But it was not so simple. Bobby would not leave, even to save her; Marissa would not leave without him. Only Pierce, caught between them, knew the truth.
“I understand,” Pierce answered.
A HALF HOUR later, Pierce had not moved. Outside, the leaden skies of late afternoon seeped rain that streaked his windows. The room felt like a prison.
Pierce’s cell phone rang.
It was Larry Kahan. “I heard from Hampton Sizemore,” the managing partner said. “He tells me Okari is not what he seems.”
“Neither is Sizemore.”
Kahan gave a short laugh. “No, he’s exactly what you showed him to be. Congratulations, Damon. You’ve got your lawsuit, and the legal team to see it through. Assuming some right-thinking judge doesn’t throw you out on your ass.”
Pierce did not know what to feel. “Thanks, Larry,” he said. “Whatever comes, I promise not to embarrass you.”
3
WITHIN THREE DAYS, PIERCE HAD FILED SUIT AGAINST PETRO-Global in San Francisco. Two days later, at nine A.M., he faced United States District Judge Caitlin Taylor.
Her courtroom was modern and commodious, its high ceilings meant to evoke a temple of the law, and Caitlin Taylor ran it crisply, conscious of both the crowd of human rights advocates who had come to support Bobby Okari and the sprinkling of reporters. Slender and patrician, Taylor had long, dark hair and a pale, sculpted face accented by wire-rimmed glasses, and she leavened her keen mind and decisive manner with the occasional shaft of arid wit. Though Taylor was no easy mark, that she had drawn the Okari case fed Pierce’s sense of hope—cool-headed and gifted with a steady internal compass, Taylor cared less about other people’s opinions than her own. Pierce’s arguments—and Bobby’s plight—would get their day from Caitlin Taylor.
This was fortunate, given PetroGlobal’s shrewd choice of counsel. A quick-thinking African-American, Clark Hamilton was a former Stanford basketball hero whose professed concern for civil rights endowed his legal skills with the appearance of moral weight. But Pierce shared the minority view that Hamilton was a calculating man who understood the uses of public piety. That Hampton Sizemore sat behind them in this courtroom reinforced Pierce’s skepticism.
Sitting next to Pierce was his junior partner Rachel Rahv. Pierce was glad for her presence—in her mid-thirties but already seasoned, Rachel was tough, smart, and cared enough about human rights to have insisted on helping with Bobby Okari. This morning she looked bleary with fatigue; like Pierce, she had pulled two all-nighters to assemble their complaint. Should Taylor not dismiss the case outright, Rachel would lead a team of lawyers to Luandia to cull whatever documents were pried loose from PGL.
“We face a series of complex issues,” Taylor told the lawyers, “not the least of which is Mr. Okari’s request for injunctive relief. So I’ll take them one at a time.”
Hamilton stood. “Thank you, Your Honor. But before we proceed, I ask that former congressman Hampton Sizemore be heard on behalf of the Luandian government.”
“Mr. Pierce?” Taylor said.
“Luandia is not a party in this lawsuit, Your Honor. Its government has no standing here.”
“True enough. Still, the congressman represents a sovereign country whose actions are at the core of your complaint. The court will hear him.”
With a satisfied glance toward Pierce, Sizemore stepped into the well of the court as Camilla Vasquez, Hamilton’s associate, handed a one-page letter to the judge and a copy to Rachel Rahv. “As you’ll see,” Sizemore told Taylor, “the foreign minister of Luandia spells out the damage that would emanate from this unwarranted lawsuit.” He gazed down at the copy in his hands. “Let me quote Minister Adu: ‘This lawsuit challenges our ability to combat the civil unrest that plagues the oil-bearing region of Luandia, and to protect our citizens and the employees of foreign companies. It offends the sovereign interests of the Luandian government. It impedes our efforts to attract the foreign investment essential to the prosperity of our people . . .’”
“At least Savior Karama,” Rachel whispered to Pierce.
In his orotund voice, Sizemore finished reading: “’I am sure that the United States would object to a Luandian court passing judgment on its official conduct in curbing violent activities within its own borders.’” He looked up. “I can only add that America’s ability to prevent another 9/11 would be seriously compromised if foreign courts reviewed our treatment of foreign terrorists at their relatives’ request.”
This was the ploy Pierce had expected. “Thank you,” Judge Taylor said. “Any comment, Mr. Pierce?”
