[Senate Report 110-442]
[From the U.S. Government Printing Office]



                                                       Calendar No. 938
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-442

======================================================================



 
                      STATE SECRETS PROTECTION ACT

                                _______
                                

                 August 1, 2008.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 2533]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 2533), to enact a safe, fair, and responsible state 
secrets privilege Act, having considered the same, reports 
favorably thereon, with an amendment, and recommends that the 
bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the State Secrets Protection Act.......2
 II. History of the Bill and Committee Consideration.................13
III. Section-by-Section Summary of the Bill..........................15
 IV. Congressional Budget Office Cost Estimate.......................35
  V. Regulatory Impact Evaluation....................................36
 VI. Conclusion......................................................36
VII. Minority Views of Senators Hatch, Grassley, Kyl, Sessions, Graham, 
     Cornyn, Brownback and Coburn....................................37
VIII.Changes to Existing Law Made by the Bill, as Reported...........47


     I. Background and Purpose of the State Secrets Protection Act


               A. BACKGROUND AND NEED FOR THE LEGISLATION

    The ``state secrets privilege'' is a common law rule of 
evidence that the Federal Government can invoke to prevent 
materials from being publicly disclosed in civil court 
proceedings, if the Government establishes that such disclosure 
would harm the Nation. In the early 1970s, Congress considered 
including a state secrets provision in the Federal Rules of 
Evidence, but it ultimately decided not to include any 
privileges.\1\ Although numerous laws govern the handling of 
classified documents and other information that may implicate 
state secrets in specific contexts, the state secrets privilege 
has never been codified in statute.
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    \1\See Louis Fisher, In the Name of National Security: Unchecked 
Presidential Power and the Reynolds Case 141-44 (2006); Robert M. 
Chesney, State Secrets and the Limits of National Security Litigation, 
75 Geo. Wash. L. Rev. 1249, 1292 (2007).
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    The Supreme Court addressed the state secrets privilege at 
length for the first (and last) time in United States v. 
Reynolds,\2\ a 1953 tort suit brought by widows of civilian 
engineers who died in an Air Force plane crash. The Reynolds 
decision has been criticized as internally contradictory and 
excessively deferential to the Executive,\3\ and commentators 
dispute the extent to which it is followed by lower courts 
today.\4\ Nevertheless, it remains the foundational case on the 
privilege and the starting point for judicial review of 
privilege claims. As one commentator describes it, the 
analytical framework established in Reynolds comprises several 
basic principles:
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    \2\345 U.S. 1 (1953).
    \3\See, e.g., Louis Fisher, In the Name of National Security: 
Unchecked Presidential Power and the Reynolds Case (2006); Neil 
Kinkopf, The State Secrets Problem: Can Congress Fix It?, 80 Temp. L. 
Rev. 489, 492-93 (2007); William G. Weaver & Danielle Escontrias, 
Origins of the State Secrets Privilege 57-66 (Feb. 10, 2008) 
(unpublished manuscript), available at http://papers.ssrn.com/
abstract=1079364; Justin Florence & Matthew Gerke, State Your Secrets: 
The Smart Way Around Telecom Immunity, Slate, Nov. 14, 2007, http://
www.slate.com/id/2177962.
    \4\See, e.g., Louis Fisher, Congressional Access to National 
Security Information, 45 Harv. J. on Legis. 219, 220 (2008) (``Federal 
courts vary widely in interpreting their duties when the Executive 
Branch claims [the state secrets] privilege. Some courts insist that 
the trial judge should receive the disputed documents and examine them 
in camera. Others adopt judicial standards ranging from `deference' to 
`utmost deference' to treating the privilege as an `absolute.''' 
(internal citations omitted)); Carrie Newton Lyons, The State Secrets 
Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis & 
Clark L. Rev. 99, 132 (2007) (describing ``deviations from Reynolds'' 
that are ``interfering with the opportunity to pursue claims of 
violations of private and public constitutional rights''); John Cary 
Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell L. 
Rev. 1593, 1597 (2007) (``Have the executive branch's recent assertions 
of the state secrets privilege broken from the doctrinal moorings of 
the Reynolds decision? Yes. * * * [T]he state secrets doctrine has been 
expanded beyond all reason * * *.'').

          (a) the claim of privilege must be formally asserted 
        by the head of the department charged with 
        responsibility for the information; (b) the reviewing 
        court has the ultimate responsibility to determine 
        whether disclosure of the information in issue would 
        pose a ``reasonable danger'' to national security; (c) 
        the court should calibrate the extent of deference it 
        gives to the Executive's assertion with regard to the 
        plaintiff's need for access to the information; (d) the 
        court can personally review the sensitive information 
        on an in camera, ex parte basis if necessary; and (e) 
        once the privilege is found to attach, it is absolute 
        and cannot be overcome by a showing of need or 
        offsetting considerations.\5\
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    \5\Robert M. Chesney, State Secrets and the Limits of National 
Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1251-52 (2007).

    In recent years, the executive branch has asserted the 
privilege more frequently and broadly than before, typically to 
seek dismissal of lawsuits at the pleadings stage.\6\ Facing 
allegations of unlawful Government conduct ranging from 
domestic warrantless surveillance,\7\ to employment 
discrimination,\8\ to retaliation against whistleblowers,\9\ to 
torture and ``extraordinary rendition,''\10\ the Bush-Cheney 
administration has invoked the privilege in an effort to shut 
down civil suits against both Government officials and private 
parties. Courts have largely acquiesced. While there is some 
debate over the extent to which this represents a quantitative 
or qualitative break from past practice, ``[w]hat is 
undebatable * * * is that the privilege is currently being 
invoked as grounds for dismissal of entire categories of cases 
challenging the constitutionality of Government action,''\11\ 
and that a strong public perception has emerged that sees the 
privilege as a tool for Executive abuse. The state secrets 
privilege ``has long been the subject of academic 
criticism,''\12\ but the criticism has escalated dramatically 
and aroused widespread concern. Indeed, in the burgeoning 
literature on the privilege, it is hard to find a single 
positive view on the current state of the law.\13\
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    \6\See William G. Weaver & Robert M. Pallitto, State Secrets and 
Executive Power, 120 Pol. Sci. Q. 85, 101 (2005) (``Use of the state 
secrets privilege in courts has grown significantly over the last 
twenty-five years. In the twenty-three years between the decision in 
Reynolds and the election of Jimmy Carter, in 1976, there were four 
reported cases in which the Government invoked the privilege. Between 
1977 and 2001, there were a total of fifty-one reported cases in which 
courts ruled on invocation of the privilege.''); Scott Shane, Invoking 
Secrets Privilege Becomes a More Popular Legal Tactic by U.S., N.Y. 
Times, June 4, 2006, at A32 (describing recent cases); Scholars' Letter 
to Senate Judiciary Committee 1 (Feb. 12, 2008) (``Although the 
privilege was asserted sparingly over the first few decades of its 
existence, it has been raised with increasing frequency over the past 
twenty years by both Democratic and Republican administrations. The 
privilege has been cited not only as grounds for withholding evidence, 
but also as a basis for the immediate dismissal, prior to discovery, of 
entire categories of cases challenging the legality of executive 
conduct.'').
    \7\See, e.g., Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 
F.3d 644 (6th Cir. 2007), cert. denied, 128 S. Ct. 1334 (2008); Al-
Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007); 
Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. Ill. 2006); Hepting v. 
AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006).
    \8\See, e.g., Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005), 
cert. denied sub nom Sterling v. Goss, 546 U.S. 1093 (2006).
    \9\See, e.g., Edmonds v. U.S. Dep't of Justice, 323 F. Supp. 2d 65 
(D.D.C. 2004).
    \10\See, e.g., El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 
2006), aff'd 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 
(2007); Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006); Mohamed 
v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008).
    \11\Amanda Frost, The State Secrets Privilege and Separation of 
Powers, 75 Fordham L. Rev. 1931, 1950 (2007). Professor Robert Chesney 
has argued that ``that the Bush administration does not differ 
qualitatively from its predecessors in its use of the privilege, which 
since the early 1970s has frequently been the occasion for abrupt 
dismissal of lawsuits alleging government misconduct.'' Robert M. 
Chesney, State Secrets and the Limits of National Security Litigation, 
75 Geo. Wash. L. Rev. 1249, 1249 (2007); see also id. (``I also 
conclude that the quantitative inquiry serves little purpose in light 
of variation in the number of occasions for potential invocation of the 
privilege from year to year.''). Other scholars dispute this 
contention. See, e.g., Frost, supra, at 1939-40 (``T]he Bush 
Administration's recent assertion of the privilege differs from past 
practice in that it is seeking blanket dismissal of every case 
challenging the constitutionality of specific, ongoing government 
programs. In comparison, the government responded to lawsuits brought 
in the 1970s and 1980s challenging its warrantless surveillance 
programs by seeking to limit discovery, and only rarely filed motions 
to dismiss the entire litigation. The current practice is thus 
unique.'' (internal citation omitted)); Meredith Fuchs, Judging 
Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 
58 Admin. L. Rev. 131, 134 (2006) (``In the courts, the government has 
dramatically increased use of potent litigation tactics such as motions 
to dismiss lawsuits on the basis of state secrets privilege.''); John 
Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell 
L. Rev. 1593, 1598 (2007) (``The state secrets doctrine is quickly 
becoming an additional and almost-impermeable immunity doctrine * * 
*.''); William G. Weaver & Robert M. Pallitto, State Secrets and 
Executive Power, 120 Pol. Sci. Q. 85, 109 (2005) (``[R]ecent cases 
indicate that Bush administration lawyers are using the privilege with 
offhanded abandon.''); see also Letter from William G. Weaver, 
Associate Professor, University of Texas at El Paso, and Danielle 
Escontrias to Senator Kennedy (Feb. 8, 2008) (disputing Professor 
Chesney's methodology and conclusions).
    \12\Robert M. Chesney, State Secrets and the Limits of National 
Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1267 n.113 (2007) 
(providing numerous citations).
    \13\See Michael H. Page, Note, Judging Without the Facts: A 
Schematic for Reviewing State Secrets Privilege Claims, 93 Cornell L. 
Rev. (forthcoming 2008) (noting that ``[c]ommentators have almost 
universally criticized the state secrets privilege'' and that ``[m]any 
commentators have criticized the courts for being overly deferential to 
the government's claims of privilege'' and providing citations). 
Examples of recent critiques include Louis Fisher, In the Name of 
National Security: Unchecked Presidential Power and the Reynolds Case 
chs. 7-8 (2006); Timothy Casey, Electronic Surveillance and the Right 
To Be Secure, 41 U.C. Davis L. Rev. 977, 1024-25 (2008); Amanda Frost, 
The State Secrets Privilege and Separation of Powers, 75 Fordham L. 
Rev. 1931 (2007); Lisa Graves, Ten Questions: Responses of Lisa Graves, 
33 Wm. Mitchell L. Rev. 1619, 1622-23 (2007); Neil Kinkopf, The State 
Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489 (2007); 
Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope 
Through Government Misuse, 11 Lewis & Clark L. Rev. 99 (2007); John 
Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell 
L. Rev. 1593, 1597-99 (2007); D.A. Jeremy Telman, Our Very Privileged 
Executive: Why the Judiciary Can (and Should) Fix the State Secrets 
Privilege, 80 Temp. L. Rev. 499 (2007); David C. Vladeck, Litigating 
National Security Cases in the Aftermath of 9/11, 2 J. Nat'l Security 
L. & Pol'y 165, 186-92 (2006); William G. Weaver & Robert M. Pallitto, 
State Secrets and Executive Power, 120 Pol. Sci. Q. 85 (2005); Robyn 
Blumner, Injustice Hides Behind Badge of Security, St. Petersburg 
Times, Feb. 10, 2008, at 5P; Susan Burgess, Cases Without Courts, News 
Media & L., July 1, 2006, at 32; Editorial, Privileged Tyranny, Daytona 
News-J., Mar. 13, 2008, at A4; Editorial, Secrets and Rights, N.Y. 
Times, Feb. 2, 2008, at A18; Editorial, Secure Lawsuits, Wash. Post, 
Mar. 6, 2008, at A20; Editorial, What's a Secret?, Wash. Post, Apr. 11, 
2008, at A20; Editorial, Whose Privilege?, N.Y. Times, Apr. 18, 2008, 
at A24; Bruce Fein, State Secrets Abuse, Wash. Times, Mar. 13, 2007, at 
A16; Justin Florence & Matthew Gerke, State Your Secrets, Slate, Nov. 
14, 2007, http://www.slate.com/id/2177962; Henry Lanman, Secret 
Guarding, Slate, May 22, 2006, http://www.slate.com/id/2142155; Ben 
Wizner, Shielded by Secrecy, L.A. Times, Feb. 14, 2008, at A25.
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    One line of criticism has emphasized the lack of uniformity 
in judicial review of privilege claims, and the confusion and 
uncertainty this invites. For several decades, Congress has 
provided procedures to govern the use of sensitive national 
security evidence under the Classified Information Procedures 
Act (``CIPA''),\14\ the Freedom of Information Act 
(``FOIA''),\15\ and the Foreign Intelligence Surveillance Act 
(``FISA'').\16\ Yet, with only a single ambiguous Supreme Court 
decision from the 1950s to guide them,\17\ lower courts have 
been taking disparate approaches when faced with a claim of the 
state secrets privilege. The Supreme Court has declined to 
intervene.\18\ As a result, the courts have reached 
inconsistent results, and litigants have been left to 
``flounder under the ad hoc procedures and varying standards 
employed by the courts today.''\19\
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    \14\18 U.S.C. app. 3 Sec. Sec. 1-16 (2000).
    \15\5 U.S.C. Sec. 552 (2000).
    \16\50 U.S.C. Sec. Sec. 1801-1811 (2000).
    \17\See supra note 4 and accompanying text; see also William G. 
Weaver & Danielle Escontrias, Origins of the State Secrets Privilege 68 
(Feb. 10, 2008) (unpublished manuscript), available at http://
papers.ssrn.com/abstract=1079364 (``[T]he decision in Reynolds is 
devoid of policy, theory, or principles to guide lower courts.'').
    \18\See Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 
644 (6th Cir. 2007), cert. denied, 128 S. Ct. 1334 (2008); El-Masri v. 
Tenet, 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 
(2007).
    \19\Scholars' Letter to Senate Judiciary Committee 2 (Feb. 12, 
2008); see also Examining the State Secrets Privilege: Protecting 
National Security While Preserving Accountability, Hearing before the 
S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (statement of 
Patricia M. Wald) (explaining that ``there has not been uniformity in 
the case law surrounding what the judges should do in administering the 
privilege'' and stating that it would ``be helpful to [judges] to have 
a protocol, to have a series of steps they must go forward with * * * 
[to] produce more uniform results''); Examining the State Secrets 
Privilege: Protecting National Security While Preserving 
Accountability, Hearing before the S. Comm. on the Judiciary, 110th 
Cong. (Feb. 13, 2008) (prepared statement of H. Thomas Wells, Jr., 
President-Elect, American Bar Association) (``Courts have been required 
to evaluate [claims of the state secrets] privilege without the benefit 
of statutory guidance or clear precedent. This has resulted in the 
application of inconsistent standards and procedures in determinations 
regarding the applicability of the privilege.''); Letter from Michael 
W. Macleod-Ball & Michael German, Am. Civil Liberties Union, to 
Senators Patrick Leahy and Arlen Specter 3 (Apr. 2, 2008) (lamenting 
the ``substantial confusion in the lower courts regarding both when the 
privilege properly may be invoked, and what precisely the privilege may 
be invoked to protect,'' as well as regarding ``how deeply a court must 
probe the government's claim of the privilege, and what, exactly, the 
court must examine in assessing a privilege claim'').
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    Furthermore, some Federal courts have viewed assertions of 
the privilege as a virtual ``automatic win'' for the 
Government. Courts have refused to review key pieces of 
allegedly privileged evidence, given unwarranted deference to 
the executive branch on the danger of disclosure, upheld claims 
of state secrets even when the purported secrets were publicly 
available, and dismissed lawsuits at the pleadings stage, 
without considering any evidence at all.\20\ Scholars have 
found that courts have required in camera inspection of 
allegedly privileged documents in fewer than one-third of the 
reported cases in which the privilege has been invoked, and 
that this proportion is declining.\21\ As a result, ``even 
though the Reynolds case held that `judicial control over the 
evidence in a case cannot be abdicated to the caprice of 
executive officers,' the practical effect of the decision [has 
been] to cause precisely that result.''\22\ When courts fail to 
scrutinize assertions of the privilege, they leave open the 
possibility that the privilege will be used to cover up 
Government wrongdoing, thereby denying justice to litigants and 
giving the executive branch the ability to violate statutes and 
constitutional rights with impunity.
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    \20\The controversial El-Masri decision, for example, featured each 
of these practices. See El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. 
Va. 2006), aff'd 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 
373 (2007); see also Editorial, Supreme Disgrace, N.Y. Times, Oct. 11, 
2007, at A30 (excoriating the Supreme Court for denying Mr. El-Masri's 
petition for certiorari and observing that the state secrets privilege 
``was originally intended to shield specific evidence in a lawsuit 
filed against the government'' and ``was never designed to dictate 
dismissal of an entire case before any evidence is produced'').
    \21\William G. Weaver & Robert M. Pallitto, State Secrets and 
Executive Power, 120 Pol. Sci. Q. 85, 101 (2005).
    \22\Id. (quoting United States v. Reynolds, 345 U.S. 1, 9-10 
(1953)); see also William G. Weaver & Danielle Escontrias, Origins of 
the State Secrets Privilege 65-66 (Feb. 10, 2008) (unpublished 
manuscript), available at http://papers.ssrn.com/abstract=1079364 (``It 
is difficult to conclude other than that courts have simply abandoned 
the field of a contentious area of law.'').
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    The pitfalls of such extreme deference to the executive 
branch can be seen in United States v. Reynolds,\23\ the very 
case that serves as the basis for privilege doctrine to this 
day. In Reynolds, the widows of the deceased B-29 crew members 
asked to see the Government's accident report. Citing the state 
secrets privilege, the Government refused to turn it over. The 
Supreme Court accepted the executive branch's assertion that 
the accident report contained references to secret electronic 
equipment and refused to allow the report to be considered as 
evidence, without ever looking at the report itself.
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    \23\345 U.S. 1 (1953).
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    When the accident report was declassified in the 1990s, it 
turned out that it did not contain any references to secret 
electronic equipment--but it did contain embarrassing 
information revealing Government negligence (that the plane 
lacked standard safeguards to prevent the engine from 
overheating).\24\ The notion that the entire report constituted 
a state secret was thrown into serious doubt. As summarized by 
Louis Fisher, Specialist in Constitutional Law at the Library 
of Congress and the leading expert on the Reynolds case: 
``Instead [of looking at the disputed documents], the Court 
relied entirely on assertions by executive officials about the 
content of the documents. We now know, by looking at the 
documents, that they contain no state secrets. The Court was 
misled by the executive branch and allowed itself to be 
misled.''\25\
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    \24\See Louis Fisher, In the Name of National Security: Unchecked 
Presidential Power and the Reynolds Case (2006).
    \25\Examining the State Secrets Privilege: Protecting National 
Security While Preserving Accountability, Hearing before the S. Comm. 
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of 
Louis Fisher). The decedents' families recently tried to have their 
lawsuit reopened on the basis of fraud on the court, but their petition 
was denied on account of the high bar to overcoming judicial finality. 
Herring v. United States, 2004 WL 2040272 (E.D. Pa. Sept. 10, 2004), 
aff'd 424 F.3d 384 (3d Cir. 2005), cert. denied 547 U.S. 1123 (2006).
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    As use of the privilege has expanded and criticism has 
grown, public confidence has suffered. Mistrust of the 
privilege breeds cynicism and suspicion about the national 
security activities of the U.S. Government, and it causes 
Americans to lose respect for the notion of legitimate state 
secrets. Perversely, overuse of the privilege may undermine 
national security by making those with access to sensitive 
information more likely to release it. As one former CIA 
officer stated recently: ``There will finally be an instance 
where you've cried `state secrets' so many times that [no one 
will] believe it anymore, and potentially something that is a 
state secret will get out.''\26\
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    \26\Patrick Radden Keefe, State Secrets: A Government Misstep in a 
Wiretapping Case, New Yorker, Apr. 28, 2008, at 28; see also Report of 
the Commission on Protecting and Reducing Government Secrecy, S. Doc. 
No. 105-2, at 8 (1997) (``As the scope of secrecy grows * * *, the 
prospect for leaks--deliberate releases of classified information, 
nearly always on an anonymous basis--grows as well. Secrets become 
vulnerable to betrayal, often from high in the chain of command; this 
in turn promotes greater disrespect for the system itself.'').
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    In response to these concerns, many have called on Congress 
to provide guidance to the judiciary and the executive branch 
on use of the privilege. The American Bar Association issued a 
report ``urg[ing] Congress to enact legislation governing 
federal civil cases implicating the state secrets 
privilege.''\27\ The bipartisan Constitution Project found that 
``legislative action [on the privilege] is essential to restore 
and strengthen the basic rights and liberties provided by our 
constitutional system of government.''\28\ A letter on the 
privilege sent to Congress by leading constitutional scholars 
concluded that there ``is a need for new rules designed to 
protect the system of checks and balances, individual rights, 
national security, fairness in the courtroom, and the adversary 
process.''\29\ Patricia M. Wald, former Chief Judge of the D.C. 
Circuit, testified that ``[t]here is a wide consensus in the 
legal community'' that Congress should prescribe regulations on 
the privilege, and that ``[t]he time is now ripe for such 
legislation.''\30\
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    \27\Am. Bar Ass'n, Report to the House of Delegates 1 (Revised 
Report 116A) (2007).
    \28\Constitution Project, Reforming the State Secrets Privilege, at 
ii (2007).
    \29\Scholars' Letter to Members of Congress 3-4 (Oct. 4, 2007).
    \30\Examining the State Secrets Privilege: Protecting National 
Security While Preserving Accountability, Hearing before the S. Comm. 
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of 
Patricia M. Wald).
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    Courts and scholars have debated the origins of the 
privilege\31\ and whether it is a ``mere'' common law rule or 
whether it also has some foundation in the Constitution, 
notwithstanding the lack of explicit textual or historical 
support for such a view.\32\ Regardless of whether the 
privilege has any constitutional dimension, however, there is 
widespread agreement that Congress has constitutional authority 
to regulate the privilege,\33\ based on its Article III powers 
to set rules of procedure and evidence for the Federal 
courts,\34\ its Article I powers related to national security 
and foreign affairs,\35\ and the Necessary and Proper 
Clause.\36\ Article II is not the only relevant part of the 
Constitution. Even if the state secrets privilege were in some 
respect ``rooted'' in our constitutional structure,\37\ there 
is no bar to Congress, using its own authorities rooted in the 
Constitution, exercising concurrent authority over the 
protection of state secrets or providing rules for 
implementation of the privilege. Congress has passed numerous 
statutes regulating judicial proceedings that deal with 
national security information, such as the Classified 
Information Procedures Act, the Freedom of Information Act, and 
the Foreign Intelligence Surveillance Act, none of which has 
ever faced a successful constitutional challenge.\38\
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    \31\See, e.g., In re United States, 872 F.2d 472, 474 (D.C. Cir. 
1989) (``[T]he exact origins of the privilege are not certain * * 
*.''); Robert M. Chesney, State Secrets and the Limits of National 
Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1270-1308 (2007) 
(tracing the history of the privilege); William G. Weaver & Danielle 
Escontrias, Origins of the State Secrets Privilege (Feb. 10, 2008) 
(unpublished manuscript), available at http://papers.ssrn.com/
abstract=1079364 (locating the origins of the privilege in English 
crown prerogative).
    \32\Compare United States v. Reynolds, 345 U.S. 1, 6 (1953) 
(stating that preclusive Executive Branch assertions of the privilege 
have ``constitutional overtones which we find it unnecessary to pass 
upon''); and Robert M. Chesney, State Secrets and the Limits of 
National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1309-10 
(2007) (suggesting that the privilege has a ``constitutional core 
surrounded by a revisable common-law shell''); with Reynolds, 345 U.S. 
at 6-7 (describing the privilege as ``well established in the law of 
evidence'' (emphasis added)); Monarch Assur. P.L.C. v. United States, 
244 F.3d 1356, 1358 (Fed. Cir. 2001) (describing the ``common-law state 
secrets privilege''); Kasza v. Browner, 133 F.3d 1159, 1165 (9th Cir. 
1998) (describing the privilege as ``a common law evidentiary privilege 
that allows the government to deny discovery of military secrets''); In 
re United States, 872 F.2d 472, 474 (D.C. Cir. 1989) (describing the 
privilege as ``a common law evidentiary rule''); and Fed R. Evid. 501 
notes of Committee on the Judiciary, H. Rep. No. 93-650 (describing the 
``secrets of state'' privilege as one of nine ``nonconstitutional 
privileges'' that the Supreme Court submitted to Congress). In United 
States v. Nixon, 418 U.S. 683, 708 (1974), the Supreme Court stated 
that the presidential communications privilege is ``inextricably rooted 
in the separation of powers under the Constitution,'' but the Court has 
never made any comparable pronouncement on the state secrets privilege.
    \33\See, e.g., Am. Bar Ass'n, Report to the House of Delegates 1 
(Revised Report 116A) (2007) (analogizing to the Classified Information 
Procedures Act in urging Congress to enact legislation on the 
privilege); Constitution Project, Reforming the State Secrets Privilege 
14 (2007) (asserting that ``our constitutional system of checks and 
balances'' will be jeopardized unless Congress enacts legislation on 
the privilege); Amanda Frost, The State Secrets Privilege and 
Separation of Powers, 75 Fordham L. Rev. 1931, 1932-33, 1951-56 (2007) 
(stating that, in this area as in others, ``Congress's power to confer 
jurisdiction permits Congress to work together with courts to police 
the activities of the executive branch''); Neil Kinkopf, The State 
Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489, 494-98 
(2007) (cataloguing constitutional ``powers [that] provide a strong 
basis for Congress to respond to the growing problems raised by the 
state secrets privilege''); Examining the State Secrets Privilege: 
Protecting National Security While Preserving Accountability, Hearing 
before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) 
(statement of Louis Fisher) (``Congress has all the legitimacy in the 
world to provide the guidelines [on judicial review of the 
privilege].''); id. (statement of Robert Chesney) (``The power to 
regulate, I think it's clearly within the constitutional power of 
Congress to create rules that will govern the process of the privilege, 
and so on and so forth.''); Letter from Aziz Huq and Emily Berman, 
Brennan Center for Justice, to David Pozen 2-4 (Apr. 3, 2008) 
(explaining why, even assuming arguendo that the privilege is 
constitutionally based, ``state secrets legislation would not trench on 
Article II authority''). Cf. Herbert v. Lando, 441 U.S. 153, 175 (1979) 
(``Evidentiary privileges in litigation are not favored, and even those 
rooted in the Constitution must give way in proper circumstances.'' 
(citing United States v. Nixon, 418 U.S. 683 (1974)); Youngstown Sheet 
& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., 
concurring) (observing that, in matters of national security as in all 
others, the President's power to pursue a course of action is 
diminished to the extent that Congress regulates that action pursuant 
to its constitutional authorities).
    \34\U.S. Const. art. III, Sec. 2, cl. 2 (expressly granting 
Congress the power to enact ``Regulations'' concerning the jurisdiction 
of Federal courts); see also Dickerson v. United States, 530 U.S. 428, 
437 (2000) (``Congress retains the ultimate authority to modify or set 
aside any judicially created rules of evidence and procedure that are 
not required by the Constitution.''); Sibbach v. Wilson & Co., 312 U.S. 
1, 9-10 (1941) (``Congress has undoubted power to regulate the practice 
and procedure of federal courts * * *.'').
    \35\See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773-74 (2006) 
(discussing the enumerated powers granted to Congress in a time of 
war); Hamdi v. Rumsfeld, 542 U.S. 507, 582 (2004) (Thomas, J., 
dissenting) (noting Congress's ``substantial and essential role in both 
foreign affairs and national security''); Afroyim v. Rusk, 387 U.S. 
253, 256 (1967) (reaffirming that ``Congress has an implied power to 
deal with foreign affairs as an indispensable attribute of 
sovereignty''); Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964) 
(``That Congress under the Constitution has power to safeguard our 
Nation's security is obvious and unarguable.''); Letter from 23 
Constitutional Law Scholars to Congress at 2, 6, available at http://
www.law.duke.edu/features/pdf/congress_power_letter.pdf (cataloguing 
the ``extensive powers relating to war'' explicitly granted by the 
Constitution to Congress and explaining the Supreme Court's consistent 
reliance on Justice Jackson's concurrence in Youngstown Sheet & Tube 
Co. v. Sawyer to require the President to comply with applicable 
statutory limits in wartime); see also Hamdi, supra, 542 U.S. at 536 
(``Whatever power the United States Constitution envisions for the 
Executive in its exchanges with other nations or with enemy 
organizations in times of conflict, it most assuredly envisions a role 
for all three branches when individual liberties are at stake.'').
    \36\U.S. Const. art. I, Sec. 8, cl. 18.
    \37\This Administration and recent predecessors have relied heavily 
on Department of Navy v. Egan, 484 U.S. 518 (1988), for the proposition 
that statutes regulating the disclosure of sensitive national security 
information may raise constitutional concerns. See David J. Barron & 
Martin S. Lederman, The Commander in Chief at the Lowest Ebb--A 
Constitutional History, 121 Harv. L. Rev. 941, 1084-85 (2008) 
(providing recent examples). However, the Supreme Court's statement in 
Egan that ``unless Congress specifically has provided otherwise, courts 
traditionally have been reluctant to intrude upon the authority of the 
Executive in military and national security affairs,'' 484 U.S. at 530 
(emphasis added), plainly implies that Congress possesses the 
constitutional authority to pass such regulations. It is also 
instructive to note that the Court in Egan appears to have adopted this 
formulation from the Justice Department itself, which argued in its 
brief that ``[a]bsent an unambiguous grant of jurisdiction by Congress, 
courts have traditionally been reluctant to intrude upon the authority 
of the executive in military and national security affairs.'' Brief for 
the Petitioner at 21, Egan, 484 U.S. 518 (1988) (No. 86-1552) (emphasis 
added).
    \38\In July 21, 2008, remarks to the American Enterprise Institute, 
Attorney General Michael Mukasey endorsed legislative intervention in 
cases implicating national security when there exists a ``serious risk 
of inconsistent rulings and considerable uncertainty,'' and noted that 
congressional action to provide procedures in national security cases 
is ``well within the historic role and competence of Congress.'' Att'y 
Gen. Michael B. Mukasey, Speech at the American Enterprise Institute 
for Public Policy Research (July 21, 2008), available at http://
www.usdoj.gov/ag/speeches/2008/ag-speech-0807213.html. Although he was 
proposing action in another setting, the Attorney General's arguments 
likewise support legislation to standardize and clarify the procedures 
governing the state secrets privilege.
---------------------------------------------------------------------------
    In response to the growing concerns about the state secrets 
privilege, Senator Kennedy, Senator Specter, and Senator Leahy 
introduced the State Secrets Protection Act to provide a 
systematic approach to the privilege and thereby bring 
stability, predictability, and clarity to this area of the law 
and restore the public trust in Government and the courts. In 
introducing the bill, Senator Kennedy remarked:

