[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 354 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 354

   To amend the Classified Information Procedures Act to improve the 
      protection of classified information and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 15, 2011

  Mr. Cardin introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend the Classified Information Procedures Act to improve the 
      protection of classified information and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; DEFINITIONS.

    (a) Short Title.--This Act may be cited as the ``Classified 
Information Procedures Reform and Improvement Act of 2011''.
    (b) In General.--Section 1 of the Classified Information Procedures 
Act (18 U.S.C. App.) is amended--
            (1) by redesignating subsection (b) as subsection (c); and
            (2) by inserting after subsection (a) the following:
    ``(b) `Disclosure', as used in this Act, includes the release, 
transmittal, or making available of, or providing access to, classified 
information to any person (including a defendant or counsel for a 
defendant) during discovery, or to a participant or member of the 
public at any proceeding.''.
    (c) Technical and Conforming Amendment.--Section 501(3) of the 
Immigration and Nationality Act (8 U.S.C. 1531(3)) is amended by 
striking ``section 1(b)'' and inserting ``section 1''.

SEC. 2. PRETRIAL CONFERENCE.

    Section 2 of the Classified Information Procedures Act (18 U.S.C. 
App.) is amended--
            (1) by inserting ``(a) In General.--'' before ``At any 
        time'';
            (2) by adding at the end the following:
    ``(b) Ex Parte.--If the United States or the defendant certifies 
that the presence of both parties at a pretrial conference reasonably 
could be expected to cause damage to the national security of the 
United States or the defendant's ability to make a defense, then upon 
request by either party, the court shall hold such pretrial conference 
ex parte, and shall seal and preserve the record of that ex parte 
conference in the records of the court for use in the event of an 
appeal.''.

SEC. 3. PROTECTIVE ORDERS.

    Section 3 of the Classified Information Procedures Act (18 U.S.C. 
App) is amended--
            (1) by inserting ``(a) In General.--'' before ``Upon 
        motion'';
            (2) by inserting ``use or'' before ``disclosure'';
            (3) by inserting ``, or access to,'' after ``disclosure 
        of'';
            (4) by inserting ``, or any classified information derived 
        therefrom, that will be'' after ``classified information'';
            (5) by inserting ``or made available'' after ``disclosed''; 
        and
            (6) by adding at the end the following:
    ``(b) Notice.--In the event the defendant is convicted and files a 
notice of appeal, the United States shall provide the defendant and the 
appellate court with a written notice setting forth each date that the 
United States obtained a protective order under this Act.''.

SEC. 4. DISCOVERY OF AND ACCESS TO CLASSIFIED INFORMATION BY 
              DEFENDANTS.

