In 2007, Chiquita Brands International admitted to making payments to an array of Colombian paramilitary and guerilla groups over the past ten years in exchange for a paltry fine of $25 million. One group in particular, the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia) or the AUC was designated as a foreign terrorist organization in 2001 – and one of the primary recipients of the payments. Claiming no wrongdoing Chiquita argued that it was being extorted and that it had never received “any actual security services or actual security equipment in exchange for the payments.”
At the time of the initial sentencing Assistant Attorney General Kenneth L. Wainstein remarked, in a seemingly straightforward manner, that “Like any criminal enterprise, a terrorist organization needs a funding stream to support its operations. For several years, the AUC terrorist group found one in the payments they demanded from Chiquita Brands International. Thanks to Chiquita’s cooperation and this prosecution, that funding stream is now dry and corporations are on notice that they cannot make protection payments to terrorists.”
It now appears that things are not as simple as Assistant Attorney General Wainstein initially thought. In April, Chiquita Brands International filed a reverse Freedom of Information Act lawsuit to stop the public release of thousands of documents handed over to the Security and Exchange Commission. The documents are said to outline in detail Chiquita’s illegal payments to terrorist organizations such as the AUC.
Despite the clear and existing evidence that Chiquita had engaged in criminal activity, Chiquita is arguing that under Exception 7(B) of the Freedom of Information Act, mandatory disclosure provisions do not apply to “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . would deprive a person of a right to a fair trial or an impartial adjudication.”
In an effort to portray the multinational corporation as the real victim in this case Chiquita’s lawyer, James Garland, argued that the disclosure of the documents “will make them available to the general public, including members of the press and individuals and organizations that seek to distort the facts surrounding the payments that Banadex (a subsidiary of Chiquita) made to the AUC under threat of force. Past experience with release of Chiquita’s documents has demonstrated that media campaigns based on gross mischaracterizations of released documents are certain to occur in an effort to entrench misconceptions of relevant facts in the minds of fact finders integral to the fairness of the proceedings.”
Furthermore, Garland has engaged in a campaign alleging that the National Security Archive is not an independent research organization, but instead is seeking to assist lawyers involved in a class action lawsuit against Chiquita in Colombia, on behalf of the victims of paramilitaries, in addition to an ongoing criminal investigation of former Chiquita employees in Colombia. The fact that the National Security Archive would not have found evidence of criminal wrongdoing if it had never happened in the first place seems lost on Garland.
However, this illogical line of argument is not baseless – as in 1997 Chiquita managed to overturn a brilliant investigation by the Cincinnati Enquirer on the basis of the “illegitimate” gathering of evidence. The investigation uncovered that Chiquita was engaging in widespread murder, bribery, arms trafficking, and knowingly poisoning the environment throughout Latin America, but the charges were thrown out. The newspaper was sued and the journalists had their careers cut short.
In 2007, ten years after the Cincinnati Enquirer investigation, the first batch of over five thousand documents, known as the “Chiquita Papers” were published and made available to the public by the National Security Archive. The documents were released by the Justice Department and the FBI in response to the National Security Archive’s Freedom of Information requests.
Michael Evans, Director of the Colombia Project at the National Security Archives remarked on the importance of the documents, stating that “This may well be the most important collection of records ever assembled on corporate ties to terrorism. This was a massive, years-long investigation that involved multiple federal agencies and resulted in the one of the first convictions of a major US company of financing a terrorist group.”
Despite Chiquita’s posturing, the most likely reason they are demanding that the additional documents be suppressed is because it would provide further the evidence of criminal wrongdoing in Colombia. Based on the first batch of documents, Evans highlighted that “we found very strong indications that Chiquita did, in some cases, receive something in return for their illicit payments – that there was a quid pro quo with both guerrilla and paramilitary groups. The evidence we found directly contradicted the U.S. Attorney’s finding, stated in the sentencing memorandum, that the company had never received “any actual security services or actual security equipment in exchange for the payments. For instance, a legal memo written by one of Chiquita’s lawyers said that the general manager of Chiquita operations in Turbó, Colombia, had told him “that the Guerrilla Groups are used to supply security personnel at the various farms.” It’s right there in a Chiquita legal memo written on Chiquita letterhead.”
Upon closer examination of the Chiquita Papers, it became clear that the Attorney General failed to read or truly understand evidence contained in the documents, with Evans adding that “Another document that we published in 2011 shows that Chiquita also paid right-wing paramilitary forces for security services. The March 2000 memo, again, written on Chiquita letterhead and based on a conversation with one of the managers in Colombia, says that a group known to be a front for paramilitary terrorists was formed to disguise “the real purpose of providing security” and that the “money [was] for info[rmation] on guerrilla movements.” The company manager also suggested that they “should continue making the payments,” because the company would not “get the same level of support from the military.”
