MIAMI, Dec. 12 -- The saucy boardinghouse owners of the 1800s were such aggressive marketers that Congress passed a law to stop them from jumping on board harbor-bound ships and luring away sailors with booze and prostitutes. The 1872 law, which bans unauthorized boarding of ships about to arrive in port, never got much of a workout. It was used twice -- the last time in 1890 -- then disappeared from courtrooms for more than a century.
But now, after a 113-year respite, the law is back in action in an unusual case that pits the Bush administration against one of its peskiest foes: the environmental group Greenpeace. The U.S. Attorney's Office in Miami filed criminal charges against Greenpeace and a federal grand jury returned an indictment in July, more than a year after two of the group's supporters scrambled onto a ship bound for the Port of Miami-Dade that they suspected of illegally importing 70 tons of Brazilian mahogany.
Greenpeace faces a seldom-used law meant to keep boardinghouse owners from ship crews. The environmental group says the action is unprecedented.
(Jonathan Dann -- Greenpeace)
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Greenpeace, which argued Friday for a dismissal of the charges in a Miami federal courtroom, accuses prosecutors of attempting to suppress the age-old American practice of civil protest. Although it is common to levy criminal charges against individual protesters, Greenpeace says a criminal indictment of an advocacy group is unprecedented and politically motivated.
"Greenpeace has criticized the Bush administration," Tom Wetterer, general counsel for Greenpeace, said after the court hearing. "They want to silence one of their main critics."
The group, which could be fined $10,000 and placed on five years' probation if convicted, says a successful prosecution could have a chilling effect on its operations because it might have to reveal its tactics and membership rolls to a probation officer.
Matthew Dates, a spokesman for U.S. Attorney Marcos Jimenez, defended the indictment Friday, saying, "politics plays no part in our decisions. We base our prosecutorial decisions on the facts and the law in this case and every other one."
Greenpeace used two inflatable Zodiac rafts in April 2002 to intercept a cargo ship called the APL Jade about three miles off Miami Beach. Two of the group's renowned "climbers," skilled in the perilous art of boarding ships at sea, scaled the Jade using ladders. They were stopped by authorities before they could unfurl a banner that read: "President Bush: Stop Illegal Logging."
Eventually, six Greenpeace supporters pleaded no contest to federal charges and were sentenced to time served after spending three days in jail. The case against Greenpeace, which is scheduled for trial in May if the group's attempts to get the charges dismissed fail, surfaced 15 months after the arrests when Greenpeace was indicted.
Greenpeace attorney Jane Moscowitz argued Friday that the group was singled out for selective prosecution, saying that for decades federal prosecutors have not charged an array of activist groups -- from the NAACP to militant antiabortion organizations -- with criminal wrongdoing because of the actions of their members.
"In this country, there has never been a prosecution of the Ku Klux Klan," she said.
Assistant U.S. Attorney Cameron Elliott countered by citing examples of criminal campaign finance law violations against labor unions and prosecution of terrorist groups. Elliott also started to discuss a federal prosecution of the Communist Party of the United States for refusing to turn over membership lists, but U.S. District Judge Adalberto Jordan cut him off.
"That might not be the best example given that the prosecution itself was unconstitutional," Jordan said.
Indeed, Jordan seemed almost as curious as the Greenpeace attorneys about the use of a law that had not been employed for more than a century. The judge, who was appointed in 1999 by President Bill Clinton, questioned whether the long dormancy of the law could be the "best evidence of all" to support the selective prosecution claim.
"People have behaved for the last hundred or so years?" he asked.
For all the high-minded rhetoric about the rights of activist groups presented Friday, the case could come down to a technical interpretation of the 1872 law. Greenpeace's attorneys argued that the law, which specifies illegal boarding of ships "about to arrive" in port, should not apply in the case because the Jade was boarded by activists three miles from the Port of Miami-Dade.
Jordan pressed Elliott to define exactly how far away from port the law should apply. When Elliott could not come up with a definitive answer, the judge wondered aloud how the law was interpreted in 1890.
"I wish I could speak to the judge in that case," Jordan said. "Maybe you could arrange that."
"That's beyond my capability," Elliott responded.
There was a split second of silence, then some in the sparse courtroom audience began to giggle.