    Section 4 of the Classified Information Procedures Act (18 U.S.C. 
App.) is amended--
            (1) in the section heading, by inserting ``and access to'' 
        after ``discovery of'';
            (2) by inserting ``(a) In General.--'' before ``The court, 
        upon'';
            (3) in the first sentence--
                    (A) by inserting ``to restrict the defendant's 
                access to or'' before ``to delete'';
                    (B) by striking ``from documents'';
                    (C) by striking ``classified documents, or'' and 
                inserting ``classified information,''; and
                    (D) by striking the period at the end and inserting 
                ``, or to provide other relief to the United States.'';
            (4) in the second sentence, by striking ``alone.'' 
        inserting ``alone, and may permit ex parte proceedings with the 
        United States to discuss that request.'';
            (5) in the third sentence--
                    (A) by striking ``If the court enters an order 
                granting relief following such an ex parte showing, 
                the'' and inserting ``The''; and
                    (B) by inserting ``, and the transcript of any 
                argument and any summary of the classified information 
                the defendant seeks to obtain discovery of or access 
                to,'' after ``text of the statement of the United 
                States''; and
            (6) by adding at the end the following:
    ``(b) Access to Other Classified Information.--If the defendant 
seeks access to nondocumentary information from a potential witness or 
other person through deposition under the Federal Rules of Criminal 
Procedure, or otherwise, which the defendant knows or reasonably 
believes is classified, the defendant shall notify the attorney for the 
United States and the court in writing. Such notice shall specify with 
particularity the nondocumentary information sought by the defendant 
and the legal basis for such access.
    ``(c) Showing by the United States.--In any prosecution in which 
the United States seeks to restrict, delete, withhold, or otherwise 
obtain relief with respect to the defendant's discovery of or access to 
any specific classified information, the attorney for the United States 
shall file with the court a declaration made by the Attorney General 
invoking the United States classified information privilege, which 
shall be supported by a declaration made by a knowledgeable United 
States official possessing the authority to classify information that 
sets forth the identifiable damage to the national security that the 
discovery of, or access to, such information reasonably could be 
expected to cause.
    ``(d) Standard for Discovery of or Access to Classified 
Information.--Upon the submission of a declaration of the Attorney 
General under subsection (c), the court may not authorize the 
defendant's discovery of, or access to, classified information, or to 
the substitution submitted by the United States, which the United 
States seeks to restrict, delete, or withhold, or otherwise obtain 
relief with respect to, unless the court first determines that such 
classified information or such substitution would be--
            ``(1) noncumulative, relevant, and helpful to--
                    ``(A) a legally cognizable defense;
                    ``(B) rebuttal of the prosecution's case; or
                    ``(C) sentencing; or
            ``(2) noncumulative and essential to a fair determination 
        of a pretrial proceeding.
    ``(e) Security Clearance.--Whenever a court determines that the 
standard for discovery of or access to classified information by the 
defendant has been met under subsection (d), such discovery or access 
may only take place after the person to whom discovery or access will 
be granted has received the necessary security clearances to receive 
the classified information, and if the classified information has been 
designated as sensitive compartmented information or special access 
program information, any additional required authorizations to receive 
the classified information.''.

SEC. 5. NOTICE OF DEFENDANT'S INTENTION TO DISCLOSE CLASSIFIED 
              INFORMATION.

    Section 5 of the Classified Information Procedures Act (18 U.S.C. 
App.) is amended--
            (1) in the section heading, by inserting ``use or'' before 
        ``disclose'';
            (2) in subsection (a)--
                    (A) in the first sentence--
                            (i) by inserting ``use or'' before 
                        ``disclose''; and
                            (ii) by striking ``thirty days prior to 
                        trial'' and inserting ``45 days prior to such 
                        proceeding'';
                    (B) in the second sentence by striking ``brief'' 
                and inserting ``specific'';
                    (C) in the third sentence--
                            (i) by inserting ``use or'' before 
                        ``disclose''; and
                            (ii) by striking ``brief'' and inserting 
                        ``specific''; and
                    (D) in the fourth sentence--
                            (i) by inserting ``use or'' before 
                        ``disclose''; and
                            (ii) by inserting ``reasonably'' before 
                        ``believed''; and
            (3) in subsection (b), by inserting ``the use or'' before 
        ``disclosure''.

SEC. 6. PROCEDURE FOR CASES INVOLVING CLASSIFIED INFORMATION.

