[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 417 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 417

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 11, 2009

  Mr. Leahy (for himself, Mr. Specter, Mr. Kennedy, Mr. Feingold, Mr. 
 Whitehouse, and Mrs. McCaskill) 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. 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.
``Sec. 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.
``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.
            ``(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.
    ``(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. 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.
``Sec. 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.--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.--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.--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.
            ``(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 expert testimony in the 
        applicable case.
    ``(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 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.
``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. 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).
``Sec. 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.--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--
            ``(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 
part VI of title 28, United States Code, is amended by adding at the 
end the following:

``181. State secrets protection.............................    4051''.

SEC. 3. 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.

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.
                                 <all>