By Elizabeth Haight
Steven Donziger became a public figure when his lawsuit against Chevron -at the time known as Texaco- for its involvement in widespread pollution in the Ecuadorian Amazon rainforest was turned on him. His victory in the case, which should have brought attention and reparations for the devastating environmental damage that occurred in Ecuador, instead morphed into an array of retaliation against Donziger himself, resulting in numerous judicial proceedings, nearly 1000 days of house arrest, 45 days in prison, and an ongoing legal battle. It has been a clear-cut case of abuse of the justice system by a major corporation to target and harass human rights defenders – and how the case is closed will set an important precedent.
During the period until the transfer of power to the Trump administration on 20 January, Biden must use the opportunity to issue a pardon to Donziger.
Steven Donziger was a young environmental lawyer when he was invited to the Ecuadorian Amazon rainforest to investigate a case of pollution by Chevron-then Texaco- in 1993. What he witnessed was beyond any expectation: a grotesque system of pollution dumping that deliberately harmed the environment and local communities – all, in his view, in an attempt to save money by the company, an allegation which Chevron denies. Representing Indigenous and rural communities harmed by the pollution, Steven won the case in Ecuador. As a result, Chevron, which subsequently purchased Texaco, was ordered to pay 9.5 billion dollars in damages. The company refused to comply with the ruling and instead launched a myriad of legal complaints at Steven and others involved in the case, entangling him in a long legal battle.
Now, over 30 years since he first visited the Amazon, Steven is still dealing with the retaliation from taking an oil giant to court.
During this extensive legal battle with Chevron, Steven has faced multiple violations of his right to a fair trial. In the process, he was charged with contempt of court for refusing to hand his computer and other devices containing his privileged attorney-client material from the lawsuit against Chevron to the court. Steven said that he “refused to do so as a matter of protecting my clients’ legal rights and their lives, because doing so would put their lives in jeopardy”. The US Attorney declined to prosecute him on this contempt charge. Ordinarily, this would have ended the legal proceedings for this charge. Instead, the presiding judge in New York requested the case be continued and appointed a private law firm to prosecute Steven in place of the government.
The maximum sentence for the contempt charge was 180 days. Yet, Steven Donziger spent over four times this length deprived of his liberty (under house arrest in New York City, then in a prison in the state of Connecticut, and later in a halfway house in New York) for refusing to hand over his computer while he challenged the order and fought his contempt charge. He was ultimately convicted of the contempt charge and was sentenced to 6 months in prison, of which he served 45 days, and also spent time in a halfway house. But despite having served this sentence, his case still continues year after year.
International human rights mechanisms, including the UN Working Group on Arbitrary Detention, concluded that Steven’s deprivation of liberty was arbitrary after identifying that this situation constituted legal harassment in the form of a SLAPP suit: Strategic Litigation Against Public Participation. What this means is that the lawsuit by Chevron following Steven’s discovery, and subsequent victory, in Ecuador is meant to force him into silence. This creates a chilling precedent for human rights defenders in the US and around the world, and Chevron denies this claim. Despite the intimidation, Steven continues with his work, determined to get the reparations that the people he has defended all these years deserve.
Amnesty International sat down with Steven to hear his story, and how it has unraveled since he first visited the Amazon over 30 years ago (the text is minimally edited for length).
What inspired you to become an environmental lawyer?
Growing up, my mom had a big influence on me. And when I was a teenager or even younger, we would go to protests in my hometown for various issues. It had a big impact on me, and something switched on in me at that time, and it’s never turned off. When I went to law school, I went with the idea that I would use whatever legal skills I could gain and develop to help people who otherwise would not have access to high levels of legal talent because of a lack of funds. That was what motivated me to go to law school, and after that, through circumstance, I sort of fell into this case in Ecuador and became an environmental lawyer.
How did you come to represent an Ecuadorian village in such a grand-scale case against Chevron/Texaco?
Other than a broad sense that I wanted to do justice work as a lawyer, I really wasn’t 100% sure where it would take me, so I didn’t start out in the profession wanting to become an environmental lawyer. What happened was, I was brought down to Ecuador with a group of people to investigate what we had been told was awful oil pollution caused by Texaco. We went down there in April of 1993, and I saw it with my own eyes. I talked to people who lived in the area, and at that point, there was no turning back. I got involved in this case, and little by little, it essentially took over the bulk of my professional life for a number of years.
How were the Indigenous people in Ecuador being impacted by the pollution in the Amazon?
