native area. First is the retention of the good faith defense and, second, is the failure to include attorneys fees in these constitutional tort cases.

As to the elimination of the good faith defense, it seems to me that the provisions which would retain good faith are in themselves counterproductive to the aims of this legislation, which is to lessen the burden on the Federal Government of litigation of this kind. Mr. Taft spoke just a moment ago about the case in which 15 depositions had to be taken of high-level officials of the Department of HEW. I suggest to you that the reason those depositions had to be taken was not because the merits of what transpired were at issue. In almost every case, and I must say, I have litigated these both as an assistant U.S. attorney and in private practice on behalf of injured citizens, the principal facts surrounding the tortious conduct are almost always admitted, or can be easily established by interrogatories or other documentary evidence.

What is the crucial question for which depositions are required is the state of mind of the individuals who are named as defendants. The only way you're going to answer that question is by putting them under oath, which means taking time to prepare their testimony, having them deposed, having it reviewed, and then go forward and have a trial.

Those are the elements that take the time, and by retaining the good faith defense, the Government is inviting more litigation of a kind that it could avoid by eliminating it.

Second, it is also going to be more difficult to settle these cases when you have a good faith defense. The reason I say that is because a settlement in a case like this could be seen as a tacit admission that the individual involved acted in bad faith, and if that is the case, particularly if it's a high official within an agency, the Department of Justice will be very reluctant to settle a case, whereas that would not be true if good faith were simply irrelevant. If the only issue was, as I suggest it really is in most cases, what did the Constitution require or, more likely, forbid, these cases could be easily settled or decided as summary judgment motions.

Now, the second aspect of the good faith defense that strikes me as being highly ironic is that the Supreme Court, in interpreting the constitutional tort provisions applicable to State and local officials in a case called Owen v. the City of Independence, has decreed that the good faith defense does not apply when the defendant is not an individual but a governmental institution. The result of S. 1775 would be to put victims of constitutional torts undertaken by Federal officials in a worse position than they would be if they were undertaken by State and local officials. It seems to me to make no sense to have a provision of that kind. If we don't need a good faith defense for State and local governments, we don't need one for the Federal Government either.

The second aspect of my meaningful alternative dilemma is the question of attorneys fees. Attorneys fees, as you are probably aware, are often associated with or taken as a substitute for punitive damages. I believe that the bill here is correct in deciding that, on balance, a continuation of punitive damage suits against the United States is not in the best interest of all our citizens. I say

this not because punitive damages have never been afforded against the United States. That simply seems to me to be begging the question as to whether we ought to have punitive damages.

But I think, by and large, the punitive damages element would provoke the same kind of litigation that the good faith defense would provoke; that is, questions as to the motive and intent of the individual actor. On the other hand, when we eliminate punitive damages, what we do is to eliminate the additional money that would be available to pay the plaintiff's attorney in cases of this kind, and since, as I've already indicated, most of these cases do not involve a significant amount of money, the effect of denying attorneys fees in these cases would be basically to deny most plaintiffs the opportunity to employ an attorney who could bring the case to court and take care of their grievance.

Once again I would point out that section 1988 of title 42 specifically authorizes attorneys fees in constitutional tort cases against State and local governments, and again I ask: Does it make any sense for the Federal Government to immunize itself in precisely the same cases in which State and local governments are now responsible for attorneys fees?

In light of the continuation of the good faith defense, it seems to me to make no sense to require a plaintiff to come forward and to bring his case all the way to the courts of appeals in many cases with no possibility of any attorneys fees, especially with damages generally limited to the relatively small liquedated damages provided in this legislation.

As to meaningful discipline, it seems to me that an elementary principle of tort law is that the possibility of the payment of a judgment is a significant deterrent to improper conduct. Indeed, the very reasons for enacting this bill seem to embrace that proposition. It is equally elemental that the elimination of the threat of having to pay a judgment by substituting the United States as a defendant for an individual employee will eliminate the deterrent, especially in cases of intentional torts.

We have heard today from Mr. Taft about the absence of any decrease in deterrence as a result of the changes in Federal statutes with respect to drivers and medical malpractice in the Veterans' Administration and elsewhere. Let me say that I consider that the area of negligence there has very little, if anything, to do with the questions involved in constitutional torts, which are principally in the intentional tort area. Obviously, no doctor is going to intentionally act negligently or, indeed, use anything less than the greatest amount of care that he or she is capable of doing. Similarly, drivers of all Federal automobiles, from the Postal Service to the Defense Department, are not so much concerned about discipline or paying judgments in avoiding automobile accidents. They don't want to get killed themselves. You don't need a significant amount of deterrence in that area. Indeed, that's one of the reasons that many States have gone to no-fault automobile insurance.

However, in the intentional tort area, and I'm particularly thinking of invasions of privacy by Federal agencies in law enforcement and elsewhere, we have shown that we do need a deterrent, and I am deeply concerned that S. 1775, by simply providing a referral over by the Attorney General, will not continue the deterrence nec

essary in the area of constitutional torts, principally intentional

ones.

In our view, there would seem to me to be three essential elements of a meaningful alternative deterrent. These include, one, initiation by the victim of the tort of some kind of disciplinary proceeding; two, participation to some degree in that proceeding; and three, review by a higher agency and, in some cases, by the court of the failure to impose any discipline or to impose adequate punishment.

