by Cam Simpson
Despite their polar opposite political views, Fryszman and Rivkin shared oddly similar backgrounds. She had been born to Soviet scientist parents in April 1964 beneath the gray wet skies of Warsaw, Poland. Just before she turned four, her family was forced to flee an anti-Semitic purge targeting professionals, academics, and intellectuals. Although they both lived and practiced law in Washington, Fryszman and Rivkin met for the first time when Rivkin stepped off the elevator that day into Judge Ellison’s reception area, accompanied by the rest of his team. They were early, too.
Rivkin greeted members of the trio, and Handley took immediate notice of his erudite yet staccato manner of speaking. Rivkin spaces his words in an unnatural-sounding way, as if trying to carefully avoid revealing any traces of his native tongue. What emerges is an accent that Handley found distinctive but hard to describe, a bit like that of an Eastern European who had learned English at a Swiss prep school or a villain from a 1960s James Bond film. If not for this slightly jarring feature, the clever and ever-persuasive Rivkin would speak with a tongue cast in pure silver.
The hearing had been set for 2:30 p.m., but seeing that both sides were waiting, Ellison had them called into the courtroom about fifteen minutes early. Draped in his black robe, he entered from the right-hand side of the court, stepped up onto the slightly elevated platform that holds his bench front and center in the courtroom, and sat down in the red leather chair. Perched on the wall behind him, a giant bald eagle, clasping thirteen arrows in one talon and an olive branch in the other, watched silently from a bronzed copy of the Great Seal of the U.S. government. “Good afternoon and welcome to each of you,” Ellison said. “Let me say at the outset that I feel very fortunate—any judge would feel very fortunate—to have such superb lawyers in front of him. Thank you all very much.”
Fryszman stood at the head of the plaintiffs’ table on the left side of Ellison’s courtroom and spoke into the thin black microphone snaking out of the lectern before her. “Agnieszka Fryszman for plaintiffs, and I’m here with Matthew Handley and Molly McOwen,” she said.
“David Rivkin, Your Honor, for defendants. I’m here with Lee Casey and Billy Donley.” Casey was Rivkin’s longtime friend, collaborator, and law partner, and had coauthored many op-eds with him, but he seemed far more camera shy. Donley, who was wiry and bald, worked in Baker & Hostetler’s Houston office and focused largely on representing carmakers in disputes with their auto dealerships. Rivkin inexplicably skipped over introducing another member of the defense team, a veteran Houston corporate lawyer named Michael Mengis, who had recently joined Baker & Hostetler from one of the nation’s preeminent firms, where he’d focused on oil- and gas-related litigation, which was bread and butter for Houston corporate lawyers.
Ellison immediately drew a personal connection to Rivkin, one that could have been perceived as the judge either cozying up to the conservative lawyer or attempting to emphasize his own worldliness. “I remember now,” Ellison announced to Rivkin, out of the blue and as if the thought about to pass his lips had just come into his head. “Many years ago, I think—did you go on a tour of western Europe with the Council on Foreign Relations?”
“I most certainly did, Your Honor,” Rivkin said.
“I haven’t seen you in twenty years, I guess,” the judge replied.
“You have not changed,” Rivkin said, without missing a beat. “I wish I could say the same about me.”
“There’s many signs of mileage on me,” Ellison demurred.
The judge abruptly ended the pleasantries with an introduction of the great unpleasantness looming since red lights had flashed on BlackBerrys the night before. “We sent out a list of questions yesterday that have concerned me,” Ellison said. He told the lawyers he wanted them to address first the questions of the law and then the questions of fact. Because KBR’s motion to dismiss the case was the reason they had all come to his courtroom in Houston that day, he invited Rivkin to go first.
