'Corporate Political Prisoner': Lawyer Who Took on Chevron Says Israelis Should Be Worried

The name Steven Donziger may not mean much to most Israelis, but there are people who think that history will list him alongside legends like Martin Luther King, Jr., or Ruth Bader Ginsburg. As of now, the situation of the American attorney is far from terrific – and he may even soon be sentenced to prison. In fact, for almost two years he has been under house arrest in his New York apartment on the Upper West Side, wearing an electronic ankle bracelet. He has been disbarred, his bank account has been frozen and his passport was confiscated.

How did all this happen? It started when Donziger decided to go to war against global energy giant Chevron and filed an unprecedented class-action suit alleging that the conglomerate had polluted the Amazon region of Ecuador. Not only did he dare to take that step, but he also won his case.

But multinational corporations don’t like to lose in court. And particularly when the ruling against them obligates them to pay $9.5 billion in damages. And when a company like Chevron – one of the 15 largest and richest corporations in the world – decides to do battle against one individual mercilessly, the result is liable to be Kafkaesque and extreme. Donziger is thus under house arrest by order of a federal judge, and accused of contempt of court for refusing to hand over to Chevron his personal computer and his cell phone (more on that below). He has good reason to call himself “a corporate political prisoner.”

But the details of this complex story turn out to be only the tip of the iceberg. Donziger, a human rights lawyer, has devoted his life and career to defending the rights and lives of Indigenous peoples against a vast corporation, and did so with intentions that were pure. But the company presented evidence that in order to achieve his lofty goals, the attorney may have embarked on a dubious path. According to that evidence, it’s possible that he made improper decisions that – with the generous assistance of the huge company – sent him sliding down a slippery slope into the abyss.

In any event, the case has become a cause célèbre in the United States and among the human rights and environmental community worldwide. On the evening before my first video conversation with Donziger this past December, Roger Waters, cofounder of Pink Floyd, organized a performance in the lawyer’s honor under his apartment. Waters is one of a number of celebrities and influential personalities who have publicly supported Donziger, among them the musician Sting and actors Alec Baldwin and Susan Sarandon. Moreover, 68 Nobel Prize laureates signed a petition demanding his release, 475 international lawyers and human rights organizations recently submitted a letter to the American Bar Association expressing concern at the unprecedented behavior of the judicial authorities in the Donziger case, and 40 environmental organizations from around the world expressed concern about the case in a letter they published online. Furthermore, hundreds of law students from such leading universities as Stanford, Harvard and Yale announced that they would refuse to be employed by law firms that represent Chevron against Donziger.

Members of Congress have also joined the fray, among them Rep. Alexandria Ocasio-Cortez, the New York Democrat, who, along with several colleagues has asked the attorney general of New York to examine the case personally. Even the European Parliament has intervened: Last July it sent a letter to a subcommittee of the U.S. Congress asking it to investigate the legal offensive against Donziger.

In the past few months the story has also become relevant for Israelis: In October, Chevron completed the purchase of Noble Energy (for $4.1 billion), thus making it one of the owners and operators of Israel’s offshore gas fields Tamar and Leviathan – in other words, a significant player in the local energy industry. For his part, Donziger has some insight that he would like to share with Israelis.

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‘Apocalyptic disaster’

Steven Donziger, 60, grew up in a Jewish community in the city of Jacksonville, in northern Florida. His mother, who was the editor of the local Jewish paper, was an activist with a highly developed sense of justice. That’s the source of his political passion, he tells Haaretz in a video interview. After attending American University in Washington, D.C., where he studied history, he worked as a journalist – reporting from Nicaragua for a time – and then entered Harvard Law School, where he occasionally played basketball with a fellow law student named Barack Obama. Donziger was always drawn to the human rights realm, he relates. As a young man he established an organization offering legal services to Cuban migrants in the United States. In 1991 he was sent to Iraq in order to write a report for the United Nations about the situation there in the wake of the first Gulf War. His saga in Ecuador, which continues to occupy him to this day, began two years later.

It was 1993, and Donziger was a young attorney and since he spoke Spanish, he decided to join a legal team that was going to Ecuador at the request of a local environmental organization called FDA, to investigate mounting reports about pollution there. He was “stunned” by what he found there, he tells Haaretz. It looked like an “apocalyptic disaster.” Children walked barefoot in oil puddles and black water was emerging in what had once been a blue lake in the jungle. “It was a humanitarian crisis of epic proportions.” Almost 30 years earlier, the oil company Texaco had signed a deal with the government of Ecuador granting it the right to drill for oil across large swaths of its rain forests. Over the decades, until 1993, Texaco extracted 1.7 billion barrels of oil from the area, amassing profits of $25 billion for itself and for its local partner, Petroecuador, the national oil company.

