Saturday, September 22, 2012

Covington & Burling: Rogue Lobbyist for Morocco on the Western Sahara

Since 2008, the prestigious Washington law firm of Covington & Burling has moved into the forefront of those U.S. companies colluding in the illegal Moroccan and corporate plunder of the Western Sahara and lobbying American law makers to legitimize Rabat’s illegal occupation of the territory.  While the illegality of the plunder and the occupation is well-established under international law, Covington is, in addition, breaking U.S. law by lobbying for the Office Chérifien des Phosphates (OCP), the fully state-owned Moroccan phosphate company, without registering under the Foreign Agents Registration Act (FARA) as a foreign agent of the Moroccan government. In addition, they are also lobbying on behalf of U.S. energy company Kosmos Energy, which is defying the United Nations by illegally exploring for oil in the Western Sahara. Furthermore, Covington’s success at avoiding Department of Justice (DOJ) scrutiny of their OCP lobbying activities appears suspiciously linked to the lobbyist “revolving door,” with long-time Covington lawyer Eric Holder currently serving as Attorney General and reportedly a “list nine pages long” of former  U.S. government lawyers currently employed by Covington (including eleven who ”used to work in the White House”).
The illegality of natural resource extraction from the Western Sahara has long been recognized under international law. A recent analysis, The Plundering of the Sahara: Corporate Criminal and Civil Liability for the Takingof Natural Resources from Western Sahara by Canadian law professor and barrister J.J.P. Smith is scathing:

The taking of natural resources from Western Sahara given a continuing forcible occupation and the circumstances of a stalled process for self-determination can only be described as theft. The facts support that allegation. The exploitation of the territory’s two primary resources [phosphates and fish] enriches the Moroccan state, the corporations trading with it, and the European Union as a result of the extended 2007 Fisheries Partnership Agreement (and Russia under its 2010 fisheries agreement). It is widely accepted that the benefits do not reach the Saharawi people, most especially those in the refugee camps at Tindouf. The substantial weight of opinio juris, the uniform refusal of states to recognize Morocco’s sovereignty over Western Sahara, and the earlier cases of non-self-governing peoples’ natural resources make out the failure to satisfy both parts of the “Corell test”. This first stream of international law has been clearly violated.

