The Girl From Kathmandu

by Cam Simpson

  The true nature of Daoud started coming into view as KBR’s lawyers launched an assault on the subcontractor, attempting to shift responsibility for the case onto Daoud’s shoulders. Daoud had agreed through a clause in its Iraq contract, known as an indemnity clause, to assume responsibility for any liability that resulted from its work for KBR, and now KBR wanted to force the issue. But first, KBR’s lawyers made it clear this was no tiny fly-by-night operator.

  “Since 2003 Daoud & Partners has entered into over fourteen-hundred contracts worth nearly $500 million with various KBR entities,” KBR’s lawyers wrote in one of their first salvos. Through an order from Judge Ellison that followed, Fryszman and McOwen got access to internal Daoud records. What they found was jaw-dropping: between 2003 and 2008 alone, the actual payments to Daoud reached a total of $641 million. The human rights lawyers also learned that these funds made up at least 98 percent of Daoud’s total revenues, while the remainder came directly from the U.S. government itself. That meant the Jordanian company received an average of almost $130 million per year from American military contracts, awarded by and performed through an American company—and for work carried out on a military base occupied and run by Americans. It also meant that 100 percent of Daoud’s corporate revenues came courtesy of American taxpayers. Now this same company was arguing that Kamala and the other families had no right to sue it in an American courtroom for what had happened to their husbands, sons, and brothers.

  Rivkin’s role for KBR receded somewhat as the battle with Daoud began. The man charged with leading that fight for KBR was the seasoned and skilled corporate defense attorney Michael Mengis. Mengis started dribbling out important revelations about the twelve Nepalis in the motions and briefs he filed, and in the attached documents. In one, KBR revealed that it had evidence showing that Jeet and the other eleven men were, in fact, headed to work for Daoud under one of its contracts with KBR at Al Asad. It said that “the twelve Nepalese men who were killed by insurgents in August 2004, and whose relatives are plaintiffs in the instant action, were recruited by Daoud and were scheduled to work in the laundry facility under the Laundry Contract.” That contract was “for the operation of a laundry facility at Al Asad Air Base in Iraq between December 2003 and December 2004,” Mengis wrote, naming it specifically as “Subcontract Number GU84-VC-SB10005.”

  Although this marked the first time KBR had admitted knowing specifically that Jeet and his compatriots “were recruited by Daoud and were scheduled to work in the laundry facility,” it was not the first time that KBR had singled out that very contract. In fact, KBR, when it made one of its first substantive motions in the case, the one it filed to transfer the lawsuit from California to Texas, had specifically flagged the relevance of the laundry contract without revealing that it knew that the murdered men had been recruited by Daoud to work under it. (KBR had pointed out then that the man who had executed the deal, along with other contracts it had with Daoud that year, was then-KBR procurement manager Robert Gerlach, who was a resident of Texas, not California.)

  The battle over whether Daoud could be sued in an American federal courtroom, along with KBR’s battle to make it responsible for defending the entire lawsuit, dragged on before Ellison for an astonishing two years. Fryszman didn’t mind watching her two defendants fight and sap each other, but this meant that most of the overall progress of the case stalled. Ultimately, Ellison rejected Daoud’s efforts to dismiss the case based on jurisdiction and KBR’s attempt to place the liability on Daoud’s shoulders. On the latter front, Ellison ruled that no one can contractually agree to assume liability for a business partner’s share of “future criminal misconduct.” By the time all these battles were settled, however, it was Christmas 2011.

