Calling in to the FlashPoints News studio from his new New York home, where he is currently under house arrest, human rights attorney Steven Donziger talks about his Kafkaesque case with host Dennis J. Bernstein and investigative reporter Greg Palast.
Palast has been reporting on this outrageous tale of oil, power, corruption, corporate murder and ecocide since 2007, when he first met one of Donziger’s clients, Emergildo Criollo, Chief of the Cofan people, deep in the Amazon rainforest. With the help of Donziger, Criollo had launched a David v. Goliath lawsuit against Chevron for poisoning the rainforest and the people who lived in it — the Chief’s two sons being among the many victims of the oil giant’s murderous sludge.
The Ecuadorian courts ruled in Criollo’s favor, finding that Chevron’s Texaco operation had illegally dumped 16 billion gallons of deadly oil waste, but that was just the beginning of Donziger’s battle.
Chevron were ordered to pay Criollo and the other indigenous co-plaintiffs $9.5 billion. Rather than pay up, and to distract attention from their own mass industrial poisoning, Chevron set out to destroy Donziger, to make an example of a human rights lawyer that dares take on the petroleum pirates.
Transcript: FlashPoints — Friday, August 6, 2021
Dennis Bernstein: We are going to be taking a look at the life and times of Steven Donziger… A Harvard graduate, instead of running for Senate, he went to Ecuador and began to fight and represent legally the tribes that were being abused by, among others, Chevron. He was quite successful and in 2011, he won a settlement for some $9.5 billion. And that’s where the second part of this story begins. Joining us now is Greg Palast… Greg, are you there?
Greg Palast: I am here. Am I sounding okay? Cause I’m in a remote location at a demonstration for Steven Donziger here in Los Angeles in front of a Chevron station. Does it sound okay to you?
Bernstein: It sounds fine. Today is a day of protest all over the country. Maybe you can just give us a thumbnail sketch of the case, which you picked up early on for the BBC.
Palast: Here’s the story. In 2007, I was in the Amazon rainforest in Ecuador with Chief Emergildo Criollo and I would join him as he walks into a courtroom. There’s a little building in the middle of the jungle where he filed a suit against Chevron corporation. Why? His three-year-old son had gone swimming in a swimming hole in the rainforest near the Amazon River — shiny nice water. He went in. Unfortunately, the shine was hydrocarbon. The kid came out vomiting blood and died in his dad’s. Then his oldest son died of leukemia, which is rampant in the area where the Chevron Texaco unit was dumping its sludge. He filed a lawsuit. All the guys in the courtroom were laughing at this “indio” trying to take on the Chevron corporation. Four years later, they stopped laughing when Chief Criollo and the other indigenous plaintiffs won $9.5 billion from an Ecuadorian court against Chevron, demanding that Chevron paid the Chief for his losses, but also clean up the rainforest filled with sludge.
I was down there reporting for BBC television and Democracy Now. I would stick a stick into the water and it would come up dripping sludge — poisonous, murderous sludge. Now, what was Chief Criollo’s secret weapon? His name was Steven Donziger. He graduated from Harvard Law School with Barack Obama, but instead of cashing in, he decided to spend his entire life, give up everything — and I mean he really gave up every dime of income to do nothing but help the Cofan and other indigenous people of the rainforest go after Chevron. Get them to clean up their act, literally cleaned it up, and pay compensation. He won that case — that was 10 years ago — and Chevron hasn’t paid a single dime.
But what they have done is they — are you ready for this ? — got 2,000 lawyers from 60 law firms to hunt down and try to destroy Steven Donziger. And the way that they did it is they went to hunt around one U.S. court after another, until they found an ultra-right judge, a guy named Lewis Kaplan in New York who had been a tobacco industry.lawyer. He’d even done work for Chevron. He shouldn’t have been on this case. He issued a ruling that Steven Donziger, this human rights lawyer, this pro bono lawyer, that this lawyer was in contempt of court. Because he ordered Donziger to hand Chevron Donziger’s cellphone and computers so they could see who were the whistleblowers in their corporation, so they could see the names of the natives who were going after them. You have to understand, in Latin America, you hand out those names, the next knock on your door is from the death squad. He couldn’t hand over those names. No lawyer in their right mind would, especially in that situation. So they found him in contempt of court.
