AMENDING REORGANIZATION PLAN NO 2 OF 1973, AND PROVIDING A REMEDY AGAINST THE UNITED STATES FOR INTENTIONAL TORTS OF ITS INVESTIGATIVE AND LAW ENFORCEMENT OFFICERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000500340003-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 12, 2016
• Document Release Date: December 14, 2001
• Sequence Number: 3
• Publication Date: November 29, 1973
• Content Type: REPORT

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93D CONGRESS SENATE REPORT
18t 8688w n No. 93-588
AMENDING REORGANIZATION PLAN NO. 2 OF 1973, AND PROVIDING A
REMEDY AGAINST THE UNITED STATES FOR INTENTIONAL TORTS
OF ITS INVESTIGATIVE AND LAW ENFORCEMENT OFFICERS
Mr. ERVIN, from the Committee on Government Operations,
submitted the following
REPORT
The Committee on Government Operations, to which was referred
the bill (II.R. 8245) to amend Reorganization Plan No. 2 of 1973,
and for other purposes, having considered the same, reports favorably
thereon with amendments and recommends that the bill as amended
do pass.
The purpose of H.R. 8245, as amended, is (1) to repeal those sec-
tions of Reorganization Plan No. 2 of 1973 which transferred to the
Secretary of the Treasury certain functions vested by law in the Attor-
ney General, of the Department of Justice regarding the inspection of
persons and documents at U.S. ports of entry; and (2) to provide a
remedy against the United States for the intentional torts of its
investigative and law enforcement officers.
BACKGROUND
Section 1. Reorganization Plan No. 2 of 1973 established in the De-
partment of Justice a new agency, the Drug Enforcement Adminis-
tration, and transferred to the Secretary of the Treasury functions
vested by law in the Attorney General, or the Department of Justice,
regarding the inspection of persons and documents at U.S. ports of
entry. This function involves approximately 900 immigration inspec-
tors who, under the provisions of the Reorganization Plan, were trans-
ferred from the Immigration and Naturalization Service of the De-
partment of Justice to the Customs Bureau of the Department of the
Treasury.
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During the course, of Committee consideration of Plan - o. ~? of
1973, it became apparent that there was wide-scale opposition to the
prope,era transfers by the ir(rrnignition inspectors involved, by the
" -:.er ;cr! Federation of (xovem ruent llmnloyees and by lti!Iclf?1Prs of
Congres.. Following, discrlssions between administration acnkl onion
representatives, certain understandings were reached whereby the
administration agreed not to implement the transfer provided for in
the Plan. A n ._iorandum embodying the terms of the agreement v, as
plzc d.in the files of the C_.'omrnittee. a.nd the American Federatio--i of
(iovermmncait' I+;mlplovees agreed to withdraw' its opposition to he
an.
l>urina* floor debate in lire Mouse of Representatives on IT. Res, t8~9,
o aisapprove Reersranizatiou.Plan No. Congresonarl I[eli"icfd,
Ch r,irman of the tlouse.Committee on Governiilent Oper:;Jons.:~x-
da.ined tiro situation and gaveassurances'that ;prompt act en v,(,-,Id
he i;alcen to consider and report, a biti repealing the objectionable por-
tiw,s of 1oornani~'ation Plan No. ; The resolution of dis..ppro, a1
,va direieared and the Plan became effective on July 1.,1973.
IT.Tti. 8i45, which passed the I ouse of Representatii=es on .TuIv 17,
1973, would repeal section 2 and subsection (i(b) and r.rodifv sect=on
of Reorganization Plan No. 2 of 1973% thus nullifying the t1'ansfer~i of
the immigration inspectors provided for iii the P1ein.
Section 2'. This section represents a Committee amendment to 1 lie
bill as it passed the House. This an endrrrent proposed by the chair-
man, and Senators Percy and .? av it ; mron-s out h arinp;a; held '.'y
tlu Committee on the RcorgrnizationPI u1 last spring. During the
[ O1!r see n;, these hearings Fever al incidents were brought to the Crm-
rYuttee`s attention in which. Federal rarcotics agents engaged in.abu-
Ive, it legal and unconstitutional "no-bock" raids. The ciommittme''s
amendment is designed to prevent future abuses of the Federal "no--
knock" statute (21 U.S.C. 879).
