Directed Verdict (6 page)

Brad watched Bella attack the fee arrangement with gusto, placing one form after another in front of Sarah for her signature. Carson & Associates would receive one-third of any money recovered “against Trust Indemnity or otherwise” as a result of the death of Charles Reed. Brad knew Bella had another form that actually placed the fee at 40 percent, but apparently even she could not spring that form on a grieving widow like Sarah in such a simple case.

* * *

Rasheed turned over and reached out to stroke his wife’s hair. As he touched her cheek, he felt the warm tears. He leaned up on one elbow and tried to focus in the dark.

“What’s wrong, Mobara?”

He sensed a slight movement, perhaps a shudder, perhaps a shrug of the shoulders. “Nothing,” she said.

Rasheed knew better than to accept that answer.

“You just decide to start crying in the middle of the night for no reason? Come on, you can talk to me.”

Mobara wiped the tears away with the palms of her hands. “I feel so guilty,” she sobbed. “I’ve felt this every day and every night since the Muttawa came . . .” Her voice faltered.

Rasheed reached over and drew her to himself. He held her softly as she cried.

When she regained control, she spoke again in a desperate whisper. “We denied our Lord, Rasheed. I can’t live like this.”

He squeezed her tighter in the silence. “Nor I,” he said at last.

“What . . . are we going to do?” Her sobbing intensified.

Rasheed gently released his wife, then drew her out of bed to kneel together. “We must pray . . . ask forgiveness . . . trust God to give us another chance.”

Mobara joined him and put her hand on his. “What if they come back, Rasheed? I’m so afraid.”

“I know. Let’s pray. Remember, God has not given us the spirit of fear.”

Mobara looked intently at her husband. “I love you, Rasheed. And I’ll be okay if you’re with me.”

Rasheed put his arm around her again and drew her close, still kneeling, preparing to pray.

“Are you afraid?” she asked.

Rasheed thought for a moment and looked down. He couldn’t lie to Mobara. She would know. “Yes,” he admitted.

Together, they began to pray.

6

LESLIE TOOK ANOTHER SIP
from the glass of water on her counsel table. It was half-gone, her mouth was still dry, and she hadn’t even started her argument yet. She tapped the sides of the typed pages in front of her, perfectly lining up the edges of her notes, then surveyed again the panel of accomplished lawyers who would act as judges for the moot court final.

Seated on her left was Professor Lynda Parsons. She was rumored to be tough, fair, sarcastic, and witty. Leslie had skillfully avoided taking her classes, but now she had to face her as a judge in the moot court final.

In the middle, and acting as chief justice because of his experience and reputation in international law, sat Mack Strobel. He was already staring down the litigants.

Leslie stared back.

She had read the book on Strobel.
Don’t let him intimidate you. He’s from the old school—blunt and full of bluster. Respect him but don’t trust him.

It was hard not to look away. Strobel’s eyes became piercing. His clean-shaven head, close-cropped goatee, and fierce scowl gave him a draconian look—like some type of WWF wrestler dressed up in a business suit. His leathery skin and bald pate were well-tanned, though summer was months away. He had broad shoulders, was above average height, and he seemed to dominate the courtroom without trying.

After making her point with Strobel, Leslie diverted her gaze to Brad Carson, who sat to Leslie’s right. Carson shuffled some papers and looked absentmindedly around the courtroom. He caught Leslie’s gaze and smiled. Compared to Strobel, Carson was not an imposing figure, but he seemed so sure of himself and so natural in a courtroom setting that he, too, commanded respect. He also seemed bored and ready for some action.

“Be seated,” Strobel barked, obviously ready to get down to the business of beating up the litigants.

* * *

The sizing up went both ways. Brad had already decided that Leslie would win if points were awarded for style.

“Is counsel for appellant ready?” Mack asked.

“Ready, Your Honor.” Leslie stood and flashed a nervous smile.

“Is counsel for appellee ready?”

“Yes, Your Honor.”

Brad studied the young man opposing Leslie. Stiff posture, short-cropped hair, and precise movements. Probably active duty military, attending school on a JAG scholarship. Long on discipline, short on creativity, Brad figured.

Leslie was more of a mystery. She was attractive but trying hard to look more like a lawyer than a beauty queen. She wore her shoulder-length auburn hair in a tight braid, and her traditional dark blue suit camouflaged a tall, thin frame. Intense sky blue eyes seemed to sparkle with anticipation. She had the high cheekbones and long neck of a model, but none of the makeup that would accentuate or draw attention to those features. Her pale skin had probably been weeks without seeing a ray of sun, and red blotches marked her neck where she had probably scratched nervously. Brad pegged her as a hardworking overachiever who was taking this event way too seriously.

She stood and addressed the panel.