          [In recent years], use of the state secrets privilege 
        has dramatically increased--and the harmful 
        consequences of its irregular application by courts 
        have become painfully clear.
          Injured plaintiffs have been denied justice; courts 
        have failed to address fundamental questions of 
        constitutional rights and separation of powers; and 
        confusion pervades this area of law. The Senate debate 
        on reforming the Foreign Intelligence Surveillance Act 
        has become far more difficult than it ought to be, 
        because many believe that if courts hear lawsuits 
        against telecommunications companies, the courts will 
        be unable to deal fairly and effectively with the 
        Government's invocation of the privilege.
          Studies show that the Bush administration has raised 
        the privilege in over 25% more cases per year than 
        previous administrations, and has sought dismissal in 
        over 90% more cases. As one scholar recently noted, 
        this administration has used the privilege to ``seek 
        blanket dismissal of every case challenging the 
        constitutionality of specific, ongoing government 
        programs'' related to its war on terrorism, and as a 
        result, the privilege is impairing the ability of 
        Congress and the judiciary to perform their 
        constitutional duty to check Executive power.
          Another leading scholar recently found that ``in 
        practical terms, the state secrets privilege never 
        fails.'' Like other commentators, he concluded that 
        ``the state secrets privilege is the most powerful 
        secrecy privilege available to the president,'' and 
        ``the people of the United States have suffered 
        needlessly because the law is now a servant to 
        executive claims of national security.''
          In 1980, Congress enacted the Classified Information 
        Procedures Act (CIPA) to provide Federal courts with 
        clear statutory guidance on handling secret evidence in 
        criminal cases. For almost 30 years, courts have 
        effectively applied that law to make criminal trials 
        fairer and safer. During that period, Congress has also 
        regulated judicial review of national security 
        materials under the Foreign Intelligence Surveillance 
        Act and the Freedom of Information Act. Because of 
        these laws, Federal judges regularly review and handle 
        highly classified evidence in many types of cases.
          Yet in civil cases, litigants have been left behind. 
        Congress has failed to provide clear rules or standards 
        for determining whether evidence is protected by the 
        state secrets privilege. We've failed to develop 
        procedures that will protect injured parties and also 
        prevent the disclosure of sensitive information. 
        Because use of the state secrets privilege has 
        escalated in recent years, there's an increasing need 
        for the judiciary and the Executive to have clear, 
        fair, and safe rules.\39\
---------------------------------------------------------------------------
    \39\154 Cong. Rec. S198 (daily ed. Jan. 23, 2008) (statement of 
Sen. Kennedy).

---------------------------------------------------------------------------
    On the same occasion, Senator Specter remarked:

          Senator Kennedy and I are introducing this bipartisan 
        bill in order to harmonize the law applicable in cases 
        involving the executive branch's invocation of the 
        privilege. This bill is timely for several reasons. 
        First, the use of the privilege appears to be on the 
        rise in the post-September 11, 2001, era, which has 
        generated new public attention and concern about its 
        legitimacy. Second, there is some disparity among the 
        district and appellate court opinions analyzing the 
        privilege, particularly as to the question of whether 
        courts must independently review the allegedly 
        privileged evidence. Finally, a codified test for 
        evaluating state secrets that requires courts to review 
        the evidence in camera--a Latin phrase meaning ``in the 
        judge's private chambers''--will help to reassure the 
        public that the claims are neither spurious nor 
        intended to cover up alleged Government misconduct. 
        With greater checks and balances and greater 
        accountability, there is a commensurate increase in 
        public confidence in our institutions of Government.
          In view of its increasing use, inconsistent 
        application, and public criticism, we think the time is 
        ripe to pass legislation codifying standards on the 
        state secrets privilege. Our bill builds upon proposals 
        by the American Bar Association and legal scholars who 
        have called upon Congress to legislate in this 
        area.\40\
---------------------------------------------------------------------------
    \40\154 Cong. Rec. S199 (daily ed. Jan. 23, 2008) (statement of 
Sen. Specter).

    At the Judiciary Committee's hearing on the state secrets 
---------------------------------------------------------------------------
privilege, in his opening statement, Chairman Leahy noted:

    The state secrets privilege has been used in recent years 
to stymie litigation at its very inception in cases alleging 
egregious Government misconduct, such as extraordinary 
rendition and warrantless eavesdropping on the communications 
of American citizens. Reflecting on recent state secrets 
litigation, The New York Times has observed: ``To avoid 
accountability, [the Bush] administration has repeatedly sought 
early dismissal of lawsuits that might finally expose 
government misconduct, brandishing flimsy claims that going 
forward would put national security secrets at risk.''
    The clearest example of the state secrets privilege short-
circuiting litigation is the 2006 case of Khaled El-Masri. Mr. 
El-Masri, a German citizen of Lebanese descent, alleged that he 
was kidnapped on New Year's Eve in 2003 in Macedonia, and 
transported against his will to Afghanistan, where he was 
detained and tortured as part of the Bush administration's 
extraordinary rendition program. He sued the Government over 
his alleged detention and harsh treatment. A district court 
judge in Virginia dismissed the entire lawsuit on the basis of 
an ex parte declaration from the Director of the CIA and 
despite the fact that the Government has 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 Government has also asserted the state secrets 
privilege in the litigation over the warrantless wiretapping of 
Americans that took place for more than five years. There, a 
district court judge has rejected the Government's claim that 
the very subject matter at issue was a state secret, but the 
Government is appealing.
    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.