“Yes, Your Honor. This is a delaying action dressed up as diplomacy and gift-wrapped in fear. Our complaint alleges that the Luandian government—abetted by PetroGlobal—protected its ‘sovereign interests’ by slaughtering several hundred civilians and beheading Bobby Okari’s father. Unless the court acts, the next victim may be Mr. Okari himself.” Pierce briefly glanced at his notes. “I can only hope that Karama’s treatment of my client, reminiscent of Stalin or Mao Tse-tung, is unimaginable in America no matter what the crisis. Whether Karama’s kangaroo court passes muster is governed by international law, not irrational fear.”
Taylor turned to Hamilton. “Is the State Department taking a position?”
Hamilton stood with an air of reluctance. “Not at this time.”
“No? Then we’ll just have to stumble along, won’t we.” Nodding toward Sizemore, Taylor said, “Thank you, Congressman.”
Pierce repressed a smile. “All right,” Taylor said. “We’ll hear Petro-Global’s contention that this lawsuit should be filed in Luandia. Mr. Hamilton?”
“Luandia is the only logical forum, Your Honor,” Hamilton responded smoothly. “The facts occurred there; the witnesses and documents remain there. Furthermore, Luandian courts and Luandian law are best equipped to adjudicate matters inherent to Luandia. This court should not decide a matter foreign to it in every possible way.”
“Mr. Pierce?”
Once more Pierce stood, glancing at Hamilton. “My impulse is to ask if Mr. Hamilton is joking. How can we bring a lawsuit for torture and ex-trajudicial murder in a country whose government survives by those means? The ‘special tribunal’ decreed by Karama shows just how little we can rely on ‘Luandian courts and Luandian law.’ What law, when Karama can change it at will? Counsel’s plea is a euphemism for ‘summary execution’—death for this lawsuit, and for Mr. Okari.”
Taylor gazed briefly at Pierce, then turned to Hamilton. “A central question,” she said, “is whether there’s any lawsuit here that an American court can entertain. Tell me why I should dismiss Okari’s complaint forthwith.”
Sitting beside Pierce, Rachel Rahv tensed—this, they both knew, was where PetroGlobal might prevail. “The Act of State Doctrine,” Hamilton began, “precludes a United States court from inquiring into the official acts of a duly recognized government within its own territory. The color with which Mr. Pierce characterizes events should not obscure that he asks this court to judge the conduct of a foreign government in a distant place, under ambiguous circumstances, where it cannot compel that government to respond.
“When it comes to PetroGlobal itself, Mr. Pierce is caught in a fatal contradiction. He can’t argue that PGL knew, or should have known, that the army would perpetrate the alleged slaughter without asserting that such a massacre is the official policy of Luandia and, therefore, immune from adjudication by an American court.”
Pierce rose to answer and then, on instinct, turned to Hamilton Size-more. “Help me here, Congressman. Are rape, torture, mass slaughter, and extrajudicial murder the ‘official policy’ of the Luandian regime? If so, we can all go home.”
An anonymous snicker issued from the packed gallery of observers, stifled before Taylor could react. Glaring at Pierce, Sizemore answered, “I refuse to become a prop in your performance, Mr. Pierce.”
“No letter for this one? Oh, well.” Turning to Taylor, Pierce said, “For the record, t
he international agreements we rely on—signed by Luandia’s government—reject such conduct. As to Goro, General Karama denies any intention to murder anyone. Does PetroGlobal now accuse its business partner of lying? Or will Karama now come forward to embrace the Act of State Doctrine by admitting that he routinely orders the slaughter of unruly citizens?” Pierce briefly smiled at Hamilton. “In which case, Your Honor, the fatal contradiction is Mr. Hamilton’s.
“In truth, the Karama government disdains such massacres in theory—placing the tragedy at Goro outside the Act of State Doctrine—while commonly perpetuating massacres in fact. PGL was well aware of both—”
“Hold on,” Taylor interjected sharply. “Even assuming that alleged atrocities by the Luandian government can form a basis for your lawsuit, how can this court hold PetroGlobal liable for the acts of Colonel Okimbo’s soldiers? Let me hear from Mr. Hamilton on this.”
