Published on
Wednesday, August 26, 2020
byScheerpost
How Corporate Tyranny Works
Those, like environmental lawyer Steven Donziger, who fight the corporate
control of our society on behalf of the vulnerable find the institutions of
power unite to crucify them.
byChris Hedges
Oil sludge from one of the hundreds of waste pits that Chevron left in the
Ecuadorean Amazon. (Photo: via Indian Country News)
Oil sludge from one of the hundreds of waste pits that Chevron left in the
Ecuadorean Amazon. (Photo: via Indian Country News)
The persecution of the attorney Steven Donziger is a grim illustration of
what happens when we confront the real centers of power, masked and
unacknowledged by the divisive cant from the Trump White House or the
sentimental drivel of the Democratic Party. Those, like Donziger, who name
and fight the corporate control of our society on behalf of the vulnerable
see the judiciary, the press and the institutions of government unite to
crucify them.
"It's been a long battle, 27 years," Donziger said when I reached him by
phone in his apartment in Manhattan.
Donziger, who has been fighting polluting American oil companies for nearly
three decades on behalf of indigenous communities and peasant farmers in
Ecuador, has been under house arrest in Manhattan for a year. He will go to
trial in federal court in New York on September 9 on contempt of court
charges, which could see him jailed for six months. Ever since he won a
multibillion-dollar judgment in 2011 against the oil giant Chevron, the
multinational has come after him personally through litigation that
threatens to destroy him economically, professionally, and personally.
"Our L-T [long-term] strategy is to demonize Donziger," Chevron wrote in an
internal memo in 2009, as reviewed by Courthouse News.
"Ever since he won a multibillion-dollar judgment in 2011 against the oil
giant Chevron, the multinational has come after him personally through
litigation that threatens to destroy him economically, professionally, and
personally.""It started when Texaco went into Ecuador in the Amazon in the
1960s and cut a sweetheart deal with the military government then ruling
Ecuador," Donziger told me. "Over the next 25 years, Texaco was the
exclusive operator of a very large area of the Amazon that had several oil
fields within this area, 1500 square miles. They drilled hundreds of wells.
They created thousands of open-air, unlined toxic waste pits where they
dumped the heavy metals and toxins that came up from the ground when they
drilled. They ran pipes from the pits into rivers and streams that local
people relied on for their drinking water, their fishing, and their
sustenance. They poisoned this pristine ecosystem, in which lived five
indigenous peoples, as well as a lot of other non-indigenous rural
communities. There was a mass industrial poisoning."
"By the time I went down there in the early 1990s, many people had died,
cancer rates were skyrocketing according to several independent health
evaluations, people were really hurting. There was zero regard for the lives
of the local people by Texaco. I was a very young lawyer back in 1993 when I
first went to Ecuador. It was like looking at an apocalyptic scene. There
was oil on the roads. People were living in abject poverty. They had no
shoes. They would get oil on their feet when they walked along the roads.
The oil pollution had permeated every aspect of daily life. It was in the
food supply. It was in the water supply. It was in the air. The average
person there would get exposed multiple times a day to very harmful,
cancer-causing toxins, with foreseeable results."
"I, with other lawyers, filed a lawsuit in New York against Texaco. The
reason we filed in New York was because Texaco's headquarters were in New
York in 1993. The decisions to pollute in Ecuador, to play God to the people
of Ecuador, were made in New York. We sued in New York. Texaco tried to get
the case back to Ecuador where they had never been held accountable, where
they knew the indigenous peoples had no money or resources to find lawyers."
"They thought it would just go away," said Donziger. "Over a 10-year period,
we battled to get a jury trial in the United States. Ultimately, they won
that part of the battle. It went down to Ecuador."
"We started working with a team of Ecuadoran lawyers in the early 2000s. We
went forward with the lawsuit. We produced voluminous scientific and
testimonial evidence, showing that they caused probably the world's worst
oil pollution. It was called the 'Amazon Chernobyl' by locals and experts.
