Doug Cassel on the Letter to the Special Rapporteur

Doug Cassel reponds to Aaron Marr Page’s post on the letter to the UN Special Rapporteur on Human Rights Defenders.

Aaron Marr Page is right that human rights defenders are endangered, but wrong to try to wrap Steven Donziger in the protective blanket of their moral credibility. Donziger does not remotely merit the support of the UN special rapporteur on human rights defenders.

Attacks and threats against human rights defenders do pose an enormous challenge. The UN Human Rights Council so recognized 15 years ago by establishing the position of the special rapporteur. Even so, in the Americas at least, defenders remain at risk. After reporting on the dangers for decades, the Inter-American Commission on Human Rights in 2011 established its own rapporteur on human rights defenders. Here in Mexico, where I am doing human rights research this semester, the Commission recently declared a “human rights crisis.” It warned that the “effect of the violence and fundamental rights violations is especially serious and disproportionate” to human rights defenders.

So we should all have common ground on the urgent need to defend the defenders. Day after day, they risk their lives, limbs and livelihoods to assert the rights of the most vulnerable populations.

But in so doing, in my experience, they do not bribe judicial officials. They do not fabricate evidence. They do not affix the signatures of their own experts on reports that contradict the expert’s actual findings. They do not write reports of judicial experts and then pass them off as if they were written by neutral officials. And they do not ghostwrite judgments in litigation.

In the Ecuadorian lawsuit against Chevron, Donziger was party to all of this and more. Page conveniently focuses on one witness for Chevron who admittedly lied, and on one United States federal judge whom Pag—unfairly—ccuses of bias. But long before the lying witness took the stand, and well before federal Judge Lewis Kaplan issued his 500-page judgment documenting Donziger’s fraud, there was already abundant evidence of misconduct. One US court (not Kaplan) found “mounds of evidence” that the Ecuadorian judgment against Chevron was ghostwritten by the plaintiffs’ lawyers. Another federal court (again, not Kaplan) concluded that Chevron “has shown to anyone with common sense that this [Ecuadorian judgment] is a blatant cut and paste exercise.” And a third federal court (still not Kaplan) declared that what has “blatantly occurred in this matter would in fact be considered fraud by any court.”

To place a con man like Donziger in the company of honest human rights defenders, then, does a disservice to all those who risk their lives honorably in the service of human dignity.

Overlooking or excusing Donziger’s fraud also misses a key lesson of the Ecuador litigation: all human rights defenders have a stake in calling out purported human rights lawyers who cross the line from aggressive advocacy to unethical conduct. Our most effective tool is our moral and professional credibility. When a Donziger defrauds the courts and the public, he undermines the credibility of human rights defenders everywhere.

In an effort to discount the extensive evidence against Donziger, Page complains that Chevron put pressure on Donziger’s co-conspirators. He singles out Donziger’s consultants at Stratus Consulting as an example. But in fact, Chevron’s pressure on Stratus – all of it lawful as far as I am aware — brought out the truth: Donziger’s team and Stratus wrote the supposedly “independent” court expert’s report on damages, and then lied about it to the public and the courts.

Does Page deny that they did so? Or does he claim that, if they did, this was ethically acceptable?

Not content with ennobling Donziger as a human rights defender, and attempting to discredit those who gave statements against him, Page also tries to cloak Donziger in the aura of respectable human rights groups. On several occasions, varying lists of groups have indeed denounced Chevron tactics. But do they defend Donziger’s tactics as proper? Do any – other than those in plaintiffs’ public relations squad – deny that he committed wrongdoing? How many even know whether he did? Would any of those groups defend his misconduct if they knew of it?

In the end Page aspires to the high ground. He sees “the problem as a lack of clarity in the moral framework underlying the defender movement generally, as well as a certain degree of naiveté.” Call me naïve, but any lack of moral clarity here lies with someone who defends Donziger’s misdeeds as mere “errors and controversies.”

According to Page, 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.”

Whether or not there is any substance in this psychological conjecture, it cannot excuse or justify fraud. On the contrary, precisely because the outcomes matter so much for those they defend, human rights defenders must strive to meet the highest standards of ethical conduct.

