ContractsProf Blog

A Corollary to the Totten Doctrine: Wilson v. CIA

As previously discussed on the blog, the Totten doctrine requires dismissal of a case when "the very subject-matter" of the case is a state secret.  Today's New York Times reports that the Second Circuit has dismissed Valerie Wilson's suit against the Central Intelligence Agency, in which she claimed that the Agency violated her free-speech rights when it required redaction of her 2007 book, Fair Game.  

As reported in the Times, the Second Circuit's reasoning is based on a contractual override of Wilson's 1st Amendment rights: “When Ms. Wilson elected to serve with the C.I.A., she accepted a life-long restriction on her ability to disclose classified and classifiable information.”  The problem is that at least some of the information in question had already been leaked to the public by the government and in any case was made public and widely reported on.  No matter, says the court.  The information is still classified, and she is still bound, even if governmental breaches “may warrant investigation.”

Although the entire panel voted to dismiss, Judge Katzmann concurred:

I agree with the majority that Ms. Wilson’s pre-2002 dates of service, if any, were originally properly classified by the CIA, have never been officially declassified, and were never officially disclosed by the CIA.  Therefore, I also agree that this Court has no power to free Ms. Wilson from the secrecy agreement that she signed upon commencement of her employment with the CIA.  At the same time, I write to observe that the CIA’s position in this litigation blinks reality in light of the unique facts of this case and the policies behind the doctrines at issue here.  Indeed, the CIA’s litigation posture may very well be counterproductive to its purposes.

Judge Katzmann proceeds to explain that the CIA’s justification for the redaction was that the dates of Ms. Wilson’s service ought not to be revealed.  However, those dates had already been revealed in a CIA-authored document, submitted on CIA letterhead and entered in the public record as part the Congressional Record in 2006.  Judge Katzmann thus argued that while, as a legal matter, the court is without power to order the CIA to permit the release of classified information, whether or not it was already in the public domain, as a matter of policy, it is harmful to the reputation of the CIA for it to disseminate information and then also attempt to suppress it. 

The opinion can be found here.

[Jeremy Telman]

Update on Franken Amendment: Jamie Leigh Jones interview

We previously mentioned the "Franken Amendment" to the 2010 Defense Appropriations bill, which would withhold defense contracts from companies like Halliburton if their contracts restrict employees from suing in court for claims such as sexual assault, battery and discrimination. 

Jamie Leigh Jones and her attorney appeared on the Rachel Maddow Show last night to tell ther story, and speak in support of the amendment.  If you are interested in this development, it is worth watching:

[Meredith R. Miller]

Bonus Limerick: Totten v. United States

I decided to bolster the section of my Contracts course devoted to public policy issues by introducing students to the Totten doctrine and the states secrets privilege, which we will discuss without reading any cases.  In Totten, a the administrator for the estate of William A. Lloyd brings a claim against the government seeking to recover for the breach of an espionage contract.   It is alleged that Lloyd entered into an agreement with President Abraham Lincoln in which Lloyd infiltrated enemy territory during the Civil War in order to provide the U.S. Government with vital information relating to the military forces and fortifications of the Confederacy.   For these services, Lloyd was to be paid $200/month plus expenses.  Honest Abe allegedly paid Lloyd only expenses.  

Justice Field, writing in 1875, found that the subject matter of the contract was a secret and that both parties must have known at the time of their agreement that their lips would be “for ever sealed respecting the relation of either to the matter.”  In order to protect the public interest in having an effective arm of the government that could engage in secret services, the Court ruled that there could be no claim for breach of a secret contract because the existence of the contract was itself a secret that could not be disclosed.

I am happy to report that Totten is a hit!  We only got to it in the last ten minutes of class, which I thought would suffice for a one-page opinion.  But when I suggested that we could continue the discussion in the next session, in addition to their now habitual groans of disapproval, a couple of students murmured: “Yes!”  And several students stuck around after class to explore the consequences of the Totten doctrine.  Giddy about this overlap of my teaching and research interests, I composed a celebratory Limerick:

Totten v. United States

 The President gamely employed
 But then stiffed an agent named Lloyd.
 Abe knew Lee’s plan
 Because of this man,
 But the court found his legal claims void. 

