[Congressional Record Volume 155, Number 28 (Wednesday, February 11, 2009)]
[Senate]
[Pages S2155-S2159]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Specter, Mr. Kennedy, Mr. 
        Feingold, Mr. Whitehouse, and Mrs. McCaskill):
  S. 417. A bill to enact a safe, fair, and responsible state secrets 
privilege Act; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, I am introducing the bipartisan 
State Secrets Protection Act. I am pleased that Senator Kennedy, who 
had so much to do with developing this proposal last Congress is an 
original cosponsor of the bill along with Senators Specter, Feingold, 
Whitehouse and McCaskill. After a lengthy debate, this bill was 
reported by the Judiciary Committee last April.
  The State secrets privilege is a common law doctrine that the 
Government can claim in court to prevent evidence that could harm 
national security from being publicly revealed. During the Bush 
administration, the State secrets privilege was used to avoid judicial 
review and skirt accountability by ending cases without consideration 
of the merits. It was used to stymie litigation at its very inception 
in cases alleging egregious Government misconduct, such as 
extraordinary rendition and warrantless eavesdropping on the 
communications of Americans.
  The 2006 case of Khaled El-Masri, who was kidnapped and transported 
against his will to Afghanistan, where he was detained and tortured as 
part of the Bush administration's extraordinary rendition program, is 
one such example. He sued the government alleging unlawful detention 
and treatment. A district court judge dismissed the entire lawsuit 
after the Government invoked the State secrets privilege, solely on the 
basis of an ex parte declaration from the Director of the Central 
Intelligence Agency, and despite the fact that the Government had 
admitted that the rendition program exists. Mr. El-Masri has no other 
remedy. Our justice system is off limits to him, and no judge ever 
reviewed any of the actual evidence.
  The State secrets privilege serves important goals where properly 
invoked. But there are serious consequences for litigants and for the 
American public when the privilege is used to terminate litigation 
alleging serious Government misconduct. For the aggrieved parties, it 
means that the courthouse doors are closed forever regardless of the 
severity of their injury. They will never have their day in court. For 
the American public, it means less accountability, because there will 
be no judicial scrutiny of improper actions of the executive, and no 
check or balance.
  The State Secrets Protection Act will help guide the courts to 
balance the Government's interests in secrecy with accountability and 
the rights of citizens to seek judicial redress. The bill does not 
restrict the Government's ability to assert the privilege in 
appropriate cases. Rather, the bill would allow judges to look at the 
actual evidence the Government submits so that they, neutral judges, 
rather than self-interested executive branch officials, would render 
the ultimate decision whether the State secrets privilege should apply. 
This is consistent with the procedure for other privileges recognized 
in our courts.
  We held a Committee hearing on this issue last year, and the 
appropriate use of this privilege remains an area of concern for me and 
for the cosponsors of this bill. In light of the pending cases where 
this privilege has been invoked, involving issues including torture, 
rendition and warrantless wiretapping, we can ill-afford to delay 
consideration of this important legislation. I hope all Senators will 
join us in supporting this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 417

       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.

[[Page S2156]]

``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.

[[Page S2157]]

       ``(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.

  Mr. FEINGOLD. Mr. President, I am proud to join Senators Leahy, 
Specter, and Kennedy in introducing the State Secrets Protection Act of 
2009. This bill establishes uniform procedures for courts to use when 
evaluating governmental assertions of the state secrets privilege in 
civil litigation. It takes an important step toward restoring the rule 
of law by ensuring that the privilege will be used only to protect true 
state secrets, and not as a means for the Government to avoid 
accountability for its actions.
  In a democracy, the public should have the right to know what its 
government is doing. That should be the rule, and secrecy should be the 
rare exception, reserved for the very few cases in which the national 
security is truly at stake. Unfortunately, the Bush administration 
stood that presumption on its head, cloaking its actions in secrecy 
whenever possible and grudgingly submitting to public scrutiny only 
when it couldn't be avoided. The ``state secrets'' privilege was a 
favorite weapon in that administration's arsenal of secrecy.
  None of us disputes that information may properly be withheld as a 
``state secret'' when disclosing the information would cause grave 
damage to national security. The problem arises when the privilege is 
abused and invoked to shield Government wrongdoing. Indeed, that is 
exactly what happened the first time the Supreme Court recognized the 
privilege in 1953, in the case of United States v. Reynolds. The 
Government had been sued after a military aircraft crash killed nine 
people, and it invoked the ``state secrets'' privilege to shield an 
internal investigative report. Decades later, when the report was 
declassified, it revealed nothing that could fairly be characterized as 
a ``state secret'' but it did reveal faulty maintenance of the 
aircraft.
  Abuses like these can be prevented, but only if the courts fulfill 
their responsibility to carefully review claims