They dumped 16 billion gallons of toxic waste. They did it deliberately to
save money. This was unlike the BP spill in the Gulf of Mexico, which was a
terrible accident, even though it was a product of horrendous negligence by
BP. This was done by design to pollute, knowing that people would die, and
that indigenous groups would be decimated, and that this beautiful part of
the Amazon would be destroyed."
The refusal to abide by even minimal environmental regulations saved Texaco
an estimated $3 on every barrel of oil produced over 26 years (1964-1992),
according to Amazon Watch, or an estimated extra $5 billion in revenue. The
hundreds of waste pits the company eventually abandoned in Ecuador, on
average, contain 200 times the contamination allowed by typical global
standards.
"They tried to grind us down using classic corporate defense tactics,"
Donziger said of the legal war. "They filed thousands of motions. We stood
strong. We had a great legal team of Ecuadorian lawyers."
In the end, they won a stunning victory, a rare moment of accountability for
first-world conglomerates who rape the environment of developing nations by
exploiting weak, corrupt governments.
"The verdict came down, about $18 billion in favor of the affected
communities, which is what it would take at a minimum to clean up the actual
damage and compensate the people for some of their injuries. That eventually
got reduced on appeal in Ecuador to $9.5 billion, but it was affirmed by
three appellate courts, including the highest court of Ecuador. It was
affirmed by the Canadian Supreme Court, where the Ecuadorians went to
enforce their judgment in a unanimous opinion in 2015."
Chevron, as the evidence mounted against it, sold their assets in Ecuador
and left the country. The corporation threatened the plaintiffs with a
"lifetime of litigation" if they attempted to collect, and, according to
internal Chevron memos, launched a legal and media campaign that has cost an
estimated $2 billion to prevent payment of the settlement and to demonize
and destroy Donziger.
Donziger came to his epic battle against Chevron through journalism. "I was
a journalist on my college newspaper," he said of his time as a history
major at American University. "My first job out of college was as a
journalist with [United Press International]. I worked for UPI in
Washington. They were strong in Latin America. I traveled to Managua in 1983
or 1984, I don't remember exactly, and found work in the UPI bureau. I was
23 years old. I worked in the UPI bureau in Managua during the Sandinista
era."
"The corporation threatened the plaintiffs with a 'lifetime of litigation'
if they attempted to collect, and, according to internal Chevron memos,
launched a legal and media campaign that has cost an estimated $2 billion to
prevent payment of the settlement and to demonize and destroy Donziger."He
left UPI after a year in Managua but stayed on in Nicaragua to work as a
freelance journalist for newspapers such as The Fort Lauderdale News, The
Toronto Star and The Atlanta Constitution. He spent about three years as a
reporter before going to Harvard Law School. When he graduated from Harvard
Law School in 1991, he worked as a public defender in Washington, D.C. He
documented Iraqi civilian casualties in Iraq following the first Gulf War
that became a report adopted by the United Nations.
A classmate at law school was from Ecuador. His classmate's father organized
a trip in April 1993 for lawyers and medical professionals to look at the
contamination caused by the oil extraction in the Amazon. That trip, which
Donziger joined, spawned the suit against Texaco. He would make more than
250 trips to Ecuador over the next two decades.
"Journalism significantly shaped my views and skill set," he said. "It was
vital to allowing my work to be successful. From the beginning this was a
unique litigation, for many reasons, but one of the reasons was we, as a
team, decided to work across multiple platforms. If we only saw this case as
a lawsuit we would never win."
"Chevron controlled the legal system in Ecuador with their influence. We
needed to operate across different platforms, including engaging with the
media and carrying out significant public education. Most Ecuadoreans, other
than those who lived in the region, knew nothing about the pollution that
had been happening in their country. We carried out zealous advocacy in the
public arena. We realized that the indigenous people would never get a fair
trial in Ecuador if they did not illuminate what had happened to them and
get public support."
Both the judge who oversaw its lawsuit against Donziger for "racketeering"
and Chevron itself "claim that this type of activity is wrong," he said.
