by Randy Singer
“Do you deny that the Taliban beat and tortured women if they attempted to run away from an abusive husband? Do you deny that the Taliban treated women as something less than human, as property of their husbands?”
“No. But the international community addressed that in removing the Taliban from power—”
“Counsel,” Strobel interrupted, immediately silencing Leslie, “this court has now been petitioned by a group of refugees to grant redress for these terrible acts of torture. Are you suggesting that this court just sit idly by, refuse to take jurisdiction over this case, and let the Taliban get away with rape, murder, and torture?”
“We are a nation of laws,” Leslie responded, slowly and evenly. “And on this point the law is very specific and very clear. All nations have the privilege of sovereign immunity, a basic and fundamental privilege that prevents them from being hauled into the courts of another nation as a defendant. We must respect the sovereignty of other nations and not drag them into our courts as if they were just ordinary American citizens, especially since a new government in Afghanistan has replaced the Taliban—”
“I’m well aware of the law, Counsel.” Strobel used a tone a parent might reserve for scolding a young child. “So let’s talk about the law for a minute. Under the Foreign Sovereign Immunities Act, there are certain exceptions. For example, a foreign nation can be hauled into our courts if that nation causes harm associated with a commercial activity, such as breach of a contract. Is that right?”
“Under some circumstances.”
“And a foreign nation can be hauled into our courts if an agent of that nation causes injury on the high seas, right?”
“That’s correct.”
“And if an agent of a foreign nation injures someone on American territory, then that nation gets hauled into American courts?
“Yes, in most cases.”
“So let me get this straight.” Strobel stroked his goatee as if he were deep in thought. “A foreign nation can get hauled into American courts if they hurt us in the pocketbook, or if they injure someone on the high seas, or if they breach a contract, but there is some overwhelming reason that says we can’t drag them into American courts if they systematically torture, rape, or kill innocent civilian women. Is that the way you read the law?”
Leslie shifted her weight. The red blotches grew. She pushed at more imaginary hair.
For his part, Brad was growing weary of the bullying. He was always one to cheer for the underdog. Especially an underdog as pretty as Leslie.
“That’s not exactly the way I would phrase it,” Leslie said. “There are important foreign policy reasons—”
“Counsel,” Brad said, coming to the rescue, “did you write this law? Justice Strobel seems to think you did.” He shot a sideways glance at Strobel. No love lost there. “Last I checked, Congress wrote the law, and it was the job of courts like this one to apply it.”
Leslie looked relieved to get a pitch she could actually hit. “Congress had to balance numerous important factors in drafting the Foreign Sovereign Immunities Act. There are delicate foreign policy issues at stake—there is a new regime in Afghanistan, put there by our own country, and that regime should not be undermined and held accountable for the actions of the Taliban. Plus the governments of other countries must be respected by the courts of the United States, or those other countries will reciprocate by hauling the United States into their courts as a defendant. The role of this court today is not to question the wisdom of the Sovereign Immunities Act passed by Congress, but to apply the law even if we don’t necessarily like the result.”
Brad looked at Strobel and nodded.
“The court should not open this can of worms,” Leslie concluded. “Otherwise, plaintiffs’ lawyers will clog our courts with all manner of bogus claims against foreign governments, just trying to get lucky and hit it big.”
Brad winced. Now Strobel smirked.
Brad was fully engaged. The game was clear: it was Brad against Strobel, head-to-head. The litigants were just allies—pawns to move around the chessboard. Brad thought it worked out nicely to have the attractive one on his side. Strobel could have the drill sergeant.
“You are aware, Counsel—” Strobel’s voice boomed again—“that all civilized nations acknowledge certain generally accepted principles of international law?”
“Yes. These fundamental principles and values common to all mankind are called jus cogens laws and are considered binding.”
“These are the highest forms of international law, is that correct?”
“Yes, they are.”