Texaco dumped the contaminating by-products of its operations into the local surroundings, and later admitted having done so. The results were devastating. People who lived near the polluted areas reported a rise in deaths of cancer of different types, high abortion rates and many newborns with birth defects. Research conducted in the region confirmed many of these reports.

This dire situation led Donziger and his colleagues to file a class-action lawsuit against Texaco in the United States, where it was based.

“I did not set out to be an environmental lawyer,” Donziger notes. “I wanted to help 30,000 people whose lands and water had been destroyed. I thought it was right to help them to receive money to pay for the medical care they needed because of the contamination, and to help them restore the ecosystem they live from.”

The lawyer knew that without financial assistance the impoverished Indigenous people would have no chance of even launching a struggle. The creative solution he devised was to invite people to invest funds to cover court costs and legal expenses, with the promise that they would be reimbursed and even earn some interest from the compensation which, hopefully, the local inhabitants would be awarded. A kind of loan program with an agenda. With this method Donziger raised enough money to hire the services of 25 attorneys from Ecuador, the United States and Canada. It was the first time ever in the world that Indigenous peoples and poor farmers had access to this level of legal talent, he says.

The trial against Texaco began in 1993 in New York. In 2001, Chevron acquired Texaco and requested that the legal proceedings be moved to Ecuador, where its executives felt their case would be better served. In 2003, Donziger and his associates filed a class-action suit in that country on behalf of 30,000 native residents in the region, seeking compensation for the contamination of their water sources and the high morbidity rate they suffered from.

The conglomerate mustered its unlimited resources to fight the allegations. Chevron was aided by the services of no fewer than 2,000 lawyers from 60 different firms, and has acknowledged spending about $1 billion on its legal proceedings. From the perspective of the company’s top executives, the possibility that they would lose in the trial was never on the agenda. When a Chevron spokesperson was asked in an interview what the corporation would do if it were to lose the case, he offered an unequivocal reply: “We will fight [the lawsuit] until hell freezes over,” he said. “And then fight it out on the ice.”

During the trial, which went on for years and involved every possible legal instance in Ecuador, numerous details were revealed about the pollution in the area. According to the plaintiffs, for more than 20 years Texaco had knowingly dumped 68 billion liters of toxic wastewater into local water sources and had contaminated thousands of square kilometers by dumping 64 million liters of crude oil there. Donziger and his associates presented evidence that the company had violated environmental waste regulations, causing dire consequences. In the course of the trial some 900 illegal waste pits were discovered, which had contaminated the local drinking water with barium, cadmium, copper, mercury and lead. In addition, 54 inspections were carried out to estimate the scale of the pollution at various sites in the region. The level of contamination in the waste pits turned out to be 20 times more than what is permitted locally – and 200 times higher than the level allowed internationally. According to calculations by the Amazon Watch environmental group, this policy saved the company $3 on every barrel of oil produced, thus adding around $5 billion to its earnings over two decades.

Chevron did not deny the pollution, but argued that it did not bear responsibility for it or its consequences. The company claimed that Texaco had spent about $40 million in the 1990s in a clean-up of the region, and had signed an agreement with Ecuador’s government absolving it of any further responsibility. Accordingly, it was not Chevron that was responsible for the harm done to the local population, but the Ecuadorian authorities.

In 2011 the court in Ecuador ruled in favor of the local residents and ordered Chevron to pay damages of $18 billion. Following a series of appeals, the case made its way to the country’s supreme court: In 2013, the Court of Cassation, as it is called, found Chevron at fault for the contamination and its consequences, and ordered the company to pay the Indigenous peoples $9.5 billion, thus upholding the ruling but cutting the compensation by about half. Excitement ran high at the achievement among the locals, and the lawyer who had represented them in the long, exhausting process was equally thrilled. But their happiness would be short-lived.

It soon became apparent that Chevron did not accept the judgment and had no intention of paying the compensation – and that there was no legal way to force it: The corporation had sold all its assets in Ecuador by 2007, leaving the local government with no way to enforce the ruling. For their part, the Indigenous peoples and their representatives tried to overcome this obstacle by suing Chevron in other countries where it was active, including Canada, Argentina and Brazil. But in each case, local courts ruled that the Ecuador case lay outside their area of jurisdiction.

