US Government Shields Anderson

Though we at bhopal.net can’t claim to have encountered it personally, there apparently exists a widely held belief that all stand equal before the law. On March 2nd, US Attorney General John Ashcroft declared the US government to be a guarantor of this equality. “It is the honor, the duty, and responsibility of the United States Department of Justice to ensure that no one stands above the law”, he intoned solemnly, “regardless of power, position, or privilege.” At precisely the same time, a considerably less hypocritical Ashcroft, resident of an altogether more candid parallel dimension, added, “oh yeah, with the exception of anyone named Warren Martin Anderson.”

It’s been a curious month in the long history of pursuing Warren. On 20th July official sources from the government of India announced that the May 2003 extradition request had been turned down on “technical grounds”. A month later the State Minister for External Affairs, E. Ahmed, claimed the request had been rejected because it failed to satisfy some clauses of the India-US extradition treaty. In July official sources said that the CBI would prepare a fresh application. Last week, Mr Ahmed wrote meekly that the Indian government was now doing nothing about the extradition of “the environmental lobby’s most wanted man”. The US Department of Justice, which reportedly chucked out the extradition, has been so busy ensuring that no one stands above the law that it’s made no statement whatsoever about the request, or the terms of its refusal to honour it. Warren bhai, who first ignored an Interpol summons to the Bhopal courts some sixteen years ago is, as ever, as silent as the gas cloud released from the factory that a ‘high standard of evidence’ shows the company he ran was at such pains to control. We examine some of the evidence and speculate on how it can be that the world’s most infamous corporate accused is still getting away with culpable homicide…

A closer look at some of the clauses within the India-US extradition treaty (see the DOC1 here) ought to yield some clues about the reasons for the rejection; what it actually does is deepen the mystery.

TRICK OR TREATY?

Article 1 concerns the obligation of both states to act on the other’s extradition request – “pursuant to the provisions of the treaty”.

Article 2 of the treaty states:

An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty including imprisonment, for a period of more than one year or by a more severe penalty.

No problem there, then. Warren is wanted on charges of culpable homicide (punishable for up to ten years in prison and fine), causing grievous hurt (ten years and fine), causing hurt (three years and/or fine) and causing death and injury to animals (three years and/or fine). The charge of culpable homicide is equivalent to the charge of manslaughter in the US.

The next relevant article is 5. Ah, this could be problematic:

“Extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated.”

However, a quick examination of the government of India’s handling of the case puts any fears beyond stirring. After several summons were ignored, the Bhopal court declared Anderson a ‘proclaimed absconder’ on Feb 9, 1989, about five days – coincidentally, of course – before the infamous out-of-court settlement was hastily agreed and which suspended all criminal charges. Nothing more was able to happen until after the Supreme Court revoked criminal immunity on October 3, 1991. More summons were then tossed straight into the garbage chez Warren, until finally the CJM, Bhopal issued an arrest warrant on April 10, 1992. Eleven interminable years followed before the Indian government summoned the pluck to send an extradition request filling three volumes to the US State and Justice departments – and that only after numerous survivors’ campaigns,
a world-wide hungerstrike
and a severe reproach from a parliamentary committee. The eventual request, delivered without fanfare, would be more accurately described as ‘politically de-motivated’.

Article 6 is even more reassuring:

“Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.”

So it seems that though the US authorities have not deigned to pursue a man acting in clear contempt of the law as agreed in Judge Keenan’s court in 1986 – “Union Carbide shall consent to submit to the jurisdiction of the courts of India, and shall continue to waive defenses based upon the statute of limitations” – and in contempt of the laws of one of the US government’s treaty partners, and living handsomely (see ‘Of death in Bhopal and dinner in Babylon’) under their very noses, it doesn’t stand in the way of the US accepting India’s extradition request.