Brad leafed through his materials for a copy of the Foreign Sovereign Immunities Act. He could not put his finger on it, but this moot court argument was giving him a strange sense of déjà vu.
“And one of those norms widely recognized as a jus cogens norm is the right of people everywhere to be free from torture at the hands of their own government, right?” Strobel asked.
The trap was set. Brad could see it about to snap.
“Basic human rights, such as the right to be free from torture, would be considered jus cogens laws,” Leslie admitted.
A mirthless smile formed on Strobel’s lips. “Well then, if a nation violates a basic human right, like the right to be free from torture, they have violated one of the most basic tenets of international law. Shouldn’t a nation that breaks one of these most basic tenets of international law, a jus cogens law—” Strobel let his deep Southern drawl lengthen the phrase like some religious incantation—“by torturing and killing its own citizens be seen as waiving the protection of sovereign immunity?”
Strobel leaned forward, elbows on the bench, waiting for an answer. The phrase jus cogens, majestically Latin in its origin, seemed to echo around the courtroom.
Leslie cleared her throat. “If we start weighing violations of international law and decide that some violations are worthy of the protection of sovereign immunity while others are not, then we will find ourselves in an ambiguous area. If nothing else, international law requires certainty and predictability—”
“But aren’t we already making exceptions?” Strobel insisted. “It’s just that now we make exceptions for commercial cases, and I’m suggesting that the far more important cases for exceptions are violations of basic human rights—violations of jus cogens laws.”
Leslie let the question hang in the air. She looked at Brad—an appeal for help.
Brad and Mack each started a question at the same time. Brad raised his voice and continued. “Ms. Connors, you are an American lawyer representing the Taliban and Afghanistan, is that right?” he asked.
“Yes,” Leslie said tentatively.
“Do you remember when the American jets were relentlessly bombing cities in Afghanistan and there were numerous reports of civilians being killed during the bombing raids?”
“I believe so,” Leslie answered, apparently hedging her bet.
“Would you say that killing innocent civilians violates one of those, how do you say it?” Brad wrinkled his forehead, a picture of naiveté and perplexity.
“Jus cogens laws,” Leslie replied.
“Yeah,” Brad said. “Would you say killing innocent civilians with a military jet would qualify?” He took off his reading glasses and began chewing on them.
“You bet.”
“Do some of the people in your client’s country, including some of the judges, still dislike the American troops who bombed their cities and killed their civilians?”
“I think it’s accurate to say that some detest Americans,” Leslie volunteered.
“If an Afghan court, which as I understand it is still governed by Islamic law, were allowed to put the United States on trial for the bombing of those civilians—in other words, if the shoe were on the other foot—do you have any prediction as to the amount of the judgment that an Afghan court might render against the United States in such a case?”
Brad expected the answer was obvious to
everyone in the courtroom.
“I’m sure the judgment would be in the billions,” Leslie answered enthusiastically. “The U.S. courts would then retaliate with a judgment against Afghanistan for billions more. Pretty soon we’re heading down a slippery slope of retaliation—nations slapping each other with billion-dollar judgments and throwing international law into total chaos.”
Leslie looked thankfully at Brad and, for the first time during the argument, flashed a relaxed smile.
* * *
Driving home it hit him—the reason for his déjà vu. The case of the Afghan refugees reminded him of the abuse that Sarah Reed had endured at the hands of government officials. Slippery slopes aside, why should foreign governments be allowed to torture innocent civilians, then hide behind the doctrine of sovereign immunity? Why should the Saudi Arabian police be allowed to torture and kill an American citizen and not be held accountable in an American court?
Brad was not familiar with the vagaries of international law, but he had a keen sense for justice and fairness. And in the case of Sarah Reed, justice demanded that the Saudi police pay for what they did.
He picked up his cell phone and dialed directory assistance. He needed an international law expert who could exhaustively research this potential cause of action. He knew just the person.