[[Page S2158]]

of privilege. In the Reynolds case, no court actually looked at the 
supposedly privileged report. That simple step would have prevented the 
miscarriage of justice that ensued. Yet, despite the fact that courts 
have the acknowledged authority to order in camera review of the 
evidence, fewer than one third of courts have actually exercised that 
option when the Government has asserted the ``state secrets'' 
privilege. And a host of other tools available to the courts to 
evaluate and respond to claims of privilege have been employed 
inconsistently at best, resulting in a confused body of case law that 
preserves accountability in some cases while granting the government a 
``get out of jail free'' card in others.
  In the last Congress, Senators Kennedy, Specter, and Leahy introduced 
the State Secrets Protection Act to standardize the procedures courts 
use in cases where the Government asserts the ``state secrets'' 
privilege and to ensure adequate scrutiny of such claims. The bill was 
reported by the Judiciary Committee last April after extensive debate. 
Much of the credit for this legislation goes to Senator Kennedy, whose 
unfailing commitment to the rule of law inspired both the concept and 
the particulars of this bill. I had the honor of working with him to 
develop this legislation, and it is a pleasure now to cosponsor its 
reintroduction, with Senator Leahy as the lead sponsor.
  The bill makes use of existing tools that are available to the courts 
when handling national security information. Perhaps the most 
fundamental of these is in camera review of the allegedly privileged 
evidence, which the bill requires. The idea here is simple: Determining 
what information the evidence contains is the threshold step in 
determining whether that evidence is privileged. This step is far too 
important to be left to a party with a built-in conflict of interest. 
Just as a court would never accept a private litigant's description of 
his or her evidence in lieu of the evidence itself, the court should 
not rely solely on the Government's description of the evidence when 
the Government has a clear interest in the outcome of the case.
  That courts may examine sensitive national security information in 
camera is beyond any serious dispute. Since 1974, the Freedom of 
Information Act has allowed courts to engage in in camera review of any 
records that the Government claims are exempt from disclosure under the 
Act. Courts have also reviewed the most sensitive national security 
information in criminal cases, pursuant to the Classified Information 
Procedures Act. In fact, courts handle highly classified information on 
a regular basis. There is no legitimate justification for skipping this 
crucial step.
  The bill also requires courts to hold in camera hearings on the 
question of whether the evidence is privileged. Based on the court's 
previous review of the evidence, the court may conduct the hearing ex 
parte i.e., without any participation by the plaintiff or the 
plaintiff's lawyers but only if the court finds that national security 
cannot adequately be protected through other means. For example, the 
court may limit attendance at the hearing to attorneys with the 
requisite clearances, or the court may appoint a guardian ad litem to 
represent the plaintiff's interests at the hearing. The bill thus 
preserves the adversarial process to the maximum extent consistent with 
protecting national security.
  That's important, for at least two reasons. First, our justice system 
is premised on the notion of fairness, and that principle of fairness 
is undermined any time a party to litigation is excluded from the 
proceedings. But fairness isn't the only principle at stake. For all 
its complications and occasional inefficiencies, the adversarial 
process remains the best system for getting to the truth. If only one 
party is present at the hearing, the court is more likely to reach the 
wrong result it's as simple as that.
  Taken together, the requirements of in camera review of the evidence 
and an in camera hearing ensure that the Government's claim of 
privilege is evaluated fairly and thoroughly. A fair, thorough review 
is necessary, because the bill makes absolutely clear that once 
evidence is found to be privileged, it cannot be disclosed, however 
great the plaintiff's need for the evidence may be. The interest of 
national security, once the court determines that interest is truly at 
stake, is given absolute protection.
  That may mean the end of the lawsuit but it may not. As Congress 
recognized when it passed the Classified Information Procedures Act, 
courts have many tools at their disposal to move litigation forward 
even when some of the evidence cannot be disclosed. For example, courts 