Article 7 informs us that the request is not time barred. Article 9 begins that all requests must be submitted through the appropriate diplomatic channels, which is fine because we know that the extradition documents arrived at the Washington embassy by diplomatic bag on May 6, 2003. There is then a list of materials that are required to be contained within those three volumes of files that supported the request. We assume that the Ministry of External Affairs remembered to bung in a description of the alleged crime, a copy of the charge sheet, the by-now-yellowed arrest warrant and a post-it note with Warren’s home addresses no doubt gleaned from bhopal.net – maybe even a snap from the same source of Warren washing his car in 2002, just in case the FBI were to confuse him with his gardener. So that’s a done job for Article 9… oh. Clause 3 (c), so innocuous you could almost miss it, says this:

“such information as would justify the committal for trial of the person if the offense had been committed in the Requested State.”

At this point we are left only with conjecture about what exactly was in that diplomatic bag.

WHAT’S IN WARREN’S CLOSET?

But what we do know is that Warren Anderson exercised ultimate managerial control and supervision over the operations of Union Carbide Corporation Ltd (UCC) as its Chief Executive Officer.

We know that he exercised managerial control and supervision over Union Carbide India Ltd (UCIL) through executive intermediaries such as Robert Oldford, Richard Hughes, and James Rehfield. How do we know this?

The factory in Bhopal was a part of UCIL’s Agricultural Products division, and was thus directly affiliated to Carbide’s Agricultural Products Corporation (UCAPC), a wholly owned subsidiary of Carbide in the US. UCIL was dependent on the expertise of UCAPC in critical technical, operational and safety matters relating to the MIC unit and Sevin production. We know this because it was set out in UCIL’s application for a renewal of its foreign collaboration agreement with Union Carbide in mid 1982.

In 1981, Robert Oldford, President of UCAPC, convened and directed the “Bhopal Task Force”, a team of executives that looked in great detail at ways to make the Bhopal factory profitable once it was clear that the bottom had fallen out of the Sevin market. Their first meeting was held in the US, about as far from Bhopal as it’s possible to be (“It was an Indian managed company… “).

Robert Oldford worked closely with Richard Hughes, who had worldwide product line responsibility for Agricultural Products and was an executive vice-president in Danbury, answering directly to Anderson. “Bhopal Task Force” proposals were sent to James Rehfield, another executive vice-president who had management responsibility for Union Carbide Eastern (UCE), a Hong Kong based subsidiary to whom UCIL reported directly. Rehfield was based in Danbury alongside Anderson, but also sat on the board of UCIL.

We know that Anderson was given information directly on all serious safety incidents at any Carbide plant or subsidiary anywhere in the world, and that he was therefore informed about a number of incidents at the Bhopal factory prior to the disaster, one of which involved the death of a worker. We know because a Carbide insider told a UK documentary team in 1985 that this was corporate policy. We can also safely assume that Anderson was additionally aware of problems in Bhopal because Robert Oldford was right there in Bhopal on February 9, 1982, when 25 workers were poisoned with MIC and phosgene after a pump seal failed.

By this time, the “Bhopal Task Force” economy drive was in full swing: the work force was brought down by half from 1980 to 1984. 150 operatives were taken off their jobs and used as floating labour. The work crew for the MIC plant was cut in half from twelve to six workers. The period of safety-training to workers in MIC plant was brought down from 6 months to 15 days. Faulty pipes were replaced with cheaper metal. Malfunctioning gauges and safety valves weren’t replaced. Safety systems were disengaged and weren’t repaired. The refrigeration system was switched off.

In 1981, when the “Bhopal Task Force” was first convened, Carbide’s global profits were in the order of $800 million. By 1984 they had dropped to $79 million. The company had to save money wherever it could. A corporate spokesman in Danbury (speaking to the New York Times, Jan. 27 1985) said Union Carbide has “an ongoing operations improvement program which involves, among other things, a regular review of ways to reduce costs.” He said Union Carbide India was involved in such programs, “but the details of those programs at the Bhopal plant are not known to us.”

