U.S. Using 132-Year-Old Law to Prosecute Greenpeace Over Protest Tactics

[Snazzy]

U.S. Using 132-Year-Old Law to Prosecute Greenpeace Over Protest Tactics

By Catherine Wilson Associated Press Writer
Published: May 16, 2004


MIAMI (AP) - When the wave-tossed Greenpeace activists boarded a container ship off Miami Beach two years ago, they didn't know it could lead to prosecution under a 132-year-old law aimed at keeping boarding houses from luring sailors to shore.

In a tactic the group has often used to make a point, the activists attempted to unfurl a large banner on the ship to protest what they saw as the Bush administration's inaction on a ban on Amazon mahogany imports.

In a trial starting Monday, federal prosecutors will dust off an 1872 law aimed at preventing "sailor mongering" to seek the first conviction of an advocacy group over its protest techniques.

...

"This administration is drunk on power and has gotten to the point where it thinks that it's appropriate to respond to political criticism with criminal prosecution," he said.

....
http://ap.tbo.com/ap/breaking/MGA6T3IMBUD.html

[DoNotRefill]

1. hmmm....encourage and help somebody to break the law...

and they prosecute you...go figure.

[Snazzy]

3. The activists were already prosecuted

Asscroft is going after Greenpeace itself. That's what's new. Envision, like Asscroft, Greenpeace on probation, reporting to a government monitor and losing tax exempt status.

Got something against civil disobedience? This is a maneuver to shut it down.

[DoNotRefill]

5. If an organization....

encourages and helps others to break the law, they're guilty as accessories. It's a crime.

[Snazzy]

6. then charge the organization's leaders...

with conspiracy or some appropriate law, not the organization with "sailor mongering."

Under this thinking, if MLK today organized an un-permitted march or sit-in, the Feds should go after shutting down his church? I won't even hit you with some Gandhi.

I'm not in favor of giving corporations first amendment rights either, I might add.

[DoNotRefill]

10. there's a pretty big difference...

between a church and an activist organization.

BTW, wasn't Ghandi's whole thing about breaking the law and then accepting personal responsibility? I also remember MLK being thrown in jail a few time, and he didn't whine about it. He stood up.

[Snazzy]

14. Not really.

They are both non-profit organizations under our laws.

And the activists were personally prosecuted already. They "stood up," just like always. This is an Asscroft add on, going after the organization itself, criminally, as if it were a person. And using an obscure law to do so. That's the point, and it is a valid point of contention and objection, not a bunch of whining.

And no, I wouldn't at all characterize Gandhi's (or MLK's) "whole thing about breaking the law and then accepting personal responsibility." More like peacefully and passively resisting oppression, violence, and unjust laws. The jail time was a consequence of what he taught people to resist, not the object--a tactic, not the goal. The goal was change through an appeal to human decency. When they locked him up and created special laws to prosecute him, he knew he had won. That successfully and dramatically unmasked the hypocrisy of Britain's imperialism and their methods of control.

And actually, this will be good for Greenpeace for exactly the same reasons (if it goes anywhere in court).

[DoNotRefill]

18. When MLK and Ghandi...

broke the law, did they try to escape prosecution?

Of course not. They made the State put them in jail, and they went. That allowed them to maintain the "moral high ground". Greenpeace is trying to duck responsibility for their actions aiding and abetting the protesters. If they sucked it up, they'd have the moral high ground. But they're refusing to do so and trying to escape their responsibility, for one reason only: It'll cost them money.

[DoNotRefill]

20. BTW...

greenpeace is lucky they're not going after them on a RICO violation...they should be glad they dug up the old law, instead of slapping them with both a civil and criminal RICO suit, which they'd win.

[Snazzy]

23. If Asscrack had that charge, they should use it

He doesn't. They can't make that case so they are using "sailor mongering" and they are trying to prosecute a 501(c)3 as a person, which is a brand new twist.

Why do you think they'd win? What do you have against Greenpeace anyway?

Anti-nuke tests, save the seals, save the whales, anti-Bush policies of destroying the environment on many many fronts. All heavily democratic causes. What gives?