It will be telling how much information is released to the public, as Chiquita Brands International has some friends in very high places. During the 2007 investigation in which Chiquita was fined $25 million, the company was represented by current Attorney General Eric Holder.
In effect, the current reverse Freedom of Information lawsuit amounts to Chiquita asking the United States District Court for the District of Colombia to hide documents which can potentially reveal the corporation’s involvement in criminal activities which have resulted in the death and assault of thousands of Colombians. The fact that the U.S. Department of Justice produced such a small penalty despite the evidence of criminal wrongdoing in 2007 should be disconcerting to all interested in human rights, as it is further evidence of the abuses of corporate political power.
Kevin Edmonds is a NACLA blogger focusing on the Caribbean. Edmonds is a former NACLA research associate and a current PhD student at the University of Toronto, where he is studying the impact of neoliberalism on the St. Lucian banana trade. Follow him on twitter @kevin_edmonds.
The US Central Intelligence Agency (CIA) has for the first time published a document that confirms Washington’s role in the 1953 coup d’état against the democratically-elected Iranian Prime Minister Mohammad Mosadeq.
The open acknowledgment by the US intelligence community comes some six decades after the British- and American-backed military overthrow.
“The military coup that overthrew Mosadeq and his National Front Cabinet was carried out under CIA direction as an act of US foreign policy,” read a brief segment from an internal report by an in-house CIA historian in the mid-1970s.
The document, published on the National Security Archive website, was initially released in 1981, but most of it was blacked out at the time, including an entire section on the coup.
On August 15, 1953, the British and US intelligence agencies initiated a coup by the Iranian military (known as 28 Mordad coup), setting off a chain of events including riots in the streets of Iran’s capital, Tehran, that led to the overthrow and arrest of Mosadeq four days later.
Mosadeq, convicted of treason, served three years in prison and died under house arrest in 1967.
The Iranian premier played a key role in the country’s 1951 movement that resulted in the nationalization of Iran’s oil industry, which had been mainly controlled by the British-owned Anglo-Iranian Oil Company (AIOC), now known as BP.
When worldwide sanctions against Iran’s oil industry failed to force Mosadeq to abandon the move, a plan was devised by Britain (codenamed ‘Operation Boot’) and the US (codenamed TPAJAX Project) to overthrow his government.
The coup saw the formation of an absolute US-backed monarchy under Iran’s last Shah, Mohammad Reza Pahlavi, who was overthrown by the 1979 Islamic Revolution.
Late last year, the Central Intelligence Agency explained to Judge Kessler of the US District Court in Washington DC that releasing the final volume of its three-decade-old history of the 1961 Bay of Pigs debacle would “confuse the public,” and should be withheld because it is a “predecisional” document. Wow. And I thought that I had heard them all.
On the 50th anniversary of the Bay of Pigs invasion, the National Security Archive filed a Freedom of Information Act lawsuit for the release of a five-volume CIA history of the Bay of Pigs affair. In response to the lawsuit, the CIA negotiated to release three volumes of the history — the JFK Assassination Records Review Board had already released Volume III– with limited redaction, currently available on the National Security Archive’s website. At the time, the Director of the National Security Archive’s Cuba Documentation project, Peter Kornbluh, quipped that getting historic documents released from the CIA was “the bureaucratic equivalent of passing a kidney stone.” He was right. The Agency refused to release the final volume of this history, and the National Security Archive is not giving up on the fight.
Volume five of the history, written by CIA historian Jack Pfeiffer –who sued the CIA himself to release the history in 1987, and lost– is described by the CIA as an “Internal Investigation document” that “is an uncritical defense of the CIA officers who planned and executed the Bay of Pigs operation… It offers a polemic of recriminations against CIA officers who later criticized the operation and against those U.S. officials who its author, Dr. Pfeiffer, contends were responsible for the failure of that operation.”
While Dr. Pfeiffer’s conclusions may or may not be true, FOIA case law appears to be pretty clear that Americans –who funded the operation and Dr. Pfeiffer’s histories– have the right to read this document and decide for themselves its merits. Despite the claims of the CIA’s chief historian David Robarge, the document should not remain in the CIA vaults because its conclusions “could cause scholars, journalists, and others interested in the subject at hand to reach an erroneous or distorted view of the Agency’s role.” Historians, after all, are well trained in treating documents –especially CIA
hagiographies sources– skeptically.
