by Cam Simpson
Epilogue
On January 3, 2017, a divided panel of the Fifth U.S. Circuit Court of Appeals in New Orleans upheld Judge Ellison’s dismissal of the case following the Supreme Court’s decision in Kiobel. Kamala and the other families had relied on a more-than-two-hundred-year-old law called the Alien Tort Statute, which gave foreigners a right to sue in U.S. courts for exceptionally heinous crimes considered to be “hostis humani generis, enemy of all mankind,” and in violation of the law of nations. Such crimes included the likes of international piracy and slavery. In the face of a growing number of lawsuits targeting multinational corporations for participating in alleged human rights abuses abroad, the high court justices had decided to limit that law’s application dramatically. In the case brought by Kamala and the other families, the appeals court vote was 2 to 1.
Fifth U.S. Circuit Court of Appeals judge James E. Graves Jr. not only voted against the majority, but also wrote an impassioned eighteen-page dissent in favor of Kamala and the other plaintiffs. He seized on something in the divided Supreme Court’s wording in its Kiobel decision that potentially left the door open for suits if the alleged abuses overseas “touch and concern the territory of the United States . . . with sufficient force.” The high court did not define precisely what that meant, as is nearly always its way, but many read the phrase to cover cases in which the issues at stake involved significant U.S. policy interests and in which a significant amount of the overseas conduct had been controlled from American soil, such as a corporate headquarters. In his dissent, Judge Graves argued that there was enough evidence for both in the plaintiffs’ case. The lawsuit touched and concerned the United States with force because it alleged that a U.S. company under a U.S. government contract to provide labor on a U.S. military base had participated in human trafficking. Also, Graves wrote, the issue represented an important U.S. policy concern given that the government had signed and ratified an international treaty requiring it to hold U.S. citizens accountable for international trafficking. Graves also listed much of the evidence that Agnieszka Fryszman had marshaled alleging that KBR executives back in Houston knew about abuses. He said that a fair reading of those allegations in the plaintiffs’ favor meant that a jury could conclude that the company’s U.S. employees had “failed to properly investigate accusations of human rights abuses by KBR overseas, and either willfully ignored evidence of such abuses or actively sought to cover up the misconduct.” The company had also continued wiring money from the United States to Daoud and Partners after learning of the allegations, Graves wrote, adding that paying for trafficked labor could easily be construed as “an action critical to the operation of a global trafficking scheme. This is domestic conduct relevant to the alleged law of nations violation.”* What may never be known is how much weight might have been added to their “touch and concern” argument had Agnieszka Fryszman and Paul Hoffman had the evidence that allegations of corruption involving Robert Gerlach and other KBR managers had reached and caused serious concern in Houston. Even so, Graves’s strongly worded dissent gave Kamala and the other families a fighting chance to have their case heard by the Supreme Court. Fryszman even entertained some such hope when President Barack Obama nominated Merrick Garland to replace the late conservative icon Antonin Scalia, but after Republicans in the Senate refused to hold hearings on Garland’s nomination, and Donald Trump won the White House, she feared the worst. Trump then appointed the conservative Neil Gorsuch to replace Scalia. On September 25, 2017, the justices sat for their last conference of the summer, and Kamala’s case was among those they weighed. It was not, however, among the tiny fraction they agreed to hear. Only about 1 percent of all such appeals are ever granted by the high court. That decision effectively ended the lawsuit against KBR.
On November 30, 2017, Judge Ellison took up the case for one final matter. He ordered KBR to reimburse the plaintiffs’ side more than two hundred thousand dollars it had spent fighting KBR’s frivolous misconduct allegations against Fryszman, Hoffman, Matthew Handley, and Molly McOwen. He suggested KBR simply had been out to bully Kamala’s lawyers, adding that its actions raised “the inference of improper motive” given that it filed what he called baseless and onerous charges “at a time when the intensity of the litigation was at its peak.”
