IN FEBRUARY 2011, a court in Ecuador delivered a historic victory for indigenous and rural communities in that country’s Amazon region: a multi-billion-dollar pollution judgment designed to remedy decades of deliberate toxic dumping by global oil company Chevron on indigenous ancestral lands.
I was a member of the international legal team that obtained the judgment after Chevron had insisted the trial take place in Ecuador. Since then, I have been targeted by the company with what can only be described as a vicious retaliation campaign against me and my family – a campaign designed to silence my advocacy and intimidate other human rights lawyers who might think of taking on the fossil fuel giants.
The evidence against Chevron, as found by Ecuador’s courts, was overwhelming. It consisted of 64,000 chemical sampling results reporting extensive oil pollution at hundreds of oil production sites. Billions of gallons of toxic “produced water” were deliberately discharged into rivers and streams that locals relied on for their drinking water, fishing and bathing. Cancer rates in the region have spiked dramatically.
One experienced engineer who had worked on oil operations in dozens of countries told an energy journalist it was the worst oil pollution he had ever seen. When the indigenous people complained, the company’s engineers told them that oil was like milk and that it contained vitamins.
At the time we won the judgment, I was living in Manhattan with my wife and young son in a small apartment. I was travelling to Ecuador on a monthly basis to help the affected communities while maintaining a small law practice.
To keep the litigation going, I helped my clients raise significant funds from supporters and I helped recruit and manage attorneys from around the world who were preparing to enforce the winning judgment. Enforcement of the judgment became necessary after Chevron vowed never to pay and threatened the indigenous peoples who won the case with a “lifetime of litigation” unless they dropped their claims.
Chevron’s counterattack targeting me came swiftly. In 2009, the company had hired a new law firm that broadly advertised a “kill step” strategy to help rescue corporations plagued by scandal from legal liabilities. This primarily involved accusing the lawyers who won a judgment against the firm’s client of “fraud” to distract attention from the company’s wrongdoing. The ultimate goal was to drive lawyers off the case by demonising them and making life so uncomfortable that their careers were at risk; under such a scenario, the victims of the company’s pollution would be left defenceless.
In my case, Chevron lawyers sued me under a civil “racketeering” statute – accusing me of authorising the bribing of a judge in Ecuador. This is something I have not done, nor would I ever do.
The civil lawsuit was crafted by the Chevron lawyers to read like a criminal indictment. When it was filed in New York in 2011, my life was turned upside down. The company claimed the entire case I had been working on in Ecuador since 1993 was “sham” litigation even though Ecuador’s courts had validated the pollution judgment based on voluminous scientific evidence. Chevron also sued me for $60 billion, the largest potential personal liability in US history. When I refused to give up, the company convinced a US judge in 2018 to charge me with criminal contempt of court for appealing an order that I turn over my electronic devices, passwords and confidential case file to the company.
At the time of writing, I have been under house arrest in Manhattan for roughly 600 days on a petty charge that carries a maximum sentence of just 180 days in prison. I am being prosecuted by a Chevron law firm in the name of the public after the charges were rejected by the regular federal prosecutor.
To monitor my whereabouts on a 24/7 basis, the court shackled my left ankle with a GPS monitor. It never comes off — I sleep with it, eat with it and shower with it. It often beeps in the middle of the night when the battery runs low.
In all, Chevron has used the US court system to subject me over the past 10 years to multiple attacks:
Chevron paid an Ecuadorian witness at least $2 million. It also flew him and his entire family to the USA where they were settled in a new house. Chevron lawyers then coached this person for 53 days to be its star witness. He testified I approved a bribe of the trial judge in Ecuador. This was the “kill step” in action: I was falsely being accused of a crime to ruin my career and remove me from the case. The witness later recanted much of his testimony, but the judge in the case denied me a jury of my peers and used the testimony to rule the Ecuador judgment was obtained by fraud and that I could not collect my legal fee.
Chevron used these so-called findings of fact – findings contradicted by six appellate courts in Ecuador and Canada that rejected the company’s false evidence – to orchestrate the suspension of my licence in New York without a hearing. I later won my post-suspension hearing; the case is currently on appeal.
Chevron launched a series of financial attacks against me and my family. Even though the company had denied me a jury (required by law in damages cases), the judge allowed Chevron to impose draconian financial penalties on me to “repay” the company for some of the legal fees it used to prosecute me. The judge also imposed billions of dollars of fines on me for supposedly failing to comply with discovery orders that I had appealed. He also authorised the company to freeze my personal accounts and take my life savings.