Standing, Hamilton looked relieved. “Consider PetroGlobal’s dilemma, Your Honor. Three of its Luandian employees were murdered in parallel with acts against PGL facilities ordered by Bobby Okari. This court, and this government, could do nothing to prevent the murder of still more. PGL’s sole recourse was to the Luandian military.” Hamilton’s voice became stern. “If the court holds PGL responsible for the army’s purported actions, no American corporation will be able to seek the protection of any foreign government for fear that the response might not meet the standards of an American court. It would be impossible for America to conduct a foreign policy that includes doing business as part of influencing other governments for the better. It would be impossible for PetroGlobal to exist in the majority of oil-producing states—like Russia, Saudi Arabia, and, yes, Luandia—where the government is, or may become, less than exemplary in the treatment of its citizens. In short, it would require America to abandon its sources of foreign oil and any effort to improve conditions where oil may be found.”
“It’s the conditions in Luandia,” Taylor said, “that face us now. Mr. Pierce?”
“We’re not trying to confine American business to Canada, Your Honor. We assert that PGL was intertwined with a military predictable in its brutality. PGL hired them, paid them, and asked them to restore order. What Okimbo did in Goro—using PGL’s boats, helicopters, guns, and bullets—PGL had every reason to expect.”
“Your Honor,” Hamilton protested. “There was no one else to call, and PGL had no reason to expect anything other than the restoration of order. For all it knows, this ‘massacre’ never happened.”
“Then let PGL prove it,” Pierce rejoined. “’Take my word for it’ is not grounds for dismissing a lawsuit.”
Taylor adjusted her glasses, as though to see Pierce from another angle. “What evidence do you intend to offer? Mr. Hamilton is correct in noting that we can’t order the Luandians to give you anything at all.”
Pierce nodded. “That leaves PGL. We want the access to their documents and employees that only this court can provide, and that PGL is so desperate to prevent. If the court dismisses this lawsuit, only PGL and Bobby Okari will ever know the truth, and only PGL will survive Okari’s trial.”
“Which raises the most vexing issue of all,” Taylor replied. “Your request that we enjoin PGL from its alleged ‘wrongful participation’ in the legal proceeding of a foreign state. Which proceeding, in itself, is beyond our power to affect.”
“Precisely,” Hamilton put in. “No court has ever presumed to intrude in the conduct of a criminal proceeding in a foreign country. No court has ever restrained an American corporation from responding to a legal process in a nation where it does business and where, as here, refusal to participate would itself be a crime.
“But Mr. Pierce’s evocation of Alice in Wonderland transcends even that. He now asks the court to rule on the fairness of a legal proceeding that has yet to occur. He would make this court not only the Luandian Court of Appeals but the World Court of Judicial Divination—all with unseemly haste. Absurd.”
Pierce saw Rachel Rahv wince involuntarily. Covering his own concerns, Pierce stood to answer. “Mr. Hamilton need not worry,” he began. “Under the rules Karama designed for Bobby Okari, there is no ‘Luan-dian Court of Appeals’ to replace. Nor need the trial commence for this court to ‘divine’ that the tribunal selected by Karama—one of them a soldier under his command—violates due process on its face. Nor should it ignore the regime’s record of private trials, summary executions, and mysterious deaths in prisons like the hellhole to which they’ve consigned Bobby Okari, now supervised by Okimbo. As for ‘unseemly haste,’ Mr. Okari’s trial commences in roughly two weeks.” Pierce let his anger show. “What’s absurd is for Mr. Hamilton to pretend that the polite atmosphere of this courtroom has anything to do with what happens once Karama’s handpicked judges take Okari’s life in their hands—”
“Even granting that,” Taylor interrupted, “what does PGL have to do with Karama’s tribunal, and how in the world can this court make the slightest difference?”
“In several ways. First, the court can order PGL to provide Mr. Okari with any documents and witnesses helpful to his defense. Second, given our belief that Colonel Okimbo is on its payroll, this court can direct PGL to withhold his compensation should he impede our access to Okari. Third, this court can instruct PGL not to cooperate with the prosecution in concocting perjured testimony and falsified documents.”
“I must protest,” Hamilton objected. “There’s no basis for such a claim.”
“Luandia is the basis,” Pierce responded. “Counsel resents the implication that a company that knows Okimbo, pays Okimbo, and equips Okimbo could actually ‘divine’ what Okimbo might do. Okimbo needed bullets; now he needs ‘evidence.’ It’s reasonable to ask that PGL not respond when those needs overstep the truth.” Pierce inhaled, and his voice became quietly urgent. “Very soon the Karama regime may execute Bobby Okari. This court may not be able to stop that, but it is reasonable to try. What we ask of PetroGlobal is nothing more than law and decency requires.”