  The only other real movement in the case during those nearly two years of fighting was the Cohen Milstein lawyers’ discovery process against KBR, but it would prove to be movement without significant progress. Discovery gives each side the ability, in the words of the Supreme Court, to “compel the other to disgorge whatever facts he has in his possession” about the case, based on the principle that mutual “knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Lawyers gather these facts through demands for internal records, except for those that are deemed to be privileged communications between an attorney and his client, and through cross-examining witnesses or key litigants from the other side in depositions. Adversaries also can demand that their opponents answer written questions. Claiming the other side is merely on “a fishing expedition” does not offer relief from the investigation, and willfully withholding relevant documents or facts is a most serious offense, given how important the discovery process is to reaching a just resolution of disputes in an adversarial legal system. Short of that misconduct, the process can, at times, get rather bloody, but more often than not, it unfolds in a manner satisfactory to both sides, with a rhythm like this: a plaintiff’s lawyer asks for the moon, the defense balks and then makes a fairly reasonable counteroffer, and the deed is done. Getting KBR’s internal documents was the top priority, as it would enable Fryszman and her team to properly prepare to cross-examine and confront KBR executives during depositions.

  KBR’s lawyers told Fryszman that the company’s documents had all been moved to an electronic retrieval system. She shot for the moon in seeking access to a vast trove, but the defense team balked. Its initial counteroffer was to search a limited number of terms for documents generated by, or about, ten out of KBR’s more than twenty-seven thousand employees, which did not include employees for its former parent company, Halliburton. It offered to include search terms about its operations at Al Asad, such as mess hall and laundry, and specific terms about the allegations in the suit, such as trafficking in persons. Fryszman thought a search term such as mess hall was so broad it would be a waste of time for KBR, likely to return tens of thousands of irrelevant e-mails about overcooked hamburgers and stale potato chips. And, she suspected, a search for terms such as trafficking in persons would yield an utter paucity of anything valuable, as an employee or contractor complaining about or even participating in such abuses would never type anything akin to the lawyerly phrase “trafficking in persons” into an e-mail. Despite these concerns, she agreed to KBR’s initial proposal, believing this was just the first round. Perhaps she also was feeling a bit overconfident, given that her team was on a roll, winning on virtually every front thus far in the more than three years the case had been pending. In addition, Fryszman was keen to get a look at KBR’s internal documents sooner rather than later. The ten current or former employees on KBR’s list included at least one name that already was familiar to her team: Robert Gerlach, the KBR manager at Al Asad responsible for the laundry contract with Daoud under which the twelve men had been brought into Iraq.

  13

  March 2012

  Nepal

  The receiving line started almost half a mile outside the village, along the narrow trail winding up from the riverbank and into the hills. Virtually every boy and girl, every man and woman, every living person of every age born in the village of Garang stood beside the trail, shoulder to shoulder, to welcome the three arriving Americans, covering each in garlands of marigolds and purple trumpet flowers, and unleashing applause that thundered into the hills as they approached and passed. Matthew Handley, Molly McOwen, and McOwen’s fiancé, an architect named Craig Cook, had had no idea any of this awaited them. They had trekked all day to reach Garang after their four-wheeler could take them no farther. The receiving line curled in behind the trio as they stepped up the trail, creating a cheering crowd all around them as they entered the village like champions at the end of some epic race. Handley and McOwen’s success in the compensation case of another Iraq worker’s widow had changed the woman’s life, and had helped transform the entire village of Garang, making Handley something of a miracle worker to the people there. Handley had done most of the work on her case, which had become an area of
expertise for him following his initial experience with Kamala and the other families of the massacre. The widow in Garang had established a charity to provide scholarships for girls, and her newfound wealth had benefited the lives of those near her in countless ways. Handley beamed silently, feeling somewhat overwhelmed as he stood drowning in marigolds. Cook also was overcome if sheepish, telling nearly everyone who draped a string of flowers over his head, “Really, I had nothing to do with this!” until the applause brought him to tears. McOwen offered the villagers her own bit of self-deprecation: “I only did ten percent of the work!” Someone put white and lavender trumpet flowers in her hair.