Well there was certainly one set of details known, because they were contained in a telex from Bhopal to Danbury dated 10 November, 1984. The “Bhopal Task Force”, as a final resort, was looking to ship the Sevin formulation unit to Indonesia and the phosgene, carbon monoxide and MIC units to Brazil. An engineer in Bhopal, Umesh Nanda, advised that the MIC unit had extensive corrosion damage which could only be repaired at considerable expense.

We know that Anderson was personally aware of and involved in the economy drive of Union Carbide’s “Bhopal Task Force”, and that he knew it to be a cause of the disaster, because he said so. “…what I just mentioned earlier, our speed-up of audits, our intensification of training programs, etcetera, we say that’ll never happen again.”

He was particularly aware of the attempts to break up and sell the factory. “We were looking to see if other manufacturers could utilize or take over our facilities, but we hadn’t gotten very far down the road,” the chairman says. [Source: Clemens Work, Inside story of Union Carbide’s India Nightmare, U S News & World Report, Jan. 21, 1985]

Prior to making the extradition request, the Indian Attorney General of the time, Soli Sorabjee, expressed meek uncertainty over whether the government of India had enough evidence on Anderson. “The evidence should be to the effect that Anderson had knowledge of the design defects in the plant (at Bhopal) and violation of safety precautions. If strict proof is, in fact, a requirement of American law for purposes of determining whether there is probable cause to believe that Anderson was in any way responsible for the disaster, in my view the evidence obtained by the CBI so far would not meet such a high standard of proof.”

That was in 2001. By 2002, the “high standard of proof” had been obtained in discovery documents during proceedings in the US lawsuit that enable us to say with certainty that the Bhopal factory was under-designed with equipment inferior to its sister plant at Institute. We know that it used “unproven technology” from the outset due to Carbide’s need to save $8 million in investment. We know that Carbide had to save that money in order to maintain a majority share in UCIL that ensured it absolute control over the subsidiary’s finances, enabled it to define its operating systems and procedures, set standards and training of personnel and closely monitor the plant’s operation. Those differences in design made disaster a near-certainty.

And we know that Anderson sat on the management committee that authorised the underinvestment.

Thus, Anderson directly approved and ratified the double standards in design, safety and operations by which Union Carbide imposed at UCIL inferior and inherently dangerous conditions than it chose to install at its Institute, West Virginia factory. These differences in design, along with the savage cutbacks overseen by the Bhopal Task Force, are the reasons that on Dec 3, 1984 there was no immediate detection of a problem, when the problem became apparent it couldn’t be found, when it was found it couldn’t be contained and when the gas leaked it couldn’t be neutralised.

WHERE THERE’S A WILL…

Is it too much to expect that India’s premier investigative agency, the Central Bureau of Investigation, included documents containing these facts and an explanation of their supreme relevance to the case within the files handed over with the extradition request?

If we assume that the CBI did just that, what are we to make of the US Justice Department’s refusal to extradite that may have disregarded this ‘strict proof’?

Can we imagine that, if the situation was reversed and an Indian multinational had been connected to the deaths of more than 20,000 US citizens, the existence of such prima facie evidence would not have resulted in the extradition of an Indian CEO to the US for trial?

Before we jump to too many conclusions, let’s see whether the remaining treaty articles yield an alternative explanation for the extradition refusal.

Article 10 outlines the need for a formal authorisation of extradition documents:

“…in the case of a request from the Republic of India, they are certified by the principal diplomatic or principal consular officer of the United States resident in the Republic of India, as provided by the extradition laws of the United States.”

Did the US ambassador to India with the unfortunate surname, Robert Blackwill, simply refuse to sign the request? Or were there some scribbled notes in Hindi on one of the pages that gave the US Justice department the opportunity for a little pettifogging?

“Article 11
All documents submitted by the Requesting State shall be in English.”

What else? The only other article with any bearing at this stage is the penultimate one, number 22:

“Each Contracting State shall, to the extent permitted by its law, afford the other the widest measure of mutual assistance in criminal matters in connection with an offense for which extradition has been requested.”

