Adario doesn't fear for his life as he sips a cup of cafecito on this April morning at Raffi's outdoor cafe on Collins Avenue, but the matter at hand seems almost as urgent. "It's upside down," the activist marvels. "The people working to enforce the law are now being prosecuted by the law." Adario arrived in South Beach this morning along with Hamilton Casara, the former president of Brazil's environmental protection agency IBAMA, who now represents the state of Rondônia in the Brazilian congress. The immense man with a soft voice, shy smile, and skin nearly as dark as the wood he protects signed into Brazilian law a moratorium on the mahogany trade in October 2001. "We are grateful to Greenpeace for helping us preserve the forests," relays the first-term congressman. Now he says he has come to Miami to support Greenpeace in turn: "It's very important to defend democratic principles."
Hillary Hosta agrees. The blond, six-foot-tall massage therapist calmly carving up a vegetarian omelet was convicted of illegally boarding the APL Jade, a merchant vessel that Greenpeace suspected of mahogany smuggling, three miles out from the Port of Miami in April 2002. The smugglers got away, but the activists were charged with breaking an 1872 law that hadn't been implemented in more than a hundred years. The sparse case law on record suggests the statute, which forbids unauthorized persons from boarding a ship about to arrive at its destination, was originally written to keep shady characters from luring sailors to houses of ill repute on shore. That June, Hosta and the other activists hit with the charge pled no contest. Case closed. Then thirteen months later a federal grand jury indicted Greenpeace USA for the same crime, accusing the organization itself of conspiracy to commit "sailor-mongering." As silly as the charge may sound, the impact of a conviction could be quite serious.
While Hosta and the Brazilians finish their breakfast, the Greenpeace legal team convenes across the causeway in a windowless conference room at a Brickell Avenue law firm. There's local attorney Jane Moscowitz; Greenpeace general counsel Thomas Wetterer, who has come down from Washington, D.C., with two other lawyers; Greenpeace International sent a consultant from London as well. The team sits in black high-backed chairs and sifts through stacks of documents to prepare for a trial before Judge Adalberto Jordan in a Miami courtroom in May. If the jury finds Greenpeace USA guilty, the organization faces five years' probation and a fine up to $10,000 that could increase every time anyone in the group engages in civil disobedience. Adario's U.S. allies could be effectively shut down.
When the Search and Rescue alarm sounded at 2:15 p.m. on April 12, 2002, Seaman Darrin Grant ran for his gun belt and gear. The radio at the Miami Beach Coast Guard station reported that two Greenpeace activists had illegally boarded a commercial freighter in Biscayne Bay. Boatswain Mate Second Class David Ramirez briefed his crew, then sped past the jetties on Government Cut as fast as the 41-foot USCG utility boat allowed. There the Coast Guard saw three tugboats preparing to tow in the APL Jade. Three smaller boats, carrying flags that read "Save the Amazon" and "Stop Illegal Logging," buzzed about the freighter.
Flipping on police lights and siren, Ramirez chased a gray Greenpeace dinghy, but he could not keep pace with the agile eighteen-foot Avon. So Ramirez radioed for backup, then switched course to pursue a smaller red inflatable. The Zodiac's operator immediately obeyed a command to follow the Coast Guard boat to dock at the station. When Ramirez returned to the scene, he saw a small Sea Ray idling near the Jade while a photographer onboard snapped pictures. The Sea Ray's skipper also followed Ramirez to the station without flight or fight. By the third time the utility boat approached the Jade, a nimble 27-foot USCG safeboat had arrived, as had a Miami-Dade Police Marine Unit. The three police boats boxed in the Avon, and it was towed in on a skiff hook.
Below deck on the APL Jade, Greenpeace volunteers Hosta and Scott Anderson chatted with the freighter's chief officer, Cheang Wai Sun. Sun had discovered the pair scurrying up the pilot's ladder on the side of the ship and prevented them from hanging a banner that read "President Bush: Stop Illegal Logging." When Hosta left the ship, she gave the banner to Sun as a souvenir. Seaman Grant waited on the dock with handcuffs.
Targeting the APL Jade was a good gamble. Since 1999 the Greenpeace Amazon campaign has been tracking the traffic in illegal wood from Brazil. Directed by Paulo Adario, the field office in Manaus has documented the process, from the moment mature mahogany trees are identified by planes flying over the jungle to the wood's fate as dining room tables in Ethan Allen show rooms or do-it-yourself decking at Home Depot. Brazilian officials estimate that the trees have brought $3 billion in profits to the country since the trade intensified in the Seventies. A cubic meter of the precious wood can be produced for as little as $10 and sold on the export market for $700 to $1600.