"The irony is that what we were doing is what the big oil companies have
always done. They always operate in the public relations domain, lobbying
Congress to pass legislation to extinguish various legal claims, meeting
political leaders behind the scenes. They operate across every platform they
can find to exercise their power. We were smart enough to meet them
toe-to-toe wherever they were operating and neutralize their ability to
undermine the fairness of the trial. That's how they operate. They try to
control court systems."
"My journalism [experience] sensitized me to injustice. It allowed me to
understand the media. I knew how to write press releases, which matters when
you do a public case like this. I knew how to work across different
platforms to mobilize positive energy around the case. Human rights work
involves, first and foremost, justice for victims. But equally important is
accountability for the perpetrators. The fact that I am detained shows how
far we've come and how much risk Chevron feels. It's not a sign we lost.
It's the opposite."
"The fact that I am detained shows how far we've come and how much risk
Chevron feels. It's not a sign we lost. It's the opposite." - Steven
DonzigerChevron, which had left Ecuador, went back to the New York court,
where Donziger had originally filed the lawsuit before Chevron got a change
of venue to Ecuador, and sued him, using a civil courts portion of the
federal law famous for breaking the New York Mafia in the 1970s, the
Racketeer Influenced and Corrupt Organizations Act.
In effect, "They sued me as a civil racketeer, under a civil RICO statute
for $60 billion," he said. "That was the largest amount of money an American
individual ever had been sued for. This began a ten-year campaign to
demonize me by Chevron and by its judicial allies."
Chevron, which has more than $260 billion in assets, has hired an estimated
2,000 lawyers from 60 law firms to carry out its campaign, according to
court documents. The oil giant dropped its demand for financial damages
weeks before the RICO trial, which would have necessitated a jury trial.
Judge Lewis A. Kaplan, a former lawyer for the tobacco industry who had
undisclosed investments in funds with Chevron holdings, according to his
public financial disclosure statement, decided the RICO case alone. He found
credible a witness named Alberto Guerra, relocated to the US by Chevron at a
cost of some $2 million, who claimed the verdict in Ecuador was the product
of a bribe. Kaplan used Guerra's testimony as primary evidence for the
racketeering charge, although Guerra, a former judge, later admitted to an
international tribunal that he had falsified his testimony.
"[Kaplan] wouldn't allow me to bring in any environmental evidence that the
Ecuadorian courts had used to find Chevron liable," Donziger said. "He
wouldn't let me testify on my own behalf on direct. He allowed Chevron to
use secret witnesses whose identities he wouldn't reveal to me. He tried to
treat it like a national-security kind of case to try to demonize me.
Because Chevron's whole strategy is to demonize [me] as a way to distract
attention from its environmental crimes in Ecuador. And Judge Kaplan, who
knows all the tricks in the books because he used to work for [tobacco
company] Brown & Williamson, when he was [an attorney with the law firm of]
Paul, Weiss. He knows the tobacco industry playbook that they used for years
and years and continue to use. And he worked with the Chevron lawyers at
Gibson, Dunn & Crutcher to implement them against me without a jury. And
there was nothing I could do about it."
(Paul, Weiss is a large law firm that currently advises Chevron on its $13
billion purchase of another energy company.)
John Keker, one of Donziger's lawyers on that case, said he was up against
160 lawyers for Chevron and during the trial he felt "like a goat tethered
to a stake." He called the court proceedings under Kaplan "a Dickensian
farce" and a "show trial." In the end, Kaplan ruled that the judgment in the
Ecuadorean court against Chevron was the result of fraud.
He also ordered Donziger to turn over decades of all client communication to
Chevron, in effect eradicating attorney-client privilege, a backbone of the
Anglo-American legal system with roots dating to ancient Rome. Donziger
appealed what was, according to legal experts following the case, an
unprecedented and illegal order. While Donziger's appeal was pending, Kaplan
charged him with criminal contempt for this principled stance, as well as
his refusal to turn over his passport, his personal electronics and to
refrain from seeking the collection of the original award against Chevron.
When his criminal contempt charges against the environmental lawyer were
ignored by the U.S. attorney's office for over five years, Judge Kaplan,
using an exceedingly rare judicial maneuver, appointed the private law firm
of Seward & Kissel, to act in the name of the government to prosecute
Donziger. Neither the judge nor the law firm disclosed that Chevron has been
a client of Seward & Kissel.
