S 2533 ISRSCommentsClose CommentsPermalink

To enact a safe, fair, and responsible state secrets privilege Act.CommentsClose CommentsPermalink

January 22 (legislative day, January 3), 2008CommentsClose CommentsPermalink

Mr. KENNEDY (for himself, Mr. SPECTER, and Mr. LEAHY, Mr. FEINGOLD, Mr. WHITEHOUSE, Mr. WEBB, Mrs. CLINTON, Mr. DODD, Mrs. MCCASKILL, Mr. SCHUMER, Mr. BIDEN, Mr. MENENDEZ, and Mr. TESTER) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To enact a safe, fair, and responsible state secrets privilege Act.CommentsClose CommentsPermalink

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `‘State Secrets Protection Act'’. CommentsClose CommentsPermalink

SEC. 2. STATE SECRETS PROTECTION.

(a) In General- Title 28 of the United States Code is amended by adding after chapter 180, the following: CommentsClose CommentsPermalink

`‘CHAPTER 181--STATE SECRETS PROTECTION

`Sec.`4051. Definition.` ‘Sec. CommentsClose CommentsPermalink





‘4051. Definitions. CommentsClose CommentsPermalink





‘4052. Rules governing procedures related to this chapter. CommentsClose CommentsPermalink





`‘4053. Procedures for answering a complaint. CommentsClose CommentsPermalink





`‘4054. Procedures for determining whether evidence is protected from disclosure by the state secrets privilege. CommentsClose CommentsPermalink





`‘4055. Procedures when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim. CommentsClose CommentsPermalink





`‘4056. Interlocutory appeal. CommentsClose CommentsPermalink





`‘4057. Security procedures. CommentsClose CommentsPermalink





`4058. Reporting.` ‘4058. Reporting. CommentsClose CommentsPermalink





‘4059. Rule of construction. CommentsClose CommentsPermalink

`‘Sec. 4051. Definition`In this chapter,s

‘In this chapter-- CommentsClose CommentsPermalink





‘(1) the term `state secret'‘evidence’ means any document, witness testimony, discovery response, affidavit, object, or other material that could be admissible in court under the Federal Rules of Evidence or discoverable under the Federal Rules of Civil Procedure; and CommentsClose CommentsPermalink





‘(2) the term ‘state secret’ refers to any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States. CommentsClose CommentsPermalink

`‘Sec. 4052. Rules governing procedures related to this chapter

`‘(a) Documents- A Federal court-- CommentsClose CommentsPermalink





`‘(1) shall determine which filings, motions, and affidavits, or portions thereof, submitted under this chapter shall be submitted ex parte; CommentsClose CommentsPermalink





`‘(2) may order a party to provide a redacted, unclassified, or summary substitute of a filing, motion, or affidavit to other parties; and CommentsClose CommentsPermalink





`‘(3) shall make decisions under this subsection taking into consideration the interests of justice and national security. CommentsClose CommentsPermalink





`(b) Hearings-` ‘(b) Hearings- CommentsClose CommentsPermalink





‘(1) IN CAMERA HEARINGS- CommentsClose CommentsPermalink





`‘(A) IN GENERAL- Except as provided in subparagraph (B), all hearings under this chapter shall be conducted in camera. CommentsClose CommentsPermalink





`‘(B) EXCEPTION- A court may not conduct a hearing under this chapter in camera based on the assertion of the state secrets privilege if the court determines that the hearing relates only to a question of law and does not present a risk of revealing state secrets. CommentsClose CommentsPermalink





`‘(2) EX PARTE HEARINGS- A Federal court may conduct hearings or portions thereof ex parte if the court determines, following in camera review of the evidence, that the interests of justice and national security cannot adequately be protected through the measures described in subsections (c) and (d). CommentsClose CommentsPermalink





`‘(3) RECORD OF HEARINGS- The court shall preserve the record of all hearings conducted under this chapter for use in the event of an appeal. The court shall seal all records to the extent necessary to protect national security. CommentsClose CommentsPermalink





`‘(c) Attorney Security Clearances- CommentsClose CommentsPermalink





`‘(1) IN GENERAL- A Federal court shall, at the request of the United States, limit participation in hearings conducted under this chapter, or access to motions or affidavits submitted under this chapter, to attorneys with appropriate security clearances, if the court determines that limiting participation in that manner would serve the interests of national security. The court may also appoint a guardian ad litem with the necessary security clearances to represent any party for the purposes of any hearing conducted under this chapter. CommentsClose CommentsPermalink





`‘(2) STAYS- During the pendency of an application for security clearance by an attorney representing a party in a hearing conducted under this chapter, the court may suspend proceedings if the court determines that such a suspension would serve the interests of justice. CommentsClose CommentsPermalink