I would also point out that the Attorney General referral remedy is not going to be very much help in those situations in which the malfeasance occurred in the Department of Justice, as it did in a number of cases with the FBI. Nor would it be of any help in cases in which high Cabinet officials are involved or where the White House has been involved in constitutional violations through the wiretap statute, which incidentally, this bill would also effectively repeal as far as civil remedies are concerned. It seems to me that the inadequacy of the deterrence here is a grave factor to be weighed in considering whether the mandate of the Carlson case is adequately satisfied so that there is a proper alternative.

I have one final point to make. All of the cases that you have heard about and will hear about will doubtless continue to be brought regardless of whether the United States is substituted as defendant. The principal questions that this committee needs to address in that connection are who should be the defendant, what should be the scope of the litigation, and if we have moved some of the inquiry about good faith away from the courts, shouldn't we move it into the administrative agencies where the procedures are less cumbersome, where the real purpose of the inquiry is to determine whether we should discipline within the scope of our disciplinary system.

We are anxious to work with this committee as we've worked with the Department of Justice and committees in the Senate and the House of Representatives in the past on this most important legislation, but we urge the committee not to rush forward. We have previously heard pleas that imminent action is required, and yet 4 years have taken place without it. This is an important area and we urge the committee to go forward, but with appropriate caution and with significant modifications of S. 1775.

Thank you very much.

Senator GRASSLEY. I want to thank you for your testimony and your offer to sit down and work with us. In fact, I was going to invite you, as I did the American Civil Liberties Union, to sit down with me and/or my staff to thoroughly review this legislation.

I would like to take one note of exception, though, that you have, in your written testimony that S. 1775 would provide nothing toward achieving the goal of deterrence. I guess I could say that I disagree with you on that point. The prospect of disciplinary action as initiated through the agency and particularly if the conduct is criminal, the possibility of criminal prosecution will be sufficiently strong to discourage improper conduct.

I don't think that we should lose sight of the fact that although the lawsuit causes people to be immune, a lawsuit against the United States would still require a probe into the employee's con

duct, and of course this was brought out in last week's testimony. But, I would like to think that the integrity of one's professional reputation being on the line, whether in disciplinary action or in a suit against the individual or in a suit against the United States standing in for the individual, would be a significant deterrent. I don't think that the prospect of damaging one's professional reputation should be taken lightly or, hopefully, isn't taken lightly by individual employees.

Mr. MORRISON. Well, I would have two statements in response to that. First, the criminal liability exists quite apart from S. 1775, and I simply meant to say, and perhaps could have been more precise, that S. 1775 adds nothing to potential criminal liability and that, of course, is true, whoever the defendent may be in a civil

case.

The second point I would make is that one of the problems that we have encountered in the past is that violations of the constitutional rights of individuals have often not been the result of decisions of individual low-level employees, but have been the result of policies, constitutional violations that have come from the highest levels within the departments, thus providing a referral over to the Attorney General, particularly for people who have long since left the Government or were high officials to begin with is simply not going to provide any kind of meaningful deterrence.

Furthermore, the Department of Justice has taken the position that even where there have been findings of constitutional violations, it will not disclose to the public the nature of the punishment, if any, that has been meted out in internal disciplinary proceedings. I would submit to you, Senator, that if the public doesn't even know what the results of these proceedings are, it's hard to have much faith that the process is working in the way that you have envisioned.

I guess that I would say that I have a little less confidence that there are not going to be more coverups than you do, and I feel that the balance is tipped too far in one direction rather than the other.

Now, this is a point on which reasonable people can differ, and I would like to engage in a debate about that with you and your staff. There has been much drafting done to remedy these problems, drafting that was approved by the Department of Justice. Indeed, I think the FBI and the CIA even went along with it in the last administration when they saw all the arguments spread out on the table before them and saw what the proper balances were. We think that striking an appropriate balance is important and we don't think that S. 1775 does that at this time.

Senator GRASSLEY. Following up on the line of your major objections to this legislation dealing with the good faith defense as well as the aspect of attorney's fees, and your saying that this particular bill is deficient more so than the ones that were before previous Congresses. Specifically what provisions in prior bills were you more comfortable with?

Mr. MORRISON. Well, there were two. I would be glad to supply the committee with the specific text, but basically it said there shall be attorney's fees in cases in which there is a finding of constitutional tort. The second was that the United States shall not

have available to it the defense of the good faith of the employee as a defense to it in a claim of constitutional tort, just as the United States does not have the good faith available to it in a common law tort. It would simply treat them the same. And part of my position is that the more you can treat them the same in that respect, the less litigation you're going to have.

The language is not very difficult to draft; it's quite elementary and it's been in a number of bills. I might say that this language was not in the first set of bills that were introduced by the Carter administration at the beginning of the 95th Congress. It only came about as a result of our discussions and of hearings and testimony and further reconsideration.

Senator GRASSLEY. That's all the questions I have at this time and I want to thank you very much for your testimony and I'll look forward to sitting down with you in the future.

Mr. MORRISON. Thank you, Senator.

Senator GRASSLEY. Thank you, sir.

[The prepared statement of Mr. Morrison follows:]