Witness Ties Colombian General to Paramilitaries
By Juan Forero | Washington Post Foreign Service | September 17, 2008
MEDELLIN, Colombia -- Gen. Mario Montoya has for years been a trusted caretaker of the sizable aid package Washington provides Colombia's army, leading helicopter-and-commando teams that eradicated drug crops and helping orchestrate this summer's dramatic rescue of hostage Ingrid Betancourt and three captured U.S. defense contractors from Marxist rebels.
With his cinematic bluster and take-charge nature, he impressed visiting American congressional delegations and military officials as an effective, no-nonsense commander who produced results.
But now, a former paramilitary fighter has said in special judicial proceedings that Montoya, who heads Colombia's army, collaborated with death squads that took control of this city's poor neighborhoods from the guerrillas a few years ago. His testimony, along with that of at least four paramilitary commanders, is illuminating the links between Colombia's potent, U.S.-backed military and its brutal paramilitary proxies.
The allegations, if proved, could be highly damaging for the government of President Álvaro Uribe, a strong ally of the Bush administration who has staunchly supported the general in the face of past allegations. Investigations into the ties between illegal paramilitary groups and the Colombian state have already implicated numerous allies of the president, including dozens of lawmakers and the former head of the secret police.
Videotaped testimony by Luis Adrián Palacio, made during two days of closed-door hearings in August and viewed by The Washington Post, has prompted the attorney general's office in Bogota to open a preliminary criminal investigation of the allegations against Montoya, senior investigative officials said.
In a separate jailhouse interview this month, Palacio recounted an April 2002 episode in which he says Montoya funneled weapons to a potent paramilitary militia commanded in this important northern city by Carlos Mauricio García, better known by his alias, Rodrigo 00.
"Montoya is under investigation," said an official in the attorney general's office in Bogota who is familiar with the case. "He has not been charged, but that is the next step." Another official familiar with the case added that Palacio "has a high degree of credibility."
In an interview, Montoya vigorously denied the allegations and called Palacio "a bandit" who is testifying against him to secure an early release from jail. The general also said that Palacio's specific claim that Montoya personally delivered a vehicle loaded with six assault rifles and a grenade launcher was absurd.
"He is lying; he is lying out of all sides of his mouth," Montoya, accompanied by two aides, said in his office. "I am a fighter. I am a warrior. That is why I have enemies. I defend Colombian democracy."
Palacio's testimony comes after several jailed paramilitary commanders, recounting their crimes as part of a government-supervised disarmament of militias, have implicated 30 military officers and police officials. Taken together, testimony by the former fighters shows how some commanders of an army that has for years received U.S. military hardware and training may have collaborated more closely than previously thought with death squads in the 1990s and the early part of this decade.
The testimony against Montoya, well known in Washington because of his early role in managing the large U.S. military-aid package, is particularly embarrassing as the Uribe administration lobbies the U.S. Congress for a free-trade agreement, a debate closely watched by international human rights organizations.
Colombian officials say Palacio may actually receive additional jail time for testifying against Montoya because, by agreeing to cooperate in special hearings for paramilitary fighters, he also has to admit to killings and other crimes he committed. Already, Uribe's administration has been shaken by the arrest this month of a friend and ally of the president, retired Gen. Rito Alejo del Río, on murder charges. Investigators say del Río built a brutally effective counterinsurgency force with paramilitary militias and often planned joint operations with the top paramilitary leader of the late 1990s and early part of this decade, Carlos Castaño. Del Río denies ties to paramilitary groups.
Until its fighters began a disarmament process in 2003, the paramilitary United Self-Defense Forces of Colombia, or AUC, massacred thousands of villagers, carried out assassinations of political leaders and union members, and funded its operations through cocaine smuggling and support from wealthy Colombians and the Colombian security forces. Despite their brutal tactics, the paramilitaries became an effective proxy force against rebels for a then-ineffective army.
Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate subcommittee that oversees funds to the Colombian army, expressed concern over Palacio's allegations. Leahy is holding up $72 million in funding because of reports that the army has killed hundreds of peasants in recent years and presented the bodies as those of rebels killed in combat. Montoya is considered a leading proponent of compiling combat kills to measure success, a policy that human rights groups and some Colombian officials say fuels the slaying of civilians. Montoya also denies that his policies have led to the deaths of civilians.
"There have been continuing concerns with reports linking General Montoya and troops under his command to paramilitaries," Leahy said in a statement. "These allegations should be thoroughly investigated to assure that the chief of the Colombian Army -- an institution that receives hundreds of millions of dollars in U.S. aid each year -- is of unimpeachable integrity."
In Washington, the Bush administration has seen Montoya as an effective commander, particularly in developing strategies against the largest rebel group, the Revolutionary Armed Forces of Colombia, or FARC. The army, under Montoya's command, has in recent months struck major blows against the FARC, including the July rescue of American and Colombian hostages in a daring operation.
"Our experience with Montoya is a good one," Thomas A. Shannon Jr., assistant secretary of state for Western Hemisphere affairs, said by telephone from Washington. "He is a great field commander. He's done very well with the FARC."
Shannon said U.S. officials were aware of past allegations against Montoya but "found nothing to support them." Shannon said the current accusations are serious and should be investigated.
In interviews, residents of a hillside neighborhood here called Comuna 13 said the army's 4th Brigade, under Montoya's command, teamed up with paramilitary fighters in Operation Orion in October of 2002 to dislodge well-entrenched guerrillas. Though many residents welcomed the operation, reports surfaced later that paramilitary fighters killed guerrilla collaborators and buried their bodies in unmarked graves.
"No paramilitary commander operates alone," said Sister Rosa Cadavid, a Catholic nun in the neighborhood who has publicly denounced Operation Orion. "They operate with the military, and the man in charge then was General Montoya."
The allegations are also contained in a CIA report, disclosed by the Los Angeles Times in 2007, that said Montoya conducted operations with the AUC in Comuna 13. Colombian authorities have said the document was based on unproven intelligence, and Montoya said in the interview that Orion also was directed at paramilitary fighters.
But officials in the attorney general's office said the CIA report is considered important evidence for investigators untangling the role of the military and paramilitary militias in Medellin. Montoya called the CIA report inaccurate.
"It's an issue that has to be cleared up," said one senior Colombian official in the attorney general's office, who, like other investigators interviewed, asked to remain unnamed because the case is still being probed. "In that operation, irregular things happened."
Montoya's trajectory through the army has included intelligence work in the Charry Solano Battalion -- which was implicated in assassinations and bombings in the 1970s and '80s -- to leading Colombian forces in U.S.-funded counter-drug efforts in southern Colombia earlier this decade.
Paramilitarism expanded dramatically in many of the regions of the country where he has been a top commander -- from here in Antioquia state to northeastern Santa Marta, where court documents have shown close links between the state security apparatus and paramilitary commanders. Montoya said he has always battled death squads as vigorously as he fought against guerrillas.
"In this job, you always have people accusing, but never have these accusations had legal repercussions," he said. "People know that by making accusations you can get a lower sentence."
In testimony Aug. 11 and 12 in a Medellin courtroom, Palacio said Montoya was known as "the cousin" for his close relationship with paramilitary units.
In the interview in jail, Palacio explained how he had joined the paramilitary movement in 1998 and was sent by García, the commander known as Rodrigo 00, into the army the following year, enlisting so he could steal weapons, provide intelligence on troop movements and, eventually, form ties with corrupt officers.
By November 2001, Palacio said, he was participating in counter-guerrilla operations with Medellin's Granaderos Battalion, along with paramilitary fighters. Montoya headed Medellin's 4th Brigade from December 2001 to December 2003.
"They collaborated with us, and we collaborated with them," Palacio said. "They came with us, to patrol the neighborhoods."
Palacio was ousted from the army in April 2002 and rejoined the AUC as a foot soldier. In May of 2003, he was arrested on extortion, arms smuggling and other charges and, in 2005, pleaded guilty.
A judge sentenced him to a 14 years in prison, according to court documents.
Palacio could have been released within a year, having won credit for time served and good behavior. But joining the demobilization process, and testifying against Montoya while admitting to more than 20 homicides, could mean two to three additional years in jail, authorities say.
Palacio said he did it to start anew, with no fear that his past crimes would haunt him and lead to charges in the future.
