[News] Steven Donziger: A Tale of Our Times
news at freedomarchives.org
Wed May 11 11:45:53 EDT 2022
Donziger: A Tale of Our TimesMay 11, 2022
By Craig Murray – Apr 28, 2022
Texaco operations in Ecuador from 1962 to 1994 dumped 70 billion litres
of “wastewater,” heavily contaminated with oil and other chemicals, into
the Amazon rainforest, plus over 650,000 barrels
crude oil. They polluted over 800,000 hectares
It is one of the worst ecological disasters in history—30 times greater
than the 1989 Exxon Valdez oil spill in Alaska and 85 times greater than
the Gulf of Mexico spill by British Petroleum (BP) in 2010. During the
supposed clean up in the provinces of Sucumbios and Orellana, before it
left Ecuador, Texaco hid over a thousand different swamps of toxic waste
throughout the rainforests, dumping a layer of topsoil over them.
Texaco was taken over by Chevron in 2000. Chevron claims
Texaco only ever extracted $490 million in profit from Ecuador over 30
years. The accounting of that is hotly contested by the Amazon Defense
Coalition which claims Texaco made $30 billion profit. One thing for sure
is that even the Chevron figure is at historic values, not real terms, and
would be worth vastly more today.
[image: Crude contaminates the Aguarico 4 oil pit, an open pool abandoned
by Texaco after six years of production and never remediated. It is one of
the nearly 1000 such pits left by Texaco/Chevron in Ecuador that continue
to pollute the Amazon. Photo: Twitter/@SDonziger]Crude contaminates the
Aguarico 4 oil pit, an open pool abandoned by Texaco after six years of
production and never remediated. It is one of the nearly 1000 such pits
left by Texaco/Chevron in Ecuador that continue to pollute the Amazon.
The cost of the pollution to the inhabitants of the Amazon is incalculable
in simple monetary terms, as is the cost of the environmental catastrophe
to the entire world. However in the mid 1990’s Ecuador was firmly under the
United States’ heel and—as Chevron’s legal team assert
1995 the government of Ecuador was persuaded to sign a ludicrous clean-up
agreement with Texaco as it left the country, releasing it from all legal
obligations at a cost of just US $40 million.
Yes, that really is just $40 million. Compare that to the $61.6 billion
that BP paid out
the almost 100 times smaller Deepwater Horizon environmental disaster in
the Gulf of Mexico. In 1998 the corrupt, US controlled, government of
Ecuadorean President Jamil Mahuad signed a final release relieving Texaco
for all liability from economic pollution. That release has now been upheld
by the Court of International Arbitration in the Hague.
How this was achieved by Chevron/Texaco is well explained in a book I
highly recommend, a copy of which was sent to me in prison by a supporter, *The
Misery of International Law
by Linarelli, Salomon and Sornarajah (Oxford University Press 2018):
A Chevron lobbyist in 2008 said that “we can’t let little countries screw
around with big companies like this.” At the time of this writing, Chevron
is the fourth largest company headquartered in the United States, operating
in over one hundred countries, with gross revenues twice that of Ecuador’s
GDP. When Texaco began operations in Ecuador in 1964, the country was
unstable and extremely poor, with bananas as its main export. One lawyer
who works for Oxfam had argued that “Texaco ran the country for twenty
years. They had the US Embassy in their pocket. They had the military.
Politically, there was no way that Texaco was going to be held accountable
in Ecuador.” At the time Ecuador needed Texaco’s expertise and technology
if it was to extract the oil. The lawsuit alleged that Texaco dumped 18
billion gallons of toxic waste into the water system in the region, along
with 17 billion gallons of crude oil, and left 916 clearly visible unlined
toxic waste pits full of black sludge throughout the region. At the time,
Texaco’s operations did not violate Ecuadorean law. Ecuador had no real
environmental law at the time. While Chevron vigorously contests the facts,
the evidence shows that Texaco failed to use environmentally sustainable
technologies in its operations in Ecuador. As the former Ecuador Ambassador
to the United States Nathalie Cely has put it: “When Texaco left Ecuador,
significant profits in hand, it left unprecedented damage to the
environment in its wake and no compensation to those affected.”
In my writing I always try to add value when I can by giving my own
experience where relevant, and the situation described here reminds me
precisely of the impunity with which Shell acted in Nigeria in their
similarly massive pollution of the Niger Delta. I witnessed this close up
when I was Second Secretary at the British High Commission in Lagos from
1986 to 1990. My brief was “Agriculture and Water Resources” and I
therefore encountered the environmental devastation at first hand.
