Sunday, July 12, 2009

What I'm Doing This Summer

As I'm down to posting about once a quarter, I thought I'd post about my experience as a law clerk in the Department of Defense's Office of the General Counsel.  I'm in the Legal Counsel division, which puts out the considerable fires that inevitably crop up within the highest legal authority for the world's largest employer with two active combat operations underway.

The section as a whole deals primarily with Guantanamo. Which, as one could easily imagine, looks about like four monkeys, a football, and a can of Crisco.  I had a couple of research projects supporting it earlier this summer, but lately I've focused on KBR litigation.

For those of you who aren't familiar with DOD's alphabet soup, KBR is the Halliburton subsidiary that provides logistical support to the military in Iraq and Afghanistan.  There are a whole passel of personal injury actions against them, the latest of which involves environmental exposure.
One line of cases stems from their operation of massive burn pits.  Plaintiffs allege KBR burned any manner of toxins in there, and those exposed now suffer from a host of respiratory problems (including lung cancer, in a couple of the cases), allegedly resulting from their prolonged exposure to the noxious smoke and fumes.

The other cases arise from a restoration project in southern Iraq of a water plant that was, Plaintiffs claim, covered in hexavalent chromium, a highly carcinogenic compound.  The National Guard soldiers tasked with providing security for the restoration project have sued for medical care expenses, past and future, and other personal injury damages.

Political question doctrine is a judiciary mechanism supporting constitutional separation of powers.  In a nutshell, it means if you get injured/killed by, say, a plane crash caused by an F-16 that clipped your wing because you flew into protected / no-fly national defense air space without filing a flight plan, you're out of luck.  Reason being, the court would have to question the wisdom of sending out the fighter jets to visually identify your aircraft as friendly, and the tactics employed by the pilots.  Which means, decisions made by the Executive branch.  Not allowed.

Battlefield contractors have often employed the political question doctrine as an affirmative defense to these suits, with mixed results.  Most recently, one case (Harris v. Kellogg, Brown & Root) arose out of the electrocution death of a soldier in the shower in Iraq.  It was all over the news, you know the case, Staff Sergeant Ryan Maseth.

Political question defense failed.  The Western District of Pennsylvania found that no military decisions need be reviewed in determining if KBR was negligent in their performance of the electrical maintenance contract.  The jury would not, as KBR contended, need to question the wisdom of housing the soldiers at the Radwaniyah Palace Complex, or the decision to contract for "Level B" maintenance.  

One would assume that "Level B" translates to not getting electrocuted in the shower.  That's a gross oversimplification on my part, I admit.

On the other hand, see Carmichael v. KBR, decided June 30 of this year.  Carmichael is the first and only federal appeals court decision affirming a political question dismissal in a battlefield contractor liability action.  

SGT Carmichael was severely injured when the KBR fuel tanker in which rode overturned.  The accident occurred outside the wire during a treacherous convoy mission on a curvy, cratered road right through an area in which insurgent attacks were common.  

The Eleventh Circuit determined that the military controlled virtually every aspect of the convoy, which was essentially a combat mission.  As such, the decisions made by military commanders (route, speed, distance between vehicles--all potential causes of the accident) would come under review.  Executive branch decisions=separation of powers issues.

So do the environmental exposure cases look more like Harris or Carmichael, given the facts in each?  I won't comment on it here--buy me a drink and I'll opine on it.

What this all boils down to:  I'm getting to work on national-level, emerging legal issues.  It has been amazing.  I've learned more in the last seven weeks than in my entire second semester of law school.  Well, maybe not, but it sure feels that way.  

I love this job.  I actually look forward to work.  I can only hope like hell that I can find a job as an attorney that feels this satisfying.