In addition to Senator McConnell's questions, Senator Grassley has also submitted the following follow-up questions in writing.

Q. Please provide a list identifying each contractor with the Department of Energy who has requested certification from the Attorney General.

A. As indicated in the information above, the Attorney General has received requests for certification from nine contractors. They are: AT&T, Bell Laboratories, EG&G Inc., General Electric, Holmes and Narver, Inc., Reynolds Electric Co., Sandia National Laboratories, The Regents of the University of California, and Western Electric.

Q. Does the Veterans Administration know the number of claims it has received alleging radiation-caused injury arising form nuclear tests? If so, can you obtain the information from the Veterans Administration and supply it to us?

A. We are advised by the Veterans Administration that the number of claims for radiation related injuries filed by veterans is 4,539 with an additional 344 claims filed by survivors of deceased veterans.

I hope this information adequately answers your questions. I would appreciate it if this information is inserted at the appropriate point in the hearing record. Please let me know if the Department of Justice can be of further assistance.

Sincerely,

Jol R. Bolto

John R. Bolton

Assistant Attorney General

Senator MCCONNELL. Thank you very much for coming.

Our next witnesses comprising a panel are Prof. William Fletcher, professor of law at the University of California, on behalf of the National Coalition for Radiation Victims; Paul S. Egan, deputy director, National Legislative Commission, American Legion; Dale Haralson, an attorney in Arizona, on behalf of the National Association of Radiation Survivors; Robert Faron, a partner in Barnett and Alagia, on behalf of the National Association of Atomic Veter

ans.

Professor Fletcher, we will start with you.

PANEL CONSISTING OF DOROTHY LEGARRETA, ADMINISTRATIVE DIRECTOR, NATIONAL ASSOCIATION OF RADIATION SURVIVORS, ACCOMPANIED BY DALE HARALSON; WILLIAM A. FLETCHER, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, ON BEHALF OF THE NATIONAL COALITION FOR RADIATION VICTIMS; PAUL S. EGAN, DEPUTY DIRECTOR, NATIONAL LEGISLATIVE COMMISSION; AND ROBERT S. FARON, BARNETT & ALAGIA, ON BEHALF OF THE NATIONAL ASSOCIATION OF ATOMIC VETERANS

Ms. LEGARRETA. I would like to introduce Professor Fletcher, Senator McConnell. My name is Dorothy Legarreta, and I want to thank you for the opportunity to present testimony in favor of S. 2454. I am the administrative director of the National Association of Radiation Survivors. I am pinch-hitting for our legislative director, who died, another cross-road veteran like Bob Farmer, this past Sunday of a massive heart attack.

We are a 5,000 member organization composed both of atomic veterans and atomic civilians, and we urge passage of S. 2454 to allow us our constitutional rights among other rights to a trial by jury. On behalf of NARS, I want to thank Senator Murkowski who held hearings on this issue last year and where we gave testimony to the negative effects of the Warner amendment on our membership.

I want to comment that we are now in a post-Challenger and post-Chernobyl era subsequent to the testimony before Senator Murkowski's Veterans' Affairs Committee. I think we are all aware that our technology may be flawed and we here have the opportunity to right past wrongs that were done to our own citizens in the name of national security.

As many of you know, I was an employee of the Manhattan Engineering District back in the forties at the University of California site where I witnessed first-hand some of the negligence you are going to be hearing about from Attorney Dale Haralson.

I would like now to present Prof. William Fletcher, who is a professor of law at the University of California, in Berkeley. He is also an expert on constitutional law and Federal jurisdiction. He is a graduate of Harvard College and the Yale Law School. He is a Rhodes scholar, a former naval officer, and a Supreme Court law clerk.

He has published articles on constitutional issues in the Harvard Law Review, the Yale Law Journal, and the Stanford Law Review. I present constitutional law professor William Fletcher.

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Senator McCONNELL. Thank you.

STATEMENT OF WILLIAM A. FLETCHER

Mr. FLETCHER. First, I would like to thank the committee for having invited me to testify on the issues before us. I am a professor at the University of California.

Senator MCCONNELL. Professor, excuse me. If I may mention to all of you, as I did the witnesses previously, I would like to have you summarize your testimony and we will put the entire text in the record.

Mr. FLETCHER. I would be glad to do so. I have submitted my testimony in written form for the record and I will summarize only key parts of it and respond to some of the things that I have heard so far today.

I would like to say first that I am not myself a plaintiff lawyer and that I do not stand to benefit in any way personally from the passage either of S. 2454 or H.R. 1338. I have not been personally involved in these issues. I come at it only as an American citizen and as a professor deeply involved and interested in questions of constitutional law.

Let me begin by describing the Warner amendment and what it does, because from the testimony that I have so far heard it appears to me that there may be some fundamental misconception as to what it did.

Prior to the passage of the Warner amendment, persons injured in the atomic weapons testing program had the ability to sue private contractors alleging that they had been injured because of the negligence of those contractors, just as any private citizen would have the right to sue any other private contractor.

To give you an analogy, it is an hypothetical analogy at this point, but to give you an analogy, one could imagine, for instance a survivor of one of those in the shuttle suing a private contractor alleging that the contractor had negligently constructed parts of the shuttle. It is that sort of lawsuit. That sort of lawsuit has always been available to members of the military against contractors who had done certain things.