At the end of 2017, a separate lawsuit Fryszman had filed on behalf of Biplav Bhatta and some of the other workers whom Ganesh Gurung had found in Nepal as the deadline expired in Kamala’s case was still pending before Judge Ellison. She had put forward a slightly different legal theory in that lawsuit by alleging, not that KBR had outright trafficked, but that it had aided and abetted trafficking. KBR is currently fighting the case and denies the allegations.
Efforts to bring criminal prosecutions met a similar fate. In January 2014, an investigator from the U.S. State Department who had been assigned to the Justice Department’s human trafficking unit made a special trip to London, where I live, to brainstorm about how the federal government might conceivably bring war trafficking prosecutions, but he wasn’t optimistic. The statute of limitations in the case of the twelve was close to expiring, as it would be for many of the war’s worst abuses, and he had only recently been assigned to take up the inquiry. We spent an intellectually stimulating day inside a cluttered office used for storage in the bowels of the U.S. embassy in London, where we ran through investigative strategies, but nothing came of it. Soon, he was back at the State Department and reassigned overseas.
Matthew Handley, working with Fryszman, had represented the families of a group of Iraqi interpreters who had been slain while helping train police recruits. The Iraqis were ambushed and shot execution-style to send a message to anyone else working with the Americans. When Handley fought to get compensation for their relatives, as he had for Kamala and the other Nepalese families, he discovered that the insurance company had withheld from the government information in company files about the very existence of the victims’ dependents. The judge in the case was so angered that he told the U.S. Labor Department to investigate whether the company should face criminal charges called for within the compensation statute. Richard Robilotti, the labor official who had overseen Kamala’s compensation case, recommended that the Justice Department bring charges, but it never did.
Molly McOwen today works in Washington as an enforcement attorney in the Consumer Financial Protection Bureau, a federal agency set up as a sort of watchdog in the aftermath of the financial crisis. She recently gave birth to a son, Cuinn McOwen Cook.
Fryszman continues to serve as the chair of the human rights practice group at Cohen Milstein. In June 2017 she filed a federal lawsuit in California against U.S. and Thai companies alleging human trafficking and forced labor in the global seafood industry. Paul Hoffman and Anthony DiCaprio are cocounsel in the case.
Handley remarried and now has two children. He continues to serve as the director of litigation for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. Handley underwent surgery in 2017 for a form of kidney cancer and the operation was deemed a success.
Kritika Magar is now a teenager and lives with her mother in Kathmandu. She is the equivalent of a freshman in high school and has attended some of the country’s best private schools, where she has become fluent in English.
Kamala continues to run her dress shop and continues to weigh the marriage proposal she received long ago from Surya Bhujel, the driver who trekked across the broken city to find her on the day of the devastating earthquake. She also worries constantly about whether Kritika is spending enough time studying. The pair recently changed apartments inside Kamala’s building because Kritika insisted on having her own bedroom. Kamala has not yet shared her experiences with Kritika, but plans to do so by having Kritika read this book aloud to her in Nepali.
Following fascism’s defeat during World War II, the United States pushed for the acceptance of “universal human rights” for people around the world. In many ways, this was the global extension
of some of the same forces that had spurred the push for civil rights inside the country, including desegregation in New Orleans and other cities. By 2016, the presence of “human rights” in the American civic dialogue had become, in the words of scholar Mark Philip Bradley, almost prosaic, even if the application wasn’t always uniform. “Some American fifth graders now spend as much time studying the Universal Declaration of Human Rights as they do Mark Twain’s Tom Sawyer,” Bradley wrote in a 2016 treatise on the subject. Yet such basic assumptions appear upended following Trump’s election and the rise of populist movements across the globe. Ironically, the strong political sentiments against globalization that helped propel Trump into the White House now threaten to diminish many of the protections that evolved to keep some of globalization’s worst excesses in check, including human trafficking. In line with his “America First” slogan, it seems clear that Trump has little interest in pursuing or expanding international legal strictures and treaties, especially those designed to provide protections for the weak against the powerful. Even before Trump’s election, however, the idea of using American laws and courts as a check on the conduct of global players, especially border-crossing corporations, was in significant retreat. At the very same time, the power and reach of multinationals were greater than ever.