[Jeremy Telman]

More from the Wall Street Journal on How International Law Sucks

I have already provided a brief comment on the Wall Street Journal's campaign to blame international human rights law for the sudden rise in piracy off the coast of Somalia. But the Journal's interest in international law goes beyond piracy. Tuesday's paper also included this opinion piece by Jack Goldsmith and Eric Posner, "Does Europe Believe in International Law?" You may already be familiar with the works of Goldsmith and Posner on international law, such as "A Theory of Customary International Law," in which they attempt to demolish all hitherto existing understandings of customary international law, "Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective," in which they argue that "moral and legal rhetoric in international relations is the result of strategic incentives, not of the desire to comply with morality or law," and The Limits of International Law, in which they argue that states comply with their international obligations only when it is convenient for them to do so.

In their new opinion piece, Goldsmith and Posner confront the United States' reputation as an international scofflaw by contending that Europe is no better than the U.S. when it comes to compliance with international legal obligations. " Like the Bush administration," they write, "Europeans obey international law when it advances their interests and discard it when it does not."

This is clearly point II in the brief on behalf of the United States. The Legal Advisor to the U.S. Department of State, John Bellinger, is off arguing to anyone who will listen that the United States takes its international obligations very seriously. When the U.S. is accused of non-compliance, Bellinger says, those accusations are usually the product of a good faith disagreement about the nature of those obligations rather than a willful breach.

For example, consider these excerpts from his June 6, 2007 lecture at The Hague:

The United States does believe that international law matters. We help develop it, rely on it, abide by it, and - contrary to some impressions - it has an important role in our nation's Constitution and domestic law. . . .

In the course of the evening, a few themes should emerge. One is that a reliance on sound bites and short-hand can give the deeply misleading impression that we are not committed to international law. A second is, in fact, deeply ironic: that the very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse. A third is that some of the most vehement attacks of our behavior - although couched as legal criticism - are in fact differences on policy. A fourth and related theme is that our critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law - when we have simply not reached the result or interpretation that these critics prefer.

So Goldsmith and Posner argue in the alternative. In case the court rejects Bellinger's defense of the United States as a good faith participant in international legal regimes, Goldsmith and Posner argue that the United States' disregard for its international obligations is no worse than that of those highfalutin' Europeans.

The difficulty with their arguments, however, is that the examples they cite of European violations of international law are not generally viewed as anything of the sort. They name European participation in NATO's humanitarian intervention in Kosovo and in the International Criminal Court as not only violations of international law but as violations of the U.N. Charter. Unfortunately, these instances are simply additional examples of how the U.S. sees international law as requiring one thing and the vast majority of other states see it as requiring something completely different, just as Mr. Bellinger said.

Which brings me back to a theme I have addressed in previous posts, e.g. here and here. Jack Goldsmith was briefly the director of the Office of Legal Counsel, the President's chief source of legal advice within the DoJ. If the President's advisor suggests that the U.S. has no real international legal obligations, only political ones, it undermines any remaining confidence that the United States' potential treaty partners might have in its willingness to uphold a bargain.

[Jeremy Telman]

Is International Law to Blame for Piracy?

Well, it's a bit of a stretch, but treaties are just contracts between states, so it's close enough for a day-before-Thanksgiving post. The Wall Street Journal is on a campaign to convince the world that international law is to blame for the sudden rise in piracy off the coast of Somalia. Last week, it was David Rivkin and Lee Casey blaming international human rights "scolds" for our wimpy response to the Somali pirates. "Why Don't We Hang Pirates Anymore?" Bret Stephens asks in yesterday's Journal. The answer, according to Stephens, is that it is all the fault of the U.N. Convention on the Law of the Sea (UNCLOS), Article 110 of which, according to Stephens, "enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates." He neglected to mention that the boarding party must also offer the suspected pirates tea and scones.

But here is the relevant text of Article 110:

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship . . . is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy . . . .

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

I don't know why Stephens insists on reading Article 110(2)'s "may" language as a "shall" or a "must." I can't find anything in UNCLOS that would justify Stephens' reading of what is required under international law when one engages pirates. And of course, even if Article 110 did prohibit firing on suspected pirates based on reasonable suspicion (and I do not believe that it does), that provision could be overridden by treaty. So the real question is why states have not developed a more muscular policy for dealing with Somali pirates.