In the ultimate coup de grace, Chevron convinced the judge to essentially block me from working on the case by issuing an injunction preventing me from helping my clients raise investment funds to help enforce the judgment against Chevron’s assets. The cold reality is that Chevron, which grosses about $250 billion a year, is free to spend what it wants to block enforcement actions brought by the Ecuadorian communities. The indigenous people of Ecuador,nmost of whom cannot afford even bottled water, are barred by US courts from raising money to enforce their judgment. The US court did say they could receive “donations”, which will never be enough to cover the costs.
In any criminal contempt case, no person charged with a petty crime in the federal system has served even one day’s pre-trial in-home detention; I have served almost two years without trial.
My trial on the six criminal contempt counts is scheduled for 10 May. All the counts relate to legitimate discovery disputes I had with Chevron that I was litigating at the time the judge charged me criminally. At the time, I was in Canada helping lawyers there enforce the Ecuador judgment.
I am a human rights lawyer who has received significant public support, including from 55 Nobel laureates who have demanded dismissal of the criminal case and my release. Thousands of prominent lawyers around the world, including Harvard professor Charles Nesson and legendary civil rights lawyer Martin Garbus, have rallied on my behalf. Courts around the world have validated the judgment I worked years to help secure. Yet Chevron, working through its 60 law firms and hundreds of lawyers, has effectively weaponised the judicial system in service of its interests to nullify my ability to fully function as an advocate. This has happened in retaliation for our success, not because of any errors along the way.
The victims of this new corporate playbook are the people of Ecuador; its higher purpose is to protect a fossil fuel industry that is destroying our planet from being held accountable under the law. The racketeering is the conspiracy organised by Chevron and its allies not only to “win” the case and extinguish the company’s liability but also to kill off the idea that this type of environmental human rights case can happen again. It is critical that environmental justice lawyers, campaigners and all who believe in free speech stand up for the important principles so central to the proper functioning of a free society that are contained in this saga.
The lawyer and the multi-billion dollar oil company
INDEX looks at how Texaco and Chevron became involved in Ecuador and the twists and turns of Steven Donziger’s campaign to get compensation for local people
1964: Texaco begin oil exploration and drilling in Ecuador.
1992: Texaco hand over full control of the oil operation in the country to state-owned oil company PetroEcuador.
1993: Steven Donziger and his team file a suit against Texaco in New York, but Texaco successfully lobby to have the case heard in Ecuador.
1995: A settlement agreement is reached and Texaco agree to help with the clean-up of toxic waste.
1998: The clean-up costs $40 million and Ecuador releases another agreement stating Texaco had met its obligations under the 1998 agreement.
2000: Chevron buy Texaco for around $35 billion.
2003: A US legal team including Steven Donziger sues Texaco on behalf of over 30,000 Ecuadoreans, claiming that between from 1971 to 1992, Texaco dumped four million gallons of toxic wastewater per day.
2011: In February, Chevron sues Donziger and co. under the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging extortion.
The original suit, the monetary claims of which were dropped before the trial, saw Chevron seeking $60 billion in damages.
2011: An Ecuadorean court gives a judgment for Chevron to pay $18 billion, which is later raised to $19 billion, to plaintiffs. Chevron appeal the decision.
2013: Ecuador’s Supreme Court upholds the decision but halves the damages to $9.5 billion.
2014: US District Judge Lewis Kaplan rules the decision to be tainted and accuses Donziger of perverting the course of justice. Six other courts rule the decision to be valid. Much of the decision was based on the testimony of former Ecuador judge Alberto Guerra, who claimed there was bribery involved in the 2011 judgement. Parts of this testimony have since been retracted.
2018: Donziger is suspended from practising as an attorney.
2019: Kaplan charges Donziger with contempt of court and orders him to pay $3.4 million in attorney fees.
2020: In August, Donziger is disbarred. 29 Nobel laureates condemn alleged judicial harassment by Chevron.
Chevron hits back
SEAN COMEY, senior corporate adviser, Chevron Corporation, sent Index this response
Steven Donziger continues to try to shift attention away from the facts. In his own words, “we need to make facts that help us and the facts we need don’t always exist”.
The facts are that Donziger has been disbarred because of a pattern of illegal activity related to the case. Decisions by courts in the USA, Argentina, Brazil, Canada and Gibraltar and an international tribunal in The Hague confirm that the fraudulent Ecuadorian judgment should be unenforceable in any court that respects the rule of law. The US District Court for the Southern District of New York held that the judgment against Chevron was the product of fraud and racketeering, finding it unenforceable in the USA. The court found Donziger violated the US racketeering statute by committing extortion, wire fraud, money laundering, obstruction of justice, witness tampering and Foreign Corrupt Practices Act violations. The judgment is final after been unanimously affirmed by the Court of Appeals and denied review by the Supreme Court.