  In the four years since he had won compensation for Kamala and the other families, and his marriage had simultaneously collapsed, Handley had made partner at Cohen Milstein, and then, not long after, sought a one-year leave of absence. Handley wanted to travel and also wanted to explore the potential to build his own practice around international human rights litigation, one anchored largely in what he assumed was an ocean of compensation cases from the wars in Iraq and Afghanistan. These cases might not carry anything remotely close to the potentially massive attorney awards offered by class-action litigation, but they could pay the bills. Other partners at Cohen Milstein didn’t seem happy with Handley’s demand for leave, arguing that it was financially unsound for both him and the practice, but he was unbending. He was also burned out, just as his bosses had feared years earlier. It was remarkable he’d lasted so long, given that the grind of the shareholder class-action cases hadn’t relented while his devotion to the other side of his practice had only grown. As strongly as he felt about his part-time role in the lawsuit against KBR and Daoud, he also felt frustrated by the snail’s pace at which the litigation was moving toward an unknown resolution, in contrast to the compensation cases, which had all concluded so much faster, and successfully. Those cases gave him a deep sense of pride and accomplishment, as tangible as standing in one of the world’s most beautiful landscapes and drowning in marigolds. Moments like this, and his victories in these cases, would stay with him forever. They had a narcotic effect, furthering his desire to bring his practice of the law as close as he could to actual human beings who had been denied justice, versus entire classes of faceless shareholders.

  McOwen and Cook were on vacation, and had joined Handley on a trekking expedition, which they had routed through Garang so they could meet the widow. McOwen had been inspired by her work on the case against KBR and Daoud to visit Nepal, a land she knew only in black-and-white court filings stuffed in manila file folders around her office. Handley had promised to meet her and Cook along the way. The extraordinary reception in Garang was emotional for everyone, and gave McOwen a needed boost. She hadn’t done much work on the original compensation case, but had now been immersed for four years in the lawsuit against KBR and Daoud without even having met the people she represented. Almost six years into her work for the firm, she also remained stuck on a track that didn’t offer her much pay compared with that of other lawyers, or even a road to partnership, so she had searched for other ways to stay committed to her job. Garang gave both her and her fiancé a profound sense of what was behind her long hours in the office, which had been an occasional source of tension in their relationship. McOwen couldn’t resist hoping that, in eighteen months, this same scene might be repeated with Kamala and the other families of the twelve, not necessarily with the lawyers bathed in wildflowers, but with them all celebrating that some measure of justice had been achieved.

  That night the three Americans shared a traditional Nepalese dinner with their hostess and then slept soundly in the mountain air.

  As the sun rose over the river valley below Garang, the Americans said their good-byes, bowed gently to the villagers, and then headed back down the winding trail amid the sweet smell of the kitchen fires wafting around them. They trekked deeper into the hills for a couple of days more before meeting Ganesh Gurung. McOwen had agreed with her bosses that she would sit down with the families of the twelve at the end of her vacation in order to assess their abilities, their willingness, and their potential strengths or weaknesses as witnesses in the case. Handley had agreed to help, even though he was on leave. Gurung had arranged an all-day meeting with the families in Kathmandu, but first, he took the trio to the sacred temple in Gorkha called Manakamana. It is Nepal’s most famous temple outside Kathmandu, not far from the horseshoe ridge where Kamala was born and raised. Cable cars that glide in the sky above more than a mile and a half of steep terrain, delivering thousands of pilgrims and tourists a day to the top of the mountain, had recently replaced the three-hour trek that used to be necessary to reach the peak. Bleating goats are herded into some cars reserved for ferrying them to the peak, but the goats don’t come back down: they are sacrificed in ritual prayer at a blood-splattered stone pillar near the temple’s entrance.

  McOwen feared she was coming down with a case of dysentery but was determined not to let it ruin their adventure, and she did her best to hold on to the contents of her stomach as she rode back down the mountainside with Nepalis clutching plastic bags filled with the butchered remnants of their sacrifices, which would be used to make goat curries that very night. She and her fiancé then piled with Handley and Gurung into a jeep that bounced them over Nepalese roads for about five hours before reaching Kathmandu, where Gurung had organized a small dinner party at his home with some elite Nepalis. Before dinner was served, McOwen realized quite suddenly that she could no longer maintain a peaceful coexistence with her body, a reality that overtook her while she was speaking to Nepal’s former ambassador to Myanmar. She barely made it past the woman and into Gurung’s bathroom, where she would spend much of the night.

