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damages whereas, under these liquidated damages provisions, you pay damages.
It seems to me that would be in the interest of the country, particularly at this time where we are in the tail end of the healing process, as I call it. I would like to clean up a lot of these things that we have had in the past. This would be a way to do it.
Senator METZENBAUM. Of the accumulation of legal fees that you had facing you when you came in, what percentage of the total would you say came about by that which we might say were Watergate related? Were any of them, or were many of them!
General BELL. Mr. Jaffe?
Mr. JAFFE. None of those at that time were related to Watergate. But most of them did involve constitutional type violations. Senator METZENBAUM. Most of Cointel
Mr. JAFFE. No; that came later. Cointel was just recently begun. Senator METZENBAUM. The thrust of my questioning has to do with whether or not this is largely a temporary problem growing out of a series of revelations of unconstitutionality or unconstitutional acts or violations of law in recent years which we might hopefully think might be behind us in the main. Do you think this is a continuing problem and process?
General BELL. I think it will be continuing. I think it will continue. We have an unusual number right now, but I think it will continue.
Based upon my experience as a Federal judge, we have a litigious society-take prisoners' suits for example. Prisoners seem to get some therapeutic value out of suing people. They sue a lot of people. I am sued quite often now about things I have never heard of and don't know anything about.
I was accused recently of being a coconspirator in a case that started a long time ago. They just added me, and I never knew there was such a case in existence.
Well, I don't know that I ought to have to be named about something I don't know anything about.
Senator METZENBAUM. I heard you were thinking about it when you were down there in Atlanta before you ever joined the administration.
General BELL. Maybe I was. I do not think it serves any useful purpose to have all these Government people named themselves in these kinds of cases. You have got to get a lawyer to go to court just to handle frivolous cases. It would just give better control.
To answer the question specifically, we will always have some suits against Government agencies; and this is not a bad thing. You know we are more conscious now of our constitutional rights than we have ever been. If a citizen feels denied or deprived or feels that they ought to be vindicated from some constitutional right, why not go to court? And why shouldn't the Government respond? But, at the same time, we have got to be careful to have some disciplinary procedure or device so that the employee will be punished.
In the drug cases- -as I understand the law-we can sue the drug manufacturer if we find they are negligent. We have got to defend the case. But, if they were negligent in the manufacturing process,
we can turn around and sue them. That is one technique that we might use here or just a plain disciplinary procedure.
Then you have got a complication. Sometimes the Government employee has retired or resigned. We have got to find out what we do in those cases. But I would say this. Even in the future, if we don't have as many cases as we are having right at this time, it still would be a good thing to have this law.
Senator METZENBAUM. I think one of the major concerns has to do with the matter of employee accountability. I think this bill should not do anything to cause that not to be a factor.
General BELL. I will agree to that.
Senator METZENBAUM. The question is how to obtain accountability. In your statement you talk about certain procedures. Could you give us some idea of the kind of procedures you are contemplating under that language?
General BELL. I'll take a shot at it. We will use the FBI for an example because that is probably the most visible agency in the Government for suit purposes.
If there is a complaint now filed against an agent under the procedure set up by Attorney General Levi or, indeed, anyone in the Justice Department, we refer it to what we call the Office of Professional Responsibility. There is such an office in the FBI. They then have an administrative hearing. Or, if I see something myself that I want to refer, that takes that same route.
They impose discipline. It could be a reduction in rank. It can be suspension or reprimand. And then it comes up on appeal to the Attorney General eventually. If the punishment is not high enough, you can send it back. In fact, in a case that was released recently, it was sent by Attorney General Levi-it was referred to the Office of Professional Responsibility for review. Of course, the Department of Justice did not think sufficient action had been taken.
Now, this is already in place-all these kinds of procedures. But, as I understand, there are a lot of instances in setting up procedures so that the person whose rights have been violated can participate in these administrative procedures. That is something we do not have now; that would be a new thing. I do not object to doing that, incidentally.
Senator METZENBAUM. Mr. Attorney General, realistically speaking, is that very effective? You know, there was an issue in this country-we don't hear too much about it now-about whether, if we had a complaint with the police department, the issue should be taken before a civilian review board or whether it should be before the police themselves.
Now the FBI is checking on themselves and their own fellow workers. Whether it is the FBI or any other agency, can Congress and the American people really expect that there will be an independent thorough investigation? I give you an example, one that is in high profile at the moment. The investigation made in-house in the Marston matter has created a lot of public discussion. I am not sitting here judging right or wrong. Suffice it to say that the public media have questioned the fact of in-house investigation.
Yes; it is a step in the right direction that the individual can participate in the hearing. But, going beyond that-for example, there have been a lot of FBI wrongdoings in recent months and years. How many FBI officers have been disciplined in the course of the past three years, would you say?
General BELL. I do not know, but I can give you figures. There have been some, and there have been people in the Department of Justice.
[The information on disciplining of FBI agents follows:]
DEPARTMENT OF JUSTICE, Washington, D.C., May 11, 1978.
Hon. HOWARD M. METZENBAUM,
DEAR MR. CHAIRMAN: This is in response to your request that the Department supply statistics reflecting Federal Bureau of Investigation disciplinary action against Bureau agents who were accused of committing so-called constitutional torts.
We have been advised by the Bureau that during 1977, there was a total of 69 allegations against FBI personnel occupying the position of Special Agent or above. No allegations of constitutional tort were made against service support personnel. Investigation determined that no administrative action was warranted in 64 cases due to the fact that the allegations were determined to be unfounded. In 2 cases the personnel involved were disciplined. Of the total number of allegations, 2 were withdrawn; 1 case involved Agent personnel of another agency.
I hope that this material will be helpful to the Subcommittee.
