Ted Folkman at Letters Blogatory posted a rather dismissive take on a recent letter I signed to the UN Special Rapporteur for Human Rights Defenders (now on Twitter!) on the situations facing the human rights defenders in the Chevron/Ecuador case. My response below (also published by Ted).
I’ll briefly respond to one point and add one observation.
As someone who watched things unfold, I can say that Ted’s speculative claim that “the reason Chevron’s threats were so potent was because there was some underlying wrongdoing that made Patton Boggs and the others perceive a serious risk of liability” is wrong. It is true, as he says, that some “allies” like Burford were “spooked,” in the sense that as soon as they heard Chevron’s allegations they starting looking for the exit (including, in Burford’s case, by coordinating with Chevron behind their own clients’ backs). Others were the victims of flat-out, unapologetic economic extortion campaigns, such as folks from Stratus Consulting, the company that Chevron brought to its knees by crushing it with litigation, intervening in a dispute with its litigation insurer to make sure the insurer would not cover the litigation expenses, and sending smear-campaign letters to Stratus’ other clients. (How we all tolerate this kind of conduct as just “part of the game” is beyond me.) But allies who took the time to unpack Chevron’s allegations and really understand the facts did not end up abandoning ship.
Ted thinks Patton Boggs is an example of someone “spooked” on the facts, like Burford, or a victim of extortion, like Stratus. Not so. In reality, there were two Patton Boggs—the team that actually worked on the case and understood it, and the rest of the firm that couldn’t care less (and was reportedly mystified at how the firm ended up going up against a wealthy corporation like Chevron in the first place). A great untold story in this case is the heroism of the Patton Boggs team on the case. These men and women worked like dogs, for years, long past when there was any money coming in or any prospect of money. They faced constant attacks not just from Chevron but from corporate apologists in their own firm. And they never gave up on their clients. The larger firm settled with Chevron without telling them, to salvage a merger that was driven by economic considerations far beyond the Chevron case. The team that worked on the case was forced out of the firm in the process. Yet to this day they are proud of what they did and they should be.
Now my observation. Ted’s approach to the human rights perspective here—basically, encouraging “askance” as to whether the Ecuadorian case defenders should really be defended in light of the charges made against them by the very opponent the defenders are resisting—is exactly why the whole “human rights defender” and “environmental defender” movement, despite overflowing attention in the last few decades, is often considered weak at best. A recent report tallied 156 human rights defenders killed in 2015, with numbers of killings and harassment increasing year by year. Members of our team in Ecuador have braved anonymous death threats and other forms of harassment for literally decades.
I see the problem as a lack of clarity in the moral framework underlying the defender movement generally, as well as a certain degree of naiveté. On the one hand, it cannot be a gateway requirement to a vigorous defense that the defender prove she is free of fault or blemish, that her cause is pure and just, or even wise. We have to recognize that human rights and environmental defenders, because they take on immensely difficult and stressful causes and powerful opponents, might even be more prone to errors and controversies than your average person. In any event, we have to commit to defend even deeply unattractive individuals, and even potentially misguided or mismanaged causes, or the whole system fails. (And please, do not push the attack button and apply this to the Ecuador case right now; I am talking about principle.) As someone who does a fair amount of criminal defense work, I understand this principle instinctively and deeply, but non-lawyers and those who have only worked in the civil realm often don’t, even when they claim they do.
On the other hand, we have to recognize the core problem that the “defender” framework is really meant to confront: misdirection. Human rights abuse can and should be fought from every angle. The emphasis on defending defenders is supposed to be a recognition that abusers will seek to distract attention away from the original problem by attacking, or simply redirecting attention to, the individuals or movement trying to call attention to the original problem. Following a government’s or corporation’s lead by focusing on the alleged sins of the defender, whatever they are, is an utter capitulation to this insidious tactic.
Perhaps there are instances when some capitulation is necessary, when some attention must be paid to the defender. My sense is that the legitimate number of these instances are far, far less than the number of instances at which abusers are simply winning at the misdirection game. At a minimum, a principled defender of defenders should only deign to have her attention drawn to the defender with full awareness of the larger context. So, with the Ecuador case, you have to begin an analysis by recognizing that Chevron’s multi-billion dollar effort to taint and demonize the Ecuadorian plaintiffs and Steven Donziger is fundamentally an effort at distracting attention from the situation on the ground in Ecuador, and, with respect to Donziger, an effort to take down someone they recognize as a potent adversary. One can still be open to seeing a justice interest for Chevron within this framework, but if you cannot accept the framework, you have lost the purpose and vitality of the movement to defend the defenders.
In his search for a justice interest for Chevron, Ted, breezing past things like Chevron’s paying of fact witnesses, extorting people like Stratus, spying and violating attorney-client privilege, and constant political strong-arming, not even to mention the massive contamination in Ecuador which I believe he has seen up close, goes back to the dispute over the Cabrera report, submitted in the Ecuador trial process in 2008. My own view as I have maintained in the past is that the Cabrera issue is overblown and even trumped-up in the sense that it arose from uncertainty about expectations and obligations in the under-developed world of provincial Ecuadorian litigation practice, and that Chevron has never been able to specify, as the Ecuadorian Supreme Court has pointed out in its unanimous decision, exactly what laws or rules Chevron thinks were violated. But no matter what you think of Cabrera, there is no question that the issue was brought to the attention of the Ecuadorian trial court, appellate court, and Supreme Court; the Ecuadorian judiciary fully addressed the issue, and, appropriately, chose not to throw out a decade of litigation affecting tens of thousands of lives over an issue that could be and was effectively resolved. There should be no get-out-of-jail-free cards for intentionally dumping billions of gallons of toxic waste into the environment, and even if there were, the Cabrera issue certainly wouldn’t justify giving one to Chevron. (Which is why Chevron and its agents started buying testimony and making stuff up about bribery and so forth, because even they recognized that the Cabrera wasn’t going to take them anywhere.)
To the extent people think the Ecuador case is different because there are “factual findings” from a federal judge, read about that judge and the “Dickensian farce” of a process he oversaw in the letter and the other materials out there.
Ultimately, the Ecuador case is about the contamination in Ecuador, not about the distracting and self-serving narratives offered by Chevron. The UN Special Rapporteur charged with leading the defender movement is well-equipped, I believe, to recognize this. He would not be alone. While Ted’s “askance” is perhaps shared in some parts of the human rights world, perhaps the world of corporate lawyers with an academic (albeit sincere) interest in human rights like Ted, the world of individuals and organizations that really do the hard work of defending human rights and environmental causes—who know how hard it is and take body blows constantly in their own work—are staunchly behind Steven and the Ecuadorian plaintiffs, as shown by last year’s letter challenging the legitimacy of Chevron’s RICO tactic, signed by organizations such as Greenpeace, The Sierra Club, 350.org, Rainforest Action Network, the Institute for Policy Studies, Global Exchange, Avaaz, Pachamama, Rights Action, and many others.
Although I am distressed, as many are, about the state of human rights and environmental defender protection movement, I also believe we are starting to turn a corner, and that a reassessment of the last five years of the Chevron case is going to be part of that process. The letter to the Special Rapporteur, which unfortunately has thus far not been responded to, was made public in part to widen the call to consider these issues. I welcome any further comments or exchanges.