Showing posts with label Colombia. Show all posts
Showing posts with label Colombia. Show all posts
Portfolio : The Banana War
Monday, September 17, 2007
The Banana War
For years, Chiquita Brands secretly paid off death squads in Colombia. Now the U.S. Congress is asking questions, and Chiquita may not be the only U.S. company tangled up in the South American jungle.
by Kevin Gray | October 2007 Issue
The guys holding the guns are in a foul mood. Bad enough that they have to stand out here beneath the fierce Colombian sun—90 degrees and spiking on a July morning—guarding a banana farm. But here comes this foreigner in a taxi with a camera and tape recorder, asking about death squads and massacred workers. Sweaty fingers drum against warm steel.
To talk to strangers in Urabá, an alluvial plain of former jungle thick with bananas and paramilitary hit men, is to ask for trouble. For more than 40 years, a civil conflict has ravaged Colombia, pitting Marxist rebels against the army and its proxy right-wing militias. In the past decade alone, the paramilitary group United Self-Defense Forces of Colombia, or A.U.C., has committed an estimated 62 massacres in the region of Urabá, killing 3,778 people and forcing 60,000 peasants off their land. It’s little wonder that no one wants to open his mouth.
In fact, the whole town is on edge. Two nights earlier, Marxist guerrillas ambushed two police officers at a roadside checkpoint, killing one. Everyone expects the paramilitaries to seek revenge. My driver, a man with friends on the farm, barks a rapid greeting at the guards. They peer into the car, eyeing me with disdain. The driver drops a name and the guards confer, then reluctantly wave us in.
It was here, in northern Colombia’s lush banana-growing region, that Chiquita Brands International, the $655 million fruit giant, slipped into a blood-soaked scandal. Between 1997 and 2004, Chiquita gave $1.7 million to the A.U.C., whose death squads destroyed unions, terrorized workers, and killed thousands of civilians. Chiquita’s top officials admit approving the payments but say they thought that if they didn’t pay up, the A.U.C. would kill its employees and attack its facilities. Because the U.S. State Department has labeled the A.U.C. a terrorist organization, federal prosecutors charged Chiquita in March with engaging in transactions with terrorists. In an agreement with the Justice Department, Chiquita pleaded guilty and will pay a $25 million fine.
But the company’s troubles haven’t ended there. The Justice Department has been investigating the half-dozen executives who approved the payments and is weighing the possibility of charging them as individuals. At press time, Chiquita lawyers expected prosecutors to present their findings to a federal judge by September 17, when the company was to be formally sentenced.
Among those being investigated are former Chiquita chief executive Cyrus Freidheim Jr. (now C.E.O. of Sun-Times Media Group) and former Securities and Exchange Commission chairman Roderick Hills, who served on Chiquita’s board and is married to Carla Hills, who served as the United States trade representative under President George H.W. Bush. (Freidheim and Hills declined to discuss the case.) In addition, Colombia’s attorney general, Mario Iguarán, has vowed to extradite Chiquita officials who authorized the payments to face charges in Colombia. “This was a criminal relationship,” Iguarán has said, that led to “the bloody pacification of Urabá.”
Chiquita also faces three civil suits that have been filed in U.S. courts. Terry Collingsworth, general counsel for the Washington-based International Rights Advocates, has filed the largest, on behalf of the families of 174 A.U.C. victims. Collingsworth, who forced oil giant Unocal into a reported $30 million settlement in a case regarding human-rights abuse in Burma in 2004, says, “I would be delighted to get a punitive-damage award that would put Chiquita out of business.”
Chiquita “categorically denies the allegations” made in the lawsuits, says a spokesman. “We will not allow ourselves to become extortion victims in the United States. We will defend any preposterous suit of this nature vigorously.”
In Colombia, multinational companies’ ties with the A.U.C. are part of an ongoing investigation that is gripping that country as intensely as Watergate did the U.S. The links between Colombia’s political and military elite and the paramilitary group have so far led to the arrest of more than a dozen current and former Colombian congressmen—and now those connections are threatening to bring down the government of President Alvaro Uribe, the United States’ closest ally in South America.
The widening scandal may engulf other U.S. firms doing business in Colombia. Two jailed leaders of the A.U.C. (which agreed to disband last year) have testified in Colombian courts that many multinational corporations operating in Colombia paid them off. Congressman Bill Delahunt, a Democrat from Massachusetts who is leading a House subcommittee investigation, told me he plans to call the Coca-Cola Co., Nestlé, Occidental Petroleum, and Drummond (an Alabama mining outfit), among others, into congressional hearings to explore accusations that they or their business partners also funded the A.U.C. or other groups. “We want to know,” Delahunt says, “if American companies are fueling the violence that has beset Colombia for decades.” All four companies deny they funded paramilitaries. Delahunt says, “If a company did not participate, it’s unfair to let allegations sit out there. But we’ll find out the truth.”
Chiquita’s illicit behavior—outlined in a Justice Department complaint that reads like a corporate spy thriller, packed with shadowy threats, clandestine meetings, and money drops—illuminates the dark side of U.S. business practices in conflict zones. The unfolding revelations point out the central moral dilemma Chiquita faced: Refuse to pay the bad guys and risk having your workers killed and your business sabotaged, or pay up and support the murder of innocent civilians. “You’re putting a company between the devil and the deep blue sea,” says Myles Frechette, the U.S. ambassador to Colombia from 1994 to 1997.
With federal prosecutors closing in, Chiquita came up with a solution to its problems in 2004. It sold its Colombian subsidiary, Banadex (which had been making the A.U.C. payments), to a local outfit called Banacol. But as part of the sale, Chiquita negotiated a contract to buy 11 million 40-pound boxes of bananas a year—the entirety of Chiquita’s former Colombian harvest—from Banacol for eight years. In other words, Chiquita has not given up a single banana from Colombia.
Even though the A.U.C. disbanded in 2006, companies in the region may be no better off. Colombian politicians and human-rights organizations believe that paramilitary splinter groups are still extorting money from area companies—meaning that American consumers may still be helping fund the violence. Banacol denies it is paying protection money to the militias.
Considering all this, it’s hardly surprising that the workers toiling on the banana farm this July morning are tense. To speak openly of the A.U.C. or its ties with Chiquita and Banadex is to find yourself pulled off a bus after work and shot. Each worker I ask about the violence or the paramilitaries falls silent and walks away. All of them know that they are being watched at all times, and the slightest sign of cooperation will draw the attention of informants. The militias are always ready to make an example out of someone: About 48 hours from now, two gunmen in fatigues will order a community leader off a Jeep 20 minutes up the road and kill him on the spot as a warning to others not to oppose the paramilitaries.
Eventually I find myself in a steamy banana grove with three workers, who eye me warily. One man searches for ripe clusters and chops them from their stalks; another carries them to a taut metal cable, from which the third man suspends them. The bananas are then pulled along the cable, which stretches for more than a hundred yards, to a clearing, where they are washed and boxed.
When the other two are far enough away, I ask the man with the machete what he knows about the paramilitaries. He shrugs. I ask if they still control the area. He shrugs again and pokes into the banana leaves to see if the cluster is ripe. I ask why the militias terrorize peasants. He stops, looks around quickly, and then answers, “To show they have power.”
Apartadó is the main town in Urabá, the center of Colombia’s banana industry. With a population of 130,000, it is a dusty, sprawling maze of brick homes, muddy roads, and a few traffic lights. People sip soft drinks in the shade of open-air bodegas and cafés. It gets hot here, 100-plus degrees in summer. And every afternoon around 5, like clockwork, it rains—often in torrents that pour off the awnings of hotels and appliance stores.
Hortensia Castro is the director of El Heraldo de Urabá, a regional newspaper. She is also the editor, sometime reporter, and face of this slim, 12-page biweekly, which most of the banana workers read. On a typical scorching weekday, she sits with the back of her chair propped against the blood-orange walls of her small three-room office, which has its front door open to the noisy street. Trucks and scooters kick up dust as they roar past, just a few feet away.
“Many times,” says Castro, a 60-year-old with skin the color and texture of a sun-dried apricot, “we would be sleeping, and then Urabá would wake up to a massacre. We would run out there with our cameras and do the journalistic work. And we followed that horrible pain of the families of these banana workers. We would go with them to the hospital and wait for them to give the bodies back. And we would go with them to the cemetery. So we were living the tragedy with them. And we were afraid the paras would come back.”
In the early 1990s, Marxist guerrillas had infested this region, which straddles the isthmus between the Caribbean and the Pacific and serves as a drug corridor for high-speed go-boats headed north to the U.S. For decades, the Revolutionary Armed Forces of Colombia, or FARC, and, to a lesser extent, their ideological rivals, the National Liberation Army, known as the E.L.N., had funded their leftist fight against the government by trafficking narcotics, kidnapping wealthy Colombians, and extorting multinational firms. The FARC, among the strongest and richest guerrilla armies in the world, continues to terrorize half the country, battling the wealthy classes and American capitalist interests, they claim, on behalf of Colombia’s poor.
