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Unfortunately APHIS inspectors did not see these documents when the Jade unloaded in Charleston. "There was some kind of a supplemental manifest that was not seen by our people," Petit recalls. "That shipment did not get held as it would normally."
Agent Grazer faxed the documents to Cameron Elliot. On October 31, the Assistant U.S. Attorney filed a revised indictment against Greenpeace, striking the statement about the "erroneous belief" about the Jade's cargo.
In December 2003, in a federal courtroom in Miami, Assistant U.S. Attorney Elliot and the Greenpeace legal team attempted to define U.S. law for Judge Adalberto Jordan. Greenpeace made a motion to dismiss the case because the sailor-mongering statute was too vague to stand. When exactly is a ship "about to arrive" -- three feet from the dock? Three miles out? Twelve miles out?
If Jordan determined the statute was too vague, that would be enough for the prosecution to lose the case, but it wouldn't go very far in explaining why the U.S. Attorney decided to dredge up this archaic law or to apply it to Greenpeace USA as a whole. Jane Moscowitz argued that this might be a case of "special prosecution."
At no time in the history of the United States, Moscowitz claimed, has the U.S. government prosecuted an advocacy organization for actions committed by that organization's members: not the Army of God, not Operation Rescue, not the KKK. In another case that took place at sea in this judge's jurisdiction, Moscowitz recalled, the government prosecuted Ramon Saul Sanchez for sailing into a designated security zone to stage a protest against the Castro regime, but did not prosecute his Democracy Movement.
Why would Greenpeace be singled out? Especially since the government has been so gung-ho about helping to stop the illegal traffic in big-leaf mahogany? Because, the defense motion pointed out, Greenpeace actions on other issues have vexed the Bush administration, beginning with a banner Greenpeace volunteers hung within view of the president's ranch shortly after his inauguration that read: "Bush: Toxic Texan: Don't Mess with the Earth."
The motion listed subsequent Greenpeace actions that protested the administration's policies on energy, the National Missile Defense System, nuclear weapons, security at chemical plants, the oil industry, the war in Iraq, and radioactive waste in postwar Iraq. There are certainly grounds for the Bush administration to be annoyed with Greenpeace USA. To see if the Justice Department has actually turned that annoyance into a legal vendetta, Moscowitz asked the judge to compel the government to provide all correspondence concerning Greenpeace from all relevant agencies.
Elliot countered that the 1872 statute has been used so rarely that the defense can't make a claim of selective prosecution; there's no other group for the judge to compare with the defendants.
The judge considered Elliot's argument.
"If there is a statute on the books for 200 years with only two or three prosecutions, then 250 years later somebody gets prosecuted, how do you go about proving or disproving the selective use of that statute?" Jordan mused. "What would Greenpeace have to show?"
Jordan did not answer that question when he released his order on the Greenpeace motions on April 15, 2004. He put off any decision on the vagueness challenge until the hearing in May. But he did determine who will answer the questions raised by the sailor-mongering charge by granting Greenpeace a jury trial. That's an unusual move for a misdemeanor, but the judge gave several reasons why this is not a "run-of-the-mill misdemeanor case." The charges have been "gathering dust for over a century," and "the indictment is a rare -- and maybe unprecedented -- prosecution of an advocacy organization" that "may therefore signal a change in [Department of Justice] policy." For that reason, he noted, some people view the prosecution as "politically motivated due to the organization's criticism of President Bush's environmental policies." Finally, he pointed out, "the government apparently does not view this case as typical" since the U.S. Attorney indicted the organization with a grand jury, typically reserved for "infamous crime."
"I cannot see anything wrong," the judge concluded, "with having members of the community determine whether the government can prove the charges against Greenpeace beyond a reasonable doubt."
That is precisely the kind of tribunal Greenpeace likes best. Forest campaigner Scott Paul is confident that the organization stands a good chance of acquittal in a jury trial, "if the judge allows us to say what we want to say," he predicts. "We're feeling really good about the outcome because the angels are on our side on this."