[DoNotRefill]

26. Who said I have anything against Greenpeace?

I've got a friend (different organization, same idea, stronger tactics than Greenpeace, in fact he was a founding member of the first Greenpeace group in the US, but left after Greenpeace morphed into a money thing) in the Pacific now. He's probably going to end up in jail. He knows it, and that's the risk he took. When it happens, he will not bitch and moan about it.

As for RICO, you can convict a turnip of a RICO violation. That's the way it works.

[Snazzy]

31. Yeah, that was a bit harsh and presumtive...

of me. Apologies.

But point stands that no one is bitching and moaning, any more than a lawyer or a reporter bitches and moans. This activism thing is not as simple as paying a parking ticket.

Activism is objecting to getting the ticket in the first place. That's maintaining the moral high ground. You shouldn't be ticketed for protesting something us regular humans all know, on a moral basis, is wrong.

Having the ticket yields the opportunity to confront, in public, in court, your accusers. Maybe get some airing of the real issue you are protesting while doing so, in the court and in the papers. Isn't that clearly and exactly what is happening here?

And if Asscough could convict Greenpeace of RICO with the ease and elan of confronting a root vegetable, why doesn't he, instead of reaching for a charge that is primae facie underhanded and sneaky? No sailors were mongered in defense of mahogany.

But wait, I'll answer that! Because it wouldn't fly. He's hoping that this little stealth reinterpretation of ancient law will catch somebody by surprise, whilst adding a recent repub talking point that organizations can be accorded the same rights and jeopardy as real living beings. Corporate personhood is all the rage. It's not new, but it seems to me it is the big business legal strategy du jour. See, for example: Nike v. Kasky

(One link for that, you can roll your own: http://reclaimdemocracy.org/nike/kaplan_milchen_nike_oped.html _)

(Resource site: http://www.poclad.org/ModelLegalBrief.cfm )

In fact, there was a Florida Everglades case too. Same concept, slightly different twist, environmentalists v. polluters, with the civil rights of the corporation as a defense. And in Florida, natch. I would google this more, but I need to go eat already.... It has been a recent legal issue, especially with globalization.

Shut down US Greenpeace, remove stone in shoe, says Bushco. Get to play around with some constitutional law about the rights of corporations at the same time? A bonus.

RICO and the ever-popular turnip doesn't appeal to Asscough because the tuber doesn't have a million members who will write Congress should that prosecution go through.

Really, it's an out-there experiment by the anointed one. It's also a loser. Any added PR for Greenpeace is a win. Hey, that already happened!


----

BTW--I also left Greenpeace when some of the Nader PIRG people seemed to take over the national op. Where'd your friend go? Seashep? EF? They still stand for what's right, even if I didn't agree with management.

Edit: a little clarity.

[Snazzy]

22. They both had lawyers

I don't know where you are getting this notion of trying to duck responsibility. Nobody is talking about that.

What they (including me) are talking about is a ridiculous use of an obscure law.

BTW, Greenpeace pulled up to the logging importer in a ship, their ship. You have been talking about this like somehow Greenpeace advocated these actions from afar. They didn't. The people arrested and already tried worked for Greenpeace.

The fact that the government is stooping to such a level, and the fact that it is being reported in the press, benefits Greenpeace via publicity to the cause and for the organization.

That is exactly the point. There's no frickin whining. This is what Greenpeace does. Their motto of non-violent direct action derives directly from MLK and Gandhi. It is the same tactic.

Get a day in court and you can challenge the law. Activism isn't simply about obeying what you believe to be an unjust law and paying the fine, like you mention. It's about confronting authority.

[Snazzy]

25. Maybe Reuters helps clarify: Greenpeace to Court in Unusual Trial

U.S. Takes Greenpeace to Court in Unusual Trial
Thu 13 May, 2004 17:42

By Michael Christie

MIAMI (Reuters) - Greenpeace, charged with the obscure crime of "sailor mongering" that was last prosecuted 114 years ago, goes on trial on Monday in the first U.S. criminal prosecution of an advocacy group for civil disobedience.

The environmental group is accused of sailor mongering because it boarded a freighter in April 2002 that was carrying illegally felled Amazon mahogany to Miami. It says the prosecution is revenge for its criticism of the environmental policies of President Bush, whom it calls the "Toxic Texan." (<<< Snazzy notes: That's the guy we don't like)

...

