselfm and doing whatever it can to stifle, intimidate, marginalize and suppress dissent. The Bush cabal has an agenda. Its agenda is not to protect the US populace from harm (foreign or domestic), it's agenda is to protect its corporate sponsors from the US populace and the rest of the world population as well. It did not except defeat in 2000, it would not allow set backs in 2002, and it will not go quietly in 2004. Ironically, today, news stories ran about Ralph Nada's exploratory committee for another run for President on the Green Party ticket. What a disgrace. The man is not a moron. The man knows that a Gore Justice Dept. would not be prosecuting Greenpeace. It is just one more of many painful refutations of Nada's BIG LIE (i.e. "no difference between Bush and Gore") and of his complicity in the Coup of 2004..Save the US Constitution, Show Up for Democracy in 2004: Defeat Bush (again)!
Why Target Greenpeace?

The American Civil Liberties Union (ACLU) works in courts, legislatures and communities to defend and preserve individual rights and liberties guaranteed by the Constitution and laws of the United States. The People for the American Way Foundation advocates legal and social justice and the fundamental rights and freedoms of the Constitution.

Editor’s note: The following is an excerpt from the amicus brief filed by the ACLU and PFAWF. Click here to read the whole brief.

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.

The prosecution of Greenpeace indicates a sea change in that policy. Until now, only individual members of those groups have been prosecuted for their nonviolent, albeit unlawful, acts of civil disobedience. Greenpeace asserts, and there is reason to believe, that the government has selectively prosecuted it because of the content of its message. Selective prosecution violates the First Amendment and equal protection rights of Greenpeace; it also threatens every advocacy group whose message may offend the government of the moment.

The government’s radical departure from two hundred years of history invites the closest scrutiny. It has chosen to prosecute Greenpeace, an organization that regularly criticizes government policies, for the civil disobedience of its members. Using an arcane statute designed to deter the even more arcane practice of sailor-mongering, the government apparently seeks to silence Greenpeace, despite already having prosecuted and punished the individual Greenpeace "climbers" who performed the acts of protest aboard the vessel Jade.

This prosecution threatens the very existence of Greenpeace, and because it appears to be based upon the content of its message, imperils the core values of the Constitution to which the ACLU and PFAWF are dedicated.

Greenpeace’s Mission

Greenpeace is internationally recognized as an environmental activist organization. Since 1971, its mission has been to expose global environmental problems. Greenpeace describes itself in its Mission Statement: "In pursuing our mission, we have no permanent allies or enemies. We promote open, informed debate about society’s environmental choices. We use research, lobbying, and quiet diplomacy to pursue our goals, as well as high-profile, nonviolent conflict to raise the level and quality of public debate."

Since its formation, Greenpeace and its activists have proven to be a thorn in the side of governments - foreign as well as domestic - and private corporations. That is their mission, and when individuals choose peaceful civil disobedience as a tool, they willingly pay the price for their actions. Their lobbying, diplomacy, and their protests, with and without civil disobedience, have proven effective.

Until this indictment against the organization itself, however, only individual members of Greenpeace have been prosecuted for engaging in civil disobedience. A conviction may endanger Greenpeace’s nonprofit status, and therefore its existence. Never in the jurisprudential history of the United States has an organization like Greenpeace that engages in a wide variety of constitutionally protected means of expression been charged with a criminal act arising from acts of civil disobedience by its members.

Should Greenpeace be convicted as charged, the consequences would be disastrous to its mission of nonviolent environmental activism. Although the government casts the crime charged as a "petty offense" (United State’s Response to Defendant’s Motion for Jury Trial at p.2), that cavalier description belies the true import of this charge. Greenpeace, if convicted, could be, through conditions of probation, forced to abandon its forum and disavow its members’ actions. Such terms would allow the government to silence Greenpeace, a result that is abhorrent to the values of freedom of speech.


On April 12, 2002, two Greenpeace activists climbed aboard the Jade, a vessel believed to be carrying mahogany illegally harvested in Brazil, allegedly being imported into the United States in violation of an international treaty to which the United States is a signatory. Their mission was simple: to alert the authorities to the presence of illegal mahogany so that the government could halt the shipment, and to unfurl a banner that read "President Bush: Stop Illegal Logging."

The individuals clearly identified themselves as Greenpeace activists; their boarding vessels and clothing bore the Greenpeace name. Those activists were arrested, prosecuted, convicted of misdemeanors, and sentenced to time served. However, in July of 2003, a federal grand jury issued an indictment against "Greenpeace, Inc., d/b/a Greenpeace, U.S.A.," charging the organization with conspiracy to violate 18 U.S.C. § 2279.

The Crime Charged

The predicate of the conspiracy indictment is a statute passed by Congress in 1872.

Whoever, not being in the United States service, and not being duly authorized by law for the purpose, goes on board any vessel about to arrive at the place of her destination, before her actual arrival and before she has been completely moored, shall be fined under this title or imprisoned not more than six months, or both. The master of such vessel may take any such person into custody, and deliver him up forthwith to any law enforcement officer, to be taken by him before any committing magistrate, to be dealt with according to law. 18 U.S.C. § 2279 (2002).