Most likely because of Judge Ellison’s e-mail and its seemingly favorable attitude toward his case, Rivkin spent little time on questions of the law. Instead, he hammered away with the very same fundamental line of attack launched by everyone involved in the case from the start, and the same one Handley had seen in his fight with the contractor and the insurance company: the key witness in each and every man’s journey to his death was, of course, dead. The death of the key witness is an inescapable fact in every murder committed across human history. Even Cain, after murdering his brother Abel, tried to use the silence of the key witness for his defense, replying to a question from God about his victim’s whereabouts with “Am I my brother’s keeper?” Because they hadn’t even made it to their jobs on the base, it was difficult to ascertain what, if any, role KBR played in the machinery behind their ordeal. In the minds of those who shared responsibility across the world, from Nepal to Washington, either directly or indirectly, it made a defense that is often difficult to employ much more plausible: deny, deny, deny. Rivkin was the latest in a long line to try to leverage the missing witnesses for his defense, this time on behalf of KBR.
Rivkin acknowledged Judge Ellison’s request to focus first on the law, but he made it clear from the start that he would go the other way. “I actually would like to focus my remarks on the fundamental factual deficiencies of the complaint, but I would weave in several points about the law,” he said. The weaving didn’t take long, as Rivkin moved quickly through a procedural question. Then he paid momentary respect to the dead. “Let me also begin by making clear that we understand the nature and the depth of the personal losses suffered by the plaintiffs,” he said. “We extend our condolences. Moreover, we also understand and acknowledge that the problem of human trafficking is a very grave one. That said, I want to underscore that KBR was not associated with the trafficking enterprise, as claimed by plaintiffs, nor was it responsible for the murder of their loved ones or any of their other claimed injuries.”
The overall standard the trio of human rights lawyers needed to meet by the end of their case was to win by a preponderance of the evidence, which is to say that they needed to prove that the allegations in their lawsuit were more likely to be true than not. Yet, on that day in Texas, they did not have to prove their entire case. To defeat KBR’s motion to dismiss, they faced a much lower bar. They simply needed to show that what they had alleged in their lawsuit was factually “plausible.” Still, Ellison’s e-mail worried the trio: perhaps he wasn’t buying even that much, at least when it came to some core elements of their case, including KBR’s involvement in a racketeering enterprise.
Rivkin argued that Fryszman and her team needed to put the fingerprints of specific KBR executives on a human trafficking enterprise in each and every one of the twelve victims’ individual cases, and in a detailed way, because the allegations contained in the lawsuit amounted to “claims based upon newspaper or government reports, or about individuals who are not party to this suit, that provide little or no information about the individual experiences of the” twelve dead men. “Indeed, Your Honor,” said Rivkin, “virtually all of the facts alleged in the complaint, regarding how plaintiffs’ relatives came to be in Iraq, appear to have come from a three-page Defense Department memorandum dated April 14, 2006, which was cited in the complaint, and two Chicago Tribune stories dated October 9 and 10, 2005, upon which these documents relied.” There was plenty of information from the U.S. government “in the wake of the murder of the plaintiffs’ relatives in 2004 [about] how workers were recruited in Nepal and transported into Iraq. [But] they do not significantly provide information” about each of the twelve men at the center of this case, Rivkin said, “except to the extent that they may have been Nepali—”
“Let’s just pause for a moment,” Judge Ellison said, cutting Rivkin off and taking stock of the dilemma the families faced in bringing their suit and of the “dead men tell no tales” defense. “What other sources of information are they likely to have, given that these horrific acts
were committed the way they were? I mean, how else do they get facts about that?”
“Well, Your Honor, they certainly had opportunities to interview the plaintiffs or relatives of the deceased victims,” Rivkin said. “They’ve done that in the context of preparing for this litigation. Significantly, they’ve done it much earlier in the context of preparing for their DBA, Defense Base Act, hearings at the Department of Labor, because there is at least some overlap between the plaintiffs in that case and the plaintiffs here. And, most importantly, they had opportunities to interview at length Mr. Gurung, who is indeed alive.”
