Students, Nuns and Sailor-Mongers, Beware

Los Angeles Times

October 17, 2003

Commentary

Students, Nuns and Sailor-Mongers, Beware

Atty. Gen.Ashcroft is pulling out all the stops to

prosecute protesters.

By Jonathan Turley

(Jonathan Turley is a professor of law at George

Washington University)



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."

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."

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 ,000.

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, D.C., 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.

The extraordinary effort made to find and use this

obscure law strongly suggests a campaign of selective

prosecution - the greatest scourge of the 1st 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.



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