1.This Act may be cited as the
State Secrets Protection
Act
.
2.
(a)Title 28 of the
United States Code is amended by adding after chapter 180, the
following:
181
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.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)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)
(1)
(A)Except as provided in subparagraph (B), all hearings
under this chapter shall be conducted in camera.
(B)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)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)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)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)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)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)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)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)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)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 hearingsExcept 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)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)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 privilegeThe 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)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)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)
(1)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 casesIf 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)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)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)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)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)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
substituteIf 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 substituteIn 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 counterclaimAfter 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.
(a)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)
(1)An appeal taken under this section either before or
during trial shall be expedited by the court of appeals.
(2)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.
(a)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)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).
4058.
(a)Assertion
of state secrets privilege
(1)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)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)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
informationAn 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)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)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.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 amendmentThe table of chapters for part VI of
title 28, United States Code, is amended by adding at the end the
following:
181.State
secrets
protection4051
.
3.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.
4.Application to
pending casesThe amendments
made by this Act shall apply to any civil case pending on or after the date of
enactment of this Act.