Concurrently, Chevron’s attorneys launched a new front against Donziger himself, filing a civil suit against him in New York. It was the onset of what environmental organizations call “one of the biggest SLAPP suits [referring to a strategic lawsuit against public participation] of all time.” Or in short, an intimidation suit. Correspondence between Chevron’s PR firm and a senior executive of the company, which was revealed in the trial, stated, “Our L-T [long-term] strategy is to demonize Donziger.”

Chevron still denies outright that the suit was intended to silence Donziger, and says it had recourse to U.S. law in order to protect itself. Its representatives alleged that the legal proceedings that took place in Ecuador were tainted by corruption and claimed that Donziger had tried to extort them, presenting evidence in court to substantiate this claim. A key item was the testimony of a biologist who was hired by Donziger and his associates to examine the scale of pollution at two specific sites. The biologist, whose report constituted decisive proof in the judgment against Chevron, declared afterward that although he had indeed found evidence of contamination, he was not actually the author of the report.

Chevron also maintained that Donziger and his colleagues had effectively written the judgment by themselves and an Ecuadorean Supreme Court justice had only signed it – in return for a bribe. To prove this, they cited the testimony of an Ecuadorean judge named Alberto Guerra. He stated that Donziger had recruited him to act as a ghostwriter to author the judgment in favor of the Indigenous people, with the Supreme Court justice acting as a mere rubber stamp. In return, Guerra said, both he and the justice had split a bribe of $500,000.

Chevron went to great lengths to get Guerra’s testimony accepted by the federal court, moving him and his family to the United States and paying his living expenses. Chevron’s attorneys met with him 53 times to prepare him to testify on the witness stand.

In 2014, the federal court ruled in Chevron’s favor: Judge Lewis Kaplan found that the ruling handed down in Ecuador was invalid because Donziger had achieved it by means of extortion, fraud, money laundering, obstruction of justice, bribery of judges and rewording of expert opinions. Kaplan ordered Donziger to pay Chevron $800,000 in court costs and forbade him and his associates from enforcing the ostensibly illegal Ecuadorean judgment in the United States.

But this was not the end of the story. The government of Ecuador launched arbitration proceedings in the International Tribunal in The Hague to force Chevron to pay the compensation. Guerra, who was summoned to testify before that court, admitted that he had lied under oath in the New York courtroom. He further declared that parts of his testimony were incorrect and that other parts were exaggerated. Nevertheless, the court in The Hague was persuaded that overall, Guerra’s testimony supported Chevron’s allegations (of not being at fault for the pollution in Ecuador), and determined that the ruling in Ecuador was flawed by fraud and corruption.

Following Guerra’s admission that he had perjured himself, Donziger turned to a court of appeals in the United States, but Kaplan’s judgment was upheld there. In 2016, the court found that Donziger and his colleagues engaged in a “parade of corrupt actions,” including bribery and fraud. As a result, Donziger was suspended from practicing law in New York and subsequently disbarred.

“No court outside of Ecuador has ever recognized the Ecuadorean judgment as legitimate,” a spokesperson for Chevron told Haaretz. “Rather, that judgment has been rejected everywhere that Donziger and his team have sought to enforce it.” The spokesperson added, “In a world predicated on rule of law, no one should ever have to give in to extortion. We remain steadfast on this point.”

Even though various legal instances have ruled against Donziger, he continues to insist on his innocence and denies all the charges against him.

“I never thought that something like this could happen in the United States,” he says. “The only real corruption occurred in the American legal system, not the Ecuadorean. The Ecuador trial was conducted consistent with due process of law despite Chevron’s attempts to undermine the proceedings at every turn. Chevron filed dozens of expert evidentiary reports and was afforded eight years to make its case.” Judge Kaplan, he says, not only denied him the possibility of a trial by jury, he also refused to allow him to present the environmental evidence that underlay the ruling in Ecuador. The trial Kaplan conducted is widely perceived as a “farce,” he notes, adding, “no court other than Kaplan has found ‘fraud’ [in the Ecuador proceedings]. His ruling has no credibility and has essentially collapsed because of Guerra’s lies.”