Moral clarity can indeed be found, not in Page’s apologia, but in the amicus brief filed by a group of distinguished human rights and anti-corruption lawyers in Donziger’s appeal from Judge Kaplan’s ruling. Among others, they include two former presidents of the Inter-American Court of Human Rights and a former president of the Inter-American Commission on Human Rights. The amici disclaim any knowledge of the facts. But “they share a single, central concern: If the District Court’s factual findings are accurate in whole or significant part, the corruption of the judicial process in Ecuador undermined human rights and corroded the rule of law.” In contrast to Page, they “categorically reject any suggestion that human rights ends can justify corrupt means.”

That clear vision, and not Page’s effort to defend his former co-counsel, is the right message to send to the UN rapporteur on human rights defenders.

Finally, a disclosure: I represented and served as an independent consultant to Chevron in the past. I no longer do so.

About Douglass Cassel

Douglass Cassel is Notre Dame Presidential Fellow and Professor of Law at the University of Notre Dame Law School. He was also an advocate for Chevron in proceedings before the Inter-American Commission on Human Rights.

2 thoughts on “Doug Cassel on the Letter to the Special Rapporteur

  1. I’m largely content to stand on my original post. I know Donziger and the facts of this case extraordinarily well. Donziger is not a “con man.” No judicial official was bribed. No evidence was “fabricated.” Indeed, these charges have largely now been shown to be fabrications by Chevron. Yet Cassel declines to call his former client to account.

    The fabricated charges have been advanced by Chevron, at the expense of billions of dollars, not “in the interests of justice,” but to serve Chevron’s interest in tainting the judgment against it and avoiding responsibility for the hundreds of oil waste pits and thousands of devastated lives it left behind in Ecuador. I sincerely doubt Cassel is naïve to relevant context like this on matters where he genuinely acts as a professorial voice of conscience, as opposed to a paid advocate.

    The Cabrera report was, as I wrote, the result of uncertainty about expectations and obligations in the largely unfamiliar world of provincial Ecuadorian litigation practice. Neither Donziger, Stratus, nor anyone else involved intended to (or did) commit fraud. To the extent they were aggressive in their practice and interpretation of their obligations in relation to Cabrera’s independence, they felt justified (if not obliged) to engage as they did because Chevron, with a far more sophisticated legal and expert team, regularly presented the carefully composed work of its own experts to the court as “independent,” and worked (and paid) court-appointed experts of all stripes on an ex parte basis. To the extent that plaintiffs-side judgment calls can be called into question now, there is NO question that these issues were presented to and were resolved by the Ecuadorian justice system. To pretend they still justify a get-out-of-jail-free card for Chevron, as Cassel does, reveals the deep biases in his assessment.

    I appreciate Cassel’s relatively clear disclosure, lacking from many of his earlier interventions in various forums. Nonetheless, the fact that his paid consultancy with Chevron is over (for now) is of limited significance. If Donziger remains demonized, Cassel’s decision to take Chevron’s money to participate in that demonization is perhaps questionable, but passable. If Donziger escapes from the demonization frame, Cassel’s decision is revealed as truly mercenary. So Cassel has a huge interest in keeping Donziger in the demonization box. Hence his post.

    Not that he shouldn’t be heard. Just that this is the appropriate frame to receive his views. His struggle to deny that frame and lay claim to meaningful “independence” is unconvincing.

    1. Aaron Page is once again true to form. Dodge and distort the message; attack the messenger. Does he also imagine that the six distinguished human rights and anti-corruption experts, who filed the amicus brief denouncing Donziger’s “ends justify the means” philosophy of litigation, were paid for their services? And if anyone still doubts that Donziger’s team bribed judicial officials, they need only read the portions of Judge Kaplan’s opinion detailing the dates and amounts of the secret payments to Cabrera, the Ecuadorian court’s so-called “independent expert.” If, even now, Page cannot bring himself to see the unacceptability of such misconduct, one doubts that he ever will.

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