What I saw on that first trip was shocking. I expected to see pollution, but I didn’t expect to see hundreds of open-air pools of oil waste gouged out of the jungle. It was leaching into the soil and groundwater and being piped off into rivers and streams that local communities were using for their drinking water. One of the most shocking things is that the system was so clearly engineered to pollute, what I saw was not the result of an accidental spill. It was part of a design plan to save money at the expense of the health, and really lives, of thousands of people who are living in the area. And it manifested in really disturbing ways. For example, Texaco would suck the waste oil out of these pits that I described, and they would put it in tanker trucks that would drive around on the dirt roads and spew it out the back from a giant hose onto the road. Most of the people I knew couldn’t even afford to buy a pair of shoes, nor based on their culture, did they even need shoes, and they would walk barefoot along these oil slick roads. There was oil, fresh oil, and old and crusted oil on their bodies, and the only way to get it off was to use toxic alcohol to rub it away. People were being exposed multiple times a day to cancer-causing oil waste. And it wasn’t just the oil on the roads, it was in the water. People were drinking contaminated water. You could see it in the water. Formerly fresh water sources in this beautiful ecosystem had been contaminated. You could see it in the air. When it would rain, and it rains a lot in the Amazon, often the rain would come down with soot – they called it black rain. The only way people thought they could get clean water in this environment was to put out old barrels that Texaco had left behind on the roofs of their homes to capture rainwater, but more often than not, the rainwater itself was contaminated. There was no escape from the oil, there were multiple exposures a day to extremely harmful toxins, many of them carcinogenic. It was clear that this was a humanitarian and environmental catastrophe.
I’ve only just talked about people, but this is one of the most biodiverse areas of the world and thousands of animal and plant species were suffering the same fate from exposure to the oil, dying of cancer and otherwise being harmed by a deliberate decision by an American oil company to dump its toxic waste into this beautiful area. It was enormous, they had six different oil fields in this concession with hundreds of well sites. Each well site had multiple open air, toxic waste pits that were filled with oil waste unlined, and they had pipes from these pits going into streams and rivers that people were drinking out of. The magnitude of the disaster in Ecuador was, in terms of its scope and maybe its overall harm and the amount of area it affected, possibly unprecedented in the world. The most shocking thing about it was that it was deliberate. I couldn’t get around that, I studied the practices of Chevron/Texaco and the industry as a whole and a lot of this was just standard practice.
This case against Chevron and the ensuing retaliation against you has come to define your global image. When you first came to be involved in this case, did you think it was going to be such a defining aspect of your life?
No, I really thought it would end in three years. It’s been over 30. I thought it was so bad that all we needed to do was get the case moving, and it was so obvious they had a major liability. I thought we could sit with the lawyers, and we could hopefully come to a resolution, because clearly, they had made billions of dollars of profit from the operations in Ecuador over 25 years, and there was no reason they couldn’t take a portion of that and use it for a proper cleanup. We went into court believing in the law, and they came to court wanting to weaponize the law to evade accountability. They used the court as a way to exercise their power and try to intimidate those who try to hold them accountable. We’ve seen that time and again.
When we first filed in US courts, they wanted it in Ecuador, and they got it, but as a condition of that agreement they promised to accept jurisdiction. Yet we got to Ecuador, and they challenged the jurisdiction. They promised to pay in the adverse judgment, and we won the case, but they refused to pay. Not only that, but they sued me for $60 billion for a civil RICO case (Editor’s note: the Racketeer Influenced and Corrupt Organizations Act, or RICO, is a US federal law that involves extended criminal penalties and a civil cause of action for acts performed involving an ongoing criminal organization). Then, the criminal contempt of court charge came out of my appeal of an order that I hand over my computer and confidential case files. The judge in the civil case “sanctioned” me for not turning my things over by confiscating my passport. I still haven’t turned over my computer and simply refuse to do so as a matter of protecting my clients’ legal rights and lives, because that would put their lives in jeopardy. They still have my passport.
The US attorney’s office declined to prosecute you for the criminal charge of contempt of court. When this happens, how does the court usually proceed in most instances? As an attorney, why do you think your case was handled differently? What does this say about the US justice system?
There was no basis to charge me with contempt, either civil or criminal, in my view. But even if there was, this was handled in an extremely irregular, and I would argue, questionable, if not outright corrupt, way. The way a normal criminal contempt case is handled is that a judge charges criminal contempt of court; it’s the only crime a judge can charge, because charging decisions come out of the prosecutor’s office, the executive branch, not out of the judicial branch. It’s an extreme measure, very rarely employed.