If the affair had ended there, Donziger might have remained largely anonymous, and certainly far fewer people would have mobilized in his support. But it didn’t end there. During the lengthy trial, Judge Kaplan ordered Donziger to turn over his computer and his phone to Chevron to allow the company to carry out an investigation. Donziger refused, arguing that to do so would violate the attorney-client privilege between him and his clientele. Kaplan thereupon found him in criminal contempt of court and ordered him placed under house arrest pending the start of the trial. The maximum federal penalty for this type of contempt of court charge is six months in prison; despite this, Donziger has been under house arrest since August 2019. It is this chain of extraordinary events and decisions that have raised concerns about the system’s abuse of Donziger and has led to the mobilization of broad public support for him.

Chevron, for its part, emphasizes that it is not a party to the new criminal case against the lawyer and did not initiate the charge of contempt of court. “The case is titled United States of America v. Steven Donziger,” the company points out in its response.

The trial finally began on May 10 (Kaplan is not presiding), following a delay because of the coronavirus crisis. Many activists, including Roger Waters, gathered in his support outside the courthouse carrying posters calling for his release. Donziger is being represented pro bono by attorney Martin Garbus, an American legend in his own right. Garbus, 86, has represented such high-profile pursuers of justice such as Nelson Mandela, Vaclav Havel, Andrei Sakharov and others in the United States and their native countries.

Garbus says he has no doubt about his client’s innocence. This is “one example of many” in which the American legal system allows “corporate interests” to supersede the interests of the citizenry, he tells Haaretz. Chevron’s allegations are incorrect, he says, adding that he believes Donziger and believes that all the legal proceedings in Ecuador were aboveboard. Chevron’s lawyers also tried to intimidate Garbus and accused him of violating judicial ethics, he notes, but “that does not frighten me.” Indeed, he himself was imprisoned in the past in the course of his attempts to achieve justice for those he represented. If you’re afraid to get hit, don’t get into a fight, he says.

‘Dead man’ at home

In the meantime, Donziger has been trying to cope with his situation as well as possible. After showing me the electronic bracelet on his leg, he talks about his daily routine, alongside his wife and their 15-year-old son. He gets up early in the morning and does a great deal of legal work on his own case, speaks with journalists and with his lawyer, he says. “I cook and I work out on an exercise bike. I make sure to devote quality time to my family.” This is difficult for his son and wife, he says, and he does his best to ensure that their life “remains as normal as possible.” He is not even permitted to step out to the hallway outside his apartment.

They key to success, he observes, is “not to allow the trauma – and it’s a trauma for us all – to become a pathology.” To avoid that, he and the family do things they enjoy: “We eat together, laugh, play, watch movies, dream of the future.” He doesn’t feel isolated, he says, even though he is shut in at home. “On the contrary: I feel a great deal of support and solidarity from all sides. I discovered that solidarity is the most amazing thing you can receive. I didn’t really understand what solidarity meant until I needed it.” From his point of view, he continues, this is just one more stage in a legal battle that has gone on for 28 years. He never forgets “that this isn’t about me, it’s about the Ecuadoreans and the compensation that’s coming to them.”

What do your wife and son think about it?

Donziger: “I do not want to speak for them except to say they are very supportive of me and the Indigenous peoples of Ecuador.”

If you had known the price you’d pay, would you still have chosen the same path then, in 1993?

“Yes. The attacks on me are a sign of our success and they nourish my determination to continue working to hold Chevron fully accountable.”

Still, after nearly three decades of legal wrangling and prolonged house arrest, Donziger admits that even he was surprised by the intensity of Chevron’s moves against him. He expected the corporation to fight during the eight years of the legal process in Ecuador, he says, but didn’t expect that they would go this far to attack him personally. Noting that the offensive against him has been going on for a decade, he says: “House arrest is only the latest step in the prolonged persecution. They are trying to destroy me. They took all my money.” He says he’s bankrupt and dependent today on donations from other people and on his wife’s salary. He has been deprived of “every possibility to function in my country” and is akin to “a dead man.”

For Chevron, Donziger believes, the immense damage they have inflicted on him personally is part of a goal: They want to scare others off from suing them, he explains, to kill any chance of another case like this in the future. “You can write the article about me with all the correct facts and even write with empathy toward me – and it will still serve them. How? By scaring off other people from suing them.”

Furthermore, Donziger maintains, this legal persecution also has an economic logic. The hundreds of millions of dollars Chevron has invested in its legal battle (it has reached $2 billion by now, according to Donziger) is far less than the $9.5 billion they would have to pay if they abided by the original judgment.

