Short title

This Act may be cited as the

State Secrets Protection Act

State secrets protection

(a)

In general

Title 28 of the United States Code is amended by adding after chapter 180, the following:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

Short title

This Act may be cited as the

State Secrets Protection Act

State secrets protection

(a)

In general

Title 28 of the United States Code is amended by adding after chapter 180, the following:

181

State secrets protection

Sec.

4051. Definitions.

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.

4051.

Definitions

In this chapter— (1)the term 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 (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.

4052.

Rules governing procedures related to this chapter

(a)

Documents

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

Ex parte hearings

Record of hearings

Attorney security clearances

(1)

In general

Stays

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. (d)

Protective orders

Opinions and orders

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.

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. If a motion to dismiss or for summary judgment 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 hearings provided under this chapter, unless the motion can be granted on grounds unrelated to, and unaffected by, the assertion of the state secrets privilege. (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 assert 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. (d)

Supporting affidavit

In each instance in which the United States asserts 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 asserted state secrets explaining the factual basis for the 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.

4054.

Procedures for determining whether evidence is protected from disclosure by the state secrets privilege

(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, assert the state secrets privilege as a ground for withholding information or evidence in discovery or for preventing the disclosure of information through court filings or through the introduction of evidence. (b)

Supporting affidavit

In each instance in which the United States asserts 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, 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 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. (d)

Review of evidence

(1)

Submission of evidence

In addition to the affidavit provided under subsection (b), and 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. (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. (3)

Index of materials

Determinations as to applicability of state secrets privilege

(1)

In general

Except 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. An 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. (2)

Admissibility and disclosure

(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. (B)

Non-privileged evidence

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 expert testimony in the applicable case. (f)

Non-privileged substitute

Refusal To provide non-privileged substitute

4055.

Procedures when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim

After reviewing all pertinent 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.

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

4057.

Security procedures

(a)

In general

Rules

4058.

Reporting

(a)

Assertion of state secrets privilege

(1)

In general

The Attorney General shall submit 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 a report on any case in which the United States asserts the state secrets privilege, not later than 30 calendar days after the date of such assertion. (2)

Contents

Each report submitted under this subsection shall include any affidavit filed in support of the assertion of the state secrets privilege and the index required under section 4054(d)(2). (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. (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. (b)

Operation and effectiveness

(1)

In general

Deadline

4059.

Rule of construction

Nothing in this chapter— (1)is intended to supersede any further or additional limit on the state secrets privilege under any other provision of law; or (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.

(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

Severability

If any provision of this Act, any amendment made by the Act, or the application of such provision or amendment to any person or circumstances is held to be invalid, the remainder of this Act, the amendments made by the Act, and the application of such provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

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.

August 1, 2008

Reported with an amendment