by Jonathan Turley / Commentary — Los Angeles Times –

http://www.latimes.com/news/printedition/opinion/la-oe-turley17oct17,1,7018434.story

(October 17, 2003) — It has lain dormant in the darkest recesses of American law for 125 years, but this month Atty. Gen. John Ashcroft introduced critics of the administration to his latest weapon in law enforcement.

In a Miami federal court, the attorney general charged the environmental group Greenpeace under an obscure 1872 law originally intended to end the practice of “sailor- mongering,” or the luring of sailors with liquor and prostitutes from their ships. Ashcroft plucked the law from obscurity to punish Greenpeace for boarding a vessel near port in Miami.

Not only is the law being used to prosecute one of the administration’s most vocal critics in an unprecedented attack on the 1st Amendment, but it appears to be part of a broader campaign by Ashcroft to protect the nation against free speech, a campaign that has converted environmentalists into “sailor-mongers” and nuns into terrorists.

The case against Greenpeace started with a protest in April 2002. The activist group was leading an international effort to stop the illegal importing of mahogany. It believed that a ship, the APL Jade, was engaging in this illegal trade and decided to conduct one of its signature demonstrations to protest the Bush administration’s failure to stop the imports.

In clearly marked boats, Greenpeace followed the ship. Two of its members boarded the vessel about eight miles outside the Miami port, carrying a banner that read “President Bush, Stop Illegal Logging.”

“President Bush, Stop Illegal Flogging”
Such protests are common, and the two activists wore Greenpeace jackets, identified themselves as Greenpeace members and allowed themselves to be arrested. They ultimately pleaded guilty to a misdemeanor and were released. The wood was unloaded and everyone seemed satisfied.

Everyone, that is, except Ashcroft.

Fifteen months after the incident, the Justice Department filed an indictment in Miami against the entire Greenpeace organization under the 1872 law, a law that appears to have been used only twice.

A New York court in 1872 described the law as both “inartistic and obscure.” An Oregon court in 1890 described the purpose of the law as preventing “the evil” of “sailor-mongers [who] get on board vessels 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.”

Ashcroft Turns Protesters and Nuns into “Sailor-mongers”
Of course, there did not appear to be many sailors on the APL Jade being lured out to join Greenpeace. But proceeding against two protesters on trivial misdemeanor charges wasn’t enough for the Justice Department. So it decided to treat Greenpeace activists not as protesters but as sailor-mongers.

Greenpeace now could lose its tax-exempt status — a potential death knell for a large public interest organization. A conviction could also force Greenpeace to regularly report its actions to the government. Such a prospect must secretly delight many in the administration who see the group as an ever-present irritant. After all, it was Greenpeace that held the first demonstration at the president’s ranch after his inauguration, causing a stir when activists unfurled a banner reading “Bush: the Toxic Texan. Don’t Mess With the Earth.”

Since that time, Greenpeace has waged a continual campaign against Bush’s environmental record. Ashcroft’s jihad against free speech, however, is not limited to environmentalists. Consider the case of three Dominican nuns

Last year, Sister Ardeth Platte, 66, Sister Jackie Hudson, 68, and Sister Carol Gilbert, 55, participated in a peaceful demonstration for nuclear disarmament.
As part of the protest, the three nuns cut through a chain-link fence around a Minuteman III missile silo. There is only a light fence because the missile is protected by a 110-ton concrete cap that is designed to withstand a nuclear explosion. The nuns proceeded to paint crosses on the cap and symbolically hit it with hammers. They then knelt, prayed, sang religious songs and waited for arrest. The most the government could allege in terms of damage was $3,000.

Ashcrot Sought 30-year Prison Terms for Pacifist Nuns
However, the Ashcroft Justice Department wanted more than compensation and a common misdemeanor. It charged the nuns with obstructing national defense, which subjected each to a potential 30-year prison term. When the government pushed the court to impose sentences of as much as eight years, the judge refused. However, the judge found, as alleged by the government, that the three nuns had put military personnel “in harm’s way.” Accordingly, he imposed on them sentences ranging from 2 1/2 years to 3 1/2 years.

The administration has pursued a similar zero-tolerance policy in other cases. It has been accused of using unconstitutional “trap-and-arrest” tactics to suppress protests in Washington, DC, where hundreds of journalists, bystanders and student protesters were arrested en masse without a warning or an opportunity to disperse. They were then left hog-tied in holding areas for as long as 20 hours, with their hands bound to their ankles.

The Greenpeace case is particularly chilling because of the extraordinary effort to find a law that could be used to pursue the organization. The 1872 law is a legal relic that must have required much archeological digging through law books to find.

It is also notable that other organizations have not faced such attacks. For example, in this same judicial district in Florida, the Cuban American group Democracy Movement organized a protest in which members sailed into a government-designated security zone. Although the members were charged, the organization was not. Similarly, other groups viewed favorably by the administration — such as anti-abortion groups — have not been subject to criminal indictments of their organizations for such protests.

Selective Prosecution – the Scourge of the First Amendment
The extraordinary effort made to find and use this obscure law strongly suggests a campaign of selective prosecution — the greatest scourge of the First Amendment.

Greenpeace was engaged in a classic protest used by countless organizations, from those of the civil rights movement to anti-abortion groups. It is a way for citizens to express their opposition by literally standing in the path of the government.

None of these organizations contest the right of the government to punish them for trespass or even criminal misdemeanors. Indeed, they view such punishment as a badge of honor.

However, Ashcroft is now seeking symbols of his own: The image of a major environmentalist organization placed on probation or nuns being sent to jail is clearly meant to send a chilling message from the man who once accused his critics of aiding and abetting terrorists.

Unless deterred by Congress or the courts, Ashcroft will continue his campaign to protect Americans from the ravages of free speech. If he succeeds, it will not be sailors but free speech that will be shanghaied in Miami.

Jonathan Turley is a professor of law at George Washington University. Copyright 2003 Los Angeles Times.

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