Home > Bush Executive Order Grants U.S. Oil Firms ’Blanket Immunity
Bush Executive Order Grants U.S. Oil Firms ’Blanket Immunity
by Open-Publishing - Friday 8 August 2003Immunity for Iraqi Oil Dealings Raises Alarm
============================================
Some contend Bush’s order grants U.S. firms a broad
exemption, a view the government rejects.
By Lisa Girion,
Times Staff Writer
L A Times
August 7, 2003
An executive order signed by President Bush more than
two months ago is raising concerns that U.S. oil
companies may have been handed blanket immunity from
lawsuits and criminal prosecution in connection with
the sale of Iraqi oil.
The Bush administration said Wednesday that the
immunity wouldn’t be nearly so broad.
But lawyers for various advocacy organizations said the
two-page executive order seemed to completely shield
oil companies from liability — even if it could be
proved that they had committed human rights violations,
bribed officials or caused great environmental damage
in the course of their Iraqi-related business.
"As written, the executive order appears to cancel the
rule of law for the oil industry or anyone else who
gets possession or control of Iraqi oil or anything of
value related to Iraqi oil," said Tom Devine, legal
director for the Washington-based Government
Accountability Project, a nonprofit group that defends
whistle-blowers.
Taylor Griffin, a Treasury Department spokesman,
dismissed that interpretation, saying the president
issued Executive Order 13303 to protect proceeds from
the sale of Iraqi crude oil, which are supposed to go
into a special fund that the United Nations set up in
May to help rebuild the war-torn country.
"This does not protect the companies’ money," Griffin
said. "It protects the Iraqi people’s money."
For instance, administration officials said, if an
American energy company received a shipment of Iraqi
crude, the money to pay for the oil would be off limits
in any litigation. That way, they explained, the
proceeds would be sure to find their way to where they
belonged: the Development Fund for Iraq.
Administration officials said the intent of the
executive order would become clear once regulations,
now being drafted by the Treasury Department, were
issued. "Rules are forthcoming ... that will deal with
some of these issues in greater specificity," Griffin
said.
But Devine and others said the administration’s stated
intentions were not borne out by the sweeping language
in the executive order.
"Unless they offer a different, credible translation
for plain English, it’s no solace that the
administration meant something different," Devine said.
According to the order, "any attachment, judgment,
decree, lien, execution, garnishment or other judicial
process is prohibited, and shall be deemed null and
void, with respect to the following:
"(a) the Development Fund for Iraq and
"(b) all Iraqi petroleum and petroleum products, and
interests therein, and proceeds, obligations or any
financial instruments of any nature whatsoever arising
from or related to the sale or marketing thereof, and
interests therein, in which any foreign country or a
national thereof has any interest, that are in the
United States, that hereafter come within the United
States, or that are or hereafter come within the
possession or control of United States persons."
The order defines "persons" to include corporations,
and covers "any petroleum, petroleum products or
natural gas originating in Iraq, including any Iraqi-
origin oil inventories, wherever located."
Betsy Apple, an attorney for Earthrights International,
which brings lawsuits on behalf of alleged victims of
human rights abuses abroad, said the scope of the order
goes far beyond the way the Treasury Department has
billed it.
"It’s very disingenuous to suggest that the only thing
that’s being protected here are development funds for
Iraq," she said. "That’s trying to hide the fact that
it’s the oil companies who are doing that work and
generating those proceeds."
Devine of the Government Accountability Project
suggested that the wording of the order was so broad
that it could apply to anything from exploration and
production of Iraqi oil to advertising and sales at
U.S. gas pumps.
"Let’s say I work at a Madison Avenue firm that engages
in false advertising" as part of a campaign to market
gasoline that was made from Iraqi crude, Devine said.
The way the executive order is drawn, it appears that
the ad agency "can lie to consumers as much as they
want ... without any recourse by the Federal Trade
Commission."
Devine added that if an oil company employee working in
Iraq was fired in retaliation for blowing the whistle
on wrongdoing allegedly committed by his employer, the
executive order could make it impossible for him to
collect damages from the company.
Similarly, an operator of an oil tanker that suffered a
major spill while hauling Iraqi crude could be immune
from liability, thanks to the executive order, lawyers
said.
"That oil was shipped out of Iraq and it’s protected,"
Apple said. "The company that failed to ensure it was
using up-to-date tankers is not going to be held
accountable.... There is nothing that anybody can do
for any recourse."
Treasury Department officials said the order would not
protect an oil company under such a scenario.
But Mariano-Florentino Cuellar, an assistant professor
of international and administrative law at Stanford
University, wasn’t so sure.
The executive order is "extremely broad," Cuellar said.
"If they were really trying to narrowly tailor this" to
protect the Development Fund for Iraq, he said, it
would have made more sense to spell out that a company
is shielded from liability "inasmuch as that entity
still owes money" to the fund.
Bush signed Executive Order 13303 on May 22. It then
was published in the Federal Register, where it went
largely unnoticed before being unearthed a few weeks
later by Jim Vallette, a researcher with the nonprofit
Sustainable Energy and Economy Network.
A lawyer for the American Petroleum Institute, the oil
industry’s main trade group, said he wasn’t familiar
with the executive order.
Jamin Raskin, a professor of constitutional law at
American University, said the order appeared to
improperly negate occupational safety laws aimed at
protecting workers in the oil industry and to strip
U.S. citizens of their right to sue.
He cited in particular the part of the order that says
"judicial processes" are "null and void."
That language "seems to destroy the prospect of any
enforcement of civil or criminal liability," Raskin
said. "People are saying of Iraq, ’It’s a jungle out
there,’ and this order kind of makes that the law."
Raskin said Wednesday he was heartened to hear that the
administration was disavowing an expansive reading of
the order. "This does remind me of the extremely broad
language of the executive order with respect to
military tribunals that the administration later
sharply refined by regulation after public protest," he
said. "One can only hope that is what happens here."