RELATED CONTENT: How Chevron Used the Legal System and the FBI to Target
Whistle-Blowing Lawyer Steven Donziger
>From my privileged diplomatic position I also saw the political power
wielded by Shell in Nigeria through corruption and bribery, and I
absolutely recognise the description given above of Texaco in Ecuador:
“They had the US Embassy in their pocket.” In Nigeria, Shell had the
British High Commission in their pocket, throughout decades in which all
bar one of Nigeria’s military dictators was trained at Sandhurst, and the
exception went to another British military college.
The Chairman and MD of Shell Nigeria, Brian Lavers, was treated as a deity
and lived a life of extraordinary power and luxury. The British High
Commissioner, Sir Martin Ewans, himself a very haughty man, deferred
routinely to Lavers. I recall one occasion when the diplomatic staff were
all instructed to attend a private briefing by Lavers in the High
Commission. He made some dismissive and complacent comments about the
“fuss” over pollution. I, a rather diffident and nervous young man on my
first diplomatic assignment, very respectfully queried him on something I
knew from direct observation to be untrue. I got a public ticking off from
the High Commissioner followed by a massive private bollocking from my
boss, and was later told that Shell made a complaint against me to the
Foreign and Commonwealth Office in London.
So, in brief, I know of what they speak. I should add that I am still
extremely upset by all of this because of the subsequent execution
of Ken Saro Wiwa, whom I knew, and other indigenous environmental
activists, for which I hold Shell in part culpable. 35 years since I got
carpeted for raising the shocking effects, and 25 years since the
executions shocked the world, Shell’s devastation of the Niger Delta
29 years ago, in 1993, Steven Donziger, a New York lawyer, visited Ecuador
and saw communities who lived their lives with their bare feet and hands
permanently covered in oil sludge and other pollutants, whose agriculture
was ruined and who suffered high levels of mortality and birth defects. He
started a class action against Texaco in the United States, representing
over 30,000 local people. Texaco, confident that they had control of
Ecuador, requested the US court to rule that jurisdiction lay in Ecuador.
It also set about obtaining the agreement from the government of Ecuador to
cancel any liability. In 2002 the New York court finally agreed with Texaco
(now Chevron) that is had no jurisdiction and the case moved to Ecuador,
much to Chevron’s delight.
What Chevron had not bargained for was that corrupt US control of Ecuador
might loosen. In 2007 left wing Rafael Correa became President and
Chevron’s previously total impunity in the country dissolved. In 2011
Donziger and his team won an award of $18 billion in compensation for the
local population from a provincial Ecuadorean court, later reduced to $9.5
billion by the Supreme Court of Ecuador.
Chevron now did two things. Firstly, it invoked the bribery obtained
agreements of 1995 and 1998 limiting its liability to the paltry $40
million clean-up operation, and appealed to the international tribunals
specified in those agreements. Chevron succeeded, as was fairly certain to
happen. The agreements had indeed been signed and did relieve
Texaco/Chevron of any liability.
This brings us into precisely the same area as Investment Promotion and
Protection Agreements and the ability of huge multinationals to bully or
bribe poorer states into signing away their sovereign authority in favour
of judgement, not by a multilateral state institution like the
International Court of Justice, but of a commercial tribunal formed of
western corporate lawyers of strong neo-conservative ideology.
Western governments put enormous pressure
<https://academiccommons.columbia.edu/doi/10.7916/D8KK9K69> on developing
countries to succumb to such jurisdiction, including making it a condition
of aid flows. The system is so unfair on developing countries that even
Hillary Clinton inveighed against it
before she started fund-raising for her Presidential bid.
Big oil apologists are cock-a-hoop that the disgraceful, well-feathered
right-wing jurists of the Permanent Court of Arbitration in the Hague gave
Chevron a judgement
<https://www.bbc.co.uk/news/world-latin-america-45455984> that their bribed
1998 “Get out of jail free” card did indeed say “Get out of jail free.”
This case in itself damns the arbitration system. The truth is, of course,
that no developing country has ever initiated surrendering its sovereignty
to such a tribunal, and it is strongly in the institutional and financial
interest of the tribunal and its members to find in favour of the big
western corporations on which their very existence thus depends.
The second thing that Chevron did was to attempt to destroy Steven Donziger
personally. In 2011 they filed a suit in New York under the anti-mob
Racketeer Influenced and Corrupt Organisations Act, arguing that in Ecuador
Donziger had bribed a judge, bribed witnesses and plaintiffs, ghost-written
the original judgement and subverted expert witnesses.
The case against Donziger now becomes an incredible tale of corrupt judges
in both Ecuador and the United States, of whom the most corrupt of all is
US District Judge Lewis A Kaplan. It is important to note that the case
against Donziger came before Kaplan as a civil case, not a criminal case.
