by Cam Simpson
In the wake of Ellison’s ruling against virtually every KBR assault on the case, the company fired Billy Donley, David Rivkin, Michael Mengis, and the rest of the defense team from Baker & Hostetler. It’s not clear whether KBR fired them because the aggressive tactics they had employed in the case quite possibly worsened the company’s fortunes with the judge, or whether KBR fired them because it believed those tactics weren’t aggressive enough, or for some other reason, but Fryszman and Hoffman were not sad to see them go.
Fryszman and her case had survived so many assaults, but finally Kamala and the other families were going to get to tell their stories to a jury, an outcome that KBR had fought so tenaciously to avoid for so many years, and one Fryszman and Hoffman now relished.
* * *
At about eleven on the morning of Saturday April 25, 2015, Kamala unlocked and rolled up the steel door to the dress shop on the ground floor of her building with Kritika by her side. Kritika’s cousin, a boy named Mishon, had come for a visit and was with them. Beginning at 11:56 a.m., and with absolutely no warning, the earth beneath Kamala’s building buckled and shook wildly, the walls rattling all around her, the ceiling shaking above her head—for forty terrifying seconds. An earthquake reaching a staggering 7.8 on the Richter scale had ripped across Nepal, instantly leveling thousands of ancient structures and new ones fashioned from kiln-fired bricks or concrete blocks, such as Kamala’s. Because they were on the ground floor, Kamala and the two children did not feel the building sway as violently as others did who were higher up, but the terrified trio ran from inside the shop into the street. Almost as soon as they were out, the shop’s steel shutter door slammed down on its own behind them. Confused, Kamala ran up and down the street, having no idea about the safest place to plant herself and the children. The boy Mishon headed toward an open space on the other side of the street from Kamala’s building, where there was an outdoor basketball court, and Kamala grabbed Kritika and ran for the same spot. In just forty seconds, thousands were dead, and rubble had trapped thousands more who were still alive. Hundreds of thousands, if not millions, instantly became homeless, exposed to the ravages of cholera and other diseases that soon would descend. The quake was felt across the Ganges River Basin in India, in China, and even as far away as Bangladesh, but its epicenter was deep beneath the heart of Gorkha, less than thirty miles from Kamala’s childhood home on the horseshoe ridge, and communications across the nation were down.
As the aftershocks continued, Kamala remained terrified, but she kept her emotions in check so her daughter would not worry, cradling Kritika each time the earth buckled beneath them. With Kamala’s elderly uncle, they moved down the road from her house and into an open space where people had assembled to camp. Virtually an entire nation had gathered under the sky, as people feared to remain inside structures. Near nightfall, Kamala walked back up the hill toward her building to see if it was still standing, and there she saw Surya Bhujel, from her neighboring village on the horseshoe ridge, the man who had set up a shuttle service, the man she had thought she might marry, sitting on the ground outside her building, waiting for her to return. Bhujel had been in his microbus, parked at a terminus on the edge of Kathmandu, when the earthquake hit. Worried about what had become of Kamala and Kritika, he had abandoned his vehicle and started walking the roughly five miles through the chaos to reach Kamala’s house, crossing over and around the rubble spread across the devastated city to get to her. Upon seeing him waiting outside her home, Kamala felt an overwhelming sense of relief, even joy.
They all camped outside together those first several nights, and Kamala felt, for both herself and Kritika, a kind of security that would not have existed without Bhujel’s presence, given that everyone was out in the open and such tragedies can sometimes bring out the worst in people. She realized how much worse this all would have been without Bhujel, as now she was without Jeet, alone with their daughter.
The aftershocks that continued terrifying people across the country became something of a new normal in everyone’s life. One week after the initial earthquake, Kamala, Kritika, and Bhujel made their way back to his microbus, and then began the long journey into the hills toward Gorkha, back to the horseshoe ridge.
After Ellison ordered KBR to trial, the company hired a new defense team headed by Houston’s Geoffrey Harrison. Harrison was something of a gunslinger, representing both defendants and plaintiffs in his practice. He had for years been fighting claims by dozens of Oregon Army National Guard members who alleged that KBR Halliburton had negligently exposed them to highly toxic, cancer-causing chemicals at a water treatment facility in Iraq. The first twelve soldiers to go to a federal jury trial in Portland won an eighty-five-million-dollar verdict against the company, the vast majority of which resulted from a punitive damages finding. Jurors found that KBR had acted with “reckless and outrageous indifference to a highly unreasonable risk of harm” and had shown “conscious indifference to the health, safety and welfare” of the soldiers. In significant part, that verdict had served to bolster Fryszman’s and Hoffman’s view that KBR was destined to look bad in front of a jury made up of virtually anyone other than KBR employees.
Although Harrison lost the Oregon trial, he was fighting an impressive battle through the federal appeals court, and it looked likely he would get the verdict thrown out on procedural grounds; he argued that Portland was the wrong venue for the trial and that the judge had erred in not moving the case to Houston. The Portland defense also could tap into a nearly bottomless treasury to pay Harrison and the rest of the company’s lawyers—as in the U.S. Treasury. The work in Iraq that had led to the lawsuit was carried out under a controversial multibillion-dollar contract KBR Halliburton had been awarded to “Restore Iraq Oil,” known as RIO for short, a contract it got without facing competition. The deal contained a provision that indemnified the company from resulting litigation, meaning that taxpayers could reimburse KBR for its costs in defending the lawsuit.