In 2001 Attorney General Sorabjee complained about “missing evidentiary links” between Anderson and the cause of the Bhopal disaster that would, he believed, result in a refusal to extradite. Then came the discovery papers of 2002 and hence public knowledge of the intent expressed by Union Carbide’s management to install inferior technology in Bhopal to that used at Institute.

It’s possible to find more about how this proposal to sell Bhopal short bore out in reality. Back in 1989, the CBI gained permission to inspect the facilities at Institute in order to compare its safety standards with those at Bhopal. The inspection was due to go ahead in mid-February 1989 – precisely the time when the treacherous out-of-court settlement suspended ongoing criminal proceedings.

Under the terms of Article 22, the US authorities would be obliged to assist the CBI in inspection and discovery of Carbide’s double standards at evidenced at Institute. In any ordinary case, one would expect by now that the CBI would have reapplied, by means of letters rogatory, for this inspection. Instead, Sorabjee offered the opinion that “although it is not impossible to furnish the “missing evidentiary links”, the time and effort would be considerable” and, as Frontline magazine reported, “the CBI told the Bhopal District Court that such a step should be ruled out since it would result in unnecessary delays in the trial.” This is the same trial that’s been making its laggardly, lifeless way through the Bhopal court for thirteen years!

It’s a truism to say that both the Indian and US governments and their prosecuting agencies have demonstrated an entire absence of political will in the matter of pursuing those responsible for the massacre in Bhopal. When we examine the details of this cliché, however, the actions of all concerned look more and more like a conspiracy to pervert the course of justice.

A TALE OF TWO FUGITIVES

We don’t need to look very far to find a contrasting example to illustrate the overwhelmingly political nature of matters of justice. At the same time that Anderson’s extradition refusal was whispered in the press, the CBI announced that Portugal had agreed to extradite Mumbai gangster Abu Salem to India.

The Ministry of External Affairs has been in strenuous pursuit of Salem since he was caught by the Portuguese authorities less than two years ago. It took this long partly because India doesn’t have an extradition treaty with Portugal. Ordinarily, the absence of a formal treaty would be an insurmountable obstacle to effecting an extradition. However, in this case having the US Deputy Secretary of State, Richard Armitage, use his influence “at the highest level” certainly helps move things along quickly.

We didn’t invent that last fact. Astonishingly, the deputy head of the same US department that has taken thirteen months (“Article 13: The Requested State shall promptly notify the Requesting State through the diplomatic channel of its decision on the request for extradition”) to provide an answer to the Anderson request took just two hours to step outside of his mandate and jump into the problem of getting Salem out of Portugal. This is the “widest measure of mutual assistance” envisaged in Article 22, except in this case India isn’t asking the US to extradite anybody. You can read all about it here.

Salem suffers because of a tenuous association with that pernicious abstraction, ‘terrorism’: he’s charged with being involved in the Mumbai bombings of March 1993. If this BBC report is correct, this charge is on considerably less secure ground than the charge that Anderson can be connected to what happened in Bhopal.

But then, after all, Salem had a habit of terrorizing individuals, “regardless of power, position, or privilege”, whereas all Warren ever did was take conscious decisions that directly resulted in the killing of numberless amounts of the very poorest souls.

Of course, the forces behind Bhopal’s monstrous injustice are much wider than the protection of the welfare of one exceedingly rich old man; and for all Attorney General Ashcroft’s high talk, he is as much prey to the same currents. A clue concerning the nature of those forces can be found on pages 5-6 of this briefing document, written by a successful business law firm for its corporate clientele. To quote: “In a development of great concern to multinationals, criminal proceedings were subsequently initiated in Bhopal District Court against Indian officials of UCIL and also against Union Carbide and Warren Anderson, Union Carbide’s chairman at the time of the accident.”

Bhopal is not just about Anderson, then, it’s about precedent, too; a precedent that’s putting the frighteners on multinationals everywhere. Is it too far-fetched to imagine that those self-same multinationals might be putting the frighteners back on those handling this precedent?

And does anyone still believe that “all stand equal before the law”?

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