HR 5956 IHCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

2d SessionCommentsClose CommentsPermalink

H. R. 5956CommentsClose CommentsPermalink

To provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege.CommentsClose CommentsPermalink

IN THE HOUSE OF REPRESENTATIVESCommentsClose CommentsPermalink

June 18, 2012CommentsClose CommentsPermalink

Mr. NADLER (for himself, Mr. PETRI, Mr. CONYERS, Ms. ZOE LOFGREN of California, Mr. FILNER, Mr. HINCHEY, and Mr. STARK) introduced the following bill; which was referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege.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. AMENDMENT TO THE RULES OF EVIDENCE.

Article 5 of the Federal Rules of Evidence is amended by adding at the end the following:CommentsClose CommentsPermalink

‘Rule 503. State Secrets Privilege

‘(a) In General- In any civil action brought in Federal or State court, the Government has a privilege to refuse to give information and to prevent any person from giving information only if the Government shows that public disclosure of the information that the Government seeks to protect would be reasonably likely to cause significant harm to the national defense or the diplomatic relations of the United States.CommentsClose CommentsPermalink





‘(b) Protection of Secrets-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The court shall take steps to protect sensitive information that comes before the court in connection with proceedings under this Rule. These steps may include reviewing evidence or pleadings and hearing arguments ex parte, issuing protective orders, placing material under seal, and applying security procedures established under the Classified Information Procedures Act for classified information to protect the sensitive information.CommentsClose CommentsPermalink





‘(2) IN CAMERA PROCEEDINGS- All hearings and other proceedings under this Rule may be conducted in camera, as needed to protect information that may be subject to the privilege.CommentsClose CommentsPermalink





‘(3) PARTICIPATION OF COUNSEL- Participation of counsel in proceedings under this Rule may be limited if the court determines that the limitation is a necessary step to protect information the Government asserts is protected by the privilege or that supports the claim of privilege.CommentsClose CommentsPermalink





‘(4) GUARDIAN AD LITEM- Where counsel is excluded from a proceeding, the court shall have discretion to appoint a guardian ad litem to represent the absent litigant’s interests, drawing, in consultation with the excluded nongovernmental party, from a previously generated list of attorneys who have been granted required security clearances in the past and have agreed to serve in this capacity. The guardian ad litem shall not discuss the information claimed as privileged or its content with any nongovernmental party or nongovernmental party’s counsel.CommentsClose CommentsPermalink





‘(5) PRODUCTION OF ADEQUATE SUBSTITUTE PENDING RESOLUTION OF THE CLAIM OF PRIVILEGE- If, at any point during its consideration of the Government’s claim, the court determines that disclosure of information to a party or counsel, or disclosure of information by a party that already possesses it, presents a risk of a harm described in subsection (a) that cannot be addressed through less restrictive means provided in this subsection, the court may require the Government to produce an adequate substitute, such as a redacted version, summary of the information, or stipulation regarding the relevant facts, if the court deems such a substitute feasible. The substitute must be reviewed and approved by the court and must provide counsel with a substantially equivalent opportunity to assess and challenge the Government’s claim of privilege as would the protected information.CommentsClose CommentsPermalink





‘(c) Assertion of the Privilege-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The Government may assert the privilege in connection with any claim in a civil action to which it is a party or may intervene in a civil action to which it is not a party to do so.CommentsClose CommentsPermalink





‘(2) SUPPORTING AFFIDAVITS- If the Government asserts the privilege, the Government shall provide the court with an affidavit signed by the head of the executive branch agency with responsibility for, and control over, the information asserted to be subject to the privilege. In the affidavit, the head of the agency shall explain the factual basis for the claim of privilege. The Government shall make public an unclassified version of the affidavit.CommentsClose CommentsPermalink





‘(d) Preliminary Proceedings-CommentsClose CommentsPermalink





‘(1) PRELIMINARY REVIEW BY COURT- Once the Government has asserted the privilege, and before the court makes any determinations under subsection (e), the court shall undertake a preliminary review of the information the Government asserts is protected by the privilege and provide the Government an opportunity to seek protective measures under this Rule. After any initial protective measures are in place, the court shall proceed to the consideration of additional preliminary matters under this subsection.CommentsClose CommentsPermalink





