I have a sufficient number of problems without going back opening up some that have been closed.

The FBI break-in, I brought one.

Senator METZENBAUM. Mr. Jaffe, do you know of any?

Mr. JAFFE. NO; I cannot recall any; but that would not normally come within the province of my activities since we handle no criminal

matters.

When I consulted with the Criminal Division and the Civil Rights Division, it is possible that they can retrieve this information. But they have it indexed only under the statute that they may have proceeded under.

Senator METZENBAUM. I cannot believe that there

Mr. JAFFE. We did have the Collinsville case in which indictments were returned against either six or eight defendants-I am not surewho were Federal drug enforcement agents. They were indicted, tried, and acquitted.

Senator METZENBAUM. In that case they brought civil, administrative proceedings at the same time they brought criminal proceedings. Mr. JAFFE. Prior to the criminal proceedings.

Senator METZENBAUM. Prior.

Mr. Jaffe, will you have them figure out their own retrieval processes and advise the subcommittee in writing what other cases, if any, have been brought with respect to prosecutions other than the Kearney and the Collinsville cases, either under Cointel, wiretapping, or any other similar kinds of procedure? I think the record ought to show whether there were any more than these two instances. It is somewhat indefinite at this point. I think it probably ought to be searched out.

Mr. JAFFE. I will try. The difficulty is that even the retrieval system that I understand is in place does not separately identify Federal employees, for example; so that, even if we were to determine what statutes might be applicable, and we drew all the files on that, we would have to go through every one to see if they were, at the time of the indictment, either current or former Federal employees. General BELL. We will do our best to get that. Senator METZENBAUM. I appreciate that. [The information referred to follows:]

STATISTICS ON FEDERAL CIVIL RIGHTS PROSECUTIONS OF FEDERAL EMPLOYEES AS OF FEBRUARY 1978

The following is a list of criminal prosecutions undertaken by the Civil Rights Division and the Criminal Division of the Department of Justice over the past ten years against federal employees for criminal conduct amounting to violations of another's civil rights.

United States v. Bloemker, et al. (5-CR-73-80, S.D. Ill. August 24, 1973), a case involving 10 narcotics agents assigned to the St. Louis office of the Office of Drug Abuse Law Enforcement, resulted from a series of entries into private homes which became known as the Collinsville Raids. The agents were searching, without warrants, for members of a suspected drug ring when they broke into a number of wrong houses. All agents were acquitted after trial. The statutes involved were Title 18 U.S.C. §§ 242, 371 and 2236.

United States v. Goldston (CR. No. 77-138, W.D.N.Y. July 28, 1977), involved an agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department in Buffalo, New York who was accused of assaulting and beating a hand-cuffed teenager in the head with his service revolver. The defendant pled nolo contendere and was sentenced to an $800 fine and 1 year of probation. Goldston was also dismissed by the Alcohol, Tobacco and Firearms Division.

United States v. Kearney (CR. No. 77-245, S.D.N.Y. April 7, 1977), involves a former FBI supervisor in the Bureau's New York office for violation of statutes proscribing mail interception (18 U.S.C. § 1702) and wiretapping without proper authorization (18 U.S.C. § 2511) as well as conspiracy to engage in both types of conduct. This case is pending.

United States v. Bartell (Cr. No. —, D.N.J. June 14, 1974), involved an Alcohol, Tobacco and Firearms agent who was attempting to purchase illegal guns from an individual who was proving reluctant to sell them. Accordingly, the agent had two informants beat the victim to convince him to make the gun sales. The victim then made the sales and the agent arrested him. The agent plead guilty to violating 18 U.S.C. § 241 and was sentenced to a five year suspended term with four years of probation.

United States v. Wade, et al. (Cr. No. —, W.D. Tex. March, 1976), involved counts against two Customs patrol officers on conspiracy and endeavoring to intercept communications of the targets of a Custom's investigation. Charges against one officer were dismissed on procedural grounds after jeopardy had attached; the second officer was convicted on both counts and given concurrent sentences of two years with execution suspended in lieu of five years unsupervised probation. The statutes involved were 18 U.S.C. §§ 371 and 2511.

General BELL. We have a number of cases we brought against State police officers, for example, in civil rights cases. I have brought some of those indictments since I have been here and have had some convictions.

