II 112th CONGRESS 1st Session S. 354 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.

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.

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. .

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. .

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. .

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.

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.

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..

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. .

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.