In my case, there was also a problem with the lack of impartiality of the court which human rights mechanisms have found to be in breach of the right to a fair trial. I believe the way they prosecuted me was to try to destroy me, because I was the main lawyer driving the case. A normal criminal contempt case is charged by a judge and then goes to a prosecutor who prosecutes it before another judge. So, it’s sort of removed from the bias of the charging judge.
In my case, the prosecutor looked at the evidence and refused to take the case forward. That should have been the end of it. Instead, this judge appointed a private corporate law firm to step into the shoes of the US government and prosecute me directly.
It was inappropriate to continue to appoint a private law firm to prosecute me after the prosecutor rejected the prosecution. And this sort of segues to why President Biden needs to act on this and pardon me.
What happened to me is a major breach of the right to a fair trial. There are international decisions, including from the United Nations Working Group on Arbitrary Detention, against the US government for its treatment of me, for arbitrarily detaining me in violation of international law. And I think the only way to really correct this as a country is for President Biden to pardon me and to make a strong statement to remedy the human rights violations in my case.
It obviously would help me do my work again, because I still can’t travel or practice law, but equally as important, it would send out a message that human rights matter. Human rights really do matter and we’re not going to be a country that starts to lock up its human rights lawyers or environmental activists. As found by the Working Group on Arbitrary Detention, the courts overstepped its bounds and failed to be truly impartial, violated the separation of powers doctrine, and went way beyond the judicial function. It was a judicial power grab, and the ultimate issue here is, are we going to respect the rule of law in the United States of America or are we going to make exceptions when human rights lawyers are a little too successful in their work?
You have mentioned that the UN Working Group on Arbitrary Detention got involved and issued an opinion in your case. Can you tell me what they said about your situation, and the remediation measures they recommended?
They ordered the government to immediately release me from my detention, which the government never did. I ended up spending almost three years deprived of my liberty on a misdemeanor. I spent 993 days in detention on a charge that carried a maximum sentence of 180 days. I spent over four times the maximum length of my sentence in detention, which among other violations rendered the detention arbitrary. The Working Group also ordered the government to launch a full and independent investigation into the circumstances that led to my arbitrary detention and to make the necessary legislative amendments to ensure that this situation doesn’t occur to others in the future. However, the government has not even acknowledged the opinion of the Working Group and has not taken any measure to implement their recommendations.
[Editor’s note: beyond the recommendations Steven delineated above, the United Nations Working Group on Arbitrary Detention also recommended that the US government “take the necessary steps to remedy the situation without delay”, align it with international norms as known by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and inform the Human Rights Council of progress made in implementing its recommendations, as well as any failure to take action. The Working Group referred the case to the Special Rapporteur for compliance with human rights obligations in relation to the environment, the management and disposal of hazardous waste, and to the ‘independence of judges and lawyers’. The US government has not acknowledged the opinion of the Working Group.]
Now, you and your supporters, including Amnesty International, are calling for you to be pardoned. Can you explain what this would mean to you, and what it could mean for your case?
If President Biden were to grant a pardon, I think it would bring enormous recognition that this is just fundamentally wrong and a violation of the Constitution. But more importantly, it would send a signal that President Biden, who claims to be a climate president and a rule of law president, can walk the walk, not just do the talk. And it would be a really important opportunity for him to stand up for the principles that he purports. The case in Ecuador does not depend on me getting a pardon, but a pardon would make it clear, or even more clear, to any judge in any country who might consider enforcing the judgment against Chevron, that Chevron’s entire theory that somehow they were the ones victimized by the people of Ecuador rather than the other way around, is a completely false and manufactured narrative.
How can people around the world support you?
The best way is to go to our campaign website: freedonziger.com – Sign the petition to the White House, donate – as I can’t work and am reliant on the goodwill of people all over the world to help pay my legal fees and keep me and this work moving – and call the White House at +1-202-456-1111, what that means is, when the operator at the White House answers you simply say, I’m calling to urge President Biden to pardon Stephen Donziger, this is a grave injustice, this is a stain on the reputation of our country, and it must be corrected.
Elizabeth Haight, the interviewer and author of this article, is a volunteer with Amnesty International’s team for North America. She is a University of Georgia graduate pursuing law school and a career in international law.
Amnesty International thanks Steven Donziger for participating in this interview.