Because the government could not secure this vast and largely rural nation beyond its major cities, rich cattlemen began forming militias for protection. The multinational firms sometimes did the same, but mostly they paid the guerrillas protection money—a vacuna, or vaccination. “The guerrillas had you by the short hairs,” says Ambassador Frechette. “You didn’t have much choice.”
Despite its wholesome image, Chiquita was no stranger to the dark ways of doing business with militants and despots. The company, which began its existence more than 100 years ago, had wielded a heavy hand in Latin American affairs. It bribed dictators, overthrew governments, and in 1928, it allegedly directed the Colombian army to violently put down a labor strike (an episode made infamous in the climax of native son Gabriel García Márquez’s One Hundred Years of Solitude).
In 1982, Chiquita bowed to the Marxists’ escalating violence and left Urabá. But it couldn’t stay away for long; the lands were too lush and rich to ignore. Expecting the soon-to-be-established European Union to relax trade restrictions on countries that had previously been off-limits, the company returned to Colombia in 1989. Of course, that meant paying the FARC and E.L.N.
In 1997, according to the federal complaint, a right-wing paramilitary commander named Carlos Castaño came to Chiquita’s subsidiary Banadex with a business proposal. A ruthless killer, Castaño had just become “supreme leader” of several smaller militias that he was banding together as the A.U.C. for a major military offensive against the Marxists. Castaño said he would assure the safety of Chiquita’s workers and property in exchange for a monthly payment. According to the federal complaint, Castaño sent “an unspoken but clear message that failure to make the payments could result in physical harm to Banadex personnel and property.” But he also held out the promise of a permanent solution, saying that the A.U.C. “was about to drive the FARC out of Urabá.”
The firm’s lawyers have struggled to explain publicly that Chiquita had to make a choice between “life and law” and that it chose the “humanitarian” route of protecting its workers. “This company was in a bad position dealing with bad guys,” says Eric Holder, a Washington attorney representing Chiquita. “There’s absolutely no suggestion of any personal gain here. It’s not a case like Tyco, where someone is squirreling money away. No one is out buying great shower curtains.”
As a corporation, though, Chiquita stood to benefit greatly from the lethal cleansing that Castaño delivered. At the time, the Marxist guerrillas routinely kidnapped U.S. executives, blew up railroads, and sabotaged oil pipelines. Chiquita says it became increasingly difficult to protect its workers and their families. Castaño’s death squads, however, were squarely pro-business. They were not just ridding Urabá of guerrillas; they were killing leftists and eradicating unions.
“The payments Chiquita made to the paramilitaries were part of a project that the A.U.C. called Operation Genesis,” says Gloria Cuartas, who was the mayor of Apartadó from 1995 until 1997, when Castaño threatened her life and drove her out of the area. “It called for the elimination of the left and of all social groups that were supposedly contributing to instability for investors and the multinationals.” Francisco Ramirez, a leading labor lawyer with the United Confederation of Workers, the largest labor union in Colombia, says that money from Chiquita and other companies “created these paramilitary groups and helped destroy the unions.”
The A.U.C.’s wave of terror was swift and brutal. Among the most savage of its many massacres was a 1998 attack on an Urabá village in which paramilitaries murdered 11 peasants after burning them with acid to force them to confess they were guerrillas. The A.U.C. also developed strong ties to politicians and army commanders all over Colombia. (Castaño died under mysterious circumstances in 2004, but the A.U.C. reigned until 2006.)
Ambassador Frechette claims no U.S. company ever told him about any payoffs. If any had, he says, “I would have told them to stop.” Chiquita should have sought help from the U.S., “and then the U.S. government, which gives assistance to Colombia, should have raised hell and said, ‘Get your backsides in gear. Raise enough troops to protect [our interests].’ It would have taken time. In the meantime, the bad guys would have been killing workers. It’s a very cruel choice to make. And Chiquita had financial problems.”
Indeed, the company’s fortunes had begun to spoil. For most of the 1990s, Chiquita was locked in a devastating trade battle with the European Union, which had enacted a restrictive quota system in 1993 that gave preference to Caribbean fruit growers, limiting Chiquita’s access to European customers and cutting the company’s most profitable market in half. The company has said that it spent millions of dollars fighting to reverse the decision. Worse, at the beginning of the decade, believing the E.U. was about to open its doors, not close them, it had reportedly spent $1 billion to expand, buying 14 new refrigerated ships and aggressively enlarging its Latin American land holdings by 32,000 acres.
By the end of the ’90s, Chiquita was headed for Chapter 11 bankruptcy (which it declared in November 2001 and emerged from in March 2002). Urabá, however, had turned into a bright spot on the company’s ledger. During the A.U.C.’s reign of terror, according to the federal complaint, the region would become Chiquita’s most profitable farming operation in the world.
While the A.U.C. was murdering thousands of Colombians, “to our knowledge, the paramilitaries never touched a hair on the head of a U.S. citizen or company,” says Adam Isacson, director of the Colombia program at the Center for International Policy, in Washington. In fact, Isacson says, the A.U.C.’s stranglehold brought “a strange form of peace to the region through terror. It created a much more friendly business environment.”
But for Eric Holder, Chiquita’s lawyer, that argument falls flat. “It’s like saying a shopkeeper feels safe because the Mob is extorting him for protection payments,” Holder says. “You’re not paying these guys to protect you from someone else; you’re paying them to protect you from them.”
Of course, for people like Hortensia Castro, the Heraldo de Urabá director, life was not so comfortable. Ten years ago, when the A.U.C. first arrived, the mountains ringing Apartadó were crawling with guerrillas. The region, which has one of the heaviest rainfalls of any area on earth, served as a protective corridor for the FARC’s drug running and attacks on businesses. As soon as the A.U.C. arrived, everyone was caught in the crossfire. “There were many times I would go to bed,” Castro says, “and fear that I would never wake up again.”
The real trouble for Chiquita began on September 10, 2001. The day before the attacks on New York and Washington, the State Department designated the A.U.C. a foreign terrorist group, making it a felony for any person or company to give it support. Officials at Chiquita, headquartered in Cincinnati, overlooked the news the next day, the company asserts. But the federal complaint notes that the Cincinnati Post ran a story on the terrorist designation a month later. It was also widely reported in Colombia, where Banadex officials would have seen it. Chiquita, however, says it remained unaware of the designation for more than a year.
On January 6, 2003, the Organization of American States released a report that revealed an investigation into an illegal-arms shipment that was smuggled through Banadex’s port and delivered into the hands of the A.U.C.
Six weeks later, according to Chiquita, a company lawyer surfing the Web ran across the A.U.C.’s terrorist designation and alerted the company’s general counsel, Robert Olson, for the first time.
Olson knew a thing or two about handling corporate crises. In 1998, a couple of years after he joined the company, the Cincinnati Enquirer ran an 18-page exposé purporting to reveal a litany of Chiquita’s labor and environmental abuses across Latin America. It later turned out that the Enquirer’s reporter had illegally tapped into Chiquita’s phone system to do his digging and had recorded hundreds of voicemail messages, including Olson’s. The general counsel helped lead the investigation that uncovered the break-ins. The Enquirer was forced to make a front-page apology and pay Chiquita a $14 million settlement.
After Olson heard about the A.U.C.’s terrorist designation, he consulted Laurence Urgenson, the company’s powerful Washington attorney. Urgenson had once headed the Justice Department’s fraud section. His firm, Kirkland & Ellis, specializes in S.E.C. actions, among other areas of law. Urgenson’s assessment was swift. Chiquita, he told the company, was breaking federal law, and it needed to stop. In notes dated the next day, he set a take-no-prisoners tone that he would maintain throughout the ordeal: “Must stop payments.”
Over the next few days, according to the federal complaint and lawyers on both sides, Olson and Roderick Hills argued internally that Chiquita was in an impossible bind: If it stopped paying off the A.U.C., its workers and facilities would be in jeopardy. Would Chiquita be off the hook because some of the payments had been made through a convivir, or security firm? Urgenson’s legal compass did not move. Notes from his discussions, laid out in a February 26, 2003, memo read like one side of a moot court debate: “Bottom Line: CANNOT MAKE THE PAYMENT.” Followed by “Advised NOT TO MAKE ALTERNATIVE PAYMENT through CONVIVIR.” Also added is a line of basic legal logic: “General Rule: Cannot do indirectly what you cannot do directly.”