Not once since the Boston Tea Party have U.S. authorities criminally prosecuted a group for political expression.

"It's ominous," said attorney Maria Kayanan of law firm Podhurst Orseck, which worked with the American Civil Liberties Union on a "friend of court" brief to back a Greenpeace demand that the government reveal who ordered the prosecution.

....

http://www.reuters.co.uk/newsArticle.jhtml?type=scienceNews&storyID=5135881§ion=news

That's DU's 4 grafs, but I strongly encourage a read of the whole thing if we're going to do much more of this. Cheers!

Edit typo

[DoNotRefill]

28. If they're not whining....

then why are they whining?

The people worked for Greenpeace. They were on Greenpeace owned boats. They were on a Greenpeace sanctioned mission, using Greenpeace tactics, flying Greenpeace flags.

They confronted authority, and are going to have to deal with that authority in court.

Let me ask you this. Suppose a crime boss orders two of his soldiers to go kill somebody. They do so. They get arrested and prosecuted. Is the crime boss free from criminal wrongdoing because he didn't pull the trigger? Of course not.

Greenpeace is in the same basic situation. Their motivations and the crime differ, but the same basic facts are the same. They ordered those people to do what they did, they helped them do it, and they're being charged.

[Snazzy]

36. who is the "they," who's whining? This is a news story.

There is no "they." The people charged acted.

If there is some conspiracy to pull the trigger for the action, charge that person or persons with some flavor of conspiracy or any one or more of our fine and vast selection of federal laws.

Does the mob, itself, get charged with a crime? No. And not under your RICO either.

Does al-Queda, itself, get charged with a crime? No. bin Laden did, named individuals did, unnamed (and unknown) co-conspirators did.

But skip that, and the salient points made about torts vs. criminal and an agenda to view corporations (or an organization) as fake people, which I posit.

Why do we need to go hypothetical? As Reuters clearly states (and AP less explicitly): this is the first time this ever happened. No precedent.

Yet you present it as they are getting what they deserve, take the medicine and stop complaining.

I'll post Greenpeace's take on it in a moment. They note that they have been joined by the ACLU, NAACP, American Friends Service Committee, People for the American Way, Tom Paine, Al Gore, The Miami Herald, and Patrick Leahy. In contesting the damn sailor mongering bs, not in anything else.

[Snazzy]

37. From Greenpeace Website

(Mods--I am certain this repost would not be objected to by GP)

Bush takes Greenpeace to court


Wed 12 May 2004
UNITED STATES/Miami

...

Throughout the 33-year history of Greenpeace the most unexpected people have come together to protect the environment and used non- violent direct action to highlight environmental crimes and injustice.

But this collection is perhaps one of the most extraordinary. What they do in the coming weeks could have significant implications not only for the future of Greenpeace in the US, but also for civil disobedience and the right to freedom of speech for all in America and even beyond.

Next week, on May 17th, Greenpeace USA will be under threat of being declared a criminal organisation at the behest of the US Attorney General, under an obscure law that has been invoked only twice in its 130 years on the statute books - the last time was more than 100 years ago.

Individual activists have been prosecuted in the past for carrying out action in support of Greenpeace campaigns worldwide - it is not unusual, and those individuals are prepared to take the consequences of their actions.

In April 2002, six Greenpeace activists did just that. After two of them boarded a commercial ship, the APL Jade, which was bringing illegal mahogany into the port of Miami, Florida, they pleaded guilty, were fined and sentenced to "time served" - the weekend they all spent in jail. The judicial process had run its course.

Or so we thought. 15 months later Greenpeace USA headquarters in Washington was served notice that the US Attorney General's office would be prosecuting the entire organisation for the action - the first time in history that the US Government has prosecuted an advocacy group for a free-speech related activity.

In a matter of a few weeks, US law could be used in an unprecedented way to declare Greenpeace USA a criminal organisation, as a result of acting to protect Brazilian mahogany - a species now declared at risk according to the Convention on International Trade in Endangered Species (CITES). It is worth noting here that at the time of the CITES declaration, many governments congratulated Greenpeace for the years of campaign work to protect the species. Now one government is prosecuting us for doing the same thing.

