March 2000 notes of Chiquita Senior Counsel Robert Thomas indicate awareness that payments were for security services.These materials are reproduced from www.nsarchive.org with the permission of the National Security Archive
Banana Giant's Paramilitary Payoffs Detailed in Trove of Declassified Legal, Financial Documents
Evidence of Quid Pro Quo with Guerrilla, Paramilitary Groups Contradicts 2007 Plea Deal
Colombian Military Officials Encouraged, Facilitated Company's Payments to Death Squads
More than 5,500 Pages of Chiquita Records Published Online by National Security Archive
National Security Archive Electronic Briefing Book No. 340
Posted - April 7, 2011
By Michael Evans
Bogotá, Colombia, April 7, 2011 - Confidential internal memos from Chiquita Brands International reveal that the banana giant benefited from its payments to Colombian paramilitary and guerrilla groups, contradicting the company's 2007 plea agreement with U.S. prosecutors, which claimed that the company had never received "any actual security services or actual security equipment in exchange for the payments." Chiquita had characterized the payments as "extortion."
These documents are among thousands that Chiquita turned over to the U.S. Justice Department as part of a sentencing deal in which the company admitted to years of illegal payments to the paramilitary United Self-Defense Forces of Colombia (AUC)--a State Department-designated foreign terrorist organization--and agreed to pay a $25 million fine. The Archive has obtained more than 5,500 pages of Chiquita's internal documents from the Justice Department under the Freedom of Information Act and is publishing the entire set online today. Key documents from the Chiquita Papers are included in the recently-published document collection, Colombia and the United States: Political Violence, Narcotics, and Human Rights, 1948-2010, now available as part of the Digital National Security Archive from ProQuest.
The documents provide evidence of mutually-beneficial "transactions" between Chiquita's Colombian subsidiaries and several illegal armed groups in Colombia and shed light on more than a decade of security-related payments to guerrillas, paramilitaries, Colombian security forces, and government-sponsored Convivir militia groups. The collection also details the company's efforts to conceal the so-called "sensitive payments" in the expense accounts of company managers and through other accounting tricks. The Justice Department investigation concluded that many of Chiquita's payments to the AUC (also referred to as "Autodefensas" in many of the documents) were made through legal Convivir organizations ostensibly overseen by the Colombian army.
New evidence indicating that Chiquita benefited from the illicit payments may increase the company's exposure to lawsuits representing victims of Colombia's illegal armed groups. The collection is the result of an Archive collaboration with George Washington University Law School's International Human Rights and Public Justice Advocacy Clinics and has been used in support of a civil suit brought against Chiquita led by Earth Rights International on behalf of hundreds of Colombian victims of paramilitary violence.
"These extraordinary records are the most detailed account to date of the true cost of doing business in Colombia," said Michael Evans, director of the National Security Archive's Colombia documentation project. "Chiquita's apparent quid pro quo with guerrillas and paramilitaries responsible for countless killings belies the company's 2007 plea deal with the Justice Department. What we still don't know is why U.S. prosecutors overlooked what appears to be clear evidence that Chiquita benefited from these transactions."
The company's effort to conceal indications that it benefited from the payments is evident in a pair of legal memos from January 1994. The first of these indicates that leftist guerrillas provided security at some of Chiquita's plantations. The general manager of Chiquita operations in Turbó told company attorneys that guerrillas were "used to supply security personnel at the various farms." A handwritten annotation on a subsequent draft of the document asks, "Why is this relevant?" and, "Why is this being written?" Throughout the document, lawyers have crossed out the word "transactions"--suggestive of a quid pro quo arrangement--and replaced it with the more neutral term "payments." Company accountants characterized the expenditures as "guerrilla extortion payments" but recorded them in the books as "citizen security," according to these memos. (Note 1)
Another document shows that Chiquita also paid right-wing paramilitary forces for security services--including intelligence on guerrilla operations--after the AUC wrested control of the region from guerrillas in the mid-1990s. The March 2000 memo, written by Chiquita Senior Counsel Robert Thomas and based on a convesation with managers from Chiquita's wholly-owned subsidiary, Banadex, indicate that Santa Marta-based paramilitaries formed a front company, Inversiones Manglar, to disguise "the real purpose of providing security." (Note 2)
Ostensibly an agricultural export business, Inversiones Manglar actually produced "info on guerrilla movements," according to the memo. Banadex officials told Thomas that "all other banana companies are contributing in Santa Marta" and that Chiquita "should continue making the payments" as they "can't get the same level of support from the military."