The act has been cited in only two cases since its passage over one century ago: United States v. Sullivan, 43 F. 602 (D. Or. 1890), and United States v. Anderson, 24 F. Cas. 812 (S.D. N.Y. 1872). In Sullivan, the court explained this odd and obscure prohibition:

The evil which this section is intended to prevent and remedy is apparent, and in this district notorious. For instance, lawless persons, in the interest or employ of what may be called "sailor mongers," get on board vessels bound for Portland as soon as they get in the Columbia river, and by the help of intoxicants, and the use of other means, often savoring of violence, get the crews ashore, and leave the vessel without help to manage or care for her. The sailor thereby loses the wages of the voyage, and is dependent on the boarding house for the necessaries of life, where he is kept, until sold by his captors to an outgoing vessel, at an enormous price. Sullivan, 43 F.602, 604-05.

This statute is thus a product of the lawless shipping days of the 19th century, when sailors were lured from their vessels by promises of liquor and loose women. Its application to an internationally recognized nonviolent environmental and political action group of the twenty-first century raises a red flag of suspicion that the government has targeted Greenpeace not for sailormongering, surely an absurd proposition, but for its political speech. That red flag should caution this Court to allow inquiry beyond the four corners of the charging document and order the government to produce the discovery Defendant seeks in its Motion for Discovery on Claim of Selective Prosecution.

“Before the government proceeds, it should account for why, from among countless advocacy organizations whose members sometimes employ peaceful civil disobedience, it has selected only Greenpeace for prosecution.”

Before the government proceeds, it should account for why, from among countless advocacy organizations whose members sometimes employ peaceful civil disobedience, it has selected only Greenpeace for prosecution; the government should also provide the materials Greenpeace seeks relating to the commencement of this prosecution. This Court, apprised of the nature of the crime charged in the indictment, should require the government to disclose whether, in the one hundred and thirty-one years since the passage of this act, it has prosecuted other organizations for similar actions, or whether, in fact, the application of this "sailor mongering" statute is an attempt to suppress protected expression of opposition to U.S. environmental policy.

First Amendment and Selective Prosecution

The First Amendment bars a criminal prosecution where the proceeding is motivated by Civil disobedience. This has deep roots in American history; it reaches back to colonial days and has been part of every major social movement. Yet from the earliest days of colonial America, the target governments&mdashfirst the United Kingdom, later the United States&mdashprosecuted individuals who engaged in civil disobedience, but until today, never prosecuted the groups on whose behalf they acted.

Early resistance to British rule took the form of peaceful civil disobedience; in the Massachusetts Bay Colony, Quakers and Baptists "were hanged, banished, or whipped. Later they were fined, imprisoned, or distrained" for refusing to pay taxes in protest against the Standing Order. Though the British reacted forcefully against early civil disobedients, they did not punish the churches who led them.

Peaceful civil disobedience against slavery was widespread from the early nineteenth century through the beginning of the Civil War. Writing in "Resistance to Civil Government," Henry David Thoreau urged his fellow citizens to refuse to pay taxes in protest against slavery. Like the men and women of Greenpeace, Thoreau knew the price of civil disobedience was jail; he embraced it, writing that the true place for a just man is also a prison.

Thoreau, Charles Beecher, Theodore Parker and Nathaniel Hall, and dozens of other men and women who individually and collectively advocated nonviolent disobedience to law. Though their appeals to conscience were insufficient to bring slavery to an end, they established forever the place of civil disobedience in the American polity, yet none of their organizations ever faced prosecution.

After the Civil War, peaceful civil disobedience emerged as the principal weapon of women in their quest for the right to vote. When quiet disobedience to law proved ineffectual, suffragists resorted to organized civil disobedience, with large numbers of women picketing the White House, burning copies of the president’s speeches, and even burning the president in effigy, all in defiance of then-current law.

Jailed under barbaric conditions, their suffering moved a nation; through peaceful civil disobedience, women secured the right to vote. Yet though their mass protests were well organized, and though hundreds and perhaps thousands were jailed, there is no record of a prosecution of any of their sponsoring organizations.

With ratification of the Nineteenth Amendment, the nation turned to the great unfinished business of the Civil War – racial equality, with peaceful civil disobedience the driving force. The Civil Rights Movement dipped deep into the well of history; Dr. King explained then what the government overlooks today:

[T]he truth is that no one can scorn nonviolent direct action or civil disobedience without canceling out American history. The first nonviolent direct action did not occur in Montgomery. Its roots go back to the American Revolution and the boycott against British tea culminating in the Boston Tea Party. It was the favorite weapon of the suffragette movement when women had to fight for their right to vote.

The Civil Rights Movement marked a watershed of a different sort. Stung by civil disobedience, state governments and segregationists launched legal assaults against the NAACP and other civil rights organizations in an effort to quell dissent by their members. In NAACP v. Alabama, 357 U.S. 449 (1958), the Court laid the groundwork for its many decisions protecting advocacy groups from state suppression: "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."

Operation Rescue, for example, urges members to participate in "Rescues," which it defines: Peacefully rescuing unborn children occurs when a group of pro-lifers sit down in front of the abortuary doors, thus physically intervening for the baby by placing their bodies between the abortionist and the mom. This helps to buy time for the sidewalk counselors to offer help and information to the mothers scheduled for abortion.

So defined, the conduct Operation Rescue sponsors violates the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248, yet the government has never prosecuted Operation Rescue or any of its sister organizations who oppose abortion through nonviolent and sometimes violent civil disobedience.

The government’s prosecution of Greenpeace turns history on its head. Until today, the United States has respected advocacy organizations whose members practice nonviolent civil disobedience; now it seeks to prosecute one of those organizations.

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Published: Dec 02 2003

Posted by richard at December 3, 2003 06:02 PM