I'm from the Government and I'm Here to Kill You

by David T. Hardy

  Defenses

  Liability would be restricted by certain designated defenses. For instance, claims for negligent design of roadways or buildings might be subject to a defense based on use of generally accepted engineering or safety standards.

  Damages

  The injured citizen may recover the value of his or her actual damages; punitive damages would not be allowed. The interest on those damages would run from the date of the injury rather than (as now is the case) the date of the judgment. The first $250,000 of damages would be paid from the agency or departmental budget, not from the Judgment Fund. (Granted, in the end it would come from the taxpayers’ pockets, but in the short term the agency or department would feel the pain and be motivated to maximize the safety of its operations. Thus, this would reverse the Federal Tort Claims Act’s existing perverse incentive that rewards unsafe agency practices.)

  * * *

  The purpose here is not to lay out a detailed system of government liability; it is simply to demonstrate that a fair and just system can be designed. Whatever its enacted form might take, the system would be capable of improvement in light of experience as the courts interpret it and Congress fine-tunes it by amendments. These changes to the Federal Tort Claims Act, standing alone, would do much to ensure that agencies respect the safety of the taxpayer. But further reforms are necessary.

  REFORMING FEDERAL CRIMINAL PROCEDURE

  Separate questions are posed when we examine federal criminal enforcement—where the government does the suing—with the objective of taking away a citizen’s physical freedom. Federal criminal procedure is quite primitive when compared either to state criminal procedure or to federal civil procedure. In a federal civil case—for example, a lawsuit for damages—both sides are required to begin by disclosing certain things, such as likely witnesses and exhibits. Both can then require the other side to answer written questions (interrogatories), admit or deny specified matters, and produce copies of documents. Both sides are also entitled to take witnesses’ testimony by deposition.

  Federal criminal procedure contrasts sharply with this rational arrangement and is stacked in favor of the government. The prosecution is required to disclose only a few things: any statements by the defendant, any physical exhibits the prosecution intends to use at trial, and summaries of any expert testimony that it will use at trial.

  Beyond this, the Supreme Court has imposed a requirement, the Brady rule—that the prosecution must reveal any evidence it possesses that tends to show the defendant is innocent. As we have seen above, federal prosecutors often flout this requirement, and, in any event, it requires the prosecution to guess what might be useful to the defense.

  The Supreme Court may have imposed the Brady rule, but prosecuting agencies often ignore it and hide evidence suggesting that the defendant is innocent. “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” The quote comes from Alex Kozinski, Chief Judge of the Ninth Circuit U.S. Court of Appeals, in a case where the Department of Justice did not disclose that its expert witness was in the process of being fired for incompetence. Judge Kozinski was dissenting; the majority upheld the conviction.26

  Under our Bill of Rights, all serious federal prosecutions must begin by persuading a grand jury to indict the defendant after finding “probable cause” (basically, a strong suspicion) to believe that he broke the law. The rules relating to grand jury proceedings are hopelessly stacked in favor of the prosecution. They begin with a broad secrecy requirement: no one, including the grand jurors themselves, may “disclose a matter occurring before the grand jury.” Then there are the exceptions—those events may be disclosed to “an attorney for the government” and anyone he designates.27 So the prosecution may make use of grand jury proceedings, but the defense cannot. This can give the prosecution a considerable advantage: it knows what certain witnesses are going to say, while the defense must guess. A witness who testified before the grand jury knows that if he changes his story in a way that favors the defense, the prosecution will know and can file perjury charges, whereas if he changes his story in ways that favor the prosecution, the defense has no way to know this.

  In Jencks v. United States,28 the Supreme Court made an attempt to partially level the playing field, which Congress promptly undermined. The Court had long held that a trial court had an inherent power to order the government, if justice so required, to produce written reports filed by its witnesses. This doctrine had an obvious problem: the defense had to prove that it would be unjust to let the government withhold reports (for example, that the reports contradicted the witness’s testimony), but it had to prove this without knowing what was in the reports! In Jencks, the Court imposed a new and much broader requirement, ruling that the government must produce any statements it possesses that were made by government agents or informants who were expected to testify for the prosecution. The defense had no obligation to first prove that keeping the reports secret would cause an injustice.

  It was hardly an earthshaking change, but Congress went passive-aggressive and passed a statute (known as the Jencks Act)29 to make using the disclosure as difficult as possible. The Jencks Act provided that a government witness’s statements would only be obtained after the witness testified.30 So the defense attorney gets the statement only in mid-trial, just as he or she is ready to begin cross-examination.

  It is no coincidence that the Federal Rules of Criminal Procedure originated in the same time frame (1948) as that of the Federal Tort Claims Act (1946). In the late 1940s, after the New Deal and the Second World War, the federal government’s reputation stood at its peak. Federal employees were civil servants, federal prosecutors were seen as crusaders for a righteous cause—people who could be counted upon to make honest and honorable choices. Seventy years later, we have learned that this is often not the case.