* * *
Leslie could not stop fuming. She had lost the final round of the moot court tournament and spent her drive home ruthlessly critiquing her own performance. She second-guessed every word and every gesture, replayed the entire argument in her mind, thought of things she should have said, and hated herself for not having said them.
She lived twelve miles from the law school in a quaint studio apartment above a detached garage in the country. A law school professor owned a majestic estate about two miles off the main road on the banks of the scenic Chickahominy River. Because the professor had taken a two-year assignment at another law school, she’d hired a contractor to build an apartment in the attic space of her three-car garage. She’d offered the apartment to Leslie rent-free so long as Leslie kept an eye on the estate.
Leslie’s friends thought she was insane for living alone in such an isolated setting. But Leslie loved the seclusion, the scenery, the wildlife on the riverbanks, and the price of the apartment. Besides, Leslie practically lived in the law school library. Her apartment was just a way station for sleeping, showering, and licking her wounds.
By the time Leslie turned off the main road, she had pretty much concluded that she would always be second best. She had also decided that she had no desire to practice international law at the firm of Kilgore & Strobel. She dreamed of a day when she, a big-city lawyer, would try cases against Strobel and his small-town law firm. She would crush him with superior resources and clever lawyering. She had a sudden hankering for the Big Apple, where she could plot her revenge.
Leslie parked her car in the garage and slowly climbed the steps to her apartment. The sun was just beginning to set over the Chickahominy, and the light show was spectacular. She planned to microwave dinner, grab a law book and a bottle of wine, and sit on the dock until the sun completely disappeared.
She had struggled with dependency in the days following Bill’s death, and she had therefore not allowed herself even one drink since the start of the semester. But after a day like today, she had earned it. She would indulge just this once. As she popped a Lean Cuisine into the microwave and poured her first drink, she also checked her phone messages.
The first caller had not left a message. The second one was a consolation call from Carli. “You did great. You should have won.” Sweet lies to make Leslie feel better. The third call made her quickly forget the other two.
“Hello, Leslie, this is Brad Carson. Listen, great job in moot court today. I know this sounds a little strange, but I’m actually investigating a real case that is similar to the hypothetical case we were discussing. I need someone familiar with international law to do some research and help me determine if we’ve got a cause of action. Uh . . . I’m willing to pay enough to make it worth your time, and you can work around your school schedule. Anyway, if you’re interested, give me a call, and my secretary will set up a meeting.”
Leslie replayed the message twice, wrote down the number he left, and weighed her options. She didn’t have time for this. She needed to stay focused on school to maintain her class ranking. Good offers from top firms would follow. Besides, it was March, and Leslie planned on spending the summer abroad as part of the William and Mary study program in Exeter, England.
But as Leslie walked down to the dock, the lawyer in her couldn’t help but argue the other side. She owed Brad a favor since he had saved her from complete humiliation. Maybe this would be her big break in international law. She was tired of studying concepts and arguing hypotheticals. The thought of a real-life case with a real-life client was intoxicating. Besides, she needed the money.
She debated with herself vigorously until the sun finished its descent and she had polished off the tiny helping of Lean Cuisine lasagna and two glasses of wine. By then she had rendered her verdict. She would call Brad first thing Monday morning.
After another glass of wine, she finished critiquing her performance and decided maybe she hadn’t done such a miserable job after all. She was ready to practice some real law and work with a real lawyer. Forget Monday. She would go to the library first thing tomorrow morning. She would call Brad tomorrow afternoon and sink her teeth into a real case by the beginning of the week.
It was a beautiful night, and her head was starting to spin. She lay on her back on the dock and watched the stars as they circled the sky. A chorus of bullfrogs serenaded her, accompanied by the steady rhythm of small windblown waves lapping against the bank. She felt her nerves relax as exhaustion overwhelmed her weary body. Before long, she closed her eyes and drifted away.
She dreamed of humiliating Strobel.
