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H.R. 4767 (114th): State Secrets Protection Act

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The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Mar 16, 2016.


State Secrets Protection Act

This bill declares that the government has a privilege to refuse to give information and to prevent any person from giving information in civil actions in federal or state courts only if the government shows that public disclosure of the information 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.

Courts must take steps, which may include in camera and ex parte hearings and other security procedures, to protect sensitive information that comes before them.

The bill sets forth the court's authority regarding the participation of counsel, appointment of a guardian ad litem to represent an absent litigant's interests, and the disclosure of information when it presents a risk of harm. The bill also provides standards for the court to order the government to produce adequate or nonprivileged substitutes (redacted copies, summary of information, stipulation of facts) for privileged information.

The government may: (1) assert the privilege in connection with any claim in a civil action to which it is a party, or (2) intervene in a civil action to which it is not a party in order to do so.

Once the government has asserted the privilege, and before the court makes any determinations, the court shall: (1) undertake a preliminary review of the information in question, and (2) provide the government an opportunity to seek protective measures under this Act.

The bill establishes procedures and a standard for assessing the privilege claim.

If the court determines that the privilege is not validly asserted, the court must issue appropriate orders regarding the disclosure of the information to a nongovernmental party and its admission at trial, with the right to an interlocutory appeal for any such orders. The bill prohibits such disclosure or admission if the privilege is determined valid.

Courts of appeal are provided jurisdiction of an appeal from a decision or order of a district court determining that the state secrets privilege is not validly asserted, sanctioning a refusal to provide an adequate or nonprivileged substitute, or refusing protective steps sought by the government pending the resolution of the claim of state secrets privilege.