Selective Prosecution

This is ridiculous. The Justice Department is prosecuting Greenpeace for boarding a ship to protest illegal trade of mahogany. What Greenpeace did was illegal, and they were arrested by the Coast Guard, as is routine in a non-violent civil disobedience protest like this one.

What is not routine is that:
1) the Justice department is prosecuting Greenpeace as an organization in criminal court, with a maximum penalty of probation and a five year fine. There is apparently some possibility that they will lose their tax exempt status. Quoting from the linked article, "While organizations sometimes face criminal prosecution for the actions of their members, especially in racketeering, fraud and securities cases, it is extremely rare — if not unprecedented — for the government to pursue criminal charges against organizations in “the free speech area,” [GW Law Professor Jonathan Turley] says.

2) And what law are they using to prosecute them? Why, it's an 1879 law prohibiting "sailor mongering," which MSNBC describes as "boarding ships before they had moorage, often using alcohol or prostitutes to lure the crewmen ashore, leaving the vessel unattended.' " Well, that's understandable. We certainly want to protect our sailors from being mongered.

3) So just how common are sailor mongering prosecutions? It depends what century you're talking about. If you're talking the 19th century, the law was cited in two cases, most recently in 1890. If you're talking the 20th or 21st century, there appear to have been zero (this is again according to Turley.)

4) Another disturbing thing about this case is that there may have been a bad faith plea bargain. From the article, after the FBI got involved with the investigation and imprisoned the Greenpeace activists who boarded the ship: "Six people, including the two who boarded the ship, pleaded guilty under the “sailor mongering” law on condition that other charges would be dropped. Later, says Greenpeace’s Wetterer, it was clear that the Justice Department had launched a separate federal grand jury investigation, which led to the criminal indictment in July of this year."

I would assume their guilty plea will be used against them in the current case.

I'm not a fan of Greenpeace, and this is almost funny--sailor mongering? But the implications are not funny. It seems like a pretty clear case of selectively prosecuting the administration's political opponents. Which is both illegal, and troubling. Our whole criminal justice system gives prosecutors an incredible amount of authority--as my criminal law professor put it, we "wildly overcriminalize and leave prosecutors to sort it out." Because of strict sentencing guidelines and the fact that so many cases are plea bargains, a prosecutor may have more power to determine a defendant's fate than a judge in many cases. The whole thing falls apart if they abuse this power.

It's also the sort of thing that makes liberals (and not only liberals) very nervous about giving DOJ broad new anti-terror powers, when terror is very vaguely defined, or leaving John Aschroft with authority over an investigation with more potential to damage the administration than any silly Greenpeace protest.

Edited to add:
1. this is by Katherine.
2. this is the first time, ever, that my MSN start page has linked to an interesting article.

Comments

[Ken White]

It's the kind of thing that gives independent moderates who think Greenpeace is flaky nervous - hacks 'em off.

Crass stupidity.

Congrats on the blog. Doof post

[Timmy the Wonder Dog]

Selective prosecution to inhibit Free Speech, I'm surprised Ashcroft didn't use RICO on Green Peace.

[Stan LS]

How's that "free speech"??? They are clearly trespassing on to a ship at sea. If I break into your house to talk to you and you call the cops on me, are you denying me of my right to express myself?

[Jesurgislac]

Katherine has a blog! Let there be champagne and cheers.

Stan, my man, with an attitude like that you don't belong in America - you ought to go live in Saudi Arabia where they know how to treat demonstrators. *g* I never thought I'd get the chance to say this to anyone, but, Stan: America - love it or leave it.

[Stan LS]

Jes, obviously you have no leg to stand on, cause you haven't even replied to what I've said.
Demonstrating is one thing - trespassing is another.
Were they not trespassing?

[Stan LS]

Jes, while we are at it...
Isn't there some kind of a law saying that pro-lifers have to keep a certain distance from abortion clinics when protesting?
They are not even trespassing and yet they have to keep distance... Hmm.... How come there is no outcry over that law?

[Katherine]

I'm not objecting at all to the arrest; it's the prosecution of Greenpeace as an organization under this obscure law.

[Stan LS]

Katherine,

Trespassing is a crime. Trespassing at sea is piracy, no? As for "Selective Prosecution", I am more interested in the, ironically, selective outcry. I already mentioned the abortion clinic scenario. No outcry over loss of free speech there... The selectivity is ironic, no?

[mc_masterchef]

I think it might be selective, if the DOJ were prosecuting pro-life groups instead of their individual members in cases of abortion clinic trespasses... but unless you've got reports of that occuring, I think the reason that it's coming off as selective is because Katherine is talking about a different issue.

[Stan LS]

Masterchef,

According to Greenpeace:

"We use research, lobbying, and quiet diplomacy to pursue our goals, as well as high-profile, non-violent conflict to raise the level and quality of public debate." (http://www.greenpeace.org/international_en/aboutus/)

As you see "non-violent conflict" , in this case: trespassing, is the *official* policy of that organization. Hence, they are getting prosecuted.

[Stan LS]

Ooops. That link should be http://www.greenpeace.org/international_en/aboutus/

[Katherine]

A few other things on those abortion laws, in addition to the fact that AFAIK anti-abortion groups and churches are not being prosecuted (only the individual protestors) or threatened with revocation of their non-profit status:

1) They are usually passed at the state level, not by the DOJ.
2) They are passed by the legislature, not by an executive appointee. So selective prosecution is not the issue; badly written legislation may be.
3) They were passed in response to physical threats and intimidation which I don't believe Greenpeace engaged in.
4) Again, Greenpeace is not being prosecuted for trespass by a local government or sued by the company that owns the ship; they're being prosecuted by the United States of America under an obscure 19th century law that hasn't been used for over 100 years.

I think the full article explains this pretty well, but I thought I'd try one more clarification and leave it at that.

[John]

I thought it was stupid at first glance too. Then I wondered how I would feel if some ELFholes boarded my SUV to educate me on the benefits of driving a Toyota. I'm not saying to keel-haul the wankers for a first offence, but a reminder to respect other peoples property is a good start.

[Stan LS]

Katherine,

Again, Greenpeace is not being prosecuted for trespass by a local government or sued by the company that owns the ship; they're being prosecuted by the United States of America under an obscure 19th century law that hasn't been used for over 100 years.

I understand. However, to make your point you would need to provide us with a case where an organization's members repeatedly boarded a ship at sea and the group was not charged under this or another similar law.
If the shoe fits...