           *       *       *       *       *       *       *

    Secrecy can be important to national security, but it can 
also deprive the American people of their ability to judge the 
effectiveness of their Government on national security matters. 
It is critical that Federal judges not abdicate their role in 
our system of checks and balances as a check on the 
Executive.\41\
---------------------------------------------------------------------------
    \41\Statement of Senator Patrick Leahy (Feb 13, 2008), http://
leahy.senate.gov/press/200802/021308a.html.
---------------------------------------------------------------------------

                         B. LEGISLATIVE INTENT

    The State Secrets Protection Act allows the United States 
to preserve its commitment to constitutional rights and the 
rule of law, without compromising its national defense or 
foreign policy objectives. Rather than invent new tools or 
procedures for Federal courts in reviewing claims of the state 
secrets privilege, the bill draws on existing practices to make 
judicial review more regular and more rigorous--and to protect 
all legitimate state secrets. As the original co-sponsors of 
the bill explained in a letter to Senate colleagues:

    The [State Secrets Protection] Act recognizes that state 
secrets must be protected, and it enables the executive branch 
to avoid publicly revealing evidence if doing so might disclose 
a state secret. Secure judicial proceedings and other 
safeguards that have proven effective under CIPA and the 
Freedom of Information Act will ensure that the litigation does 
not reveal state secrets.
    At the same time, the State Secrets Protection Act will 
prevent the executive branch from using the privilege to deny 
parties their day in court or shield illegal activity that is 
not actually sensitive * * *.

           *       *       *       *       *       *       *

    The State Secrets Protection Act requires courts to 
consider evidence for which the privilege is claimed, in order 
to determine whether the executive branch has validly invoked 
the privilege. It gives parties an opportunity to make a 
preliminary case with their own evidence before a lawsuit is 
dismissed, and it allows courts to develop solutions to let 
lawsuits proceed, such as directing the Government to produce 
non-privileged substitutes for secret evidence. Many of these 
powers are already available to courts, but they often go 
unused.
    The Act also draws on CIPA to include provisions for 
congressional oversight and expedited interlocutory appeal.\42\
---------------------------------------------------------------------------
    \42\Letter from Senator Kennedy, Senator Leahy and Senator Specter 
to Senate Colleagues (Feb. 25, 2008).

    In prescribing rules for judicial review of the state 
secrets privilege, the bill seeks to accomplish the following 
general goals:
     The bill provides a uniform set of procedures for 
Federal courts faced with assertions of the state secrets 
privilege, promoting clarity, predictability, and fairness in 
judicial review of these claims.
     The bill codifies many of the best practices that 
are already available to courts but that often go unused, such 
as in camera hearings, non-privileged substitutes, and special 
masters.
     The bill requires judges to look at the evidence 
that the Government claim is privileged, rather than rely 
solely on Government affidavits, so that the privilege is not 
abused by the executive branch to cover up information that is 
not actually sensitive.
     The bill forbids judges from dismissing cases at 
the pleadings stage on the basis of the privilege. This makes 
clear that the state secrets privilege is an evidentiary rule, 
not a justiciability rule, and can only be asserted with 
respect to items of evidence that plaintiffs seek in discovery 
or intend to disclose in litigation. At the same time, the bill 
protects innocent defendants by allowing cases to be dismissed 
when privileged evidence would be needed to establish a valid 
defense.
     The bill gives plaintiffs a chance to make a 
preliminary case using evidence they have gathered on their 
own.
     The bill preserves the adversarial process--and 
the truth-seeking function of that process--to the fullest 
extent possible consistent with the protection of national 
security.
     The bill instructs courts to order the Government 
to produce non-privileged substitutes for privileged evidence, 
when this is possible, to allow cases to go forward safely.
     The bill instructs courts to avoid excessively 
deferential standards of review and to retain full control over 
privilege determinations. This approach rejects a line of 
judicial precedent that applies ``utmost deference'' to the 
executive branch; the Government's assertions deserve weight 
and respect, but they do not deserve a reprieve from the 
rigorous, independent judicial scrutiny demanded by our 
adjudicatory system.
     The bill puts in place numerous security 
procedures, including closed hearings, security clearance 
requirements, and sealed orders, to ensure that secrets do not 
leak out during litigation.
     The bill sets reporting requirements to ensure 
that Congress stays informed on use of the privilege and can 
take corrective action if necessary.
     The bill solves the crisis of legitimacy currently 
surrounding the privilege, by setting clear rules that take 
into account both constitutional and policy considerations.
    The judicial review procedures set forth in the bill to 
accomplish these goals are discussed in detail below. The major 
steps in the process may be summarized as follows:
     The Government may assert the privilege to 
withhold information in discovery or to prevent the disclosure 
of information in litigation. The assertion is made through an 
affidavit signed by the head of the relevant agency and 
submitted to the court. An unclassified version of the 
affidavit must be made public.
     The Government must then submit the evidence (or, 
in certain situations, a sampling of the evidence) to the court 
for in camera review, along with a document index to facilitate 
the review.
     The court holds a hearing to assist in its 
examination of the evidence and to determine the validity of 
the state secrets claim. The hearing shall be conducted in 
camera unless the only issues to be determined are issues of 
law, and a public hearing would not risk disclosure of state 
secrets. Based upon its prior review of the evidence, the court 
determines whether to conduct the hearing ex parte as well as 
in camera. The hearing may be conducted ex parte only if the 
court determines that the interests of justice and national 
security cannot adequately be protected through less 
restrictive measures, including limiting attendance at the 
hearing to attorneys with appropriate security clearances, 
appointing a guardian ad litem with the necessary security 
clearance, or issuing protective orders.
     The court may appoint a special master or other 
independent advisor to assist it in understanding the evidence 
and arguments and in determining whether the evidence is 
privileged.
     If the court determines that evidence is 
privileged, the evidence itself may not be disclosed. However, 
if the court determines that it is possible for the Government 
to craft a non-privileged substitute for the evidence, the 
court shall order the Government to do so. If the Government 
refuses, the court shall resolve the disputed issue of fact or 
law to which the evidence pertains in the non-Government 
party's favor.
     After issuing its determination on all claims of 
privilege and reviewing all pertinent evidence, the court may 
dismiss the case or claim on the basis of the state secrets 
privilege only if it determines that it would be impossible to 
proceed fairly with a non-privileged substitute for the 
privileged evidence, dismissal will not harm national security, 
and disclosure of the privileged evidence would be necessary to 
the pursuit of a valid defense.
     The court's determinations shall be subject to 
interlocutory appeal.

          II. History of the Bill and Committee Consideration 


                      A. INTRODUCTION OF THE BILL

    Senators Kennedy, Specter and Leahy introduced S. 2533, the 
State Secrets Protection Act, on January 22, 2007. The bill was 
referred to the Committee on the Judiciary. Since the bill's 
introduction and prior to its Committee consideration, Senators 
Feingold, Whitehouse, Webb, Clinton, Dodd, McCaskill, Schumer, 
and Biden joined as cosponsors.

                       B. COMMITTEE CONSIDERATION

    On February 13, 2008, Chairman Leahy chaired a Committee 
hearing on ``Examining the State Secrets Privilege: Protecting 
National Security While Preserving Accountability.'' Testifying 
on Panel I was Carl J. Nichols, Deputy Assistant Attorney 
General, U.S. Department of Justice, Civil Division. Testifying 
on Panel II were the Honorable Patricia M. Wald, former Chief 
Judge, U.S. Court of Appeals for the D.C. Circuit; Louis 
Fisher, Specialist in Constitutional Law, Law Library of the 
Library of Congress; Robert M. Chesney, Associate Professor, 
Wake Forest University School of Law; and Michael Vatis, 
Partner, Steptoe & Johnson LLP. In addition to the prepared 
statements of the witnesses, the following materials were 
submitted for the record: October 4, 2007 letter to Congress by 
23 scholars of constitutional law; May 31, 2007 statement of 
the Constitution Project's Liberty and Security Committee & 
Coalition to Defend Checks and Balances on ``Reforming the 
State Secrets Privilege''; August 2007 report on state secrets 
legislation by the American Bar Association Section of 
Individual Rights and Responsibilities and the Association of 
the Bar of the City of New York; prepared statement of H. 
Thomas Wells, Jr., President-Elect, submitted on behalf of the 
American Bar Association; statement of William H. Webster, 
former Judge, U.S. District Court for the Eastern District of 
Missouri, Judge, U.S. Court of Appeals for the Eighth Circuit, 
Director, Federal Bureau of Investigation, and Director of 
Central Intelligence; February 8, 2008 letter to Senator 
Kennedy from William G. Weaver, Associate Professor, University 
of Texas at El Paso, and Danielle Escontrias; prepared 
statement of Patricia Reynolds Herring; prepared statement of 
Susan Parker Brauner.
    The bill was placed on the Committee's agenda for 
consideration on February 28, 2008. On April 24, 2008, the 
Committee on the Judiciary considered S. 2533.\43\ Senator 
Leahy offered a Managers' amendment, in the nature of a 
complete substitute, which was adopted by unanimous consent. 
This amendment made a number of changes to clarify the use of 
security clearances, hearings, congressional reporting, and 
other provisions in the bill.
---------------------------------------------------------------------------
    \43\The following materials were submitted for the record: April 2, 
2008 letter from Louis Fisher (Library of Congress) to Senator Kennedy; 
April 2, 2008 letter from Kevin S. Bankston (Electronic Frontier 
Foundation), Jon P. Eisenberg (Eisenberg & Hancock LLP), Caroline 
Fredrickson (American Civil Liberties Union), and Gregory T. Nojeim 
(Center for Democracy & Technology) to Senators Leahy and Specter; 
April 2, 2008 letter from Sharon Bradford Franklin and Virginia E. 
Sloan (Constitution Project) to Senators Leahy and Specter; April 2, 
2008 letter from Michael W. Macleod-Ball and Michael German (American 
Civil Liberties Union) to Senators Leahy and Specter; April 2, 2008 
letter from Denise A. Cardman (American Bar Association) to Senators 
Leahy and Specter; April 3, 2008 letter from Aziz Huq and Emily Berman 
(Brennan Center for Justice) to David Pozen; February 12, 2008 letter 
to the Senate Committee on the Judiciary by 11 scholars of 
constitutional law and national security; April 28, 2008 editorial, 
Whose Privilege?, by the New York Times; February 2, 2008 editorial, 
Secrets and Rights, by the New York Times; April 11, 2008 editorial, 
What's a Secret?, by the Washington Post; and March 6, 2008 editorial, 
Secure Lawsuits, by the Washington Post.
---------------------------------------------------------------------------
    Senator Feinstein offered an amendment to provide a 
standard of review for judges in evaluating assertions of the 
state secrets privilege. This amendment was accepted on a 
rollcall vote. The vote record is as follows:

                         TALLY: 18 YEAS, 1 NAY

    Yeas (18): Biden (D-DE), Brownback (R-KS), Cardin (D-MD), 
Coburn (R-OK), Cornyn (R-TX), Durbin (D-IL), Feingold (D-WI), 
Feinstein (D-CA), Graham (R-SC), Grassley (R-IA), Hatch (R-UT), 
Kennedy, (D-MA), Kohl (D-WI), Kyl (R-AZ), Leahy (D-VT), Schumer 
(D-NY), Sessions (R-AL), Whitehouse (D-RI).
    Nays (1): Specter (R-PA).
    Senator Hatch offered an amendment to strike the provisions 
in the bill relating to attorney security clearances. The 
amendment was rejected on a rollcall vote. The vote record is 
as follows:

                     TALLY: 8 YEAS, 10 NAYS, 1 PASS

    Yeas (8): Brownback (R-KS), Coburn (R-OK), Cornyn (R-TX), 
Hatch (R-UT), Kyl (R-AZ), Graham (R-SC), Grassley (R-IA), 
Sessions (R-AL).
    Nays (10): Biden (D-DE), Cardin (D-MD), Durbin (D-IL), 
Feingold (D-WI), Feinstein (D-CA), Kennedy (D-MA), Kohl (D-WI), 
Leahy (D-VT), Schumer (D-NY), Whitehouse (D-RI).
    Pass (1): Specter (R-PA).
    The Committee then voted to report the State Secrets 
Protection Act, as amended, favorably to the Senate. The 
Committee proceeded by rollcall vote as follows:

                        TALLY: 11 YEAS, 8 NAYS.

    Yeas (11): Biden (D-DE), Cardin (D-MD), Durbin (D-IL), 
Feingold (D-WI), Feinstein (D-CA), Kennedy (D-MA), Kohl (D-WI), 
Leahy (D-VT), Schumer (D-NY), Specter (R-PA), Whitehouse (D-
RI).
    Nays (8): Brownback (R-KS), Coburn (R-OK), Cornyn (R-TX), 
Hatch (R-UT), Kyl (R-AZ), Graham (R-SC), Grassley (R-IA), 
Sessions (R-AL).

              III. Section-by-Section Summary of the Bill


Section 1. Short title

    This section cites the short title of the bill as the 
``State Secrets Protection Act.''