[Jeremy Telman]

New Scholarship: Schooner on Contractor Fatalities

Steven Schooner (pictured) of the George Washington Law School, has posted to the Social Science Research Network his new article, Why Contractor Fatalities Matter.  As a Law Prof whose scholarship focuses on national security and U.S. foreign relations law but who also teaches contracts (and contributes to this blog), I am happy to call our readers' attention to the work of another scholar whose work spans the subject matters of contracts law and national security law.  Professor Schooner's work is published in Volume 38, no. 3 (Autumn 2008) of Parameters.  The abstract follows:

At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities (and injuries) remain generally outside the public's consciousness. This article asserts that, in a representative democracy, public awareness of the human cost of our nation's security and foreign policies is critical.

[Jeremy Telman]

DC Law Firm Sues the D.C. Government

BLT reports that Crowell and Moring LLP has filed a suit agaisnt the District of Columbia seeking unpaid legal fees in excess of $300,000.  According to the complaint, C&M represented the DC Public Schools from 2001 through March 2006. Despite its satisfaction with C&M's legal services, DC failed to pay for three months of legal services.  In April 2006, DC Public Schools decided to shift responsibility to the Office of the Attorney General for a class action law suit that C&M had been handling, allegedly as part of an attempt by the DC government to reduce its reliance on external counsel.  C&M alleges that it was not paid for its services from January through March, 2006. 

C&M alleges causes of action for breach of a written contract, breach of an implied-in-fact contract, quantum meruit and unjust enrichment. 

Really, a DC law firm suing the government has a tinge of a dog biting the hand that feeds it.  In fact, I have some footage here of the scrap that led to the falling out:

Ah Barney, when will you learn? If it weren't for reporters, you'd just be another dog. And do you know what they do to dogs that bite?

[Jeremy Telman]

Glass Ceiling on Government Contracts?

Last Thursday, the New York Times reported that although women own almost half of all small businesses in the country, generating $2 trillion in revenue, they are awarded only 3.4% of annual federal contracts. In 2000, Congress voted to put in place safeguards so that businesses owned by women would be awarded at least 5% of such contracts, but implementing that legislation has been difficult. Senator Olympia J. Snowe of Maine (pictured) is dismissing as "a sham" the Small Business Association's proposed rule to implement Congress's directive from 2000.

She and 15 other women in the Senate have written to the S.B.A. to urge the agency to revisit the rule. Meanwhile, according to fcw.com, the Senate is considering a measure (or was in August) that would block the implementation of the proposed S.B.A. rule.

[Jeremy Telman]

$40 Billion Contract with &%*$! Europeans Canceled

I used to think "Why would anybody want to fly on an air bus?" But then I learned then when you pronounce it the proper, French-inflected way, it's really not so bad. That must have been what the Pentagon was thinking when, as reported previously on this blog, it awarded a $40 billion contract for aerial refueling tankers to Northrop Gruman and EADS, the parent corporation of Airbus. But with a little prodding from Boeing, as reported in the Wall Street Journal and on National Public Radio, the Pentagon has gone back to thinking of Airbus planes as little more than Greyhound buses with wings.

Seven years ago, the Air Force determined that it needed to replace its aging fleet of tankers, but Boeing persuaded the Department of Defense that it had been too hasty in awarding the contract to do so to those nasty, nasty foreigners, who were going to build the new planes in faraway Mobile, Alabama. Defense Secretary Robert Gates prescribed a "cooling off" period to redress mistakes made in the bidding process by the Department of Defense. He did not elaborate on the nature of these mistakes, but I suspect that the problem was that the DoD permitted an American value (protect Boeing) to be trumped by other, less significant American values, such as freedom of contract, competition, and national security.

[Jeremy Telman]

Government Owes $1.1 Billion for Breach of Contract

The Blog of the Legal Times, BLT for short (cute, non?) reports that the U.S. Court of Appeals has affirmed a judgment of the Court of Claims that the U.S. government breached its lease agreement relating to oil exploration off the California coast and awarding $1.1 billion to eleven oil and gas companies.