‘(2) CONSIDERATION OF WHETHER TO APPOINT SPECIAL MASTER OR EXPERT WITNESS- The court shall consider whether the appointment of a special master with appropriate expertise or an expert witness, or both, would facilitate the court’s duties under this Rule.CommentsClose CommentsPermalink





‘(3) INDEX OF MATERIALS- The court may order the Government to provide a manageable index of the information that the Government asserts is subject to the privilege. The index must correlate statements made in the affidavit required under this Rule with portions of the information the Government asserts is subject to the privilege. The index shall be specific enough to afford the court an adequate foundation to review the basis of the assertion of the privilege by the Government.CommentsClose CommentsPermalink





‘(4) PREHEARING CONFERENCES- After the preliminary review, the court shall hold one or more conferences with the parties to--CommentsClose CommentsPermalink





‘(A) determine any steps needed to protect sensitive information;CommentsClose CommentsPermalink





‘(B) define the issues presented by the Government’s claim of privilege, including whether it is possible to allow the parties to complete nonprivileged discovery before determining whether the claim of privilege is valid;CommentsClose CommentsPermalink





‘(C) order disclosure to the court of anything needed to assess the claim, including all information the Government asserts is protected by the privilege and other material related to the Government’s claim;CommentsClose CommentsPermalink





‘(D) resolve any disputes regarding participation of counsel or parties in proceedings relating to the claim, including access to the Government’s evidence and arguments;CommentsClose CommentsPermalink





‘(E) set a schedule for completion of discovery related to the Government’s claim; andCommentsClose CommentsPermalink





‘(F) take other steps as needed, such as ordering counsel or parties to obtain security clearances.CommentsClose CommentsPermalink





‘(e) Procedures and Standard for Assessing the Privilege Claim-CommentsClose CommentsPermalink





‘(1) HEARING- The court shall conduct a hearing to determine whether the privilege claim is valid.CommentsClose CommentsPermalink





‘(2) BASIS FOR RULING-CommentsClose CommentsPermalink





‘(A) GENERALLY- The court may not determine that the privilege is valid until the court has reviewed--CommentsClose CommentsPermalink





‘(i) except as provided in subparagraph (B), all of the information that the Government asserts is privileged;CommentsClose CommentsPermalink





‘(ii) the affidavits, evidence, memoranda and other filings submitted by the parties related to the privilege claim; andCommentsClose CommentsPermalink





‘(iii) any other evidence that the court determines it needs to rule on the privilege.CommentsClose CommentsPermalink





‘(B) SAMPLING IN CERTAIN CASES- Where the volume of information the Government asserts is privileged precludes a timely review, or the court otherwise determines a review of all of that information is not feasible, the court may substitute a sufficient sampling of the information if the court determines that there is no reasonable possibility that review of the additional information would change the court’s determination on the privilege claim and the information reviewed is sufficient to enable the court to make the independent assessment required by this subsection.CommentsClose CommentsPermalink





‘(3) STANDARD- In ruling on the validity of the privilege, the court shall make an independent assessment of whether the harm identified by the Government, as required by subsection (a), is reasonably likely to occur should the privilege not be upheld. The court shall weigh testimony from Government experts in the same manner as it does, and along with, any other expert testimony.CommentsClose CommentsPermalink





‘(4) BURDEN OF PROOF- The Government shall have the burden of proof as to the nature of the harm and as to the likelihood of its occurrence.CommentsClose CommentsPermalink





‘(f) Effect of Court Determination-CommentsClose CommentsPermalink





‘(1) IN GENERAL- If the court determines that the privilege is not validly asserted, the court shall issue appropriate orders regarding the disclosure of the information to a nongovernmental party and its admission at trial, subject to the other rules of evidence, with the right to interlocutory appeal as provided in subsection (g) for any such orders. If the court determines that the privilege is validly asserted, that information shall not be disclosed to a nongovernmental party or the public.CommentsClose CommentsPermalink





‘(2) NONPRIVILEGED SUBSTITUTE-CommentsClose CommentsPermalink





‘(A) COURT CONSIDERATION OF SUBSTITUTE- If the court finds that the privilege is validly asserted and it is possible to craft a nonprivileged substitute, such as those described in subsection (b)(5), for the privileged information that would provide the parties a substantially equivalent opportunity to litigate the case, the court shall order the Government to produce the substitute to the satisfaction of the court.CommentsClose CommentsPermalink





