[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5956 Introduced in House (IH)]

112th CONGRESS
  2d Session
                                H. R. 5956

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 18, 2012

  Mr. Nadler (for himself, Mr. Petri, Mr. Conyers, Ms. Zoe Lofgren of 
  California, Mr. Filner, Mr. Hinchey, and Mr. Stark) 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 secrets 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 Secrets Protection Act''.

SEC. 2. AMENDMENT TO THE RULES OF EVIDENCE.

    Article 5 of the Federal Rules of Evidence is amended by adding at 
the end the following:
``Rule 503. State Secrets Privilege
    ``(a) In General.--In any civil action brought in Federal or State 
court, the Government has a privilege to refuse to give information and 
to prevent any person from giving information only if the Government 
shows that public disclosure of the information 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.
    ``(b) Protection of Secrets.--
            ``(1) In general.--The court shall take steps to protect 
        sensitive information that comes before the court in connection 
        with proceedings under this Rule. These steps may include 
        reviewing evidence or pleadings and hearing arguments ex parte, 
        issuing protective orders, placing material under seal, and 
        applying security procedures established under the Classified 
        Information Procedures Act for classified information to 
        protect the sensitive information.
            ``(2) In camera proceedings.--All hearings and other 
        proceedings under this Rule may be conducted in camera, as 
        needed to protect information that may be subject to the 
        privilege.
            ``(3) Participation of counsel.--Participation of counsel 
        in proceedings under this Rule may be limited if the court 
        determines that the limitation is a necessary step to protect 
        information the Government asserts is protected by the 
        privilege or that supports the claim of privilege.
            ``(4) Guardian ad litem.--Where counsel is excluded from a 
        proceeding, the court shall have discretion to appoint a 
        guardian ad litem to represent the absent litigant's interests, 
        drawing, in consultation with the excluded nongovernmental 
        party, from a previously generated list of attorneys who have 
        been granted required security clearances in the past and have 
        agreed to serve in this capacity. The guardian ad litem shall 
        not discuss the information claimed as privileged or its 
        content with any nongovernmental party or nongovernmental 
        party's counsel.
            ``(5) 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 subsection (a) that 
        cannot be addressed through less restrictive means provided in 
        this subsection, 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.
    ``(c) Assertion of the Privilege.--
            ``(1) 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.
            ``(2) 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 information 
        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.
    ``(d) Preliminary Proceedings.--
            ``(1) Preliminary review by court.--Once the Government has 
        asserted the privilege, and before the court makes any 
        determinations under subsection (e), 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 Rule. After 
        any initial protective measures are in place, the court shall 
        proceed to the consideration of additional preliminary matters 
        under this subsection.
            ``(2) 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 Rule.
            ``(3) Index of materials.--The court may order the 
        Government to provide a manageable index of the information 
        that the Government asserts is subject to the privilege. The 
        index must correlate statements made in the affidavit required 
        under this Rule with portions of the information 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.
            ``(4) Prehearing conferences.--After the preliminary 
        review, the court shall hold one or more conferences with the 
        parties to--
                    ``(A) determine any steps needed to protect 
                sensitive information;
                    ``(B) 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;
                    ``(C) order disclosure to the court of anything 
                needed to assess the claim, including all information 
                the Government asserts is protected by the privilege 
                and other material related to the Government's claim;
                    ``(D) resolve any disputes regarding participation 
                of counsel or parties in proceedings relating to the 
                claim, including access to the Government's evidence 
                and arguments;
                    ``(E) set a schedule for completion of discovery 
                related to the Government's claim; and
                    ``(F) take other steps as needed, such as ordering 
                counsel or parties to obtain security clearances.
    ``(e) Procedures and Standard for Assessing the Privilege Claim.--
            ``(1) Hearing.--The court shall conduct a hearing to 
        determine whether the privilege claim is valid.
            ``(2) Basis for ruling.--
                    ``(A) Generally.--The court may not determine that 
                the privilege is valid until the court has reviewed--
                            ``(i) except as provided in subparagraph 
                        (B), all of the information that the Government 
                        asserts is privileged;
                            ``(ii) the affidavits, evidence, memoranda 
                        and other filings submitted by the parties 
                        related to the privilege claim; and