On April 3, Hills and Olson finally told the full Chiquita board about the company’s payments in Colombia. The board recommended that the two executives go to the Justice Department and confess the wrongdoing, in the hopes that self-disclosure would earn the company leniency. They had good reason to expect such an outcome: In the past, firms that self-reported wrongdoing were often granted deferred prosecution, meaning they’d face no penalties as long as the activity ceased immediately.
In fact, it was Hills himself who, as S.E.C. chairman in the late 1970s, had pioneered this confess-and-be-forgiven model. Over the years, as a board member of several U.S. companies, Hills had played the role of in-house watchdog, helping ferret out malfeasance and eject perpetrators. But, oddly, the very next day, it was Hills—along with Olson and Chiquita C.E.O. Cyrus Freidheim—who appeared to have arrived at a more defiant stance. According to attorney notes cited in the complaint, the three men (who are not named but have been identified by lawyers on both sides) decided, “Just let them sue us.”
Hills was considered a man of impeccable integrity, with vast legal knowledge and friends in high places. A former law-firm colleague, Michael Chertoff, was then head of the criminal division at the Justice Department. (He later became Secretary of Homeland Security.) Hills was convinced Chertoff would understand Chiquita’s plight. On April 24, Hills, Olson, and Urgenson met with Chertoff at Justice headquarters. What happened at that meeting is now the subject of an ongoing federal probe. Hills laid out the problem, saying he knew the A.U.C. payments were illegal but that stopping them could mean death and destruction. In effect, Hills seemed to want Chertoff to give Chiquita absolution.
According to a source familiar with the meeting, Chertoff told Hills that the payments were indeed illegal and could not continue but acknowledged that the issue of continued payments was “complicated.” Hills, the insider says, argued that if Chiquita stopped the payments, it would have to pull out of Colombia, possibly destabilizing the region and putting U.S. security interests at risk. Hills offered to take the issue to the National Security Council or other agencies—a typical course when a prosecution might jeopardize U.S. diplomatic interests. Chertoff said he would do that himself and that Chiquita should await his response. The company maintains that Chertoff never replied. (Chertoff declined to comment for this article.)
“They were looking for clarity and direction from that meeting, and they came away not feeling as though they got it,” says Eric Holder, the Chiquita attorney. “They left there feeling that the department was going to consider what was going on. They waited.”
Hills and Olson went back to Chiquita’s audit committee on April 30 and, prosecutors allege in the federal complaint, reported that there would be “no liability for past conduct” and that there had been no “conclusion on continuing the payments.” A few days later, on May 5, Chiquita crossed its Rubicon, telling Banadex, according to the complaint, “Continue making payments.”
In the next four months, the company funneled $140,866 to the A.U.C. It didn’t hear again from Justice until September 2003, when Urgenson contacted the department seeking clarity. Chertoff had by then left Justice, but another lawyer repeated Chertoff’s earlier position: The payments were illegal and needed to stop. Urgenson wrote to Olson on September 8 that the Justice Department was “unwilling to give assurances or guarantees of non-prosecution; in fact, officials have repeatedly stated that they view the circumstances presented as a technical violation and cannot endorse current or future payments.” Hills later sent an email to other board members, noting, “We appear to [be] committing a felony.”
And still Chiquita continued the payments.
Inside the Justice Department, the apparent show of defiance by Chiquita’s top officials angered several prosecutors and led to tension between the department’s career law-enforcement officers and its political appointees. As early as December 2003, prosecutors wanted to charge Chiquita with offering material support to terrorists and also considered charges against individual executives, including manslaughter. But Justice Department appointees, including David Nahmias, then deputy assistant attorney general for counterterrorism, wanted to go slowly. Nahmias asked prosecutors not to execute search warrants at Chiquita headquarters; then he asked them to delay filing charges until a Chiquita lawyer could meet with top Justice officials. (Nahmias declined to comment for this article.)
By early 2004, according to insiders, Chiquita was trying to put political pressure on Justice. The audit committee had hired a big gun, former attorney general Richard Thornburgh, to represent it. In April, Thornburgh sent a letter directly to Attorney General John Ashcroft outlining the company’s defense, saying that a prosecution could hurt U.S. ties with Colombia.
By that time, Justice prosecutors were considering an indictment. At an earlier meeting with Thornburgh and his associates, a Chiquita lawyer laid out the defense, opining that if the company stopped paying the A.U.C., the firm would have to pull out of Colombia. “Our response was, ‘Well, gee whiz, yeah,’ ” says a former prosecutor who attended the meeting. “ ‘That’s unfortunate, but you know, um, that’s really the way the law operates. You can’t do it.’ The arguments weren’t convincing, and so we said, ‘You know what? We’re going to recommend indictment.’ ”
What troubled prosecutors was that Chiquita, despite claims of being forced to make what it called a humanitarian choice, had simply made a business decision and was now looking to escape the consequences by claiming it made the payments under duress. But in notes dated March 10, 2003, cited in the federal complaint, Urgenson himself dismissed that defense, considering that the behavior occurred over the course of seven years: “You voluntarily put yourself in this position. Duress defense can wear out through repetition. Buz [business] decision to stay in harm’s way.”
The federal complaint does not single out specific executives who approved the deal. Instead, it alleges that the payments were approved by senior executives, including “high-ranking officers, directors, and employees.” Chiquita insiders say the payments were simply a matter of corporate policy. “People were gonna die, so you protected them,” says one former company executive. “This was no secret to anyone in the 1990s.” In fact, Chiquita dutifully reported the A.U.C. payments as “security” to its auditor, Ernst & Young.
By February 2004, Chiquita’s new C.E.O., Fernando Aguirre, had finally stopped the payments. A month later, Chiquita sold Banadex to a holding company called Invesmar for $51.5 million, taking what Chiquita estimates to be a $9 million loss.
Roscoe Howard Jr., who was the U.S. Attorney for the District of Columbia when the Chiquita case came across his desk, says he viewed it as a straightforward murder investigation. “Their basic position was, ‘What do you expect us to do? We couldn’t let our guys die. They were killing us,’ ” says Howard, who is now a partner at the law firm of Troutman Sanders in Washington. “And we said, ‘We understand that. But your money is funding the bullets that kill the next guy. And therein lies the problem. I’ve got dead people.’ They said, ‘But our plant is down there.’ I said, ‘You’ve got no right or privilege to do business in Colombia. I’m sorry. But they grow bananas in other places.’ ”
In fact, Chiquita’s operation in Urabá had long since become a legal and political liability. In 1997, the same year Chiquita made its criminal pact with the A.U.C., Banadex officials gave Colombian customs agents a $30,000 bribe to renew its license for a port facility. Banadex disguised the payments on its books as “maritime donations.” Though Chiquita did not authorize the bribe, the S.E.C. later fined it $100,000 for inadequate accounting controls.
The Banadex port facility, 30 minutes north of Apartadó in the canal-side town of Puerto Zungo, would later play a far more lethal role in the company’s ties to the paramilitaries. On November 8, 2001, two months after the U.S. government designated the A.U.C. a terrorist group, a boat full of Nicaraguan arms arrived at the Banadex loading docks.
The weapons—3,000 AK-47 assault rifles and 2.5 million bullets—were being traded by Nicaraguan police to the Panamanian police. Thanks to an Israeli arms merchant, the arms had been diverted to Puerto Zungo, where a Banadex shipyard supervisor oversaw the loading of munitions onto trucks. The cargo was then delivered to the A.U.C. Colombian police later jailed a Banadex employee but eventually released him, citing insufficient evidence. Iguarán, Colombia’s attorney general, told me he plans to reopen the investigation. After the incident occurred, Chiquita says that it stopped accepting cargo from third parties and has no knowledge of any other gun shipments.
Meanwhile, according to Eduin Guzmán, a former Colombian army sergeant, the same facilities were used to smuggle in guns until as late as 2004. Guzmán, a beefy 40-year-old, says he worked for the A.U.C. for one and a half years and was responsible for transporting up to 200 guns at a time from the same Puerto Zungo storage yard.
Agents at the U.S. Drug Enforcement Administration, which is active in the area, say that banana boats are easy for drug smugglers to use because of lax law enforcement. The nearby port of Turbo, where these boats load and unload offshore in the Gulf of Urabá, offers one of the busiest departure points. Colombian authorities estimate traffickers smuggle up to three tons of cocaine a month through the port—a figure the D.E.A. told me is “a conservative or baseline estimate.” In the past five months alone, authorities have seized nearly a ton of cocaine in six separate busts in Turbo and two other north-coast ports. Two of those busts were on banana boats.
