Proposed Changes in Operation of the Witness Protection Program
| Decision Date | 29 December 1982 |
| Docket Number | 82-79 |
| Citation | 6 Op. O.L.C. 821 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Proposed Changes in Operation of the Witness Protection Program |
Theodore B. Olson Assistant Attorney General Office of Legal Counsel.
The Attorney General has broad discretion in administering the Witness Protection Program established under Title V of the Organized Crime Control Act of 1970, and his decisions in this connection are not subject to judicial review under the statute.
Two proposed changes in the administration of the Program dealing with the settlement of existing debts by persons entering the Program and with the custody of children brought into the Program, are generally within the Attorney General's authority. However, certain modifications should be made to protect fully the due process rights of persons entitled to litigate or enforce custody and visitation rights against a participant in the Program. Whether the proposed changes provide constitutionally adequate protection for either creditors unable to satisfy their claims because of the government's refusal to disclose the identity of persons in the Program, or for persons within the Program whose identity is disclosed to creditors, may depend on the facts of each case.
The proposed changes would not subject the government to liability under the Federal Tort Claims Act, because they come within an exception to the waiver of sovereign immunity in that Act. Nor would they subject the government to liability for contract damages under the Tucker Act.
MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERALThis memorandum responds to your request for our opinion concerning proposed changes in the operation of the Witness Protection Program (the Program). For the reasons outlined in detail in this memorandum, we conclude that all of the proposed changes are legally permissible, although we recommend certain additional modifications in the handling of child custody litigation to alleviate certain constitutional concerns present in the Program even after adoption of the proposed changes.
Under the Program, which was established under Title V of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, §§ 501-504, 84 Stat. 922, 933-34 reprinted in notes prec. 18 U.S.C. § 3481 (1976) (Crime Control Act), the Attorney General is authorized to protect witnesses and families of witnesses whose lives might be placed in danger as a result of their testimony against organized crime figures. The Attorney General has delegated the authority to provide this protection to the United States Marshals Service (the Marshals [ 822] Service). See 28 C.F.R. §0.111(c) (1982). In discharging these duties, the Marshals Service ordinarily assigns marshals to guard participants or relocates them with new identities in a new area of the country. The Service generally assures the continued security of participants who have been relocated by refusing to disclose their new identity to members of the public.[1] However, this policy of concealing the new identities of relocated participants has led to two general problems.
The first arises when witnesses have accumulated large debts before entering the Program. When a witness enters the Program, he signs a form agreement, called a Memorandum of Understanding, in which he agrees to "settle" all of his debts with creditors.[2] Frequently, however, witnesses do not fulfill this pledge, and creditors attempting to sue on claims against a witness in the Program are unable to enforce any judgment against the witness because they cannot learn his new location and identity. Currently, the Marshals Service will assist a creditor only by forwarding his mail and legal process to the witness. If the witness refuses to appear at any judicial proceeding or to satisfy any judgment the creditor lacks any avenue for securing relief.
The second problem arises when a participant is sued by an ex-spouse or other person outside the Program seeking to obtain custody of a child who was brought into the Program.[3] In some cases, the witness or his spouse has legal custody of the child when they enter the Program but the ex-spouse sues to modify the prior order granting one of them custody. In other cases, children have been brought into the Program in violation of a court order granting the ex-spouse custody. The Memorandum of Understanding signed by the witness specifically states that the Marshals Service will not permit the witness to bring children into the Program in violation of a court order, [4] but witnesses and/or their spouses have defied this prohibition without the knowledge of the Marshals Service or government attorneys.[5] The Marshals Service facilitates child custody litigation by transmitting mail and legal process to the witness and spouse, by assuring the security of any legal proceedings, and by paying the counsel fees of impecunious witnesses and spouses. It does not currently disclose the new identity of a witness or his spouse, however, even though the witness may refuse to participate in any judicial proceeding or to conform to any judgment.
Any solution to these recurrent problems must reconcile the needs of the government, witnesses, and the spouses of witnesses to conceal the participants' new identities with the right of creditors and ex-spouses to satisfy their legitimate [ 823] legal claims. Accordingly, it has been proposed that the Marshals Service adopt the following policy. First, in cases where creditors bring suit against a witness, or where ex-spouses bring suit against a witness or his spouse, the Marshals Service would arrange for a secure courtroom, service of process on the defendant, and reimbursement of counsel fees of an indigent defendant. Second, in the situation where an ex-spouse obtains "legal custody" of a child, the Marshals Service would accept service of the relevant court order, arrange for the order to be sealed and validated for the ex-spouse in the jurisdiction where the child resides, and permit the local sheriff to execute the order. The Marshals Service would not disclose to the ex-spouse the new identity or the location of the child. It would also not inform the sheriff that he was seizing a child who was living with a witness and/or his spouse. If the security of the witness or his spouse were threatened by the return of an older child who knew their new identities, they apparently would be relocated. Finally, in the circumstance where a creditor secures a "money judgment" against the witness which the witness refuses to satisfy, officials of the Department of Justice would assume the authority, when justice and fairness requires, to disclose the identity and location of the witness to the creditor.[6] Their decision would be based on a weighing of the following factors: "the size of the judgment, the circumstances of the particular swindle or other act, the witnesses' continued need to law enforcement, as well as other factors in the particular case, " which we assume would include the financial ability of the witness to satisfy the legal claims.[7]
You have asked us to examine whether any of the proposed changes would violate the Memorandum of Understanding or any other provision of law. The following five legal issues which are raised by the proposal and the operation of the Program are discussed in detail in this memorandum.
First, does the Crime Control Act authorize the Attorney General to adopt the proposed changes? For reasons outlined below, we conclude that the Attorney General has the statutory authority to adopt these procedures.
Second, would the proposed changes subject the government to liability under the Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, for any injury that a participant might sustain as a result of the disclosure of his identity? Under the Tort Claims Act, the federal government has waived its immunity from suit in certain circumstances for the violation of state tort law by its employees. In our view, however, the proposed changes would not subject the government to tort liability because they come within an exception to the waiver of sovereign immunity in the Tort Claims Act.
Third, would the proposed changes subject the government to liability under the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, which waives the federal government's immunity from damages for its violation of the terms of certain of [ 824] its contracts? If the Memorandum of Understanding is an enforceable contract and precludes any of the proposed changes, the government could be liable for damages under the Act. We conclude, however, that even assuming the Memorandum of Understanding is an enforceable agreement, the proposed changes would not subject the government to contract damages because they would not violate the terms of the Memorandum of Understanding.
Fourth, would the proposed changes in the treatment of custody cases, although not themselves illegal, go far enough in protecting the constitutional rights of ex-spouses in their relationship with their children in the Program? In our view, while the proposed changes alleviate many of the constitutional problems in the operation of the Program, they do not adequately protect the constitutional rights of ex-spouses when the government's hiding of a witness precludes the ex-spouse from litigating her custody and visitation rights to a child. Accordingly, we recommend that, in additioh to the proposed procedures, the Marshals Service consider disclosing the participant's new identity in certain circumstances.
Finally would the Program, along with the proposed modifications, adequately protect the constitutional rights of...
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