by Cam Simpson
Ellison’s decision on negligence seemed just, but it also removed from the case what would likely have been the easiest victory. While the bar to proving human trafficking might have been high, it was hard to imagine any jury failing to recognize how Jeet and the other men had been delivered into Iraq. On this score, the delays Handley had faced, inside the firm and in dealing with the intransigence of the insurance company, seemed to haunt the quest for justice. But as Fryszman and Handley read Ellison’s ruling that day, it became apparent that KBR’s decision to bring the lawsuit home to Houston had likely backfired, given that the judge weighing the case had embraced the judicial philosophy that every person is deserving of the full protection of the law, no matter how small they are in the eyes of the world. That most especially included a young widow from Kathmandu and her daughter.
The plaintiffs’ team in Washington savored the moment. Far tougher battles lay ahead, likely for years to come, and the company surely would throw its considerable weight behind each one, but for the first time it seemed Kamala and the other Nepali families stood a chance of achieving the impossible.
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Women such as Kamala and widows from the Maoist war fighting for dignity in communities across the country might have pushed the culture of discrimination in Nepal onto its back foot, but they still faced centuries of tradition that needed to be ground down in order to secure their gains and achieve more. Beyond the cultural discrimination they faced, significant structural barriers also needed breaching, including property and probate laws akin to those on the books a century and a half earlier in Victorian England and the United States, laws that denied widows the right to inherit property from their dead husbands. Because such was still the law of the land in Nepal, a small national controversy erupted after Kamala and the other Iraq War widows started receiving American compensation payments from Matthew Handley’s victory in their case; the in-laws were entitled to absolutely nothing, as U.S. law stipulated that if there was a sole surviving spouse, only she and her children were the legally entitled beneficiaries. Clearly, this was poetic justice for Kamala and the other widows who had suffered so greatly, but Ganesh Gurung, the academic who had helped secure victory in their case, quickly found himself at the center of a personal, political, and media uproar in Nepal, where the American system appeared to be punishing the dead men’s parents, at least when viewed through the Nepalese lens.
Angry in-laws or their representatives called Gurung at all hours to scream about having been robbed, and prominent politicians and government officials soon joined the chorus. Gurung did his best to try to explain that American law, not Nepalese customs or law, controlled destiny in the case, but the in-laws were livid, and many Nepalis were on their side. For religious and political conservatives in Nepal, it became something of a cultural rallying cry, as they suggested that important traditions were under threat. Almost without exception, however, the widows resisted the pressure to share the award money with their dead husbands’ families.
Although they had spoken to the press, Kamala didn’t hear from Jeet’s family right away. Receiving the compensation payment might have been a cause of celebration for some, but it simply reminded Kamala of her loss and pain, and the actual transfer of the funds drove home the reality she had lived with since Jeet’s death, a reality that could not be wiped away by cash. After consulting with Ganesh Gurung and her sisters, she decided to use her money to buy some land on the northern edge of Kathmandu, not too far from one of her sisters, and to construct a small building on the site with some commercial space on the ground floor and a few apartments above. Like a lot of Asian cities, Kathmandu was booming, and its real estate market probably represented the safest investment in Nepal. A building would give Kamala a place to live with Kritika, a small space for a dress shop, and some other commercial and residential spaces to rent out, providing her a small but steady income. A distant relative from Gorkha who had a small construction concern in Kathmandu offered to run the project for her, but like contractors the world over, he squeezed her for more and more cash as construction languished well into 2009. Kamala knew that the man, who saw only a young woman alone with a large stash of cash, had taken advantage of her, but she felt helpless and got sucked into paying him more and more to try to get her house built. Then, one day, she met by chance with another distant relative from the horseshoe ridge, a man with a reputation as a sort of tough guy, if not a small-time hood. He was livid over Kamala’s treatment, and not long after, he had what might euphemistically be called a heart-to-heart conversation with the builder. More of the work got done, but even then, Kamala found herself doing some of the painting and other odd jobs to finish off her own flat on the second floor.
Once she was settled into her new home, Jeet’s family came knocking. The insurance company in the United States had agreed to pay the families in lump sums, instead of trickling out payments over many years, and Kamala’s in-laws wanted half of what she had received. Kamala couldn’t believe that after all she had been through that they wanted money from her, but she also felt in her heart an obligation to consider their request. She believed in a Nepalese version of the saying that you should treat people who are unpleasant to you by killing them with kindness. She stood ready to forgive and help them, something she also thought would be important for Kritika’s future. Her mother-in-law’s second-youngest son had been killed in India, so the family felt as if their home in the village on the ledge had somehow become cursed with the painful memories of two lost sons. They asked Kamala for money so they could build another house and leave their own past behind, as she had done.