This summer, congressional investigators asked the U.S. attorney general’s office to take a close look at the meeting between Chiquita executives and Michael Chertoff on April 24, 2003. Specifically, they want to know if Justice showed any favoritism toward the company. Why did it wait until four years after that meeting, they ask, to charge Chiquita with a crime?
In Colombia, says Ambassador Frechette, “there is great glee” that Chiquita got caught, and “laughter at the Justice Department and their plea bargaining.” Frechette, whose father was an engineer for United Fruit in Colombia in the 1930s, is “disappointed” by the Justice Department’s deal with Chiquita. “It makes us look like we talk out of both sides of our mouth,” Frechette says. “We lecture and preach to the Colombians about strengthening their legal system: ‘You little brown guys, you’re doing this wrong and that wrong; watch us do it and learn.’ If we really believe in the system we have, let’s take these guys from Chiquita and put them on trial.”
Through its plea deal, Chiquita is required to continue cooperating with the Justice Department’s ongoing investigation. “Anyone operating in that area did very similar things to do business,” says a former Chiquita executive. “It was fairly commonly known that you had to take certain steps to ensure worker safety. You have to wonder if the U.S. government’s diligence is efficient enough to identify other situations. It’s all out there.”
On a rainy Thursday in July, Nelson Ospina’s law office in Apartadó is packed with a half-dozen grim-faced women. They are here, in a room cluttered with cobwebs and religious icons, to join hundreds of other survivors of the A.U.C. violence in a lawsuit against Chiquita. One of Ospina’s clients is Blanca Nubia Bermúdez, a 48-year-old widow. Her story is typical.
“My husband and I opened a small drugstore in the suburbs of Apartadó. Some paramilitaries arrived eight days later. They asked for a weekly payment, saying that they were protecting the neighborhood. They asked for 40,000 pesos [about $19] per week. The man started arriving on Saturdays for the money, and I told him that there wasn’t any, because we were just starting up. He asked me for what was in the cash register, but I told him I needed that to work for the day. One month and five days later, they came into the drugstore and killed my husband. That was February 6, 1999. After that, they wouldn’t let me reopen the drugstore.”
Three lawsuits have been filed against Chiquita in the U.S. on behalf of such victims. But because there are no claims that Chiquita ever directed the A.U.C.’s assaults—it simply funded the militia group—victims like Nubia Bermúdez face a high legal hurdle. Will the firm be found culpable if it too was a victim?
“It’s an interesting question, but it is not only a matter of who committed the crime directly, but legally, who supported the crime,” says Ospina, a thickset man with a bulldog’s face and sad eyes. “It can be said, and we plan to say it in court, that the aid Chiquita gave was the gas that made the fire burn. More than protecting workers, it was protecting its economic interests.”
—Additional reporting by Matthew Bristow and Herman Wong.
For years, Chiquita Brands secretly paid off death squads in Colombia. Now the U.S. Congress is asking questions, and Chiquita may not be the only U.S. company tangled up in the South American jungle.
by Kevin Gray | October 2007 Issue
The guys holding the guns are in a foul mood. Bad enough that they have to stand out here beneath the fierce Colombian sun—90 degrees and spiking on a July morning—guarding a banana farm. But here comes this foreigner in a taxi with a camera and tape recorder, asking about death squads and massacred workers. Sweaty fingers drum against warm steel.
To talk to strangers in Urabá, an alluvial plain of former jungle thick with bananas and paramilitary hit men, is to ask for trouble. For more than 40 years, a civil conflict has ravaged Colombia, pitting Marxist rebels against the army and its proxy right-wing militias. In the past decade alone, the paramilitary group United Self-Defense Forces of Colombia, or A.U.C., has committed an estimated 62 massacres in the region of Urabá, killing 3,778 people and forcing 60,000 peasants off their land. It’s little wonder that no one wants to open his mouth.
In fact, the whole town is on edge. Two nights earlier, Marxist guerrillas ambushed two police officers at a roadside checkpoint, killing one. Everyone expects the paramilitaries to seek revenge. My driver, a man with friends on the farm, barks a rapid greeting at the guards. They peer into the car, eyeing me with disdain. The driver drops a name and the guards confer, then reluctantly wave us in.
It was here, in northern Colombia’s lush banana-growing region, that Chiquita Brands International, the $655 million fruit giant, slipped into a blood-soaked scandal. Between 1997 and 2004, Chiquita gave $1.7 million to the A.U.C., whose death squads destroyed unions, terrorized workers, and killed thousands of civilians. Chiquita’s top officials admit approving the payments but say they thought that if they didn’t pay up, the A.U.C. would kill its employees and attack its facilities. Because the U.S. State Department has labeled the A.U.C. a terrorist organization, federal prosecutors charged Chiquita in March with engaging in transactions with terrorists. In an agreement with the Justice Department, Chiquita pleaded guilty and will pay a $25 million fine.
But the company’s troubles haven’t ended there. The Justice Department has been investigating the half-dozen executives who approved the payments and is weighing the possibility of charging them as individuals. At press time, Chiquita lawyers expected prosecutors to present their findings to a federal judge by September 17, when the company was to be formally sentenced.
Among those being investigated are former Chiquita chief executive Cyrus Freidheim Jr. (now C.E.O. of Sun-Times Media Group) and former Securities and Exchange Commission chairman Roderick Hills, who served on Chiquita’s board and is married to Carla Hills, who served as the United States trade representative under President George H.W. Bush. (Freidheim and Hills declined to discuss the case.) In addition, Colombia’s attorney general, Mario Iguarán, has vowed to extradite Chiquita officials who authorized the payments to face charges in Colombia. “This was a criminal relationship,” Iguarán has said, that led to “the bloody pacification of Urabá.”
Chiquita also faces three civil suits that have been filed in U.S. courts. Terry Collingsworth, general counsel for the Washington-based International Rights Advocates, has filed the largest, on behalf of the families of 174 A.U.C. victims. Collingsworth, who forced oil giant Unocal into a reported $30 million settlement in a case regarding human-rights abuse in Burma in 2004, says, “I would be delighted to get a punitive-damage award that would put Chiquita out of business.”
Chiquita “categorically denies the allegations” made in the lawsuits, says a spokesman. “We will not allow ourselves to become extortion victims in the United States. We will defend any preposterous suit of this nature vigorously.”
In Colombia, multinational companies’ ties with the A.U.C. are part of an ongoing investigation that is gripping that country as intensely as Watergate did the U.S. The links between Colombia’s political and military elite and the paramilitary group have so far led to the arrest of more than a dozen current and former Colombian congressmen—and now those connections are threatening to bring down the government of President Alvaro Uribe, the United States’ closest ally in South America.
The widening scandal may engulf other U.S. firms doing business in Colombia. Two jailed leaders of the A.U.C. (which agreed to disband last year) have testified in Colombian courts that many multinational corporations operating in Colombia paid them off. Congressman Bill Delahunt, a Democrat from Massachusetts who is leading a House subcommittee investigation, told me he plans to call the Coca-Cola Co., Nestlé, Occidental Petroleum, and Drummond (an Alabama mining outfit), among others, into congressional hearings to explore accusations that they or their business partners also funded the A.U.C. or other groups. “We want to know,” Delahunt says, “if American companies are fueling the violence that has beset Colombia for decades.” All four companies deny they funded paramilitaries. Delahunt says, “If a company did not participate, it’s unfair to let allegations sit out there. But we’ll find out the truth.”
Chiquita’s illicit behavior—outlined in a Justice Department complaint that reads like a corporate spy thriller, packed with shadowy threats, clandestine meetings, and money drops—illuminates the dark side of U.S. business practices in conflict zones. The unfolding revelations point out the central moral dilemma Chiquita faced: Refuse to pay the bad guys and risk having your workers killed and your business sabotaged, or pay up and support the murder of innocent civilians. “You’re putting a company between the devil and the deep blue sea,” says Myles Frechette, the U.S. ambassador to Colombia from 1994 to 1997.
With federal prosecutors closing in, Chiquita came up with a solution to its problems in 2004. It sold its Colombian subsidiary, Banadex (which had been making the A.U.C. payments), to a local outfit called Banacol. But as part of the sale, Chiquita negotiated a contract to buy 11 million 40-pound boxes of bananas a year—the entirety of Chiquita’s former Colombian harvest—from Banacol for eight years. In other words, Chiquita has not given up a single banana from Colombia.