can require the Government to submit non-privileged substitutes for the 
privileged evidence, such as summaries of the evidence, redacted 
versions, or admissions of certain facts. Under the bill, where the 
court finds that it would be feasible for the Government to craft a 
non-privileged substitute for privileged evidence, it may order the 
Government to do so. Again, however, the court can never compel the 
production of privileged evidence. If the Government refuses to craft a 
non-privileged substitute, the remedy is the same one that exists in 
the CIPA: the court may resolve the relevant issue of fact or law 
against the Government.
  The bill does not allow courts to dismiss lawsuits at the pleadings 
stage based on a claim of ``subject matter privilege.'' As the Fourth 
Circuit has explained, ``subject matter privilege'' applies if the case 
is so pervaded with state secrets, it would be impossible to conduct 
the lawsuit without revealing them. Such cases undoubtedly exist. But 
until all of the relevant evidence is identified and the privilege 
determinations are made, any conclusion that a case will be pervaded 
with state secrets is simply a prediction. Only by proceeding through 
discovery and pre-trial hearings can that prediction be replaced with 
certainty. And this can be done without revealing a single state 
secret, since the bill allows privilege determinations to be made in 
camera and ex parte.
  The bill does not change the ordinary rules of summary judgment. If a 
court determines, after discovery and pre-trial hearings are completed, 
that the key evidence is privileged and the plaintiff cannot prove his 
or her case using non-privileged evidence, then the Government may move 
for summary judgment and prevail. The bill thus retains the concept of 
``subject matter privilege'' it simply requires a more thorough testing 
of the claim.
  Nor does the bill ever put the Government to the ``Hobson's choice'' 
of either revealing privileged evidence or conceding the lawsuit. Under 
the bill, even if the plaintiff has made out a prima facie case, the 
court can and must dismiss the lawsuit if the Government would need to 
disclose privileged evidence in order to present a valid defense. The 
Government's interests, as well as the national security, are thus 
scrupulously protected.
  Finally, the bill facilitates congressional oversight by requiring 
the executive branch to share with the Judiciary and Intelligence 
Committees the documents it makes available to the courts: the 
Government affidavit explaining why the evidence is privileged, the 
index of privileged evidence, and, where requested, the evidence 
itself. This information will help Congress monitor the Government's 
use of the privilege and assess the need for any further legislation.
  Perhaps even more important, it will provide a means of 
accountability in those cases where the privilege prevents a court from 
ruling on allegations of Government wrongdoing. The idea of simply 
letting such allegations go unaddressed should be profoundly troubling 
to anyone who respects the rule of law yet for eight years, the 
response of the Bush administration was little more than a shrug. This 
bill rejects such a cavalier attitude toward the rule of law. The 
citizens of this country should never again be told that there is 
simply no remedy for wrongs their Government has committed. In cases 
where the courts cannot provide that remedy, then Congress should step 
in and providing the necessary information to the relevant committees 
of Congress will enable that to happen.
  I am pleased that both the new Attorney General, Eric Holder, and the 
nominee for Associate Attorney General, Thomas Perrelli, have indicated 
a willingness to review this bill and work with us on it. I hope that 
it will be possible to fashion legislation that the Administration can 
support. The public

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deserves to have confidence that the state secrets privilege is not 
going to be used to cover up Government misconduct. This bill provides 
the courts a system for resolving claims of privilege that will inspire 
that confidence.
  A country where the Government need not answer to allegations of 
wrongdoing is a country that has strayed dangerously far from the rule 
of law. We must ensure that the ``state secrets'' privilege does not 
become a license for the Government to evade the laws that we pass. 
This bill accomplishes that goal, while simultaneously providing the 
strongest of protections to those items of evidence that truly qualify 
as state secrets. I urge all of my colleagues to support the rule of 
law by supporting this legislation.
                                 ______