[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5607 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5607

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 13, 2008

  Mr. Nadler (for himself, Mr. Petri, Mr. Conyers, and Mr. Delahunt) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


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

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``State Secret Protection Act of 
2008''.

SEC. 2. STATE SECRET PRIVILEGE.

    In any civil action brought in Federal or State court, the 
Government has a privilege to refuse to give evidence and to prevent 
any person from giving evidence only if the Government shows that 
public disclosure of the evidence 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.

SEC. 3. PROTECTION OF SECRETS.

    (a) In General.--The court shall take steps to protect sensitive 
information that comes before the court in connection with proceedings 
under this Act. These steps may include reviewing evidence or pleadings 
and hearing arguments ex parte, issuing protective orders, requiring 
security clearance for parties or counsel, placing material under seal, 
and applying security procedures established under the Classified 
Information Procedures Act for classified information to protect the 
sensitive information.
    (b) In Camera Proceedings.--All hearings and other proceedings 
under this Act may be conducted in camera, as needed to protect 
information or evidence that may be subject to the privilege.
    (c) Participation of Counsel.--Participation of counsel in 
proceedings under this Act shall not be limited unless the court 
determines that the limitation is a necessary step to protect evidence 
the Government asserts is protected by the privilege or that supports 
the claim of privilege and that no less restrictive means of protection 
suffice. The court shall give a written explanation of its decision to 
the parties and their counsel, which may be placed under seal.
    (d) 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 section 2 
that cannot be addressed through less restrictive means provided in 
this section, 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.

SEC. 4. ASSERTION OF THE PRIVILEGE.

    (a) 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.
    (b) 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 evidence 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.

SEC. 5. PRELIMINARY PROCEEDINGS.

    (a) Preliminary Review by Court.--Once the Government has asserted 
the privilege, and before the Court makes any determinations under 
section 6, 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 Act. After any initial protective measures are in place, the Court 
shall proceed to the consideration of additional preliminary matters 
under this section.
    (b) 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 Act.
    (c) Index of Materials.--The court may order the Government to 
provide a manageable index of evidence the Government asserts is 
subject to the privilege. The index must correlate statements made in 
the affidavit required under this Act with portions of the evidence 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.
    (d) Prehearing Conferences.--After the preliminary review the court 
shall hold one or more conferences with the parties to--
            (1) determine any steps needed to protect sensitive 
        information;
            (2) 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;
            (3) order disclosure of evidence to the court needed to 
        assess the claim, including all evidence the Government asserts 
        is protected by the privilege and other evidence related to the 
        Government's claim;
            (4) resolve any disputes regarding participation of counsel 
        or parties in proceedings relating to the claim, including 
        access to the Government's evidence and arguments;
            (5) set a schedule for completion of discovery related to 
        the Government's claim; and
            (6) take other steps as needed, such as ordering counsel or 
        parties to obtain security clearances.
    (e) Security Clearances.--If the court orders a party or counsel to 
obtain a security clearance, the Government shall promptly conduct the 
necessary review and determine whether or not to provide the clearance. 
If the necessary clearance is not promptly provided to counsel for a 
party, the party may propose that alternate or additional counsel be 
cleared. If within a reasonable time, alternative or additional counsel 
selected by the party cannot be cleared, then the court, in 
consultation with that party and that party's counsel, shall appoint 
another attorney, who can obtain the necessary clearance promptly, to 
represent the party in proceedings under this Act. When a security 
clearance for counsel sought under this Act is denied, the court may 
require the Government to present an ex parte explanation of that 
denial.

SEC. 6. PROCEDURES AND STANDARD FOR ASSESSING THE PRIVILEGE CLAIM.

    (a) Hearing.--The court shall conduct a hearing to determine 
whether the privilege claim is valid.
    (b) Basis for Ruling.--
            (1) Generally.--The court may not determine that the 
        privilege is valid until the court has reviewed--
                    (A) except as provided in paragraph (2), all of the 
                evidence that the Government asserts is privileged;
                    (B) the affidavits, evidence, memoranda and other 
                filings submitted by the parties related to the 
                privilege claim; and
                    (C) any other evidence that the court determines it 
                needs to rule on the privilege.
            (2) Sampling in certain cases.--Where the volume of 
        evidence the Government asserts is privileged precludes a 
        timely review of each item of evidence, or the court otherwise 
        determines 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 court's 
        determination on the privilege claim and the evidence reviewed 
        is sufficient to enable to court to make the independent 
        assessment required by this section.
    (c) 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 section 2, 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.
    (d) 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.

SEC. 7. EFFECT OF COURT DETERMINATION.

    (a) In General.--If the court determines that the privilege is not 
validly asserted as to an item of evidence, the item may be disclosed 
to a nongovernmental party or admitted at trial, subject to the other 
rules of evidence. If the court determines that the privilege is 
validly asserted as to an item, that item shall not be disclosed to a 
nongovernmental party or the public.
    (b) Nonprivileged Substitute.--
            (1) Court consideration of substitute.--If the court finds 
        that the privilege is validly asserted as to an item of 
        material evidence and it is possible to craft a nonprivileged 
        substitute, such as those described in section 3(d), for the 
        privileged evidence 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.
            (2) Refusal to provide.--In a civil action brought against 
        the Government, if the court orders the Government to provide a 
        nonprivileged substitute for evidence or 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 subsection 
        (d).
    (c) 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 
discovery of nonprivileged evidence and to litigate the issue or claim 
to which the privileged evidence is relevant without regard to that 
privileged information.
    (d) Appropriate Orders in the Interest of Justice.--After reviewing 
all available evidence, and only after determining that privileged 
evidence, 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 evidence is relevant, or dismissing a claim or counterclaim.

SEC. 8. 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 Act.
    (b) Appeal.--
            (1) In general.--An appeal taken under this section either 
        before or during trial shall be expedited by the court of 
        appeals.
            (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--
                    (A) shall hear argument on appeal as expeditiously 
                as possible after adjournment of the trial by the 
                district court;
                    (B) may dispense with written briefs other than the 
                supporting materials previously submitted to the trial 
                court;
                    (C) shall render its decision as expeditiously as 
                possible after argument on appeal; and
                    (D) may dispense with the issuance of a written 
                opinion in rendering its decision.

SEC. 9. REPORTING.

    (a) 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 Act by the Government.
    (b) Operation and Effectiveness.--
            (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 Act and 
        including suggested amendments to the Act.
            (2) Deadline.--The Attorney General shall submit this 
        report not later than 1 year after the date of enactment of 
        this Act, 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 paragraph (1) as necessary.

SEC. 10. RULE OF CONSTRUCTION.

    This Act provides the only privilege that may be asserted based on 
state secrets and the standards and procedures set forth in this Act 
apply to any assertion of the privilege.

SEC. 11. APPLICATION.

    This Act applies to claims pending on or after the date of 
enactment of this Act. 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--
            (1) the motion for relief is filed with the rendering court 
        within one year of the date of enactment of this Act;
            (2) the underlying judgment, order, or proceeding from 
        which the party seeks relief was entered after January 1, 2002; 
        and
            (3) the claim on which the judgement, order, or proceeding 
        is based is--
                    (A) against the Government; or
                    (B) arises out of conduct by persons acting in the 
                capacity of a Government officer, employee, or agent.
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