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Chiquita Playing the Victim Card in Latest Legal Battle

By Kevin Edmonds | The Other Side of Paradise | August 22, 2013

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.

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