by Cam Simpson
Handley was nervous about his first conference call with Robilotti and Roger Levy, but his anxiety melted quickly when Robilotti lit into Levy over the long-distance line. “How on earth can you be objecting to these claims?” the gruff New Yorker declared. The more Robilotti pressed Levy, the more Levy pressed back. The defense lawyer said that Daoud had never employed the Nepalese men. Not only that, but the company never even did the kind of military support services claimed in the case. Daoud wasn’t even in the business. Robilotti did not relent, but Levy had far too much experience to get riled. He knew he simply had to hold his ground. If Handley and the families wanted compensation, they would have to take their case to a judge. Levy just had to keep saying no.
Insurance companies make their money in two ways: by taking in more cash from the premiums paid by policyholders than they dole out in claims, and by earning cash off those premium payments through investments. Even if it ultimately has to pay a claim, an insurance company has an incentive to hold on to the money for as long as it can, because holding money buys more time for the company to earn interest on its investments. This is why insurance companies find ways to delay paying claims even when their policyholders are clamoring for payment, as in the case of someone who has had a car accident. But in the case of foreign workers for wartime contractors, the policyholders were the contractors, not the workers or the survivors meant to receive the payments. And the contractors were hardly clamoring for the insurance companies to pay claims from foreign workers or survivors they were likely never to see or hear from again, especially in cases where the contractors were trying to avoid any paper trail legally connecting them to the workers. This reality created that almost unprecedented moment in the history of the insurance business, when the interests of the policyholder and the interests of the insurance company serendipitously aligned to create an incentive for failing to pay claims.
On July 27, 2007, Handley filed a motion demanding a hearing before an administrative judge for the families. This was the initiation of the inevitable court case born of the insurance company’s resistance, and it meant that Handley could formally seek “discovery” (private, internal records) from Daoud and its insurance carrier. Just after the third anniversary of the twelve men’s deaths, Handley demanded reams of evidence from the companies, related not just to the murdered men, but also to Daoud’s work for KBR Halliburton in Iraq. In reply, Levy sent Handley just one document, and he waited until the day of the deadline two months later. It was a copy of the insurance policy Daoud had taken out on April 14, 2004, in order to comply with the wartime compensation law. The policy specifically listed coverage for “Third Country Nationals” working at U.S. military bases in Iraq. This meant that the first and most basic set of denials—that Daoud simply could not have had anything to do with these murdered men or this case, that Daoud wasn’t even in this line of business—had been pierced. Yet so much effort, spanning a year and reaching across the world, had gone into just getting the case to the point where Handley could prove the most basic facts about Daoud: that it worked for KBR Halliburton in Iraq and employed men like the twelve Nepalis, but not necessarily that it employed those twelve Nepalis. Levy and the company continued to dispute Daoud’s connection to the twelve. “Daoud steadfastly denies that any employer-employee relationship or prospective employer-employee relationship existed,” Levy said in a motion filed after he handed over the insurance policy. The hardest thing to grasp was this: Any payouts ultimately were unlikely to cost the companies involved or the insurer a dime. In fact, they could even yield a healthy profit. Because the men had died as a result of a “war hazard,” the insurance company’s payout and its costs were 100 percent reimbursable under the War Hazards Compensation Act. The U.S. government, by law, would also give a 15 percent bonus to the insurance company after it paid the claims, along with reimbursing all its reasonable costs, including Levy’s fees.
Still, Levy fought on. The insurance company remained steadfast in its refusal to pay. Handley prepared for court.