Even the government of Ecuador now acknowledges the judgment was based on fraud. The international Bilateral Investment Treaty tribunal in The Hague – including an arbitrator appointed by the Ecuadorian government – unanimously ruled the Ecuadorian judgment was based on fraud, bribery and corruption, and rejected the environmental allegations against Chevron, ruling those claims were settled and released by the Republic of Ecuador decades ago following an environmental remediation supervised and approved by the government.
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[vc_row][vc_column][vc_single_image image=”116543″ img_size=”full” add_caption=”yes”][vc_column_text]A popular poet and comedian, and a women’s rights campaigner who co-founded Myanmar’s independent Mizzima news channel are the latest in Myanmar to fall foul of the military junta.
The military, led by General Min Aung Hlaing, has recently targeted poets, comedians and celebrities in order to silence protest against its power grab following democratic elections last November in which Aung San Suu Kyi’s National League for Democracy party won a landslide victory.
The miltary authorities recently published a list of 120 celebrities wanted for arrest, some of whom have since been detained.
Popular comedian, poet, actor and director Maung Thura, known commonly as Zarganar, was arrested and detained on 6 April without charge.
Zarganar spoke to Index in 2012, a year after his release from an earlier 59-year prison sentence imposed in 2008 by the former military dictatorship in the country.
In the article, he describes his time in prison and told Index: “Freedom of speech and freedom of expression is very important for our country, for openness and transparency.”
“Over the 40 years [of the last military regime], we were living in a dark room. People could not see us,” he said. “Free art, free thought, freedom. It is very important.”
Paing Takhon, a 24-year-old actor who had expressed support for the protests, has also been detained.
The detained are perhaps the lucky ones.
Poet K Za Win was killed on 3 March by Myanmar’s security forces during protests in Monywa. On the same day, footage of bodies being dragged through the street by army personnel surfaced online.
Meanwhile, Daw Thin Thin Aung, a journalist and women’s rights activist who co-founded the banned independent news channel Mizzima in 1998, has also been detained by the Tatmadaw military.
Mizzima lost its licence to broadcast in early March along with other broadcasters Khit Thit Media, Democratic Voice of Burma (DVB), 7 Day and Myanmar Now. Despite this, Mizzima has continued its coverage of the violent arrests, shootings and other actions taken by security forces against both citizens and journalists online.
Former Mizzima journalist U James Pu Thoure has also been detained by the authorities, continuing General Min Aung Hlaing’s attack on journalists reporting on protests in the country against the coup.
Mizzima editor-in-chief Soe Myint said in a statement: “Mizzima Media is deeply concerned to learn that Daw Thin Thin Aung and U James Pu Thoure, former members of Mizzima, have been detained without charges.”
Myint said that both Thin Thin Aung and Pu Thoure had formally left the organisation since the coup of 1 February 2021.
Thin Thin Aung had previously worked as a journalist for the BBC while in exile in India. As well as her journalism, she spent many years campaigning for women’s rights in Burma, also founding the Women’s League of Burma (WLB).
Of her detainment, the WLB said “We are extremely concerned about the life and safety of Thin Thin Aung. We urge the international community to press the military coup council for the immediate release of Thin Thin Aung and other detained activists.”
Concerns have also been raised over Thin Thin Aung’s health, particularly as prison conditions in the country are notoriously poor. Mizzimia’s Soe Myint said she had been unwell for some time and had withdrawn from active working life prior to leaving Mizzima.
Since the coup, many journalists have been arrested and charged under Section 505(a) of the country’s penal code which makes it a crime to publish any “statement, rumour or report”, “with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman, in the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty”, essentially making criticism of the military government impossible.
According to Myanmar’s Assistance Association for Political Prisoners (AAPP), as of 9 April, 40 journalists had been arrested of which 31 have been detained and sentenced. It said that seven other journalists facing arrest warrants remain in hiding.
The AAPP says that the total number of people killed in Myanmar since the coup is 614. In the same period, more than 2,850 people have been arrested or detained without charge.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also want to read” category_id=”38″][/vc_column][/vc_row]
Julian Assange/Cancillería del Ecuador/WikiCommons
This week’s decision not to extradite WikiLeaks founder, Julian Assange, to the USA to stand trial for charges of espionage came as welcome relief to Assange’s family and supporters. However, he remains detained at London’s high-security Belmarsh prison after the judge refused bail citing concerns he would abscond.
Before we consider the ruling against extradition as a victory for free speech it’s worth exploring the details of District Judge Vanessa Baraitser’s ruling which risk creating a chilling effect on public interest journalism.
Judge Baraitser’s ruling at no stage allowed for the protections governed by Article 10 of the UK Human Rights Act to halt the extradition. Instead, in denying the US Government’s request to extradite Assange, Baraitser concluded that “the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America”.
