When Regimes and Corporations Take Aim at Artists

Chevron Oil and the mullahs in Teheran reveal just how much they have in common

by Gordon Campbell

Chevron Oil used to be called Texaco and long ago named one of its tankers the Condoleeza Rice – which may provide a hint or two of what a pillar of capitalism it is. Currently, Chevron is locked in a high profile court battle with the US film-maker Joe Berlinger, who made a prize winning documentary called Crude a couple of years ago about the company’s activities in Ecuador, a film that captured the devastating impact that Chevron’s legacy has had upon indigenous communities in the Amazon, and their environment.

Over the last month, Chevron has been fighting – and so far, winning in court – the right to comb through the out-takes from Berlinger’s film, in an attempt to discover any evidence of collusion between local villagers, their lawyers and Richard Cabrera, the one-man Ecuadorian tribunal who has awarded the locals $27 billion in damages against Chevron. Not that there ever was much prospect of that bill being paid.

Meanwhile, at exactly the same time on the other side of the world, the authorities in Iran have been acting to crush the celebrated film-maker Jafar Panahi for his temerity in wanting to make a film about the rigged Iranian elections last year, and the fate of those in the protest movement. Panahi, like Berlinger is an internationally respected film-maker. At the Cannes film festival last month, Panahi was supposed to sit on the judging panel. Instead, an empty chair was left on stage in protest against his forced absence and mistreatment while in prison, which had led him to go on a hunger strike. His family has also been punished. Juliette Binoche (who won the best actress award this year at Cannes for her role in the new film by Panahi’s Iranian colleague and mentor Abbas Kiarostami) denounced Panahi’s persecution in her acceptance speech, and said that Panahi was being made to suffer for being an artist, and for being independent.

Elsewhere in this issue of Werewolf, Brannavan Gnanalingham discusses Iranian cinema, and Panahi’s exalted place within it. Suffice to say that several of his films have been shown here on the festival circuit – such as The White Balloon and The Circle. In his film Offside, a group of female soccer fans in Teheran, dress up as men, so that they can experience at first hand their national team’s attempt to win entry to the 2006 FIFA World Cup. Once their disguise is discovered, the women are consigned to a holding pen from where they can hear only the shouts and the cheers for a national cause from which they have been excluded on the basis of their gender. No wonder the mullahs were worried about what Panahi might have put on film about their fraudulent election last year, and its bloody aftermath.

Last month, Panahi delivered this chilling message to the world from his prison cell :

I hereby declare that I have been subject to ill treatment in Evin prison.

On Saturday May 15, 2010, prison guards suddenly entered our cell, n° 56. They took us away, my cell mates and I, made us strip and kept us in the cold for an hour and a half. Sunday morning, they brought me to the interrogation room and accused me of having filmed the interior of my cell, which is completely untrue. Then they threatened to imprison my entire family at Evin and to mistreat my daughter in an unsafe prison in the city of Rejayi Shahr. I have eaten and drunk nothing since Sunday morning, and I declare that if my wishes are not respected, I will continue to abstain from drinking and eating. I do not want to be a rat in a laboratory, victim of their sick games, threatened and psychologically tortured.

My wishes are :

– The possibility to contact and see my family, and the complete assurance that they are safe.

– The right to retain and communicate with an attorney, after 77 days of imprisonment.

– Unconditional liberty until the day of my judgment and the final verdict

– Finally, I swear upon what I believe in, the cinema : I will not cease my hunger strike until my wishes are satisfied.

My final wish is that my remains be returned to my family, so that they may bury me in the place they choose.

A few days later, Panahi was released on bail of $200,000. In the months ahead, he still faces prosecution and the prospect of being sentenced to years in jail for daring to want to make a film about the most significant recent event his country.

Meanwhile, in a New York courtroom, Joe Berlinger was being stalked by Chevron Oil. For nearly 20 years – starting with the acclaimed film Brother’s Keeper in 1992 – Berlinger and his sometime collaborator Bruce Sinofsky have made films about the various ways in which the law and its entrenched power take a toll of vulnerable people and their communities. He is best known for the two Paradise Lost documentaries that he and Sinofsky made about the infamous Memphis Three murder case in Arkansas, and also for Some Kind of Monster, his highly amusing take on the rock band Metallica. Basically, Berlinger showed that while Metallica may have once been a band of friends making music, it long ago devolved into a major corporation – and these days, the needs of Corporation Metallica are wreaking psychological havoc on everyone who enters its orbit.

The Chevron case though, has very substantial implications for journalism. Essentially, Chevron’s desire to conduct a fishing expedition in Berlinger’s raw footage is threatening to blow apart the legal framework for the trust and confidentiality that is essential between documentary film-makers and their sources. For good reason, Berlinger came to be trusted by both sides of the conflict in Ecuador. Over time, that gave him access to confidences that were clearly never intended to be aired publically. As the Huffington Post put it in late April this year :

Berlinger sought permission from his sources to film them, often in sensitive, painful and conflict-ridden situations. To obtain these permissions, Berlinger spend a significant amount of time building a foundation of trust with the subjects of his film. Indeed, the brief cites case law explaining that the same privilege that protects journalists from being forced to divulge information extends to investigative documentary filmmakers. Berlinger says he has never released outtakes to any third party – ever. Nor have most documentary filmmakers.