While Greenpeace sits in the dock in Miami, the loggers, shippers and traders of that illegal mahogany have cashed in and laughed at the law. Illegally logged wood is still going to the US and other countries around the world, the criminal underworld is still operating in the heart of the Amazon, those trying to protect the world's greatest rainforest are still operating under threat of death and sometimes dying, and countries like the US are still failing to live up to their promise under CITES to protect mahogany.

But this case is not just about Greenpeace and the Amazon. On trial is also the fundamental and cherished right to freedom of speech and civil disobedience. Many leaders and other advocacy groups in the US have recognised the great risk to civil liberties this prosecution presents and are supporting Greenpeace. They include former US Vice President Al Gore, the civil rights leader Julian Bond and the NAACP, the American Civil Liberties Union, the Sierra Club.

If you want to know more then check out http://www.greenpeaceusa.org/trial

[TiredTexan]

12. Have you ever heard of

civil disobedience? Under your logic, Rosa Parks would not be a heroine, but rather a criminal. There would have been no American Revolution. No Civil Rights movement. No Americans soldiers fleeing to Canada to avoid Vietnam. No Underground Railroad.

Laws are a tool to society, nothing more. You are blindly adhering to them regardless of their intent or purpose.

This is an abuse of prosecutorial discretion. Let the true criminals go free, and arrest those that protest their crime.

[DoNotRefill]

19. Part of civil disobedience...

is a willingness to do what's right, regardless of what it costs. When Rosa Parks sat in the front of the bus, she broke the law, was arrested, and put in jail. That made the law and the system look stupid. When MLK broke the law in the form of civil disobedience, he sat his ass in jail, and made the State look ridiculous. Hell, when Nelson Mandela broke the law, he sat his ass in jail, and made the State look ridiculous. When the State offered to let him out because they were tired of looking stupid, he said "no thanks, I'll stay and serve the sentence you gave me." That made them REALLY look stupid, and is why he's a Great Man(tm).

Civil disobedience is never without consequences. I've sat my ass in jail after an act of civil disobedience, and didn't bitch about it. Hell, I even paid my fine.

If you don't want to pay the penalty for an act of civil disobedience, fine, stay at home. But don't go bitching and moaning about the penalties afterwards.

[TiredTexan]

24. First you accused them of committing a crime ..........

now you are accusing them of "complaining" about being prosecuted for committing a crime. Your argument is a moving tarket, smoke and mirrors designed to distract from the weakness of your position.

Greenpeace members participated in civil disobedience, served their time and were released. And now the government is attempting to put Greenpeace out of business by filing charges against the organization itself so that its tax-exempt status can be revoked, and/or the organization ordered disbanded if further convictions occur. The media attention that they are getting as the result of their "complaining" is in an attempt to change the law and to draw attention to the abuse of prosecution. It's also an attempt to shame the administration for failing to enforce laws on illegal importation of mahogony.

This is exactly the same actions taken by Rosa Parks, Martin Luther King, etc. Greenpeace, being an organization, cannot be thrown in prison, so they can't serve the time without "complaint," as you suggest. The government's purpose is much more permanent than that.

So which is it? They're wrong because they committed a crime, or because they complained about it?

[DoNotRefill]

29. Greenpeace didn't commit a crime? Really?

That's strange, they (and you) seem to admit that the people were Greenpeace employees, pulling a Greenpeace action. Ever hear of "aiding and abetting"? How about "Accessory before the fact"?

When the Tobacco companies marketed a harmful product, did they go after the guys who ran the machinery, or the corporations?

[TiredTexan]

30. First you changed your argument, then you misrepresented

what I said. I never said Greenpeace didn't commit a crime, or that the activists were Greenpeace "employees." I said that there are good reasons to commit a crime in certain limited circumstances, and that it's called civil disobedience. All of that aside, my reading of the maritime statute indicates that there are serious problems with prosecution in that proving the mens re (criminal intent) of Greenpeace is likely difficult, if not impossible, in this context.

As to Greenpeace committing a crime, you said that they were lucky they weren't charged with criminal RICO, and that if they had they would have been convicted. Hate to tell you, but no RICO action lies here because RICO involves criminal conspiracy on US soil, not on the high seas. That's one of the reasons they had to resort to maritime law. Moreover, under RICO, you have to use the US mail or some other federal instrumentality to further the conspiracy. There is simply no ability to prosecute for RICO here or they would have charged them with it, you can rest assured.

