Trend to 'criminalize human rights advocacy' is tainting US judiciary, anti-corruption group warns
U.S. Judge Kaplan Draws Outrage Over Threats to Imprison Human Rights Defender Who Won Landmark Case Over Chevron
New York – An alliance of more than 20 global anti-corruption and human rights organizations led by London-based Global Witness has expressed "grave concern" that judicial authorities in the United States are violating due process rights of US citizens by permitting scandal-plagued corporations to attack advocates through harassing lawsuits intended to criminalize advocacy.
Corruption expert Simon Taylor of Global Witness, who investigates judicial abuses, has flagged the on-going case of Steven Donziger, the New York environmental lawyer whose 2011 $12B landmark judgment against Chevron on behalf of Indigenous peoples and farmer communities in Ecuador's Amazon set a historic precedent against environmental and health rights abusers. Despite 17 judges and four layers of courts in Ecuador validating the judgment, Chevron and U.S. judge Lewis A. Kaplan have attacked Donziger for ten years, imposing millions of dollars of fines and threatening him with imprisonment in retaliation for his continued advocacy on behalf of his clients.
"The violence against and criminalization of environmental and human rights defenders protecting their territories from predatory and corrupt governments and companies is an alarming and escalating global trend," Global Witness' Taylor said. “What Chevron and Judge Kaplan are doing to abuse Steven Donziger is very much part of this trend, and we find this very disconcerting because it is not something we usually see in the United States.”
Global Witness, which was nominated for a Nobel Peace Prize for its work on the blood diamonds issue, has been monitoring the attacks on Donziger and has issued two alerts (see here and here) citing violations of his due process rights. The rising influence of corporate power in all three branches of the US political system is being tested, said Taylor, who compared Kaplan’s orders against Donziger to those the organization usually sees in “tyrannical regimes” such as Russia and Saudi Arabia.
Also monitoring the case is a coalition of 20 NGOs called Protect the Protest, which includes the ACLU, Electronic Frontier Foundation, Human Rights Watch, Greenpeace International, and Amazon Watch. The group -- which is dedicated to blocking harassing SLAPP-style lawsuits -- recently gave Chevron its “Corporate Bully of the Year” award for its attacks on Donziger and the Ecuadorian villagers. Amnesty International and seven other human rights and anti-corruption groups also have written to the U.S. Department of Justice (DOJ) demanding a criminal investigation of Chevron for engaging in witness bribery and fraud in Kaplan’s court to target Donziger.
Chevron was convicted by four layers of courts in Ecuador of deliberately dumping 16 billion gallons of toxic wastewater into the bio-diverse rainforests of northeastern Ecuador and abandoning nearly 1000 unlined pits with contaminated drilling other public health hazards. The environmental disaster in Ecuador is 30 times worse than the Exxon Valdez oil spill in Alaska and many times the scale of BP's 2010 Deepwater Horizon catastrophe in the Gulf of Mexico. BP paid $50 billion in fines and compensation to its victims, while Chevron – whose spill was deliberate -- has not paid even one dollar to the thousands of its victims in Ecuador. (Here is a summary of the evidence against Chevron.)
Instead of complying with the judgment, the US oil giant counter-attacked in New York with a civil racketeering case known as RICO against Donziger and 47 rainforest villagers who brought the case. Chevron steered the RICO case to the courtroom of Kaplan, a former corporate lawyer whose pro-business leanings are well-known in the New York legal community and who has a long history of antagonism toward Department of Justice attempts to enforce corporate compliance.
Chevron sued Donziger under RICO for an astounding $60B—the largest personal liability claim in the history of US jurisprudence—and engaged hundreds of lawyers from dozens of law firms. The company has spent an estimated $2B to reverse the Ecuador judgment and to personally ruin Donziger with financial penalties. After dropping all damages claims on the eve of the RICO trial to avoid a jury, Chevron convinced Kaplan several years after the end of the proceedings (as the Ecuador judgment was being enforced in Canadian courts) to impose at least $4.7 million in judgments on the lawyer to cover Chevron’s court costs and some of its legal fees – judgments that Donziger says are illegal, but which allowed Chevron to freeze his bank accounts.
Chevron's key witness in the RICO case, an Ecuadorian national named Alberto Guerra, after being coached by Chevron law firm Gibson Dunn for 53 days, testified against Donziger saying that the lawyer had bribed the judge. Guerra later admitted that he had been paid $2M by Chevron and that the company also had relocated his family to the US and paid his income taxes; Chevron offered no evidence to corroborate Guerra’s testimony, which was disproven by a separate forensic report. Guerra also admitted he lied on the stand before Kaplan. (See here for a news report.)
Earlier this year, Kaplan went even further and ordered Donziger to turn over his computer and cell phone to Chevron and to hand over his passport until he complied, which many observers believe is unprecedented in the context of an ongoing civil litigation. Greenpeace co-founder Rex Weyler, who visited the affected communities in Ecuador in 2017, asserted that "Kaplan is abusing his power to try to bully a human rights defender."
Donziger has resisted Kaplan’s orders, which he said amount to him being stripped of his legal rights under the U.S. Constitution. He stated that to surrender his digital files, emails, and text messages would allow the oil giant access to confidential communications normally protected under attorney-client privilege – privileges held not just by him, but by his clients in Ecuador and his colleagues in other countries who are working on the case. Kaplan’s order that Donziger relinquish his passport also would prevent him from traveling to meet his clients or with attorneys in Canada where the Ecuadorians have been enforcing their judgment.
“Compliance with Judge Kaplan’s order not only would render me unable to function as an environmental defender, it would cause even more severe distress to my clients who face grave risks to their lives and health because Chevron refuses to pay a valid court judgment,” said Donziger. “In my view, no environmental defender could possibly comply with these various court orders and also uphold his ethical duties to his clients.
“More broadly, Kaplan is a judge who in this case has wholly abdicated his legal duty to be fair and impartial. His intellectually dishonest rulings have had the real affect of delaying compensation being paid by Chevron to Indigenous groups, which leads to numerous deaths every year from cancer and other oil-related diseases. I call on him again to recuse himself and let another judge who is neutral and impartial handle this matter.”
Donziger has filed an appeal of Kaplan’s orders, which will take several months to resolve. In the meantime, Kaplan began to impose fines on Donziger of $200,000 per day for not turning over his devices.
Professor Charles Nesson of Harvard Law School, who teaches a class on the Chevron case, contends that Kaplan has handed down a criminal conviction of Donziger "without giving him a criminal trial in which the defendant is accorded the right to be confronted with his accusers or to a jury of impartial fact finders.”
“Judge Kaplan continues to reveal himself to be a pro-Chevron judge who has twisted the law to attack a human rights defender considered a hero of the environmental movement,” said Weyler, a founder of Greenpeace who has investigated Kaplan’s history. Kaplan's personal financial holdings include stakes in JP Morgan funds which include Chevron stock, yet Kaplan has refused to recuse himself.
“Forcing a defender to reveal his case strategy and innermost thinking to an adversary under any circumstances, much less in the middle of an ongoing litigation, is just outrageous,” said Weyler. “You don’t see anything close to this kind of thing in other cases.”
“US justice seems to work when it comes to catastrophic oil spills in US territory, but it seems to apply a totally different approach when it is US corporations devastating the environmental and human life outside its borders,” said Taylor of Global Witness. “It’s extremely disturbing to see that the US justice system is being used as a pliant tool by US corporations.”
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