Covington & Burling’s collusion with Morocco in the plunder of Western Saharan resources is related to their client/lobbyist relationships with OCP and U.S.-based Kosmos Energy.  Lobbyist Disclosure Act of 1995 (LDA) filings show that lobbying for OCP began in 2008 with remuneration through 2012 totaling $510,000 ('08-'11, '12) . A 2008 statement by head of Covington’s international practice, former high level U.S. government official StuartEizenstat, indicates that the client relationship, however, goes back much further.  LDA filings for Kosmos began in 2009 and list payments of $1,830,000 ('09-'12) through 2012. Under international law, OCP is illegally extracting and selling Western Saharan phosphates and Kosmos is illegally exploring for oil in the Western Sahara.
According to the their website, OCP “extracts, markets and sells phosphate and its derivatives, phosphoric acid and fertilizers” and is “the world’s largest exporter of phosphate rock and phosphoric acid, and one of the world’s largest fertilizer producers.”  Since 1975 when Morocco invaded the Western Sahara and occupied the portion of the territory where the phosphate mines in Bou Craa are situated, OCP and Rabat have been systematically looting the Sahrawi’s phosphate wealth. The current volume and value of this extraction is estimated at three million tonnes and upwards of a half a billion dollars annually.
Western SaharaResource Watch (WSRW) has been writing since 2008 about Covington & Burling’s collusion with OCP.  In particular, WSRW has investigated a secret “independent opinion,” written by Covington that has “been used by phosphate importing firms to defend their unethical trade.” Despite repeated attempts to get a copy of that opinion, WSRW has reported:  “the opinion has never been released to the public. The law firm consistently refuses to reply to requests from civil society or Saharawis.” An April 2012 paper from one of the U.S. importers, PotashCorp, titled “PhosphateRock from Western Sahara,” gives us, however, a pretty good picture of Covington’s point of view.   Acknowledging that they had “recently received, on a confidential basis” two legal analyses by Covington & Burling and DLA Piper, they tell us that those opinions “concluded that OCP’s operations in the region directly benefit the people of the region and are consistent with international legal obligations.” This conclusion is directly contradicted by any number of reports and analyses that the indigenous Sahrawi benefit little from the phosphate trade, hold few of the phosphate industry  jobs, and have never been consulted on or acquiesced in the exploitation. While it would certainly be enlightening to see a copy of Covington’s opinion, they are obviously basing their conclusion on the condition of the several hundred thousand illegal settlers who have been lured to the territory with subsidies and jobs. The Fourth Geneva Convention specifically prohibits colonizing occupied territories. This is directly akin to concluding that life on the West Bank is lovely, based on the living conditions of the illegal Israeli settlers. WSRW supplies us with a good list of Recommended Reading on all this.
Covington lobbying on behalf of OCP has been hard to trace, specifically because they have chosen to register their work under the LDA, which does not require the registrant to list contacts or activities (see more on this below). All we really learn from the listings is their intention to lobby several governmental agencies and Congress on “Promoting economic integration in the Maghreb and enhanced economic relations between the Maghreb and the United States.”  It does not appear to be a coincidence, however, that two of Covington’s registered OCP lobbyists, Stuart Eizenstat and Marney Cheek, should turn up in 2009 as participants in a thing called the North Africa Policy Paper Project that produced the seriously flawed and thoroughly biased policy paper, Why the Maghreb Matters: Threats, Opportunities, & Options for Effective US Engagement in North Africa. Eizenstat is listed as co-chair (along with I.William Zartman) and Cheek as staff.  In a nutshell, the report identifies resolution of the stalemate over the Western Sahara as the key to unlocking the potential of greater Maghrebian integration and controversially endorses “the [Moroccan] formula of autonomy/sovereignty now before the UN” as “a basis for a viable solution.”  The Moroccan autonomy plan has been widely condemned by international legal scholars – including our foremost self-determination authority, Hurst Hannum - as illegal under international law because it doesn’t provide for an expression of the will of the original inhabitants of the territory.
That Eizenstat, in particular as co-chair of the report, should come out so strongly in support of an illegal proposal that, in effect, legitimizes Morocco’s and client OCP’s resource theft is extremely fishy; the perception created is clearly that the report is nothing more than a Morocco-financed lobbying document. Furthermore, the decision of these two Covington lobbyists not to even mention in the report that they are paid lobbyists for OCP makes it even more damning.
By taking on Kosmos Energy as a lobbying client in 2009, Covington & Burling greatly increased their exposure to Morocco’s plunderous activities and designs.  According to WSRW, “Kosmos Energy got their first foothold in Western Sahara in October 2004, and has remained since. They now hold a 75% interest in a block offshore Boujdour.”  Kosmos’ exploration activities are ongoing, and their website indicates that “Initial exploration drilling could commence in the latter part of 2013.”
In a 2002 Opinion to the Security Council on the legality of exploration, Hans Corell, the UN’s Under-Secretary for Legal Affairs, concluded that, “if further exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self-Governing Territories.” While U.S. oil company Kerr McGee ceased exploration activities in 2006 in the wake of the Corell opinion and a divestment campaign waged against it spearheaded by WSRW, Kosmos has adamantly continued with “further exploration” in blatant “disregard of the interests and wishes” of the indigenous Sahrawi.  
Covington’s $1,830,000 worth of work for Kosmos, according to their LDA registrations, consists of lobbying the Departments of State and Treasury to gain “U.S. government support with respect to the client’s investment abroad.” While Kosmos’ website lists operations in Ghana, Cameroon, Mauritania, and Suriname, in addition to those in Morocco, only the operation in Western Sahara appears sufficiently controversial to warrant such a sizable lobbying expenditure. (Revealingly, in its literature, Kosmos stubbornly insists on including the Western Sahara within Morocco, a sentiment that not one country shares.) And what kind of support does Kosmos need?  In order to profit from their exploration investment, Kosmos first and foremost needs U.S. government recognition of Moroccan sovereignty over the Western Sahara.  As long as the Western Sahara debacle remains unresolved, any attempt by Morocco and Kosmos to exploit oil finds would undoubtedly be met with extreme international condemnation and boycott.  While it is anyone’s guess what Alan P. Larson, Covington’s lead Kosmos lobbyist, is peddling to State and Commerce, I would say it’s a good bet he’s pushing the same stuff as his old government buddy and fellow Covington lobbyist Stuart Eizenstat. Ironically, before moving to Covington, Larson served from 1999 to 2005 as Under Secretary of State for Economic, Business and Agricultural Affairs -inheriting that position from Eizenstat who held it from 1997 to 1999 before HE joined Covington.    
I have long been perplexed by Covington & Burling’s ability to avoid the detailed requirements of registering with the Department of Justice under the Foreign Agents Registration Act (FARA) as a Foreign Agent of Morocco, given their long-term client/lobbying relationship with OCP. They have opted instead to register with the far less “onerous” LDA.  Foreign Lobbying Influence Tracker, a foreign lobbyist watchdog, gives a good concise synopsis of the difference between the two systems:

