Page images

Section 2679 (f), Section 7 of S. 2117.


1. (a) What powers, procedures and remedies - other than

[merged small][ocr errors][merged small]

may discipline federal employees who violate the constitutional rights of

American citizens?

(b) May the federal government assess any civil fine against

such employee?

(c) May the federal government bring any type of civil action

for damages against such employee?

2. (a) With respect to internal disciplinary proceedings, how many have been filed against government employees for violations of the Constitution since January 1, 1968?

(b) With respect to each such proceeding, please indicate:

(i) The agency in which such proceeding took place.

(ii) The facts and alleged constitutional violation.

(iii) The results of any such proceeding.

(c) Were any such proceedings filed in connection with:

(i) the Collinsville drug raid?

(ii) any Cointelpro operations?

(iii) any CHAOS operations?


3. With respect to each disciplinary proceeding referred to in 2.

(a) In those cases in which guilt was found,

(i) what sanctions were imposed?

(ii) Were any of the subjects subsequently promoted

or given merit increases

(iii) Were their careers affected in any way?

(b) In cases where the subjects were found innocent, what were

[ocr errors]

the basis for the findings - factual innocence or an affirmative defense such as superior orders?

(c) With respect to each such disciplinary proceeding, will the

Subcommittee staff be permitted to examine the agency files?

4. Were there Civil Service Commission proceedings in this matter

or were they in the particular agency?

5. (a) What, if anything, was the role of the Department of Justice

Office of Professional Responsibility?

(b) Does the Office of Professional Responsibility have jurisdiction` over alleged misconduct by employees of agencies other than the Department of Justice?

6. What procedures are involved in these administrative proceedings?

7. Is the "forwarding" under paragraph (f) supposed to involve any recommendation by the Attorney General?


8. Does the head of the Department or agency have complete discretion as to how he will react to the "forwarding" by the Attorney General?

9. Does the United States have any conflict of interest in investigating or prosecuting a federal employee for acts with respect to which the United States in a Tort Claims Act case against such employee has been substituted as a defendant?

10. Of what evidentiary value in an "administrative investigation or disciplinary action" (page 7, line 8) is a court finding of liability in a Constitutional Tort case?

Section 2680 (a): "Execution of statute or regulation"

(a) Will this provision exclude from Governmental liability all situations in which an individual acts under an unconstitutional regulation or an unconstitutional statute?

(b) Why should the United States not be held liable when its officials execute an unconstitutional regulation promulgated by a Federal official acting in violation of the Constitution?

(c) Why should the United States not be held liable for violation of someone's constitutional rights by an unconstitutional statute?

Section 2680 (a). "Discretionary act"


(a) Does this exclude liability even if a federal official violates

constitutional rights by an abuse of discretion?

(b) Aren't many if not most constitutional violations a product of

discretionary action?

(c) Weren't the Cointelpros involving unconstitutional mail openings and wiretappings adopted in the exercise of discretion?

Section 268 (h), Section 8 of S. 2117.

Why the exclusion in subsection (h) if the act also involves a violation of the Constitution? More specifically, why should the United States not be liable for misrepresentation, deceit and interference with contract rights, if those activities violate constitutional rights? Didn't many of the Cointelpro operations involve misrepresentation, deceit, and efforts to get people fired?

[ocr errors]

Section 2680 (k)

Why the exclusion in subsection (k) for constitutional violations "arising in a foreign country", at least where the victims are American? For example, the violations involved in the Berlin Democratic Club case.


28 U.S. C. § 2401

Would 28 U.S. C. 2401 bar the filing of a claim for a Constitutional Tort if the existence of the tort had been concealed by the United States or if there is some other valid reason why the claimant was unaware of the facts underlying the claim?

28 U.S. C. § 2402

Does section 2402 bar jury trials in Constitutional Tort cases?

Jaffe Memorandum to Calamaro of December 13, 1977

1. Can the text of a new subsection (f) of § 2679 be made available

to the Subcommittee?

2. Please set forth in detail the "serious problems" that would be presented by the elimination of the good faith defense insofar as "discovery". and "the relationship between good faith and accountability" are concerned. 3. Does the memorandum modify the bill, as it was introduced? I.e., are we to assume that the changes referred to in the memorandum in §§ 2679 (f), 2579 (d) (3), attorneys fees and class actions, will in fact be made and that consideration of the bill should proceed on that understanding?

« PreviousContinue »