San Francisco Chronicle

12/30/03

Protesters wary of new tactic by feds

Obscure 1872 law cited in case against Greenpeace

By Joe Garofoli

Bay Area nonprofits and anti-war leaders are fuming about what they see as an attempt by the Justice Department to clamp down on peaceful dissent by filing criminal charges against a group for the nonviolent actions of its followers.

Local activists are closely watching a case winding through the federal courts in Miami. There, a federal prosecutor has dusted off a 19th century law designed to prevent bar owners from luring sailors ashore with booze and prostitutes to file charges against Greenpeace in connection with an April 2002 case in which two activists tried to hang an anti-President Bush banner on a container ship headed into port.

The sign-hangers and four other Greenpeace activists pleaded no contest last year to misdemeanor charges and were sentenced to time served. Now it's their 32-year-old parent organization's turn in court.

If convicted of conspiring to illegally board a ship, Greenpeace could be sentenced to five years' probation and a $10,000 fine, and be required to allow federal probation officers to oversee certain parts of its organization.

While it's not uncommon for individuals to be charged in such cases, activists say this is the first time an advocacy organization has faced criminal penalties for its followers' actions. With 2004 promising to be a huge year of street activism -- from the presidential political conventions to the anti-war movement to the re-energized abortion debate -- advocacy groups from Operation Rescue to the American Civil Liberties Union say the Justice Department is using this tactic to chill criticism of the government.

They're particularly puzzled that prosecutors invoked an 1872 "sailor mongering" law from an era when whorehouse and tavern owners would jump aboard ships illegally to lure sailors onto shore with promises of women and booze. Until the Greenpeace case, the statute had been used only twice, the last time in 1890. A Justice Department spokesman said a trial could begin in May.

"The problem is that the Bush administration is responding to political criticism with criminal prosecution," said David Bookbinder, an attorney with the Sierra Club in San Francisco, one of the progressive heavy hitters to file a court brief in support of Greenpeace. "People are going to be real, real leery about exercising their First Amendment rights."

Federal officials say there was no political motivation behind the decision by U.S. Attorney Marcos Jimenez to prosecute. "Politics plays no part in our prosecutorial decisions," said Matt Dates, special counsel for public affairs for the U.S. attorney's south Florida office. "We base our decisions solely on the facts of the case."

On April 12, 2002, two Greenpeace activists boarded the APL-Jade as it entered the Port of Miami-Dade, believing it was carrying 70 tons of mahogany illegally imported from the Amazon. The activists were arrested before they could unfurl a banner that read, "President Bush: Stop Illegal Logging." Greenpeace alleges that the mahogany was eventually delivered to a South Carolina port. Federal officials had no comment.

Fifteen months later, a Miami federal grand jury indicted Greenpeace on one count of illegally boarding the ship and another of conspiracy to commit that act.

What most frightens activists on both sides of the political spectrum are the penalties that could be invoked, ranging from stripping the organization of its tax-exempt status to allowing federal officials to view its records -- including everything from membership rolls to internal communications.

"It's always a concern when there's a concerted effort by the government to curb peaceful political protest," said Troy Newman, president of the anti- abortion group Operation Rescue West, which has not filed a friend of the court brief. "Greenpeace and Operation Rescue may not be on the same page philosophically, but we use some of the same tactics. . . . I plan on following Howard Dean or whoever the Democratic (presidential) nominee is around the country (in a truck featuring photos of aborted fetuses), and I don't want to be inhibited."

'A dangerous precedent'

While the legal fees won't be onerous to an organization like Greenpeace, which had $21.7 million in revenue in 2002, experts say a long court fight could sink smaller organizations.

"This is setting a dangerous precedent when you're politicizing a law for a purpose for which it is never intended," said Stephen Zunes, an associate professor of history at the University of San Francisco and an expert on social movements. "It's (also) somewhat of a stretch to be using a law that hasn't been used for 100 years.

"If the federal government is going to do that, it has a chilling effect, as people are going to wonder what obscure law they're going to dust off next."

That chill is spreading to advocacy organizations across the political spectrum. Major actions are planned this year at everything from national political conventions in Boston and New York to a June biotechnology conference in San Francisco. Abortion-related demonstrations will be held in Washington, D.C., and anti-war demonstrations will mark the one-year anniversary of the start of the Iraq war.

It's chilliest at Greenpeace. Organizers there haven't canceled any events or curbed their criticism of the Bush administration, but are keeping a low profile lately.

"We're erring on the side of caution," said Greenpeace spokeswoman Nancy Hwa. "(The case) is casting a shadow over our activities. We don't want to do anything that the prosecution is likely to use against us."

Anti-war organizers such as Richard Becker of San Francisco, whose International ANSWER was at the forefront of coordinating peace demonstrations over the past 18 months, called the Miami prosecution "part of the crackdown on dissent that's been going on after Sept. 11." The group has called on the FBI to release internal memos concerning what it suspects was federal surveillance of Oct. 25 demonstrations that drew 100,000 in Washington, D.C., and 20,000 in San Francisco. Last week, California Democratic Sens. Dianne Feinstein and Barbara Boxer wrote a letter to FBI director Robert Mueller saying the agency's "Joint Terrorism Task Force should not be used to collect intelligence on the lawful activities of American dissenters."

Prosecution could backfire

Julian Bond, an advocate of nonviolent civil disobedience from his days as a civil rights leader, said prosecuting organizations such as Greenpeace could backfire on the federal government.

"When you force out the moderate leadership of a movement, you often get a more radical one in its place," Bond said. "This is an important case. If there was no civil disobedience in this country, we would still be sitting in the back of the bus, still not allowed to sit at lunch counters."

The Miami case is leading some activists to move more covertly -- and remain unaffiliated -- when committing civil disobedience. Some are opting for the guerrilla tactics used by Direct Action to Stop the War, the shadowy network that coordinated thousands of activists who paralyzed downtown San Francisco in March after the United States invaded Iraq.

Bay Area Direct Action activists were among the key organizers in street protests at last month's Free Trade Area of the Americas meeting in Miami, where they were met by more than 40 law enforcement agencies.

But if federal prosecutors tried to go after Direct Action itself, "there would be nothing there," said organizer Patrick Reinsborough. "We don't have an office or an organization or anything. We're individually targetable, that's about it.

"Still, this is scary," Reinsborough said, "because if the federal government is willing to go after Greenpeace, they're willing to go after anybody."