A recent survey by the Merit System Protection Board confirmed the need to eliminate retaliation under the first amendment. Ninety-six percent of Federal employees surveyed definitely or probably approved of whistleblowing. A large percentage of them had experienced or personally observed fraud and waste, and 9 percent, which we extrapolate amounts to over a quarter million Federal employees, had personally witnessed fraud or waste in excess of $100,000. Yet less than 20 percent of these employees said anything about it. And one of the major reasons for their silence was fear of retaliation.

The legislative history of the Civil Service Reform Act explains that legitimate whistleblowing is essential for the public interest. We agree and believe that the exercise of first amendment rights can be essential for a Federal employee to fulfill his or her legal duty to uphold the code of ethics for Government Service;

We note in caution that the one area where the courts have extended this type of immunity, from personal liability for constitutional violations is in the military. And they did that for a very particular, specific reason: As the Supreme Court explained, "The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline." Those are the reasons why military people are exempted from individual liability. There is a need for that type of conformity within a tight organization. But as the Supreme Court has pointed out, or as the courts have pointed out, once you get out of the military you would become a second-class citizen if you didn't have access to the courts to sue for your rights. And we are concerned that this bill would make all Americans second-class citizens in comparison with their current constitutional rights.

It would allow them to be hurt without access to the courts for crimes as those covered by military tort immunity and immunity from military constitutional liability. Let me consider some of the hardships that have been excused in those cases. Let us consider whether we want to extend the following examples to citizens at large.

In one case, military immunity was applied to dismiss officials who knowingly and intentionally compelled thousands of soldiers to march into a nuclear explosion during the 1953 atomic test in Nevada, resulting in massive radiation exposure and cancer.

In another example, the Thornwell case, it was used to remove liability from defendants who allegedly tortured a soldier, kept him in isolation for months, threatened him with death, then compelled the victim to take LSD before subjecting him to further physical and mental degradation.

There's a justifying reason to permit those outrages in the military, but not among the citizens at large. The cost is simply too great.

Certainly, we don't think that it would be desirable to set up a system where Federal officials were off the hook for crimes against the Constitution that State officials would not be affected by under this bill and would still be liable for. The Supreme Court has also commented on that: That to create that type of system would stand the constitutional design on its head.

faith defense is no longer appropriate. It is appropriate when an individual employee faces responsibility for his or her actions.

Finally, in terms of the adequacy of remedies, you have pointed out that under this bill we would be able to go to the United States, which wouldn't be judgmentproof in the extent of a larger award. Actually, we think this is a very sensitive concern on the part of the committee, but that doesn't mean that we should substitute for individual remedies currently available. We would suggest that your bill supplement the remedies that people have available under the Constitution in case the defendant is not able to pay damages.

Perhaps our most significant concern about S. 1775 is the third area that we would like to discuss: It will be an ineffective deterrent against future violations. This has to be, in our opinion, the core of evaluating the legislation-whether or not the constitutional rights of Americans are going to be served or weakened under the results of this legislation.

And under this key test, the Federal Tort Claims Act simply is not as effective as an action for damages. The Supreme Court recognized this explicitly in Carlson v. Green, when it found that conclusion "almost axiomatic." It's almost beyond debate that deterrence is going to go down, according to the courts.

Section 5(c) of the bill does have a provision for administrative discipline and it's been discussed quite a bit this morning. The Government accountability project has worked very closely with the administrative sanctions of the Civil Service Reform Act and also with the Freedom of Information Act, and we would like to comment upon the adequacy of this disciplinary structure.

We have questioned how serious the structure is intended to be pursued, because there is no particular structure established; it is simply a referral system. There's no obligation for the Government to act at all on the referral. And quite significantly, the victim, the person who has been hurt, doesn't have any role in the process. The victim is reduced to a helpless, passive bystander.

But regardless of the intentions of this particular legislation and even if it were bolstered in order to be a more detailed structure, we still doubt that it could work effectively. Our concern is based on the experience of previous administrative disciplinary structures.