Chevron were seeking an injunction to stop Donziger acting further against
them. Originally they were suing Donziger for $60 billion in damages, but
that was dropped because it would have meant Donziger had a jury. By merely
seeking an injunction, Chevron could ensure that Kaplan was unconstrained.
What happened next beggars belief. Kaplan made a ruling setting aside the
judgement of the Ecuadorean court on the grounds it was based on
racketeering, coercion and bribery. It should be recalled that, at
Chevron’s insistence, the New York District Court had nine years earlier
ruled it had no jurisdiction over the case, and that jurisdiction lay in
Ecuador. Kaplan now ruled the opposite; both times Chevron got what they
So who is Kaplan? From 1970 to 1994 he was in private practice,
representing in particular the interests of tobacco
companies including Philip Morris—itself, I would argue, sufficient sign of
moral bankruptcy. He was also the “trusty” judge the federal government
used to rule that
<https://www.nytimes.com/2010/07/14/nyregion/14ghailani.html> years of
detention and torture in Guantánamo Bay did not affect prosecutions of
detainees there. On the plus side, Kaplan did allow Virginia Giuffre’s
lawsuit against Prince Andrew to go ahead; but then Andrew is not a US
state or commercial interest.
The only testimony of bribery and corruption which Kaplan heard came from a
single source, Ecuadorean judge Alberto Guerra. He claimed he was bribed to
support the local plaintiff’s case against Chevron and to ghost write the
judgement with Donziger for the trial judge. No other evidence of
racketeering or bribery was given before Kaplan.
Guerra was extremely unconvincing in court. In his judgement for Chevron
Kaplan stated that:
*Guerra on many occasions has acted deceitfully and broken the law […] but
that does not necessarily mean that it should be disregarded wholesale…
evidence leads to one conclusion: Guerra told the truth regarding the bribe
and the essential fact as to who wrote the Judgment.*
Guerra produced no corroboration of his story. He could not, for example,
show any draft of, or work on, the judgement he had allegedly ghostwritten
with Donziger. A forensic search of Donziger’s laptop found nothing either.
The reason for this was to become clear when Guerra admitted, before the
International Court of Arbitration, that he had invented the whole story.
Not only had Guerra invented the whole story, but he had in fact been
bribed by Chevron with a large sum for his testimony. Guerra admitted that
he had invented the story
Chevron of Donziger offering to buy him for $300,000, simply to raise the
price which Chevron would pay him. Before giving evidence in the USA,
Guerra spent 51 days being coached on his evidence by Chevron’s
lawyers—which Kaplan permitted as it was a civil not a criminal case.
In 2016 the United States Second Circuit Court of Appeals upheld Kaplan’s
verdict for Chevron, on the grounds that Guerra’s evidence had been
properly given in a US court, and it had not been recanted in any formal
evidence to a US court; while Donziger could not prove, without Guerra’s
testimony in court, that Guerra had been paid by Chevron.
Followers of the Assange case will of course note the parallels with Siggi
Thordarson <https://stundin.is/grein/13627/>, the convicted fraudster who
was paid by the CIA to give evidence against Assange that is central to the
“hacking” charges under the Espionage Act, but whose open admission that he
lied in his testimony the English High Court refused to hear as he has not
formally withdrawn his evidence in court.
In the interests of scrupulous honesty, I should note that Chevron seems to
me to have one good legal point. There was unlawful coordination between
one technical expert in the case in Ecuador and Donziger’s legal team. This
was motivated by genuine environmental concern and goodwill, and not by
bribery, but was nevertheless unwise. I do not however believe that any
reasonable judge would find this in itself sufficient to dismiss the case,
given the great weight of other evidence on the pollution and its effects.
Kaplan now set out, at Chevron’s behest, to destroy Donziger as an
individual. Extraordinarily in a civil case, Kaplan ruled that Donziger
must turn over all of his phones, laptops and communications devices to
Chevron, so they could investigate his dealings with others over the
Donziger of course refused on the grounds that he was an attorney
representing the local plaintiffs in the case, and the devices held
numerous communications covered by attorney-client privilege. Kaplan ruled
that the clients were not in US jurisdiction so attorney-client privilege
did not apply. He then sought to institute a criminal prosecution of
Donziger for contempt of court for refusing to obey his order to hand them
over to Chevron.
It should be noted that by this stage Rafael Correa had retired as
President of Ecuador as decreed by the constitution, and the CIA was again
firmly in control through the traitorous President Lenin Moreno. Not only
was Donziger entitled on absolute grounds to refuse to hand over
attorney-client communication, there was now a real danger the indigenous
people and other locals involved in the case might be targeted for
reprisals in Ecuador by Moreno and the CIA.