7
MILES OF TREE-LINED SIDEWALKS snaked their way among the tall and stately brick colonial buildings, each adorned with beautiful white columns, that made up the City of Virginia Beach municipal complex. The sprawling office park boasted plenty of green space and immaculate landscaping, adding to its bucolic appeal.
The courthouse building was always a beehive of activity. And on this Friday morning, as on most Fridays, large crowds crammed themselves into the courtrooms for “motions day,” the weekly cattle call where lawyers hashed through all their motions on their cases so they could reserve the other days for trial work.
Two weeks after her moot court argument, Leslie walked into the weekly melee of Virginia Beach Circuit Courtroom No. 7 and took a seat in the back. Brad had told Leslie he didn’t know what time he would be done with his motions, but afterward they would have lunch and discuss her research.
She decided to come a few hours early to see how motions and other important legal issues were decided in the real world. Her valuable time bought a study in mediocrity that made Leslie thankful for her class ranking and more determined than ever to avoid the slosh pit of mundane law where most lawyers wallowed.
The cases of Billy “the Rock” Davenport dominated the morning’s hearings. Leslie immediately recognized the name. The widely known senior partner of Davenport & Associates was the genius behind his firm’s irreverent and ubiquitous television ads: “When trouble rolls, call the Rock.” It was the kind of advertising Leslie detested, the kind of exposure that gave all lawyers a bad name. Turn the television to Jerry Springer, and the breaks would be accented by a tough-sounding and mean-looking lawyer with boxing gloves ready to deck the insurance companies. Watch ESPN, and another lawyer, this time fit and in jogging shorts, told you how to avoid the insurance company runaround. Tune in to your favorite soap, and a young and handsome lawyer assured you that Davenport & Associates literally feels your pain. Of course, none of the lawyers on television looked even remotely like the short, bald, pudgy man who meekly took his place behind the counsel table
in Courtroom No. 7.
For forty-five minutes, defense lawyers of all stripes took their turns pummeling the Rock. The cases were different, but the themes were the same—the Rock had not answered interrogatories in a timely fashion, the Rock had failed to provide required medical reports, the Rock had failed to show for a scheduled deposition, the Rock had failed to name expert witnesses in a timely manner, and so on and so on. The lawyers asked for sanctions against the Rock, or that the cases be thrown out, or that the Rock be forced to concede major points in penance for his failure to comply with discovery rules.
The Rock was clearly on the defensive, shuffling papers, mumbling lame apologies, trying to survive the morning with some of his cases still intact, and above all, avoiding eye contact with the judge. By the end of his time on the hot seat, Leslie couldn’t help but feel a little sorry for the hapless Rock and desperately sorry for his clients. She sighed with relief when Brad finally got his turn at the counsel table.
By 1:15 the judge had ruled on the last case, and Leslie was ready for lunch. Brad insisted that they eat at one of his favorite restaurants on the Lynnhaven River. He offered to let Leslie ride with him. They could talk business on the way.
She was not looking forward to this. Leslie’s initial enthusiasm for this assignment, which waxed so strong in the beginning, had been decimated by her sobering research into the black-letter law. Sarah Reed had no case. And now it was Leslie’s job to ruin Brad’s lunch and explain to him the harsh realities of sovereign immunity law.
* * *
The three adults waiting anxiously in the dimly lit apartment had little in common except a dangerous faith. They had all been members of the church in Riyadh formerly led by Charles and Sarah Reed. They had been severely beaten by the Islamic radicals unleashed by Ahmed Aberijan. To their great shame, they had recanted with their lips, if not with their hearts.
But now Rasheed and Mobara Berjein had boldly reinstated the weekly prayer meetings. These two young schoolteachers were joined by Kareem Bariq, another former member of the Reeds’ church, who drifted from one construction job to another and was presently unemployed. The Berjeins were doing what they could to help Kareem both financially and spiritually, with mixed results on both fronts.