And the judge not only said it’s contempt of court… If you remember in the Chicago Seven trial, William Kunstler was found in contempt of court 42 times in a single case. Well, Donziger, they made it criminal contempt. The judge demanded the federal government prosecute Donziger — and they didn’t. Believe it or not, the Trump Justice Department said this is a joke, isn’t it? We’re not going to prosecute this lawyer. Because the Justice Department wouldn’t prosecute Donziger, are you ready for this, Dennis? This has never happened in American history. The judge appointed his own prosecutor. And who was the prosecutors that he appointed? He appointed Chevron’s own lawyers. I can’t make this up. He appointed Chevron’s own lawyers to be the prosecutors to put Donziger in prison.
Bernstein: That’s where I got to stop you, Greg, because that’s the part of this story that I stumble over. I don’t understand that leap there. What are you saying? This judge put lawyers who represent Chevron to…
Palast: He literally appointed them to do a criminal prosecution. So a judge appoints a private attorney to do a criminal prosecution of the lawyer that they are fighting in the case. It’s Chevron’s lawyers who literally were acting as privateer prosecutors, freelance prosecutors. I can’t make this up. And you have to understand, it shocked me. Because, as many people know, before I was an investigative reporter, I was an investigator for two or three decades of litigation in big cases. I’ve never seen this in my career. I can’t find a single attorney [who has]. In U.S. history we have never had a private corporation being asked to prosecute someone on a criminal charge, and especially the guys that he’s fighting… I understand why you’re confused, because everyone’s confused. There is no legal scholar in America [that’s not confused].
We have 60 Nobel laureates complaining about this. We have senators, congresspeople, from AOC to Senator Markey and Congressman McGovern. We have attorneys general from several states saying this is insane. We have the Justice Department — I want to add Trump’s Justice Department — who also said this is nuts, but it hasn’t stopped. And it’s even worse. They had a trial, after holding Donziger under house arrest for two years… You have to understand, even if this crazy charge was legitimate, it’s a misdemeanor charge, and you’d only get 90 days in prison for it. He’s actually been in prison for two years, awaiting for trial. Now you don’t imprison someone before conviction, while they’re awaiting trial, unless they’re a flight risk.
Bernstein: So he’s under house arrest at home with an ankle bracelet?
Palast: He’s wearing an ankle bracelet. He’s been locked in his house for two years awaiting this trial. And if he gets convicted, it’s 90 days. But 90 days ain’t enough for the judge. So the judge held a trial of Donziger and Donziger, of course, asked for a jury. I think you’ve read the Constitution. It says something about a jury — that’s called the Fifth Amendment. You got a right to a jury of your peers. No way. The judge said no jury. Believe it or not, he denied him a jury trial. And the judge listened to the court case while he’s doing crossword puzzles — I kid you not. And he wouldn’t allow Donziger to put up witnesses from Ecuador. Instead, he only had Chevron lawyers as witnesses against Donziger, being asked questions by the prosecutors who were other Chevron lawyers — I can’t make this up — listening to it by a judge who was a Chevron lawyer.
You know what, this is so insane Dennis… I’ve been in many cases in courtrooms and covered them as a journalist. No one can show me a single case in American history, no jury trial, Chevron, an oil company prosecuting the guy who’s going after them. It is a miscarriage of justice upon miscarriage of justice. And here’s the deal; after this crazy Chevron kangaroo court, the judge is apparently going to pass sentence on October 1 on Donziger. He’s indicated he’s gonna throw him in the slammer for six months. No jury trial. This is crazy. Basically Chevron is putting a human rights lawyer opposing them in prison for six months. It’s just beyond imagination.
Bernstein: And the $9.5 billion settlement? Is it just null and void now?
Palast: No, it’s not. It’s live… It was affirmed in Ecuador. And by the way, just so you know, Donziger had brought the case in America, in New York, and Chevron ran into the courtroom and said no, this case has gotta be in Ecuador and here’s 14 professors who signed a statement saying that Ecuador has honest courts that are un-corruptible that will come to a good decision, and therefore the case should be heard in Ecuador. It took four years of trial, hundreds of thousands of pages of documents, and a judge ruled that there’s absolute stone cold evidence that Chevron Texaco units dumped 16 billion gallons of sludge into the rainforest in Ecuador that directly poisoned thousands of people. Many died. There’s a hotspot of horrid leukemia that’s rampant next to those oil pits. By the way, if you simply dump oil sludge into an open pit in the United States, you would go to prison. Chevron tried this. Remember the Chevron refineries in Richmond, right near you Dennis, if they try that in the Bay Area, can you imagine? If in Berkeley you had open sludge pits, with Chevron just dumping the Richmond refinery crud on Telegraph Avenue — that’s what it’s like. I was there, Dennis. I was there…
Bernstein: Let me jump in here because we got some good news. We actually managed to make a connection with Steven Donziger and I’m eally anxious to get you on the air, Mr. Donziger.. Welcome to FlashPoints on Pacifica Radio. How are you doing today?