Apparently, the government entered into 35 such leases between 1979 and 1984. The oil companies then discovered oil fields that the government estimates contained over one billion barrels of oil. However, 1990 amendments to the 1972 Coastal Zone Management Act statutorily barred the oil companies from drilling in the region. The $1.1 billion, which BLT reports is one of the largest awarded in the 150-year history of the Federal Circuit, represents the amount paid under the leases. And a good thing too. They oil and gas companies can really use the money!!

I'm surprised this isn't bigger news, given that offshore drilling is a campaign issue.

[Jeremy Telman]

Government Contracts: Are They Sui Generis?

Over at the Commercial Law Blog, Jennifer Martin reports and comments on a recent discussion of the nature of government contracts.  We have recommended Professor Martin's writings on the subject of wartime contracts before here.  For those interested in the subject, Professor Martin has a new article on the treatment of wartime contracts in connection with the UCC's doctrine of impracticability.

[Jeremy Telman]

Secret Contracts for 50 U.S. Military Bases in Iraq?

As reported in the Asian Times Online, various representatives of the Bush administration have been saying for some time that the United States has no interest in "permanent" military bases in Iraq.  Whew.  That's a relief.  However, according to an editorial in Saturday's New York Times, Still President Bush is "insisting on keeping more than 50 long-term [military] bases in Iraq." 

But the Bush administration has reached an impasse with the Iraqi government, according to a report in The Telegraph.  Iraqi Prime Minister Nouri al-Maliki said that negotiations over future U.S. operations in Iraq were at a stalemate because the United States was making demands that he regarded as an intrusion on Iraqi sovereignty.  The matter needs to be settled before a U.N. resolution authorizing the presence of the U.S. military in Iraq expires at the end of the year.  The administration has not shared details of the negotiations with Congress because, as innumerable news organizations have reported, it's a secret.  Shhhhhh!

[Jeremy Telman]

Congress May Close Loophole for Defense Contractors

According to the Associated Press, as reported in the Orlando Sentinel, Congress is moving to close a loophole that until now has permitted military contractors to avoid paying taxes and evade the strictures of U.S. employment law by setting up off-shore shell corporations. 

According to the report, U.S.-based military contractors have been setting up subsidiaries in places like the Cayman Islands.  These subsidiaries then employ U.S. citizens who provide support services for the U.S. military abroad.  As foreign corporations doing work abroad, these subsidiaries do not pay social security or medicare taxes for their workers and need not abide by federal labor and anti-discrimination laws.  The A.P.'s investigation suggests that the off-shore subsidiaries exist only on paper, without an address or phone number. 

The House passed tax legislation two weeks ago that would treat  foreign subsidiaries of U.S. government contractors as U.S. corporations.  The Senate is now considering the measure.  Today's New York Times features an editorial urging passage of the legislation. 

[Jeremy Telman]

The Army Lawyer: Special Contracts Issue

The Army Lawyer's January 2008 issue is a special issue devoted to "Contracts and Fiscal Law Developments of 2007 -- The Year in Review.  As the Table of Contents indicates, much of the issue is taken up with developments in contracts law.

[Jeremy Telman]

The General Services Administration: A Victim of "Terrorism"

According to the Wall Street Journal (see story "The Ousting of Lurita Doan"), Lurita Doan (pictured), as chief of the General Services Administration, oversaw "tens of billions of dollars in government contracts"  with the help of inspectors general.  In her two-year tenure as GSA chief, Doan generated a lot of controversy. 

In 2006, frustrated with oversight by those inspectors general, Doan proposed to cut the budget of the inspector general's office by $5 million.  Doan claimed that she was going after wasteful government spending, despite the fact that the office reported that its oversight had saved the government $1 billion over the previous two years through its watchdog efforts with respect to government contracts.  The Washington Post obtained a copy of notes from a GSA staff meeting in which she chided the inspectors general as terrorists: "There are two kinds of terrorism in the US: the external kind; and, internally, the IGs have terrorized the Regional Administrators,"

In January 2007, Doan admitted she made a "mistake" in awarding a no-bid contract to a friend.

