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Department lawyers face-off in Justice v. Justice case. EMPLOYEE TESTING. The War On Drugs

On the third floor of the United States Department of Justice's main building, a team of attorneys prepares cases defending the government's drug-testing program. A few doors down, and in offices throughout the building, other Justice Department attorneys are readying themselves for the day when they will be in the same courtroom as their colleagues - but on the opposite side of the room.

Sometime within the next few weeks, the nation's law enforcement agency is expected to send out notices that it will begin testing its employees for drugs, according to a department spokesperson.

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That will trigger a suit challenging the constitutionality of the program ``within days,'' says Stephen Sachs, Maryland's former attorney general, who along with the American Civil Liberties Union is representing the Justice employees. About 50 to 100 employees will be represented in the suit.

This legal battle is more than a family squabble. Earlier this month, 42 agencies submitted plans to Congress detailing procedures about how they would randomly test their employees for drugs.

That removed the last administrative hurdle to testing thousands of employees from a pool of 345,528 people in sensitive jobs. Now, says Mr. Sachs, ``we're going to see a flood of lawsuits.''

In fact, the tide of litigation is already rising, since eight agencies - including those running prisons, nuclear power sites, transportation facilities, immigration, drug and law enforcement - could begin testing earlier. Some 50 lawsuits have been brought thus far, challenging the government's right to test because, plaintiffs say, it violates Fourth Amendment rights on improper searches.

Perhaps more than any other drug-test lawsuit, the one that will be brought by Justice employees reflects the new nature of the country's drug problem, and new tactics to match it. The Justice employees who will be tested are not low-income workers, but some of the most elite and carefully chosen professionals in the country.

Such people may not affect the public safety directly, as does an air traffic controller or nuclear power engineer. But they could undercut the integrity of the legal system, says Robert Cynkar, the deputy assistant attorney general in the civil division who is overseeing the narcotics-testing cases. ``As a citizen, I have the right to expect that those people prosecuting drug cases hold themselves to a drug-free standard,'' he says.

A more tangible risk is the potential for bribery or extortion. Justice attorneys have a great deal of power over defendants' welfare, since they have access to grand jury information, and the power to prosecute or not prosecute, and to accept or reject a plea bargain. Any attorney with a skeleton in his or her closet is potentially ``dangerous to the public welfare,'' says Mr. Cynkar.

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Mr. Sachs says that's a guilty-until-proven-innocent approach. ``If they're going to do constitutional corner cutting, they have to begin by demonstrating there's a problem - that people are coming `stoned' to work, that people have been bribed, that drug cases have been compromised,'' he says. Echoing comments of several Justice attorneys, even those who support testing, he adds, ``In the case of Justice Department employees, they can't make that showing, because it's not true.''

As Justice plaintiffs and defendants head for the courtroom, it is unclear which has the advantage of legal precedent. The lower courts have more often than not ruled in favor of employees.

However, four out of five federal appeals courts that have handled drug-test cases have ruled that testing is constitutional, according to Robert Zener, a Justice attorney in the appellate section.

A case scheduled to be heard by the Supreme Court next fall may or may not put the drug-testing issue to rest, depending on how narrowly it rules.

In the meantime, department employees will be glad to see this Justice v. Justice drama finally settled. Notes one Justice attorney who will be represented in the suit against the department, ``It's an uncomfortable situation, there's no doubt about it.''

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