` ‘(3) COURT OVERSIGHT- If the United States fails to provide a security clearance necessary to conduct a hearing under this chapter in a reasonable period of time, the court may review in camera and ex parte the reasons of the United States for denying or delaying the clearance to ensure that the United States is not withholding a security clearance from a particular attorney or class of attorneys for any reason other than protection of national security. CommentsClose CommentsPermalink





‘(d) Protective Orders- A Federal court may issue a protective order governing any information or evidence disclosed or discussed at any hearing conducted under this chapter if the court determines that issuing such an order is necessary to protect national security. CommentsClose CommentsPermalink





`‘(e) Opinions and Orders- Any opinions or orders issued under this chapter may be issued under seal or in redacted versions if, and to the extent that, the court determines that such measure is necessary to protect national security. CommentsClose CommentsPermalink





`‘(f) Special Masters- A Federal court may appoint a special master or other independent advisor who holds the necessary security clearances to assist the court in handling a matter subject to this chapter. CommentsClose CommentsPermalink

`‘Sec. 4053. Procedures for answering a complaint

`‘(a) Intervention- The United States may intervene in any civil action in order to protect information the Government determines may be subject to the state secrets privilege. CommentsClose CommentsPermalink





`‘(b) Impermissible as Grounds for Dismissal Prior to Hearings- Except as provided in section 4055, the state secrets privilege shall not constitute grounds for dismissal of a case or claim. A ruling onIf a motion to dismiss, or for summary judgment, based on the state secrets privilege is based in whole or in part on the state secrets privilege, or may be affected by the assertion of the state secrets privilege, a ruling on that motion shall be deferred pending completion of the discovery and pretrial hearings provided under this chapter.`(c), unless the motion can be granted on grounds unrelated to, and unaffected by, the assertion of the state secrets privilege. CommentsClose CommentsPermalink





‘(c) Pleading State Secrets- In answering a complaint, if the United States or an officer or agency of the United States is a party to the litigation, the United States may plead the state secrets privilege in response to any allegation in any individual claim or counterclaim if the admission or denial of that allegation in that individual claim or counterclaim would itself divulge a state secret to another party or the public. If the United States has intervened in a civil action, it may invokeassert the state secrets privilege in response to any allegation in any individual claim or counterclaim if the admission or denial by a party of that allegation in that individual claim or counterclaim would itself divulge a state secret to another party or the public. No adverse inference or admission shall be drawn from a pleading of state secrets in an answer to an item in a complaint. CommentsClose CommentsPermalink





`‘(d) Supporting Affidavit- In each instance in which the United States invokeasserts the state secrets privilege in response to 1 or more claims, it shall provide the court with an affidavit signed by the head of the executive branch agency with responsibility for, and control over, the state secrets involvedasserted state secrets explaining the factual basis for the privilege. The United States shall make public an unclassified version of the affidavit.`assertion of the privilege and attesting that personal consideration was given to the assertion of the privilege. The duties of the head of an executive branch agency under this subsection may not be delegated. CommentsClose CommentsPermalink

‘Sec. 4054. Procedures for determining whether evidence is protected from disclosure by the state secrets privilege

`(a) Invok‘(a) Asserting the State Secrets Privilege- The United States may, in any civil action to which the United States is a party or in any other civil action before a Federal or State court, invokeassert the state secrets privilege as a ground for withholding information or evidence in discovery or for preventing the introduction of evidence at trial.`disclosure of information through court filings or through the introduction of evidence. CommentsClose CommentsPermalink





‘(b) Supporting Affidavit- In each instance in which the United States invokeasserts the state secrets privilege with respect to an item of information or evidence, the United States shall provide the court with an affidavit signed by the head of the executive branch agency with responsibility for, and control over, the state secrets involved explaining the factual basis for the claim of privilege. The United States shall make public an unclassified version of the affidavit. CommentsClose CommentsPermalink





`‘(c) Hearing- A Federal court shall conduct a hearing to review, consistent with the requirements of section 4052, to examine the items of evidence that the United States asserts are subject to the state secrets privilege, as well as any affidavit provided by the United States under this section and all evidence the United States asserts is protected from disclosure by the state secrets privilege.`(d) submitted by the United States in support of any assertion of the state secrets privilege, and to determine the validity of any assertion of the state secrets privilege made by the United States. CommentsClose CommentsPermalink





‘(d) Review of Evidence- CommentsClose CommentsPermalink





`‘(1) SUBMISSION OF EVIDENCE- In addition to the affidavit provided under subsection (b), the United States shalland except as provided in paragraph (2) of this subsection, the United States shall make all evidence the United States claims is subject to the state secrets privilege available for the court to review, consistent with the requirements of section 4052, before any hearing conducted under this section. CommentsClose CommentsPermalink