Section 2. State secrets protection

    This section adds nine sections to title 28 of the United 
States Code, as follows.
    Section 4051. In a new section 4051 of the United States 
Code, the bill sets forth definitions.
    First, this section defines ``evidence'' under the bill as 
``any document, witness testimony, discovery response, 
affidavit, object, or other material'' that could be admissible 
or discoverable in court under the Federal rules of evidence or 
civil procedure. ``Evidence'' is given this broad definition to 
ensure that the state secrets privilege protects sensitive 
information from public disclosure at every stage in the 
litigation process. Coupled with the provisions in the bill 
tying the state secrets privilege to ``evidence,'' this 
definition also makes clear that the privilege applies only to 
items that might be discoverable or admissible, and does not 
apply to abstract concepts, ideas, or assertions or to general 
facts.
    Second, this section defines a ``state secret'' as ``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.'' The sponsors of the 
legislation believe it is important to set a definition of 
``state secret,'' so that all courts will evaluate claims of 
the state secrets privilege from an identical starting point.
    The bill's definition of ``state secret'' is intentionally 
broad, in that it covers both national defense and foreign 
relations and applies the same standard to both. However, the 
definition does not include information that is already 
available to the public or that has only a remote chance of 
causing harm. Information that is already public should not 
qualify as a state secret because its disclosure through the 
litigation process would not reveal new facts or insights, and 
thus would not be reasonably likely to cause significant harm. 
``Public'' disclosure does not encompass the disclosure of 
information in the context of the proceedings set forth in the 
bill; the bill requires the executive branch to make evidence 
available to the court precisely so that the court can 
determine whether public disclosure, to the world at large, 
would be appropriate. The state secrets privilege, as defined 
in this section, does not necessarily apply to every item of 
classified information; but that does not mean the information 
is ``de-classified.'' Classified materials not found to qualify 
as state secrets will still be subject to the ordinary rules 
governing the disclosure of classified information in civil 
litigation and in other settings.\44\
---------------------------------------------------------------------------
    \44\In this regard, it is worth noting that there is a longstanding 
bipartisan ``consensus that the executive habitually overclassifies'' 
documents, Adam M. Samaha, Government Secrets, Constitutional Law, and 
Platforms for Judicial Intervention, 53 UCLA L. Rev. 909, 940 (2006), 
and that recent U.S. history contains numerous examples of executive 
branch claims of secrecy that turned out to be greatly exaggerated. 
See, e.g., Erwin N. Griswold, Secrets Not Worth Keeping, Wash. Post, 
Feb. 15, 1989, at A25 (stating that ``[i]t quickly becomes apparent to 
any person who has considerable experience with classified material 
that there is massive overclassification and that the principle concern 
of the classifiers is not with national security, but rather with 
governmental embarrassment of one sort or another,'' and acknowledging 
that he had ``never seen any trace of a threat to the national 
security'' in the landmark Pentagon Papers case that he litigated as 
Solicitor General); see also Report of the Commission on Protecting and 
Reducing Government Secrecy: Hearing Before the Comm. on Governmental 
Affairs, 105th Cong. app. at 23 (1997) (``It is no secret that the 
government classifies too much information.'') (statement of J. William 
Leonard, Director, Information Security Oversight Office, National 
Archives and Records Administration); Donald Rumsfeld, War of the 
Worlds, Wall St. J., July 18, 2005, at A12 (``I have long believed that 
too much material is classified across the federal government as a 
general rule * * *'').
---------------------------------------------------------------------------
    The requirements of reasonable likelihood and significant 
harm present the court with two distinct inquiries in 
evaluating whether information qualifies as a state secret, one 
focused on the probability of harm and the other on magnitude 
of harm. The probability threshold is needed so that 
speculative or unlikely risks do not trigger the privilege. The 
magnitude threshold is needed so that insignificant harms do 
not trigger it. ``Reasonably likely'' and ``significant harm'' 
are the standards recommended by many experts in this area of 
law, including the American Bar Association, which had input 
from the Association's criminal and national security units. In 
today's globalized world, almost anything can be argued to 
cause potential harm to the national defense or foreign 
relations, and improbable or insignificant harms should not be 
the basis for withholding evidence that may be critical for the 
accuracy and integrity of litigation. Tests for probability and 
magnitude are needed as a check against overly expansive 
executive branch characterizations of national defense and 
foreign relations interests.
    The Supreme Court never clearly defined ``state secret'' in 
United States v. Reynolds or in subsequent cases, but it 
suggested in Reynolds that ``the occasion for the privilege is 
appropriate'' when the Government ``satisf[ies] the court, from 
all the circumstances of the case, that there is a reasonable 
danger that compulsion of the evidence will expose military 
matters which, in the interest of national security, should not 
be divulged.''\45\ Many courts have followed Reynolds in 
adopting this definition, but some courts have used other 
formulations, for example, that the privilege allows the 
Government to withhold information from discovery when 
disclosure would be ``inimical to the national security,''\46\ 
would ``jeopardize national security,''\47\ or would 
``adversely affect national security.''\48\
---------------------------------------------------------------------------
    \45\345 U.S. 1, 10 (1953).
    \46\See, e.g., In re Sealed Case, 494 F.3d 139, 142 (D.C. Cir. 
2007); In re United States, 872 F.2d 472, 474 (D.C. Cir. 1989).
    \47\See, e.g., Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 
546-47 (2d Cir. 1991).
    \48\See, e.g., Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 
1983).
---------------------------------------------------------------------------
    The definition of ``state secret'' used in the bill is 
preferable (although fundamentally similar) to the Reynolds 
formulation for two main reasons.\49\ First, the definition in 
the bill is more precise. It avoids the vague language of 
Reynolds about ``matters which, in the interest of national 
security, should not be divulged,'' and focuses the judicial 
inquiry on the likelihood and severity of the potential harm at 
issue.
---------------------------------------------------------------------------
    \49\Robert M. Chesney accurately captured the intent of the 
legislation's sponsors to clarify the definition of ``state secret'' in 
civil litigation, rather than fundamentally to transform the 
definition. In response to written questions from Judiciary Committee 
Members about how the bill's definition of ``state secret'' compares to 
current law, Professor Chesney stated:
    ``It seems to me that there are two variables at issue here. First 
there is the question of how likely it is that public disclosure of 
information will cause harm, period. Second, there is the question of 
the magnitude of that harm. The language in the bill calibrates the 
first variable using a reasonable-risk test that is, I think, 
consistent with existing law (as reflected in the ``reasonable danger'' 
language quoted above). The language in the bill calibrates the second 
variable using a ``significant harm'' standard. How does that compare 
to the status quo? I do not think there is a clear answer to that 
question. Reynolds and its progeny do not clearly specify whether the 
harm threshold is de minimis, significant, grave, or any other 
particular calibration. That said, it seems to me that ``significant'' 
fairly captures the understanding implicit in current law, given that 
there is no affirmative support in current law for the proposition that 
the privilege only kicks in when the harm to national security would be 
especially grave, and given that there is little sense in protecting 
information the disclosure of which concededly would cause only de 
minimis or insignificant harms. For all of those reasons, therefore, I 
think that the bill does not actually work a change with respect to 
either variable.''--Response of Robert M. Chesney to Written Questions 
4-5 (Mar. 5, 2008).
---------------------------------------------------------------------------
    Second, the definition in the bill expressly includes 
``foreign relations,'' whereas the Reynolds language does not. 
Some courts have stated that the privilege protects both 
foreign relations and national security interests\50\--which 
makes sense as a matter of policy and in light of the executive 
branch's constitutional responsibilities in both areas--and the 
bill codifies that understanding. The sponsors of the 
legislation assume that the standard of ``significant harm'' 
will generally be more difficult to meet with respect to 
foreign relations as compared to the national defense, and 
routine matters involving international trade, diplomatic 
relations, or the United States' image in the world should not 
qualify. Yet in some rare instances, the court may find that 
the likely impact of disclosure on foreign relations would be 
sufficiently grave, in terms of the national interest, as to 
threaten ``significant harm'' on the order of disclosure of 
sensitive security information.
---------------------------------------------------------------------------
    \50\See, e.g., El-Masri v. United States, 479 F.3d 296, 305 (4th 
Cir. 2007); In re Grand Jury Subpoena dated August 9, 2000, 218 F. 
Supp. 2d 544, 559 (S.D.N.Y. 2002).
---------------------------------------------------------------------------
    Section 4052. In a new section 4052 of the United States 
Code, the bill sets forth rules governing procedures related to 
this chapter.
    This section instructs the court in determining who shall 
have access to documents and proceedings under the Act. It 
provides guidance on when hearings may be in camera and ex 
parte, when participation in hearings and access to documents 
may be conditioned on security clearances, when protective 
orders may be issued, and when opinions or orders may be issued 
under seal or in redacted form. It also advises the court that 
it may appoint a special master or other independent advisor. 
In the use of all of these procedural measures, the bill is 
clear that it is the court, not the executive branch, that 
determines whether and in what ways the measures will be 
applied.
    Subsection 4052(a) instructs the court to determine which 
filings, motions, and affidavits, or portions thereof, shall be 
submitted ex parte, and it affirms the court's authority to 
order redacted, unclassified, or summary substitutes of 
evidence as appropriate. The requirement in Sec. 4052(a)(3) 
that the court ``tak[e] into consideration the interests of 
justice and national security'' establishes general principles 
to guide these determinations. The interests of justice include 
fairness, due process, and instrumental rationality. Although 
depriving litigants of full access to the Government's filings, 
motions, and affidavits may be necessary in some instances to 
protect the interests of national security, it can disserve the 
interests of justice that underlie our adversarial system by 
impairing the ability of litigants to argue their case. Courts 
must be mindful of both interests.
    Subsection 4052(b) sets a requirement that all hearings 
based on the assertion of the state secrets privilege, as 
provided for in subsection 4054(c), be conducted in camera, 
except if the court determines that the hearing relates only to 
a question of law and does not present a risk of revealing 
state secrets, in which case the hearing shall not be conducted 
in camera. In the hearings referenced in subsection 
4052(b)(1)(A), the court reviews the allegedly privileged 
evidence and takes argument to inform its determination on 
whether and to what extent that evidence deserves special 
protection. Given that the purpose of these hearings is to test 
state secrets claims, it makes sense from a national security 
standpoint to have the hearings be closed to the public.\51\
---------------------------------------------------------------------------
    \51\Cf. Kerr v. U.S. Dist. Court, 426 U.S. 394, 405-06 (1976) (``It 
is settled that in camera procedures are an appropriate means to 
resolve disputed issues of privilege.''); Mark J. Rozell, Executive 
Privilege: Presidential Power, Secrecy, and Accountability 165 (rev. 2d 
ed. 2002) (``There * * * is considerable legal precedent for in camera 
review of sensitive information by the courts. Rather than simply 
compelling disclosure of privileged information for open court review, 
it may be appropriate for the executive branch to satisfy the court in 
secret chambers of the necessity of nondisclosure.'' (internal citation 
omitted)).
---------------------------------------------------------------------------
    Subsection 4052(b)(2) allows the hearings, or portions 
thereof, to be conducted ex parte as well as in camera, ``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 [security clearance 
requirements and protective orders] described in subsection (c) 
and (d).'' This provision recognizes the possibility that 
nothing short of ex parte hearings will adequately protect the 
interests of national security in certain instances. However, 
this provision also recognizes that as a general matter, the 
interests of justice, the truth-seeking function of the court, 
and reasoned decisionmaking are best served through the 
adversarial process, and that shutting out non-governmental 
parties from hearings is an extreme measure. As indicated by 
the reference to alternative measures described in subsections 
(c) and (d) and by the invocation of ``the interests of 
justice,'' ex parte hearings are meant to be a measure of last 
resort. The court's prior in camera review of the evidence will 
enable it to make an informed decision as to whether ex parte 
proceedings are necessary.
    Subsection 4052(c) requires the court to limit 
participation in hearings on the state secrets privilege to 
attorneys with appropriate security clearances, if the 
executive branch makes such a request and the court 
``determines that limiting participation in that manner would 
serve the interests of national security.'' Under the structure 
of the bill, hearings play a central role as the forum in which 
litigants can present arguments to the court about why 
information does or does not qualify for the state secrets 
privilege. If at all possible, litigants and their attorneys 
should be present at the hearing to enable full adversarial 
testing of the executive branch's assertions, and the delay and 
the burden associated with clearance procedures should be 
avoided. However, this subsection recognizes that protecting 
national security may require the court in some cases to limit 
attendance at the hearing, or portions thereof, to cleared 
attorneys. Protective orders, Sec. 4052(d), and sealed or 
redacted orders, Sec. 4052(e), are likewise permissible but 
disfavored.
    In a situation in which a litigant's attorney is barred 
from participating in a state secrets pre-trial hearing for 
national security reasons, subsection 4054(c)(1) authorizes the 
court to appoint a guardian ad litem with the necessary 
security clearances to represent that litigant. Although the 
right to employ the attorney of one's choosing is an important 
tenet of our civil justice system, guardians ad litem offer a 
second-best solution for those portions of proceedings from 
which one's attorney is excluded. Guardians ad litem can ensure 
that a litigant's interests and arguments are represented in 
these hearings, and thereby preserve a significant measure of 
adversariality in the privilege review process.
    Because the process of obtaining a clearance may take time, 
subsection 4052(c)(2) allows the court to suspend proceedings 
during the duration of this process if doing so would serve the 
interests of justice. In recognition of the possibility that 
the executive branch could use the security clearance process 
as a delaying tactic or as a means to disqualify attorneys who 
are otherwise deserving of clearance, subsection 4054(c)(3) 
authorizes the court ``to 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.'' This provision does not grant the court any 
authority to issue a security clearance or to require the 
Government to do so; rather, it clarifies that the Government 
may not abuse the security clearance process in an effort to 
undermine the bill. If the court determines that the Government 
is delaying or denying a security clearance for reasons other 
than the protection of national security, it may exercise its 
equitable authority to sanction the Government in an 
appropriate manner, while appointing an individual who has or 
can obtain the necessary clearance as a guardian ad litem to 
represent the plaintiff.
    Subsection 4052(f) authorizes the court to appoint a 
special master or other independent advisor who holds the 
necessary security clearances, to the extent any are needed, to 
assist the court in handling any matter under the bill. Federal 
judges already have legal authority to appoint independent 
experts to assess Government secrecy claims,\52\ and though 
they rarely avail themselves of this authority, experience 
shows it can be used ``with great success.''\53\ Special 
masters offer judges a tool to make their review of materials 
less burdensome and more informed, and to help judges better 
understand the factual predicates and policy judgments involved 
in executive branch claims regarding national defense or 
foreign relations. Subsection 4052(f) is meant to stimulate 
courts to use special masters.
---------------------------------------------------------------------------
    \52\See Meredith Fuchs & G. Gregg Webb, Greasing the Wheels of 
Justice: Independent Experts in National Security Cases, Am. Bar Ass'n 
Nat'l Security L. Rep., Nov. 2006, at 1, 3-5.
    \53\Meredith Fuchs, Judging Secrets: The Role Courts Should Play in 
Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 174 (2006) 
(describing Judge Louis Oberdorfer's use of a special master to review 
classified records in camera in Wash. Post v. Dep't of Def., 766 F. 
Supp. 1 (D.D.C. 1991)); see also Ellsberg v. Mitchell, 709 F.2d 51, 64 
(D.C. Cir. 1983) (encouraging ``procedural innovation'' in addressing 
state secrets issues); Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 
2d 1215, 1233 (D. Ore. 2006) (suggesting the appointment of a national 
security expert as a special master to assist in assessing the effects 
of disclosure); Robert P. Deyling, Judicial Deference and De Novo 
Review in Litigation over National Security Information Under the 
Freedom of Information Act, 37 Vill. L. Rev. 67, 105-11 (1992) 
(exploring the costs and benefits of employing special masters in FOIA 
national security litigation and concluding that ``experience so far 
suggests that special masters can at least be employed for limited 
purposes in such cases, saving court time and facilitating resolution 
of the issues'').
---------------------------------------------------------------------------
    Section 4053. In a new section 4053 of the United States 
Code, the bill sets forth procedures for answering a complaint.
    This section sets rules for the executive branch in 
asserting the state secrets privilege when answering a 
complaint or intervening in a civil action.
    Subsection 4053(a) allows the Government to intervene in 
any civil action to assert the privilege, which represents no 
change from current practice.
    Subsection 4053(b) clarifies that the court is prohibited 
from dismissing cases or claims on state secrets grounds except 
as provided under section 4055 of the bill. This subsection 
also clarifies that the court may not rule on a motion to 
dismiss or for summary judgment until after completion of 
hearings under subsection 4054(c), except when such ruling can 
be made entirely independently of the Government's assertion of 
the privilege. Hence, the court may not dismiss a case or claim 
on state secrets grounds at the pleadings stage; it may dismiss 
a case or claim on state secrets grounds only after any 
allegedly privileged evidence has been identified in the course 
of discovery or pre-trial proceedings and the court has ruled 
on the assertions of the privilege. Furthermore, if a 
plaintiff's ability to survive summary judgment may depend on 
whether the plaintiff is able to discover or introduce evidence 
that the Government asserts is privileged, the court must rule 
on the assertion of privilege before deciding the summary 
judgment motion. The rationale for this provision is set forth 
in the discussion of section 4055, below.
    Subsection 4053(c) allows the executive branch to plead the 
state secrets privilege in response to any allegation in any 
individual claim or counterclaim and, in so doing, to avoid 
admitting or denying certain facts or having the court draw an 
adverse inference or admission. By allowing the Government to 
plead ``state secrets'' in such a manner, the bill enables 
lawsuits to move forward without risk that the Government's 
answer will itself reveal state secrets. The requirement that 
the Government plead the privilege in response to allegations, 
rather than to claims or counterclaims, imposes a burden of 
specificity on the Government to tailor its assertions of the 
privilege to particular allegations that the Government 
believes implicate state secrets.
    Subsection 4053(d) requires the executive branch, when it 
pleads the state secrets privilege, to explain its factual 
basis for doing so in an affidavit signed by the relevant 
agency head. This explanation will help the court, when 
reviewing the evidence, to evaluate the persuasiveness of the 
Government's claimed need for the privilege. The non-delegation 
language used in this subsection is based on language from 
United States v. Reynolds, which stated that for the Government 
to assert the state secrets privilege, ``[t]here must be formal 
claim of privilege, lodged by the head of the department which 
has control over the matter, after actual personal 
consideration by that officer.''\54\
---------------------------------------------------------------------------
    \54\345 U.S. 1, 7-8 (1953) (internal citation omitted).
---------------------------------------------------------------------------
    Section 4054. In a new section 4054 of the United States 
Code, the bill sets forth procedures for determining whether 
evidence is protected from disclosure by the state secrets 
privilege.
    This section establishes procedures for courts to follow in 
determining the applicability of the state secrets privilege. 
It requires the court to hold a hearing to examine the evidence 
and affidavits and to rule on the Government's assertion of the 