The most notorious of these raids occurred on April 29 of this year
in Col linsville, Illinois. In separate i,icidents involving the same ,lns-
tice Department agents, "no-knock" raids were conducted into two
different homes in Collinsville. The agents entered the two hoilses
without warrants in violation of the Federal "no-knock" statute,
kicked in the doors without warning, shouting obscenities, and threat-
ening the occupants with drawn weapons. The terrified inhabitants
were only temporarily relieved when the agents left after discovering
that they had entered the wrong houses.
There is no effective legal remedy against the Federal Government
for the actual physical damage, much less the pain, suffering and
humiliation to wlr'ch the Collinsville families have been subjected.
Since they were not then suspects, nor are they now Federal defend
ants, they cannot move in a prosecution to suppress evidence, the tra-
ditional remedy for violation of Fourth Amendment rights. Indeed
there was not any evidence seized in these raids because,. of course, the
agents were at the wrong addresses. Furthermore, neither family can
recover from the Federal Government in a civil action because of the
doctrine of sovereign immunity.
Asa general principle under present law, if a Federal agent violates
someone's constitutional rights-for instance, Fourth Amendment
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rights against illegal search and seizure-there is no remedy against
the Federal Government. This ancient doctrine-sovereign immun-
ity-stands as a bar.
Only recently, was there even a right-of action against the off ending
officers themselves. In the case of Biven,s v. Six Unknown Federal Nar-
cotics Agents, 403 U.S. 388 (1971), the Supreme Court held that the
Fourth Amendment and elementary justice require that there be a
right of action against the Federal agents for illegal searches con-
ducted in bad faith or without probable cause. Of course, Federal
agents are usually judgment proof so this is a rather hollow remedy.
For years scholars and commentators have contended that the Fed-
eral Government should be liable for the tortious acts of its law en-
forcement officers when they act in bad faith or without legal justifica-
tion. However, the Federal Torts Claims Act (28 U.S.C. 2671-2680)
the.. embodiment of sovereign immunity in the United States Code, pro-
tects the Federal Government from liability where its agents commit
intentional torts such as assault and battery. The injustice of this
provision should be manifest---for Lander the Federal Torts Claims
Act a Federal mail truck driver creates direct federal liability if he
negligently runs down a citizen on the street but the Federal Govern-
ment is held harmless if a federal narcotics agent intentionally as-
saults that same citizen in the course of an illegal "no-knock" raid.
The Committee amendment to the bill, contained in a new section 2
thereof, would add a proviso at the end of the intentional torts ex-
ception to the Federal Tort Claims Act (28 U.S.C. 2680 (h) ). The effect
of this provision'is to deprive the Federal Government of the defense
of sovereign immunity in cases in which Federal. i ;v enforcement
agents, acting within the scope of their employment, or under color of
Federal law, commit any of the following torts: assault, battery, false
imprisonment, false arrest, malicious prosecution, or abuse of process.
thus, after the date of enactment of this measure, innocent indi-
viduals who are subjected to raids of the type conducted in Collins-
ville, Illinois, will have a cause of action against the individual Fed-
eral agents and the Federal Government. Furthermore, this provision
should be viewed as a counterpart to the Rivens case and its progenty,
in That it waives the defense of sovereign immunity so as to make the
Government independently liable in damages for the same type of con-
duct that is alleged to have occurred in heavens (and for which that
case imposes liability upon the individual Government officials in-
vol ved)
The Committee realizes that under the Federal Tort Claims Act,
Government tort liability for intentional conduct is unclear. For ex-
amtfle certain intentional torts such as trespass and invasion of pri-
acy are not always excluded from Federal Tort Claims Act coverage.
Obviously, it is the intent of the Committee that these borderline
cases under the present law, such as trespass and invasion of privacy,
would be viewed as clearly within the scope of the Federal Torts
Claims Act, if the amendment is adopted.