Kaplan also violated the established random case assignment protocol to
personally assign Loretta Preska, a member of the right-wing Federalist
Society, to hear the case. Chevron is a major donor to the Federalist
Society. Preska, in a show of bias, already has said the charges against
Donziger appear to be "very strong," according to Courthouse News. In May,
she disallowed him from having his charges heard by a jury.
"The last thing any of them wants is for a group of ordinary citizens to see
what has happened to Steven Donziger," Rick Friedman, one of Donziger's
attorneys, said of Chevron.
Preska's fealty to corporate power was previously on public display in 2013
when she imposed a 10-year sentence, the maximum allowed under a plea deal,
on Jeremy Hammond, the activist who hacked into Stratfor, a private security
firm. Hammond made public a barrage of damning internal emails and exposed
the email address and password of an account used for business by Preska's
husband, Thomas Kavaler, a partner at the law firm Cahill Gordon & Reindel.
Preska, despite the conflict of interest, refused to recuse herself. The
10-year sentence was one of the longest in U.S. history for hacking.
Kaplan had Preska demand Donziger post an $800,000 bond on a misdemeanor
charge. Preska placed him under house arrest and confiscated his passport
which he has used to meet with attorneys around the world attempting to
enforce the judgment against Chevron. Kaplan managed to have Donziger
disbarred. He allowed Chevron to freeze Donziger's bank accounts, slapped
Donziger with millions in fines without allowing him a jury, forced him to
wear an ankle monitor 24 hours a day and effectively shut down his ability
to earn a living. Kaplan allowed Chevron to impose a lien on Donziger's
apartment in Manhattan where he lives with his wife and teenage son.
Donziger is scheduled to go to trial without a jury on September 9 in New
York City for contempt. Preska will preside over the trial. There has not
been a criminal trial in Manhattan federal court since March because of the
pandemic. Donziger's trial would be the first, although hundreds of other
defendants facing far more serious felony charges are waiting in jails,
infested with COVID-19, for a trial date. Donziger's four pro bono lawyers
said they do not want to risk their lives by traveling to New York during
the pandemic for what is a misdemeanor offense.
"The judgment against Chevron Corporation in Ecuador was the product of
fraud, bribery and corruption," Sean Comey, Senior Advisor - External
Affairs Chevron Corporation said when I asked the corporation to comment on
the case. "Steven Donziger is a proven liar and an adjudicated racketeer. He
committed criminal acts in the U.S. and abroad in pursuit of his extortion
scheme in the Ecuadorian courts. Donziger's continuing lawlessness is now a
matter for prosecutors and the U.S. courts to decide. Chevron is not
involved in Donziger's criminal prosecution."
The flagrant corruption and misuse of the legal system to abjectly serve
corporate interests in the Donziger case illustrates the deep decay within
our judiciary and democratic institutions, one that was abetted by
Democratic administrations that stacked the courts with corporate lawyers
-Kaplan was appointed by Bill Clinton-and Donald Trump, who has elevated
ideologues selected by the Federalist Society to the federal bench. Ruling
after ruling in Donziger's case has ignored or grossly distorted the law on
behalf of Chevron to ensure that Donziger will be prosecuted, sent to prison
and remain in debt for life-all while the $9.5 billion settlement is never
paid to aid the people harmed in Ecuador.
"The flagrant corruption and misuse of the legal system to abjectly serve
corporate interests in the Donziger case illustrates the deep decay within
our judiciary and democratic institutions..." The International Association
of Democratic Lawyers and the international committee of the National
Lawyers Guild issued a letter signed by more than 70 organizations calling
the persecution of Donziger an "attack on the rule of law." The letter said
his house arrest was "unprecedented" and charged that he was being targeted
for what it called "one of the most important corporate accountability and
human rights cases of our time." The letter accused Kaplan of "violating
basic notions of fairness in the judicial process that lie at the core of
the rule of law."