Even though the A.U.C. disbanded in 2006, companies in the region may be no better off. Colombian politicians and human-rights organizations believe that paramilitary splinter groups are still extorting money from area companies—meaning that American consumers may still be helping fund the violence. Banacol denies it is paying protection money to the militias.
Considering all this, it’s hardly surprising that the workers toiling on the banana farm this July morning are tense. To speak openly of the A.U.C. or its ties with Chiquita and Banadex is to find yourself pulled off a bus after work and shot. Each worker I ask about the violence or the paramilitaries falls silent and walks away. All of them know that they are being watched at all times, and the slightest sign of cooperation will draw the attention of informants. The militias are always ready to make an example out of someone: About 48 hours from now, two gunmen in fatigues will order a community leader off a Jeep 20 minutes up the road and kill him on the spot as a warning to others not to oppose the paramilitaries.
Eventually I find myself in a steamy banana grove with three workers, who eye me warily. One man searches for ripe clusters and chops them from their stalks; another carries them to a taut metal cable, from which the third man suspends them. The bananas are then pulled along the cable, which stretches for more than a hundred yards, to a clearing, where they are washed and boxed.
When the other two are far enough away, I ask the man with the machete what he knows about the paramilitaries. He shrugs. I ask if they still control the area. He shrugs again and pokes into the banana leaves to see if the cluster is ripe. I ask why the militias terrorize peasants. He stops, looks around quickly, and then answers, “To show they have power.”
Apartadó is the main town in Urabá, the center of Colombia’s banana industry. With a population of 130,000, it is a dusty, sprawling maze of brick homes, muddy roads, and a few traffic lights. People sip soft drinks in the shade of open-air bodegas and cafés. It gets hot here, 100-plus degrees in summer. And every afternoon around 5, like clockwork, it rains—often in torrents that pour off the awnings of hotels and appliance stores.
Hortensia Castro is the director of El Heraldo de Urabá, a regional newspaper. She is also the editor, sometime reporter, and face of this slim, 12-page biweekly, which most of the banana workers read. On a typical scorching weekday, she sits with the back of her chair propped against the blood-orange walls of her small three-room office, which has its front door open to the noisy street. Trucks and scooters kick up dust as they roar past, just a few feet away.
“Many times,” says Castro, a 60-year-old with skin the color and texture of a sun-dried apricot, “we would be sleeping, and then Urabá would wake up to a massacre. We would run out there with our cameras and do the journalistic work. And we followed that horrible pain of the families of these banana workers. We would go with them to the hospital and wait for them to give the bodies back. And we would go with them to the cemetery. So we were living the tragedy with them. And we were afraid the paras would come back.”
In the early 1990s, Marxist guerrillas had infested this region, which straddles the isthmus between the Caribbean and the Pacific and serves as a drug corridor for high-speed go-boats headed north to the U.S. For decades, the Revolutionary Armed Forces of Colombia, or FARC, and, to a lesser extent, their ideological rivals, the National Liberation Army, known as the E.L.N., had funded their leftist fight against the government by trafficking narcotics, kidnapping wealthy Colombians, and extorting multinational firms. The FARC, among the strongest and richest guerrilla armies in the world, continues to terrorize half the country, battling the wealthy classes and American capitalist interests, they claim, on behalf of Colombia’s poor.
Because the government could not secure this vast and largely rural nation beyond its major cities, rich cattlemen began forming militias for protection. The multinational firms sometimes did the same, but mostly they paid the guerrillas protection money—a vacuna, or vaccination. “The guerrillas had you by the short hairs,” says Ambassador Frechette. “You didn’t have much choice.”
Despite its wholesome image, Chiquita was no stranger to the dark ways of doing business with militants and despots. The company, which began its existence more than 100 years ago, had wielded a heavy hand in Latin American affairs. It bribed dictators, overthrew governments, and in 1928, it allegedly directed the Colombian army to violently put down a labor strike (an episode made infamous in the climax of native son Gabriel García Márquez’s One Hundred Years of Solitude).
In 1982, Chiquita bowed to the Marxists’ escalating violence and left Urabá. But it couldn’t stay away for long; the lands were too lush and rich to ignore. Expecting the soon-to-be-established European Union to relax trade restrictions on countries that had previously been off-limits, the company returned to Colombia in 1989. Of course, that meant paying the FARC and E.L.N.
In 1997, according to the federal complaint, a right-wing paramilitary commander named Carlos Castaño came to Chiquita’s subsidiary Banadex with a business proposal. A ruthless killer, Castaño had just become “supreme leader” of several smaller militias that he was banding together as the A.U.C. for a major military offensive against the Marxists. Castaño said he would assure the safety of Chiquita’s workers and property in exchange for a monthly payment. According to the federal complaint, Castaño sent “an unspoken but clear message that failure to make the payments could result in physical harm to Banadex personnel and property.” But he also held out the promise of a permanent solution, saying that the A.U.C. “was about to drive the FARC out of Urabá.”
The firm’s lawyers have struggled to explain publicly that Chiquita had to make a choice between “life and law” and that it chose the “humanitarian” route of protecting its workers. “This company was in a bad position dealing with bad guys,” says Eric Holder, a Washington attorney representing Chiquita. “There’s absolutely no suggestion of any personal gain here. It’s not a case like Tyco, where someone is squirreling money away. No one is out buying great shower curtains.”
As a corporation, though, Chiquita stood to benefit greatly from the lethal cleansing that Castaño delivered. At the time, the Marxist guerrillas routinely kidnapped U.S. executives, blew up railroads, and sabotaged oil pipelines. Chiquita says it became increasingly difficult to protect its workers and their families. Castaño’s death squads, however, were squarely pro-business. They were not just ridding Urabá of guerrillas; they were killing leftists and eradicating unions.
“The payments Chiquita made to the paramilitaries were part of a project that the A.U.C. called Operation Genesis,” says Gloria Cuartas, who was the mayor of Apartadó from 1995 until 1997, when Castaño threatened her life and drove her out of the area. “It called for the elimination of the left and of all social groups that were supposedly contributing to instability for investors and the multinationals.” Francisco Ramirez, a leading labor lawyer with the United Confederation of Workers, the largest labor union in Colombia, says that money from Chiquita and other companies “created these paramilitary groups and helped destroy the unions.”
The A.U.C.’s wave of terror was swift and brutal. Among the most savage of its many massacres was a 1998 attack on an Urabá village in which paramilitaries murdered 11 peasants after burning them with acid to force them to confess they were guerrillas. The A.U.C. also developed strong ties to politicians and army commanders all over Colombia. (Castaño died under mysterious circumstances in 2004, but the A.U.C. reigned until 2006.)
Ambassador Frechette claims no U.S. company ever told him about any payoffs. If any had, he says, “I would have told them to stop.” Chiquita should have sought help from the U.S., “and then the U.S. government, which gives assistance to Colombia, should have raised hell and said, ‘Get your backsides in gear. Raise enough troops to protect [our interests].’ It would have taken time. In the meantime, the bad guys would have been killing workers. It’s a very cruel choice to make. And Chiquita had financial problems.”
Indeed, the company’s fortunes had begun to spoil. For most of the 1990s, Chiquita was locked in a devastating trade battle with the European Union, which had enacted a restrictive quota system in 1993 that gave preference to Caribbean fruit growers, limiting Chiquita’s access to European customers and cutting the company’s most profitable market in half. The company has said that it spent millions of dollars fighting to reverse the decision. Worse, at the beginning of the decade, believing the E.U. was about to open its doors, not close them, it had reportedly spent $1 billion to expand, buying 14 new refrigerated ships and aggressively enlarging its Latin American land holdings by 32,000 acres.
By the end of the ’90s, Chiquita was headed for Chapter 11 bankruptcy (which it declared in November 2001 and emerged from in March 2002). Urabá, however, had turned into a bright spot on the company’s ledger. During the A.U.C.’s reign of terror, according to the federal complaint, the region would become Chiquita’s most profitable farming operation in the world.
While the A.U.C. was murdering thousands of Colombians, “to our knowledge, the paramilitaries never touched a hair on the head of a U.S. citizen or company,” says Adam Isacson, director of the Colombia program at the Center for International Policy, in Washington. In fact, Isacson says, the A.U.C.’s stranglehold brought “a strange form of peace to the region through terror. It created a much more friendly business environment.”
But for Eric Holder, Chiquita’s lawyer, that argument falls flat. “It’s like saying a shopkeeper feels safe because the Mob is extorting him for protection payments,” Holder says. “You’re not paying these guys to protect you from someone else; you’re paying them to protect you from them.”