Steven Donziger: Thank you for having me.
Bernstein: Well, it’s good to have you with us. Let me just ask you… We’ve been talking about it with Greg and we got some good background down, but let me sort of travel back a little bit here. Could you talk a little bit about the legal work you were doing in Ecuador that led you to this successful $9.5 billion lawsuit. Tell us about what you were doing there? What was the work like?
Donziger: Well, thank you. And thank you, Greg. Good to hear. I caught the tail end of that. You’re really know the case so well. It’s really awesome.
I first went to Ecuador in 1993 with a team of lawyers and what we saw was an apocalyptic nightmare, sort of like Greg was describing. I mean, we literally saw lakes of oil sludge on the floor of the jungle. [There were] hundreds and hundreds of these open-air toxic waste pits that Chevron had gouged out of the floor of the jungle and they had run pipes from the pits into the rivers and streams that people were relying on for drinking. A total disregard for human life, disregard for the environment. I think it’s really the very definition of ecocide, which is going to be a new atrocity crime which involves a private company making deliberate decisions that end up destroying the conditions necessary to sustain human life. That’s what they did. Even to this day, you have thousands of people who multiple times each day are exposed to cancer-causing toxins in the water they drink, the food they eat, the air they breathe.
My work involved investigating this, with other lawyers, and filing a lawsuit, first in the United States. Chevron wanted it in Ecuador. The first 10 years of the case was fighting over trying to get into a U.S, court. Chevron got it dismissed down to Ecuador, appraising Ecuador’s court system, as Greg pointed out. So we sort of redid the case under Ecuadorian law in 2001 and worked with a fabulous team of Ecuadorian lawyers. We were then in the advisory role, the American lawyers, over an eight year period where Chevron’s lawyers tried to sabotage, delay and obstruct the case at every step of the way. We ended up winning this judgment based on really voluminous, scientific evidence; 64,000 chemical sampling results, from both parties, that proved there were just massive levels of toxic contamination, cancer-causing contamination at hundreds of oil production sites that Texaco, now Chevron, had operated for a period of 25 years. It’s the worst oil disaster in the world.
One of the critical facts is it’s not an accident. It’s a deliberately designed pollution event where Texaco decided to do it this way, essentially to play God with the people of Ecuador in order to save $2 or $3 a barrel of oil produced. The net result today, 50 years after this started, is you have the world’s worst oil disaster. You have thousands of people dead or dying from exposure. You have virtually no medical care. You have indigenous groups decimated, on the way to extinction because the forest is now poisoned by these deliberate acts of destruction. It can no longer sustain the culture, so it’s a disaster from every angle.
Chevron has yet to pay a single dollar to fix it. Having lost the court case, instead of complying with the rule of law and paying the judgment, they hired dozens of law firms who use 2000 lawyers to attack me and other lawyers. Really it’s a way, I think, primarily to distract attention from their own mass industrial poisoning, Also to avoid paying the money to the people they poisoned in Ecuador. And finally, to sort of use me as a way to try to intimidate other human rights lawyers and environmental defenders from doing this work.
This is happening at the Chevron Refinery in Richmond CA right now and no shelter in place sirens have gone off. If you live in the area close your doors and windows, get your children and pets inside, and call the Bay Area Air Quality Management District to report 800-334-6367 pic.twitter.com/KjtadUDgnw
— Pennie Opal Plant (@PennieOpal) August 10, 2021
Bernstein: We broadcast from the Bay Area and they’re also poisoning people in the Bay Area and Richmond and other places like that. But I want to say a little bit more… You’re under house arrest now, so I imagine that was a bit of retaliation. But I imagine that other folks, indigenous people on the ground, while you may be under house arrest, they’re either in hiding or in their graves for protesting these kinds of issues. Wouldn’t you say?