The Freedom of Information Act has had such a structure for arbitrary and capricious denial of documents under the FOIA. In 7 years there hasn't been a single disciplinary proceeding under that act.

The Civil Service Reform Act of 1978 had such a structure under 5 U.S.C., 1206(g). In 3 years, however, much to the frustration of Government whistleblowers, there has yet to be a single case where a Government employee was disciplined for taking a prohibitive personnel practice, such as any illegal reprisal against whistleblowers.

We don't see any value in establishing another administrative exercise that doesn't accomplish anything. We feel that American citizens can best deter constitutional violations by defending their own rights, rather than having Government agencies do it for them.

The fourth area of concern that we have about the bill is particularly significant: It's that the analysis in this debate has been ignoring the hardship of the victims. We've heard problems from employees who have had to defend themselves from suits. But what about the people who are bringing the suits? Why do they bring those suits? Surely, it wasn't out of just some vacuous, malicious desire to sue Federal officials. Something happened to those individuals. And I think we have to consider what you are weighing against the hardship of the public employee when you surrender constitutional rights.

For instance, the 1974 Collinsville no-knock searches which preceded Federal Tort Claims Act amendments this bill would abolish, were no mere nuisance. With neither warrants nor warnings, Government agents kicked open the doors of two families' homes, shouted obscenities and threatened the helpless inhabitants with drawn guns. Well, certainly a lawsuit may keep you awake at night, but having Government agents break open your door and put a pistol at your head may also keep you awake at night. It may be something that you never forget for the rest of your life.

GAP has had a unique opportunity to observe the hardships involved in first amendment violations, because we counsel, and almost literally hold the hands of government employees who are whistleblowers and have been through the mill.

We have looked at the experiences of these individuals and I would like to summarize some of them with this particular constitutional depravation first amendment violations.

The retaliation has included personal nightmares such as loss of all professional responsibilities, dismissal, transfers to bureaucratic "Siberia" such as being sent to the Rio Grande border when you're used to working in Washington, D.C., continuous investigations repeatedly over the years to find evidence for prosecution and/or smear campaigns against the individuals, debilitating expenses even for the winners, family breakups, financial ruin and often times, long-term blacklisting from Government services.

These consequences, even from a first amendment violation, in our opinion, cannot be compared to those from a frivolous lawsuit that a government employee may face.

If anything, S. 1775 is going to eliminate liability for some of the worst forms of personal hardship, such as assault, battery, false imprisonment, malicious prosecution, and illegal wiretapping or surveillance.

This last provision, section 9 of S. 1775, which takes away the ability to sue for punitive damages against illegal government wiretapping, is particularly unnerving to us. The revision would repeal a basic commitment that an individual can defend themselves and fight back when their personal liberties have been invaded by illegal surveillance.

Let me turn to the premises of this bill which S. 1775 also would repeal when it was passed in 1967. "It is no wonder," according to the legislation's sponsor, "that in his famous dissent in the landmark Olmstead case in 1928 Justice Brandeis prophesied that the failure to understand the intrusions on personal liberty permitted by advancing technology represented 'the greatest danger to liberty.”

In conclusion, we feel that the current administration was elected on a pledge to get the Government off the backs of Americans. We think that this bill, however-S. 1775-may do just the opposite. We urge the committee to carefully consider the warnings of the Supreme Court over 100 years ago that

No man in this country is so high that he is above the law. No officer of the law may set the law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law and are bound to obey it.

Mr. Chairman, as with the other witnesses, we offer our testimony in a constructive spirit and we would be glad to work with your staff.

Senator GRASSLEY. Are you sure you won't take a position in opposition to this legislation?

Mr. CLARK. We're not fond of this particular piece of legislation, but we particularly want to comment on its impact.

Senator GRASSLEY. Yes. Well, I appreciate that. I wanted to make that observation that that was the position of your organization, that you don't take positions on legislation. That's my understand

ing wanted to mention since you did bring up the Fitzgerald case,

that we are going to have Elliot Richardson testify at our next hearing, which hopefully will be soon after Thanksgiving, and it's our understanding that he will be testifying in support of that legislation.