Kamala told her mother-in-law she could keep all the money in their joint bank account back home in Gorkha, which had been created with the small payment the Nepalese government had made in the wake of the killings. Later, Kamala spoke to her sisters about whether she had done the right thing. They were somewhat sympathetic to Jeet’s family, and one even suggested that Kamala give them more. “You lost a husband, but they lost their son and brother,” the sister said to her. So Kamala sold another piece of the Kathmandu land she had purchased as an investment and gave the money to Jeet’s family, going well beyond what other widows had done for the families of their deceased husbands. Yet Jeet’s family never showed any gratitude; nor did they invite her to visit or make her feel welcome on the occasions when she returned to the horseshoe ridge with Kritika. Even so, Kamala believed that honoring Jeet’s family in this way also honored his memory.
Kamala opened her dress shop on the ground floor of her new building and rented out the adjoining shop as a convenience store. She also leased a couple of sewing machines to use in the shop. Her Luxmi from the ashram would stay in her flat on the second floor, in the living room, where the sight of it each day filled her with a sense of pride and warmth. She felt she had finally secured a future for herself and her daughter.
* * *
Any sense of accomplishment for Fryszman and Handley after the initial victory over Rivkin and the rest of KBR’s defense team in Houston quickly dissipated as the lawyers took full measure of what was ahead. If taking on the company was akin to scaling a peak, they had simply survived KBR’s effort to block them from reaching the first base camp. From her other battles with powerful defendants, Fryszman knew the real climb remained, and the air would get thinner with each step.
Even the most basic steps required in a lawsuit could leave the lawyers feeling frozen in place. Consider their civil action’s codefendant, Daoud and Partners. The contractor was nowhere to be found and had not even been served with a copy of the court papers, though not for lack of trying. It was as if the company did not exist. Molly McOwen, the young human rights fellow on the Cohen Milstein team, was in charge of investigating Daoud, including locating any and all of its offices throughout the world. She discovered that the company had listed its total revenues as $10 million per year when it had been awarded a small U.S. Navy contract in 2009. Piecing togethe
r virtually every U.S. government spending record available connected with Daoud, she found more than a dozen other contracts with U.S. military entities, valued at a total of about $8.4 million. However, the real game was in Daoud’s work for the U.S. military via KBR, and publicly available records on payments to subcontractors were incomplete at best, making it impossible for her to get a good handle on that side of its business. Her best guess, based on fragmentary evidence, was that it probably amounted to about $50 million over a roughly five-year period before the suit was filed.
Physically serving papers on the company proved maddening. After finding a business registration address in Geneva, Switzerland, Cohen Milstein paid to have all its documents in the case translated into French, so they could be processed properly and served under Swiss law. But by the time the firm got all the necessary paperwork together, the company had either changed its name in Switzerland or liquidated its registered office there. (It was listed on a leafy residential street in Geneva, which suggested that the address had existed only on paper, perhaps to facilitate a Swiss bank account.) After more than nine months into the case, Cohen Milstein’s lawyers had to ask Judge Ellison to formally request the assistance of a Jordanian judge to try to serve the papers in Amman, where Daoud had another office. The human rights lawyers had everything translated into Arabic, hired a Jordanian lawyer, and went through an even more cumbersome process than they had undertaken for the Swiss address. Ellison signed a letter to court officials in Jordan on June 1, 2009. After nothing happened, he signed another request almost two months later. Still nothing.
Around Christmas 2009, Fryszman received a call out of the blue from a partner at a major Washington, DC, law firm. It was a man she vaguely knew, and vaguely knew to be associated with various national security apparatuses of the U.S. government. “The following is completely off the record,” the lawyer told her, “but you will soon hear from a firm which will be in a position to accept service for Daoud and Partners.” About a week after New Year’s Day in 2010, a Hollywood lawyer, a partner at one of the nation’s leading white-shoe law firms, filed an appearance with the federal court clerk in Houston saying he represented Daoud and Partners.
Before becoming one of Hollywood’s most noted defense attorneys, Christopher Tayback had been a prosecutor in the Los Angeles County District Attorney’s Office, and then a federal prosecutor. He worked at the firm Quinn Emanuel Urquhart Oliver and Hedges, and would later serve as the lead defense attorney for Bill Cosby. Some of his success perhaps owed to his Hollywood bona fides. Tayback looked just like his father, the late Vic Tayback, a character actor who played the eponymous owner of Mel’s Diner in the long-running television series Alice. Before long, an even higher-profile partner at the firm, Susan Estrich, also filed an appearance in the case for Daoud. Estrich, one of the most noted legal commentators in the country, had been the presidential campaign manager for Michael Dukakis in 1988. Perhaps not coincidentally, she shared a deep bond with Judge Ellison, also having served in a clerkship for J. Skelly Wright before going on to clerk at the U.S. Supreme Court, and she had remained in contact with Ellison.
McOwen and Fryszman could not be certain why their longtime prey finally emerged from the shadows, but McOwen believed that the tree shaking they had done through the Jordanian courts, although seemingly futile, had likely created local pressure on Daoud that the company felt it could no longer ignore. Beyond that, however, virtually everyone, including some of KBR’s lawyers, wondered how a small fly-by-night firm from the Middle East, one that no one could even find, could afford a top-flight defense firm, not to mention lawyers with the star caliber of Tayback and Estrich.