In September 2001 Greenpeace released a report called "Partners in Mahogany Crime" that exposed the mahogany trade and how the so-called mahogany barons rely on corruption, slavery, and murder to get their goods to market. The report made a splash in the United States with coverage by CNN, the Chicago Tribune, the New York Times, and the Wall Street Journal. It received so much media play and caused such a scandal in Brazil that the Federal Police and IBAMA, the country's counterparts to the FBI and the Environmental Protection Agency, joined forces with Greenpeace to launch a series of raids on illegal loggers called Operation Mahogany. The Brazilian government imposed a moratorium on the country's mahogany trade. IBAMA discovered such rampant irregularities that it was impossible to determine which logs had been harvested legally, so the agency began the laborious process of comparing the amount of wood each logging company had been permitted to harvest with the amount each company was attempting to export. Any excess was deemed illegal and seized.
Logging companies sued the government in local courts in December, persuading judges in the Amazon region to circumvent the federal moratorium and allow the export of the wood. IBAMA could not simply override the local court rulings and halt the exports. At the same time, the agency had to follow the rules imposed by CITES, the international convention on endangered species to which Brazil adheres. To alert importing countries that these shipments did not comply with international law, the authorities at IBAMA stamped each permit with the words: This Export was determined by Precarious Judicial Decision (Injunction).
Since 80 percent of the country's big-leaf mahogany is exported to the United States, Brazil turned to the U.S. government for help. Early in February 2002, Hamilton Casara, who was then president of IBAMA, met with Assistant Secretary of State John Turner in Washington, D.C. In a speech on February 14, President George W. Bush revealed that he had asked Secretary of State Colin Powell to come up with a plan to crack down on illegal logging. Inspectors from the Animal Plant Health Inspection Service (APHIS) seized Brazilian mahogany shipments at U.S. ports.
Yet some shipments were still getting through, so Greenpeace decided to make the issue more public. The Manaus office made a list of ships that had repeatedly smuggled mahogany into the United States by mislabeling the cargo or transferring logs from one ship to another. Analyzing import data, the forest campaigners noticed that a ship called the Mitsui Osk Liner (MOL Amazonas) repeatedly carried big-leaf mahogany from the city of Belém to the port of Manzanillo, Panama. There the logs were unloaded and transferred to the APL Jade for transport to the United States. The transferred wood did not show up on the Jade's manifest. Instead it was listed on a separate manifest for the MOL. Though there was no way to be certain that the smugglers would repeat the routine when the Jade headed for Miami on April 10, Hosta and Anderson readied themselves for action. "It's like waiting for a bus," says Scott Paul, director of the Greenpeace USA forest campaign. "It just happened that the next bus was coming to Miami."
Soon after the Coast Guard apprehended the activists in Miami, FBI agents arrived. Special Agent David Grazer took statements from the Coast Guard officers and from the Jade's crew. (The Coast Guard, FBI, and U.S. Attorney's Office have all declined to comment on circumstances surrounding a pending case.) Later that night, the FBI processed the Greenpeace volunteers.
Hosta remembers the exchange like this:
Do you belong to a gang?
"Yes," Grazer said as he wrote on the intake form, saving Hosta the trouble of responding. "Greenpeace."
"Excuse me," Hosta remembers interrupting, "Greenpeace is not a gang."
"Indeed it is," Grazer insisted with a smile. "A gang is a group where members defer to the organization for their beliefs and actions."
Any gang tattoos?
Glancing at the amateurish globe the idealistic Hosta had inked in the crook of her left arm at age nineteen, the special agent wrote yes.
After eluding detection in the Port of Miami, the APL Jade set course for the Port of Charleston. While docked in South Carolina on April 14, 2002, documents from the port import/export reporting service PIERS show, the Jade's crew unloaded 72 crates, or 70 tons, of mahogany veneer. Less than one-fifth that amount had been legally permitted.
Meanwhile millions of dollars' worth of precious wood that did not make it through inspection was piling up in APHIS warehouses along the Eastern seaboard. Concerned representatives from the timber industry met in Belém with government officials from the United States and South America at a workshop from May 2 to May 4, 2002, called "Sustainable Trade and Management of Mahogany."
Among the participants was a representative from Aljoma Lumber in Northwest Miami-Dade, the largest importer of Brazilian mahogany in the United States. On March 7, 2002, 760 cubic meters of mahogany bound for Aljoma Lumber were seized in Port Everglades in Fort Lauderdale. On March 26, 2002, another 660 cubic meters headed for Aljoma were seized in the Port of Miami. At roughly $1400 per cubic meter, that put the Medley lumber company out more than $2 million in wood. Aljoma joined six other mahogany importers in suing the U.S. government for the release of the wood and lost. The company later refused to arrange for the wood to be exported back to Brazil as instructed by APHIS. The U.S. Attorney is taking legal action to make Aljoma forfeit the wood.