Lobbyists for foreign clients who register under FARA disclose far more information about what they do to further the interests of their clients than traditional lobbyists, who, under the Lobbyist Disclosure Act of 1995, report to Congress. Under the LDA, lobbyists need only disclose the governmental bodies they contact, and need not specify the number of contacts they have or the dates of those contacts.

FARA is explicit that lobbyists who work for “foreign principals” are required to register as foreign agents and file very detailed reports of their contacts and activities under FARA rules. “Foreign principal” is defined as “a government of a foreign country,” “a foreign political party,” a foreign “person”, or a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.” [my emphasis]  It is a mystery to me how lobbying for OCP, clearly a foreign principal under this definition, does not trigger FARA. It is equally a mystery how Covington & Burling has managed to avoid censure since they are very overtly breaking the law here. Finally, one really has to wonder what it is they are trying to hide, since over the last few years they have apparently had no problem lobbying as Foreign Agents under FARA for the Philippines, Liechtenstein, and Mexico.
What to Do?
In summary, for several years Covington & Burling, through their lobbying for OCP and Kosmos, has been colluding with Rabat to get U.S. government legitimization of Morocco’s plunder and occupation of the Western Sahara. They are up to their necks in very dirty business, which includes advocating in favor of several gross violations of international law regarding occupied and non-self-governing territories, and lobbying illegally under U.S. law for a foreign principal.
On the plunder, a good place to start would be to support the extraordinary work being done by Western Sahara Resource Watch. They have an exemplary record of reporting, research, analysis, and activism involving Morocco’s illegal exploitation of Western Saharan resources. This support is getting ever more critical as Rabat expands their exploitative interests from phosphates, fish, and oil, to include agricultural products, wind/solar energy, and more, and gets closer to commencement of exploration drilling for oil.  And if oil is someday discovered off the Western Sahara, all the gloves will be off.
On the illegal lobbying, the Department of Justice should audit Covington over their avoidance of FARA registration. As I detail above, there is plenty of evidence that shows that they are lobbying for Rabat and thus should be registered as a Foreign Agent under FARA.  When foreign governments are paying for policy, we have the right to know; and it is clear to me that paying for policy is exactly what Morocco is doing, directly through OCP (and indirectly through their proxy Kosmos). One observer – whose main concern is the Israeli lobby – appears to have hit it on the head: “Since the 1960s white shoe law firms such as Covington & Burling…have worked diligently to gut FARA and water down its investigative and enforcement mechanisms.“  Nevertheless, FARA does provide for criminal prosecutions, as well as “civil and administrative resolution of FARA questions.” Bring it on.
Everyone who cares about justice for the Western Sahara should write their members of Congress. The overall success of the Morocco lobby in garnering congressional signatures in support of Morocco’s expansionism is based on the assumption that there is no downside to supporting our good ally Morooco. In addition to the ethical and legal downside discussed above, there is also a huge downside on the ground. Official U.S. recognition of Moroccan sovereignty over the Western Sahara would be a catastrophe, as it could very well precipitate a mass uprising in the region by the hundreds of thousands of Sahrawi who despise the monarchy and desire the self-determination that the UN has promised them for fifty years. Furthermore, any U.S. attempt to resolve the Western Saharan crisis on Morocco’s terms would destroy U.S. and Moroccan relations with Algeria, not to mention dreams of greater Maghrebian integration, for years to come.
Finally, I feel that the time is long overdue to mount a campaign to boycott Moroccan goods and travel to Morocco. WSRW is more than doing its part to attack the plunder by companies and countries of Western Sahara’s resources. Consumers should do their part in countering Morocco. Don’t buy Moroccan clementines. Before you buy argan oil, think of the smashed faces of Sahrawis beaten up by Moroccan security forces. Don’t buy anything “made in Morocco.” And certainly don’t vacation in Morocco or use Royal Air Maroc. Having spent a good chunk of last year in Tunisia, I wholeheartedly endorse your visiting instead that lovely nascent democracy.
On Morocco and the Western Sahara, Covington & Burling is operating as a rogue law firm and must be reined in and forced to come clean.

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