In doing so, the judge accepted the testimony of medical experts who said that Assange represented a potential suicide risk if he were to be incarcerated in the USA; Jeffrey Epstein’s suicide and Chelsea Manning’s attempted suicide are both mentioned in the ruling.
The risk was exacerbated because Assange would likely face so-called special administrative measures which would limit his communication with the outside world and visiting rights.
Baraitser’s decisions regarding the key legal arguments of Assange’s defence are cause for concern and risk creating a precedent which would prevent journalists from publishing sensitive information in the public interest and the ruling appears to have extended the scope of Britain’s Official Secrets Act.
As part of the extradition request, the court had to be satisfied, to the criminal standard, that Assange’s conduct would constitute an offence under the law of England and Wales.
Baraitser said in the judgment: “I have found that Mr. Assange’s conduct is capable of amounting to an offence in England and Wales. It follows that I do not accept that the mere fact charges are brought in the US demonstrates that they are brought in bad faith.”
This argument appears to be based on the premise that Assange’s actions would have fallen foul of section 5 of the UK’s Official Secrets Act (OSA) 1989 which applies to individuals, including publishers, who are not the original leaker of the information. This criminalises “those who disclose protected materials which are damaging and which they have disclosed knowing, or having reasonable cause to believe, would be damaging”.
The US government’s argument is similar and maintains that under US law a free speech defence does not necessarily cover classified information even if it is in the public interest and they said Assange had disclosed materials “that no responsible journalist or publisher would have disclosed” when WikiLeaks published its full archive of 251,000 secret US diplomatic cables without redacting the names of sources.
It is this assertion that has led the US government to charge Assange under the 1917 Espionage Act, which is primarily designed for spies, rather than journalists or publishers.
Before the verdict, Assange’s partner Stella Moris told Index: “They say Julian published information that was secret and therefore he can be prosecuted over it. They never used [this act] to prosecute someone publishing information for the public.”
The defence argued that Assange was “doing no more than engaging in the ordinary and lawful conduct of the investigative journalist”, which is protected by Article 10.
However, Baraitser stated that the Article 10 right to freedom of expression “is not absolute”.
She added: “In my judgment, notwithstanding the vital importance in guaranteeing freedom of the press, the provisions of the OSA 1989, where they are used to prosecute the disclosure of the names of informants, are necessary in a democratic society in the interests of national security.”
She also contested Assange’s assertion that he was acting as a responsible journalist.
“The difficulty with this argument is that it vests in Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection.
“Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where ‘dumps’ of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of ‘responsible journalism’ can sensibly be applied.”
If the judge does allow the US appeal in the next two weeks and Assange is extradited, he will not have recourse to protection under the First Amendment laws which protect freedom of speech. Incumbent Secretary of State Mike Pompeo has previously argued that First Amendment privileges should not be afforded to Assange and WikiLeaks.
Pompeo’s comments were deemed by many to be politically motivated in order to deter the likes of the WikiLeaks founder from repeating similar actions. Being the first administration to use the Espionage Act in such a way seemed to support this.
But Baraitser once again rejected the defence’s argument, deciding that: “The defence points to comments made by Attorney General Sessions a week after Mr. Pompeo’s speech in April 2017 that “[journalists] cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if ‘a case can be made, we will seek to put some people in jail’. However, as the US points out, these comments appear to be no more than statements of what is perhaps obvious, and conditional on whether criminal liability can be established. There is nothing sinister in bringing a prosecution ‘if a case can be made’.”
Again, the Espionage Act is a factor here as it does not contain a public interest defence. Therefore, charging journalists under this Act is considered by many as one-sided and unfair as it removes the protections free speech laws afford.
Index’s position is clear. Governments, authoritarian or not, in order to protect our collective human rights and to enable power to be held accountable, must be open to scrutiny and are a fair target for investigative journalists, even if the definition of what constitutes an investigative journalist is no longer as clear as it once was.
The issue at hand is not about Assange the person, but rather the very principle of a free and fair press which operates in the public interest. That is the principle at stake in this judgment.
Other press freedom organisations, such as the International Federation of Journalists, Reporters Without Borders and the Centre for Investigative Journalism, have also expressed their disquiet with the ruling.
We recognise that there are certainly questions about the manner in which Assange published the information without redacting the names of journalists and activists, a move which was condemned by a number of newspapers which worked with WikiLeaks to reveal the contents of the diplomatic cables.
However, the fact remains that much of the information published about the actions of certain governments was clearly in the public interest.
If the US government can decide on a case-by-case basis who is a spy and who is a journalist then this makes the job of the latter that much more challenging. The fear that investigative journalists may be extradited will mean stories that need to be brought to light will remain in the darkest of shadows.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also like to read” category_id=”5641″][/vc_column][/vc_row]
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