“May it please the court, my name is Leslie Connors, and I represent the appellants—the former Taliban regime and the nation of Afghanistan. The issue in this case is whether a U.S. federal court has the jurisdiction to hear the case and award damages to certain female Afghanistan refugees against the Taliban and the nation of Afghanistan for the alleged torture of these refugees. Let me make myself perfectly clear. The issue is not whether the Taliban abused these women and should be punished for their heinous conduct; it is whether a U.S. court should usurp the role of the international community and set itself up as the final tribunal to judge that conduct.”

“Counsel,” Strobel interrupted, “would you agree that your clients committed some of the most despicable and far-reaching human rights violations since the atrocities of Hitler?”

“Your Honor, that is for the international community to decide, not this court.”

“But, Counsel,” Strobel drawled, “do you deny that the Taliban regime deprived women like yourself of the most basic human rights?”

“No, we do not deny it.” Leslie appeared uncomfortable making even this obvious concession. Brad watched as she shifted her weight from one foot to the other, then nervously tucked an imaginary strand of stray hair behind her ear.

“Do you deny that the Taliban beat and tortured women if they attempted to run away from an abusive husband? Do you deny that the Taliban treated women as something less than human, as property of their husbands?”

“No. But the international community addressed that in removing the Taliban from power—”

“Counsel,” Strobel interrupted, immediately silencing Leslie, “this court has now been petitioned by a group of refugees to grant redress for these terrible acts of torture. Are you suggesting that this court just sit idly by, refuse to take jurisdiction over this case, and let the Taliban get away with rape, murder, and torture?”

“We are a nation of laws,” Leslie responded, slowly and evenly. “And on this point the law is very specific and very clear. All nations have the privilege of sovereign immunity, a basic and fundamental privilege that prevents them from being hauled into the courts of another nation as a defendant. We must respect the sovereignty of other nations and not drag them into our courts as if they were just ordinary American citizens, especially since a new government in Afghanistan has replaced the Taliban—”

“I’m well aware of the law, Counsel.” Strobel used a tone a parent might reserve for scolding a young child. “So let’s talk about the law for a minute. Under the Foreign Sovereign Immunities Act, there are certain exceptions. For example, a foreign nation can be hauled into our courts if that nation causes harm associated with a commercial activity, such as breach of a contract. Is that right?”

“Under some circumstances.”

“And a foreign nation can be hauled into our courts if an agent of that nation causes injury on the high seas, right?”

“That’s correct.”

“And if an agent of a foreign nation injures someone on American territory, then that nation gets hauled into American courts?

“Yes, in most cases.”

“So let me get this straight.” Strobel stroked his goatee as if he were deep in thought. “A foreign nation can get hauled into American courts if they hurt us in the pocketbook, or if they injure someone on the high seas, or if they breach a contract, but there is some overwhelming reason that says we can’t drag them into American courts if they systematically torture, rape, or kill innocent civilian women. Is that the way you read the law?”

Leslie shifted her weight. The red blotches grew. She pushed at more imaginary hair.

For his part, Brad was growing weary of the bullying. He was always one to cheer for the underdog. Especially an underdog as pretty as Leslie.

“That’s not exactly the way I would phrase it,” Leslie said. “There are important foreign policy reasons—”

“Counsel,” Brad said, coming to the rescue, “did you write this law? Justice Strobel seems to think you did.” He shot a sideways glance at Strobel. No love lost there. “Last I checked, Congress wrote the law, and it was the job of courts like this one to apply it.”

Leslie looked relieved to get a pitch she could actually hit. “Congress had to balance numerous important factors in drafting the Foreign Sovereign Immunities Act. There are delicate foreign policy issues at stake—there is a new regime in Afghanistan, put there by our own country, and that regime should not be undermined and held accountable for the actions of the Taliban. Plus the governments of other countries must be respected by the courts of the United States, or those other countries will reciprocate by hauling the United States into their courts as a defendant. The role of this court today is not to question the wisdom of the Sovereign Immunities Act passed by Congress, but to apply the law even if we don’t necessarily like the result.”

Brad looked at Strobel and nodded.

“The court should not open this can of worms,” Leslie concluded. “Otherwise, plaintiffs’ lawyers will clog our courts with all manner of bogus claims against foreign governments, just trying to get lucky and hit it big.”

Brad winced. Now Strobel smirked.

Brad was fully engaged. The game was clear: it was Brad against Strobel, head-to-head. The litigants were just allies—pawns to move around the chessboard. Brad thought it worked out nicely to have the attractive one on his side. Strobel could have the drill sergeant.

“You are aware, Counsel—” Strobel’s voice boomed again—“that all civilized nations acknowledge certain generally accepted principles of international law?”