Of course, for people like Hortensia Castro, the Heraldo de Urabá director, life was not so comfortable. Ten years ago, when the A.U.C. first arrived, the mountains ringing Apartadó were crawling with guerrillas. The region, which has one of the heaviest rainfalls of any area on earth, served as a protective corridor for the FARC’s drug running and attacks on businesses. As soon as the A.U.C. arrived, everyone was caught in the crossfire. “There were many times I would go to bed,” Castro says, “and fear that I would never wake up again.”
The real trouble for Chiquita began on September 10, 2001. The day before the attacks on New York and Washington, the State Department designated the A.U.C. a foreign terrorist group, making it a felony for any person or company to give it support. Officials at Chiquita, headquartered in Cincinnati, overlooked the news the next day, the company asserts. But the federal complaint notes that the Cincinnati Post ran a story on the terrorist designation a month later. It was also widely reported in Colombia, where Banadex officials would have seen it. Chiquita, however, says it remained unaware of the designation for more than a year.
On January 6, 2003, the Organization of American States released a report that revealed an investigation into an illegal-arms shipment that was smuggled through Banadex’s port and delivered into the hands of the A.U.C.
Six weeks later, according to Chiquita, a company lawyer surfing the Web ran across the A.U.C.’s terrorist designation and alerted the company’s general counsel, Robert Olson, for the first time.
Olson knew a thing or two about handling corporate crises. In 1998, a couple of years after he joined the company, the Cincinnati Enquirer ran an 18-page exposé purporting to reveal a litany of Chiquita’s labor and environmental abuses across Latin America. It later turned out that the Enquirer’s reporter had illegally tapped into Chiquita’s phone system to do his digging and had recorded hundreds of voicemail messages, including Olson’s. The general counsel helped lead the investigation that uncovered the break-ins. The Enquirer was forced to make a front-page apology and pay Chiquita a $14 million settlement.
After Olson heard about the A.U.C.’s terrorist designation, he consulted Laurence Urgenson, the company’s powerful Washington attorney. Urgenson had once headed the Justice Department’s fraud section. His firm, Kirkland & Ellis, specializes in S.E.C. actions, among other areas of law. Urgenson’s assessment was swift. Chiquita, he told the company, was breaking federal law, and it needed to stop. In notes dated the next day, he set a take-no-prisoners tone that he would maintain throughout the ordeal: “Must stop payments.”
Over the next few days, according to the federal complaint and lawyers on both sides, Olson and Roderick Hills argued internally that Chiquita was in an impossible bind: If it stopped paying off the A.U.C., its workers and facilities would be in jeopardy. Would Chiquita be off the hook because some of the payments had been made through a convivir, or security firm? Urgenson’s legal compass did not move. Notes from his discussions, laid out in a February 26, 2003, memo read like one side of a moot court debate: “Bottom Line: CANNOT MAKE THE PAYMENT.” Followed by “Advised NOT TO MAKE ALTERNATIVE PAYMENT through CONVIVIR.” Also added is a line of basic legal logic: “General Rule: Cannot do indirectly what you cannot do directly.”
On April 3, Hills and Olson finally told the full Chiquita board about the company’s payments in Colombia. The board recommended that the two executives go to the Justice Department and confess the wrongdoing, in the hopes that self-disclosure would earn the company leniency. They had good reason to expect such an outcome: In the past, firms that self-reported wrongdoing were often granted deferred prosecution, meaning they’d face no penalties as long as the activity ceased immediately.
In fact, it was Hills himself who, as S.E.C. chairman in the late 1970s, had pioneered this confess-and-be-forgiven model. Over the years, as a board member of several U.S. companies, Hills had played the role of in-house watchdog, helping ferret out malfeasance and eject perpetrators. But, oddly, the very next day, it was Hills—along with Olson and Chiquita C.E.O. Cyrus Freidheim—who appeared to have arrived at a more defiant stance. According to attorney notes cited in the complaint, the three men (who are not named but have been identified by lawyers on both sides) decided, “Just let them sue us.”
Hills was considered a man of impeccable integrity, with vast legal knowledge and friends in high places. A former law-firm colleague, Michael Chertoff, was then head of the criminal division at the Justice Department. (He later became Secretary of Homeland Security.) Hills was convinced Chertoff would understand Chiquita’s plight. On April 24, Hills, Olson, and Urgenson met with Chertoff at Justice headquarters. What happened at that meeting is now the subject of an ongoing federal probe. Hills laid out the problem, saying he knew the A.U.C. payments were illegal but that stopping them could mean death and destruction. In effect, Hills seemed to want Chertoff to give Chiquita absolution.
According to a source familiar with the meeting, Chertoff told Hills that the payments were indeed illegal and could not continue but acknowledged that the issue of continued payments was “complicated.” Hills, the insider says, argued that if Chiquita stopped the payments, it would have to pull out of Colombia, possibly destabilizing the region and putting U.S. security interests at risk. Hills offered to take the issue to the National Security Council or other agencies—a typical course when a prosecution might jeopardize U.S. diplomatic interests. Chertoff said he would do that himself and that Chiquita should await his response. The company maintains that Chertoff never replied. (Chertoff declined to comment for this article.)
“They were looking for clarity and direction from that meeting, and they came away not feeling as though they got it,” says Eric Holder, the Chiquita attorney. “They left there feeling that the department was going to consider what was going on. They waited.”
Hills and Olson went back to Chiquita’s audit committee on April 30 and, prosecutors allege in the federal complaint, reported that there would be “no liability for past conduct” and that there had been no “conclusion on continuing the payments.” A few days later, on May 5, Chiquita crossed its Rubicon, telling Banadex, according to the complaint, “Continue making payments.”
In the next four months, the company funneled $140,866 to the A.U.C. It didn’t hear again from Justice until September 2003, when Urgenson contacted the department seeking clarity. Chertoff had by then left Justice, but another lawyer repeated Chertoff’s earlier position: The payments were illegal and needed to stop. Urgenson wrote to Olson on September 8 that the Justice Department was “unwilling to give assurances or guarantees of non-prosecution; in fact, officials have repeatedly stated that they view the circumstances presented as a technical violation and cannot endorse current or future payments.” Hills later sent an email to other board members, noting, “We appear to [be] committing a felony.”
And still Chiquita continued the payments.
Inside the Justice Department, the apparent show of defiance by Chiquita’s top officials angered several prosecutors and led to tension between the department’s career law-enforcement officers and its political appointees. As early as December 2003, prosecutors wanted to charge Chiquita with offering material support to terrorists and also considered charges against individual executives, including manslaughter. But Justice Department appointees, including David Nahmias, then deputy assistant attorney general for counterterrorism, wanted to go slowly. Nahmias asked prosecutors not to execute search warrants at Chiquita headquarters; then he asked them to delay filing charges until a Chiquita lawyer could meet with top Justice officials. (Nahmias declined to comment for this article.)
By early 2004, according to insiders, Chiquita was trying to put political pressure on Justice. The audit committee had hired a big gun, former attorney general Richard Thornburgh, to represent it. In April, Thornburgh sent a letter directly to Attorney General John Ashcroft outlining the company’s defense, saying that a prosecution could hurt U.S. ties with Colombia.
By that time, Justice prosecutors were considering an indictment. At an earlier meeting with Thornburgh and his associates, a Chiquita lawyer laid out the defense, opining that if the company stopped paying the A.U.C., the firm would have to pull out of Colombia. “Our response was, ‘Well, gee whiz, yeah,’ ” says a former prosecutor who attended the meeting. “ ‘That’s unfortunate, but you know, um, that’s really the way the law operates. You can’t do it.’ The arguments weren’t convincing, and so we said, ‘You know what? We’re going to recommend indictment.’ ”
What troubled prosecutors was that Chiquita, despite claims of being forced to make what it called a humanitarian choice, had simply made a business decision and was now looking to escape the consequences by claiming it made the payments under duress. But in notes dated March 10, 2003, cited in the federal complaint, Urgenson himself dismissed that defense, considering that the behavior occurred over the course of seven years: “You voluntarily put yourself in this position. Duress defense can wear out through repetition. Buz [business] decision to stay in harm’s way.”
The federal complaint does not single out specific executives who approved the deal. Instead, it alleges that the payments were approved by senior executives, including “high-ranking officers, directors, and employees.” Chiquita insiders say the payments were simply a matter of corporate policy. “People were gonna die, so you protected them,” says one former company executive. “This was no secret to anyone in the 1990s.” In fact, Chiquita dutifully reported the A.U.C. payments as “security” to its auditor, Ernst & Young.