`(2 ‘(2) SAMPLING IN CERTAIN CASES- If the volume of evidence the United States asserts is protected by the state secrets privilege precludes a timely review of each item of evidence, or the court otherwise determines that a review of all of that evidence is not feasible, the court may substitute a sufficient sampling of the evidence if the court determines that there is no reasonable possibility that review of the additional evidence would change the determination on the privilege claim and the evidence reviewed is sufficient to enable to court to make the determination required under this section. CommentsClose CommentsPermalink





‘(3) INDEX OF MATERIALS- The United States shall provide the court with a manageable index of evidence it contends is subject to the state secrets privilege by formulating a system of itemizing and indexing that would correlate statements made in the affidavit provided under subsection (b) with portions of the evidence the United States asserts is subject to the state secrets privilege. The index shall be specific enough to afford the court an adequate foundation to review the basis of the invocation of the privilege by the United States. CommentsClose CommentsPermalink





`‘(e) Determinations as to Applicability of State Secrets Privilege- CommentsClose CommentsPermalink





`‘(1) IN GENERAL- AExcept as provided in subsection (d)(2), as to each item of evidence that the United States asserts is protected by the state secrets privilege, the court shall review, consistent with the requirements of section 4052, the specific item of evidence to determine whether the claim of the United States is valid. EAn item of evidence is subject to the state secrets privilege if it contains a state secret, or there is no possible means of effectively segregating it from other evidence that contains a state secret. CommentsClose CommentsPermalink





`(2) ADMISSIBILITY ‘(2) ADMISSIBILITY AND DISCLOSURE- CommentsClose CommentsPermalink





‘(A) PRIVILEGED EVIDENCE- If the court agrees that an item of evidence is subject to the state secrets privilege, that item shall not be disclosed or admissible as evidence. CommentsClose CommentsPermalink





`(3) DISCLOSUR‘(B) NON-PRIVILEGED EVIDENCE- If the court determines that an item of evidence is not subject to the state secrets privilege, the state secrets privilege does not prohibit the disclosure of that item to the opposing party or the admission of that item at trial, subject to the Federal Rules of Civil Procedure and the Federal Rules of Evidence. CommentsClose CommentsPermalink





‘(3) STANDARD OF REVIEW- The court shall give substantial weight to an assertion by the United States relating to why public disclosure of an item of evidence would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States. The court shall weigh the testimony of a Government expert in the same manner as the court weighs, and along with, any other rules of evidence.`expert testimony in the applicable case. CommentsClose CommentsPermalink





‘(f) Non-Privileged Substitute- If the court finds that material evidence is subject to the state secrets privilege and it is possible to craft a non-privileged substitute for that privileged material evidence that provides a substantially equivalent opportunity to litigate the claim or defense as would that privileged material evidence, the court shall order the United States to provide such a substitute, which may consist of-- CommentsClose CommentsPermalink





`‘(1) a summary of such privileged information; CommentsClose CommentsPermalink





`‘(2) a version of the evidence with privileged information redacted; CommentsClose CommentsPermalink





`‘(3) a statement admitting relevant facts that the privileged information would tend to prove; or CommentsClose CommentsPermalink





`‘(4) any other alternative as directed by the court in the interests of justice and protecting national security. CommentsClose CommentsPermalink





`‘(g) Refusal To Provide Non-Privileged Substitute- In a suit against the United States or an officer or agent of the Unites States acting in the official capacity of that officer or agent, if the court orders the United States to provide a non-privileged substitute for evidence in accordance with this section, and the United States fails to comply, the court shall resolve the disputed issue of fact or law to which the evidence pertains in the non-government party'’s favor. CommentsClose CommentsPermalink

`‘Sec. 4055. Procedures when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim

`‘After reviewing all availablepertinent evidence, privileged and non-privileged, a Federal court may dismiss a claim or counterclaim on the basis of the state secrets privilege only if the court determines that-- CommentsClose CommentsPermalink





`‘(1) it is impossible to create for privileged material evidence a non-privileged substitute under section 4054(f) that provides a substantially equivalent opportunity to litigate the claim or counterclaim as would that privileged material evidence; CommentsClose CommentsPermalink





`(2) dismissal of the claim or ‘(2) dismissal of the claim or counterclaim would not harm national security; and CommentsClose CommentsPermalink





`‘(3) continuing with litigation of the claim or counterclaim in the absence of the privileged material evidence would substantially impair the ability of a party to pursue a valid defense to the claim or counterclaim. CommentsClose CommentsPermalink

`‘Sec. 4056. Interlocutory appeal

`‘(a) In General- The courts of appeal shall have jurisdiction of an appeal by any party from any interlocutory decision or order of a district court of the United States under this chapter. CommentsClose CommentsPermalink





