Air Date: Week of October 17, 2003

The federal government recently brought criminal charges against Greenpeace for an act of civil disobedience carried out by members more than a year ago. Host Steve Curwood discusses the implications of the legal maneuver with George Washington University law professor Jonathan Turley.

Transcript

CURWOOD: The federal government has filed a criminal indictment against the U.S. Greenpeace organization over an action near Miami a year and half ago. Two Greenpeace activists boarded a ship off the Florida coast to protest what they claimed was importation of illegal mahogany from Brazil. They were later convicted and sentenced to jail. That’s a common outcome for, what some would call, an act of civil disobedience. But, according to Jonathan Turley, legal scholar and law professor at George Washington University, the indictment of the entire Greenpeace organization for the actions of two of its members marks a turn in American politics.

Professor Turley joins me now. First, tell me about this law federal prosecutors are using to charge Greenpeace.

TURLEY: It harkens back to 1872. And it’s a law that is designed to prevent what the courts called “sailor mongers,” or people that would go to ships that were approaching a harbor and try, through alcohol and other devices, to get the sailors to leave with them. There’s actually only two reported cases that we could find where this law was actually cited.

CURWOOD: How unusual is it for the federal government to charge an organization with criminal activities when it’s members are conducting nonviolent protests?

TURLEY: It is not uncommon for organizations to be subject to criminal prosecution for environmental crimes, for anti-trust crimes, and for an assortment of other types of offenses. But usually, throughout our history, when people have engaged in free speech, the government has acknowledged that as the motivation. The government has taken steps to show some degree of balance. While you can, and often protesters are charged with trespass and other types of violations, the government acknowledges, through prosecutorial discretion, that this is an exercise of the first amendment. So, while you can’t escape punishment, it also calls for a measure of restraint from the government.

In this case, two of these protestors, the people who climbed on to the ship, admitted guilt and they accepted misdemeanor convictions and the time served. And that, to most people’s eye’s, satisfied the merits of the case, the demands of the case. Then months later, out of the blue, the government came down with an indictment against Greenpeace. And that took all of our breath away. It was quite remarkable, quite novel, and, in fact, was quite chilling. That if the Justice Department is going to dig up an 1872 law to find a way to proceed against an organization, it sends a very chilling message to other organizations.

CURWOOD: Judging by the letter of the law, Greenpeace could be found guilty. In fact, the organization’s executive director says, “yeah, I authorized this.” What would it mean for the organization?

TURLEY: Well, for the organization it means a couple of things. One is there’s a fine, which the organization could sustain. It’s like ten thousand dollars. But it also means that they would be put on a form of probation which requires them to regularly report to the government. That type of reporting raises some real first amendment issues. To have an organization that has been, perhaps, the most vocal against this administration forced to report to it really does create an obvious problem. And also, it does endanger the organization’s tax exempt status. And for an organization like Greenpeace, if they lose that status it effectively is a death knell for the organization.

CURWOOD: How high up in the Bush administration did the order for this prosecution come, do you think?

TURLEY: I would have to assume that this was approved at the highest level, which would include Attorney General John Ashcroft.

CURWOOD: Civil disobedience has always been illegal. I mean, a sit-in is a form of trespassing, usually, typically. But the government has not chosen to prosecute entire organizations, recognizing that civil disobedience, well, plays a major part in American civic life. And historically, of course, has been crucial as we’ve seen with the civil rights movement, the Vietnam War protests. What does this case say about dissent in the U.S. today?

TURLEY: Well, one can only assume that this case was approved for a reason other than the insular facts. I mean, you don’t attempt to apply such an arcane law to a case of civil disobedience unless it’s part of an overall policy, a change, a shift. And I would expect if they’re successful here, it will be replicated.

CURWOOD: What other groups might be affected by this decision?

TURLEY: Well, you know, part of the problem and part of the danger here is not just that some groups might be affected, but that some may not be. That the government might selectively prosecute organizations. And there is some evidence that might be a possibility. We have not seen the government use these types of laws against anti-abortion groups. We’ve seen them prosecute individuals, but we’ve never seen this turning on an organization with this type of vigor. And so the greatest concern is not just that it’s going to have a chilling effect upon free speech, not that’s it’s going to be targeting organizations engaged in free speech, but that it’s going to selectively target organizations.

CURWOOD: Jonathan Turley teaches law at the George Washington University. Thanks for taking this time with me.

TURLEY: Thank you.

[MUSIC: Wilco “Radio Cure” YANKEE HOTEL FOXTROT (Nonesuch – 2002) ]