There is again a startling resonance with the Assange case. When Moreno
removed Assange’s diplomatic immunity, and Assange was grabbed from the
Ecuadorean Embassy in London and imprisoned, all of Assange’s papers were
seized by the Ecuadorean government and shipped back to Quito, where they
all were handed over to the CIA. These specifically included thousands of
documents relating to Assange’s defence against extradition, documents
which were covered by attorney-client privilege. Again, when dealing with
an “enemy of the state” like Assange or Donziger, the judges decided that
this did not matter.
RELATED CONTENT: Biden Federal Judge Nominee Persecuted Steve Donziger on
Behalf of Chevron
Let me again interpolate some personal experience. Judge Kaplan now decided
to transform Chevron’s civil case against Donziger into an explicitly
criminal case of contempt of court. In Scotland and throughout the UK,
Kaplan could simply have declared Donziger guilty of violating his own
Order and sent him to jail, precisely as judge Lady Dorrian did to me. But
in the United States—as in every other democracy outside the UK—a judge
cannot arbitrarily decide on a violation of their own order.
Kaplan therefore referred Donziger’s “contempt” to the federal prosecutors
of the Southern District of New York. But they declined to prosecute. Here
we had a civil case brought by Chevron over a decision by an Ecuadorean
court which the US courts had insisted had jurisdiction, but which Kaplan
had repatriated, found for Chevron on the basis of extremely dodgy
evidence, and now turned into the criminal trial of an environmental
activist lawyer based on a complete repudiation of attorney-client
privilege. Federal prosecutors viewed none of this as valid.
So Kaplan now did something for which nobody can provide a convincing
precedent. In 2020 he appointed private legal prosecutors, paid for by his
court, to bring the criminal case against Donziger which the state
prosecutors had declined to bring. Kaplan had personal links to the firm
involved, Seward and Kissel, who had been acting for Chevron in various
matters less than two years previously. During the prosecution process,
Seward and Kissel as prosecutors were in constant contact with Chevron’s
avowed lead lawyers, Gibson Dunn and Crutcher, over the case.
For all these reasons the Donziger case has been described as the first
private criminal prosecution by a corporation in US history. Chevron’s
ability to control the entire judicial and legal process has been
terrifying. Every public affairs NGO you can think of, not in the pockets
of big oil and climate change denial, has raised serious concerns about the
[image: Steve Donziger speaks to supporters in New York City on October 1,
2021, after receiving a six-month prison sentence. Photo:
Twitter/@SDonziger]Steve Donziger speaks to supporters in New York City on
October 1, 2021, after receiving a six-month prison sentence. Photo:
Contrary to convention, though not contrary to law, Kaplan also personally
appointed the judge to hear the case for criminal breach of his order,
rather than leaving it to the court system. His nominee, Judge Loretta
Preska, committed Donziger to house arrest pending trial. On October 21,
2021, she sentenced Donziger to six months in prison; the maximum for
contempt of court in the USA (I was sentenced to 8 months in Scotland).
After 45 days Donziger was released from prison due to COVID, to serve the
rest of his sentence under house arrest. In total, before and after trial,
Donziger spent 993 days in detention. He was released on April 25, 2022.
Donziger has been disbarred as a lawyer. Chevron have a lien on his home
and all his assets for compensation. They have paid nothing to the victims
of their pollution of the Amazon.
I really cannot think of any individual story that better incorporates so
many aspects of the dreadful corruption of modern western society. We are
all, in a sense, the prisoners of corporations which dictate the terms on
which we live, work and share knowledge. Justice against the powerful
appears impossible. It is profoundly disturbing, and I recommend everyone
to take a few minutes to reflect about the full meaning of the Donziger
story in all its many tangents.
There is a good interview with Steve Donziger, which understandably
concentrates on the personal effect upon him, here
Footnote: It would be churlish of me not to mention that when Sir Brian
Barder became High Commissioner in Lagos he took a different line on Shell
and pollution, much to the annoyance of Tory minister Norman Tebbit. 20
years later I was eventually sacked by the FCO for an excess of dissent,
and Brian and Jane immediately invited me to dinner. Brian is no longer
with us but his son Owen Barder (@owenbarder) is well worth following on
*Featured image: Environmental lawyer Steven Donziger shows his release
papers on April 25, 2022, in New York City. Photo: Twitter/@SDonziger*
Craig John Murray is a British former diplomat turned political activist,
human rights campaigner, blogger and whistleblower. Between 2002 and 2004,
he was the British ambassador to Uzbekistan during which he exposed the
human rights violations of the Karimov administration.
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