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<h1 class="gmail-reader-title">Donziger: A Tale of Our Times</h1><font size="1">May 11, 2022</font></div>
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<p>By Craig Murray – Apr 28, 2022</p>
<p>Texaco operations in Ecuador from 1962 to 1994 <a href="https://europeangreens.eu/brussels2013/content/chevron-texaco-and-environmental-disaster-amazon#:~:text=Chevron%20has%20admitted%20that%20Texaco,acres%20of%20the%20Ecuadorian%20Amazon." target="_blank" rel="noopener">dumped 70 billion litres</a> of “wastewater,” heavily contaminated with oil and other chemicals, into the Amazon rainforest, plus <a href="https://www.opendemocracy.net/en/democraciaabierta/chevron-vs-ecuador-international-arbitration-and-corporate-impunity/" target="_blank" rel="noopener">over 650,000 barrels</a> of crude oil. They polluted <a href="https://www.greenleft.org.au/content/ecuador-chevron-texaco-profits-ecocide" target="_blank" rel="noopener">over 800,000 hectares</a>.</p>
<p>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.</p>
<p>Texaco was taken over by Chevron in 2000. <a href="https://theamazonpost.com/amazon-defense-coalition-fabricates-texaco-profit-figures-in-ecuador/" target="_blank" rel="noopener">Chevron claims</a> that
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.</p>
<img src="https://www.craigmurray.org.uk/wp/wp-content/uploads/2022/04/Chevron-Ecuador-Amazon-678x381-1.jpg" alt="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" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="460" height="258">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
<p>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 <a href="https://www.italaw.com/sites/default/files/case-documents/ita0155_0.pdf" target="_blank" rel="noopener">legal team assert</a>—in
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.</p>
<p>Yes, that really is just $40 million. Compare that to the $61.6 billion that <a href="https://www.usnews.com/news/national-news/articles/2018-01-16/bp-takes-17-billion-charge-on-deepwater-horizon-costs-now-top-65b#:~:text=In%20July%202016%2C%20BP%20announced,legal%20fees%20and%20cleanup%20costs." target="_blank" rel="noopener">BP paid out</a> for
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.</p>
<p>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, <em><a href="https://www.hive.co.uk/Product/John-Linarelli/The-Misery-of-International-Law--Confrontations-with-Inju/24728138" target="_blank" rel="noopener">The Misery of International Law</a></em> by Linarelli, Salomon and Sornarajah (Oxford University Press 2018):</p>
<p>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.”</p>
<p>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.</p>
<p><a href="https://orinocotribune.com/how-chevron-used-the-legal-system-and-the-fbi-to-target-whistle-blowing-lawyer-steven-donziger/" target="_blank" rel="noopener">RELATED CONTENT: How Chevron Used the Legal System and the FBI to Target Whistle-Blowing Lawyer Steven Donziger</a></p>
<p>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.</p>
<p>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.</p>
<p>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 <a href="https://www.amnesty.org/en/latest/news/2017/06/shell-complicit-arbitrary-executions-ogoni-nine-writ-dutch-court/" target="_blank" rel="noopener">subsequent execution</a>
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 <a href="https://actionaid.org/stories/2020/how-shell-devastating-niger-delta" target="_blank" rel="noopener">continues</a> (see Footnote).</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>Western governments put <a href="https://academiccommons.columbia.edu/doi/10.7916/D8KK9K69" target="_blank" rel="noopener">enormous pressure</a>
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 <a href="https://www.lawgazette.co.uk/features/unfair-contests/5068074.article" target="_blank" rel="noopener">inveighed against it</a>, before she started fund-raising for her Presidential bid.</p>
<p>Big oil apologists are cock-a-hoop that the disgraceful,
well-feathered right-wing jurists of the Permanent Court of Arbitration
in the Hague <a href="https://www.bbc.co.uk/news/world-latin-america-45455984" target="_blank" rel="noopener">gave Chevron a judgement</a>
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.</p>
<p>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.</p>
<p>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.</p>
<p>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 wanted.</p>
<p>So who is Kaplan? From 1970 to 1994 he was in private practice, representing in particular <a href="https://www.courthousenews.com/environmental-lawyer-facing-rare-prosecution-says-his-judge-is-biased/" target="_blank" rel="noopener">the interests of tobacco</a>
companies including Philip Morris—itself, I would argue, sufficient
sign of moral bankruptcy. He was also the “trusty” judge the federal
government used <a href="https://www.nytimes.com/2010/07/14/nyregion/14ghailani.html" target="_blank" rel="noopener">to rule that</a>
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.</p>
<p>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.</p>
<p>Guerra was extremely unconvincing in court. In his judgement for Chevron Kaplan stated that:</p>
<p><em>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.</em></p>
<p>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.</p>
<p>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 <a href="https://www.vice.com/en/article/neye7z/chevrons-star-witness-admits-to-lying-in-the-amazon-pollution-case" target="_blank" rel="noopener">had invented the story</a> to
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.</p>
<p>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.</p>
<p>Followers of the Assange case will of course note the parallels with <a href="https://stundin.is/grein/13627/" target="_blank" rel="noopener">Siggi Thordarson</a>,
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.</p>
<p>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.</p>
<p>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
Ecuadorean case.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p><a href="https://orinocotribune.com/biden-federal-judge-nominee-persecuted-steve-donziger-on-behalf-of-chevron/" target="_blank" rel="noopener">RELATED CONTENT: Biden Federal Judge Nominee Persecuted Steve Donziger on Behalf of Chevron</a></p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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 case.</p>
<img src="https://www.craigmurray.org.uk/wp/wp-content/uploads/2022/04/Donziger-Day-2-11-767x633-1.webp" alt="Steve Donziger speaks to supporters in New York City on October 1, 2021, after receiving a six-month prison sentence. Photo: Twitter/@SDonziger" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="460" height="380">Steve
Donziger speaks to supporters in New York City on October 1, 2021,
after receiving a six-month prison sentence. Photo: Twitter/@SDonziger
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>There is a good interview with Steve Donziger, which understandably concentrates on the personal effect upon him, <a href="https://theintercept.com/2022/04/27/deconstructed-steven-donziger-chevron-ecuador/" target="_blank" rel="noopener">here</a>.</p>
<p>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 development issues.</p>
<p><em>Featured image: Environmental lawyer Steven Donziger shows his
release papers on April 25, 2022, in New York City. Photo:
Twitter/@SDonziger</em></p>
<p>(<a href="https://www.craigmurray.org.uk/archives/2022/04/donziger-a-tale-for-our-times/" target="_blank" rel="noopener">craigmurray.org.uk</a>)</p>
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<span>
Craig Murray </span>
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<p>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.</p>
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