By February 2004, Chiquita’s new C.E.O., Fernando Aguirre, had finally stopped the payments. A month later, Chiquita sold Banadex to a holding company called Invesmar for $51.5 million, taking what Chiquita estimates to be a $9 million loss.
Roscoe Howard Jr., who was the U.S. Attorney for the District of Columbia when the Chiquita case came across his desk, says he viewed it as a straightforward murder investigation. “Their basic position was, ‘What do you expect us to do? We couldn’t let our guys die. They were killing us,’ ” says Howard, who is now a partner at the law firm of Troutman Sanders in Washington. “And we said, ‘We understand that. But your money is funding the bullets that kill the next guy. And therein lies the problem. I’ve got dead people.’ They said, ‘But our plant is down there.’ I said, ‘You’ve got no right or privilege to do business in Colombia. I’m sorry. But they grow bananas in other places.’ ”
In fact, Chiquita’s operation in Urabá had long since become a legal and political liability. In 1997, the same year Chiquita made its criminal pact with the A.U.C., Banadex officials gave Colombian customs agents a $30,000 bribe to renew its license for a port facility. Banadex disguised the payments on its books as “maritime donations.” Though Chiquita did not authorize the bribe, the S.E.C. later fined it $100,000 for inadequate accounting controls.
The Banadex port facility, 30 minutes north of Apartadó in the canal-side town of Puerto Zungo, would later play a far more lethal role in the company’s ties to the paramilitaries. On November 8, 2001, two months after the U.S. government designated the A.U.C. a terrorist group, a boat full of Nicaraguan arms arrived at the Banadex loading docks.
The weapons—3,000 AK-47 assault rifles and 2.5 million bullets—were being traded by Nicaraguan police to the Panamanian police. Thanks to an Israeli arms merchant, the arms had been diverted to Puerto Zungo, where a Banadex shipyard supervisor oversaw the loading of munitions onto trucks. The cargo was then delivered to the A.U.C. Colombian police later jailed a Banadex employee but eventually released him, citing insufficient evidence. Iguarán, Colombia’s attorney general, told me he plans to reopen the investigation. After the incident occurred, Chiquita says that it stopped accepting cargo from third parties and has no knowledge of any other gun shipments.
Meanwhile, according to Eduin Guzmán, a former Colombian army sergeant, the same facilities were used to smuggle in guns until as late as 2004. Guzmán, a beefy 40-year-old, says he worked for the A.U.C. for one and a half years and was responsible for transporting up to 200 guns at a time from the same Puerto Zungo storage yard.
Agents at the U.S. Drug Enforcement Administration, which is active in the area, say that banana boats are easy for drug smugglers to use because of lax law enforcement. The nearby port of Turbo, where these boats load and unload offshore in the Gulf of Urabá, offers one of the busiest departure points. Colombian authorities estimate traffickers smuggle up to three tons of cocaine a month through the port—a figure the D.E.A. told me is “a conservative or baseline estimate.” In the past five months alone, authorities have seized nearly a ton of cocaine in six separate busts in Turbo and two other north-coast ports. Two of those busts were on banana boats.
This summer, congressional investigators asked the U.S. attorney general’s office to take a close look at the meeting between Chiquita executives and Michael Chertoff on April 24, 2003. Specifically, they want to know if Justice showed any favoritism toward the company. Why did it wait until four years after that meeting, they ask, to charge Chiquita with a crime?
In Colombia, says Ambassador Frechette, “there is great glee” that Chiquita got caught, and “laughter at the Justice Department and their plea bargaining.” Frechette, whose father was an engineer for United Fruit in Colombia in the 1930s, is “disappointed” by the Justice Department’s deal with Chiquita. “It makes us look like we talk out of both sides of our mouth,” Frechette says. “We lecture and preach to the Colombians about strengthening their legal system: ‘You little brown guys, you’re doing this wrong and that wrong; watch us do it and learn.’ If we really believe in the system we have, let’s take these guys from Chiquita and put them on trial.”
Through its plea deal, Chiquita is required to continue cooperating with the Justice Department’s ongoing investigation. “Anyone operating in that area did very similar things to do business,” says a former Chiquita executive. “It was fairly commonly known that you had to take certain steps to ensure worker safety. You have to wonder if the U.S. government’s diligence is efficient enough to identify other situations. It’s all out there.”
On a rainy Thursday in July, Nelson Ospina’s law office in Apartadó is packed with a half-dozen grim-faced women. They are here, in a room cluttered with cobwebs and religious icons, to join hundreds of other survivors of the A.U.C. violence in a lawsuit against Chiquita. One of Ospina’s clients is Blanca Nubia Bermúdez, a 48-year-old widow. Her story is typical.
“My husband and I opened a small drugstore in the suburbs of Apartadó. Some paramilitaries arrived eight days later. They asked for a weekly payment, saying that they were protecting the neighborhood. They asked for 40,000 pesos [about $19] per week. The man started arriving on Saturdays for the money, and I told him that there wasn’t any, because we were just starting up. He asked me for what was in the cash register, but I told him I needed that to work for the day. One month and five days later, they came into the drugstore and killed my husband. That was February 6, 1999. After that, they wouldn’t let me reopen the drugstore.”
Three lawsuits have been filed against Chiquita in the U.S. on behalf of such victims. But because there are no claims that Chiquita ever directed the A.U.C.’s assaults—it simply funded the militia group—victims like Nubia Bermúdez face a high legal hurdle. Will the firm be found culpable if it too was a victim?
“It’s an interesting question, but it is not only a matter of who committed the crime directly, but legally, who supported the crime,” says Ospina, a thickset man with a bulldog’s face and sad eyes. “It can be said, and we plan to say it in court, that the aid Chiquita gave was the gas that made the fire burn. More than protecting workers, it was protecting its economic interests.”
—Additional reporting by Matthew Bristow and Herman Wong.
BBC : US banana firm must pay $25m fine
Monday, September 17, 2007
US banana firm must pay $25m fine
September 17, 2007
A US judge has confirmed a $25m (£12.5m) fine on banana company Chiquita for having given protection money to Colombian paramilitary groups.
In March, Chiquita pleaded guilty to paying $1.7m (£850,000) to the United Self Defence Forces of Colombia (AUC).
The firm said its only motive was the safety of its Colombian workers.
It agreed to pay the $25m to resolve an inquiry by the US justice department, a settlement that Judge Royce Lamberth has now authorised.
Prosecutors had said Chiquita Brands International paid the money between 1997 and 2004 to the AUC in return for "protection".
The AUC, which is listed by the US and EU as a terrorist organisation, has carried out massacres and assassinations, although it is now engaged in a peace process in Colombia
Prosecutors said Chiquita also made payments to Colombia's main left-wing rebel group, the Revolutionary Armed Forces of Colombia (Farc).
The company's former Colombian subsidiary operated in areas where there was a strong presence of both armed groups.
Chiquita, which has its headquarters in Cincinnati, Ohio, said in March that it would pay the $25m fine as part of a settlement with the department of justice.
A three-year inquiry by US investigators began after Chiquita approached the department in 2003 to say its branch in Colombia had been making the payments after workers were threatened.
Chiquita has since sold the Colombian arm of its business.
Thousands of Colombians have died in four decades of conflict involving the Farc, the AUC and other armed groups.
September 17, 2007
A US judge has confirmed a $25m (£12.5m) fine on banana company Chiquita for having given protection money to Colombian paramilitary groups.
In March, Chiquita pleaded guilty to paying $1.7m (£850,000) to the United Self Defence Forces of Colombia (AUC).
The firm said its only motive was the safety of its Colombian workers.
It agreed to pay the $25m to resolve an inquiry by the US justice department, a settlement that Judge Royce Lamberth has now authorised.
Prosecutors had said Chiquita Brands International paid the money between 1997 and 2004 to the AUC in return for "protection".
The AUC, which is listed by the US and EU as a terrorist organisation, has carried out massacres and assassinations, although it is now engaged in a peace process in Colombia
Prosecutors said Chiquita also made payments to Colombia's main left-wing rebel group, the Revolutionary Armed Forces of Colombia (Farc).
The company's former Colombian subsidiary operated in areas where there was a strong presence of both armed groups.
Chiquita, which has its headquarters in Cincinnati, Ohio, said in March that it would pay the $25m fine as part of a settlement with the department of justice.
A three-year inquiry by US investigators began after Chiquita approached the department in 2003 to say its branch in Colombia had been making the payments after workers were threatened.
Chiquita has since sold the Colombian arm of its business.
Thousands of Colombians have died in four decades of conflict involving the Farc, the AUC and other armed groups.
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