Mr. JAFFE. And you understand, Senator, that, in exercising a prosecutive judgment as to whether to institute a criminal proceeding, if for example, the agent acted under a warrant which was later declared to be invalid, under existing criminal law-even in title 18 now that reliance would be a complete defense; that is, the fact that he had one. So, even if we thought he had acted improperly or had used poor judgment, it would not be sufficient as a proper exercise of prosecutive judgment to have indicted him. He has so many defenses.

Senator METZENBAUM. One of the concerns we understandably would have is whether or not there has been a reluctance to move forward on a criminal basis.

Senator THURMOND. Mr. Chairman, I regret that I cannot stay for this hearing. I am on this Criminal Code matter as a ranking member of Judiciary. I just wanted to explain that to you and to the Attorney General.

Senator METZENBAUM. Thank you for stopping by, Senator.

Mr. JAFFE. We will try, Mr. Chairman, to get all the information we can. I doubt that we could get it, but I would like to get to you any information where we considered seriously prosecution and then did not take it.

Senator METZENBAUM. Mr. Jaffe, these are such unusual cases where the Government is prosecuting its own people that I cannot believe we cannot find it, whether it is in the retrieval system or in John Smith's head-how many John Smiths there are, I do not know.

One of the thrusts of my question comes back to my original inquiry concerning the matter of the agency judging its own people. What I am concerned about, the thrust of my question, has to do with whether or not there have been a host of instances in which there may or may not have been basis for prosecution, but that somebody leaned over backwards because he did not want to prosecute a part of the team. It is the kind of thing, frankly, that the Attorney General has had the courage to go forward in the prosecution of the Kearney case, but certainty has been subjected to unbelieveable pressure as to what a terrible thing he is doing because he is prosecuting somebody in the FBI.

What I am asking about is, how many other cases have there been where it was questionable as to whether somebody did not have the courage of their convictions as does the Attorney General to move forward in that area?

Mr. JAFFE. Senator, I would merely like to say this, since you mention the reluctance to prosecute a member of the team. My own experience that deals with civil fraud, for example, frequently involves bribery, antikickback, or anything which involves a Government employee who is acting in concert, say, with a Government contractor or with someone else in those cases, invariably we will give immunity to the person who extended the bribe or to the contractor because we think it more important to get after the Government employee than it is to retrieve the money from the person who extended the bribe.

Our thinking at least and I have observed it in Government in all the years I have been there is that, when it is a Government employee who is involved in wrongdoing, it is more important to reach him for the integrity of the Government than it is to reach his coconspirator who is outside the Government.

I merely offer you that for the way we have traditionally acted in those limited areas in which I have participated.

Senator METZENBAUM. Then I am certain that your investigation of the records will provide some supporting indication—

Mr. JAFFE. Those would not be the constitutional wrongs, which I understood your question was addressed to.

Senator METZENBAUM. That is correct.

General BELL. We had plenty of prosecutions of Government employees, but not for constitutional wrongs.

Senator METZENBAUM. There are various organizations that represent Federal employees. Have any of them asked for or been consulted about this legislation?

General BELL. There has been some talk about them.

Mr. JAFFE. I think there has been some talk, but I did not participate in any conversation with representatives of the employee unions. General BELL. Let me ask Patricia Wald about that. Would you answer that, Ms. Wald?

MS. WALD. They are certainly aware of the legislation, Mr. Chairman; we have had some phone conversations with them. I do not think they have been asked at this point to come down on one side or the other or to express themselves. They have not come to us and expressed any particular views with regard to the legislation.

Senator METZENBAUM. But all of the unions or labor organizations representing Federal employees are quite aware that this legislation is pending?

MS. WALD. Certainly the major ones are, Mr. Chairman; that is right.

Senator METZENBAUM. Is there any hard evidence that Federal employees have been inhibited in their proper activities by suits?

Were those FBI agents that you were saying had purchased malpractice-type insurance?

General BELL. It is FBI agents. I have not got any hard evidence, but I have a hard feeling that the FBI agents were very worried about civil suits. Of course, I want them to be certain to get authority. But that does not keep them from being sued.