"We feel terribly wronged by this and we have lost a lot of money as a result of these actions," reports David Flinn, chief financial officer of Aljoma Lumber. "We did everything the way you were supposed to do. The Brazilian government couldn't say which particular lot [of big-leaf mahogany] was exported illegally and which was not. The wood that was denied entry and is now under suit for forfeiture could just as well have been the wood that was released. Drawing straws would be equally objective."
But someone was not taking any chances. On April 25, 2002, Peter O. Thomas, the U.S. Department of Agriculture official in charge of making sure the country complies with CITES, received an unusual fax. Signed by a midlevel IBAMA bureaucrat named Randolf Zachow, the fax dismissed the mahogany moratorium as a "mistake," a "misunderstanding," and even "madness" based on "a lot of false information." Zachow urged Thomas, on behalf of the Brazilian government, to release the seized mahogany.
At 7:00 a.m. on May 2, a source in the U.S. State Department called to alert Greenpeace USA forest campaign manager Scott Paul. The caller would reveal only that an IBAMA official had written a letter authorizing the imminent release. "I need a name," Paul pleaded.
The caller left him guessing: Look for someone with authority in IBAMA whose name begins with the letter Z.
At 3:00 p.m. on May 2, the USDA announced that all mahogany shipments would be released the following morning. Hours earlier, Paul had secured a copy of the Zachow fax and forwarded it to Adario. On lunch break at the timber industry's mahogany workshop in Belém, where he was allowed to attend but not to participate, Adario could hardly believe what he was reading. "In the workshop they were talking about how to end the moratorium," he remembers. "When someone was about to put an end to it with a single fax."
Adario alerted the president of Brazil directly. "If I had contacted the president of IBAMA or the Minister of Health," he speculates, "the wood would have been released." Instead by 5:00 that evening Zachow was fired.
In June 2002 the U.S. Attorney made a formal offer to the Greenpeace activists: Plead no contest to the sailor-mongering charges and there will be no jail time, no fine, not even any community service. The volunteers were ecstatic.
In September 2002, however, the U.S. Attorney's Office in Miami convened a grand jury to investigate the possibility of bringing sailor-mongering and conspiracy charges against Greenpeace USA. The grand jury indicted the organization on July 18, 2003. The indictment filed by Assistant U.S. Attorney Cameron Elliot alleges that Greenpeace selected the APL Jade as the target of conspiracy "based upon the defendant's erroneous belief that the 'M/V APL Jade' carried a shipment of Brazilian mahogany lumber."
If the U.S. Attorney's Office was determined to prosecute Greenpeace for the APL Jade adventure, that didn't mean President Bush had forgotten his promise to crack down on illegal logging. On July 28, 2003, ten days after the Greenpeace indictment, the president hailed his new Anti-Illegal Logging Initiative. At the White House, in the Benjamin Franklin room, Secretary of State Powell named Brazil as an area of special interest in the government's effort. "We are all impoverished whenever environmental crime destroys a tree," Powell proclaimed. "We are all at risk when deforestation plants the seed of despair in a new human heart."
Branded criminals in Miami waters, Greenpeace decided to bring one of the organization's ships to the Port of Miami on a goodwill tour. On October 6, 2003, Greenpeace ship tour coordinator Rose Young had what she calls a cordial meeting with assistant port chief John Perez about docking the Greenpeace vessel M/S Esperanza at the port later that month and inviting the public onboard. But Greenpeace's criminal reputation had been firmly established. On October 10, assistant port director Gerry Cafiero sent an e-mail advising Young that the port does not allow public functions and that because of the "recent conduct of Greenpeace ... the Port deems your berthing request to pose an undue security risk."
When the Esperanza arrived on October 26, the ship stayed at anchor a few miles east of Miami Beach. Even so, the Coast Guard prohibited the organization from bringing any guests onboard, including the media.
Greenpeace may have failed to change its image in the eyes of the Coast Guard and the port, but the group's insistence that the APL Jade did carry illegal mahogany gave Special Agent Grazer second thoughts. As the Esperanza sat at anchor, the FBI agent contacted James "Budd" Petit de Mange, the CITES and plant inspection station coordinator at APHIS, for more information on the Jade's cargo. On October 30 Petit sent him a copy of a fax from IBAMA, which detailed the complicated process for determining whether a particular shipment of big-leaf mahogany had been legally logged. There in Table No. 5 was the amount exporter G.D. Carajas was permitted to send on the APL Jade: eight cubic meters. And there on a copy of the company's CITES permit stamped "determined by Precarious Judicial Decision" was the amount the Jade actually carried: 42 cubic meters.
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."