In March, 2007, the House Committee on Oversight and Government Reform initiated investigations into Ms. Doan's conduct that may have violated the Hatch Act, which prohibits partisan campaign activities on federal property, when she allegedly directed GSA administrators to "help our [Republican] candidates" in a teleconference with one of Karl Rove's deputies on the line.

A full catalog of Washington Post stories covering Doan's career in public service is available here.

This week, Doan finally resigned from the GSA at the request of the White House.  Heckuva job, Doanie.

[Jeremy Telman]

Two Reasons Not to Contract with the Government

Although I teach contracts and contribute to this blog, I am not a contracts scholar.  My main research interests lie at the intersection of U.S. constitutional law and international law.  But in that context, I have been thinking a lot of late about how current trends in the law create substantial disincentives for entities to enter into contracts with the U.S. government.  I'm sure that readers who deal with government contracts regularly can think of many more, but I want to focus on two developments that would give me pause if I were considering entering into a contract with the U.S.

For more bloviation, click on the link . . .

The first development has to do with international agreements.  For simplicity's sake, let's say there are two approaches to understanding why states enter into and abide by international agreements.  I'll call the first approach normative.  It is associated with people like Tom Franck and Harold Koh who argue that states are compelled by notions like legitimacy and fairness to enter into international agreements that implement international norms or norms that have been internalized by states parties.  From the perspective of the normative approach, something like waterboarding simply cannot be justified.  Call it torture, call it cruel, inhuman or degrading treatment, it clearly violates international norms and is categorically prohibited. 

I'll call the second approach Realism and reduce Realism to the belief that states are rational, self-interested actors that enter into and abide by international agreements to the extent that doing so furthers national self interest.  Variations on Realism dominated political science departments for decades before it was discovered by international legal scholars.  Now, through the writings of people like Jack Goldsmith, Eric Posner, and Adrian Vermeule, international legal scholarship is taken up with the Realist model as never before.  In the context of the War on Terror, these neo-Realists, or neo-Nationalists, or New Sovereigntists (whatever you want to call them) have argued for extensive executive authority to do whatever is necessary to national defense.  By the way, for a brilliant, short critique of this approach as it relates to torture, see Alice Ristroph's Professors Strangelove.  A more extended but also very intelligent critique can be found in Thomas Crocker's, Torture, with Apologies. 

My point here is a simple one.  Let's assume that the U.S. signed the Geneva Conventions banning cruel, inhuman and degrading treatment based on the simple Realist principle of reciprocity.  We promised not to, for example, waterboard detainees because we don't want our soldiers waterboarded.  JAG officers testifying before Congress cited this concern in voicing their opposition to proposed legislation (subsequently enacted) that would insulate the government from lawsuits brought by Guantanamo detainees alleging that their rights protected under the Geneva Conventions were violated.  So, in addition to normative arguments, there are solid Realists arguments for abiding by our international obligations.  But reigning theories of the unilateral executive embodied in both the scholarly and political efforts of Robert Delahunty, Jack Goldsmith and John Yoo suggest that those obligations can be set aside whenever the executive branch finds it expedient to do so.  If I were a international entity considering entering into an agreement with the United States, this doctrine would give me pause, especially as there is no limit on what the executive branch can do in the name of national security.  Today, it may set aside the Geneva Conventions, tomorrow it may decide that the U.S. cannot abide by its environmental agreements, the Law of the Sea, trade agreements, etc. because doing so would undermine national security.

Fine, you're saying.  But I'm not an international entity, so I don't have to worry.  Well, the problem you have as an individual contracting with the United States is secrecy.  Let's say you enter into some sort of commercial contract with the U.S. government.  You may be a defense contractor; you may be a government employee; you may be involved in something related to U.S. surveillance operations.  I'm not saying you're a spy; you may just be a software designer facilitating surveillance.  Now, let's say the government breaches its agreement with you, or maybe it fires you based on your race or gender or because you blew the whistle on some illegal conduct by your immediate superior.  The government can stop your law suit in its tracks by invoking the state secrets privilege and your case will be dismissed before you even get to discovery.  I have an article on this topic coming out in the Temple Law Review.  For those of you who just can't wait, you can have a look at a draft version here.

