The Girl From Kathmandu

by Cam Simpson

  Perhaps even more conveniently for KBR, Daoud was a ghost. The plaintiffs’ lawyers had hunted from Switzerland to Amman, Jordan, hiring attorneys around the world, and still had not been able to serve their lawsuit against the KBR contractor. Perhaps it was even more of a fly-by-night company than anyone had imagined.

  Handley began his opening remarks by reminding the judge that the human rights lawyers actually had very little they needed to do in order to keep their case alive in court that day. Even if there were two plausible interpretations of the facts presented in the lawsuit, the plaintiffs’ interpretation and KBR’s interpretation, the judge was compelled by law at this point to stick to the plaintiffs’ side, Handley asserted, quoting an opinion from U.S. Supreme Court justice David Souter: “Plaintiffs merely have to nudge the claim across the line from something that’s conceivable to something that’s plausible.” Handley then turned to the strongest evidence of plausibility on the weakest part of his case: that KBR was culpably involved. He cited much of the evidence, also cited in the lawsuit, that KBR knew, or reasonably should have known, what was going on behind the invisible army of tens of thousands of workers fundamental to keeping the war running under its contract with the U.S. military, the biggest in the Iraq War. These included press accounts in the New York Times and the Washington Post, among others, alleging coercion and deception (even regarding Daoud forcing men to Fallujah) that had been brought to the attention of KBR executives at the time. In addition, Handley said that the lawyers had continued their investigation since originally filing the case and could file an amended complaint before Ellison that offered more specificity. “We learned that it was the practice at Al Asad Air Force Base, which is where these men were to be taken, for KBR employees to threaten to expel third-country nationals from the protection of the base if they complained about their conditions of assignment or their work conditions,” he said. He added that KBR officials themselves met the Nepalis at the Jordanian-Iraqi border on August 19, 2004, “and that those men were wearing KBR badges, and that KBR badges were then given to the deceased workers and to Mr. Gurung at that time.”

  Handley wove Buddi Gurung into these arguments, noting that the lawsuit specifically alleged that after his car got through that day Gurung was supervised by KBR employees—who told him that he could not leave the war zone until his work was completed. “And I believe one of your questions, Your Honor, was—that you had sent—was ‘Did Mr. Gurung attempt to leave or request that his passport be given back to him when he arrived in Iraq,’” Handley said. In fact, the lawsuit clearly stated that Gurung and the other men had their passports taken from them. And then, not intimating any of the stress Ellison’s e-mail had induced the night before, Handley added, “And I was able to confirm last night through our liaison in Nepal, who was able to contact our client Mr. Gurung, who lives in a very remote village outside—”

  “I hate to put you through all that,” Ellison interjected. “I’m sorry.”

  “No, no,” Handley said, “It was, it was actually—normally it’s actually quite difficult, but this time he was able to reach him quite quickly.” Handley then said, “Yes, he did request the passport several times, wanting to leave, but was told on each of those times that he requested that, ‘No, he could not have it,’ and must continue to work until the contract was complete.” Handley concluded by making clear that they could amend the suit to make it friendlier to the standards of Texas, but he believed it was already sufficient.

  By the time the hearing was over, it had taken nearly two hours, which was twice as long as the human rights lawyers had anticipated. Even so, they had barely touched on the bevy of procedural arguments KBR’s lawyers had lodged, ranging from their contention that the U.S. anti–human trafficking laws did not apply to KBR’s conduct overseas in 2004 to a shameless argument over the statute of limitations. In essence, KBR’s lawyers had said that the clock on the four-year deadline to file a lawsuit started running when the men were kidnapped, on or about August 19, 2004, not when they were executed about two weeks later. According to KBR’s clock, the Cohen Milstein lawyers had missed the deadline by a matter of days. The fast-talking Fryszman had addressed some of these arguments, but earned an instant admonition from Judge Ellison. “Slow it down a little bit. Slow down a little bit,” he said, less than one minute into her presentation. As she commenced to rattle off the citations in the U.S. code that applied to her case, Ellison interrupted again. “Section numbers are especially hard for the court reporters,” he said. He similarly had asked Rivkin to slow down, urging the lawyers to have some sympathy for the court stenographer. What Ellison had not told them was that, nearly three decades earlier, a surgical procedure had left him completely deaf in one ear.