The Chiquita Papers also highlight the role of the Colombian military in pressuring the company to finance the AUC through the Convivir groups and in facilitating the illegal payments.
One indication of this is found in another document written by Thomas in September 2000 describing the 1997 meeting where notorious AUC leader Carlos Castaño first suggested to Banadex managers that they support a newly-established Convivir called La Tagua del Darien. According to the memo, the Banadex officials said that they had "no choice but to attend the meeting" as "refusing to meet would antagonize the Colombia military, local and state govenment officials, and Autodefensas." (Note 3)
Among the officials most supportive of the Convivir groups during this time was Álvaro Uribe, then the governor of Antioquia, the hub of Chiquita's operations in Colombia. Thomas' September 2000 memo notes that, "It was well-known at the time that senior officers of the Colombian military and the Governor of the Department of Antioquia were campaigning for the establishment of a Convivir organization in Uraba." A 1995 memo indicates that both Uribe and another politician, Alfonso Nuñez, received substantial donations from another of Chiquita's Colombian subsidiaries, Compañía Frutera de Sevilla. Uribe was president of Colombia from 2002-2010.
Later that year, an August 1997 legal memo written on Chiquita letterhead says that the company was "member[s] of an organization called CONVIVIR Puntepiedra, S.A.," which the author characterizes as "a legal entity in which we participate with other banana exporting companies in the Turbó region." The memo says that the "sole function" of the the Convivir was "to provide information on guerrilla movements."
The company had been making sensitive security payments for years--first in the form of direct payoffs to military officers and guerrilla groups, then through local trade organizations and the Convivir militias. For 1991, some $15,000 worth of "sensitive payments" to various units of the Colombian military are listed alongside a more than $31,000 disbursement to "Guerrilla." A different version of the same document omits the names of the payment recipients but includes a handwritten annotation next to the "Guerrilla" entry that says, "Extortion Payment." Another annotation reads, "Mainly not illegal payments -- these are legal -- pay gasoline, army, police, politicians -- payment doesn't provide anything or benefits." [Emphasis added.]
Accounting records from 1997-1998 also point to the role of Colombian security forces in encouraging the company's illegal paramilitary payments. Beginning in the second quarter of 1997 and continuing through the second quarter of 1998, sensitive payment schedules for Banadex record large payments to "Convivir" as "Donation to citizen reconaissance group made at request of Army." Similar records from 2002 and 2003 list Convivir payments alongside disbursements to "Military and Police Officials" for "Facilitating payments for security services."
Another handwritten document from 1999 reveals an apparent effort by a Colombian Army general to establish himself as an intermediary for the paramilitary payments. The document (transcribed here) describes a "General in the zone for several years" who had been accused of being "with [a] death squad" by the mayor of San José de Apartadó (Note 4) and had been "suspended from the Army." The document notes that the general had "helped us personally" with "Security" and "information that prevented kidnaps." The notes make oblique reference to a $9,000 payment, adding that "Other companies are putting in their..."
"The Chiquita Papers reinforce the idea that, by 1997, the AUC ran the show in the banana-growing regions of northern Colombia, and that local government officials, military officers, and business leaders supported their paramilitary operations," said Evans.
"These troublesome revelations are more than academic," said Professor Arturo Carrillo, Director of GW's International Human Rights Clinic. "They reinforce the claim, advanced in half a dozen federal lawsuits currently pending against Chiquita, that the company was knowingly complicit in, and thus liable for, the atrocities committed by the AUC in Urabá while on the Chiquita payroll. One can only hope that the revealing information obtained and published by the National Security Archive will lead to greater accountability for Chiquita's criminal actions in Colombia, since the company's plea agreement with the Justice Department, which has refused to prosecute Chiquita executives for wrongdoing, amounts to little more than a slap on the corporate wrist."
"The publication of these documents is just the beginning," added Evans. "The thousands of pages of financial and legal records included in this collection are the seeds of future research projects for investigators prepared to deconstruct the complex web of legal, psuedo-legal, and illegal entities involved in Chiquita's security operations, including military officers, guerrillas, paramilitary thugs, prominent businessmen, trade associations, and Convivir militias."