He says that his unused footage should be protected in the same way as a reporter’s unpublished notes. “‘I would be equally resistant if the plaintiffs had been subpoenaing me … There’s an important First Amendment principle to defend. … There will be a serious chill in this kind of work if companies demand that documentarians turn over their footage.”

As the Guardian noted in its story on the case:

Chevron clearly hope that the 600 hours of raw footage that Berlinger shot over the course of three years will include segments that could help them fend off those potential damages of $US27.3bn.

“This is a violation of the first amendment and journalistic privilege,” Berlinger said in a telephone interview. “Just because they want to look at my footage doesn’t mean they have the right to look at my footage.”

Crude…focuses on the 17-year legal battle between Chevron and 30,000 Ecuadoreans who say their land, rivers, wells, livestock and own bodies were poisoned by decades of reckless oil drilling in the rainforest.

The plaintiffs say Texaco – which was taken over by Chevron in 2001 – dumped 68bn litres of waste water between 1972 and 1990, causing an epidemic of diseases such as leukaemia. Some have called it “the Amazon’s Chernobyl”.

One irony about Berlinger being pursued through the courts by Chevron is that Crude was conscientiously fair to Chevron. It not only gave a large amount of screen time to the company, but also conveyed its argument that the damage done in Ecuador was the responsibility of the state oil company that had taken over Chevron’s leases nearly two decades beforehand. More than once, the film cited an agreement signed between Ecuador and Texaco in 1998 (after a $40 million cleanup) that absolved the oil company from any further legal responsibility for damage claims arising from its past activities. [The Ecuadorian expert investigator treated these contracts as being agreed to under virtual duress.]

Moreover, the film also put squarely on screen the media coaching of the Ecuadorian tribal spokesmen, by their main US lawyer, Steven Donziger. One of Crude’s interesting strengths lay in the way that it showed just how media-savvy the victims of corporate power now have to be, if they are to compete successfully for media space with the company spin doctors.

When he was first approached to make the film, Berlinger had been inclined to turn down the project .

“I’m not an advocacy filmmaker,” Berlinger recalled telling Donziger. “And I’m probably the wrong guy to make this film.” He even recommended to Donziger a couple of far more polemical film-makers that would be better suited to the job. On top of all that, as he told an audience at the Sundance film festival in early 2009, Berlinger had grave doubts that this story could ever be made into a viable feature documentary :

Despite being deeply affected by what I saw in Ecuador, it didn’t strike me that it would translate into something other than a news story or some kind of one-sided environmental expose, neither of which interested me. But I did feel like I wanted to help these people in some way. I was haunted by images of the people I saw in the Amazon, suffering from disease, eating canned tuna because the fish are gone from the once-pristine river in a place that used to be a paradise. This location, after all, was once of the few places on earth that survived the last ice age, yet it is struggling to survive industrial development.

Well, the film did finally get made and the Ecuadorians, for what it is worth, have ruled that Chevron is liable. The legal battle has dragged on for nine years so far in US and Ecuadorian courts. To date, the only concrete improvement in the lot of the rural villagers and tribal people has been the water de-contamination units provided via the efforts depicted in the film of Sting’s wife, Trudi Styler. Early last month, Berlinger lost his court battle to keep his footage out of Chevron’s hands.

In sum, Chevron is alleging that there is evidence of collusion between Richard Cabrera, the official who investigated the damage done, and the plaintiff’s lawyers. This press release from the Chevron company sums up the gist of their counter-attack.

It alleges surreptitious contacts went on with plaintiffs’ representatives and that a substantial portion of Cabrera’s court-ordered analysis was based on materials that could only have been provided by the plaintiffs’ representatives, outside of the court proceeding. Among other things, the Chevron press release claims:

Chevron recently has learned that at the time that he became a court appointee in the Lago Agrio litigation { which is at the heart of the $27 billion award] Cabrera was already in the employ of the plaintiffs’ original counsel, Cristobal Bonifaz (Bonifaz was dismissed from the Lago Agrio case and was sanctioned for presenting [allegedly] separate, false cancer claims against Chevron in federal court in California). Specifically, Cabrera served as a paid expert in litigation (Arias v. DynCorp) that Bonifaz and other lawyers brought in Washington, D.C. federal court on behalf of a group of Ecuadorian plaintiffs.

The DynCorp plaintiffs assert that they were harmed by herbicide spraying in the same region of Ecuador at issue in the case against Chevron, and Cabrera’s DynCorp report concludes that herbicide exposure is the primary cause of alleged harms in the region. In the Chevron case, however, Cabrera’s report attributes many of those same harms exclusively to alleged petroleum exposure. Cabrera never disclosed his prior relationship with plaintiffs’ counsel to the Lago Agrio court, nor did he disclose the existence of his DynCorp report which contradicts important parts of his supposedly independent report in the case against Chevron.