  As he drew the hearing to a close, Ellison then took the unusual step of descending from the bench to shake the hand of each lawyer on both sides, offering each a personalized version of “Thank you very much.”

  The trio from Cohen Milstein left the courthouse, their luggage already in hand, and got in a cab headed to the airport. There was a collective sense of relief among them that Judge Ellison had not been completely hostile to their lawsuit, but they had no idea what he ultimately might do. At one point, Ellison had made it abundantly clear that he was concerned about how the conservative Fifth U.S. Circuit Court of Appeals would scrutinize his first big decision in the case on KBR’s motion to dismiss, a statement he made with the full expectation that the losing side might appeal each major ruling at every step of the case. “I’m directly answerable to the Fifth Circuit, so their concerns have to be my concerns,” he had told Handley. Then, moments later, Ellison had added, “I don’t know how I’m going to rule. I don’t know.”

  12

  2009

  Houston

  Keith P. Ellison was born April 29, 1950, in New Orleans, Louisiana, to churchgoing parents, a prosperous Southern businessman and a mother who had ventured abroad as a foreign correspondent long before such postings at big-city newspapers were open to women. Despite his hometown’s world-famous fusion of ethnic diversity and progressive vibrancy—Tennessee Williams said New Orleans held “the last frontier of Bohemia”—racial conflict lit by white opposition to desegregation seared Ellison’s childhood. Indeed, it burned as fiercely in New Orleans as it did anywhere else in the American South, if not more so. State law had mandated the cleaving of students into black-only and white-only schools, with predictable results: poverty born of a paucity of resources and opportunity for the former, and the wealth of the state for the latter. Efforts to force desegregation began in earnest in 1952, when an African American father filed a federal lawsuit demanding an equal education for his children under the guarantees afforded him by the U.S. Constitution. The case was assigned to U.S. District Court judge J. Skelly Wright, also a native son of New Orleans.

  Wright’s work dominated the local headlines and riveted the young Ellison, as it took the judge forty-one separate rulings over the next decade to break down the racist institutions of New Orleans and Louisiana enough to enforce the Constitution and desegregate the schools, with his rulings following on the heels of the Supreme Court’s 1954 decision in Brown v. Board of Education. In so doing, Wright waged a one-man battle against virtually every power center in the state, from the attorney general to the Louisiana National Guard. He put federal court injunctions into force against them, and also against the governor; the superintendent of education; the Louisiana State Police; and every local district attorney, mayor, police chief, sheriff, and anyone acting on their behalf. He also enjoined the entirety of the Louisiana State Legislature, whose lawmakers had attempted to take over the city’s schools in order to maintain the black-white divide. Wright would strike down more than sixty laws as unconstitutional. Then, in 1960, after papering the city and state with injunctions, he handpicked a group of U.S. Marshals to escort four African American girls through a gauntlet of screaming and spitting white parents amassed to try to keep them out o
f primary school. Norman Rockwell’s painting of Wright’s men marching the pigtailed Ruby Bridges to school, which the painter titled The Problem We All Live With, remains one of the most enduring images of the era, and hung in the White House during Obama's presidency.

  Eighty percent of white parents had voted in a referendum to shutter the schools rather than integrate them, a sentiment that fueled reactionary white violence in New Orleans, often led by the White Citizens Council and other racist groups. They publicly derided the judge as “Judas Scalawag Wrong,” instead of J. Skelly Wright. The Louisiana State Legislature lynched an effigy of Wright on the floor of its chamber, where it had enacted the segregationist laws that he struck down. One night, someone planted a wooden cross in his front yard and set it ablaze. One morning, a group of men tried to throw him in front of oncoming traffic as he headed to work at the federal courthouse. Despite all this and more, Wright won with his wits, his fierce tenacity, and his patience. President John F. Kennedy soon elevated him to the federal appeals court bench in Washington, DC, in part because the U.S. Marshals did not know how much longer they could keep him alive in New Orleans.1