`(b) Appeal-` ‘(b) Appeal- CommentsClose CommentsPermalink





‘(1) IN GENERAL- An appeal taken under this section either before or during trial shall be expedited by the court of appeals. CommentsClose CommentsPermalink





`‘(2) DURING TRIAL- If an appeal is taken during trial, the district court shall adjourn the trial until the appeal is resolved and the court of appeals-- CommentsClose CommentsPermalink





`‘(A) shall hear argument on appeal as expeditiously as possible after adjournment of the trial by the district court; CommentsClose CommentsPermalink





`‘(B) may dispense with written briefs other than the supporting materials previously submitted to the trial court; CommentsClose CommentsPermalink





`‘(C) shall render its decision as expeditiously as possible after argument on appeal; and CommentsClose CommentsPermalink





`‘(D) may dispense with the issuance of a written opinion in rendering its decision. CommentsClose CommentsPermalink

`‘Sec. 4057. Security procedures

`‘(a) In General- The security procedures established under the Classified Information Procedures Act (18 U.S.C. App.) by the Chief Justice of the United States for the protection of classified information shall be used to protect against unauthorized disclosure of evidence protected by the state secrets privilege. CommentsClose CommentsPermalink





`‘(b) Rules- The Chief Justice of the United States, in consultation with the Attorney General, the Director of National Intelligence, and the Secretary of Defense, may create additional rules or amend the rules to implement this chapter and shall submit any such additional rules or amendments to the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives and the Select Committee on Intelligence and the Committee on the Judiciary of the Senate. Any such rules or amendments shall become effective 90 days after such submission, unless Congress provides otherwise. Rules and amendments shall comply with the letter and spirit of this chapter, and may include procedures concerning the role of magistrate judges and special masters in assisting courts in carrying out this chapter.` The rules or amendments under this subsection may include procedures to ensure that a sufficient number of attorneys with appropriate security clearances are available in each of the judicial districts of the United States to serve as guardians ad litem under section 4052(c)(1). CommentsClose CommentsPermalink

‘Sec. 4058. Reporting

`(a) In General ‘(a) Assertion of State Secrets Privilege- CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Attorney General shall report in writingsubmit to the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives, and the Select Committee on Intelligence of the Senate, and the chairmen and ranking minority members of the Committeesand the Committee on the Judiciary of the Senate and House of Representatives report on any case in which the United States invokeasserts the state secrets privilege, not later than 30 calendar days after the date of such assertion. CommentsClose CommentsPermalink





‘(2) CONTENTS- Each report submitted under this subsection shall include all affidavits filed under this chapter by the United States.`ny affidavit filed in support of the assertion of the state secrets privilege and the index required under section 4054(d)(2). CommentsClose CommentsPermalink





‘(3) EVIDENCE- Upon a request by any member of the Permanent Select Committee on Intelligence or the Committee on the Judiciary of the House of Representatives or the Select Committee on Intelligence or the Committee on the Judiciary of the Senate, the Attorney General shall provide to that member any item of evidence relating to which the United States has asserted the state secrets privilege. CommentsClose CommentsPermalink





‘(4) PROTECTION OF INFORMATION- An affidavit, index, or item of evidence provided under this subsection may be included in a classified annex or provided under any other appropriate security measures. CommentsClose CommentsPermalink





‘(b) Operation and Effectiveness- CommentsClose CommentsPermalink





`‘(1) IN GENERAL- The Attorney General shall deliver to the committees of Congress described in subsection (a) a report concerning the operation and effectiveness of this chapter and including suggested amendments to this chapter. CommentsClose CommentsPermalink





`‘(2) DEADLINE- The Attorney General shall submit a report under paragraph (1) not later than 1 year after the date of enactment of this chapter, and every year there after until the date that is 3 years after that date of enactment. After the date that is 3 years after that date of enactment, the Attorney General shall submit a report under paragraph (1) as necessary. CommentsClose CommentsPermalink

`‘Sec. 4059. Rule of construction

`Nothing in this chapter is ‘Nothing in this chapter-- CommentsClose CommentsPermalink





‘(1) is intended to supersede any otherfurther or additional limit on the state secrets privilege under any other provision of law.'; or CommentsClose CommentsPermalink





‘(2) may be construed to preclude a court from dismissing a claim or counterclaim or entering judgment on grounds unrelated to, and unaffected by, the assertion of the state secrets privilege.’. CommentsClose CommentsPermalink





(b) Technical and Conforming Amendment- The table of chapters for title 28, United States Code, is amended by adding at the end the following: CommentsClose CommentsPermalink

4051 CommentsClose CommentsPermalink

SEC. 3. SEVERABILITY.

SEC. 4. APPLICATION TO PENDING CASES.

The amendments made by this Act shall apply to any civil case pending on or after the date of enactment of this Act. CommentsClose CommentsPermalink