[Congressional Record Volume 157, Number 24 (Tuesday, February 15, 2011)]
[Senate]
[Pages S753-S754]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CARDIN:
  S. 354. A bill to amend the Classified Information Procedures Act to 
improve the protection of classified information and for other puroses; 
to the Committee on the Judiciary.
  Mr. CARDIN. Mr. President, the Classified Information Procedures Act, 
CIPA, was enacted in 1980 with bipartisan support to address the 
``disclose or dismiss'' dilemma that arose in espionage prosecutions 
when a defendant would threaten the government with the disclosure of 
classified information if the government did not drop the prosecution. 
Previously, there were no Congressionally-mandated procedures that 
required district courts to make discovery and admissibility rulings 
regarding classified information in advance.
  CIPA has worked reasonably well during the last 30 years, but some 
issues have arisen in a number of notable terrorism, espionage, and 
narcotics cases that demonstrate that reforms and improvements could be 
made to ensure that classified sources, methods and information can be 
protected, and to ensure that a defendant's due process and fair trial 
rights are not violated. In 2009, when the Congress enacted the 
Military Commissions Act, MCA, the Congress drew heavily from the 
manner in which the federal courts interpreted CIPA when it updated the 
procedures governing the use of classified information in military 
commission prosecutions. At that time, however, the Congress did not 
update CIPA. Indeed, since its enactment in 1980, there have been no 
changes to the key provisions of CIPA.
  As the former Chairman of the Senate Judiciary's Terrorism and 
Homeland Security Subcommittee, I chaired a number of hearings during 
which witnesses testified about the capacity of our civilian courts to 
try alleged terrorists and spies. The first Subcommittee hearing that I 
chaired was on July 28, 2009, and was entitled ``Prosecuting 
Terrorists: Civilian and Military Trials for GTMO and Beyond.'' The 
second Terrorism and Homeland Security Subcommittee hearing that I 
chaired was on May 12, 2010, and was entitled ``The Espionage Statutes: 
A Look Back and A Look Forward.'' The testimony I have heard in regard 
to terrorism, espionage and our civilian courts, has convinced me that 
while our courts have the capacity and the procedures in place to try 
alleged terrorists and spies, reforms and improvements could be made to 
CIPA to codify and clarify the decisions of the federal courts.
  As a result, today I am reintroducing the Classified Information 
Procedures Reform and Improvement Act, CIPRIA. CIPRIA contains reforms 
and improvements to ensure that the statute maintains the proper 
balance between the protection of classified sources, methods and 
information, and a defendant's constitutional rights. Among other 
things, this legislation, which includes the applicable changes that 
the Congress made when it enacted the Military Commissions Act of 2009, 
will: codify, clarify and unify federal case law interpreting CIPA; 
ensure that all classified information, not just documents, will be 
governed by CIPA; ensure that prosecutors and defense attorneys will be 
able to fully inform trial courts about classified information issues; 
and will clarify that the civil state secrets privilege does not apply 
in criminal cases. CIPRIA will also ensure high-level DOJ approval 
before the government invokes its classified information privilege in 
criminal cases and will ensure that the federal courts will order the 
disclosure and use of classified information when the disclosure and 
use meets the applicable legal standards. This legislation will also 
ensure timely appellate review of lower court CIPA decisions before the 
commencement of a trial, explicitly permit trial courts to adopt 
alternative procedures for the admission of classified information in 
accordance with a defendant's fair trial and due process rights, and 
make technical fixes to ensure consistent use of terms throughout the 
statute.
  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 
printed in the Record, as follows:

                                 S. 354

       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

[[Page S754]]

       (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 the 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''; and
       (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.
                                 ______