                            ``(iii) any other evidence that the court 
                        determines it needs to rule on the privilege.
                    ``(B) Sampling in certain cases.--Where the volume 
                of information the Government asserts is privileged 
                precludes a timely review, or the court otherwise 
                determines a review of all of that information is not 
                feasible, the court may substitute a sufficient 
                sampling of the information if the court determines 
                that there is no reasonable possibility that review of 
                the additional information would change the court's 
                determination on the privilege claim and the 
                information reviewed is sufficient to enable the court 
                to make the independent assessment required by this 
                subsection.
            ``(3) 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 
        subsection (a), 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.
            ``(4) 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.
    ``(f) Effect of Court Determination.--
            ``(1) In general.--If the court determines that the 
        privilege is not validly asserted, the court shall issue 
        appropriate orders regarding the disclosure of the information 
        to a nongovernmental party and its admission at trial, subject 
        to the other rules of evidence, with the right to interlocutory 
        appeal as provided in subsection (g) for any such orders. If 
        the court determines that the privilege is validly asserted, 
        that information shall not be disclosed to a nongovernmental 
        party or the public.
            ``(2) Nonprivileged substitute.--
                    ``(A) Court consideration of substitute.--If the 
                court finds that the privilege is validly asserted and 
                it is possible to craft a nonprivileged substitute, 
                such as those described in subsection (b)(5), for the 
                privileged information 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.
                    ``(B) Refusal to provide.--In a civil action 
                brought against the Government, if the court orders the 
                Government to provide a nonprivileged substitute for 
                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 paragraph (4).
            ``(3) 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 nonprivileged discovery 
        and to litigate the issue or claim to which the privileged 
        information is relevant without regard to that privileged 
        information.
            ``(4) Appropriate orders in the interest of justice.--After 
        reviewing all available evidence, and only after determining 
        that privileged information, 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 information is relevant, or dismissing a claim or 
        counterclaim. This paragraph does not permit an award of money 
        damages against a party based in whole or in part on privileged 
        information that was not disclosed to that party.
    ``(g) Interlocutory Appeal.--
            ``(1) In general.--The courts of appeal shall have 
        jurisdiction of an appeal from a decision or order of a 
        district court determining that the state secrets privilege is 
        not validly asserted, sanctioning a refusal to provide an 
        adequate or nonprivileged substitute required under this Rule, 
        or refusing protective steps sought by the Government under 
        this Rule pending the resolution of the claim of state secrets 
        privilege.
            ``(2) Appeal.--
                    ``(A) In general.--An appeal taken under this 
                section either before or during trial shall be 
                expedited by the court of appeals.
                    ``(B) 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--
                            ``(i) shall hear argument on appeal as 
                        expeditiously as possible after adjournment of 
                        the trial by the district court;
                            ``(ii) may dispense with written briefs 
                        other than the supporting materials previously 
                        submitted to the trial court;
                            ``(iii) shall render its decision as 
                        expeditiously as possible after argument on 
                        appeal; and
                            ``(iv) may dispense with the issuance of a 
                        written opinion in rendering its decision.
    ``(h) Reporting.--
            ``(1) 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 Rule 
        by the Government.
            ``(2) Operation and effectiveness.--
                    ``(A) In general.--The Attorney General shall 
                deliver to the committees of Congress described in 
                paragraph (1) a report concerning the operation and 
                effectiveness of this Rule and including suggested 
                amendments to the Rule.
                    ``(B) Deadline.--The Attorney General shall submit 
                this report not later than 1 year after the date of 
                enactment of this Rule, 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 subparagraph (A) as necessary.
    ``(i) Rule of Construction.--This Rule provides the only privilege 
that may be asserted in civil cases based on state secrets and the 
standards and procedures set forth in this Rule apply to any assertion 
of the privilege.
    ``(j) Application.--This Rule applies to claims pending on or after 
the date of enactment of this Rule. 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 Rule;
            ``(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 judgment, 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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