    Section 6 of the Classified Information Procedures Act (18 U.S.C. 
App.) is amended--
            (1) in subsection (a)--
                    (A) in the second sentence, by striking ``such a 
                hearing.'' and inserting ``a hearing and shall make all 
                such determinations prior to proceeding under any 
                alternative procedure set out in subsection (d).''; and
                    (B) in the third sentence, by striking ``petition'' 
                and inserting ``request'';
            (2) in subsection (b)(2) by striking ``trial'' and 
        inserting ``the trial or pretrial proceeding'';
            (3) by redesignating subsections (c), (d), (e), and (f), as 
        subsections (d), (e), (f), and (g), respectively;
            (4) by inserting after subsection (b) the following:
    ``(c) Standard for Admissibility, Use, and Disclosure at Trial.--
(1) Classified information which is the subject of a notice by the 
United States pursuant to subsection (b) is not admissible at trial and 
subject to the alternative procedures set out in subsection (d), unless 
a court first determines that such information is noncumulative and 
relevant to an element of the offense or a legally cognizable defense, 
and is otherwise admissible in evidence.
    ``(2) Nothing in this subsection may be construed to prohibit the 
exclusion from evidence of relevant, classified information in 
accordance with the Federal Rules of Evidence.'';
            (5) in subsection (d), as so redesignated--
                    (A) in the subsection heading, by inserting ``Use 
                or'' before ``Disclosure'';
                    (B) in paragraph (1), by inserting ``use or'' 
                before ``disclosure'' both places that term appears;
                    (C) in the flush paragraph following paragraph 
                (1)(B), by inserting ``use or'' before ``disclosure''; 
                and
                    (D) in paragraph (2)--
                            (i) by striking ``an affidavit of'' and 
                        inserting ``a declaration by'';
                            (ii) by striking ``such affidavit'' and 
                        inserting ``such declaration''; and
                            (iii) by inserting ``the use or'' before 
                        ``disclosure'';
            (6) in subsection (e), as so redesignated, in the first 
        sentence, by striking ``disclosed or elicited'' and inserting 
        ``used or disclosed'';
            (7) in subsection (f), as so redesignated--
                    (A) in the subsection heading, by inserting ``Use 
                or'' before ``Disclosure'' both places that term 
                appears;
                    (B) in paragraph (1)--
                            (i) by striking ``(c)'' and inserting 
                        ``(d)'';
                            (ii) by striking ``an affidavit of'' and 
                        inserting ``a declaration by'';
                            (iii) by inserting ``the use or'' before 
                        ``disclosure''; and
                            (iv) by striking ``disclose'' and inserting 
                        ``use, disclose,''; and
                    (C) in paragraph (2), by striking ``disclosing'' 
                and inserting ``using, disclosing,''; and
            (8) in the first sentence of subsection (g), as so 
        redesignated--
                    (A) by inserting ``used or'' before ``disclosed''; 
                and
                    (B) by inserting ``or disclose'' before ``to rebut 
                the''.

SEC. 7. INTERLOCUTORY APPEAL.

    Section 7(a) of the Classified Information Procedures Act (18 
U.S.C. App.) is amended--
            (1) by striking ``disclosure of'' both times that places 
        that term appears and inserting ``use, disclosure, discovery 
        of, or access to''; and
            (2) by adding at the end the following: ``The right of the 
        United States to appeal pursuant to this Act applies without 
        regard to whether the order or ruling appealed from was entered 
        under this Act, another provision of law, a rule, or otherwise. 
        Any such appeal may embrace any preceding order, ruling, or 
        reasoning constituting the basis of the order or ruling that 
        would authorize such use, disclosure, or access. Whenever 
        practicable, appeals pursuant to this section shall be 
        consolidated to expedite the proceedings.''.

SEC. 8. INTRODUCTION OF CLASSIFIED INFORMATION.

    Section 8 of the Classified Information Procedures Act (18 U.S.C. 
App.) is amended--
            (1) in subsection (b), by adding at the end ``The court may 
        fashion alternative procedures in order to prevent such 
        unnecessary disclosure, provided that such alternative 
        procedures do not deprive the defendant of a fair trial or 
        violate the defendant's due process rights.''; and
            (2) by adding at the end the following:
    ``(d) Admission of Evidence.--(1) No classified information offered 
by the United States and admitted into evidence shall be presented to 
the jury unless such evidence is provided to the defendant.
    ``(2) Any classified information admitted into evidence shall be 
sealed and preserved in the records of the court to be made available 
to the appellate court in the event of an appeal.''.

SEC. 9. APPLICATION TO PROCEEDINGS.

    The amendments made by this Act shall take effect on the date of 
the enactment of this Act but shall not apply to any prosecution in 
which an indictment or information was filed prior to such date.
                                 <all>