  In federal civil cases, where all that is at issue is money, there are extensive processes to follow, known as disclosure and discovery, for each side to find out what evidence the other has. In federal criminal cases, where freedom and reputation are at stake, there is very little. It’s time we changed this, and state legal regimes illustrate how this can be done. In California, the discovery process is mostly dictated by court rulings. There, the defense can secure access to evidence and investigative reports if it can demonstrate a “plausible justification” for being allowed to inspect them; the courts retain a discretionary power to withhold documents if necessary.31 In Arizona, the discovery process is established by court rule and is even more straightforward: the prosecution must disclose transcripts of the grand jury proceedings and copies of all police reports, and the prosecution and defense may tape interviews of witnesses (other than a crime victim). If the prosecution contends something must be kept secret (e.g., identity of a witness who would be subject to coercion), it can file a motion for that relief. Either of these approaches would be far better than that of the current federal system.

  A clarification of the prosecution’s duty to disclose information favorable to the defense (the Brady requirement) would fit in well with such requirements. As it is, prosecutors guess at what might favor the defense and have an incentive to be as narrow as possible in their guesswork. Federal district courts have experimented with rules that define this duty, of which the most extensive is that of the U.S. District Court for the District of Massachusetts. That court’s rule clarifies that the duty to disclose extends not just to evidence that directly suggests the defendant is innocent, but also to matters such as what benefit is being given to any government witness, the criminal record of any such witness, and known crimes committed by any such witness.32

  A THIRD MEASURE: CREATION OF AN OVERSIGHT AGENCY

  Presently, there is very little real oversight of federal agencies. Congressional oversight exists but has limited value. An agency has but one focus, while legislators have many. An agency can afford to stall for time, calculating that a pesky legislator will eventuall
y become distracted and move on to other things. Congressional committees have investigated most of the incidents documented in this book with no significant changes. The House held two weeks of hearings on the Waco tragedy and nothing changed. The House investigations into Fast and Furious went to the extent of holding the Attorney General in contempt and nothing changed.

  The solution is to create an independent agency that is specifically tasked with ensuring public safety and investigating events that put that safety at risk.

  One government agency overseeing another involves no paradox. Think of an agency as a living thing: its drives are to survive and to enhance its own power. We’ve already seen how the Atomic Energy Commission viewed nuclear testing, one of its agency priorities, as far more important than the health of a few thousand Americans.

  An agency naturally attracts staff who sympathize with its purposes: the Park Service is predictably staffed by people who like the outdoors; the Drug Enforcement Agency attracts people who dislike illicit drugs and drug sellers.

  The average bureaucrat has no particular loyalty to the government as a whole. In fact, agencies often have significant rivalries. The bureaucrat’s loyalty is directed at his agency. He has no problem at all if his agency’s work impedes that of another agency; he may even take malicious amusement at that prospect.

  There have been many experiments in using one agency to control others, and these have been at least moderately successful. The concept of the Offices of Inspector General (OIG) is an example—an office within each Cabinet department, reporting to the Secretary and not to any agency within, and charged with detecting and acting on agency fraud, waste, or abuse. Another example is the Office of Special Counsel, charged with enforcing the protections for whistleblowers and a few other statutes and reporting directly to the President. As a third example, the U.S. Fish and Wildlife Service is charged with protecting endangered species against other agencies’ activities and has no problem at all tinkering with their programs. Its most famous court case stopped the Tennessee Valley Authority from constructing Tellico Dam because it would supposedly render a small fish, the endangered snail darter, extinct,33 until Congress overrode the ruling. (The case had an amusing if expensive outcome. It turned out that the snail darter was not endangered; there were undiscovered populations in many other rivers. But it also turned out that the dam was a complete boondoggle that cost more to build than it was worth.)

  An independent agency reporting to a suitably high level of the bureaucracy (perhaps the Office of Management and Budget, the agency whose work would be most affected by damage awards, or to the President himself), charged with protecting Americans’ lives and estates against other agencies’ negligence and misconduct, would function to minimize the problems we have seen documented. It should have the capacity to investigate and report, to request criminal prosecution, and to file civil cases seeking injunctions. It should have its own legal staff and “sue or be sued” capabilities, as well as the power to issue subpoenas and take depositions. This would end the peculiar situation where federal agencies must show great respect for the lives of endangered chub fish or the furbish lousewort,34 but are unrestricted in their ability to write off human life as a “cost of doing business,” where the environmental consequences of every agency action must be “given a hard look,”35 but the human consequences need not be considered.

  USING STATE GOVERNMENTS AS A COUNTERBALANCE TO THE FEDERAL LEVIATHAN

  The brilliant individuals who created this nation were realists, that is to say, cynics. They did not expect that government would always attract the best and most public-minded of people. Rather, they acknowledged it would tend to attract ambitious citizens who longed for power and control. They faced this problem with their eyes open and strove to create a system that would function in spite of human nature.

  One of their solutions was to put the ambitious in a state of rivalry. One level of this approach was the concept of separation of powers, where the three federal branches would offset one another. A second level was to pit state government and federal government against each other, each vying for the approval of the ultimate source of power, the people.