This whole matter was brought, to the attention of the Committee
in the context of the Collinsville raids, where the law enforcement
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abuses involved Fourth Amendment constitutional torts. Therefore,
the Committee amendment would submit the Government to liability
whenever its agents act under color of law so as to injure the public
through search and seizures that are conducted without warrants or
with warrants issued without probable cause. However, the Commit-
tee's amendment should not be viewed as limited to constitutional tort
situations but would apply to any case in which a Federal law en-
forcement agent committed the tort; while acting within the scope of
his employment or under color of Federal law.
The administration is aware of this amendment to H.P. 8245, which
is the product of over 2 months of discussion between the staff of the
Corn-ittee, the Office of Management and Budget and the Department
of Justice. The Committee has been informed that the administration,
and, in particular, the Department of Justice, has no objection to the
amendrnenr,. Therefore the Committee urges speedy adoption of this
measure as a minimal first step in providing a remedy against the Fed-
eral Government for innocent victims of Federal law enforcement
abuses.
Cos':s
Since it is not possible to forecast the number of civil damage suits
which may be brought against the United States under the provisions
of this bill, or the amount damages assessed against the United States,
if any, it is not possible to estimate the costs which may result.
In compliance with subsection 4 of rile XXIX of the Standing
Rules of the Senate, chanties in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, and existing
law in which no change is proposed is shown in roman) :
[l.EORGANIZATION PLAN NO. 2 OF 1P73
Prepared by the ]-'resident and transmitted to the Senate and the
House of F:epresentatives in Congress assembled, March 28, 1973, pur-
suant to the provisions of Chapter !) of Title 5 of the United St,tes
Code.
Section 1. Transfers to th, Attorney General. There are hereby
transferred, from the Secretary of the, Treasury. the Department of
the Treasury, and any other officer or any agency of the Department
of the Treasury, to the Attorney Gen,~ral all intelligence, investigative,
and law enforcement functions, vested by law in the Secretary, the
Department, officers, or agencies which relate to the suppression of
illicit traffic in narcotics, dangerous drugs, or marihuana, except that
the Secretary shall retain. and continue to perform. those functions, to
the. extent that, they relate to searches and seizures of illicit narcoiacs,
da ngorous drugs, or marihuana or to the apprehension or detention of
persons in connection therewith, at regular inspection locations at
ports of entry or anywhere along the land or water borders of the
United States: Provided, That any -illicit narcotics, dangerous drugs,
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marihuana, or related evidence seized, and any person apprehended
or detained by the Secretary or any officer of the Department of the
Treasury, pursuant to the authority retained in them by virtue of this
section, shall be turned over forthwith to the jurisdiction of the Attor-
ney General; Provided further, That nothing in this section shall be
construed as limiting in any way any authority vested by law in the
Secretary of the Treasury, the Department of the Treasury, or any
other officer or any agency of that Department on the effective date of
this Plan with respect to contraband other than illicit narcotics, dan-
gerous drugs, and marihuana; and Provided further, That nothing in
this section shall be construed as limiting in any way any authority the
Attorney General, the Department of Justice, or any other officer or
any agency of that Department may otherwise have to make investiga-
tions or engage in law enforcement activities, including activities
relating to the suppression of illicit traffic in narcotics, dangerous
drugs, and marihuana, at ports of entry or along the land and water
borders of the United States.
[Sec. 2. Transfers to the Secretary of the Treasury. There are hereby
transferred to the Secretary of the Treasury all functions vested by
law in the Attorney General, the Department of Justice, or any other
officer or any agency of that Department, with respect to the inspec-
tion at regular inspection locations at ports of entry of persons, and
documents of persons, entering or leaving the United States : Provided,
That any person apprehend or detained by the Secretary or his des-
ignee pursuant to this section shall be turned over fothwith to the
jurisdiction of the Attorney General: and, Provided further, That
nothing in this section shall be construed as limiting, in any way, any
other authority that the Attorney General may have with respect to
the enforcement, at ports of entry or elsewhere, of laws relating to
persons entering or leaving the United States.]
