H. R. 5607
IN THE HOUSE OF REPRESENTATIVES
March 13, 2008
Mr. Nadler (for himself, Mr. Petri, Mr. Conyers, and Mr. Delahunt) introduced the following bill; which was referred to the Committee on the Judiciary
To provide safe, fair, and responsible procedures and standards for resolving claims of state secret privilege.
This Act may be cited as the
State Secret Protection Act of
State secret privilege
In any civil action brought in Federal or State court, the Government has a privilege to refuse to give evidence and to prevent any person from giving evidence only if the Government shows that public disclosure of the evidence 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.
Protection of secrets
The court shall take steps to protect sensitive information that comes before the court in connection with proceedings under this Act. These steps may include reviewing evidence or pleadings and hearing arguments ex parte, issuing protective orders, requiring security clearance for parties or counsel, placing material under seal, and applying security procedures established under the Classified Information Procedures Act for classified information to protect the sensitive information.
In camera proceedings
All hearings and other proceedings under this Act may be conducted in camera, as needed to protect information or evidence that may be subject to the privilege.
Participation of counsel
Participation of counsel in proceedings under this Act shall not be limited unless the court determines that the limitation is a necessary step to protect evidence the Government asserts is protected by the privilege or that supports the claim of privilege and that no less restrictive means of protection suffice. The court shall give a written explanation of its decision to the parties and their counsel, which may be placed under seal.
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 section 2 that cannot be addressed through less restrictive means provided in this section, 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.
Assertion of the privilege
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.
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 evidence 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.
Preliminary review by court
Once the Government has asserted the privilege, and before the Court makes any determinations under section 6, 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 Act. After any initial protective measures are in place, the Court shall proceed to the consideration of additional preliminary matters under this section.
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 Act.
Index of materials
The court may order the Government to provide a manageable index of evidence the Government asserts is subject to the privilege. The index must correlate statements made in the affidavit required under this Act with portions of the evidence 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.
After the preliminary review the court shall hold one or more conferences with the parties to—
determine any steps needed to protect sensitive information;
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;
order disclosure of evidence to the court needed to assess the claim, including all evidence the Government asserts is protected by the privilege and other evidence related to the Government’s claim;
resolve any disputes regarding participation of counsel or parties in proceedings relating to the claim, including access to the Government’s evidence and arguments;
set a schedule for completion of discovery related to the Government’s claim; and
take other steps as needed, such as ordering counsel or parties to obtain security clearances.
If the court orders a party or counsel to obtain a security clearance, the Government shall promptly conduct the necessary review and determine whether or not to provide the clearance. If the necessary clearance is not promptly provided to counsel for a party, the party may propose that alternate or additional counsel be cleared. If within a reasonable time, alternative or additional counsel selected by the party cannot be cleared, then the court, in consultation with that party and that party’s counsel, shall appoint another attorney, who can obtain the necessary clearance promptly, to represent the party in proceedings under this Act. When a security clearance for counsel sought under this Act is denied, the court may require the Government to present an ex parte explanation of that denial.
Procedures and standard for assessing the privilege claim
The court shall conduct a hearing to determine whether the privilege claim is valid.
Basis for ruling
The court may not determine that the privilege is valid until the court has reviewed—
except as provided in paragraph (2), all of the evidence that the Government asserts is privileged;
the affidavits, evidence, memoranda and other filings submitted by the parties related to the privilege claim; and
any other evidence that the court determines it needs to rule on the privilege.
Sampling in certain cases
Where the volume of evidence the Government asserts is privileged precludes a timely review of each item of evidence, or the court otherwise determines 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 court’s determination on the privilege claim and the evidence reviewed is sufficient to enable to court to make the independent assessment required by this section.
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 section 2, 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.
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.
Effect of court determination
If the court determines that the privilege is not validly asserted as to an item of evidence, the item may be disclosed to a nongovernmental party or admitted at trial, subject to the other rules of evidence. If the court determines that the privilege is validly asserted as to an item, that item shall not be disclosed to a nongovernmental party or the public.
Court consideration of substitute
If the court finds that the privilege is validly asserted as to an item of material evidence and it is possible to craft a nonprivileged substitute, such as those described in section 3(d), for the privileged evidence 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.
Refusal to provide
In a civil action brought against the Government, if the court orders the Government to provide a nonprivileged substitute for evidence or 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 subsection (d).
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 discovery of nonprivileged evidence and to litigate the issue or claim to which the privileged evidence is relevant without regard to that privileged information.
Appropriate orders in the interest of justice
After reviewing all available evidence, and only after determining that privileged evidence, 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 evidence is relevant, or dismissing a claim or counterclaim.
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 Act.
An appeal taken under this section either before or during trial shall be expedited by the court of appeals.
If an appeal is taken during trial, the district court shall adjourn the trial until the appeal is resolved and the court of appeals—
shall hear argument on appeal as expeditiously as possible after adjournment of the trial by the district court;
may dispense with written briefs other than the supporting materials previously submitted to the trial court;
shall render its decision as expeditiously as possible after argument on appeal; and
may dispense with the issuance of a written opinion in rendering its decision.
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 Act by the Government.
Operation and effectiveness
The Attorney General shall deliver to the committees of Congress described in subsection (a) a report concerning the operation and effectiveness of this Act and including suggested amendments to the Act.
The Attorney General shall submit this report not later than 1 year after the date of enactment of this Act, 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 paragraph (1) as necessary.
Rule of construction
This Act provides the only privilege that may be asserted based on state secrets and the standards and procedures set forth in this Act apply to any assertion of the privilege.
This Act applies to claims pending on or after the date of enactment of this Act. 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—
the motion for relief is filed with the rendering court within one year of the date of enactment of this Act;
the underlying judgment, order, or proceeding from which the party seeks relief was entered after January 1, 2002; and
the claim on which the judgement, order, or proceeding is based is—
against the Government; or
arises out of conduct by persons acting in the capacity of a Government officer, employee, or agent.