PATRICIA M. WALD, Assistant Attorney General.
General BELL. Since you brought up the Marston matter, I would like to respond to that.
I have had myself investigated twice in the last month on incidents arising in the great State of Pennsylvania. The first one was in Pittsburgh, where the New York Times say that I and Mr. Egan, the Associate Attorney General, had obstructed justice in that we were trying to put an unqualified U.S. attorney who was then being investigated by the FBI. I asked that the Office of Professional Responsibility investigate me on that. They have, and they will be reporting soon.
In the Marston matter, there was a charge by Marston-and the media strongly implied that I knew of an investigation of a Congressman at the time the President spoke to me. I thought that it ought to be clarified inasmuch as I did not know, so I made an affidavit saying that I did not know.
Now, I do not know what else I can do. I could convene a grand jury and go there and tell them that I did not know anything about it.
Then I went further and got affidavits from people under me, which got it up to the point that there was some suggestion that he was a suspicious character; but that was never brought up any higher. So, I think it is very clear that I did not know.
Then I directed somebody to go and get a statement from the President to see if he knew. I do not think that I have heard of an Attorney General doing that before.
I do not know anything else I can do about that except to advise the public as I propose to do in a few days-as to whether or not there was an investigation.
Senator METZENBAUM. Let me say this. You are almost proving my point. My point is not whether there was independence, whether you knew or did not know-and I do not sit here in judgment on the Marston case.
The point I am making is this. Because the committee making the investigation was an in-house investigating committee, its credibility has been attacked-not by me, but by the media nationally. General BELL. Because it is in-house.
Senator METZENBAUM. It is in-house. That's the question I am asking about in this matter.
General BELL. There is no other place to go.
Senator METZENBAUM. Well, I think
General BELL. Well, if you want to create some other place, it would suit me fine. I would be glad to appear before the Senate Judiciary Committee—————
Senator METZENBAUM. There are some other
General BELL [continuing]. To say that I did not know about any investigation in the Marston matter.
I will be glad to appear in Times Square, if you want to convene a trial there. As I told somebody the other day, the United Nations or The Hague would be fine with me. But you are never going to connect me with knowing it.
Senator METZENBAUM. To discuss the Marston case further, let me say that a newspaper man came in to see me yesterday. I said, "Well, they got affidavits from the Attorney General and from the President." He said, "No; they did not get an affidavit from the President." And I said, "No; they got a statement from the President; they said that they didn't need to have him under oath."
Then he said to me, "They never spoke to the President." And I said, "That isn't what I read in the paper. I understood they did speak to him." Well, I don't know, and I am really not sitting in judgment.
The point that I am making is this. I think, if you are going to have effective accountability, that either you have to have, in this kind of a matter, a special prosecutor or a special investigator-a totally independent person or persons. Or, in the case of employees, you have to have some kind of a review board that is totally unresponsive to the agency that is itself involved in the alleged wrongdoing. Or else the person who claims to have been wronged will never feel that they got justice; and probably the American people, when they learn about it, will not think they got justice. It will always be suspect-whether it is the CIA investigating its own people, or Cointel, or whether it is HEW or any other agency.
General BELL. I have no objection to having some outside group; that's why we have courts now for crime. But, if you want to have something short of that, you could have some outside group. I have no objection to that. I appreciate the point you are making.
Senator METZENBAUM. I think that what I am trying to say is that I would feel more comfortable-and I don't have anything spe
cifically in mind because I am not the author of this legislation nor am I that much of an authority on it-if the disciplinary agency or the individual were totally unconnected to the agency in which the individual is working. Some have suggested the Civil Service Commission. I am, frankly, not certain that I buy that concept myself. I think, conceivably, that there might be some special kind of disciplinary review board or something of the kind. I throw this out to you as a consideration of the kind of thing that I think some further thought should be given to.
General BELL. Let me make a suggestion of a middle ground on that. There is a way that you can appeal what the agency does in its own disciplinary proceedings. This would make the agency be more careful, but there would not be too many appeals.
Senator METZENBAUM. To whom would you appeal?
General BELL. You would have some outside group; the Civil Service Commission or
Senator METZENBAUM. In other words, you have an in-house disciplinary procedure
General BELL. Right.
Senator METZENBAUM. And then with the right to review.
General BELL. Right.
Senator METZENBAUM. I think that would be
General BELL. It would be a more practical way to do it.
Senator METZENBAUM. I think the only point that I am making is this. As a part of this bill we ought to have this kind of program or perhaps certainly in place so we know what is going to happen. General BELL. I am in agreement with that.
I will tell you, if you get into a position where I am, where you have to work out something like the discipline of a person and you feel like you ought to make it public and you know you are going to generate civil suits which might in the end be terribly costly to the person, then it may impair your thinking when you are prepared to discipline someone. Or, if you discipline him, you don't want to make it public. But, if you close the record, it would probably become public. So, it really interferes with management because management includes some disciplinarv action. That is another reason why we need some legislation of this kind.
Senator METZENBAUM. In these proceedings, who would initiate the proceeding? The citizen? If the citizen were to initiate it, how would he or she go about doing so?
General BELL. Mr. Jaffe and his group have been studying that, so I prefer him to answer that.
Mr. JAFFE. We have been considering that. While there are some problems that have to be determined, regardless of which way we determine some of the other problems, the citizen-that is, the person who was injured, the person whose rights were violated-would be able to initiate the proceeding. He would, in our contemplation, not only be able to participate; he would be able to question witnesses. He would be able-in our thinking so far-himself to appeal to the Civil Service Commission, at which place he could get an entirely new trial; that is, a completely new trial.
1 See Department amendment § 7802 (c) (1) on p. 49.