‘(B) REFUSAL TO PROVIDE- In a civil action brought against the Government, if the court orders the Government to provide a nonprivileged substitute for information and the Government fails to comply, in addition to any other appropriate sanctions, the court shall find against the Government on the factual or legal issue to which the privileged information is relevant. If the action is not brought against the Government, the court shall weigh the equities and make appropriate orders as provided in paragraph (4).CommentsClose CommentsPermalink





‘(3) OPPORTUNITY TO COMPLETE DISCOVERY- The court shall not resolve any issue or claim and shall not grant a motion to dismiss or motion for summary judgment based on the state secrets privilege and adversely to any party against whom the Government’s privilege claim has been upheld until that party has had a full opportunity to complete nonprivileged discovery and to litigate the issue or claim to which the privileged information is relevant without regard to that privileged information.CommentsClose CommentsPermalink





‘(4) APPROPRIATE ORDERS IN THE INTEREST OF JUSTICE- After reviewing all available evidence, and only after determining that privileged information, for which it is impossible to create a nonprivileged substitute, is necessary to decide a factual or legal issue or claim, the court shall weigh the equities and make appropriate orders in the interest of justice, such as striking the testimony of a witness, finding in favor of or against a party on a factual or legal issue to which the information is relevant, or dismissing a claim or counterclaim. This paragraph does not permit an award of money damages against a party based in whole or in part on privileged information that was not disclosed to that party.CommentsClose CommentsPermalink





‘(g) Interlocutory Appeal-CommentsClose CommentsPermalink





‘(1) IN GENERAL- The courts of appeal shall have jurisdiction of an appeal from a decision or order of a district court determining that the state secrets privilege is not validly asserted, sanctioning a refusal to provide an adequate or nonprivileged substitute required under this Rule, or refusing protective steps sought by the Government under this Rule pending the resolution of the claim of state secrets privilege.CommentsClose CommentsPermalink





‘(2) APPEAL-CommentsClose CommentsPermalink





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





‘(B) 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





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





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





‘(iii) shall render its decision as expeditiously as possible after argument on appeal; andCommentsClose CommentsPermalink





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





‘(h) Reporting-CommentsClose CommentsPermalink





‘(1) IN GENERAL- Consistent with applicable authorities and duties, including those conferred by the Constitution of the United States upon the executive and legislative branches, the Attorney General shall report in writing to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the chairmen and ranking minority members of the Committees on the Judiciary of the House of Representatives and Senate on any case in which the Government invokes a state secrets privilege, not later than 30 calendar days after the date of such assertion. Each report submitted under this subsection shall include all affidavits filed under this Rule by the Government.CommentsClose CommentsPermalink





‘(2) OPERATION AND EFFECTIVENESS-CommentsClose CommentsPermalink





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





‘(B) DEADLINE- The Attorney General shall submit this report not later than 1 year after the date of enactment of this Rule, and every year thereafter 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 subparagraph (A) as necessary.CommentsClose CommentsPermalink





‘(i) Rule of Construction- This Rule provides the only privilege that may be asserted in civil cases based on state secrets and the standards and procedures set forth in this Rule apply to any assertion of the privilege.CommentsClose CommentsPermalink





‘(j) Application- This Rule applies to claims pending on or after the date of enactment of this Rule. A court also may relieve a party or its legal representative from a final judgment, order, or proceeding that was based, in whole or in part, on the state secrets privilege if--CommentsClose CommentsPermalink





‘(1) the motion for relief is filed with the rendering court within one year of the date of enactment of this Rule;CommentsClose CommentsPermalink





‘(2) the underlying judgment, order, or proceeding from which the party seeks relief was entered after January 1, 2002; andCommentsClose CommentsPermalink





‘(3) the claim on which the judgment, order, or proceeding is based is--CommentsClose CommentsPermalink





‘(A) against the Government; orCommentsClose CommentsPermalink





‘(B) arises out of conduct by persons acting in the capacity of a Government officer, employee, or agent.’.CommentsClose CommentsPermalink