Sec. 3. Abolition. The Bureau of Narcotics and Dangerous Drugs,
including the Office of Director thereof, is hereby abolished, and sec-
tion 3 (a) of Reorganization Plan No. 1 of 1968 is hereby repealed. The
Attorney General shall make such provision as he may deem necessary
with respect to terminating those affairs of the Bureau of Narcotics
and Dangerous Drugs not otherwise provided for in the Reorganiza-
tion Plan.
Sec. 4. Drug Enforcement Administration. There is established in
the Department of Justice an agency which shall be known as the
Drug Enforcement Administration, hereinafter referred to as "the
Administration."
Sec. 5. Officers of the Administration. (a) There shall be at the head
of the Administration the Administrator of Drug Enforcement, here-
inafter referred to as "the Administrator." The Administrator shall
be appointed by the President by and with the advice and consent of the
Senate, and shall receive compensation at the rate now or hereafter
prescribed by law for positions of level III of the Executive Schedule
Pay Rates (5 U.S.C. 5314). He shall perform such functions as the
Attorney General shall from time to time direct.
(b) There shall be in the Administration a Deputy Administrator
of the Drug Enforcement Administration, hereinafter referred to as
"the Deputy Administrator," who shall be appointed by the President
by and with the advice and consent of the Senate, shall perform such
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functions as the Attorney General may from time to time direct. and
shall receive compensation at the rate uow.or hereafter prescribed by
law for positions of level V of the Executive Schedule Pay Rates (5
.
(c) The 1)eput, k- Administrator or such other official of the Depart-
ment of Justice as the Attorney General shall from time to time desia-
nate shall act as Administrator during the absence or disability of
tl:e Administrator or in the event of a vacancy in the office of
Administrator.
Sec. 6. Perl?ormani e of transferred -functions. [(a)] The Attorney
(leneral may from time to time make such provisions as he shall deem
"lpronri:lte a rithorizin the performance of any of the. functions trans-
it,'I`e(n ',, ht.:: by -1j? 1 ()+ t7l's I~'Aor, ,i)lZf'on PT.?n I, `)n-1i
dlacerr, erliployee. or a Aeney of the Department of Justice.
[(b) The Secretary of the Treasury mazy from time to time, flake
ac':?a provisions as he shall deem appropriate authorizing the perform-
of any of the functions transferred to him by the provisions of
Reorl(ranization Plan, by any officer, employee, or agency of the
I)epnrtnrent of the Treasury.]
i r Coordination,_ The Attorney General, acting through the
~? duularstrai.or and s ach other officials, of the Department of Justice.
;i , he imi.V designate. 'shall provide for the coordination of all draw law
Urrforcernent. functions vested In the Attorney General so as to assure
uaxuuunl cooperation between and among the Administration, the
J ederal L urein of I ivestigation, and other units of the Department
a vol ved in the performmanee of these, and related functions,
i.; . . in1 iVentai lean fens. (a) So nurch of the personnel, proptaty,
s arils, and lap epeaided balances of alopropriati_ons, allocations, and
her fv ids empim,elf, used, held, available or to be made available in
~ nnnt=diora w I'll the functions transferred to the Attorney General
Fa lid to t ie r-i of the Treasury] by this lleoi ( i ii'7,atrnn Pl2ill a3
l lift Io t?.r(;floe Of Maim,
emeat and Budget shall determille
iaall he fransferrecl to the Department of Justice [and to the Depart-
lean of the. 'a'rc, lsi rv. respectively, al such time or times as the Di-
reetorsllil. l direct.
t b I ';i.cli nta iii at r slares and dispositions as the Director o=' tlra
>)lticc o;' ,dial and Budget steal l deem to be necessarv in order
lffecb,crate tra,lasfel?r= reFeiind to in subsection (al Of !,his section shall
c' ~'ar ric d out ill such manner as he shall direct and by such Federal
=tnrenf'ie`s as he shall dasi.o'nat t.
rc , _ Tn