Beyond the courts or international treaties, there was one significant exception to this trend, and that was in the area of unilateral U.S. government action against international human trafficking. President Obama in 2012 signed an executive order with potentially far-reaching implications. It banned government contractors, subcontractors, and their employees from engaging in the kinds of practices that Jeet and the other Nepalis were subjected to, and it required contractors to take responsibility for every link in their human supply chains. Spurred by continuing concerns over the conduct of contractors in Iraq and Afghanistan, the order included barring any “recruitment,” or broker, fees for foreign migrant workers, as forcing workers to borrow vast sums to buy their jobs creates conditions that can easily lead to debt bondage and human trafficking.
Obama went further, recognizing the power of collective consumer action by U.S. taxpayers to impact human trafficking beyond military service providers. With the federal government spending more than $460 billion on goods and services each year, his order reached into procurement for everything from building supplies to computers and mobile phones. That, in turn, appears to have influenced some of the world’s largest companies (especially those already under public pressure, including Apple) to ban fees for workers in their supply chains and take similar actions designed to prevent trafficking. (Apple’s action followed a 2013 exposé in Bloomberg Businessweek magazine.) The global electronics industry has been a major source of human trafficking, given that factories in some of its most important Asian hubs, including Malaysia, Singapore, and Taiwan, rely heavily on foreign migrant workers from Nepal and other poor countries. The problem has been especially severe in Malaysia, where most of the world’s top electronics brands turn for components—including Apple, which sourced from twenty-eight different Malaysian plants when Obama signed his order. Given the scale of the problem, and because many of the most recognizable consumer electronics brands in the world “source components of their products from Malaysia, this means that virtually every device on the market today may have come in contact with modern-day slavery,” according to a 2013 study paid for by the U.S. Department of Labor. Congress wrote many of Obama’s reforms into law for defense contractors, but his broader changes came only through executive order, and these could be in jeopardy. Trump has pledged to repeal every one of Obama’s executive orders. Even if the protections remain in place, though, it’s unclear whether Trump’s Labor Department will seek to enforce them.
The State Department and the United Nations’ International Labour Organization estimate that a large swath of the world’s more than 230 million international migrants are at risk each year for forced or coerced labor. Increased domestic legal protections are important in nations that are key suppliers of cheap global labor, such as Nepal, but these governments tend to be weak and corrupt, and to lack the resources for meaningful enforcement, hence one major reason their citizens are so often exploited. Protections in the wealthier countries the workers are headed for have far more potential to effect change, because those at the end of the supply chain have the most power to look back, retrace every step, and correct abuses—unless they choose a path of exploitation or willful blindness. And indeed, actions in destination countries remain wanting. Beyond companies themselves taking more direct responsibility for their supply chains, global consumer pressure remains the most powerful force for change, whether it’s Apple banning fees for foreign migrants working at its suppliers or global soccer fans threatening a boycott over the stream of laborers returning to Nepal in caskets from construction sites in Qatar ahead of the 2022 World Cup. The calculation is not the same for companies such as KBR, however, which rely on political clout rather than consumer sentiment.
People commonly ask how often things work out for men and women who, unlike Jeet, ultimately make it home to their families. To be sure, foreign migrants tend to be a brave and self-selecting bunch, choosing to leave loved ones for unknown lands with the sole intention of improving life for their families. Many often make the best of even the worst abuses that come their way. In any case, the question is a variation on one that has been posed for centuries to justify exploitation, from slavery in America to modern-day slavery around the world: Aren’t they better off? The trouble is, this is and always has been the wrong question.
The only question that matters: Are they truly free?