10
2007
Washington, DC
Establishing the truth is one thing. Satisfying the rules of evidence in a court, especially against a well-funded adversary, is another matter entirely. Matthew Handley grew keenly aware of this as he faced the intransigence of KBR Halliburton’s Iraq contractor and that of its insurance company. The State Department was on his side. The Defense Department’s inspector general was on his side, at least on paper. The truth and the law were on his side. But a newspaper investigation and a corroborating three-page document from the Defense Department would not be enough to win the day before a judge, and two years of effort might yield nothing for Kamala and the other families, now more than three years after the deaths of their husbands, sons, and brothers. The case was strong but still circumstantial. Handley and Ganesh Gurung were desparate to find any other men who had made it to the Al Asad Air Base via Jordan, had worked for the KBR Halliburton contractor, and had returned to the Himalayan kingdom. One living, breathing witness could be enough to bring home the overwhelming nature of the circumstantial evidence for anyone willing to consider it. But finding a returnee in Nepal more than three years after the massacre seemed beyond even the wildest needle-in-a-haystack fantasy, given the challenges of just finding the families. Gurung might have been a brilliant academic, but he wasn’t much of a detective, and Handley remained grounded in Washington, unable to travel to Nepal, Jordan, or Iraq for the case, as he continued to face the daily demands of his firm’s core work on shareholder class-action litigation.
Gurung put out feelers all over the nation. His best chance, the only real one he had, was to locate someone from his own ethnic group in the area close to where he had grown up, in the hills near the city of Pokhara. There he had the deepest connections and the most respect, and it’s also where the tradition of working overseas had first taken root in Nepal, thanks to the region’s history of filling the ranks of the elite Gurkha Brigade for the British. Gurung called and visited influential people across the region, imploring them to see if anyone could locate the needle in the haystack. It was a long shot, but it was the best idea he could come up with.
One day in late 2007, after more than a year of searching, Gurung got a call from a trusted friend in Pokhara. He had located someone who had been driven into Iraq on the Amman-to-Baghdad highway in the same convoy as the twelve, but in one of the vehicles that made it through to the base unmolested that day. Daoud had employed the man at Al Asad. Gurung’s friend suggested that the former Daoud worker, whose name was Buddi Gurung (no relation), wasn’t the most reliable Nepali he had ever met, given the man’s apparent penchant for alcohol, but he said he believed the story. He also confirmed the source’s details with others who had contemporaneous knowledge.
With the deadline for filing court papers fast approaching, Ganesh Gurung phoned Handley to share the exciting news. Handley told Gurung that even a sworn statement from the former Daoud worker might not prove sufficiently credible, and he needed a copy of the worker’s Daoud contract or some other documentary evidence clearly corroborating his story. A contract or pay stub also would help Handley overcome one other significant procedural challenge in the case. By law, compensation for the families was to be based on how much the men were supposed to be paid under Daoud’s contract with KBR Halliburton, and for this, Handley didn’t have a shred of evidence. Handley feared there would be no compensation, and his attempts to wrench loose pertinent documents via discovery in the case had yielded only a copy of the insurance policy.
In February 2008, Handley filed a motion with an administrative judge demanding compensation for all nine families and arguing that the evidence was so strong that the judge should order the insurance company to pay the claims without even holding a hearing. Exhibit A was the Tribune investigation. Exhibit B was the inspector general’s report. There were twenty-one exhibits in all, and Handley attached a declaration to the court attesting to hi
s own phone conversation with Buddi Gurung. “Counsel for claimants discovered another Nepali citizen who had been employed in Iraq at the same time as claimants, had traveled to Iraq in the same caravan as claimants, and has since returned to Nepal,” Handley wrote. In the declaration, he said, “I spoke to Mr. Buddi Gurung via telephone . . . Mr. Gurung said that the [twelve] were also with him in Amman at that time and that he traveled in the same caravan from Jordan to Iraq . . . Mr. Gurung told me that he was not in the vehicle in which [the twelve men] rode and which was ultimately stopped by insurgents.” Handley also gave the judge a copy of Buddi Gurung’s contract with Daoud at Al Asad, showing he was paid about $112 per week, or just under $16 a day, which included the always demanded overtime. Ganesh Gurung gave a statement attesting to and detailing the dependency of each surviving relative on each murdered man prior to his death. In the case of Kamala and the other widows, there was nothing to prove, beyond the fact that they had been married to the murdered men and had had children with them. For those who left behind only parents, however, the sociologist detailed the integral role each son had played in providing for their security.