Donziger: Well, yeah, I mean, a lot of people have died from exposure to the toxins.
Bernstein: And whistleblowers have not been welcome, right? Indigenous [whistleblowers], this is not safe [for them].
Donziger: Of course. There’s 200 environmental defenders assassinated — murdered — around the world every year. So, you know, I’m part of the group of environmental defenders under attack. You know, in the United States, generally, it’s difficult for a corporation to just flat out assassinate their opponent. But what Chevron has done to me is figure out a way to use — or abuse — and manipulate the law to accomplish, or try to accomplish, my cancellation as a lawyer.
The way they’ve done that is they’ve concocted a scheme where they’ve tried to get me to pay them their legal fees for attacking me in the U.S. courts. I have no money. I mean, I’m a human rights lawyer. They got an order that I should pay them millions of dollars. When I couldn’t pay it, they wiped out my life savings and demanded to see my computer on the theory that I was hiding money in bank accounts. But what they really wanted was access to all my information and my communications with my clients and other attorneys. And no lawyer in U.S. history has ever been ordered to turn over his computer to his adversary in the middle of a civil litigation like that. So I appealed it.
The judge, Judge Kaplan, who was a former tobacco industry defense lawyer, he’s totally on Chevron side, he charged me with criminal contempt of court for appealing his own civil discovery order. I appealed it. I wasn’t just disobeying it. I told him I needed to appeal it because I believe the order was, and has been proven to be, illegal. But he then used that charge, which was rejected by the federal prosecutor… Remember the judge charged me, not the normal prosecutor. When the normal prosecutor refused to prosecute Judge Kaplan’s charges, Kaplan didn’t stop. He appointed a private law firm to prosecute me while hiding the fact that this private law firm had had Chevron as a client and had deep financial ties to the oil and gas industry. So essentially I’m being prosecuted criminally and deprived of my liberty by Chevron. This is the first corporate prosecution in U.S. history, based on the research we’ve conducted, and it’s scary.
Bernstein: And you’re wearing an ankle bracelet?
Donziger: I have an ankle bracelet on a 24/7. I sleep with it. I eat with it. I bathe with it. It’s on my ankle, it chafes and it’s like the size of a garage door opener. It’s somewhat heavy and I have to get in the bed with it. It blinks, it talks to me when the battery goes low, wakes me up, me and my wife…
Bernstein: Talk about Kafkaesque. This does Kafka one better.
Donziger: Yes, this is Kafkaesque.
Bernstein: You have been neutralized by Chevron, with 2000 lawyers. And obviously you’re making the point, as Greg has, that they have a lot tied [to this] and so they’re willing… I guess a part of their budget is meant to be spent on dealing with people like you in various ways, however they can do it. You, they tied up legally, others they kill. It’s troubling that they would take your files… This happens under the eye of the U.S. jurisprudence system. You’ve got a Democrat in there now. They’re not Donald Trump. Is there any sympathy in Washington? … What kind of support do you have coming out of Washington? There’s a new administration. They’re progressive…
Donziger: So a couple of things… First of all, this is not just happening under the eye of the U.S. judiciary. There are two federal judges actively working with Chevron’s lawyers to destroy me. I want to be very clear about that. I believe they’re abusing their power. I want to be clear about that. Their names are Lewis Kaplan and Loretta Preska. And let me be clear: I’m a rule of law guy. I’m not condemning the whole U.S. judiciary. Even the right wing judges tend to try to follow the law when they rule in cases. These judges figure out what they want to do beforehand, they don’t really listen to the facts, and they just try to engineer a result, which is why I’ve been denied a jury of my peers.
In this trial that was overseen by Judge Preska, the same judge who would lock me up for two years was then ruling on my guilt or innocence. It’s just a completely ridiculous show trial and I’m going to appeal it. She convicted me of contempt, wouldn’t let me testify on my behalf and explain myself. So we have made a concerted effort to get to the Biden Administration and Merrick Garland to stop this prosecution. You can’t have private corporate prosecutions in a rule of law country. There’s no provision for it and this should be embarrassing to Joe Biden and Merrick Garland. But Merrick Garland has done nothing.