The Chiquita Papers - A Selected Chronology
The following is a chronological list of some of the most interesting documents in the Chiquita Papers as selected by the National Security Archive.
1990 April 19 – First of many Chiquita memos on the subject of “Accounting for Sensitive Payments."
1992 February 21 – Lists “Sensitive Payments” for Chiquita subsidiary Compañía Frutera de Sevilla in 1991, including disbursements to the Naval Station, Operative Command, the Army in Turbó, and the Guerrilla. Purpose for all: “Expedite Turbo operation.” [See annotated version.]
1992 May 8 – Chiquita legal memo on whether support for Colombian military counterinsurgency operations through a "trade association of banana exporters" known as Fundiban is a violation of the Foreign Corrupt Practices Act (FCPA).
1992 February 21 - Some $15,000 worth of "sensitive payments" to various units of the Colombian military are listed alongside a more than $31,000 disbursement to "Guerrilla." A different version of the same document omits the names of the payment recipients but includes a handwritten annotation next to the "Guerrilla" entry that says, "Extortion Payment." Another annotation reads, "Mainly not illegal payments -- these are legal -- pay gasoline, army, police, politicians -- payment doesn't provide anything or benefits." [Emphasis added.]
1992 September 20 – Transcription of voicemail left for Chiquita’s general counsel from contact in Medellín, Colombia.
1993 August 10 – A handwritten note based on discussion with Chiquita in-house counsel notes indicates that company has begun to channel its security payments to the Colombian Army through a "banana association" in Turbó known as "Agura" at a price of three cents per box of bananas shipped.
1994 January 4 – Draft legal memo describes reporting of transactions in Turbó and Santa Marta for “security purposes and payments to the respective trade association.” The outlays are described as "guerrilla extortion payments" made through "our intermediary or Security Consultant, Rene Osorio," who is said to be the company's "contact with the various guerrilla groups in both Divisions." The guerrilla payments are called "citizen security" and are "expensed via the Manager's Expense Account." The author of the memo was told by the General Manager in Turbó "that the Guerrilla Groups are used to supply security personnel at the various farms."
1994 January 5 – Second draft of January 4, 1994, memo includes annotations asking, "Why is this relevant?" and, "Why is this being written?"
1994 June 10 - Memo from Chiquita counsel (Medellín) to Chiquita in-house counsel discusses Colombian legal standards in cases of kidnapping and exotortion; notes that Constitutional Court decision that “when a person acts under one of the justified circumstances” they act in a “State of Necessity” and “cannot be penalized.”
1995 February 20 – Chiquita memo describes payments to Álvaro Uribe ($5935 on Oct. 24, 1994) and Alfonso Nuñez ($2000 on Oct. 30, 1994), both candidates for governor of Antioquia.
1997 February 3 – Memo from local outside counsel (Medellín) to Chiquita in-house counsel discusses application of Colombian law in cases of extortion and finds that “when one acts in a state of necessity, no punishment will be applied.” … “In other words, a person who pays for extortion is a victim, not an accomplice to the crime, and therefore cannot be punished.”
1997 May 7 – Handwritten notes: “Spent approx $575,000 over last 4 years on security payments = Guerrilla payments”; “$222,000 in 1996 -- $21,763 Convivir – Rest guerrillas”; “Budget for 1997 -- $80,000 Guerrillas -- $120,000 Convivir”; “[Deleted] indicates Convivirs legal”; “Not FCPA issue”
…
“Cost of doing business in Colombia – Maybe the question is not why are we doing this but rather we are in Colombia and do we want to ship bananas from Colombia.”
“Need to keep this very confidential – People can get killed.”
1997-1998 - Sensitive payment schedules for Banadex record large payments to "Convivir" as "Donation to citizen reconaissance group made at request of Army."
1997 August ca. – In-house attorney handwritten notes regarding “Convivir”:
“CONVIVIR PUNTE PIEDRA, S.A.”
“(We have our own)”
“Organismo Juridico … Participamos con las otras bananeras. (We were last to participate)”
“We pay [cents]0.03/box. Wk 18/1997 – Wk 17/199[8?]”
“Under military supervision. Proporcionan información and some are armed (but they’re not paramilitary groups?). Radios, motorcycles”
“Legalmente operan en Colombia”
“Negotiate through a lawyer. We are not shareholders. We don’t know who the owners are. Pushed by the gov’t locally and the military.”