“It’s the company’s business model,” says Paul Paz y Miño, associate director of the Amazon Watch nonprofit. “They contaminate and they ignore the law. Chevron has been sued for its part in pollution by a number of communities around the world.” Among other places, it has been a defendant in lawsuits conducted in Angola, Poland and California. In Brazil, for example, Chevron was sued over the leakage of 2,400 barrels of oil north of the beaches of Rio de Janeiro in November 2011.

Chevron denies Paz y Miño’s allegations: “There is no ‘pattern in Chevron’s legal battles.’ Chevron takes appropriate steps to defend itself as provided by law.”

Paz y Miño spoke in similar terms in a video conference call with members of the Knesset’s Interior and Environment Committee when he was invited to take part in deliberations ahead of Chevron’s purchase of Noble Energy. “I told the MKs that the acquisition is dangerous for the Israelis,” he tells Haaretz. “Chevron’s corporate strategy is to act without respect for the environment and for the local community, and then, when they are found responsible for contamination, they ignore the law.”

In that committee session, former MK Miki Haimovich expressed concern about the sale of the gas rights to Chevron. “Such a substantive resource of Israel’s is being placed in the hands of a company whose environmental record is so dubious,” she said. Remarks in a similar vein were made to Channel 13 News in Israel by Gayle McLaughlin, former mayor of Richmond, California. “You need to be careful when you open the door to Chevron – every few years there’s a major safety event with them.” As mayor of a city in which a Chevron refinery operates, McLaughlin spoke from experience. Over the years there have been several incidents, the worst being in 2012, when a large fire broke out at the refinery and burned for hours; some 15,000 people needed medical treatment for respiratory problems.

Israelis should know that “Chevron doesn’t play by the rules, but persuades everyone that it does,” Donziger says. They are very powerful, he adds, so it’s “critical for a strong civil society, environmental activists and citizens who will monitor their operations” to stand up to them.

Chevron stated in response, “Wherever Chevron operates in the world, it operates with the highest environmental and safety standards. It also complies with all applicable laws in the countries where it operates.”

Ongoing struggle

“The fact that I am in detention doesn’t mean that I lost and they won,” Donziger tells me in our final conversation in mid-June. “They may have succeeded in killing this specific story, but they have no control over the general narrative. More and more people are joining the struggle, and more and more lawyers worldwide are working today to protect the environment.”

How do you think this story will end?

“It won’t ‘end,’ as the struggle for environmental justice and to save the planet will continue for decades if not centuries. So there’s no ‘end’ in a traditional sense. But make no mistake about it: Chevron has been held accountable for its environmental crimes in Ecuador. The only remaining question is when it will pay the judgment.”

You sacrificed so much for this case. What do you think about the outcome so far?

“One has to recognize that the case is not only about saving the lives and cultures of thousands of people whose environment has been poisoned by an oil company, but is also part of a broader movement to fundamentally change the fossil fuel industry so oil and mining companies cannot pollute with impunity just because they think they can get away with it. So this work is intimately connected to the life force of the planet, to Indigenous cultures, and it poses a direct challenge to some very powerful forces.

“In any movement of this nature, the ‘outcome’ can be unclear for years. What is clear is that the Ecuadorian communities have won the case and that Chevron refuses to pay. Chevron would not be spending millions of dollars in legal fees to attack me and others – and risking its own reputation – if their theory that the case is a fraud were really true. There’s more work to do, but I am extremely pleased with the outcome so far.”

What are you most pleased with?

“I’m proud of playing a key role in creating an international team of people with different skill sets to hold this monster polluter accountable. And also getting the financing needed to sustain the case for 28 years in the face of the most vicious and well-financed corporate retaliation campaign ever. Connecting shamans from the forest with sophisticated investors and donors and lawyers has never been done before. We call it the ‘last mile’ of serious human rights litigation against corporate abusers and we have walked it proudly and successfully. That’s unprecedented.”

Donziger’s story is attracting attention because a well-connected American citizen is suddenly finding himself under prolonged house arrest and being trampled by forces larger than him. But the heart of the story is the impoverished Indigenous communities of the Amazon, which are literally fighting for their lives. Donziger also emphasizes this during our conversations.

In the summer of 2019, before he was placed under house arrest, he visited Ecuador and toured the villages he’s been working with since 1993. Some of his acquaintances there had died from cancer during the interim years; he describes seeing the toxic pits, which are still there despite attempts to clean them up.

“It was hard to look at, especially the human suffering. When I start to pity myself and what is happening to me,” he says, “I immediately think about that visit and remind myself that it’s not about me, but about what happened to these people and to the environment that was their home.”