Almost as soon as Daoud came into view, however, it sought to retreat back into the shadows. Tayback demanded the dismissal of the lawsuit against his client, arguing that Judge Ellison had no legal authority to weigh a case against the firm. Daoud, Tayback wrote, “is a foreign company based in Jordan that does business exclusively in the Middle East.” It does not conduct, and has never conducted, any business in Texas or elsewhere in the United States, he said. It did not have employees, agents, offices, or property in America; nor did it have U.S. bank accounts or any assets inside the country. “Daoud’s involvement in this lawsuit arises solely from its work in Iraq as one of many KBR subcontractors,” Tayback argued. He proceeded to list, in great detail, all the things his client had never done inside the United States throughout the history of its existence. No Daoud entity ever had “an office, a telephone number, a postal delivery location, or a bank account in Texas or anywhere in the United States . . . No Daoud entity is (or ever was) registered or licensed to do business in Texas or any other U.S. state, nor does any Daoud entity have a registered agent for service of process anywhere in the United States. No Daoud entity has ever owned or leased any property in Texas or anywhere in the United States.” In case that wasn’t enough, Tayback also made clear that none of the alleged wrongdoing by Daoud had taken place “in Texas or anywhere else in the United States” and the families’ “alleged injuries were incurred in Nepal, Jordan and Iraq.” Kamala and the others who were suing Daoud, along with all their dead husbands, sons, and brothers, were or had been citizens of Nepal, not Texas, and not even the United States.
Tayback then made a claim on behalf of Daoud that had been defeated time and time again over the previous five years, proving once again the irresistibility of the “dead men tell no tales” defense. “Daoud never employed or entered into any employment agreements with the twelve deceased Nepalis whose families have brought this action,” he told the judge in one filing. Each body shop broker in Jordan working for Daoud, or in its human supply chain to KBR, had made one version or another of the very same claim during the Tribune investigation in 2005, and in each and every case, either they eventually confessed that it wasn’t true or their lies were debunked. The same basic defense was repeatedly attempted and debunked again throughout the two years that the compensation case was pending with the Department of Labor. And after the human trafficking lawsuit was filed, David Rivkin had danced around a similar claim at the first major hearing in the case in 2009. Now, in April 2010, this timeless defense was back again. Tayback based his assertion on the very last statement listed in a six-page declaration he filed with the court, which had been signed by Yazan Banna, Daoud’s manager. “Daoud did not employ, and therefore did not have employment agreements with, any of the other individuals” named in the lawsuit, a reference to Jeet and his eleven murdered compatriots. The next line in Banna’s declaration was this: “I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.”
Beyond the dead men not being available to testify, one other thing clearly made this defense possible, and even plausible, each and every time it had been attempted in the six years since the men’s deaths, and it got at the very heart of the case. It was the fundamental nature of modern human trafficking. There is no single villain pulling strings from the top, but instead, several individual actors who make up an overall chain of conduct. It is an inherently transnational enterprise that utilizes a global supply chain extending across multiple countries, and it requires an extensive transnational network of recruiters, contractors, subcontractors, parent corporations, and subsidiaries crossing jurisdictions, countries, and continents. The sheer number of actors involved allows each to point a finger somewhere else—to someone below him in the supply chain, or to someone above—or simply to deny his own individual piece of responsibility. But as one climbs higher in the chain, two things undeniably accrue: financial benefits and the potential knowledge of the wrongs below that delivered them.
Despite Tayback’s lengthy catalogue of all the things Daoud had never done, he let slip a couple of interesting tidbits about some of things it had done. For starters, the company began working for “U.S. Army personnel located in Jordan, and the United States Embassy in Amman” starting in 1996. None of these contracts o
r payments had turned up in Molly McOwen’s scouring of the public records about the firm, but they suggested that Daoud had what is known in Arabic as wasta, which means “political clout”; not just anyone in Jordan could get such contracts with the U.S. government. KBR would later admit, through a declaration from one of its executives, that unnamed “officials of the U.S. government” had introduced Daoud to KBR prior to the U.S. invasion, helping facilitate the contracts for the Jordanian company. Daoud’s lawyers also admitted that there were actually two firms run by the same men called Daoud and Partners, at least on paper. Although it was founded in Amman, Daoud had created in March 2004 a new and separate corporation that was registered in the British Virgin Islands, one of the world’s premier tax havens. Its previously existing contracts with KBR, and every existing contract it had related to the U.S. war in Iraq, were transferred to, and exclusively channeled through, the version of Daoud registered in the Caribbean. This company paid no taxes in Jordan, where its offices were located and from which it substantially ran the Iraq business. For Molly McOwen, these facts meant the once ghostly qualities of Daoud and Partners were beginning to take a more tangible form.