The U.S. federal court proceedings in which Chevron seeks hidden evidence of corruption and misconduct captured by filmmaker Joe Berlinger have also centered on evidence of collusion in connection with the Cabrera’s [sic] damages report. Parts of Berlinger’s film Crude show plaintiffs’ lawyers Steven Donziger and Pablo Fajardo working with Carlos Beristain, one of the supposedly neutral experts on Cabrera’s team, at a focus group meeting related to Beristain’s supposedly independent “health survey.”

Cabrera relies on Beristain’s survey for his assessment of $9.5 billion in damages for “excess cancer” claims. While, at the direction of the plaintiffs’ lawyers, Berlinger edited the DVD version of Crude to conceal Beristain’s involvement with the lawyers, the unedited scene remains in a recently released internet version of the film. This documentation of collusion supported Chevron’s successful argument to a federal court in New York that other Crude outtakes should be reviewed for further evidence of misconduct. In its recent order, the New York court ruled that the fact that this scene was cut from the final version of the DVD [actually, the theatrical print] at the direction of plaintiffs’ lawyers is “a fact suggestive of an awareness of questionable activity.”

Frankly, it could also mean no such thing. It could simply reflect that having given Berlinger access to the inner sanctum of its deliberations on trust, the Ecuadorian legal team wanted to exercise their right and duty to decide what should, or shouldn’t, be made public. You can see the pattern here. Procedural issues are being used by Chevron to trump the social and environmental damage committed. Ecuador, during its attempts to get justice after nearly three decades of contamination of its communities and their waterways, is being placed under the legal microscope. C’mon, Chevron is arguing, prove to our satisfaction that it was our oil spills and not – perhaps, say – some other company’s herbicides that poisoned your people.

So far, Berlinger has lost his initial attempts to keep the raw footage to himself. During the 1990s, he did win a similar case with regard to some of his Memphis Three raw footage being sought by the prosecution, and he may well be hoping to do so again this time, once the case reaches a higher court. Yet the Chevron press release indicates the legal mountain that he will now have to climb when his constitutional right to protect his sources goes to appeal in the coming weeks. As things stand, he has already been judged to have colluded with one side of the case – ironically, on evidence gained by his decision to add footage as further balance to the DVD release of Crude. As Berlinger has also said, he has children – and he does not intend to go to jail over this footage.

In conclusion, the similarities between the fates of Berlinger and Panahi are considerable. Both men have sought to make films about people caught up in contexts of injustice not of their own making. Both can now choose to cave in to the brutal exercise of state and corporate power, and play ball. Both have family members who will suffer if they refuse, and Panahi in particular will be crushed physically and artistically, if he continues to resist. Obviously, the rights to free artistic expression are being trampled over, along with – in Berlinger’s case – his need as a journalist to protect the interests of the vulnerable people who have confided in him. Panahi never got to that point, but he almost certainly would have.

Even Ecuador itself is now being punished by Chevron. In addition to the attack on Berlinger, Ecuador’s right to appoint the prosecutor of its choice to investigate crimes committed on its soil against its people is being challenged by Chevron under international trade law arbitration. The pollution happened decades ago. As the Huffington Post report pointed out, the plaintiffs’ case was first brought to court over nine years ago, on behalf of some 30,000 indigenous and rainforest dwellers most affected. Incredibly, in a separate ruling in a Manhattan court, a federal US judge has recently given Chevron the go-ahead to pursue an international arbitration claim against Ecuador.

According to this AP news story about the Berlinger litigation , Chevron filed its claim in September with a panel based in The Hague, saying that it had been denied due process in the Ecuadorean courts.

You’ll be relieved to hear that Chevron is doing okay in the meantime, thanks. As this recent news report from the San Francisco Chronicle says, the company’s first quarter profits soared 148 percent to top $4.55 billion, almost entirely on the back of surging oil prices and rising production, since its sales of gasoline to US motorists actually fell during over the same period. Major oil companies are pumping pure gold as the world pulls out of recession. Meanwhile, a group of 200 documentary film-makers across the US has belatedly woken up to the threat Chevron and the courts are posing to their profession. In this open letter , they state :

“While we commend Judge Kaplan for stating ‘that the qualified journalists’ privilege applies to Berlinger’s raw footage,’ we are nonetheless dismayed both by Chevron’s attempts to go on a ‘fishing expedition” into the edit rooms and production offices of a fellow documentary filmmaker without any particular cause or agenda, and the judge’s allowance of said intentions. What’s next, phone records and e-mails?

At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject’s identity and voice are presented in the final report. If witnesses sense that their entire interviews will be scrutinized by attorneys and examined in courtrooms they will undoubtedly speak less freely. This ruling surely will have a crippling effect on the work of investigative journalists everywhere, should it stand.”