Two weeks later, Roger Levy finally conceded that the Nepalese men had in fact worked for Daoud when they were driven into Iraq, kidnapped, and executed. Buddi Gurung and his contract meant that reality could no longer be denied and had elicited a remarkable concession coming from the attorney formally representing the contractor. Then Levy shifted his ground again, in an effort to deny most of, but not all, the claims. While he conceded that Kamala and the other two widows should be paid, he argued that Handley had not provided enough evidence to show that the six sets of surviving parents had been sufficiently dependent upon their sons to warrant compensation, referring instead to their “alleged dependency.” The sworn statement of Ganesh Gurung, a sociologist and expert in foreign migration who had interviewed each of the families about their circumstances, didn’t cut it, Levy said. “Interestingly, in the Hindu religion, one of the best known and most-worshipped deities is also named ‘Ganesh,’” Levy wrote to the judge. “The deity ‘Ganesh’ is known to and worshipped by Hindus as the ‘Remover of Obstacles.’ The ‘Ganesh’ in this case, unlike the deity who bears his name, has not removed all obstacles impeding claimants.”
Levy flew to New York and checked into Le Parker Meridien hotel, in the heart of Midtown Manhattan. He had asked Handley to meet him there on the morning of March 20, 2008, insisting on a telephone deposition of Ganesh Gurung from his hotel. Handley wasn’t sure why this couldn’t have been arranged on a conference call from their offices, but he flew to New York anyway and met Levy in person for the first time. A court reporter was in the hotel room, too, with her stenography machine. Handley sat awkwardly on a swivel chair next to Levy’s bed in the somewhat cramped quarters, with the telephone, on speaker mode, on a side table next to them. They called Ganesh Gurung at about 10:15 a.m., 8:00 p.m. in Kathmandu, and Gurung answered in the ground-floor office of his home. The power was out at his home in Kathmandu, as usual, so Gurung sat at his desk and gave his deposition by candlelight. One of the six families Levy was fighting was that of Bishnu Hari Thapa, the eighteen-year-old who had left the clipped, haunting message “I am done for” just before he was driven into Iraq, and whose mother had survived in their village as a stonecutter. In his questioning, Levy asked for a general understanding of the socioeconomic structure of farm life in rural Nepal. Gurung did his best to convey intellectually what Bishnu Hari’s mother had so viscerally conveyed to me three years earlier: why she had prayed so hard to have a son, why she had so often heard the blessing “May you be the mother of a hundred sons,” and then why she had been so grateful after he was born. “We do not have any kind of insurance system in Nepal,” Gurung said through the speakerphone. “That is why we prefer to have many sons, which are taken as a kind of social security in parents’ old age. Sons are very important in Nepalese society because they are the insurance, they are the social security.” Levy spent about forty minutes questioning Gurung on a call that likely cost thousands of dollars from a hotel. At the end, Levy made it clear to Handley that he remained unconvinced, which infuriated and exasperated the young lawyer, but Handley kept cool as he walked out of Levy’s room.
* * *
About one month before the first anniversary of Kamala’s entry into the ashram, the head seamstress and other members of the staff started noticing a change across the campus, one that arrived as reliably each year as the onset of the monsoons. Women in the senior class began crying openly as they faced the reality that their time behind the walls was coming to an end and they would soon have to return to the outside world. Kamala and others in her class who had grown especially close to the seniors also found themselves struggling. The singing and dancing parties they held almost every Friday night inside their dorms got a little louder, a little more joyous, and went on a little later. They performed a traditional style of Nepali folk music known as dohori, in which two sides engage in a sort of Bollywood-style call-and-response battle. One side sings a question, often about love, and the other must sing back a witty reply, not too dissimilar from the way Kamala sang with her sisters when they worked in the hills. In the world outside the ashram, the opposing forces in a dohori battle are almost always divided by gender, so some of the women had to play male roles, which they relished with flashes of comedic oafishness.
