Above image: By Nathaniel St. Clair.
For some, call them criminal justice ingenues, it may be hard to believe this is happening in the United States, that our famed judiciary has sunk this low. But in the U.S., a judge acts as prosecutor and jury on behalf of a giant oil company, Chevron, as it destroys the life and career of human rights lawyer Steven Donziger. His crime? Daring to win a judgment against Chevron in an Ecuadorian court. For those less enchanted with the U.S. justice system, this is no surprise. But there it is. This judicial travesty is occurring in New York state. And the Chevron friendly judges – first Lewis A. Kaplan and his hand-picked appointee judge Loretta Preska, and now the U.S. court of appeals for the second circuit in a March opinion – keep ruling for the company, as they cage Donziger with house arrest, 600 days so far and counting.
The New York federal prosecutor declined to prosecute this case which is based, Donziger says, on lies, so in an astonishing move, Kaplan appointed Chevron’s attorneys. There will be no jury. Judge Preska will doubtless find Donziger guilty – of a misdemeanor that carries a maximum penalty of 90 days – though he’s already been under house arrest for over 600 days. The message to the legal community is clear: don’t mess with a fossil fuel company, because if you do, they will find a judge who favors the company and they will destroy you.
This unprecedented judicial persecution of a human rights attorney has its roots in the Amazon rain forest. Back in 2011, Donziger won a court case in Ecuador against oil giant Chevron. Worse yet for Donziger’s prospects, the Ecuadorian court awarded his indigenous clients $9.5 billion. These Ecuadorians charged that their health and livelihood had been destroyed by Texaco, now owned by Chevron, and its oil spills in the Amazon rainforest. In the face of this staggering penalty, Chevron took action, refusing to pay and, despite the fact that Chevron originally fought to have the trial in Ecuador, it then brought its case to a congenial judge in New York. Donziger’s fate was sealed.
Meanwhile back in Ecuador, according to what Donziger told Esquire in a March 18 article by Jack Holmes, Chevron “sold their assets in Ecuador, so the Ecuadorians would have nothing to collect. They threatened the indigenous peoples with ‘a lifetime of litigation’ if they didn’t drop their case…they tried to come up with a strategy to block enforcement of the Ecuador judgment against their assets in other countries. To do that, they needed to somehow allege that the judgment in Ecuador was the product of fraud.” Donziger told Esquire that how they did that was “they paid a former Ecuadoran judge, moved his family to the United States, paid his income taxes. Their lawyers coached him for 53 days. And ultimately he came into federal court and testified I approved the bribe of a trial judge in Ecuador…He has recanted most of his testimony. He’s admitted that he repeatedly lied in federal court. He admitted under oath…However the U.S. judge who Chevron took the case to, without a jury, has credited his testimony.”
Also, once Chevron snagged its New York venue, it did not cease its activities in Ecuador: it still pushes legislation to undermine the judiciary and make the government liable for what the Ecuadorian court has ruled to be Chevron’s pollution. And there’s a lot. When Chevron bought Texaco in 2000, it became liable for the “Amazon Chernobyl,” which includes “over 900 carcinogenic waste pits and the dumping of roughly 16 billion gallons of toxic wastewater into rivers,” as I wrote in Truthout in 2020. Indigenous people sued “in 2003 over their destroyed land, polluted water and subsequent health issues, resulting from the oil spill. They suffer from cancers, respiratory ailments, skin lesions and miscarriages in great numbers – all symptoms of hydrocarbons in drinking water and on the skin.”
But just this past March, “in a shocking decision, a New York appellate court… refused to release U.S. human rights lawyer Steven Donziger,” according to the Donziger legal team’s press release. “Steven Donziger is being persecuted by a lawyer with strong ties to the oil industry, including Chevron,” wrote Donziger’s counsel Rick Friedman. “She was appointed after the U.S. attorney refused to prosecute…While this is a criminal case, Steven is being denied a jury. While the maximum sentence is six months, Steven has been in home confinement more than 19 months. To say that this is highly irregular would be an understatement…Here the judiciary has ignored the executive branch which is ordinarily in charge of prosecutions…It has eliminated a jury, which historically has been a bulwark against judicial over-reach. It is punishing a defendant before he has been convicted. I join Amnesty International and other human rights groups in requesting that the U.S. Department of Justice intervene.” Merrick Garland – where are you?
“It’s a corporate political prosecution,” Donziger told me. Given that, you’d think major media would be all over it. But aside from a March 28 article in the Guardian and the one in Esquire – silence. “Chevron wants the narrative to be that he’s a criminal,” the Guardian quoted Paul Paz y Mino, associate director of Amazon Watch. “The implications of that for the entire environmental movement against oil companies is terrifying.”
Oil companies already behave, worldwide, with incomparable arrogance. Ogoni tribespeople in Nigeria charge that Shell destroyed their way of life, poisoning the land, water and persecuting protestors. In County Mayo, Ireland, protestors against Shell’s activities were beaten and jailed. In Ecuador, Texaco left “Olympic swimming pool-sized waste pits of oil,” according to the Guardian. “Pollution flowed freely into rivers and streams used by the Indigenous population for drinking water. Cancers of the stomach, liver and throat reportedly became more common in the region, as did childhood leukemia.” But Chevron thinks it shouldn’t pay.
The haughtiness of oil corporations in fact taints energy companies overall. In Pennsylvania, fracking firms that get rights to public land illegally enclose that land, scaring off locals, hikers and tourists. Dirty energy is high-handed and dangerous. Burning these companies’ products, oil and gas, is destroying our planet. Literally. Compared to that, I guess, decimating the reputation of the federal judiciary is small potatoes.