privilege. The Government must make all evidence it claims is 
subject to the privilege available for the court to review; 
this must be done prior to the hearing, so that the court can 
determine whether to conduct the hearing ex parte or take other 
protective measures. The Government must also provide a 
manageable index of the evidence.
    If the court finds that an item of evidence contains a 
state secret, or there is no possible means of effectively 
segregating it from other evidence that contains a state 
secret, then that item is privileged and may not be disclosed. 
In determining whether public disclosure of an item of evidence 
would be reasonably likely to cause significant harm, the court 
shall give substantial weight to the views of the United 
States, and shall weigh the testimony of a Government expert in 
the same manner as, and along with, any other expert testimony. 
When material evidence is found to be privileged, the court 
must, if possible, order the Government to create a non-
privileged substitute for the evidence, such as an unclassified 
summary or a redacted version. If the Government refuses to 
turn over evidence or to provide a non-privileged substitute 
ordered by the court, the court will resolve the relevant issue 
of fact or law against the Government.
    Subsection 4054(a) provides that the United States may 
assert the state secrets privilege in any civil action as a 
ground for preventing the public disclosure of evidence. This 
subsection acknowledges that United States may assert the 
privilege in State court as well as Federal court, which is no 
change from current practice, although the judicial procedures 
established by the bill apply only to Federal courts.
    Echoing subsection 4053(d), subsection 4054(b) requires the 
executive branch, when it asserts the state secrets privilege, 
to explain its factual basis for doing so in an affidavit 
signed by the relevant agency head. This subsection also 
requires the executive branch to make public an unclassified 
version of this affidavit, so that the American people can see 
its arguments. The unclassified version should contain as much 
detail as the Government can provide without compromising 
national security or disclosing the alleged state secrets 
themselves. In many cases, this should be achievable simply by 
redacting names, operational details, or similar information.
    Subsection 4054(c) requires the court to hold a pre-trial 
hearing or hearings (i) to examine the items of evidence that 
the Government asserts are subject to the state secrets 
privilege, (ii) to examine the affidavits submitted by the 
Government in support of its assertions of the privilege, and 
(iii) to determine the validity of any assertions of the 
privilege. These hearings must be ``consistent with the 
requirements of section 4052.'' Therefore, they must comply 
with subsection 4052(b)(2)'s limitations on ex parte 
proceedings, and they must be in camera unless they relate only 
to a question of law and do not present a risk of revealing 
state secrets.
    The central role assigned by the bill to these hearings 
reflects the intent to make judicial review of privilege claims 
as careful, thorough, and adversarial as possible, consistent 
with national security. Through the participation of counsel 
and/or guardians ad litem, the Government's legal and factual 
assertions relating to its claim of the privilege may be 
challenged and developed before the court, helping the court to 
understand better the allegedly privileged evidence and the 
likely significance of ordering its public disclosure. 
Litigants will have the opportunity to explain why they believe 
evidence should or should not be found privileged or relevant. 
There is some precedent for this use of pre-trial hearings in 
CIPA.\55\
---------------------------------------------------------------------------
    \55\Section six of CIPA provides for pre-trial hearings on the 
admissibility of classified evidence, 18 U.S.C. app. Sec. 6 (2000), 
during which the court must determine the relevance of the classified 
information, id. Sec. 6(a), and the adequacy of substitutes offered by 
the Government in lieu of classified documents, id. Sec. 6(c).
---------------------------------------------------------------------------
    At the same time, pre-trial hearings under subsection 
4054(c) are not meant to be overly burdensome. If there are 
questions regarding the relevance or admissibility of evidence, 
the court should address those questions at the outset of the 
hearing; if the court determines that the evidence is 
irrelevant or inadmissible, the privilege issue will become 
moot, and there will be no need to proceed further with the 
hearing. Moreover, the court need not pore over every item of 
evidence and rule on each item's privileged status during the 
hearing itself. The hearings are a means to inform, 
rationalize, and enhance the court's review of, and decision-
making on, allegedly privileged evidence, but they need not be 
the forum in which all such review and decision making takes 
place.
    Subsection 4054(d)(1) requires the United States to ``make 
all evidence [it] 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.'' This provision enables the court to 
determine whether it is appropriate to impose any restrictions 
on the non-Government party's participation in the hearing; it 
also ensures that the court will be able to make the most 
effective use of the hearing for its consideration of the 
allegedly privileged evidence. Although the executive branch 
must make all allegedly privileged evidence ``available for the 
court to review'' before any hearing, the court may in 
appropriate cases avail itself of sampling under subsection 
4054(d)(2).
    Subsection 4054(d)(2) authorizes the court to review ``a 
sufficient sampling of the [allegedly privileged] evidence,'' 
rather than each item of evidence, if it determines that 
certain specified conditions are met. This sampling provision 
is meant to preserve judicial economy in cases in which there 
is no cost to doing so, but it is not meant to change in any 
way the qualitative nature of the court's review. Sampling 
should not be a routine occurrence. It should be invoked only 
where it is genuinely impracticable to review the entirety of 
the evidence and where it is clear from all the circumstances 
that the privilege determination will not be affected by 
limiting the evidence reviewed.
    Subsection 4054(d)(3) requires the Government to ``provide 
the court with a manageable index of evidence it contends is 
subject to the state secrets privilege,'' which ``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.'' This provision draws on the Vaughn indices 
that courts frequently require in FOIA litigation to assist 
their review of materials the Government claims are exempt from 
disclosure requirements.\56\ The requirement to produce such 
indices will force the Government to articulate specific 
reasons why each item of allegedly privileged evidence contains 
state secrets, thus enabling ``adequate adversary testing''\57\ 
and careful judicial review of each item. As one commentator 
has described it, the ``purpose of the detailed Vaughn Index 
and affidavit is to require the agency to make as full a public 
record as possible and to enable a more adversarial process in 
[a] context in which considerable asymmetry of information 
exists. A Vaughn Index can only serve this purpose and allow 
the court to perform a de novo review if it is sufficiently 
detailed and specific.''\58\ Submission of the index to the 
court is not a substitute for submitting the evidence itself; 
rather, the purpose of the index is to serve as an interpretive 
aide in the court's review of the actual evidence.
---------------------------------------------------------------------------
    \56\See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973) 
(formulating ``a system of itemizing and indexing [the allegedly exempt 
material] that would correlate statements made in the Government's 
refusal justification with the actual portions of the document'' and 
``would subdivide the document * * * into manageable parts cross-
referenced to the relevant portion of the Government's 
justification''); see also King v. U.S. Dep't of Justice, 830 F.2d 210, 
223 (D.C. Cir. 1987) (explaining the ``specificity of description'' 
required in a Vaughn index).
    \57\Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973).
    \58\Meredith Fuchs, Judging Secrets: The Role Courts Should Play in 
Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 172 (2006).
---------------------------------------------------------------------------
    Subsection 4054(e)(1) instructs the court to review each 
item of evidence, or each item in the sample if sampling is 
used under Sec. 4052(d)(2), that the United States asserts is 
protected by the state secrets privilege ``to determine whether 
the claim of the United States [that the item is privileged] is 
valid.'' ``An item of evidence is subject to the state secrets 
privilege,'' the provision indicates, ``if it contains a state 
secret, or there is no possible means of effectively 
segregating it from other evidence that contains a state 
secret.'' Subsection 4054(e)(2) states that non-privileged 
items of evidence may be publicly disclosed, subject to the 
standard rules of evidence and civil procedure, but that items 
of evidence found by the court to be privileged ``shall not be 
disclosed or admissible as evidence.'' Subsection 4054(e)(3) 
sets a standard of judicial review for the privilege 
determinations made under (e)(1).
    Subsection 4054(e) can be seen as the heart of the bill. It 
makes crystal-clear that the court, not the executive branch, 
determines which items of evidence are privileged. It requires 
the court to consider the actual evidence, rather than rely on 
Government affidavits or representations about the evidence, in 
making this determination. Following a 2005 Supreme Court 
ruling, it also makes clear that the privilege applies only to 
specific items of evidence and is therefore a strictly 
evidentiary privilege, distinct from the question of 
justiciability.\59\ Finally, it sets a standard of review 
designed to give appropriate respect to the executive branch's 
institutional expertise and constitutional role, without 
undermining the judge's duty to make an independent 
determination on each privilege claim.
---------------------------------------------------------------------------
    \59\See Tenet v. Doe, 544 U.S. 1, 9-10 (2005) (contrasting the 
``categorical Totten bar'' to judicial review of espionage contracts 
with the ``balancing approach'' courts must apply in evaluating 
government claims of ``the state secrets evidentiary privilege'').
---------------------------------------------------------------------------
    The requirement that the court determine for itself which 
items of evidence are subject to the state secrets privilege, 
based on its review of those items, is consistent not only with 
judicial review of evidentiary privilege claims generally, but 
also with the Supreme Court's explanation of the state secrets 
privilege in Reynolds (even though in Reynolds the Court 
ultimately declined to review the allegedly privileged evidence 
and therefore left itself vulnerable to being misled). The 
Reynolds opinion states that ``[t]he court itself must 
determine whether the circumstances are appropriate for the 
claim of privilege,''\60\ the court must ``satisfy[] itself 
that the occasion for invoking the privilege is 
appropriate,''\61\ and ``judicial control over the evidence in 
a case cannot be abdicated to the caprice of Executive 
officers.''\62\ Subsequent judicial decisions have similarly 
held that a ``court before which the privilege is asserted must 
assess the validity of the claim of privilege, satisfying 
itself that there is a reasonable danger that disclosure of the 
particular facts in litigation will jeopardize national 
security.''\63\
---------------------------------------------------------------------------
    \60\United States v. Reynolds, 345 U.S. 1, 8 (1953).
    \61\Id. at 11.
    \62\Id. at 9-10.
    \63\Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546-47 (2d 
Cir. 1991).
---------------------------------------------------------------------------
    All of these statements imply that the court must 
independently evaluate each claim of the state secrets 
privilege--that while the executive branch's initial privilege 
determination may be deserving of respect, it is never 
controlling, nor is it ever independent of court review. For 
the court to determine that the privilege applies to a 
particular item of evidence, it must be ``ultimately satisfied 
that [state] secrets are at stake,''\64\ and there is no 
rational way for the court to be ``ultimately satisfied'' of 
this conclusion without looking at the evidence itself.
---------------------------------------------------------------------------
    \64\Reynolds, 345 U.S. at 11.
---------------------------------------------------------------------------
    Reynolds thus acknowledged the authority of Federal courts 
to conduct in camera review of evidence that the Government 
claims to be privileged, when the court finds such review to be 
necessary. The authority of courts to review national security 
materials is also established in the Freedom of Information 
Act, which provides that courts ``may examine the contents of 
[withheld] agency records in camera,''\65\ including classified 
records that the Government claims must be ``kept secret in the 
interest of national defense or foreign policy.''\66\ To the 
extent that Reynolds has been read to bless the judicial 
practice of not ``insisting upon an examination of the 
evidence, even by the judge alone, in chambers'' under certain 
conditions,\67\ the bill overrides the court's discretion to 
adopt such a practice.
---------------------------------------------------------------------------
    \65\5 U.S.C. Sec. 552(a)(4)(B) (2000).
    \66\Id. Sec. 552(b)(1).
    \67\Reynolds, 345 U.S. at 10.
---------------------------------------------------------------------------
    In the sponsors' view, failure to scrutinize the actual 
evidence is an abdication of judicial responsibility, and 
subsection 4054(e)(1)'s requirement that the court base its 
privilege determinations on its own review of specific items of 
evidence is needed to protect against the possibility of abuse, 
to ensure fairness and the appearance of fairness in the use of 
the state secrets privilege, and to preserve the integrity of 
our judicial system. This requirement also recognizes and 
codifies the principle that state secrets assertions are 
justiciable.\68\ The justiciability of state secrets assertions 
was affirmed by Reynolds's statement that ``[t]he court itself 
must determine whether the circumstances are appropriate for 
the claim of privilege,''\69\ and it has been acknowledged by 
numerous experts in this area of law.\70\
---------------------------------------------------------------------------
    \68\Thus, with respect to the state secrets privilege, judicial 
decisions involving the justiciability of espionage contracts, see, 
e.g., Tenet v. Doe, 544 U.S. 1 (2005); Totten v. United States, 92 U.S. 
105 (1875), do not provide relevant precedents. The state secrets 
privilege neither deprives courts of any grant of jurisdiction, nor 
does it provide the Government with any grant of immunity.
    \69\Reynolds, 345 U.S. at 8.
    \70\See, e.g., Am. Bar Ass'n, Report to the House of Delegates 5-7 
(Revised Report 116A) (2007); Constitution Project, Reforming the State 
Secrets Privilege 13 (2007). Judge Patricia M. Wald further testified 
to the Judiciary Committee that: ``our traditions of fair hearing 
dictate that to the maximum degree feasible all relevant evidence be 
admitted in judicial proceedings. * * * Only [by inspecting the 
allegedly privileged materials] can the judge fulfill the judicial 
obligation to insure [sic] a fair hearing but just as important only if 
he sees the evidence for himself can he make the CIPA-like decision 
whether there are alternative ways than its presentation in original 
form to satisfy the plaintiff's need but not to impugn national 
security as well as whether the objected to material can be segregated 
from other material in the same document that does not qualify for 
protection * * *.''--Examining the State Secrets Privilege: Protecting 
National Security While Preserving Accountability, Hearing before the 
S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared 
statement of Patricia M. Wald).
---------------------------------------------------------------------------
    Subsection 4054(e)(1)'s instruction that an item of 
evidence is subject to the 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,'' recognizes that privileged information may in some 
cases be inextricably entwined with non-privileged information, 
in which case certain otherwise non-privileged information may 
deserve to fall under the privilege's protection. At the same 
time, this provision makes clear that the court must cabin its 
privilege findings as tightly as it can, and that 
``segregation'' must be used whenever possible to enforce this 
requirement.\71\ This codifies the approach developed by the 
U.S. Court of Appeals for the District of Columbia Circuit, and 
employed by numerous courts faced with assertions of the 
privilege, that ``whenever possible, sensitive information must 
be disentangled from nonsensitive information to allow for the 
release of the latter.''\72\ If any part of an item of evidence 
does not contain state secrets and can be segregated from 
material that does contain state secrets, that part must be 
found non-privileged. It is the court's responsibility to 
determine whether such segregation is possible; it is the 
executive branch's responsibility to redact or delete 
privileged evidence as ordered.
---------------------------------------------------------------------------
    \71\The segregation of sensitive from non-sensitive information is 
a feature of FOIA, which requires that ``[a]ny reasonably segregable 
portion of a record shall be provided to any person requesting such 
record after deletion of the portions which are exempt.'' 5 U.S.C. 
Sec. 552(b) (2000). The ``reasonable'' standard in FOIA's segregation 
requirement is replaced here with a ``possible'' standard, in 
recognition of the unique potency of the state secrets privilege.
    \72\Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983); see 
also id. (``[T]he privilege may not be used to shield any material not 
strictly necessary to prevent injury to national security * * *.'')
---------------------------------------------------------------------------
    In recent years, the executive branch has frequently 
asserted that seemingly harmless items of information should be 
protected from public disclosure, lest an adversary combine 
them with other items to form a dangerous mosaic.\73\ While 
potentially useful as a heuristic for conceptualizing how 
adversaries utilize information, this ``mosaic theory'' is 
plainly susceptible to misuse; it lacks any limiting principle 
and ``proves too much'' by potentially covering even the most 
innocuous information. The requirement that judges find an item 
of evidence to be privileged only if the item itself ``contains 
a state secret, or there is no possible means of effectively 
segregating it from other evidence that contains a state 
secret,'' is designed to prevent the Government from shielding 
wholly non-privileged information by invoking the mosaic theory 
and to warn judges against expansive applications of the 
theory.
---------------------------------------------------------------------------
    \73\See, e.g., El-Masri v. United States, 479 F.3d 296, 305 (4th 
Cir. 2007); Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 
F.3d 918, 928-31 (D.C. Cir. 2003); North Jersey Media Group, Inc. v. 
Ashcroft, 308 F.3d 198, 219 (3d Cir. 2002); Kasza v. Browner, 133 F.3d 
1159, 1166 (9th Cir. 1998); Al-Haramain Islamic Foundation, Inc. v. 
Bush, 451 F. Supp. 2d 1215, 1220 (D. Or. 2006); Edmonds v. U.S. Dept. 
of Justice, 323 F. Supp. 2d 65, 77-78 (D.D.C. 2004).
---------------------------------------------------------------------------
    Thus, to find an item of evidence to be subject to the 
state secrets privilege, the court must determine that public 
disclosure of that specific item would be reasonably likely to 
cause significant harm. The mosaic theory provides a metaphor 
for how public disclosure of evidence might be harmful; it does 
not alter the Government's burden of persuasion or the nature, 
substance, or manner of the court's review. If the Government's 
assertion of the privilege relies on the allegedly privileged 
evidence being combined with other items of information (i.e., 
the mosaic theory), the Government must identify specific 
scenarios in which the combination would be reasonably likely 
to cause significant harm, and it must demonstrate that such 
scenarios are reasonably likely to occur. The Government must 
show concretely and specifically, and not just through general 
speculation, that public disclosure of the specific items of 
evidence, in conjunction with other items of information, would 
be reasonably likely to cause significant harm.
    By linking the privilege to the content of specific items 
of evidence and by requiring explanatory indices under 
subsection 4054(d)(3), the bill requires the executive branch 
to make precise arguments, tailored to each allegedly 
privileged item of evidence or portion thereof, about the 
consequences of disclosing the sought-after information. (Of 
course, the executive branch may believe that the same argument 
about the consequences of public disclosure obtains across 
multiple items of evidence; if so, it is the Government's 
burden to explain why.) These particularized arguments will 
enable the judge to evaluate the persuasiveness of the 
Government's state secrets assertions in a more searching and 
independent manner than would otherwise be possible.
    Subsection 4054(e)(2) clarifies that while the state 
secrets privilege provides no bar to the public disclosure of 
non-privileged items of evidence, it provides an absolute bar 
to the admissibility or discoverability of privileged items. 
Hence, the bill not only acknowledges the necessity of 
withholding information in certain instances to protect 
national security or foreign relations; it also codifies and 
legitimizes the state secrets privilege. If the court 
determines that an item of evidence, if disclosed publicly, 
would be reasonably likely to cause significant harm to the 
national defense or foreign relations of the United States, the 
court may not balance this reasonable likelihood against the 
potential benefits that may come from public disclosure, such 
as revealing illegal or unconstitutional executive branch 
conduct, except to the extent that such benefits themselves 
might reduce the likelihood of ``significant harm.'' In cases 
where the court determines that evidence is privileged despite 
certain public benefits that might result from disclosure, the 
court maintains its inherent authority to fashion appropriate 
equitable procedures or remedies that do not entail the 
disclosure of the privileged information.
    As legal scholars have explained, the bill's prohibition on 
the release of privileged evidence undermines any 
constitutional objections that might possibly be raised against 
its basic structure:

          [A]dministration of the privilege has always been 
        shared by the executive and the judicial branches of 
        government. There is no constitutional bar to Congress 
        playing an active role as well. The constitutionality 
        of the State Secrets Protection Act is especially clear 
        given that the Act respects and reinforces the 
        privilege, so that if a court finds that an item of 
        evidence contains a state secret, or cannot be 
        effectively separated from other evidence that contains 
        a state secret, then the evidence may not be released. 
        Thus, even if the privilege were to have a 
        constitutional core rooted in the President's powers 
        under Article II of the Constitution, the Act would not 
        encroach upon it.\74\
---------------------------------------------------------------------------
    \74\Scholars' Letter to Senate Judiciary Committee 1 (Feb. 12, 
2008).

    Subsection 4054(e)(3) establishes a standard of review for 
courts to evaluate executive branch assertions of the state 
secrets privilege. In introducing this provision as an 
amendment at the Judiciary Committee markup, in which it passed 
by a vote of 18-to-1, Senator Feinstein explained that without 
such a provision, significant ambiguity would remain as to the 
intended nature of judicial review under the bill. Senator 
Specter, the lone dissenting vote, stated that given past 
executive branch abuses of the privilege, he believed the court 
should give no deference whatever to the executive branch's 
arguments as to why certain evidence deserves to be privileged. 
In response, Senator Feinstein emphasized that (i) ``weight'' 
is different than ``deference'' and is owed to all experts in 
litigation; (ii) some courts have been applying ``utmost 
deference'' to privilege claims, so if the bill does not 
address the standard of review, that standard may persist; 
(iii) the executive branch has a clear self-interest in 
lawsuits in which it is accused of breaking the law; (iv) her 
amendment requires the views of other relevant experts also to 
be given the same weight; and (v) numerous outside experts, 
including Judge Patricia M. Wald, have suggested ``substantial 
weight'' as the appropriate standard.
    The language of subsection 4054(e)(3) reflects the belief 
that the executive branch's institutional expertise and 
constitutional responsibilities regarding national defense and 
foreign affairs deserve respect from the court, but that the 
court must make privilege determinations only on the basis of 
its own independent evaluation. The bill thus firmly rejects 
the notion that a court should give ``utmost deference'' to the 
executive branch or in any other way compromise the 
independence and impartiality of its decision making. This 
approach comports with the duty of the judiciary to safeguard 
constitutional rights and values and to preserve full and fair 
trials to the greatest extent possible (matters on which the 
court has far greater expertise than the executive branch), 
with the traditional disfavored role of evidentiary privileges 
in litigation,\75\ and with the standard of judicial review 
already employed by Federal courts under FOIA's national 
security exemption--although the sponsors of this bill strongly 
reject the line of FOIA precedent that has interpreted 
``substantial weight'' to be virtually dispositive for the 
Government.\76\
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    \75\See United States v. Nixon, 418 U.S. 683, 708-10 (1974) 
(stating that ``privilege [assertions] must be considered in light of 
our historic commitment to the rule of law,'' that ``[t]he need to 
develop all relevant facts in the adversary system is both fundamental 
and comprehensive,'' that ``[t]he very integrity of the judicial system 
and public confidence in the system depend on full disclosure of all 
the facts, within the framework of the rules of evidence,'' and that 
because evidentiary privileges act ``in derogation of the search for 
the truth,'' they are ``not lightly created nor expansively 
construed''); see also Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 
(1990) (``Inasmuch as testimonial exclusionary rules and privileges 
contravene the fundamental principle that the public has a right to 
every man's evidence, any such privilege must be strictly construed.'' 
(internal citations, quotations, and brackets omitted)).
    \76\Under FOIA, Congress has authorized Federal courts to determine 
de novo whether the Government has properly classified information, 
with the burden of persuasion on the Government. See 5 U.S.C. 
Sec. 552(b)(1)(B) (2000); see also Ray v. Turner, 587 F.2d 1187, 1190-
95 (D.C. Cir. 1978) (explaining the legislative history of FOIA and the 
contemplated role for judicial review, and stating that when Congress 
overrode President Ford's veto and amended FOIA in 1974 to provide for 
de novo review and in camera document inspection, Congress ``stressed 
the need for an objective, independent judicial determination, and 
insisted that judges could be trusted to approach the national security 
determinations with common sense, and without jeopardy to national 
security''). In its Committee Report on the 1974 FOIA amendments, 
Congress indicated that courts in national security cases should 
``accord substantial weight'' to an agency's assertions as to the 
classified status of the disputed record. S. Rep. No. 93-1200, at 12 
(1974) (Conf. Rep.).
    Many observers have criticized courts for being too deferential to 
the Executive Branch in such cases. As one commentator has explained:
    ``Congress did not direct courts to defer to agency determinations. 
Instead, it sought to assuage concerns about whether judges could be 
trusted to perform a de novo review by expressing the expectation that 
agency affidavits would be given substantial weight. * * * Were 
agencies to provide detailed, common sense, and credible assertions, 
then they would be given substantial weight.''--Meredith Fuchs, Judging 
Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 
58 Admin. L. Rev. 131, 162 (2006). Whatever Congress's intent with 
respect to the ``substantial weight'' standard used in the 1974 FOIA 
Committee Report, it is the understanding of that term articulated by 
the court in Ray v. Turner, supra, that accurately captures the intent 
of Congress in this bill.
    It is worth noting that the stakes may be significantly lower in 
FOIA litigation than in civil cases in which the state secrets 
privilege is invoked. Under FOIA, any person may request a Government 
record, and no reason need be given. State secrets cases, by contrast, 
may implicate core issues of constitutional rights and individual 
liberties, which makes ``utmost deference'' or any similar formulation 
all the more inappropriate in this context.
---------------------------------------------------------------------------
    The bill's move away from utmost deference also heeds the 
concern that while the executive branch may have special 
institutional expertise on the question of what constitutes a 
state secret, it is not a neutral party in lawsuits in which 
its agencies, officers, or contractors are being sued for 
allegedly illegal or unconstitutional conduct. Rather, the 
executive branch has an institutional self-interest in having 
these lawsuits dismissed--and therefore in having the state 
secrets privilege be construed as broadly as possible. As a 
result, judicial independence in the face of privilege claims 
is especially important.\77\
---------------------------------------------------------------------------
    \77\Cf. Halkin v. Helms, 598 F.2d 1, 13-14 (D.C. Cir. 1978) 
(Bazelon, J., dissenting from denial of petition for rehearing en banc) 
(warning that without an independent judicial determination of the 
propriety of state secrets assertions, ``the privilege becomes a shield 
behind which the government may insulate unlawful behavior from 
scrutiny and redress by citizens''); Comm. for Nuclear Responsibility 
v. Seaborg, 463 F.2d 788, 794 (D.C. Cir. 1971) (``[N]o executive 
official or agency can be given absolute authority to determine what 
documents in his possession may be considered by the court in its task 
[of determining applicability of a privilege]. Otherwise the head of an 
executive department would have the power on his own say so to cover up 
all evidence of fraud and corruption when a federal court or grand jury 
was investigating malfeasance in office. * * *''); 4 John Henry 
Wigmore, A Treatise on the System of Evidence in Trials at Common Law 
Sec. 2376, at 3345 (1905) (``The lawful limits of the privilege are 
extensible beyond any control, if its applicability is left to the 
determination of the very official whose interest it is to shield his 
wrongdoing under the privilege. Both principle and policy demand that 
the determination of the privilege shall be for the judge.''); William 
G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 
Pol. Sci. Q. 85, 90 (2005) (``[I]f the privilege protects the executive 
and agencies from investigation and judicial power, then the incentive 
on the part of administrators is to use the privilege to avoid 
embarrassment, to handicap political enemies, and to prevent * * * 
investigation of administrative action.''); Note, The Military and 
State Secrets Privilege: Protection for National Security or Immunity 
for the Executive?, 91 Yale L.J. 570, 578-79 (1982) (discussing ``the 
need for judicial supervision of evidentiary privileges to prevent 
their use as a shield against liability''); Stuart Taylor Jr., 
Reforming the State Secrets Privilege, Nat'l J., Apr. 12, 2008, at 16 
(noting that the Executive Branch ``has shown, time and time again, 
that it cannot be trusted not to use bogus national security claims to 
avoid exposure of misconduct or embarrassment'').
---------------------------------------------------------------------------
    To balance the testimony of a Government expert, subsection 
4054(e)(3) requires the court to ``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.'' This language is intended not only to instruct the 
court on the manner of weighing Government expertise, but also 
to encourage greater use of non-governmental experts--again, 
for the fundamental reason that vigorous judicial review is 
needed as a check against the incentives in favor of executive 
branch secrecy. Non-governmental experts may be individuals who 
have been granted security clearances to review the allegedly 
privileged evidence; or, in some situations, it may be possible 
for individuals without clearance to provide expert assistance 
based on the unclassified version of the Government's affidavit 
required under subsection 4054(b). If no non-governmental 
expert is available in a given case, the court will weigh a 
Government expert's testimony in the same manner as it weighs 
expert testimony in any other case.
    Importantly, subsection 4054(e)(3) rejects any notion that 
courts lack the competence or ability to evaluate the potential 
harm to national defense or foreign relations from public 
disclosure. Federal judges are appointed by the President, 
confirmed by the Senate, and take an oath to uphold the 
Constitution. Resolving questions of evidence and privilege are 
core functions of the judiciary. Numerous statutes such as 
CIPA, FOIA, and FISA already require courts to handle national 
security materials and secret information as a routine 
matter.\78\ Not once has there been any proven harm to national 
security, and none of these statutes has ever been seriously 
questioned on grounds of institutional competence. Furthermore, 
special masters and other independent advisors are available to 
provide technical assistance, as provided in subsection 
4052(f).
---------------------------------------------------------------------------
    \78\See supra notes 71 and 76 and accompanying text (discussing 
judicial review under FOIA). Under FISA, Article III judges must 
independently review the Government's assertion that electronic 
surveillance is needed for foreign intelligence purposes, 50 U.S.C. 
Sec. 1805 (2006), and Federal district courts may review highly 
sensitive information in camera and ex parte to determine whether the 
surveillance was authorized and conducted in accordance with FISA, id. 
Sec. 1806(f). Under CIPA, Federal courts must determine whether and to 
what extent classified information may be used at trial. 18 U.S.C. app. 
(2000).
---------------------------------------------------------------------------
    Testifying before the Judiciary Committee, Judge Patricia 
M. Wald observed that judges ``deal with national security 
information on a regular basis and can be entrusted with its 
evaluation on the relatively modest decisional threshold of 
whether its disclosure is `reasonably likely' to pose a 
national security risk.''\79\ William Webster, a former Federal 
judge at the district and appellate level and former head of 
both the FBI and CIA, stated: ``I can confirm that judges can 
and should be trusted with sensitive information and that they 
are fully competent to perform an independent review of 
executive branch assertions of the state secrets 
privilege.''\80\
---------------------------------------------------------------------------
    \79\Examining the State Secrets Privilege: Protecting National 
Security While Preserving Accountability, Hearing before the S. Comm. 
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of 
Patricia M. Wald). Judge Wald further noted that ``[t]o [her] 
knowledge, there have been no court `leaks' of any such information,'' 
and that ``it is neither unusual or unduly burdensome for federal 
judges to handle classified information; many do it on a daily basis.'' 
Id.
    \80\Examining the State Secrets Privilege: Protecting National 
Security While Preserving Accountability, Hearing before the S. Comm. 
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of 
William H. Webster).
---------------------------------------------------------------------------
    The sponsors of this legislation agree with the statements 
of Judge Wald and Judge Webster. Guided by the procedures set 
forth in the bill, informed by its required affidavits, pre-
trial hearings, and evidentiary indices, and assisted to the 
extent necessary by expert testimony and special masters or 
other independent advisors, Federal judges will have all the 
tools they need to make a reasoned and responsible independent 
evaluation of privilege claims. If the executive branch cannot 
persuade the court that an item of evidence is reasonably 
likely to cause significant harm, then that item does not 
deserve the extraordinary protections afforded by the state 
secret privilege. Moreover, the bill's provision for 
interlocutory appeal ensures that privileged evidence will not 
be disclosed on the basis of a single judge's determination, if 
the Government believes the determination was erroneous.
    Subsection 4054(f) instructs the court, when it has found 
that material evidence is subject to the state secrets 
privilege, to order the Government, if 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.'' This role for non-privileged substitutes draws on 
existing practices in encouraging judges to reconcile the 
interests of national security with the interests of justice 
and the adversarial process through carefully tailored 
procedures,\81\ and it can play a critical role in effectuating 
the bill's aim of minimizing the disruption to litigation 
caused by the privilege. While the court has the authority 
under this subsection to order a substitute, the executive 
branch is the body that would actually create the substitute, 
subject to the court's review.
---------------------------------------------------------------------------
    \81\As noted above, under the Freedom of Information Act courts 
must require the Government to segregate exempt information (such as 
properly classified material) from non-exempt information, see supra 
notes 71 and 76 and accompanying text, and the submission of non-
classified substitutes is a central aspect of the Classified 
Information Procedure Act, which expressly provides courts with 
discretion to deny Government requests to delete specific data from 
classified materials or substitute summaries or stipulations of facts. 
18 U.S.C. app. Sec. 4 (2000). See also Fitzgerald v. Penthouse Int'l 
Ltd., 776 F.2d 1236, 1238 n.3 (4th Cir. 1985) (``When the state secrets 
privilege is validly asserted, the result is unfairness to individual 
litigants--through the loss of important evidence or dismissal of a 
case--in order to protect a greater public value. Often, through 
creativity and care, this unfairness can be minimized through the use 
of procedures which will protect the privilege and yet allow the merits 
of the controversy to be decided in some form.'').
---------------------------------------------------------------------------
    Subsection 4054(g) states that if the court orders the 
Government to provide a non-privileged substitute and the 
Government fails to comply, the court ``shall resolve the 
disputed issue of fact or law to which the evidence pertain in 
the non-government party's favor.'' This requirement puts teeth 
into the authority provided to the court in subsection 4054(f). 
The executive branch may refuse to turn over the substitute as 
ordered--which further undermines any argument that the bill 
unconstitutionally encroaches upon executive branch authority 
over alleged state secrets--but such defiance would come with 
an appropriately tailored penalty.\82\ An analogous provision 
exists in CIPA, under which, if a defendant is prevented from 
introducing classified information needed for his or her 
defense, the court may dismiss the indictment or ``find[] 
against the United States on any issue as to which the excluded 
classified information relates.''\83\
---------------------------------------------------------------------------
    \82\In the Reynolds case, both the district court and the appellate 
court held against the Government when the Government refused to 
release the accident report--now widely believed not to contain any 
state secrets--to the trial judge to be read in chambers. See Louis 
Fisher, In the Name of National Security: Unchecked Presidential Power 
and the Reynolds Case 56-57, 79-86 (2006).
    \83\18 U.S.C. app. 3 Sec. 6(e)(2)(B) (2000).
---------------------------------------------------------------------------
    Section 4055. In a new section 4055 of the United States 
Code, the bill sets forth procedures for when evidence 
protected by the state secrets privilege is necessary for 
adjudication of a claim or counterclaim.
    Section 4055 allows the court to dismiss a claim or 
counterclaim on the basis of the state secrets privilege only 
if certain specified conditions are met. As indicated in 
subsection 4054(b), this section provides the exclusive means 
of dismissing a claim or counterclaim on the basis of the 
privilege. It is designed to reflect the sponsors' intent that, 
whenever possible, Federal civil cases and claims should not be 
dismissed--a drastic remedy strongly disfavored by 
constitutional and policy considerations\84\--solely on account 
of the state secrets privilege. Put differently, privileged 
evidence should never be allowed to shut down litigation that 
could proceed without it.
---------------------------------------------------------------------------
    \84\Cf. In re United States, 872 F.2d 472, 477 (D.C. Cir. 1989) 
(``Dismissal of a suit, and the consequent denial of a forum without 
giving the plaintiff her day in court, * * * is indeed draconian.''); 
Fitzgerald v. Penthouse Int'l Ltd., 776 F.2d 1236, 1242 (4th Cir. 1985) 
(``[D]enial of the forum provided under the Constitution for resolution 
of disputes is a drastic remedy that has rarely been invoked.''); 
Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 995 (N.D. Cal. 2006) 
(recognizing that ``the state secrets privilege has its limits'' and 
that ``the court * * * takes seriously its constitutional duty to 
adjudicate the disputes that come before it'').
---------------------------------------------------------------------------
    Subsection 4055(1), the first condition, indicates that a 
claim may not be dismissed if it is possible to produce a non-
privileged substitute version of material privileged evidence 
that would allow the claim to be litigated fairly. Subsection 
4055(2) indicates that dismissal is not allowed if it would 
harm national security. This provision ensures that the court 
will not dismiss cases in ways that would themselves jeopardize 
security--for example, if the very act of dismissal might tend 
to reveal a sensitive fact, or if the court believes that 
judicial resolution of an issue is needed to prevent harm to 
the safety and well-being of Americans. Drawing on an approach 
developed in recent doctrine,\85\ subsection 4055(3) precludes 
dismissal if continuing with the litigation in the absence of 
the privileged evidence would not impair the ability of a party 
to pursue a valid defense. This provision ensures that, just as 
non-material privileged evidence may not be the basis for 
dismissal under subsection 4055(1), nor may dismissal be 
predicated on privileged evidence that would not be important 
to a party's pursuit of a valid defense.
---------------------------------------------------------------------------
    \85\See In re Sealed Case, 494 F.3d 139, 148-49 (D.C. Cir. 2007) 
(discussing precedent for the ``valid defense'' standard, under which 
if the ``court can determine that the defendant will be deprived of a 
valid defense based on the privileged materials, it may properly 
dismiss the complaint'').
---------------------------------------------------------------------------
    ``Valid'' in subsection 4055(3) means legally and factually 
colorable. Thus, if the court determines through in camera 
review that evidence is privileged but its absence from 
litigation would not substantially impair the ability of a 
party to pursue a defense that the court determines is or may 
be legally and factually meritorious, then that evidence may 
not be the basis for dismissal on state secrets grounds. That 
evidence would still be excluded from the litigation on account 
of its privileged status, Sec. 4054(e)(2)(A), and it could not 
be disclosed or admitted during trial. In some cases, the 
inability to use such evidence may prevent the plaintiff from 
making out a prime facie case, even when the evidence suggests 
that the plaintiff's claims may be meritorious; the bill thus 
accepts that in some rare and unfortunate instances, the 
interests of litigants may be compromised in order to protect 
state secrets. In other cases, however, a plaintiff may have 
its own evidence with which to make out a prime facie case, or 
may be able to make out a case with non-privileged evidence 
procured from the Government. In this way, the bill gives 
parties an opportunity to make a preliminary showing even in 
cases in which the privilege is found to apply.\86\
---------------------------------------------------------------------------
    \86\Cf. Examining the State Secrets Privilege: Protecting National 
Security While Preserving Accountability, Hearing before the S. Comm. 
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of H. 
Thomas Wells, Jr., President-Elect, American Bar Association) (``To 
state this more plainly, if the plaintiff could prove the essential 
elements of his claim without privileged information, the case would be 
allowed to proceed as long as the government could fairly defend 
against the claim without having to use privileged information. 
However, if the government would have its hands tied behind its back by 
not being able to invoke essential privileged information in defending 
against the plaintiff's case, the case would be dismissed.'').
---------------------------------------------------------------------------
    These rules protect the Government and private defendants 
from suffering an unfair result under the bill. If a plaintiff 
cannot make out a case using non-privileged evidence, the 
defendant can, as always, prevail on summary judgment (unless 
the court, based on the circumstances of the case, has 
exercised its equitable authority to resolve relevant factual 
questions in the non-government party's favor). If a defendant 
is deprived of information needed to present a valid defense on 
account of the privilege, the court may dismiss the claim, thus 
ensuring that no party is ever put to a ``Hobson's Choice'' of 
litigating with state secrets evidence or swallowing an 
unwarranted adverse judgment.
    In some recent cases, the Government has asserted that the 
``very subject matter of the action'' is a state secret, such 
that any further proceeding would jeopardize national 
security.\87\ To the extent that such assertions are based on 
the notion that the privilege may apply to a lawsuit simply 
because the topic of the lawsuit implicates sensitive matters, 
that notion is rejected. Lawsuits do not exist apart from the 
materials and testimony that comprise them. If the plaintiff 
can make out a case using only non-privileged evidence, and the 
defendant can present its defense using only non-privileged 
evidence, then clearly the case can and should proceed. To the 
extent that such assertions are based on the notion that the 
case would necessarily be ``pervaded with state secrets''\88\ 
and could not be litigated without the use of privileged 
evidence, the bill simply puts such categorical claims to the 
proof, requiring the Government to demonstrate to the court's 
satisfaction the extent to which state secrets pervade the 
lawsuit by identifying the specific items of evidence that 
contain state secrets. As noted above, the bill rejects the 
expansion of the state secrets privilege into any manner of 
justiciability doctrine, and demands that it be applied as a 
purely evidentiary privilege.
---------------------------------------------------------------------------
    \87\See, e.g., Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 
1998); Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 
1200 (9th Cir. 2007).
    \88\See, e.g., El-Masri v. United States, 479 F.3d 296, 306 (4th 
Cir. 2007).
---------------------------------------------------------------------------
    Section 4056. In a new section 4056 of the United States 
Code, the bill sets forth procedures for interlocutory appeal.
    This section draws on CIPA\89\ in allowing parties an 
expedited appeal of any court order under the Act, such as an 
order on the privileged or non-privileged status of certain 
items of evidence, which ensures a timely additional layer of 
review. This provision protects national security by ensuring 
that an erroneous decision by a single district court judge 
would not lead to the release of properly privileged evidence.
---------------------------------------------------------------------------
    \89\See 18 U.S.C. app. Sec. 7 (2000).
---------------------------------------------------------------------------
    Section 4057. In a new section 4057 of the United States 
Code, the bill sets forth security procedures.
    Subsection 4057(a) adopts security procedures established 
under CIPA\90\ to protect against unauthorized disclosure of 
evidence subject to the state secrets privilege.
---------------------------------------------------------------------------
    \90\See 18 U.S.C. app Sec. 9 (2000).
---------------------------------------------------------------------------
    Subsection 4057(b) authorizes the Chief Justice of the 
United States, in consultation with the Attorney General, the 
Director of National Intelligence, and the Secretary of 
Defense, to create additional rules to implement the bill, 
subject to the review of congressional oversight committees. 
The Chief Justice must submit any proposed rules to appropriate 
congressional committees prior to their implementation. Such 
submission should include an explanation of why the proposed 
rules are needed.
    All rules promulgated under this subsection must comply 
with the letter and the spirit of the bill, such as its goal of 
minimizing the disruptive effects of the state secrets 
privilege on civil litigation and allowing cases to be 
litigated to the fullest extent possible consistent with 
national security. The rules may include procedures to help 
provide for the special masters and guardians ad litem 
contemplated by the bill--for example, by ensuring a minimum 
number of guardians ad litem and special masters in each 
judicial district to assist parties in state secrets cases. 
Allowing these officials to be chosen solely by the executive 
branch would not ``comply with the letter and spirit of the 
bill''; it is assumed that any rules issued on the provision of 
guardians ad litem and special masters will take into account 
the need for these officials to perform their roles without 
institutional bias.
    Section 4058. In a new section 4058 of the United States 
Code, the bill provides reporting requirements.
    Subsection 4058(a) requires the Attorney General to report 
to the House and Senate Intelligence and Judiciary Committees 
on each instance in which the United States claims the state 
secrets privilege, including providing the committees with 
copies of the affidavits, indices, and, upon request, the 
evidence. These materials shall be made available to all 
members of the committees. This reporting requirement enhances 
accountability for both the judiciary and the executive branch. 
By keeping Congress informed on the executive branch's use of 
the privilege, the reporting requirement enables Congress to 
formulate legislation or take other appropriate corrective 
action in cases in which the privilege prevents the courts from 
ruling on illegal or unconstitutional Government conduct or 
denies injured parties the relief they would otherwise be due.
    Section 4058(a) thus clarifies the congressional right of 
access to information it needs for its legislative and 
oversight duties. Providing this information to Congress does 
not implicate the national security concerns that would attend 
public disclosure in litigation. The Attorney General can 
transmit information under ``appropriate security measures,'' 
Sec. 4058(a)(4), and Members of Congress are no less 
trustworthy than executive branch officials.\91\ Congress has 
established physical security and staff clearance procedures, 
as well as procedures for the receipt of sensitive information, 
and all Members by virtue of their legislative responsibilities 
are entitled to classified information. As courts have 
recognized since the dawn of the Republic, Congress's authority 
to investigate executive branch activity is clearly implied in 
the Constitution and is a critical component of its authority 
to legislate and its responsibility to expose corruption and 
misfeasance.\92\ Congressional inquiries serving legitimate 
interests into even the most sensitive foreign policy, 
military, and prosecutorial matters have consistently been 
upheld by the courts.
---------------------------------------------------------------------------
    \91\Cf. F.T.C. v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 970 
(D.C. Cir. 1980) (``Release to a congressional requestor is not a 
public disclosure * * *. Once documents are in congressional hands, 
courts must presume that the committees of Congress will exercise their 
powers responsibly and with due regard for the rights of affected 
parties.'' (internal citations and quotations omitted)); Exxon Corp. v. 
F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (``We have * * * held that 
release of information to the Congress does not constitute public 
disclosure * * *. Because such divulgement is not public, it does not 
in itself impair the value of the * * * secrets involved.'' (internal 
citations and quotations omitted)).
    \92\See, e.g., Barenblatt v. United States, 360 U.S. 109, 111 
(1959) (``The scope of the power of [congressional] inquiry * * * is as 
penetrating and far-reaching as the potential power to enact and 
appropriate under the Constitution.''); Watkins v. United States, 354 
U.S. 178, 187 (1957) (``The power of the Congress to conduct 
investigations is inherent in the legislative process.''); McGrain v. 
Daugherty, 273 U.S. 135, 174 (1927) (``[T]he power of inquiry--with 
process to enforce it--is an essential and appropriate auxiliary to the 
legislative function. It was so regarded and employed in American 
legislatures before the Constitution was framed and ratified. Both 
houses of Congress took this view of it early in their history * * * 
and both houses have employed the power accordingly up to the present 
time.''); see also Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 
509 (1975) (``Nor is the legitimacy of a congressional inquiry to be 
defined by what it produces. The very nature of the investigative 
function--like any research--is that it takes the searchers up some 
`blind alleys' and into nonproductive enterprises. To be a valid 
legislative inquiry, there need be no predictable end result.''); 
Woodrow Wilson, Congressional Government 303 (1913) (``It is the proper 
duty of a representative body to look diligently into every affair of 
government and to talk much about what it sees. * * *. Unless Congress 
have and use every means of acquainting itself with the acts and the 
disposition of the administrative agents of the government, the country 
must be helpless to learn how it is being served and unless Congress 
both scrutinize these things and sift them by every form of discussion, 
the country must remain in embarrassing, crippling ignorance of the 
very affairs which it is most important that it should understand and 
direct. The informing function of Congress should be preferred even to 
its legislative function. The argument is not only that discussed and 
interrogated administration is the only pure and efficient 
administration, but, more than that, that the only really self-
governing people is that people which discusses and interrogates its 
administration.'').
---------------------------------------------------------------------------
    The reporting requirement established by subsection 4058(a) 
is intended as a floor, not a ceiling. The identification of 
the Intelligence and Judiciary Committees reflects the 
sponsors' judgment that reporting to these committees will be 
appropriate in all cases. However, there will undoubtedly be 
cases in which other committees--for example, the Armed 
Services and Foreign Relations Committees--should likewise be 
fully informed about the use of the privilege, on account of 
their institutional responsibilities over the implicated 
Government activity. It is assumed that the Intelligence and 
Judiciary Committees will provide access to the report and 
evidence transmitted under this subsection to any committee 
with jurisdiction over the subject matter of the lawsuit in 
question.
    Subsection 4058(b) instructs the Attorney General to submit 
annual reports to the House and Senate Intelligence and 
Judiciary Committees on the operation and effectiveness of the 
legislation for three years, and afterwards as necessary. This 
reporting requirement supplements the requirements in 
subsection 4058(a) by ensuring that Congress will remain 
informed of the executive branch's views on the bill, as well 
as on its use of the privilege, and by fostering interbranch 
dialogue on the subject. Congress has requested recommendations 
and reports from the President on numerous occasions. It is the 
President's prerogative to decline to offer suggested 
amendments to the bill under subsection 4058(b), although in so 
doing, the President would be undermining his or her own 
ability to advocate any desired legislative changes.
    Section 4059. In a new section 4059 of the United States 
Code, the bill provides a rule of construction.
    This section clarifies that the bill has no effect on court 
judgments unrelated to, and unaffected by, the state secrets 
privilege, and that nothing in the bill is intended to 
supersede any further or additional limit on the state secrets 
privilege under any other provision of law. It has been argued 
that section 1806(f) of FISA applies to the state secrets 
privilege, in its instruction that the district court ``shall, 
notwithstanding any other law, * * * review in camera and ex 
parte [materials relating to electronic surveillance] * * * to 
determine whether the surveillance of the aggrieved person was 
lawfully authorized and conducted.''\93\ If a court were to 
find that section 1806(f), or any other provision of 
constitutional, statutory, or judge-made law, places limits on 
the use or applicability of the state secrets privilege beyond 
the limits established under this bill, then those further or 
additional limits on the privilege would still apply.
---------------------------------------------------------------------------
    \93\50 U.S.C. Sec. 1806(f) (2000); see also In re Nat'l Sec. Agency 
Telecommunications Records Litigation, 2008 WL 2673772, at *1 (N.D. 
Cal. July 2, 2008) (finding that ``FISA preempts the state secrets 
privilege in connection with electronic surveillance for intelligence 
purposes and would appear to displace the state secrets privilege for 
purposes of plaintiffs' claims'').
---------------------------------------------------------------------------