To prevent the public from reading this volume, the CIA has argued that because it is a draft, it is a predecisional document and can be denied under exemption b(5) of the FOIA. Except –as Davis Sobel, counsel to the National Security Archive points out in our motions– the case law states otherwise.
President Obama instructed every agency (yes, even the CIA) to “usher in a new era of open government” and apply a “presumption of disclosure… to all decisions involving FOIA.” In response to this instruction, the Department of Justice Office of Information Policy –responsible for enforcing FOIA throughout the government– issued its own guidance to agencies (yes, even the CIA), explaining:
“A requested record might be a draft, or a memorandum containing a recommendation. Such records might be properly withheld under Exemption 5, but that should not be the end of the review. Rather, the content of that particular draft and that particular memorandum should be reviewed and a determination made as to whether the agency reasonably foresees that disclosing that particular document, given its age, content, and character, would harm an interest protected by Exemption 5. In making these determinations, agencies should keep in mind that mere “speculative or abstract fears” are not a sufficient basis for withholding. Instead, the agency must reasonably foresee that disclosure would cause harm…
For all records, the age of the document and the sensitivity of its content are universal factors that need to be evaluated in making a decision whether to make a discretionary release.” *
As the D.C. circuit recognized, “the Supreme Court has pointed out that the ‘expectation of the confidentiality of executive communications  has always been limited and subject to erosion over time…”” (Judicial Watch, Inc. v. U.S. Dep’t of Justice (D.C. Cir. 2004.)
Even presidential records are barred from being withheld under “predecisional pretenses” after a period of time. The Presidential Records Act expressly states that exemption b(5) cannot be invoked to withhold records once the president has been out of office twelve years. If the presidential communication and work process is not threatened by this provision, there is no reason that the CIA’s history staff should be.
And there is a good chance that the history is not even a predecisonal document. The burden rests on the CIA to point to the specific decision that the history is “decides” to make it a predecisional document. And so far they have not. Their case rests on the speculative and abstract fear of “discrediting[ing] the work of the CIA History Staff in the eyes of the public or, worse, in the eyes of the Agency officers who rely upon CIA histories.”
Even if parts of the document truly are predecisional, only they can be withheld, the facts leading up to that decision –and histories are (hopefully) based primarily on facts– must be released.
To wit, draft histories have frequently been released under FOIA. In 2010, the Department of Justice released portions of pages of a candid history of Nazi-hunting (and Nazi-protecting) clearly marked DRAFT. (The unredacted version of the report was subsequently leaked– no prosecution by the Obama administration for that one… yet.) Moreover, the CIA previously disclosed Volume IV of this history in draft form (with a disclaimer)! This final volume to the CIA’s history remains one of the few –perhaps the only– government produced product chronicling the doomed invasion which remains classified; the public should be allowed to see its contents.
The National Security Archive’s case is a strong one. I’m confident that Judge Kessler will require a de novo review of the document leading to its eventual release.
On the other hand, the CIA’s “confuse the public” defense appears is as weak as it is insulting.
*It’s certainly not clear why DOJ attorneys would agree to argue this case for the CIA, especially after Eric Holder sent a government-wide memo which promised to defend denials of FOIA requests only when disclosures would truly harm agency interests. What is more clear is the reason why many agencies have failed to implement the Obama FOIA reforms –the Department of Justice has done a poor job implementing them within its own divisions, and the DOJ Office of Information Policy has done a poorer job forcing other agencies to comply with the law.
As the Archive’s counsel David Sobel put it, “This case is yet the latest example of the Obama administration failing to deliver on its promise of ‘unprecedented’ transparency. It’s hard to understand how the release of this document, after all these years, could in any way harm legitimate government interests.””
- Document Friday: Che Guevara Thanks the United States for the Bay of Pigs Invasion. (nsarchive.wordpress.com)
- CIA won’t disclose involvement in OWS crackdowns (rt.com)
- Under Obama, the Freedom of Information Act is Still in Shackles (eff.org)
- FBI Sanctioned for Lying About Existence of Surveillance Records (alethonews.wordpress.com)
- Obama Regime Seeks Permission To Lie In Response To Freedom Of Information Requests – Even To The Courts (alethonews.wordpress.com)
- ACLU Sues U.S. for Information on Targeted Killing Program (newsworldwide.wordpress.com)
- The CIA, Cuba and Operation Peter Pan (alethonews.wordpress.com)