Acknowledgments
This book would not have been possible without the invaluable assistance of Dr. Minani Gurung, who guided me through Nepal in 2014 and 2016, and who translated so much beyond language. Her wisdom about culture, gender, and human nature made this work possible. Flynn McRoberts is one of my most valued friends and one of the best editors working today. I was incredibly lucky to have him lead the edit for the original investigation, published in the Chicago Tribune, and to get his input every step of the way during the many years I worked on this book. Abigail Fielding-Smith deserves special thanks for her priceless suggestions on the manuscript, as well as her personal support and patience. I am indebted to others who offered feedback and support, including the amazing Sascha Alper, Kim Barker, Tim Farnam, Dan Hagen, Jeremy Kahn, Quil Lawrence, Stryker McGuire, Jonathan Morrow, Sarah O’Connor, Evan Osnos, Ed Robinson, Vernon Silver, and Eric Westervelt. Special thanks go to Rima das Pradhan-Blach for her ideas and support in my original investigation.
I also want to thank George W. Papajohn of the Chicago Tribune, whose force of will helped make the original investigation possible; and the inimitable Michael Tackett, Jim O’Shea, Ann Marie Lipinski, and George de Lama. For their unwavering and more recent support, I wish to thank Reto Gregori, Bob Blau, and Ellen Pollock. I am forever indebted to the absurdly talented Josh Tyrangiel, who, in league with Bryant Urstadt, helped me explore better ways to tell stories of consequence. Finally, thanks to Jonathan Jao for his remarkably thoughtful edit of this book, and to Larry Weissman and the legendary Claire Wachtel for believing in it.
Note on Sources
The narrative in this book is drawn from interviews with more than eighty people over the course of twelve years, more than thirty thousand pages of documents, my own observations during a decade of reporting, and a visual record from hundreds of photographs and videos.
An appendix listing of many of those whom I interviewed follows this note. Those who played the most significant roles were interviewed multiple times, and the most significant of these was Kamala Thapa Magar. Cumulatively, we spent about one month together, and we visited virtually every location from her life referenced. Interviews with her were conducted in 2005, 2013, 2014, and 2016, in Kathmandu and Gorkha, and follow-ups, including videoconferences, took place in 2016
and 2017. I also interviewed her family members, whose names are listed in the appendix.
Documents include a large trove gathered in the first stage of my investigation, as well as those amassed in the decade-long record of the two cases that resulted. The largest cache of documents relates to the federal human trafficking lawsuit brought on behalf of Kamala and the other family members of the murdered Nepalese men. The case is Adhikari et al. v. Daoud & Partners et al., Civil Action No. H-09-cv-1237, U.S. District Court for the Southern District of Texas. The public record alone from the District Court proceedings exceeds twenty-six thousand pages, but I also drew on thousands of pages beyond the public record, including hearing transcripts and depositions. Records from other cases involving KBR Halliburton also were useful, including Barko v. Halliburton et al., No. 1:05-cv-01276, U.S. District Court for the District of Columbia; United States of America v. Albert Jackson Stanley, No. 4:08-cr-597, U.S. District Court for the Southern District of Texas; Jamie Leigh Jones v. Halliburton et al., Civil Action No. 4:07-cv-2719, U.S. District Court for the Southern District of Texas; and Bixby et al. v. KBR et al., Civil Action No. 3:09-cv-632PK, U.S. District Court for the District of Oregon. Also useful were briefs and opinions from appellate court and U.S. Supreme Court proceedings in the Kiobel case.
For the opening chapter of the book and part 3, which encompass the litigation, I have eschewed litigation-style citations from case dockets. I do not believe case citations would serve or please anyone other than the most litigious reader. Suffice it to say that direct quotations are drawn from official transcripts or video recordings of the proceedings, or from written positions put forward on the record by the parties. For Nepalese speakers, including Kamala, a few direct quotations deviate slightly from the official court transcripts because those transcripts were made from real-time interpretations that were sometimes imprecise.
