Federal suit targets Greenpeace for members' actions - Experts say conviction may dampen dissent

Adam Liptak, New York Times
published in San Francisco Chronicle

Saturday, October 11, 2003

Three miles off the Florida coast in April 2002, two Greenpeace activists clambered from an inflatable rubber speedboat onto a cargo ship. They were detained before they could unfurl a banner, spent the weekend in custody and two months later were sentenced to time served for boarding the ship without permission.

It was a routine act of civil disobedience until, 15 months after the incident, federal prosecutors in Miami indicted Greenpeace itself for authorizing the boarding. The group says the indictment represents a turning point in the history of American dissent.

"Never before has our government criminally prosecuted an entire organization for the free speech activities of its supporters," said John Passacantando, the executive director of Greenpeace in the United States.

In court papers, the organization's lawyers warned that the prosecution "could significantly affect our nation's tradition of civil protest and civil disobedience, a tradition that has endured from the Boston Tea Party through the modern civil rights movement."

Legal experts and historians said that the prosecution may not be exactly unprecedented, citing, for instance, legal efforts by state prosecutors in the South to harass the NAACP in the 1950s and 1960s. But they said it was both unusual and questionable.

"There is not only the suspicion but also perhaps the reality that the purpose of the prosecution is to inhibit First Amendment activities," said Bruce Ledewitz, a law professor at Duquesne University in Pittsburgh who has studied the history of civil disobedience in America.

Matthew Dates, a spokesman for the U.S. attorney's office in Miami, declined to respond to questions about whether the prosecution was unusual or politically motivated. In court papers, prosecutors defended the indictment.

"The heart of Greenpeace's mission," they wrote, "is the violation of the law."

The trial is scheduled for December.

Greenpeace is a corporation and so cannot, of course, serve prison time. But it can be placed on probation, requiring it to report to the government about its activities and jeopardizing its tax-exempt status. If convicted of the misdemeanor charge, Greenpeace also could face a $10,000 fine.

The group is charged with violating an obscure 1872 law aimed at the proprietors of boarding houses who preyed on sailors returning to port. The law forbids the unauthorized boarding of "any vessel about to arrive at the place of her destination."

The last court decision concerning the law, from 1890, said it was meant to prevent "sailor-mongers" from luring crews to boarding houses "by the help of intoxicants and the use of other means, often savoring of violence."

Passacantando said he had authorized the boarding in 2002.

"I do give final sign-off on an action like this," he said. "The buck does stop with me."

Greenpeace maintains that the ship in question was illegally importing mahogany from Brazil. The harvesting and shipment of mahogany is governed by stringent international rules meant to prevent damage to the Amazon's environment. In the indictment, federal prosecutors said that Greenpeace's information was mistaken. A spokesman for the ship's owner, APL Ltd., did not respond to a request for comment.

Passacantando said the prosecution of the organization itself, as opposed to its supporters, is unwarranted and part of what he called Attorney General John Ashcroft's attack on civil liberties. He acknowledged, however, the importance of ensuring the safety of the nation's ports in light of the Sept. 11 terrorist attacks.

"If we were to lose this trial," he said, "it would have chilling effect on Greenpeace and on other groups that exercise their First Amendment right aggressively. The federal government is using 9/11 to come down harder on an action like this, which was a good and dignified and peaceful action."

Even a minor criminal conviction, legal experts said, could have profound consequences for an organization like Greenpeace.

"You in effect have a record," said Rodney Smolla, dean of the University of Richmond School of Law in Virginia. "It has a chilling effect."

In their legal papers, prosecutors acknowledged that a conviction could have tax consequences and "a chilling effect on First Amendment rights." Nonetheless, they opposed the organization's request for a jury trial, which is ordinarily available only where the defendant faces more than six months in prison.

The potential loss of constitutional rights, prosecutors wrote, does not require a jury. In support of this argument, they cited a misdemeanor domestic violence prosecution in which the defendant was denied a jury trial although he faced the possibility of losing his license to carry a gun.