Finally, your argument about the tobacco companies confuses civil liability with criminal liability. To my knowledge, there have been exactly zero criminal prosecutions of the tobacco companies, only civil suits for damages. The burdens of proof are different as are the plaintiffs (in criminal they are the government, in civil, the victim of the tort).

And, yes, I am an attorney and so have 20 years of experience in this stuff, so don't ask.

In closing, my mother always told me not to argue with a drunk, and that clearly means someone whose mind is closed and mouth is open. That means you, given your propensity for distortion and intellectual dishonesty. Accordingly, you're on ignore.

[Snazzy]

32. Ah! Thanks.

Good deal. The world needs more tired Texan attorneys! I think.... :P

Should add: a cogent argument, and learned about what's up with maritime vs. RICO (or maybe the catch all mail-fraud or some damn conspiracy). Offshore.

Is the "corporate" personhood (civil rights extended to the artificial person) in vogue, like I'm thinking (above somewhere)? That where some of this DoJ silliness / motivation is coming from?

[TiredTexan]

34. The Supreme Court

in a much-debated case (whose caption I can't recall) ruled that corporations could be "persons" for purposes of civil rights in the late 1800's. This decision actually is in contravention of the intent of the founding fathers who warned against allowing corporations too many rights.

In any event, a corporation, or a non-profit entity like Greenpeace, can be convicted of a crime, but it is very difficult to do so under most circumstances. Proving that the organization itself had an intent to commit the act is what becomes difficult to prove. It is much easier to convict an actual person, and that's why most criminal prosecutions are of the officers and directors of a corporation, not the corporation itself (think Enron, MCI, Arthur Anderson).

As to being in vogue, this old Supreme Court decision led to the mess we're in today, where corporations actually have more rights that real people given that it is so hard to prosecute them for crimes, yet they operate with all the rights and benefits of US citizens. All the assets, none of the liabilities.

There have been many calls over the years for the Congress to pass legislation to throw out the decision. This is possible, because corporations having civil rights is not a constitutional issue. Although with the people we have in power, it's certainly not very likely.

I'm not sure this answered your question, but I hope so.

[Occulus]

38. The case was

Santa Clara Cty. v. Southern Pacific Railroad Company <118 U.S. 394 (1886)>. Here's the pertinent quote from the case, taken from http://www.iiipublishing.com/afd/santaclara.html :

"Calling silence a victory, from 1877 to 1886 corporate lawyers assumed that corporations were persons, and their opponents argued that they were not. In Santa Clara County v. Southern Pacific Railroad Company <118 U.S. 394 (1886)>, at the lower court levels the question of whether corporations were persons had been argued, and these arguments were submitted in writing to the Court. However, before oral argument took place, Chief Justice Waite announced: 'The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.'

It is not half as strange that the Supreme Court judges would render such an opinion, given their allegiance to the propertied class, as the way that they rendered it. These guys loved to write long-winded, complex opinions; look at any Supreme Court opinion of the time (or any time) and you'll see that. This question had never been covered in a Supreme Court decision; it had been avoided. Here was the perfect chance for any of nine Supreme Court judges to make his place in history. All declined. No one wanted to explain how an amendment about ex-slaves had converted artificial entities into the legal equivalent of natural persons."

It should be noted that although this justice's statement, to my knowledge, exists in the headnotes for the case, it does not exist in the body of the decision itself. As far as I know, only the body affects the outcome of the case; headnotes have no 'force of law' and so should be irrelevant to changes in the law. Please, correct me if I am wrong.

I'd also like to point out that the court at the time effectively rendered law into existence based upon whim alone; it was as if it were a declaration from a king, and it has had that effect. The statement itself invites a major test case.

[DoNotRefill]

33. Hmmmm...

Where was the conspiracy carried out? On the ocean, or here in the US, at Greenpeace HQ? Since the conspiracy was undoubtedly was carried out in the US (how else would the decision have been reached to send out the boats?), they could bring RICO into play if they wanted to. All they have to do is show that this is the third such instance within the past 10 years. I wonder, has Greenpeace had three different sets of activists convicted in the past 10 years? As for the Federal aspect, well, DUH!!! International shipping/interference with interstate and international commerce, take yer pick.