  With some bed rest and the aid of powerful antibiotics, McOwen rose to face her first meeting with the families at the office of Gurung’s think tank near the American embassy in Kathmandu. Normally, a law firm such as Cohen Milstein would prepare for days, if not weeks, to assess the witnesses for its side in a case, bringing in an entire team to meet with them and then brainstorm about different facets of their stories, their suitability, their potential weaknesses. McOwen, not even an associate at the firm, let alone a partner, was expected to do this at the end of her vacation and virtually alone, with Handley chipping in only while on leave.

  There are always struggles with interviewing through an interpreter, especially in speaking with less educated people and having to parse past, present, future, and pluperfect tenses in an attempt to build a detailed time line—and in litigation, especially a cross-examination, such details are what matter. In addition, McOwen was supposed to sort through any papers her interview subjects still had relating to their sons, husbands, and brothers. Among the Nepalis, there was confusion over the constant plea from the lawyers for “documents,” a word they associated solely with the likes of a birth certificate. McOwen not only had to collect any documents that might be relevant, but then had to share them with KBR in the discovery process under way. Combined with her dysentery-addled body, her duties proved overwhelming at times that day.

  All twelve families gathered beneath the low ceiling in the narrow room on the top story of Gurung’s office, crowding on the floor around a low rectangular table. Handley and McOwen met individually with each of the families. McOwen soon began to feel the accumulating emotional weight of each family’s story, with mothers describing how they had watched the executions of their sons, or women explaining the pain of the suddenness of widowhood. She felt the imploring eyes of these same women looking to her to do something about these experiences, and about what had happened to their loved ones. Some wondered how many more times they would have to relive their trauma for the American lawyers, how much longer they would have to engage in a process that seemingly had no end, but hearing of these collective experiences was new to McOwen.

  Kamala came into the room from the adjacent rooftop deck and sat down before McOwen and Handley. She was reserved in a way t
hat made her seem almost skeptical of the lawyers. Soon, though, she started to speak with candor and passion about everything she had been through, from the farm to the ashram, the experience of raising a daughter on her own, and even of the rejection by her in-laws. The strength she had regained during her two years with the women of the ashram, and the way she had rebuilt her life, gave her telling of her ordeal a quality that set her apart from others, a kind of steadiness and soft-spoken clarity born of self-awareness. McOwen and Handley both knew she would make a powerful witness in the case—forceful, but with a certain wisdom about everything the Iraq War and its global supply chain of human beings had meant for her corner of the universe in Nepal, and for her daughter. They asked if she would be willing to help, and she pledged to do whatever was necessary.

  McOwen and her fiancé flew back to Washington a day later. She was overwhelmed by her experiences with the families and the stress of having such a major task on her hands, but she felt fairly confident Kamala should be at the fore of their case.

  As she exited Gurung’s office, Kamala was reminded anew of how Jeet had died in a time and a place and a way that weren’t meant to be, and a fire started to grow in her. Having shielded Kritika from her father’s fate for nearly a decade, Kamala waited for a moment when she was alone in the house and gathered the courage to watch the execution video she had avoided for just as long, feeling, perhaps, that it was finally time for her to know precisely what had happened to her husband in that ditch in Iraq. As the images and the sounds moved across the screen of her phone, they were seared indelibly into her mind in a way she immediately knew she could never unsee, but still, she watched a second time, having been so traumatized upon the first viewing that she hadn’t even looked for, or specifically noticed, Jeet, though the camera captured each man as he was shot in the back or the back of the head. Upon watching a second time, she looked just for him, and she recognized the gray shirt on her husband’s back as he lay facedown in the ditch, and then she saw his thick black hair, which had smelled of sweet jasmine oil when he held her, and almost instantly a kind of cold that Kamala had never experienced seeped into her heart. Forever after, she would carry a new memory of the last time she saw her husband alive.