1997 August 29 – Memo written Chiquita in-house counsel says, "we currently are members of an organization called CONVIVIR Puntepiedra, S.A., a legal entity in which we participate with other banana exporting companies in the Turbo region. Banadex currently pays $0.03 per box to this CONVIVIR.” Memo also says that the Convivir "operate under military supervision (and have offices at the military bases)" and that "their sole function is to provide information on guerrilla movements."
1997 September 9 – Memo from local outside counsel (Baker & McKenzie) regarding “Payments to guerrilla groups” in response to Chiquita query regarding legal consequences of such payments “in case of extortion or kidnapping.” Baker memo highlights Colombian Constitutional Court challenge to 1993 law that made it a crime for foreign companies to pay extortion/ransom and that “necessity” is a condition under which such payments are permitted. However, the memo also says that “he who obtains personal benefit from a state of necessity … incurs in a criminal action.”
1999 July 6 – In-house counsel notes discuss former Colombian “general” forced out of military for supposed association with “death squads.” Notes indicate that the officer “helped us personally” with “security” and “information that prevented kidnaps.” Notes also say that “Turbo improved while he was there.” Note also refers obliquely to $9,000 payment.
2000 March 6 – Chiquita in-house counsel handwritten notes about front company set up by paramilitaries in Santa Marta to collect security payments from Banadex.
“disguised the real purpose of providing security”
“don’t know who the shareholders are”
“Same people who formed Convivir formed this new company; govt won’t permit another Convivir; too much political pressure re: para-military”
“Don’t know whether the gov’t is aware what this organization does.”
“Military in Santa Marta may know what this company does. Military won’t acknowledge formally that they know what the corporation does.”
“Note: In Turbo we issue a check to Convivir [or/of] another code name and deliver it to a variety of intermediaries for transfer to Convivir.”
“Tagua del Darien is name of cooperative formed as part of Convivir movement.”
“Santa Marta 3[cents]/box; first payment in October 1999. Money for info on guerrilla movements; info not given to gov’t military.”
“Checks made out to Inversiones Manglar SA à Asociacion Para la Paz Del Magdalena.”
“Natural persons w/ no affiliation to military formed Inversions Manglar S.A.”
“[Deleted] says we should continue making the payments; can’t get the same level of support from the military.”
2000 September ca. – Draft memo details initial meetings between paramilitaries and Banadex officials.
2001 May 7 – Outside local counsel (Posse, Herrera & Ruiz) provides legal analysis of Convivir organizations: “We should underline that the legality of payments, is subject to the due observance of the requisites described above. In addition the actual use … of contributed funds should be borne in mind. If funds are used for the conduction of activities that comply with legal requirements, legality of such payments will be preserved. However, if funds are used in connection of activities beyond the scope authorized … including the conductions of activities that are contrary to law, the actual (or even constructive) knowledge of such activities by the contributing party may taint such payments as illegal and even result in criminal prosecution.”
2003 ca. – PowerPoint presentation on options for how to conceal improper payments.
2004 January 28 – Chiquita turns over attorney-client privileged documents to Dept. of Justice. Memo from counsel Kirkland & Ellis describes scope and limitations of the documents provided.
2007 March 13 - The U.S. Department of Justice reaches a plea deal with Chiquita for making payments to the AUC, a designated foreign terrorist organization.
Notes
1. A 1997 legal memo drawn up by Chiquita's U.S. counsel specifically warned that an extortion defense would not apply in situations where the company actually benefited from the payments. Another legal memo from the company's attorneys in Colombia cautioned that payments to ostensibly legal Convivir militias could be considered illegal if there were actual or constructive knowledge that they were connected to illegal activities.
2. Although Thomas' name does not appear in any of these records, his authorship has been confirmend by comparing the documents to the report of the Special Litigation Committee (SLC) established by Chiquita's Board of Directors that issued its final report in 2009.
3. Although the identity of the paramilitary leader who first approached the Banadex officials is not revealed in the redacted document, both the SLC report and the sentencing agreement confirm that it was Castaño who was at the meeting and who personally requested that the company support the La Tagua group.
4. The "Peace Community" of San José de Apartadó is one of several Colombia towns that during this time had taken a neutral position in the country's civil conflict.