Harrison went back into court in Houston for KBR to try to convince Judge Ellison that he had made a mistake in how he had interpreted the oracles in the wake of the Supreme Court’s Kiobel decision. At a minimum, Harrison was laying the groundwork to take the case to the U.S. Court of Appeals, as he was doing in Portland, and trying to give himself the strongest possible hand. The legal leg that Agnieszka Fryszman, Kamala, and the other families were still standing on was the antitrafficking law. The trouble was, when the twelve men were killed, the law enacted by Congress did not include language showing that it expressly applied overseas; that wasn’t specified in the statute until 2008—an amendment made, at least in part, because the case of the twelve had brought the oversight to light.
Judge Ellison had dealt with this issue from the start of the case, previously ruling that the lack of specificity in the law when the men were killed was meaningless because Congress, in 2008, had clarified that the intent all along was that the law be applied internationally. After all, it was absurd to believe that the inherently transnational crime of human trafficking could be addressed by a law that could be applied only to acts committed exclusively within the borders of the United States. He had ruled that the entire thrust of the antitrafficking law “would be severely undermined” if he were to find that “defendants who gained a commercial advantage in this country through engaging in illegal human trafficking were free from liability, so long as the trafficking acts themselves took place outside of American borders.” He also had told KBR rather bluntly, “The defendants do not now, nor did they in 2004, have the right to traffic human beings at home or abroad.” But Harrison and KBR believed that Ellison had been wrong all along, and his error had become glaring in the light of Kiobel and another, separate case.
As the dust began to settle in courtrooms across the country following the Supreme Court decision, Harrison argued that the high court had clearly ruled that no statute passed by Congress could be construed to have an international application unless it was
expressly stated in the statute; and that meant an amendment later extending the law’s reach could not be applied retroactively. It seemed Judge Ellison had no room left.
Unlike the contentious and occasionally rough tactics deployed by KBR’s first defense team, Harrison’s approach was more dispassionate. He limited his arguments to questions of the law, which, thanks to the Supreme Court, now seemed squarely in KBR’s favor. He also radiated confidence. After walking into Ellison’s courtroom, Harrison parsed the judge’s own words on slides he displayed on a big screen, juxtaposing them with excerpts from the Supreme Court’s more recent, and seemingly contradictory, instructions. In the glare of these disparities, Harrison and KBR made clear to Ellison that the fate of the entire case rested on the narrow questions opened up by the high court. They also made clear that they would push quickly and forcefully for the Fifth U.S. Circuit Court of Appeals to reverse the judge if he did not reverse himself. Both Fryszman and Hoffman realized they were now up against a far more skilled litigator, one of the best attorneys KBR’s money could buy. By the end of Harrison’s slide show, it seemed obvious that Ellison had little choice but to reconsider his decision to send the case to trial.
Outside the courtroom, Ellison told confidants how the case had shocked his conscience. He compared the execution video’s gruesome images to the historic photographs of young Emmett Till’s mutilated corpse, which sixty years earlier had shocked the world and helped open its eyes, including Ellison’s, to the long and brutal history of injustice faced by black Americans. Till, a fourteen-year-old black boy from Chicago, was visiting his family in segregationist Mississippi in the summer of 1955 when he was kidnapped, savagely beaten, and shot to death by a group of white men after he supposedly flirted with a white woman in a store. Despite the national and international attention that the case drew, his killers escaped justice after being acquitted by an all-white jury. Ellison was a child of the South when Till was murdered, and the photos of the boy’s body remained seared in his consciousness. They now were joined in his psyche by images from a massacre perpetrated fifty years later and seven thousand miles away, a crime of violence that also revealed a wider injustice.
Before he became a judge, Ellison had spent twenty years in private practice as a corporate defense lawyer, working for some of the world’s biggest multinationals, including Exxon, Chase Manhattan, and American Airlines. Representing such clients is not what he had dreamed of when he first discovered his passion for the law. Instead, his lifelong dream was to become a federal judge, a goal that dated to the same era in which he had first seen the photos of Till’s body. As a ten-year-old boy in New Orleans, Ellison had adopted Judge J. Skelly Wright as his hero after Wright kept the city’s public schools open despite the strong commitment of many white parents and local public officials to shut them down rather than yield to desegregation. Although Wright displayed great courage in breaking segregation in New Orleans, his power ultimately flowed from the fact that the Supreme Court was on his side, and with it, the powers of the federal government. Sixty years later, it did not appear there was any room for Ellison to argue the same in a case that weighed on him unlike almost any other throughout his nearly four-decade legal career.