“Yes. These fundamental principles and values common to all mankind are called
jus cogens
laws and are considered binding.”

“These are the highest forms of international law, is that correct?”

“Yes, they are.”

Brad leafed through his materials for a copy of the Foreign Sovereign Immunities Act. He could not put his finger on it, but this moot court argument was giving him a strange sense of déjà vu.

“And one of those norms widely recognized as a
jus cogens
norm is the right of people everywhere to be free from torture at the hands of their own government, right?” Strobel asked.

The trap was set. Brad could see it about to snap.

“Basic human rights, such as the right to be free from torture, would be considered
jus cogens
laws,” Leslie admitted.

A mirthless smile formed on Strobel’s lips. “Well then, if a nation violates a basic human right, like the right to be free from torture, they have violated one of the most basic tenets of international law. Shouldn’t a nation that breaks one of these most basic tenets of international law, a
jus cogens
law—” Strobel let his deep Southern drawl lengthen the phrase like some religious incantation—“by torturing and killing its own citizens be seen as waiving the protection of sovereign immunity?”

Strobel leaned forward, elbows on the bench, waiting for an answer. The phrase
jus cogens
, majestically Latin in its origin, seemed to echo around the courtroom.

Leslie cleared her throat. “If we start weighing violations of international law and decide that some violations are worthy of the protection of sovereign immunity while others are not, then we will find ourselves in an ambiguous area. If nothing else, international law requires certainty and predictability—”

“But aren’t we already making exceptions?” Strobel insisted. “It’s just that now we make exceptions for commercial cases, and I’m suggesting that the far more important cases for exceptions are violations of basic human rights—violations of
jus cogens
laws.”

Leslie let the question hang in the air. She looked at Brad—an appeal for help.

Brad and Mack each started a question at the same time. Brad raised his voice and continued. “Ms. Connors, you are an American lawyer representing the Taliban and Afghanistan, is that right?” he asked.

“Yes,” Leslie said tentatively.

“Do you remember when the American jets were relentlessly bombing cities in Afghanistan and there were numerous reports of civilians being killed during the bombing raids?”

“I believe so,” Leslie answered, apparently hedging her bet.

“Would you say that killing innocent civilians violates one of those, how do you say it?” Brad wrinkled his forehead, a picture of naiveté and perplexity.

“
Jus cogens
laws,” Leslie replied.

“Yeah,” Brad said. “Would you say killing innocent civilians with a military jet would qualify?” He took off his reading glasses and began chewing on them.

“You bet.”

“Do some of the people in your client’s country, including some of the judges, still dislike the American troops who bombed their cities and killed their civilians?”

“I think it’s accurate to say that some detest Americans,” Leslie volunteered.

“If an Afghan court, which as I understand it is still governed by Islamic law, were allowed to put the United States on trial for the bombing of those civilians—in other words, if the shoe were on the other foot—do you have any prediction as to the amount of the judgment that an Afghan court might render against the United States in such a case?”

Brad expected the answer was obvious to everyone in the courtroom.

“I’m sure the judgment would be in the billions,” Leslie answered enthusiastically. “The U.S. courts would then retaliate with a judgment against Afghanistan for billions more. Pretty soon we’re heading down a slippery slope of retaliation—nations slapping each other with billion-dollar judgments and throwing international law into total chaos.”

Leslie looked thankfully at Brad and, for the first time during the argument, flashed a relaxed smile.

* * *

Driving home it hit him—the reason for his déjà vu. The case of the Afghan refugees reminded him of the abuse that Sarah Reed had endured at the hands of government officials. Slippery slopes aside, why should foreign governments be allowed to torture innocent civilians, then hide behind the doctrine of sovereign immunity? Why should the Saudi Arabian police be allowed to torture and kill an American citizen and not be held accountable in an American court?

Brad was not familiar with the vagaries of international law, but he had a keen sense for justice and fairness. And in the case of Sarah Reed, justice demanded that the Saudi police pay for what they did.

He picked up his cell phone and dialed directory assistance. He needed an international law expert who could exhaustively research this potential cause of action. He knew just the person.

* * *

Leslie could not stop fuming. She had lost the final round of the moot court tournament and spent her drive home ruthlessly critiquing her own performance. She second-guessed every word and every gesture, replayed the entire argument in her mind, thought of things she should have said, and hated herself for not having said them.

She lived twelve miles from the law school in a quaint studio apartment above a detached garage in the country. A law school professor owned a majestic estate about two miles off the main road on the banks of the scenic Chickahominy River. Because the professor had taken a two-year assignment at another law school, she’d hired a contractor to build an apartment in the attic space of her three-car garage. She’d offered the apartment to Leslie rent-free so long as Leslie kept an eye on the estate.