  The Civil War Amendments, in particular the Fourteenth Amendment, gave the federal government the ability to counterbalance the powers of a state—the Department of Justice regularly investigates and prosecutes state officials who have violated constitutional rights. But the reverse is hardly true. Even where state officials make the effort, such as Idaho’s response to the killing of Vicki Weaver, the results are invariably negative.

  This could be redressed by legislation that spells out when a state has the power to prosecute a federal actor who breaches its laws. It is hard to see much drawback to providing, for instance, that a state may prosecute a federal employee whose actions violate constitutional rights as well as state law.

  INTO THE FUTURE

  This book opened with a citation from this Republic’s foundational document, the Declaration of Independence. The Declaration complained of King George’s officials that they “harass our people and eat out their substance,” a rather mild indictment; any county building codes office does as much today. The Continental Congress could say nothing stronger; it could not say that royal officials had killed Americans with legal impunity, for the simple reason that neither George III nor his Parliament had done anything of the sort. They had, at most, provided for a change of venue if their officers were criminally prosecuted (of which provision the Declaration separately complained).

  We may hope that, with the changes proposed here, our national government will become at least as responsible as the one our Founders rejected back in 1776, and we will become as secure and free as we were under the reign of George III.

  APPENDIX

  PROPOSED REFORM OF FEDERAL LAW

  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that:

  Sec. 1. Short Title. This law may be cited as the Federal Accountability in Damages Act.

  Sec. 2. Replacement of the Discretionary Function Exception. 28 U.S. Code §2680(a) is amended to read:

  (a) Any claim arising out of the enactment, or failure to enact, legislation, the promulgation, or failure to promulgate, regulations or executive orders, the rendering, or failure to render, judicial decisions and orders, or the failure to control or regulate a nongovernmental actor. Provided, that claims arising out of grossly negligent failure to reasonably control a person who is incarcerated or on supervised release, or out of failure to enforce the law may be brought, where the failure to control or enforce foreseeably risks harming the public.

  Sec. 3 Repeal of the Intentional Torts Exclusion. 28 U.S. Code §2680(h) is repealed.

  Sec. 4. Agency Reimbursement of the Judgment Fund. 31 U.S. Code §1304 is amended by adding a new subsection (d), to read as follows:

  Where a settlement or judgment against the United States is entered pursuant to 28 U.S.C. §2674, the agency whose employee or employees are responsible for the liability shall reimburse the Government for the first $250,000 of the amount paid by the Government.

  Sec. 5. Disclosure in Criminal Proceedings.

  (a) Rule 6(e)(3)(A), Federal Rules of Criminal Procedure, is amended by renumbering paragraph (iii) as paragraph (iv), deleting “or” from paragraph (ii), and inserting a new paragraph (iii), to read as follows: “the defendant or his attorney pursuant to Rule 16; or”

  (b) Rule 16(a) and (b), Federal Rules of Criminal Procedure, are amended to read as follows:

  (a) Government’s Disclosure. Within 30 days after arraignment in a felony case, or at the first pretrial conference in a misdemeanor one, the Government shall make available to the defendant the following material and information within the Government’s possession or control:

  (1) The names and addresses of all persons whom the Government intends to call as witnesses in the case-in-chief together with all their relevant written or reco
rded statements;

  (2) All statements of the defendant and of any person who will be tried with the defendant;

  (3) (All then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular offense with which the defendant is charged;

  (4) The names and addresses of experts who have personally examined a defendant or any evidence in the particular case, together with the results of physical examinations and of scientific tests, experiments or comparisons that have been completed;

  (5) A list of all papers, documents, photographs or tangible objects that the Government intends to use at trial or which were obtained from or purportedly belong to the defendant;

  (6) A list of all prior felony convictions or prior bad acts of the defendant which the prosecutor intends to use at trial;

  (7) All then existing material or information which tends to mitigate or negate the defendant’s guilt as to the offense charged, or which would tend to reduce the defendant’s punishment therefor;

  (8) Whether there has been any electronic surveillance of any conversations to which the defendant was a party, or of the defendant’s business or residence;

  (9) Whether a search warrant has been executed in connection with the case;

  (10) Whether the case has involved an informant, and, if so, the informant’s identity, unless the United States will not call him to testify and disclosure would result in a substantial risk to the informant or to his operational effectiveness, unless constitutional considerations require his identification;

  (11) A certified transcript of any grand jury proceedings.

  (b) Defendant’s Disclosure. Within 10 days of the Government’s disclosure, the defendant shall disclose to the United States:

  (1) all defenses as to which the defendant intends to introduce evidence at trial, including, but not limited to, alibi, insanity, self-defense, defense of others, entrapment, impotency, marriage, insufficiency of a prior conviction, mistaken identity, and good character. The notice shall specify for each listed defense the persons, including the defendant, whom the defendant intends to call as witnesses at trial in support of each listed defense;