You see, a civil suit is a devastating thing, given modern rules of procedure, discovery process. A lot of them live in fear or dread of being sued, of being wiped out just paying lawyers.

Senator METZENBAUM. I am having difficulty understanding where they would have problems in their proper activities.

General BELL. Not everyone one agree that is how you get into a lawsuit.

what is proper and not proper;

Mr. JAFFE. Senator, about 2 years ago, I was asked to go to a meeting at HUD. I was asked to attend a meeting at HUD shortly after a suit was instituted against two HUD inspectors for the damage to a house adjoining one that had been taken over by HUD.

Their liability was predicated on their not having performed their duties in inspecting the house that HUD had obtained to see to it that it had no fire hazards, that the place was relatively clean of anything that might create a fire. The broad description of their duties certainly would have included that.

When a fire did break out, which originated in the HUD-owned, unoccupied house and spread to the house next door, the owner of the house next door sued the two agents for all the damages he suffered on the ground that they had negligently performed their duties.

He sued them individually. He did not sue the United States. When they were told that, if a judgment was obtained against themwe tendered our representation that it would be their responsibility, HUD called for a meeting which I attended. I explained what the law was. I explained that we had every hope that we would be successful in the case; our record has been very good on that.

I was told then that their inspectors were going to either quit their jobs, would require indemnity, or they would not do their duties at all. They would refuse to go out to these places. Or, if they did go out to these places, it would be very costly to HUD because they would take the place apart. They would either not do their duties or do them in such an oppressive manner that the interests of the Government would not be served.

Senator METZENBAUM. What was the bottom line? What finally happened?

Mr. JAFFE. What finally happened was that we got the case dis

missed.

General BELL. There are not too many of these cases lost in the end. But it is a matter of paying the lawyers and managing the case that gets to be the problem.

Mr. JAFFE. It is the conflict cases that give us the problem-not when we represent; I am not trying to sound conceited.

General BELL. These FBI agents I talked to were not worried about losing the cases in the end. They are willing to be put in the hands of a jury. But they know what lawyers cost. They read about all these lawyers' legal fees. They do not have the money to pay the lawyers.

Senator METZENBAUM. Is it the department's intention to make various exceptions in section 2680, such as discretionary acts and acts pursuant to statute or regulation, inapplicable to constitutional torts?

Mr. JAFFE. Yes.1

Senator METZENBAUM. With respect to the amendments referred to in the questionnaire which we submitted to you, have all of them been submitted today?

Mr. JAFFE. All of the responses have been submitted.

Senator METZENBAUM. You have a lot of amendments with you? Mr. JAFFE. I have some amendments with me. I do not know whether I am free to give them to the subcommittee or even if the Attorney General is, because I think we have to run this through the Office of Management and Budget, except for certain clarifying ones. Senator METZENBAUM. We will not press you on it. Whenever you are ready, we will be ready.

Mr. JAFFE. I do have them prepared.

MS. WALD. We have informed OMB about them, so you are free to submit them.

Mr. JAFFE. I am told that I am free to submit them because we have cleared them through OMB.

I have a copy of those that I prepared. These are unintelligible unless you can look at the bill at the same time. Senator METZENBAUM. Why don't you

out?

or Ms. Wald work them

Mr. JAFFE. I will turn them over to Mr. Schwartz.

[The amendments submitted by the Department appear at p. 48 of the appendix.]

In answer to your last question, the amendment that we propose for all the exemptions that remain in Section 2680-it is my proposal to amend 2680, the preamble which I have here, so that it will read "except for tort claims arising under the Constitution of the United States, the provisions of this chapter and section 1346(b) of this title shall not apply to, and the United States shall not substitute itself in." 2

I am following that preamble. Then you have the exceptions listed. We do amend subdivision (h) of that section.

Senator METZENBAUM. We will get into that.

Mr. JAFFE. You will get into that.

Senator METZENBAUM. My final question is this. The bill is to apply to all pending cases. Is there not a constitutional question with respect to making it retroactive?

Mr. JAFFE. We have researched that. We concluded that there is not-that is, there may be a constitutional question; but we believe that it can be done. That is not free from doubt. We would expect the retroactivity provision to be litigated.

Senator METZENBAUM. Will you make available to the subcommittee that legal memo?