We got six congresspersons, including AOC, Cori Bush, Jamal Bowman, Rashida Tlaib, Jamie Raskin, Jim McGovern who wrote a letter demanding a review of my case, he ignored it. Two senators, Ed Markey and Sheldon Whitehouse, both of whom I greatly admire, have written a letter demanding answers, that came just about 10 days ago. But the higher New York delegate where I live, my representative, totally ignored this and works for the same law firm, Gibson Dunne. My senators, Schumer and Gillibrand, I approached both of them, they’ve done nothing. People are fundamentally, in my view, under the influence of big money, corporations and the industry to some degree and for whatever the reason they refuse to help me, even though senators and congresspersons from other jurisdictions are helping. But we need more action in Washington.
We can’t become a country that locks up its human rights lawyers. I mean, that’s not even a conservative vision for the United States, much less a moderate or progressive one. We cannot lock up our human rights lawyers, especially the frontline lawyers who do the hard work like I’ve done for 28 years. This is hard work. I went through it 450 times. We won the case. We’re holding a major polluter accountable, that helps save lives. It helps save cultures, it helps save the planet. It realigns incentives so these big oil companies don’t go to the ecosystem and just pollute, thinking they can get away with it. Why am I the one locked up and not Chevron? It’s outrageous!
Bernstein: It’s amazing. Greg, do you have final comments? You want to jump in here?
Palast: Yes. Also shame on the U.S. media. As you know, I put the story about the poisoning of the rainforest… I went down there and I put this at the top of the BBC nightly news. And thanks to Pacifica, we put it on Democracy Now as well. This is worldwide news outside of the U.S. mainstream. I have to tell you, I contacted PBS, but you know what? The NewsHour on PBS… when I’m calling them, I’m looking at their website, and what’s on top? It’s not the PBS logo, it was a Chevron logo. They were the number one corporate sponsor of the PBS NewsHour. And when I said, is this influencing your silence on the issue? Their answer was to simply remove Chevron’s logo. But they also silenced Steven Donziger and the victims from Ecuador, you have to understand. Then they went after me, by the way. Compared to what Steven’s gone through my case was nothing. I ended up with a one-year trial under British law, [because they claimed] that I had issued a biased report against Chevron. All I did was show the documents that said that they were destroying evidence in the case and they didn’t like that. I won that case and I saved my job at the BBC. But they throw bodies out on the tarmac, whether it’s Steven Donziger, to stop other lawyers and human rights layers from defending environmental victims. Or they go after journalists like Greg Palast or others. Look, if I were in Latin America, I would probably have a bullet in my head. I’ve seen this.
And it’s not just in Ecuador that Chevron has been playing these games and silencing the lawyers and the journalists and the victims. It’s not just Ecuador. That’s really important. And Dennis, I can’t thank you enough for giving this story prominence and bringing Steven on from his imprisonment. And let’s not forget October 1, he’s facing a sentence where they can put them behind the hard steel doors.
Bernstein: It is beyond belief. Steven Donziger, we will continue to cover this story. It is extraordinary… It’s hard for me to imagine… you’re wearing an ankle bracelet for being a human rights lawyer. This is really a story that needs to be told again and again, because it’s going to get worse before it gets better. Steven Donziger, how do people get in touch and follow up if they want to learn more, do more, act more?
Donziger: If people want to learn more or help, please go to the Donziger defense website: DonzigerDefense.com. On that website are a lot of articles. You can donate to our defense fund. I need to emphasize that I know a lot of people are hurting these days, but if you can give a little, we really appreciate it. The legal expenses are crazy dealing with this monster company. And then also just sign up for our campaign, where you will get regular case updates and that kind of thing. We built an email list now of 25,000 people around the world. It’s really amazing ‘cause we can use that to lobby Congress or write letters. Please sign up. The only way I’m going to get out of this, and we’re going to force Chevron to clean up Ecuador, is through mass public pressure. And that’s what we’re attempting to do here. They want to lock me up, then people are going to pay attention and we’re going to leverage that into a movement. That’s at least our goal and we’re well on our way to doing that.
Writer, editor, photographer, videographer, social media consultant, and tactivist (tactical activist), Nicole Powers uses art and technology to share ideas that make the world a better place.
Dennis J. Bernstein is the executive producer and host of Flashpoints, an award winning front-line investigative news magazine focusing on human, civil and workers' rights, issues of war and peace, global warming, racism and poverty, and other issues. Flashpoints is broadcast weekdays at 5 PM PST on the Pacifica Radio station KPFA-FM (94.1) in Berkeley, California and is relayed on Pacifica's national feed.