Ellison intervened again, trying to steer Rivkin toward a discussion of the law by asking him about the leading court precedents that mattered most in weighing KBR’s motion to dismiss the case, but Rivkin would not yield in his campaign to raise doubts about what had happened to each of the twelve dead men. He launched into a man-by-man accounting of the lack of specificity cited in the lawsuit for each individual dead man, in terms of who, exactly, had promised what to each man, where, and when, at each step in his journey across the world and into the convoy. Some of these details would never precisely be known, which Rivkin obviously knew, but the lawyers representing the families certainly had more granular detail than they had put into their lawsuit, and they would use the suit and the discovery process to gather even more. The question was: had they included enough to survive this motion, especially given how the move from California to Texas had opened a door for Rivkin?
Rivkin turned his attention to the dramatic video in which, one by one, each man, knowing his death likely was imminent, stood before the terrorist’s black banner, faced the camera head-on, and offered his final words in Nepalese. Many of their statements had been included in the lawsuit, and they would surely constitute a powerful piece of evidence at trial. Some of the men said they had been held in Jordan and sent into Iraq against their will, while others lashed out at the brokers who had taken their families’ life savings or bought and sold them across the world, while others used words such as trapped to describe their ordeal. Even here, Rivkin took issue with the lack of unanimity and the lack of detailed specificity in the men’s final words to their families and the world. “These include allegations that at least some of the men in the video—and I have to say the word ‘some’—stated that they were held captive in Jordan, and that all stated on television that they were forced to go to Iraq, also without saying who was responsible.” He then asserted, “Such statements were, of course, routinely coerced by insurgents from their captives in Iraq.”
Rivkin’s argument about the statements being coerced was implausible in two important ways: the odds were close to astronomical that the Iraqi insurgents even had a vague comprehension of what the men had said into the camera in their native tongue, let alone that they had coerced them into saying it. Nepalese is one of the most obscure languages in the world, and it was estimated that only two out of Iraq’s twenty-five million people spoke it at all. Even if the insurgents had miraculously managed to find and capture those two people to act as interpreters for them, and then had scripted these clearly unscripted statements, the argument also made no sense on another level: the point of such a coerced statement would be to deter other contract workers from willingly joining the “Crusader” army. Coercing the Nepalis into saying they had been tricked and forced to come would not have been a very logical way to serve such a goal. A different video released by the insurgents, the very first one, in which the farmer who later had his throat slit tried to read out a mangled, unintelligible statement in broken English, clearly fit Rivkin’s bill of a coerced, false statement. The video containing the men’s final words in Nepalese did not.
The nearly limitless possibilities offered to a defense lawyer by the principle of “dead men tell no tales” seemed so irresistible to Rivkin that even though the dead men in this case had told their tales, and those tales had been recorded for posterity, he couldn’t resist trying to skate past them. Before finishing his line of attack on the twelve, he pretended that the words in the video had never been spoken, had never been recorded, had never been broadcast. “There were no allegations that any of the plaintiffs’ relatives attempted to escape or even demanded to be returned home before they joined the convoy into Iraq,” he told the judge.
Ellison let Rivkin go on from the start of the hearing for eighteen straight minutes and gave Rivkin so much deference throughout the afternoon that not only were the three human rights lawyers worried, but one of Ellison’s own clerks privately warned the judge that he had afforded Rivkin way too much time.
Rivkin devoted the biggest chunk of that time to Buddi Gurung, the thirteenth man. Gurung served some important functions in the case for the plaintiffs. By virtue of his inclusion in the same convoy that day with the twelve, but in a car that had made it through, his very existence offered a powerful connection between the dead men who could not speak and the reality of what had happened to them. He gave their story flesh and breath and voice. I was there, he could say. The road was long and we were terrified, and so on. He also served another important role in the case. The fact that he got through to the Al Asad Air Base irrefutably proved the function that the convoy served, along with the function of the entire transnational pipeline of cheap labor behind it, which ended at, and fed, KBR’s operations at the base for the U.S. military. He and the other men who made it through that day not only went to work under KBR’s contract but would be supervised by KBR managers.