Section 3. Severability

    This section clarifies that if any provision of the bill is 
held to be unconstitutional, the remainder of the bill shall 
not be affected thereby.

Section 4. Application to pending cases

    This section clarifies that the bill applies to any Federal 
civil case pending on or after the date of its enactment.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 
2533, the following estimate and comparison prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act of 1974:

                                                     July 11, 2008.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2533, the State 
Secrets Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Leigh Angres.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 2533--State Secrets Protection Act

    CBO estimates that implementing S. 2533 would have no 
significant impact on the federal budget. The bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    S. 2533 would codify certain practices and set limits on 
the federal government's use of the state secrets privilege. 
Under a Supreme Court ruling, the government can assert the 
state secrets privilege to withhold certain evidence that, if 
released, could harm national security. The bill would require 
the government to submit documents explaining the need for the 
privilege and allow judges to appoint experts to assess the 
validity of the government's claims. Finally, the bill would 
require the Attorney General to submit a report detailing 
instances when the federal government asserted the state 
secrets privilege.
    The government has invoked the state secrets privilege 40 
times in the last five years. Based on information obtained 
from the Department of Justice, CBO expects that the bill could 
alter and possibly increase litigation duties of federal 
attorneys. CBO estimates, however, that any resulting increase 
in federal spending would total less than $500,000 a year, 
assuming the availability of appropriated funds. Enacting S. 
2533 would not affect direct spending or revenues.
    The CBO staff contacts for this estimate are Leigh Angres 
and Jeffrey LaFave. The estimate was approved by Theresa Gullo, 
Deputy Assistant Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 2533.

                             VI. Conclusion

    By prompting the courts to apply the state secrets 
privilege in a clear, standardized, and rigorous way, the State 
Secrets Protection Act protects fundamental values, including 
constitutional rights, individual liberties, checks and 
balances, accountable Government, and access to justice. At the 
same time, by reinforcing the privilege and providing numerous 
procedural safeguards, the bill protects national security. Its 
systematic approach is a win-win for the rule of law and for 
the Nation's policy interests.

                          VII. MINORITY VIEWS

                              ----------                              


 MINORITY VIEWS FROM SENATORS HATCH, GRASSLEY, KYL, SESSIONS, GRAHAM, 
                      CORNYN, BROWNBACK AND COBURN

    The protection of state secrets in civil lawsuits forces us 
to weigh some of our most deeply held values against one 
another. On one side of this issue are the important values of 
open government and the principle that individuals who allege 
that they have been wronged deserve their day in court. On the 
other side is the imperative that we protect national security, 
which often means protecting military and intelligence secrets 
from disclosure through the civil justice process.
    Where the interests of open government and national 
security are in tension, it is important to strike a reasonable 
and workable balance between two legitimate but competing 
interests: the right of the people to know how their government 
works and the sometimes countervailing need of government to 
observe secrecy so that it can act effectively to protect 
national security, without which all the rights of the people 
would be in serious jeopardy.
    Throughout our nation's history, two coordinate branches, 
the Executive and the Judiciary, have worked to strike an 
appropriate balance between these core values. This balance is 
reflected in the well-settled doctrine that courts have crafted 
to govern the state secrets privilege. Through a long history 
of constitutional and common law deliberation, the Executive 
and Judicial branches have struck a workable and durable 
compromise--one with which Congress ought not tamper without 
significant justification and circumspection.
    Because the compromise struck by our coordinate branches of 
government sets the right balance between openness, justice, 
and national security, and because we believe that S. 2533 
disrupts this balance in a way that makes it too difficult for 
the government to protect national security secrets, we oppose 
S. 2533, the ``State Secrets Protection Act.''

           HISTORY AND CONTENT OF THE STATE SECRETS PRIVILEGE

    The doctrines that govern the privilege have been crafted 
by the Judicial Branch, and are deeply rooted in both the 
common law and the Constitution's separation of powers. The 
Common Law roots of the privilege date back at least to the 
early 17th Century. Edward Coke reported that a court in the 
early 1600s held that ``concerning matters of state, which are 
arcana imperii [state secrets],\1\ it is met they should be 
kept sub sigillo concilii, and in secret.''\2\ By the time of 
the framing of the Constitution, the state secrets privilege 
was so enshrined in the common law that Blackstone took note of 
the privilege in his Commentaries on the Laws of England.\3\
---------------------------------------------------------------------------
    \1\Black's Law Dictionary 135 (3d ed. 1933).
    \2\See William G. Weaver & Danielle Escontrias, Origins of the 
State Secrets Privilege 17 (2008) (unpublished manuscript) (quoting 12 
Co. Rep. 50, 53 (c. 1607)).
    \3\William Blackstone, Commentaries on the Laws of England 230-31 
(photo. reprint 1992) (1765) (``[A]rcana imperii [state secrets] * * * 
was not suffered to be pried into by any but such as were initiated in 
it's [sic] service.'').
---------------------------------------------------------------------------
    Cases involving whether a court may constitutionally force 
the Executive Branch to disclose secret information go back to 
the earliest days of our republic.\4\ In issuing a subpoena 
duces tecum to President Jefferson for documents relevant to 
the treason trial of Aaron Burr, Chief Justice John Marshall 
stated that ``If it does contain any matter which it would be 
imprudent to disclose, which it is not the wish of the 
Executive to disclose, such matter, if it be not immediately 
and essentially applicable to the point, will, of course, be 
suppressed.''\5\
---------------------------------------------------------------------------
    \4\See United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 
14692D); see also In re United States, 872 F.2d 472, 474-75 (D.C. Cir. 
1989) (tracing the roots of the privilege in this country to United 
States v. Burr).
    \5\Burr, 25 F.Cas. at 37.
---------------------------------------------------------------------------
    The evidentiary use of the state secrets privilege in the 
United States has its modern roots in the Supreme Court case of 
United States v. Reynolds.\6\ The privilege allows the 
government to withhold information from discovery when 
disclosure would be inimical to national security. The 
privilege is rooted in constitutional separation of powers 
principles as well as in the common law.\7\ The privilege may 
be asserted by the government to resist discovery of classified 
information in a civil suit, and the government may intervene 
in a lawsuit between two private parties to prevent the 
production of documents that are protected by the privilege.
---------------------------------------------------------------------------
    \6\345 U.S. 1 (1953). The Reynolds case has been criticized as 
being interpreted on an incorrect understanding of the facts. See S. 
Rep. No. 110-TBA at 3 n.3 (2008) (draft Committee report circulated by 
Chairman Leahy to accompany S. 2533). The state secrets privilege 
existed before Reynolds, and has been applied in scores of cases since. 
In Reynolds, Chief Justice Vinson, who had served in all three branches 
of government, set out a workable framework for analyzing assertions of 
the privilege. This framework has since been adopted by every court 
that has faced these questions. That the Truman administration may or 
may not have overstated their case one time over a half-century ago 
does not, in our view, impeach the validity of the court-crafted state 
secrets doctrine.
    \7\See United States v. Nixon, 418 U.S. 683, 710 (1974) (``Nowhere 
in the Constitution * * * is there any explicit reference to a 
privilege of [Presidential] confidentiality, yet to the extent this 
interest relates to the effective discharge of a President's powers, it 
is constitutionally based.'').
---------------------------------------------------------------------------
    The privilege applies when a court is satisfied ``from all 
the circumstances of the case, that there is a reasonable 
danger that compulsion of the evidence will expose military 
matters which, in the interest of national security, should not 
be divulged.''\8\ To invoke the privilege, the government must 
first submit a formal claim of privilege, signed by the head of 
the department that has control over the matter after actual 
personal consideration by that department head.\9\ The court, 
not the Executive Branch, makes the ultimate determination as 
to whether the privilege applies.\10\ In making this 
determination, courts give ``utmost deference'' to the 
determinations of the Executive Branch regarding the national 
security implications of disclosing the information.\11\ The 
degree to which the court may ``probe in satisfying itself'' 
that the privilege is properly invoked depends on ``the showing 
of necessity which is made'' by the party seeking 
production.\12\ Thus, when ``there is a strong showing of 
necessity, the claim of privilege should not be lightly 
accepted.''\13\ However, ``even the most compelling necessity 
cannot overcome the claim of privilege if the court is 
ultimately satisfied that military secrets are at stake.''\14\
---------------------------------------------------------------------------
    \8\Reynolds, 345 U.S. at 10.
    \9\See id., at 7.
    \10\Id. at 8 (``The court itself must determine whether the 
circumstances are appropriate for the claim of privilege, and yet do so 
without forcing a disclosure of the very thing the privilege is 
designed to protect.'').
    \11\See, e.g., Nixon 418 U.S. 683.
    \12\Reynolds, 345 U.S. at 11.
    \13\Id.
    \14\Id.
---------------------------------------------------------------------------

                   REASONS FOR OPPOSITION TO S. 2533

    We oppose the bill because the existing case law strikes an 
appropriate balance between civil justice and national 
security, which the bill risks upsetting. Courts have crafted 
state secrets doctrine to give themselves the necessary tools 
to adjudicate cases and controversies that come before them, 
while being mindful of the Executive Branch's unique and 
superior expertise on matters of national security. The bill 
erases this constitutional and common law doctrine of the 
courts, and replaces it with a new and unproven scheme that 
risks making the protection of national security secrets too 
difficult.

I. The state secrets doctrine as developed by the courts strikes the 
        right balance between the Judicial Branch's interest in doing 
        justice and the Executive Branch's interest in protecting 
        national security secrets.