"We cannot allow the rule of law to be upended by corporate interests and a
highly biased federal judge seeking to destroy the willpower of one lawyer
who has already withstood decades of brutal litigation and scathing personal
and professional attacks," the letter read.
Chevron has also used its clout and advertising dollars to keep the story
from being reported in numerous media outlets.
"Based on where this story is trending, we have launched a full offensive to
kill it or redirect it," an August 10, 2010 internal memo from Chevron reads
concerning a potential report on the case being done by the Fox News bureau
in Miami.
"In addition to working through the Miami bureau, we have reached out to
more senior news folks at Fox News, both in NY (through Dana) and in WDC
(through Greg Mueller). So, we are trying to attack this story on multiple
fronts. To this end, Kent is set to talk to John Stack and Sean Smith who
both reside at Fox News in NY at 1:30 today. Finally, if need be, I think we
may need to pull the JSW card with Roger Ailes. We have checked John's
availability to place a call to Roger, but his first availability is
tomorrow afternoon."
From 2010 to 2018, John S. Watson was the CEO and chairman of the Chevron
Corporation.
The story was killed.
Another internal memo lays out the steps, also ultimately successful, to
prevent a similar story from appearing in GQ magazine. The memo suggests
that Chevron work "with the Columbia Journalism Review (that ran the rebuke
of 60 minutes) and the Media Research Center to expose any degree of bias by
GQ and raise alerts about the reporting techniques prior to the story's
publication."
The memo recommends letting the magazine know that it will face legal action
if the story runs and calls on Chevron investigators to "conduct further due
diligence on reporter." Chevron has also hired reporters to produce fake
pieces of journalism that peddle the corporation's propaganda on fake news
sites it runs.
The New York Times magazine earlier this year considered a story about
Donziger and then dropped it. The newspaper runs its own ad agency called T
Brand Studio. Chevron is a major client, meaning The New York Times, through
T Brand Studio, produces ads for Chevron.
Jake Silverstein, editor of the magazine, when asked to comment said by
email: "It was one of several stories William [Langewiesche] considered
writing for us in the past year, one that ultimately we decided not to
assign. Many factors go into our decisions about what to assign, and none of
them ever include who is or is not a client of T Brand Studio or any other
part of the paper's advertising business."
Dean Baquet, the newspaper's executive editor, said, when I reached him by
email, that the idea that the magazine piece on Donziger was killed because
Chevron is a major advertiser is "a ridiculous claim." He added, "I didn't
even know Chevron worked with T Brand [Studio]."
But that Chevron has invested tremendous resources to kill stories about
this case is indisputable given the detailed campaigns to block coverage
outlined in its own internal memos.
"I've experienced this multiple times with media over the past 10 to 15
years," Donziger said. "An entity will start writing the story, spend a lot
of time on it, then the reporter disappears. The story doesn't run."
While The Nation, The Intercept and Courthouse News Service have reported on
Donziger's current legal battle, no major mainstream publication has touched
it.
"Corporate influence over our federal judiciary has increased dramatically
in recent years," Donziger said. "This firm [Chevron] has captured an
element of power from the government and deployed it against a human rights
activist."
Front Line Defenders issued a report in 2019 that found that 300 human
rights activists had been murdered in 31 countries, more than two-thirds in
Latin America. Of those killed, 40 percent fought for land rights,
indigenous peoples and environmental justice.
"What's shocking to a lot of people is that this is now happening in the
United States," Donziger said. "I don't mean murder, but death by a thousand
cuts. Chevron does not want me to be a lawyer anymore, at a minimum. They
don't want me advocating even as a nonlawyer. They want to silence me. They
want to kill every story they can. They'd rather have no story about this
case than even a positive story about their side. They don't want people to
know about it. They want to erase it from people's thought process.
"I cannot get a fair trial with a judge appointed by Judge Kaplan rather
than though the random assignment process," he lamented. "I cannot get a
fair trial with a prosecutor whose law firm [has worked] for Chevron. These
are egregious conflicts of interest. It's misconduct on a grand scale. I've
been locked up four times as long as the longest sentence ever imposed on a
lawyer for criminal contempt in New York. Anyone who cares about the rule of
law should be appalled."