Graduation day for the seniors came, and the women, dressed in their identical blue saris, stood in unbroken lines across the courtyard where the giant crows bowed the tree branches near the statue of the ashram’s founder. Kamala cried silently with pride and sadness as she listened to reminiscences and speeches filled with hope and watched each woman receive her diploma and then pose for a photo behind her sewing machine. By nightfall, an unfamiliar quiet fell over the campus.
In the days ahead, Maya began to notice that Kamala had turned a corner, not through some significant moment of self-awareness shared over the long-distance line, but simply through the stories of daily life her younger sister relayed during monthly phone calls to the shop by the side of the road in Taksar. In the days before the peaches or apples ripened fully on the campus trees, Kamala would sneak into the yard, survey the ground for perfect stones, and whip them at high-hanging fruit, knocking them to the earth so she and Kritika could snack. She told Maya how wayward stones occasionally ricocheted near the guardhouse, which was manned by the campus warden, who would burst out and chase after her, but she either got away or feigned remorse, promising she would never do it again. She also told Maya of the other small rebellions she led against some of the ashram’s rules, such as how she had stopped going to yoga in the mornings so she could spend more time with Kritika, and even sleep late with her; or how she would occasionally rally the other women into demanding extra free time or larger rations at meals; or how she would sneak out of her dorm in the night darkness and onto the balcony of the main classroom building to gaze at the stars above the emptiness of the airport at the edge of town. Maya realized that her sister was regaining the spirit of her childhood, a time when she could never resist the challenge to scamper up the tallest tree on the horseshoe ridge.
As the new class of women moved into the ashram to replace the graduates, Kamala recognized the shock and fear and mourning she saw on many of their faces, and she found herself offering the occasional unobtrusive word of encouragement. When they gathered at night on the straw mats spread across the plaster floor to speak of the past, Kamala found herself slipping deeper into the role of a senior woman, sharing openly her feelings on the sudden isolation she had felt in the home of a family that had previously embraced her so warmly. Like their predecessors, every woman in the new class knew the story of the twelve men, so there must have been some extra sense of connection as they heard that the pain behind a moment that had bound the nation together in grief and anger was no different from their own.
Not everyone in the ashram, however, appreciate
d that Kamala’s struggle had been as painful as her own, if not more so, given how difficult it was for Kamala’s grief to find anonymity within the infamy of her husband’s murder. Over their time together on the campus, Kamala and Heera, the other widow from the village on the ledge, had grown apart. Whenever the two women began to discuss anxieties about the future, or the pain of their pasts, Heera would tell Kamala that she was more privileged than the other women, that she was not like them. She told Kamala that she had nothing to worry about, thanks to the charitable money Jeet’s family had received in the wake of the nationwide riots, money that largely had been locked away from Kamala by her in-laws. As she regained her confidence, Kamala had at first pushed back gently in these moments, but Heera persisted, out of resentment perhaps or from a sincere belief that Kamala had no cause for pain or worry. Yet, as the women moved deeper into their second year at the ashram, Kamala was increasingly upset by Heera’s dismissal of her grief. One day, after a particularly stinging refrain from Heera, a shouting match erupted between the two women, in front of the others. “Money means nothing to me!” Kamala said. “My husband’s life cannot be compensated by any amount of money. I lost him and I lost my family, and no amount of money can fill the gap in my life! My in-laws got that money because my husband died in a place and at a time he wasn’t supposed to!” But Heera would not relent. Unleashed, Kamala screamed through her tears: “Yes, the government and the people were with me after my husband died, but no one cared about your husband!” Kamala’s words tore into Heera, and as the crying and shouting between the women escalated, a teacher from the ashram came rushing over to intervene. Kamala was instantly ashamed, but there was little she could say to undo the pain she’d caused Heera in that moment. The two women apologized, assuaged some of their hurt, and were civil to each other, but were never close again.