Mr. DEVINE. Yes, sir. Mr. Richardson is the lawyer for Messrs. Harlow and Butterfield, who are also defendants in the suit. We suggest maybe you invite Mr. Fitzgerald to testify, and you can get both sides of the story.

Senator GRASSLEY. I wanted to also raise the point with you that statistically-and I know that we shouldn't dwell too much just on statistics of this-but that 2,000 cases, those are cases that are pending now, they aren't cases that have been brought, because there are some that have been brought and dismissed and there are 2,000 still pending.

I guess the first thing I'd like to ask you to comment on, in the face of only nine judgments, and I know you don't dispute that, I'd ask you to seriously consider whether or not there's really any meaningful remedy that the citizens have that they would be losing and in fact then remember that this bill does give the citizens a remedy in the sense that if they do win their case they at least can get a judgment.

Mr. DEVINE. Well, we would have several comments on that. First of all, we appreciate that the bill does provide a remedy from the United States for citizens and we don't think any value would be served by removing that provision of the bill.

Second, however, we think that perhaps one of the real focuses of a constitutional suit almost goes beyond the idea that the individual is expecting to receive a lot of money. These are simply citizens who said that we've been abused of our freedoms and we want to fight back. We want a forum where we can defend our rights. And it's not just a case of, "Well, we expect to get rich off of the constitutional violations." That would be counterproductive because it hasn't happened. If the citizens want to be able to defend their in

dividual liberties, we're concerned that going exclusively to the Federal Tort Claims Act will greatly deprive them of the opportunity. They'll be losing some of their legal weapons. They want to be able to have access to the courts like they do with any other rights. Senator GRASSLEY. I suppose at this point, then, I ought to remind you that employees themselves don't get off the hook because of the possibility of disciplinary referrals. The criminal laws are not being substituted in any way, and the fact that it can be found beyond scope as well, all of these are examples of ways in which the employees are going to, even though the Federal Government's being substituted for their own personal suits, to be disciplined or whatever else might be involved with seeing that they should not be encouraged to pursue things that are harmful to the individuals.

I guess I'd have to ask you that: Doesn't the fact that there are just nine judgments indicate that Federal employees and Federal officials do not go around violating peoples' rights?

Mr. DEVINE. We would certainly agree that the overwhelming majority of Federal employees are very conscientious and do not attempt to violate individual citizen's constitutional rights. But, of course, every effective Government structure has to be designed to be able to incorporate those who abuse it as well as those for whom there's no need for legal actions against.

Senator GRASSLEY. Yes. Shouldn't the Carlson case be read as inviting Congress to act with remedial legislation?

Mr. DEVINE. We've studied that case very conscientiously and the Justices have said that if Congress wants to amend the Federal Tort Claims Act, that will present a different picture, but their analysis of the Federal Tort Claims Act as a deterrent to constitutional abuses was that the act was not effective, that it wasn't designed for that purpose.

The Court is, of course, quite hesitant to tell Congress what it should or should not be doing in its own policy. They looked at the effectiveness of FTCA as a deterrent and rejected it.

Senator GRASSLEY. I guess I would tell you that I disagree with that interpretation of it and I would ask you to look at page 10 of the case as substantiating that point of view.

Mr. DEVINE. We certainly will, Senator, and we have quoted extensively from the Carlson v. Green decision in our testimony and you'll find references to the citation.

Senator GRASSLEY. Thank you.

I am reminded of your comment about immunity involving military cases. The Price-Anderson Act on nuclear would be another example and also the swine flu vaccine legislation that was passed in early 1976 would be another example.

Even though I didn't specifically say this in regard to you, I would be happy to have you continue consultation with us as we have invited other groups to so do.

Mr. DEVINE. Thank you, Mr. Chairman.

Senator GRASSLEY. Thank you very much for your testimony.
That's the end of my questions.

[The prepared statement of Messrs. Devine, Gaylord, and Clark follows:]