Yet, for all that Gurung’s presence added to the case of the twelve, the differing details of his own journey to Iraq could also significantly detract from it. If the trio of human rights lawyers were to try to reap the benefits of including Gurung, KBR’s lawyers would try to exploit his weaknesses and wrap those back around the twelve. Judge Ellison had sensed some of these potential weaknesses, and so had raised questions about Gurung in his e-mail to the lawyers the night before. Perhaps Rivkin’s best chance to dent the plausibility of the trio’s lawsuit was through Gurung.
“Now, again, in answer to your question,” Rivkin told the judge, referring to the e-mail from the night before, “I mention the theory that one could have gotten a lot more out of Mr. Gurung, who is alive; but the complaint is even less informative with regard to him. There are no factual allegations regarding who recruited him in Nepal, what he may have been told there, how he arrived in Jordan. And the complaint merely states—and I quote—‘Plaintiff Gurung’s journey to Iraq was similar to that of the deceased victims,’ except, Your Honor, that it was not. Mr. Gurung was alleged to have been recruited in Nepal by an unidentified party and first traveled to India, which is not an allegation made in regard to any other plaintiffs, where he stayed for three weeks before going on to Jordan. There’s no allegation he had any contact with either Moon Light or Morning Star, the supposed gateways into this whole enterprise, or that he expected to work anywhere but in Iraq.”
Rivkin had done some truth stretching throughout his presentation on the twelve, but there wasn’t much stretching needed with regard to Gurung. Rivkin noted that, according to the lawsuit, Gurung had signed a contract in Jordan, although that was not a fact the suit offered up about any of the twelve. “And then he was assigned to the same caravan as the plaintiffs’ relatives. [There are] no other facts that would link him to any trafficking scheme—alleged trafficking scheme. Once he’s in Iraq, he’s alleged to have worked for Daoud and KBR and to have been supervised by KBR representatives. He was allegedly told by Daoud, quote, ‘He could not leave until his work in Iraq was complete.’ That’s an ambiguous statement that does not manifest intimidation or physical coercion. Certainly, it does not necessarily do so. And actually, in answer to Your Honor’s question on this point, no facts are alleged showing any kind of physical harm, coercion, or intimidation directed at plaintiff Gurung or, for that matter, any of the deceased victims. There’s no allegation that Mr. Gurung attempted to leave or that he demanded his passport upon
arrival in Iraq. It’s simply alleged that his passport, quote, ‘had not been returned until he was returned to Nepal upon completion of his contract.’ There are no allegations regarding who may have held Mr. Gurung’s passport, under what circumstances it was taken, and why.”
Rivkin concluded by wrapping all the doubts he had elaborated about Gurung’s experience back around the twelve: “We believe, Your Honor, that although the complaint certainly presents a skillfully woven narrative, allegations regarding the experiences of one plaintiff, or plaintiff’s relative, or the experiences of workers in general, cannot serve to make plausible the claims of another. Each plaintiff must independently meet” the plausibility test, he said. “We, as defendants, are entitled to know the factual basis of each plaintiff’s claim.”
Conveniently for his client, Rivkin concluded by informing the judge that “in response to another one of your questions, we are unable to ascertain the frequency at this time of the contacts between Daoud and KBR.” Then he suggested something that his client knew was not true: maybe these twelve men were not even headed to work under KBR’s contract when they were driven into Iraq. “Daoud was a subcontractor not only for KBR, but for other prime contractors in Iraq, as well as [being] a prime contractor in its own name, both in Iraq and elsewhere in the region,” he said. There was no evidence even in the allegations, let alone plausible evidence, he argued, that the two companies had formed a human trafficking enterprise in violation of the racketeering laws.