RICO has both a civil and a criminal element. The civil element carries the possibility of substantial monetary damages.

Finally, possession of a J.D. doesn't confer Internet Argument Godhood upon anybody, especially when we're talking about the graduate of some third-tier podunk boutique law school. I don't know where the law school you graduated from is ranked, but I'm reasonably certain that my alma mater wasn't second, third, or fourth tier. Been there, done that, got the Bar card.

[DBoon]

35. They did expect to be individually prosecuted

for the misdemeanors involved.

Dragging up an almost-never-enforced 130 year old law was not part of the plan.

How many things do you or I do every day that violate some similarly obscure old law? And what should I think if suddenly I am prosecuted under this law while engaging in political expression?

[eleonora]

2. this is an open attack on our right to peacefully protest

Of course, the guys who ILLEGALLY exported brazilian mahogany DID NOT get prosecuted.

This administration is ..grrrr...heinous

[mouse7]

4. What ever happened to plain old "trespassing?"

Do they think a judge will treat this case any different than any other tresspassing case?

Tresspassing charges are SOP for civil disobedience actions. The protesters do their thing and then let the police do their thing in arresting the protesters for tresspassing. That's how civil disobedience works.

[atre]

7. Interesting

This case would be a criminal defense lawyer's dream come true. There is no way that this case even reaches the opening statements.

The conviction touches on political speech, deserving of the most searching First Amendment scrutiny, and thus must be justified by a compelling purpose and narrowly tailored to achieve that purpose. Given the list of things that have been held not to be compelling with respect to speech, there is no way that this prosecution would pass muster.

The charges would also possibly violate the Due Process Clause of the Fifth Amendment, since a reasonable person would not expect prosecution for a 150-year old statute (goes to "notice"). There's also the "Void for Vagueness" doctrine (a component of procedural due process), which the article mentions the likely basis for the judge's eventual dismissal of this cahrge.

It is also implicates the rules of statutory construction, which provide that the primary guide for criminal courts in interpretting statutes is legislative intent. Here, we are told the legislative intent is something altogether different.

I say the chance of these protestors getting convicted (or of any conviction being upheld on appeal) of this charge is virtually nil.

It is sad and shocking, however, to see criminal prosecution used as a political tool. If Kerry doesn't win this election, I think it inevitable that Tommy Frank's prediction will come to fruition: the great American expiriment will come to an end after 230 years.

[thecrow]

8. The most interesting piece of the article, to me, was...

<snip>
"U.S. District Judge Adalberto Jordan has rejected Greenpeace's attempt to access records to determine who authorized the prosecution. "

<snip>
:wtf:
Are you no longer allowed to know who your accuser?

[ZCFlint05]

9. no more right to assemble

The things that this country is coming to are quite disturbing...just more proof of the Bush adminstration's destruction of our rights.

[DoNotRefill]

21. There's a difference...

between confronting your accuser, and gaining access to information protected by the attorney-client privilege.

[demdave]

11. Here is the actual law in the U.S. Code.......

TITLE 18 > PART I > CHAPTER 111 > Sec. 2279.
Sec. 2279. - Boarding vessels before arrival



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 by him taken before any committing magistrate, to be dealt with according to law

[AP]

13. And I hear next Wednesday, an English QC will be prosecuting a 15 year old

For carrying out 2 1/2 hours of longbow practice unsupervised by the local clergy.

[Just Me]

15. This is just too bizarre. Obviously a prosecution driven by politics. n/t

[David Zephyr]

16. Kick! Everyone at the DU Owes Greenpeace Our Support.

:kick:

[LastLiberal in PalmSprings]

17. Yet the administration calls the Geneva Convention "quaint",

Germany and France part of "Old Europe" and the ABM Treaty "an antiquated document."

But an 1872 law is just the thing to go after organizations the administration doesn't like.

Figures.

[LoZoccolo]

27. Arrested at the Mardi Gras for jumpin' on a float.

My man MCA's got a beard like a billy goat.
- The Beastie Boys, "Shake Your Rump"