Republican senators had questioned Ellison’s potential fidelity to Supreme Court precedent during his 1996 confirmation, as they did with many nominees put forward by Democratic presidents. Would he adhere to Supreme Court rulings even if he profoundly disagreed with them, or would he become a “judicial activist,” a label carrying the power of a smear in the post–civil rights era. “With respect to any case that I am called upon to decide, if I am fortunate enough to be confirmed, I will not allow any of my own opinions to keep me from applying the law objectively and dispassionately,” Ellison said in response to written questions from then-senator Jeff Sessions, the Alabama Republican. “As I stated in my testimony to the Senate Judiciary Committee, any federal judge who cannot apply the law independent of his personal feelings should resign.”1 At this critical moment in the case, perhaps lessons Ellison had learned from the second judge he clerked for, U.S. Supreme Court justice Harry Blackmun, might have been the most formative. Blackmun was known as someone who was unyieldingly fair to all who appeared before him, but who also, in the words of another former clerk, “allowed his views of the law to develop carefully, step-by-step, with respect for the Constitution and the laws he was sworn to uphold, and attention to the ever-changing factual patterns presented by a complex world.”2
Ellison lived up to the promises he made to the Senate, although it clearly wasn’t easy. Rather than wait for the Fifth U.S. Circuit Court of Appeals to reverse him, he reversed himself in 2014, agreeing with Harrison and KBR and dealing a mortal blow to the case brought by Kamala and the other families. Even so, his unhappiness with how the Supreme Court had shifted the ground beneath a case that had been playing out for years in his courtroom remained evident to attorneys on both sides; he entertained arguments from Fryszman and Hoffman that he was, once again, wrong, and he kept those arguments open on the case’s docket for more than a year. With them came countless more pages of written arguments, all of which KBR and Harrison countered at every step. In allowing the debate to go on for another year, Ellison seemed to be buying time in the hope that other courts across the country, also reacting to the changes wrought by the Supreme Court in Kiobel, might add more persuasive arguments to the record that could help keep the case alive. Yet no such relief came, and there was no escaping the fact that the Supreme Court’s ruling meant that it simply wasn’t against U.S. law for KBR, or any other American company, to be involved in or benefit from international human trafficking abroad until 2008—more than four years after Jeet and the others had been sent to their deaths.
On March 24, 2015, Ellison issued his final, somewhat pained ruling, in which he dispatched the lawsuit. “Indeed,” he wrote, “part of the delay in issuing this decision has been to see if new decisional authority might bolster Plaintiffs’ legal position.” In the concluding paragraph, he used the kind of language one rarely sees from a federal judge. “The Court again notes its profound regret at the outcome of this action. The crimes that are at the core of this litigation are more vile than anything the Court has previously confronted. Moreover, the herculean efforts of Plaintiffs’ counsel have been in the highest traditions of the bar. No lawyer or group of lawyers could have done more or done better.” But because he had no jurisdiction to extend the case internationally on the date the men were killed, “the perpetrators of the subject crimes are not before the Court, and the relief that the Plaintiffs seek is not appropriate as to those who are before the Court.”
When they arrived on the horseshoe ridge after the earthquake, Kamala and Kritika came first upon Jeet’s family farmhouse, the place where Kritika had been born into the arms of her grandmother. The entire upper floor of the house had collapsed. No one had been killed, and Jeet’s mother and his eldest brother’s family were now living in a storage building behind the house, although many in the village on the ledge were still sleeping outdoors. When Kamala saw the farmhouse, she felt a strange numbness. She had such warm memories of her first couple of years there, but her feelings had been soured by what had transpired within the four walls after Jeet’s death, and so she wasn’t necessarily sad to see those walls reduced to rubble and fallen timbers.
In the coming days, as she and Kritika helped friends and family in the village on the ledge and across the horseshoe ridge, Kamala realized that so many important people in her life now understood something of her suffering of more than a decade earlier, when the same thing had happened to her on the same lush mountainside—when everything she’d come to love (except for Kritika), her sense of security and home and family, all had vanished without warning and without cause. Kamala knew from her own experience that these villagers, her friends and former family members, would find their way with loved ones who had survived the quake, that they now shared a special bon
d of loss with all their neighbors the same way she had with the women in the ashram with whom she’d found bravery and emotional courage after her own loss. She saw pettiness disappear and a deeper kindness and generosity take root. Kamala also decided she would use some of the compensation money she had left to help friends and family rebuild, including Jeet’s family.
The settlement money from Daoud arrived in Nepal just as everyone was rebuilding. The families agreed among themselves to divide it thus: those who had gotten nothing in the original compensation case because they had lost brothers were given the largest share; the parents, who had gotten the smallest payouts the first time, got the second-largest slice; and Kamala and the other widows, who originally had gotten the most, took the smallest cut. Kamala would use her money to rebuild the high wall ringing her property, which had fallen in the quake.
After a few weeks of helping loved ones and other victims of the earthquake on the horseshoe ridge, Kamala took Kritika’s hand and they headed along the same path they had walked down a decade earlier, when Kamala was just a child herself, a girl on her way to Kathmandu carrying in her arms all she had left. When they arrived back in the city this time, she stood with Kritika on the basketball court across the street from her four-story building. At first, she eyed the building carefully, up and down, searching for damage or subtle weaknesses wrought by the earthquake. She didn’t see any, but soon she found herself lost in the view, feeling a sense of pride and security, and realizing that she and her daughter were finally home.
