[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2533 Introduced in Senate (IS)]







110th CONGRESS
  2d Session
                                S. 2533

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             January 22 (legislative day, January 3), 2008

 Mr. Kennedy (for himself, Mr. Specter, and Mr. Leahy) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


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

    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 Secrets Protection Act''.

SEC. 2. STATE SECRETS PROTECTION.

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

                ``CHAPTER 181--STATE SECRETS PROTECTION

``Sec.
``4051. Definition.
``4052. Rules governing procedures related to this chapter.
``4053. Procedures for answering a complaint.
``4054. Procedures for determining whether evidence is protected from 
                            disclosure by the state secrets privilege.
``4055. Procedures when evidence protected by the state secrets 
                            privilege is necessary for adjudication of 
                            a claim or counterclaim.
``4056. Interlocutory appeal.
``4057. Security procedures.
``4058. Reporting.
``4059. Rule of construction.
``Sec. 4051. Definition
    ``In this chapter, 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.
``Sec. 4052. Rules governing procedures related to this chapter
    ``(a) Documents.--A Federal court--
            ``(1) shall determine which filings, motions, and 
        affidavits, or portions thereof, submitted under this chapter 
        shall be submitted ex parte;
            ``(2) may order a party to provide a redacted, 
        unclassified, or summary substitute of a filing, motion, or 
        affidavit to other parties; and
            ``(3) shall make decisions under this subsection taking 
        into consideration the interests of justice and national 
        security.
    ``(b) Hearings.--
            ``(1) In camera hearings.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), all hearings under this chapter shall 
                be conducted in camera.
                    ``(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.
            ``(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).
            ``(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.
    ``(c) Attorney Security Clearances.--
            ``(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.
            ``(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.
    ``(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.
    ``(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.
    ``(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.
``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.
    ``(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 on a 
motion to dismiss, or for summary judgment, based on the state secrets 
privilege shall be deferred pending completion of the discovery and 
pretrial hearings provided under this chapter.
    ``(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 invoke 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 shall be drawn from a pleading of 
state secrets in an answer to an item in a complaint.
    ``(d) Supporting Affidavit.--In each instance in which the United 
States invokes 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 involved explaining the factual basis for the 
privilege. The United States shall make public an unclassified version 
of the affidavit.
``Sec. 4054. Procedures for determining whether evidence is protected 
              from disclosure by the state secrets privilege
    ``(a) Invoking 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, invoke the state 
secrets privilege as a ground for withholding information or evidence 
in discovery or for preventing the introduction of evidence at trial.
    ``(b) Supporting Affidavit.--In each instance in which the United 
States invokes 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.
    ``(c) Hearing.--A Federal court shall conduct a hearing to review 
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) Review of Evidence.--
            ``(1) Submission of evidence.--In addition to the affidavit 
        provided under subsection (b), 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.
            ``(2) 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.
    ``(e) Determinations as to Applicability of State Secrets 
Privilege.--
            ``(1) In general.--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. 
        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.
            ``(2) Admissibility.--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.
            ``(3) Disclosure.--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 other rules of evidence.
    ``(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--
            ``(1) a summary of such privileged information;
            ``(2) a version of the evidence with privileged information 
        redacted;
            ``(3) a statement admitting relevant facts that the 
        privileged information would tend to prove; or
            ``(4) any other alternative as directed by the court in the 
        interests of justice and protecting national security.
    ``(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.
``Sec. 4055. Procedures when evidence protected by the state secrets 
              privilege is necessary for adjudication of a claim or 
              counterclaim
    ``After reviewing all available 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--
            ``(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;
            ``(2) dismissal of the claim or counterclaim would not harm 
        national security; and
            ``(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.
``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.
    ``(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. 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.
    ``(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.
``Sec. 4058. Reporting
    ``(a) In General.--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 Senate and House of Representatives on any case in 
which the United States invokes the 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 chapter by the United States.
    ``(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 chapter and 
        including suggested amendments to this chapter.
            ``(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.
``Sec. 4059. Rule of construction
    ``Nothing in this chapter is intended to supersede any other limit 
on the state secrets privilege under any other provision of law.''.
    (b) Technical and Conforming Amendment.--The table of chapters for 
title 28, United States Code, is amended by adding at the end the 
following:

181. State secrets protection...............................       4051

SEC. 3. 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.
                                 <all>