My point is pretty basic.  Current policies, largely informed by a bizarre infatuation with executive power, create disincentives for rational actors to contract with the United States.  The predictable result of this is higher transactions costs as the U.S. seeks to overcome the obstacles it has needlessly placed between itself and individuals and entities otherwise willing to assist the U.S. in achieving its legitimate goals.

[Jeremy Telman]

Government Contracts and the Revolving Door

You may know John Ashcroft (left) as the author of "Let the Eagle Soar" or you may know him as a former U.S. Attorney General.  In any case, he testified before Congress yesterday, defending a contract that could pay him as much as $52 million (over an 18-month period) to monitor Zimmer Holdings Inc. of Warsaw, Ind., a company that manufacturers replacement hips and knees.  According to STLToday.com (the Internet home of the St. Louis Post-Dispatch), Zimmer Holdings was one of four companies that agreed to pay $300 million to settle cases arising from a federal investigation.

Ashcroft's Washington, D.C. based company (presumably The Ashcroft Group, LLC) was selected on a no-bid basis by New Jersey's U.S. Attorney Christopher Christie, who used to work for Mr. Ashcroft at the Department of Justice,  In his defense, Mr. Ashcroft pointed out that no taxpayer dollars were spent on the contract as the money paid to him is provided by the company being monitored.  So, it's supposed to make us more comfortable with the quality of the monitoring that the monitor is paid millions of dollars by the party he's supposed to monitor?  But then again, Mr. Ashcroft is a man of integrity, just like this guy.

[Jeremy Telman]

Contracts, Politics, and National Security

  On February 29th, the U.S. Air Force announced that it was awarding a $35-40 billion contract to build aerial refueling planes to a team formally led by Northrop Grumman.  I challenge anyone to click on the image at left and resist the temptation to stand up and shout U.S.A!!  U.S.A.!!  Aerial refueling is cool!!

Anyhow, the contract award to Northrop Grumman and its partner, the European Aeronautic Defense and Space Co. (EADS),was widely reported as a "stunning setback" for Boeing, since EADS is the parent corporation of Boeing's rival, Airbus.  What was the Air Force thinking?  This is about refueling, not about supplying pilots with beaujolais nouveau.  In any case, like an earlier proposal to place a Dubai-controlled company in charge of managing six U.S. port terminals, this government contract raises issues of patriotism, national security and economic outsourcing.

Today, the Associated Press reports that Boeing will file a challenge to the Air Force's decision with the Government Accountability Office.  According to the AP, pressure to review the decision is coming from politicians representing states that would have benefitted had the contract been awarded to Boeing. Meanwhile, Alabma Senator, Richard Shelby, defended the Air Force's decision.  Northrup Grumman reports that the contract will lead to the creation of 2000 new jobs in Mobile.

UPDATE: For those interested in learning more about the Government Accountability Office bid-protest mechanism, there is a new article out:  Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 2007 Wisc. L. Rev. 1225.

[Jeremy Telman]

Contracting for Force in Iraq

The use of government contractors to provide security services in Iraq (read, "carry guns in a war zone") has raised a lot of interesting questions for the contract law community.  Historically, use of private force under vaguely government authority was common; much of the colonization of America was done by private entrepreneurs using force under Royal charters that often allowed them to kill as many natives as necessary.  The Constitution specifically authorizes Congress to grant letters of marque (left) to private shipowners to wage war on enemies.  As late as 1856, the British East India Company operated its own empire with its own army.  Even today there are private armies in many countries.

But over the past century, the U.S. and other developed countries have elected to entrust the use of force in war zones to their own employees rather than private contractors.  That means that the war in Iraq has raised significant issues about who should be using force, who should be watching those who apply force, and exactly what contract law has to do with all this.

George Washington's Steve Schooner is quoted in an interesting piece that goes over the issues in a story today from the Associated Press.

[Frank Snyder]

Consolidating the Boards of Contract Appeals

New legislation will consolidate all of the federal government's various civilian Boards of Contract Appeals, the entities responsible for hearing and resolving disputes under federal contracts, into a single organization.  Last Friday the folks at George Washington's law school hosted a panel discussion (left), led by Stephen Schooner and Christopher Yukins, on what that's going to mean for those who practice before the Boards.  If you missed it, don't worry -- a podcast of the program is available.

[Frank Snyder]