  The battle over desegregation consumed the young Keith Ellison, first because his parents were ardent supporters of the cause, which had riven them from lifelong friends in the pews of their church, and then because Wright had singlehandedly kept the young Ellison’s primary school open. He adopted Wright as his childhood hero, and from there forward nurtured only one true aspiration: to become a federal judge. Only much later would Ellison understand the full force of Wright’s bravery and the full measure of his sacrifice. “What he endured,” Ellison would say of Wright in a speech many years later, “can scarcely be imagined.” After amassing an impeccable academic pedigree—he graduated summa cum laude from Harvard, attended Oxford as a Rhodes Scholar, and earned a law degree from Yale, where he edited the Yale Law Journal—Ellison was accepted as Wright’s law clerk in 1976. One day, the young clerk made a reference to their shared experience as New Orleanians, and sheepishly asked Wright whether faith had led him to see the world so much differently from the vast majority of their fellow whites. “No,” Wright said, “I’m a bad Catholic.” Instead, he said his views were born as he looked out the window at an office Christmas party when he was a federal prosecutor in New Orleans. Across the way, he could see the New Orleans Lighthouse for the Blind, which was having its own holiday party. He saw blind white children and blind black children gathering together on the steps, and then he saw someone separate them by race; the white children were taken through the front door, while the black children were led around to the back of the building. Blind children could not segregate themselves, Wright told Ellison, adding, “It had an effect on me.” The sight and its memory slowly began to eat away at Wright, making him rethink the segregated world he had taken for granted because it was ever-present throughout his life. “It eats at me even now,” he told his young clerk.2

  Ellison’s desire to follow in Wright’s footsteps only grew stronger under his tutelage, and he saw how the gravity of the judge’s work never elevated him above the people over whom he held such enormous sway. Wright once borrowed from the children’s author Theodor Geisel, better known as Dr. Seuss, to state his judicial credo: in the eyes of the law, “a person’s a person, no matter how small.” It was the kind of wisdom that made Wright so influential among great jurists, including U.S. Supreme Court justice Ruth Bader Ginsburg.3 After Ellison clerked for Wright, he landed an even more widely coveted and prestigious role, as law clerk for U.S. Supreme Court justice Harry Blackmun, who had authored the majority opinion in Roe v. Wade. After serving with Blackmun, Ellison spent the next two decades in private practice as a corporate attorney in Louisiana, Texas, and Oklahoma, learning firsthand that some judges could be tyrants.4 Walking out of a courtroom following one particularly brutal savaging from a jurist, an older colleague turned to Ellison and said, “Every time you go into court, they take a little piece of you that you never get back.” The experience and the words stuck with him forever. Ellison was a good litigator, but he never seemed to love litigation. Instead, he continued to yearn for a federal judgeship.

  In 1999, President Bill Clinton appointed Ellison to fill a vacancy in the U.S. District Court for the Southern District of Texas. Ellison sat on the bench at a satellite federal courthouse in Laredo, Texas, along the border with Mexico. Although Laredo’s tallest building is just twelve stories high, Laredo’s status as the nation’s busiest inland border crossing means the very worst troubles between Latin America and the United States get funneled into the small city. With just one other judge, Ellison shared one of the busiest criminal dockets in the nation, a baptism by inferno for any new jurist. The pair got nearly three thousand criminal cases a year, many with multiple defendants, and most related to drugs and immigration, usually in conjunction. Sentencing defendants whose crying families filled his courtroom sometimes kept Ellison awake at night, especially given how little discretion federal judges then held in setting prison terms. When he transferred to Houston in 2005, his caseload got flipped upside down: more than 80 percent of his time would be spent on civil rather than criminal cases, and almost always business-related lawsuits. Even scoundrels within the Laredo bar, of which there were more than a few, could be passionate, elegant, and nimble on their feet. For the most part, the lawyers he faced in Houston were much better on paper.

  The judge’s experience with tyrannical jurists led him to intentionally cultivate the habit of shaking hands with every lawyer, and even criminal defendants, at the end of a hearing. He shook hands with men moments after he sent them away to prison, along with the very few he set free. This gentility made it virtually impossible for the lawyers appearing before him to have any idea how he might rule after he had walked out of the courtroom and back into his chambers to begin drafting his opinions.