Taylor considered him with a look of gravity and doubt. “I know that time is of the essence,” she told Pierce, “and that your client needs a ruling. The court will reconvene at eleven-thirty, and you will have it.”
FOR OVER AN hour, Pierce and Rachel Rahv sat across the courtroom from Hamilton and Vasquez. Neither side spoke to the other—the waiting was too tense, feelings too raw. “I wonder if we’ll get there,” Rachel murmured. “Luandia, I mean.”
Pierce could feel her misgivings. Once or twice he caught himself hoping that he would lose; unlike Rachel, he had seen Luandia. Then he imagined Marissa waiting for news, and despised himself for his own fears.
Now and again he looked at Hamilton. Though his opponent was expressionless, Pierce sensed that Hamilton, like himself, had no idea what Taylor would do. The buzz from the spectators was jittery and muted.
At eleven-thirty, Taylor reappeared. “Remain seated,” she said, her voice and manner so subdued that she seemed, for once, shaken by what she had to do.
For a moment she stared at the notes she spread before her. “I’ll address the issues one by one,” she began, “mindful that to rule for Pet-roGlobal on any one of them would terminate Mr. Okari’s lawsuit.
“To begin, PGL urges that this lawsuit should be filed in Luandia. We note that Mr. Okari charges the government with rape, torture, mass murder, and establishing a tribunal that clearly violates international laws. It seems contradictory to compel Mr. Okari to seek redress from a regime for practices that may violate our government’s stated policy of upholding human rights.” She briefly glanced at Sizemore. “If the State Department felt otherwise, it could have said so.”
This much Pierce had expected; the rest worried him far more. “PGL,” Taylor read, “next argues that the wrongs alleged in the complaint are acts of state, and therefore not subject to review in the United States.” Looking up, Taylor spoke to Hamilton. “Unlike PGL, we will take Luandia at its word that murder, ra
pe, and torture are not official policy. Oh, yes, and beheadings.”
As Hamilton frowned, Pierce saw Rachel’s mouth twitch briefly. “PGL next argues that the Alien Tort Statute does not allow Bobby Okari to sue for its alleged participation in such crimes. But PetroGlobal’s reading of the law would emasculate the law.”
The cadence of Taylor’s voice, swifter now, conveyed the sense of an inexorable force. “PetroGlobal contends further that the specific allegations of the complaint, even if true, are insufficient to establish its complicity. We find this a close question. We agree that payments to the army and the use of PGL equipment do not themselves make PGL liable for the alleged massacre at Goro. But given that so many of the facts are known only to PGL, this court will allow Mr. Okari access to those facts.”
“We’re going to win,” Rachel whispered. But Pierce could not relax. On the bench, Taylor paused, surveying the crowded courtroom. “Finally, PGL claims that the facts alleged are insufficient to justify issuance of a temporary restraining order. We agree. As to its further contention—that the court lacks any basis for enjoining its alleged wrongful complicity in a tribunal that violates due process—we need not rule today.” She looked from Hamilton to Pierce. “The day before the scheduled commencement of Okari’s trial, this court will hold a hearing to address that very question.”
Pierce felt the tension seeping from his body. “Now the rest,” Taylor told the lawyers crisply. “There’s not much time here. You’ll be proceeding in a foreign country with no tradition of discovery and different cultural understandings of truth where fear may well be a factor. This court has no power to compel the cooperation of Luandian citizens not employed by PetroGlobal. All the parties can do is ask Luandians to volunteer for depositions. As to that,” she added tersely, “good luck.”
Taylor now addressed Hamilton. “A final word for PetroGlobal. As you say, Luandia is where the proof is. That’s why I’m ordering discovery to proceed there, through PGL’s offices in Waro. I expect you to make your witnesses and documents available to Mr. Pierce on an expedited basis. But if the government of Luandia keeps him from returning, it becomes your obligation to provide them here.” She smiled faintly. “Expensive fun, I know. So I hope that you and Mr. Sizemore use whatever influence you have with the Luandian government to see that Mr. Pierce is able to go back.”
ECLIPSE Page 18