    The bill is unnecessary because judges already have the 
necessary tools and procedures to adjudicate state secrets 
cases. The courts have carefully crafted state secrets doctrine 
to give themselves wide procedural latitude, and to preserve 
for themselves the ultimate determination of whether the 
government has proven that the state secrets privilege is 
properly invoked. As Senator Kennedy said in his introduction 
of the bill, ``many of the[] powers'' contained in the act 
``are already available to courts'' under settled state secrets 
doctrine.\15\ Because courts already have the powers they need 
to adjudicate these cases, legislative intervention is not 
urgent.
            a. Because judges already have the tools and procedures 
                    that they need to adjudicate cases involving the 
                    state secrets privilege, the bill is unnecessary if 
                    not harmful.
---------------------------------------------------------------------------
    \15\154 Cong. Rec. S198-02 (2008) (statement of Sen. Kennedy).
---------------------------------------------------------------------------
    The procedural latitude that is characterized by proponents 
of the bill as ``lack of uniformity'' is a feature, not a 
defect, of the state secrets doctrine.\16\ District judges have 
broad latitude in crafting the appropriate procedures for 
determining whether the privilege exists, and ``procedural 
innovation'' is encouraged.\17\ Courts have built great 
flexibility into the state secrets doctrine to allow themselves 
the latitude to strike an appropriate balance between the 
rights of litigants and the needs of national security on a 
case-by-case basis. As the DC Circuit noted, ``there is 
considerable variety in the situations in which a state secrets 
privilege may be fairly asserted. We would not wish to hobble 
district courts in designing procedures appropriate to novel 
cases.''\18\
---------------------------------------------------------------------------
    \16\See S. Rep. No. 110-TBA at 4 (2008) (draft Committee report 
circulated by Chairman Leahy to accompany S.2533).
    \17\Ellsberg v. Mitchell, 709 F.2d 51, 63-64 (D.C. Cir. 1983); see, 
e.g., Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006) (citing 
Ellsberg's call for ``procedural innovation'' in crafting procedures to 
aid the court in its review of putatively privileged materials).
    \18\Ellsberg, 709 F.2d at 63.
---------------------------------------------------------------------------
    An example of the flexibility that courts have built into 
state secrets doctrine can be seen in the Reynolds holding that 
the degree to which the court may ``probe in satisfying 
itself'' that the privilege is properly invoked depends on 
``the showing of necessity which is made'' by the party seeking 
production.\19\ Thus, when information is very important to 
doing justice, courts are more skeptical of the privilege. 
Similarly, courts are free to take account of the level of 
danger posed by the particular evidence that they are 
considering.\20\ The interests of justice and national security 
are different in every case, and current doctrine gives courts 
the flexibility to weigh them according to each unique set of 
facts and circumstances.
---------------------------------------------------------------------------
    \19\Reynolds v. United States, 345 U.S. 1, 11 (1953).
    \20\Id. at 9-10.
---------------------------------------------------------------------------
    A good example of a judge exercising this latitude can be 
found in Hepting v. AT&T.\21\ In that case, Judge Vaughn Walker 
of the Northern District of California used many of the tools 
contained in the bill in the process of thoroughly inspecting 
(and ultimately rejecting) the government's assertion of the 
state secrets privilege. Judge Walker ordered an in camera and 
ex parte review of the purportedly privileged materials, and 
proposed appointing an expert witness pursuant to Federal Rule 
of Evidence 706 to assist him in weighing the materials' 
national security import. Judge Walker's decision favoring the 
plaintiffs in Hepting was reviewed by the Ninth Circuit on an 
interlocutory basis. The Hepting case belies two of the key 
assumptions motivating the bill--that courts are unable to 
thoroughly review assertions of the state secrets privilege and 
that the government always prevails when the privilege is 
asserted.
---------------------------------------------------------------------------
    \21\439 F. Supp. 2d 974 (N.D. Cal. 2006).
---------------------------------------------------------------------------
    The fact that courts sometimes exercise their procedural 
discretion to conduct a less searching review of the privilege 
than in cases such as Hepting does not mean that those courts 
are abdicating their duty to determine whether the Executive's 
assertion of the privilege is valid. It is central to state 
secrets doctrine that even after the Executive Branch has 
formally asserted the state secrets privilege, judges still 
have the ultimate authority to determine whether the evidence 
is covered by the privilege.\22\ Executive claims of privilege 
are not to be lightly accepted by the courts.\23\ Under the 
courts' state secret doctrine, in theory and in practice, the 
Judiciary has provided the final word.
---------------------------------------------------------------------------
    \22\See Reynolds, 345 U.S. at 9-10.
    \23\See id. at 11; See also, e.g., Al-Haramain Islamic Found., Inc. 
v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (``We take very seriously 
our obligation to review the documents with a very careful, indeed a 
skeptical, eye, and not to accept at face value the government's claim 
or justification of privilege.'').
---------------------------------------------------------------------------
    The bill would supplant the flexibility that courts have 
given themselves with a rigid and mandatory regime. In doing 
so, it would stifle the procedural innovation that courts have 
said is crucial to adjudicating state secret claims in the 
variety of circumstances in which they arise.
            b. Under the Reynolds compromise, the state secrets 
                    privilege cannot be--and has not been--lightly 
                    invoked.
    While current state secrets doctrine gives courts great 
latitude in crafting their procedures, it imposes strict rules 
on the Executive Branch to ensure that the privilege cannot be 
invoked lightly. To invoke the privilege, the Executive Branch 
must first submit a formal claim of privilege, signed by the 
head of the department that has control over the matter.\24\ 
That department head must have actually personally considered 
the evidence, and determined that it is privileged.\25\ After 
these gate-keeping formalities are met, the government still 
carries the burden of establishing the privilege.\26\
---------------------------------------------------------------------------
    \24\Reynolds, 345 U.S. at 7-8.
    \25\Id.
    \26\El-Masri v. United States, 479 F.3d 296, 305 (4th Cir. 2007).
---------------------------------------------------------------------------
    The evidence shows that courts demand, and the government 
supplies, extensive evidence of the privilege's applicability 
before the privilege is upheld. In upholding assertions of the 
state secrets privilege in high-profile cases just last year, 
both the Ninth and Fourth Circuits described the extensively 
detailed evidence that the government provided in support of 
its privilege claim.\27\
---------------------------------------------------------------------------
    \27\See Al-Haramain, 507 F.3d at 1203-04 (``We are satisfied that 
the basis for the privilege is exceptionally well documented. Detailed 
statements underscore that disclosure of information concerning the 
Sealed Document and the means, sources and methods of intelligence 
gathering in the context of this case would undermine the government's 
intelligence capabilities and compromise national security.''); El-
Masri 479 F.3d at 312 (``[T]he reasons for the United States' claim of 
the state secrets privilege and its motion to dismiss were explained 
largely in the Classified Declaration, which sets forth in detail the 
nature of the information that the Executive seeks to protect and 
explains why its disclosure would be detrimental to national 
security.'').
---------------------------------------------------------------------------
    It has been said that Executive claims of the privilege 
rarely fail in court.\28\ Perhaps this is in part because the 
procedural mechanism requiring a formal claim of privilege 
signed by a department head after personal consideration 
frequently accomplishes its gate-keeper role of preventing 
spurious assertions of the state secrets privilege.\29\
---------------------------------------------------------------------------
    \28\S. Rep. No. 110-TBA at 12 (2008) (Majority report circulated by 
Chairman Leahy to accompany S.2533).
    \29\Several academics have accused the Bush Administration of 
invoking the state secrets privilege more often than its predecessors. 
However, the only thorough, quantitative study of which we are aware 
indicates that, while the raw number of assertions of the privilege has 
increased in recent years, the Bush Administration has not 
substantively expanded the types of cases in which the privilege is 
asserted. See Robert M. Chesney, State Secrets and the Limits of 
National Security Litigation, 75 Geo. Wash. L. Rev. 1249 (2007).
---------------------------------------------------------------------------
    Current state secrets doctrine strikes many delicate 
balances: between national security and the rights of 
litigants; between the need for rules by which a claim of 
privilege can be judged and the need for flexibility in 
responding to each case's facts and equities; and between the 
Executive Branch's mandate to protect national security and the 
Judicial Branch's mandate to uphold the law in individual cases 
and controversies. These balances should not be lightly 
discarded.

II. The bill disrupts the balance struck by the courts, and makes it 
        too difficult for the government to protect national security 
        secrets.

    Courts have developed the current state secrets doctrine 
through the common law process, and they retain the power to 
change it through that same process. The Judicial Branch has 
not sought to aggrandize the additional powers contained in the 
bill. In fact, it seems clear that courts crafted the state 
secrets doctrine to give deference to the Executive Branch 
because they were well aware of their own institutional 
limitations. Courts remain free to expand or contract the 
extent of their review under the state secrets doctrine as far 
as the Constitution allows. Perhaps courts could even accrue to 
federal judges the full powers contained in the bill. That 
courts have declined to aggrandize such additional powers 
should be powerful counsel to Congress as it considers 
rebalancing the courts' doctrine. Judges have consistently held 
that the Executive Branch is better positioned to weigh matters 
of national security than the Judicial Branch. Congress should 
not overrule the Judiciary when the Judiciary itself believes 
that judicial deference to executive expertise in national 
security matters is proper.
    The bill alters the balance struck by current state secrets 
doctrine in several ways that could pose risks to national 
security. Specifically, the bill: (a) lowers the level of 
deference that courts give to Executive assertions of the 
privilege; (b) raises the threshold that the Executive Branch 
must meet to withhold state secrets; (c) imposes impossible 
standards of proof against the government; (d) makes it more 
difficult to protect state secrets once they have been 
disclosed in litigation; and (e) makes it much more difficult 
for courts to dispose of meritless cases by threshold dismissal 
or summary judgment.
            a. By lowering the standard of deference that courts give 
                    to Executive branch assertions of the privilege, 
                    the bill invites courts to substitute their 
                    judgment for that of the Executive Branch in 
                    national security matters.
    Under state secrets doctrine, courts give ``utmost 
deference'' to the Executive Branch's determination that 
materials are covered by the state secrets privilege. This 
``utmost deference'' standard is the standard of deference most 
frequently adopted by courts in examining assertions of the 
state secrets privilege.\30\
---------------------------------------------------------------------------
    \30\See, e.g., United States v. Nixon, 418 U.S. 683 (1974); In re 
United States, 872 F.2d 472 (D.C. Cir. 1989); Kasza v. Browner, 133 
F.3d 1159 (9th Cir. 1998); Black v. United States, 62 F.3d 1115 (8th 
Cir. 1995); El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007); 
Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544 (2d Cir. 1991); 
McDonnell Douglas Corp. v. United States, 323 F.3d 1006 (Fed. Cir. 
2003).
---------------------------------------------------------------------------
    ``Utmost deference'' is appropriate when a court reviews 
the national security determinations of the Executive Branch. 
The Constitution gives the Executive Branch far greater power 
and authority over matters of national security than it gives 
to the Judicial Branch.\31\ This constitutional separation of 
powers is reflected in the reality that the Executive branch 
department head who asserts the state secrets privilege will 
have national security expertise, intelligence, and staff that 
dwarf that of the District Judge who reviews that assertion of 
the privilege.\32\
---------------------------------------------------------------------------
    \31\Compare U.S. Const., Art. II with id. at Art. III.
    \32\Even when holding against the government in national security 
cases, courts acknowledge the Executive Branch's superior national 
security expertise. See, e.g., Boumediene et al. v. Bush, 2008 WL 
2369628 (U.S.) slip op. (Kennedy, J. at p.68) ( ``Unlike the President 
and some designated Members of Congress, neither the members of this 
Court nor most federal judges begin the day with briefings that may 
describe new and serious threats to our Nation's security.'').
---------------------------------------------------------------------------
    Attorney General Michael Mukasey ably summarized the case 
law regarding the standard of deference in his March 31, 2008, 
letter to the Committee:

          To be sure, under current law it is the province of 
        the Judicial branch to determine whether the state 
        secrets privilege has been invoked properly. It is well 
        settled, however, that the courts should make that 
        determination by according the ``utmost deference'' to 
        the expertise and judgment of national-security 
        officials. E.g., Halkin v. Helms, 598 F.2d 1, 9 (D.C. 
        Cir. 1978) (``Courts should accord the `utmost 
        deference' to executive assertions of privilege upon 
        grounds of military or diplomatic secrets.'') (quoting 
        Nixon, 418 U.S. at 710). As many courts have 
        recognized, the ``utmost deference'' to the judgment of 
        the Executive branch is appropriate not only for 
        constitutional reasons, but also for practical reasons, 
        because national security officials ``occupy a position 
        superior to that of the courts in evaluating the 
        consequences of a release of sensitive information.'' 
        El-Masri, 479 F.3d at 305; see also Al-Haramain Islamic 
        Foundation, Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 
        2007) (``[W]e acknowledge the need to defer to the 
        Executive on matters of foreign policy and national 
        security and surely cannot legitimately find ourselves 
        second guessing the Executive in this arena.''). As the 
        courts have recognized, ``[t]he significance of one 
        item of information may frequently depend upon 
        knowledge of many other items of information,'' and 
        ``[w]hat may seem trivial to the uninformed, may appear 
        of great moment to one who has a broad view of the 
        scene and may put the questioned item of information in 
        its proper context.'' United States v. Marchetti, 466 
        F.2d 1309, 1318 (4th Cir. 1972). ``[C]ourts are not,'' 
        and should not be, ``required to play with fire and 
        chance further disclosure--inadvertent, mistaken, or 
        even intentional--that would defeat the very purpose 
        for which the privilege exists.'' Sterling v. Tenet, 
        416 F.3d 338, 344 (4th Cir. 2005).\33\
---------------------------------------------------------------------------
    \33\Letter of Michael B. Mukasey to Patrick J. Leahy, March 31, 
2008, at 3-4.

    The bill originally contained no standard of deference. At 
the Committee's meeting on April 24, 2008, the Committee 
adopted the Feinstein Amendment to insert a ``substantial 
weight'' standard of deference into the bill. At a minimum, 
giving ``substantial weight'' to a government assertion of the 
privilege is significantly less than ``utmost deference.'' But 
the Feinstein Amendment goes on to specify that ``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.'' This means that a court 
must give the same amount of deference to the head of an 
Executive Branch agency testifying to protect state secrets as 
the court gives to an expert witness seeking their disclosure--
no more, no less. Courts may not weigh the testimony of a 
government state secret witness more heavily, despite that he 
or she is an officer of a coordinate branch of government 
charged with protecting the national security. This is not 
deference at all.
    By putting the Executive Branch's testimony about national 
security matters on the same footing as the testimony of ``any 
other expert,'' the bill elevates judicial judgment above 
executive judgment in an area--national security--where the 
judicial branch is ill-equipped and ill-suited to handle such a 
responsibility.
    Senator Kyl circulated an amendment that would have 
required courts to give the Executive Branch ``utmost 
deference.'' The Kyl Amendment was not taken up by the 
Committee.
            b. By raising the threshold that the government must meet 
                    to protect state secrets, the bill risks disclosure 
                    of matters which, in the interest of national 
                    security, should not be divulged.
    Current doctrine protects material as a state secret when 
``there is a reasonable danger'' that disclosure ``will expose 
military matters which, in the interest of national security, 
should not be divulged.''\34\ The bill changes this definition 
to afford protection only when the evidence is ``reasonably 
likely to cause significant harm'' to national security.\35\ 
Thus, where the government currently needs to show ``a 
reasonable danger,'' under the bill the government would need 
to show a ``reasonable likel[ihood].'' Where the government 
currently needs to show that ``in the interest of national 
security, [the information] should not be divulged,'' under the 
bill the government would need to show that disclosure would 
likely result in ``significant harm.'' These changes would make 
it more difficult for the government to protect national 
security secrets.
---------------------------------------------------------------------------
    \34\Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1196 
(9th Cir. 2007).
    \35\State Secrets Protection Act, S. 2533, 110th Cong. Sec. 4051 
(2008).
---------------------------------------------------------------------------
    The ``reasonable danger'' standard has been almost 
universally applied by courts in state secrets cases, in both 
cases where the government's claim of privileged prevailed,\36\ 
and in cases where the government's claim of privilege 
failed.\37\ By contrast, we are unaware of any case that adopts 
the bill's ``reasonably likely to cause significant harm'' 
standard.
---------------------------------------------------------------------------
    \36\See, e.g., El-Masri v. United States, 479 F.3d 296 (4th Cir. 
2007); Al-Haramain, 507 F.3d 1190.
    \37\See, e.g., Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 
2006).
---------------------------------------------------------------------------
    The ``reasonable danger'' standard under current case law 
embodies a precautionary principle that it is best to err 
against exposure of national security secrets and an 
acknowledgement by courts that Executive officials are better 
positioned than judges to weigh matters of national security. 
This standard is consistent with the Constitution's structure. 
By only allowing the privilege where a court finds a likelihood 
of significant harm, the bill reverses the Judiciary's wisely 
deferential case law.
    Senator Cornyn circulated an amendment that would have 
changed the definition of ``state secret'' in the bill to track 
the definition developed by courts under current case law. The 
Cornyn Amendment was not taken up by the Committee.
            c. The bill requires the government to meet impossible 
                    standards to protect state secrets.
    The bill contains several provisions that would, in effect, 
force the government to prove a negative. For example, if a 
court ruled that material was a state secret under the bill, 
then the government would be required to provide a non-
privileged substitute for the material, unless the government 
could show that producing such a substitute was 
``impossible.''\38\ This is too high a standard. Senator 
Brownback circulated an amendment that would have changed the 
word ``impossible'' to ``not reasonably practical.'' The 
Brownback Amendment was not taken up by the Committee.
---------------------------------------------------------------------------
    \38\S. 2533 at Sec. 4055(1); see also id. at Sec. 4054(e)(1) 
(establishing that evidence is subject to the state secrets privilege 
if there is ``no possible means'' of effectively segregating it from 
other evidence that contains a state secret).
---------------------------------------------------------------------------
            d. The bill does not do enough to protect state secrets 
                    that are disclosed in the course of litigation.
    The bill would give litigants' attorneys access to evidence 
that the government asserts is a state secret. If the 
litigants' attorneys receive security clearances and 
participate in hearings reviewing, they will be made privy to 
evidence about which the state secrets privilege has been 
asserted. Thus, lawyers representing plaintiffs who are suing 
the government may gain access to information for the purposes 
of the hearing, even if that material is ultimately determined 
to be covered by the state secrets privilege. Senator Hatch's 
amendment to strike the provisions in the bill relating to 
attorney security clearances was rejected on a 10-8 party-line 
vote, with Senator Specter passing.
    The bill would authorize disclosure of sensitive national 
security information to judges, court personnel, and security-
cleared counsel for the limited purpose of adjudicating the 
state secrets claim. It is important to ensure that these 
participants in closed hearings under the bill do not further 
leak the alleged state secrets to anyone not authorized to 
receive the information. Senator Specter circulated amendments 
that would have made any disclosure of information obtained 
through state secret litigation under the bill a crime 
punishable by imprisonment. The Specter Amendments were not 
taken up by the Committee.
            e. The bill prevents threshold dismissal of claims.
    Current case law allows courts to dismiss cases based on 
the privilege ``when the very subject of the litigation is 
itself a state secret,'' and there is ``no way [the] case could 
be tried without compromising sensitive military secrets.''\39\ 
Thus, while it is well-settled that ``dismissal is appropriate 
only when no amount of effort and care on the part of the court 
and the parties will safeguard privileged material,'' it is 
equally well-settled that ``where the very question on which a 
case turns is itself a state secret, or the circumstances make 
clear that sensitive military secrets will be so central to the 
subject matter of the litigation that any attempt to proceed 
will threaten disclosure of the privileged matters, dismissal 
is the appropriate remedy.''\40\ The rule that a case may be 
dismissed when the very subject matter of the case is a state 
secret dates back to 1875 and Totten v. United States,\41\ in 
which Totten attempted to sue the United States for breach of a 
covert espionage contract. The Totten result makes sense--a 
court cannot adjudicate a contract action if the terms and 
existence of the contract cannot be disclosed.
---------------------------------------------------------------------------
    \39\El-Masri v. Tenet, 437 F. Supp. 2d 530, 538 (E.D. Va. 2006) 
(quoting Sterling v Tenet, 416 F.3d 338, 347-48 (4th Cir. 2005).
    \40\Id. at 538-39.
    \41\92 U.S. 105 (1875) (dismissing a claim for breach of an alleged 
covert espionage contract).
---------------------------------------------------------------------------
    The bill only allows dismissal on the basis of the state 
secrets privilege after court review of ``all available 
evidence, privileged and non-privileged,'' and then only when 
(1) it is impossible to create a non-privileged substitute for 
privileged information, (2) dismissal would not harm national 
security, and (3) continuing the case without the evidence 
would substantially impair the ability of a party to pursue a 
valid defense. This would essentially eliminate the Totten 
doctrine, and force courts to litigate cases ``the very subject 
of [which] is itself a state secret.''
    The bill actually makes a state secrets case harder to 
dismiss than a case that does not involve state secrets. Under 
the bill, a court is precluded from granting a motion to 
dismiss that is based even in part on the state secrets 
doctrine until the court has satisfied the bill's requirements, 
including ``reviewing all available evidence.'' Even if the 
plaintiff lacks standing to bring the action, the court could 
be required to review all of the evidence before dismissing the 
case. This result wastes judicial resources and encourages 
abuse of process. When there are grounds for dismissal or 
summary judgment that are adequate and independent of any 
grounds related to the state secrets privilege, the court 
should be free to dispose of the case without conducting a 
wasteful hearing. Dismissal and summary judgment are important 
tools for disposing of meritless litigation, and courts should 
not be discouraged from using these tools simply because the 
case involves state secrets.

                               CONCLUSION

    The courts are admirably loath to overturn the judgments of 
the Executive Branch on national security matters, because the 
courts recognize the Executive Branch's superior knowledge of 
national security. Similarly, Congress should be loath to 
overturn the courts' considered judgment regarding the 
appropriate legal standards to balance the interests of justice 
and national security.
    The bill upsets the judicially developed balance between 
protection of national security and private litigants' access 
to secret documents. The Judiciary has crafted state secrets 
doctrine to give judges the flexibility to weigh these 
interests with appropriate deference to Executive 
determinations of the national interest. This judicially 
crafted state secrets doctrine is sufficient. S. 2533, ``The 
State Secrets Protection Act,'' is unnecessary and potentially 
harmful to national security.

      VIII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 2533, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

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.
``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.
          ``(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 
United 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 
        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.

``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 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.