There are defenses. There is, for instance, the Government contractor defense, there are causation defenses. They are not slamdunk winners of lawsuits, but they have always existed and they have always existed for members of the military.

The Warner amendment effectively eliminated the ability to bring such a suit by providing that the United States should be substituted in place of the defendant and then able to assert defenses not available to those contractors. It is as if—and again I emphasize that this is a hypothetical-it is as if the survivor of one of the military people on the Challenger had brought suit against a private contractor.

Let us assume—and again, this is a hypothetical-that negligence could have indeed been shown. The suit gets under way and the private contractor comes to the Government and gets a new Warner amendment passed which provides that this suit must be dismissed. That is what the Warner amendment did.

The Warner amendment is unique in American law. It has four characteristics that I should point out to you for you fully to understand its uniqueness. First, it provides that there should be sovereign immunity for private contractors. This is very unusual and to the extent that it exists shows up for drivers who drive for the Federal Government, health care employees of the Federal Government, and in one example that is the closest, but as I point out, not very close, for manufacturers of the swine flu vaccine. Those are the only examples of private contractors being afforded the sovereign immunity of the Government.

Second, the amendment is retroactive. Not only is it retroactive in a sense of abrogating causes of action that had already accrued, but more important, it is retroactive in that it applies to suits actually pending at the time of the lawsuit, and I will come back to that because that is an important constitutional issue.

Third, it eliminates the right of trial by jury. Fourth, and perhaps most interesting as a practical matter and maybe as a political matter, it provides protection to the private contractors that already existed. That is to say, the private contractors were not vulnerable to damage awards because they all had indemnification contracts with the Government.

There are a number of constitutional arguments that can be made against the Warner amendment. I would like to emphasize the argument that I find the most compelling and advance it to you and suggest that it might be appropriate for the Senate, perhaps more than appropriate, even indeed compelling on the Senate to repeal a law that is unconstitutional without waiting for the courts to do it instead.

The argument that I find most compelling is one based upon separation of powers. Suits were filed against the private contractors. The private contractors, suspecting that these suits would be terribly uncomfortable for them and perhaps that they might even lose them, came to the Government and got the Warner amendment passed.

It effectively changed the rules in midstream. It was not retroactive merely in the sense of affecting potential lawsuits. It was directly aimed at pending litigation. Now, as was testified before the committee hearing, the issues involved in Representative Boucher's bill in the fall, we have here Mr. Willmore representing the Justice Department saying it was as a result of the development of these lawsuits, particularly the very large, those in litigation in California, that brought the contractors and the administration to Congress, and that necessitated some congressional action, section 1631, in other words the Warner amendment was the result.

In other words, the Justice Department itself says that the Warner amendment was directly responsive to pending lawsuits. There is a separation of powers problem here. It is the law that Congress cannot do certain things to interfere with the operation of the judiciary.

There is an old post-Civil War case, United States v. Klein, which has recently been construed by the U.S. Supreme Court in 1980 in United States v. Sioux Nations. Klein as construed recently by the U.S. Supreme Court holds that it is a violation of the separation of

powers for Congress to change the rule in a pending case, No. 1, and to do so to its own advantage.

Well, that is precisely what has happened here. They have changed the rule directly in response to these lawsuits. This was not an accidental byproduct of legislation passed for other reasons, and they have done so to their own benefit, directly to their own benefit, and I submit under the Sioux Nations construction that is forbidden as well it should be under the Constitution.

Let me briefly allude to policy reasons behind it, without going through the other constitutional arguments in my prepared statement. Sovereign immunity has been among academic commentators and indeed in the Congress in this century an unpopular doctrine, a necessary evil, if you like, the evil that should extend no further than the necessity that might produce it.

I see no necessity here. This bill, as H.R. 1338, has nothing to do with the Feres doctrine. This bill would permit private civilians and former military people to sue private contractors as military people elsewhere have still the right to do. That is the effect of this bill. It has nothing to do with the Feres doctrine.

I ask myself why was the Warner amendment passed, and I come up with a rather disturbing speculation. The private contractors are not on the hook financially in these lawsuits because of the indemnification agreements. Why then are they so interested?

One consequence occurs to me, and that is these suits as we have now seen in California and as we have now seen in the first circuit and as we have now seen in Nevada are dismissed at the very outset, before any discovery has been meaningfully undertaken, and certainly before any testimony has been presented in open court. That then has the consequence, of course, of shielding from judicially sanctioned discovery and shielding from public exposure by public testimony what actually happened in these tests, and it seems to me that one consequence of the Warner amendment has been to assist in the concealing of the information in these cases. I think that Congress did not fully understand what it was doing when it passed the Warner amendment. It was passed in a way that I have outlined in my statement, as a rider to an unrelated bill. I think Congress has unwittingly participated in a form of coverup.

Finally, in conclusion, I would like to say that I have returned to testify from Germany where I am a visiting professor this summer and I was speaking to German professors as to why I was coming back, describing this. They were, I must say, puzzled that our country should act in such a way.

My response to them was to say that I thought the Congress had made a mistake in passing the Warner amendment and that I expected that the mistake would be rectified, and that was the response with which I felt most comfortable, and I must say it is the only appropriate response under these circumstances.

Thank you very much.

[The prepared statement of Mr. Fletcher follows:]