  On November 3, 2009, a little more than three weeks after they had flown out of Texas, the Cohen Milstein lawyers got a call from Houston: Judge Ellison had ruled on KBR’s motion to dismiss the case. Fryszman tore through the opinion, finding cause to nod and smile on each of its thirty-two pages. Ellison had tossed out almost every argument Rivkin had mustered. Questions of factual sufficiency, which had dominated Rivkin’s presentation and the hearing, were dealt with almost brusquely, while Ellison tackled all the procedural questions in great depth. The most significant was KBR’s claim that the anti–human trafficking statute first passed by Congress in 2000 under the sponsorship of the New Jersey congressman who held a hearing about the twelve men from Nepal, could not be used to sue the company. Rivkin had argued that the version of the law in effect when the men were killed in 2004 did not explicitly state that it applied to human trafficking outside the territorial boundaries of the United States, a legal principle known as “extraterritoriality.” Fryszman argued that the law did not need to explicitly state that it applied internationally given that the very nature of human trafficking was that it was a transnational crime, and that the antitrafficking law had been passed, in part, to fulfill the U.S. government’s obligations under several international accords it had signed, including those specifically calling for the eradication of international human trafficking. Judge Ellison agreed, writing that the entire thrust of the federal trafficking law “would be severely undermined” if he were to rule that “defendants who gained a commercial advantage in this country through engaging in illegal human trafficking were free from liability, so long as the trafficking acts themselves took place outside of American borders.”

  Even if the human trafficking law could not be applied overseas when the men were killed in 2004, another law, more than two hundred years old, existed explicitly to allow foreigners to bring lawsuits in American courts for violations of U.S. law if the alleged abuses were deemed to be “violations of the laws of nations.” The intent was to include transnational crimes, such as piracy, that otherwise could not easily find a jurisdiction somewhere in
the world, under the principle that perpetrators should not be able to use the United States as a safe harbor against liability after they have committed great wrongs in international jurisdictions. The law was named the Alien Tort Statute because it allows “aliens,” as in “foreigners,” to bring injury lawsuits, or “torts,” in U.S. federal court. The underlying abuses they could raise in such lawsuits were not unlimited; they had to be for crimes that were considered hostis humani generis, a Latin phrase that means “enemy of all mankind.” In addition to piracy, the transgressions that courts recognized as fitting under this principle included torture, war crimes, and the slave trade. The idea was that jurisdiction was universal for such crimes. This was the ground upon which Michael Hausfeld, the former chairman of Cohen Milstein, had built his cases against those who profited from the Holocaust. Not surprisingly, it also was an area of the law that significantly expanded during the modern era of globalization.

  Agnieszka Fryszman had crafted her lawsuit for the families of the twelve to include a cause of action under the Alien Tort Statute, one that probably had never been tried before. She said that human trafficking was a legitimate tort under the law because slavery already was included, and human trafficking simply was the modern-day form of slavery, as defined by Congress and legal scholars. Ellison agreed, rejecting KBR’s efforts to throw out that piece of the case, too.

  Finally, KBR had tried to get the case dismissed by arguing that the lawsuit had been filed a few days too late. The statute of limitations was four years for all but the simplest claim, the one involving negligence. By law, the clock starts running when a plaintiff knows, or reasonably should have known, that he or she has been injured by the defendant’s actions. KBR’s lawyers argued that for Kamala and the other surviving family members, that day came no later than August 24, 2004, while the insurgents were holding the men in Iraq but before they had murdered them. Under this interpretation, the lawsuit, stamped by the court clerk in Los Angeles on August 27, 2008, had been filed three days too late. But to expect that the families could reasonably have known on August 24, 2004, that KBR had injured them was absurd, given that they had no idea what was happening, and given that the mystery of this human supply chain would not begin to be unraveled for more than a year. Ellison dismissed KBR’s claim on this basis, but he did throw the company one bone: the statute of limitations on negligence was just two years in Texas, not four, so by the time the suit got filed in California, that single claim in the lawsuit was more than two years past the statutory deadline.