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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.

The Civil Service Commission would not merely review, as it does today, whether the procedures of the agency and its own regulations were followed. He would have a new trial, if you will, or at least a new investigation.2

There is some talk-we have not fully resolved that part of the thing as to whether or not the citizen himself may seek judicial review from his dissatisfaction with anything the Civil Service Commission does.3

These are all the possibilities we are considering. But the initiation of the complaint, investigation, by the citizen is something we in the department at least have all agreed upon.

Senator METZENBAUM. Mr. Jaffe, you are doing what I am doing; and it is bothering me a bit-like we have done in the name of our subcommittee. We keep talking about the rights of the citizen. Somehow we ought to find a word that is more apt, because noncitizens have rights as well.

Mr. JAFFE. That is correct. I changed the word "citizens" to "persons" every now and then when I saw it.

Senator METZENBAUM. Our subcommittee name has that. I have used it; you have used it. I think we all understand that we are not talking about citizens, but persons.

When do you see the Department, Mr. Jaffe, being able to resolve some of these questions as to various problems and issues that are still unresolved pertaining to this legislation?

Mr. JAFFE. Well, frankly, the only problem that I see that is unresolved is unquestionably one of the most important. That is what we have come to call accountability. It has to do with the ways and means of disciplining.

I think we have resolved all other questions; I think we have, with certain amendments that we are prepared to propose.

It is very difficult for me to make an estimate because it involves not only our ideas-"our" being the Department of Justice-but it may involve the Office of Management and Budget. It certainly would involve the Civil Service Commission. Agencies' views would have to be made known because it would impose a much greater burden on them than they have yet experienced.

So, I cannot give you an estimate. But I would hope that we could do it with reasonable dispatch.

Senator METZENBAUM. Well, I know that the Attorney General is anxious to move the bill.

Mr. JAFFE. Yes.

Senator METZENBAUM. The chairman of the subcommittee wants to be cooperative, but I want to be certain that we understand that we are not going to move the bill until we get this issue resolved. So, at this point I want to make it clear that we will not be dragging our feet if you won't drag your feet.

Mr. JAFFE. We are mindful of that. We would like to have this bill go forward, and that is enough impetus for us to act as quickly

as we can.

I would hope to be able to do it in a matter of a few weeks. The only reason I cannot give you a definite deadline is because, if it

2 See Department amendment § 7802 (c) (2) on p. 50.

3 See Department amendment § 7804 on p. 50.

was only the Department of Justice that had to work this out, I could give you a time.

Senator METZENBAUM. I will not pressure you on it. I just want you to understand that the corollary of moving the bill is that we resolve the question.

Mr. JAFFE. I had assumed that, Senator.

Senator METZENBAUM. Will the individual person be able to prosecute both the suit and the administrative procedures simultaneously? Mr. JAFFE. Well, we have discussed that. We would consider that undesirable for many practical reasons.

General BELL. We had a meeting on that yesterday. I concluded we could not agree to that.1 I think some people wanted us to do that, but that would just have exacerbated the problem. We would have two proceedings going at the same time. There would be nothing to be gained by doing that. It would be sort of a-not a double recovery, but a double procedure. It is unnecessary, in my judgment. Senator METZENBAUM. Would you then be forcing the individual into an election?

General BELL. Only if the individual wanted to go strictly by disciplinary proceedings.

If the individual wants to claim damages, then I think that route ought to be taken first. Then, if damages are awarded and the disciplinary proceedings results in no discipline, then I think the citizen ought to be able to appeal that somewhere.

Senator METZENBAUM. Let us take an example

General BELL. On the other hand, if the citizen says, "I don't care anything about any damages; I would just like to have a disciplinary proceeding," then I think they ought to waive damages in that instance.

Senator METZENBAUM. Let's take some specific examples. Let me take an elementary one.

I can think of many cases, such as a drunken driver who goes out and causes a personal injury or property damage and perhaps should be subject to disciplinary proceedings. Now, I do not think the individual who suffers by reason of that fact should be deprived of recovering adequate damages. It may be very great pecuniary damages, but that individual may also say that "I think it is a terrible thing that my Government lets a person stay on, and they do nothing to him; he is just going to stay on in the same position."

There may be many other kinds of cases where you really need. both remedies. I am not even sure the matter of disciplinary proceeding is a remedy. But I think it is a question of saying, "Well, why isn't the Government doing something about this particular person who violated my civil rights, my constitutional rights, my legal rights? Even though I am going to get damages, it still seems that they ought to be doing something."

General BELL. I agree with that. You would get damages, and you would get the disciplinary proceeding. I just say go for damages first to see if you are entitled to damages. You might find the person was not drunk. So, that is just a waste to go both ways at the same time.

1 See Department amendment § 7802 (a) at p. 49.

Senator METZENBAUM. Give me the rationale as to why the individual should not be permitted to proceed on both fronts at the same time. I am having trouble following that.

General BELL. There is no rationale to it; it is just a complete waste. Why should you have two lawsuits when you can get by with one? That's what is wrong with our court system now; we have so many things like that going on.

I tell you the truth. I would rather not have the bill if we are going to get so complicated that it will fall of its own weight.

Now, the idea of presuming somebody is guilty before they have a trial and starting a disciplinary proceeding-suppose they find in the disciplinary proceeding they are not guilty and then in the court suit that they are?

Senator METZENBAUM. But, as a matter of fact, that probably would be an element of evidence in the case that in the disciplinary proceeding they were found not to have been subjected to discipline, that they had not done anything wrong.

Mr. JAFFE. It would not be the same proceeding at all, Senator. Nothing that would occur in the court case-if the United States was the defendant-would permit us, for example, to discuss the good faith of the employee. It would not permit us to bring in any of the evidence-not any of it, really-that the employee would have available in the disciplinary proceeding. So, the evidence in one would not even be remotely admissible in the other.

Senator METZENBAUM. I am willing to agree with that. But, having said that, let's assume that John Jones works for you in one of your departments. He goes out and drives this automobile, and he is the same drunk driver. He is driving while intoxicated. And he is charged in a criminal court for DWI and he is charged in a civil court with a damage suit. Now, you might have two cases going with a degree of burden of proof in both those cases.

It really does not preclude one going forward absent the other. It does not say which one has to go before the other. And I am really repeating in saying, what is the rationale for saying we only want one to go forward and not the other?

First of all, the statute of limitations might be running against the individual while the disciplinary proceeding is going on.

Second of all, while the civil proceeding is proceeding forward. it may be two years for that pattern to be disposed of. Meanwhile. that person could do the same thing over and over again. Also, if it happened to be an appointee, he might even have left the Government by that time.

I can't quite

General BELL. Let's take a better example instead of driving a car, because that is already covered by law. Let's take some FBI agents breaking down somebody's door and breaking into a house. without a warrant. Presumably the FBI or the Attorney General would be responsible enough to start a disciplinary proceeding in that case.

What we are thinking about now is the citizen being able to participate and to get redress in case our system was inadequate to the extent that we failed to punish it. Now, that citizen could sue for damages at the same time.

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