Doug, I don’t really know how common such lobbying by business interests is (remember that my request was limited to lobbying by businesses and by members of Congress—I should have made it broader). I will say that my FOIA experience suggests that it is not common at all—I understand that a few weeks ago, after doing its searches, the Department of State was prepared to say that it had no documents responsive to my request, so it seems clear to me that this kind of lobbying isn’t routine. I don’t want to get into my discussions with counsel for the government, but I will say that at the government’s request, I significantly reduced the scope of my FOIA request, so that it won’t be possible to get a real sense of the frequency of lobbying after the government produces what it is going to produce, which was one of my original goals.

Regarding lobbying disclosures: my point isn’t really that this kind of lobbying should be disclosed. Instead, it’s that since this kind of lobbying is not disclosed, we need to be careful how we use the reports. In particular, it seems reasonable to me to require a litigant that has lobbied the State Department on these reports and then uses the reports in court should have to disclose the fact of the lobbying to the court.

Dear Ted,

I’m surprised that your sources are surprised to learn about the kind of lobbying in which Chevron engaged. One needs to understand how the State Department compiles its human rights reports. They are drafted by human rights officers in each Embassy, and then edited in Washington. The mandate of the human rights officers is omnivorous: to scoop up as much credible information on human rights issues as is feasible from a wide variety of sources — such as person-to-person contacts, local and international human rights organizations, reports and statistics from human rights ombudsmen and other official bodies, judicial proceedings, the press, whistle blowers, and the Embassy’s range of bilateral and diplomatic relationships.

During my decades of work on behalf of victims of human rights violations, I have made it a regular practice to meet with the human rights officers (among others) in US Embassies in the countries where I work, to inform them of any information and views my clients and I may have on local human rights issues. It is at least implicit, and often explicit, that I am asking the Embassy officials to take the information I provide into account for purposes of their annual human rights report on the country.

This is hardly unusual. Many local and international human rights NGO’s and lawyers follow the same practice. In my experience it is routinely welcomed by Embassy human rights officers, who are eager to become as well-informed as possible. If they meet with human rights advocates, they and other Embassy officials also meet with representatives of the host State government, who generally present a quite different perspective.

Less of this advocacy takes place in Washington, simply because Washington is less accessible to foreign human rights victims and their advocates. But I have certainly been in touch in a similar way with State Department country and regional desk officers in Washington over the years, and it is standard practice for human rights delegations visiting Washington to meet with the relevant desk officers.

In this context, I am puzzled by your source’s surprise. Given the nature of the information-gathering process for these reports, it seems hardly surprising that Chevron, too, would seek to have input on a major issue affecting the company.

As for public disclosure, much of what is reported to the State Department should remain confidential. Imagine, for example, information provided by an Iranian or Zimbabwean dissident or whistle-blower about human rights abuses by the regimes in those countries. Identifying the source of such information could well prove fatal.

Other sources need no confidentiality. The documents released to you by the State Department about the information provided by Chevron, for example, were properly deemed not to be within the scope of any exception to the Freedom of Information Act. (The Department’s deliberations on that information, however, were claimed to fall within a separate FOIA exemption.)

As for reliability, in the 1970s and 1980s the State Department reports were often criticized as politically biased in favor of US friends and against US enemies in the Cold War and otherwise. However, the State Department responded to such critiques over time by making strenuous efforts, through multiple levels of review, to apply uniform criteria in an objective manner in order to produce reliable reports. While no such effort can be entirely free of subjective judgments, in my experience the State Department reports of the last 20 years are generally highly reliable. They draw on a multiplicity of sources, they go through several layers of review within the government each year, they are made public and are widely commented upon and critiqued from all sides, and the reports for a given year usually begin with the prior year’s report and focus on any new or changed factors. Their accuracy is aided by their generality; except for carefully worded mentions of specific cases and statistics attributed to public record sources, they are usually designed to give only a highly general, qualitative assessment, which is much easier to justify than would be a greater level of specificity.

Finally, you ask whether a litigant who relies on a report should disclose that the litigant lobbied the State Department in regard to that report, and perhaps should even be barred from such reliance, whether or not the lobbying is disclosed. Imposing a disclosure requirement generally would expose some litigants to unacceptable risk; China and other repressive regimes, for example, might treat any citizen who provides information to the State Department as guilty of the criminal offense of divulging “state secrets”; other countries, such as Thailand, would treat any criticism of the monarch or the head of state as the crime of lese majeste or criminal contempt (e.g., “desacato” in Spanish-speaking countries) of the head of state.

On the other hand, a company like Chevron could disclose its lobbying without, in most cases, posing serious risks. But then the implementation question arises: how would one administer a disclosure requirement that applies only to some, but not to all litigants? (Even applying for an exemption from disclosure might arouse suspicion from a repressive regime.)

Without being definitive, my initial inclination is that a lobbying disclosure requirement in this arena is unnecessary and unworkable. Judges and other outside observers are best advised, in my view, to take the State Department reports as the considered view of the Department, arrived at after hearing diverse views, and to weigh them in the balance with other sources of information, such as NGO reports and expert opinions, in assessing any issue to which the State Department reports may be relevant. In so doing, outside users of these reports should be aware that the drafters receive information from a wide variety of sources, and that these may, directly or indirectly, include litigants before a court, or other sources sympathetic to one side or the other in a contested dispute.

David, thank you for commenting. I think your comment is a good reminder of the importance of comity: when the courts of one country are seen to sit in judgment on the courts of another country, tensions between the two countries can arise,and so the default should be to respect a foreign country’s judgments.

I should add that in terms of judging the accuracy of the information the parties presented to the State Department, I don’t think we’re really in a position to judge that question with regard to Chevron, because we don’t know what was said at the meeting I write about. I have asked Chevron for comment on this and would be very interested to know what claims Chevron’s lobbyists laid out and what changes to the language of the report they sought.

Thanks Luke! That is quite interesting. If I had the time, I would like to track the changes in the report over time, track Chevron’s submissions to various courts and tribunals mentioning it over time, and track the use the courts and tribunals make of the report. We’ll see if my day job permits me to take that project on.