[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5956 Introduced in House (IH)]
112th CONGRESS
2d Session
H. R. 5956
To provide safe, fair, and responsible procedures and standards for
resolving claims of state secrets privilege.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 18, 2012
Mr. Nadler (for himself, Mr. Petri, Mr. Conyers, Ms. Zoe Lofgren of
California, Mr. Filner, Mr. Hinchey, and Mr. Stark) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide safe, fair, and responsible procedures and standards for
resolving claims of state secrets privilege.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State Secrets Protection Act''.
SEC. 2. AMENDMENT TO THE RULES OF EVIDENCE.
Article 5 of the Federal Rules of Evidence is amended by adding at
the end the following:
``Rule 503. State Secrets Privilege
``(a) In General.--In any civil action brought in Federal or State
court, the Government has a privilege to refuse to give information and
to prevent any person from giving information only if the Government
shows that public disclosure of the information that the Government
seeks to protect would be reasonably likely to cause significant harm
to the national defense or the diplomatic relations of the United
States.
``(b) Protection of Secrets.--
``(1) In general.--The court shall take steps to protect
sensitive information that comes before the court in connection
with proceedings under this Rule. These steps may include
reviewing evidence or pleadings and hearing arguments ex parte,
issuing protective orders, placing material under seal, and
applying security procedures established under the Classified
Information Procedures Act for classified information to
protect the sensitive information.
``(2) In camera proceedings.--All hearings and other
proceedings under this Rule may be conducted in camera, as
needed to protect information that may be subject to the
privilege.
``(3) Participation of counsel.--Participation of counsel
in proceedings under this Rule may be limited if the court
determines that the limitation is a necessary step to protect
information the Government asserts is protected by the
privilege or that supports the claim of privilege.
``(4) Guardian ad litem.--Where counsel is excluded from a
proceeding, the court shall have discretion to appoint a
guardian ad litem to represent the absent litigant's interests,
drawing, in consultation with the excluded nongovernmental
party, from a previously generated list of attorneys who have
been granted required security clearances in the past and have
agreed to serve in this capacity. The guardian ad litem shall
not discuss the information claimed as privileged or its
content with any nongovernmental party or nongovernmental
party's counsel.
``(5) Production of adequate substitute pending resolution
of the claim of privilege.--If, at any point during its
consideration of the Government's claim, the court determines
that disclosure of information to a party or counsel, or
disclosure of information by a party that already possesses it,
presents a risk of a harm described in subsection (a) that
cannot be addressed through less restrictive means provided in
this subsection, the court may require the Government to
produce an adequate substitute, such as a redacted version,
summary of the information, or stipulation regarding the
relevant facts, if the court deems such a substitute feasible.
The substitute must be reviewed and approved by the court and
must provide counsel with a substantially equivalent
opportunity to assess and challenge the Government's claim of
privilege as would the protected information.
``(c) Assertion of the Privilege.--
``(1) In general.--The Government may assert the privilege
in connection with any claim in a civil action to which it is a
party or may intervene in a civil action to which it is not a
party to do so.
``(2) Supporting affidavits.--If the Government asserts the
privilege, the Government shall provide the court with an
affidavit signed by the head of the executive branch agency
with responsibility for, and control over, the information
asserted to be subject to the privilege. In the affidavit, the
head of the agency shall explain the factual basis for the
claim of privilege. The Government shall make public an
unclassified version of the affidavit.
``(d) Preliminary Proceedings.--
``(1) Preliminary review by court.--Once the Government has
asserted the privilege, and before the court makes any
determinations under subsection (e), the court shall undertake
a preliminary review of the information the Government asserts
is protected by the privilege and provide the Government an
opportunity to seek protective measures under this Rule. After
any initial protective measures are in place, the court shall
proceed to the consideration of additional preliminary matters
under this subsection.
``(2) Consideration of whether to appoint special master or
expert witness.--The court shall consider whether the
appointment of a special master with appropriate expertise or
an expert witness, or both, would facilitate the court's duties
under this Rule.
``(3) Index of materials.--The court may order the
Government to provide a manageable index of the information
that the Government asserts is subject to the privilege. The
index must correlate statements made in the affidavit required
under this Rule with portions of the information the Government
asserts is subject to the privilege. The index shall be
specific enough to afford the court an adequate foundation to
review the basis of the assertion of the privilege by the
Government.
``(4) Prehearing conferences.--After the preliminary
review, the court shall hold one or more conferences with the
parties to--
``(A) determine any steps needed to protect
sensitive information;
``(B) define the issues presented by the
Government's claim of privilege, including whether it
is possible to allow the parties to complete
nonprivileged discovery before determining whether the
claim of privilege is valid;
``(C) order disclosure to the court of anything
needed to assess the claim, including all information
the Government asserts is protected by the privilege
and other material related to the Government's claim;
``(D) resolve any disputes regarding participation
of counsel or parties in proceedings relating to the
claim, including access to the Government's evidence
and arguments;
``(E) set a schedule for completion of discovery
related to the Government's claim; and
``(F) take other steps as needed, such as ordering
counsel or parties to obtain security clearances.
``(e) Procedures and Standard for Assessing the Privilege Claim.--
``(1) Hearing.--The court shall conduct a hearing to
determine whether the privilege claim is valid.
``(2) Basis for ruling.--
``(A) Generally.--The court may not determine that
the privilege is valid until the court has reviewed--
``(i) except as provided in subparagraph
(B), all of the information that the Government
asserts is privileged;
``(ii) the affidavits, evidence, memoranda
and other filings submitted by the parties
related to the privilege claim; and
``(iii) any other evidence that the court
determines it needs to rule on the privilege.
``(B) Sampling in certain cases.--Where the volume
of information the Government asserts is privileged
precludes a timely review, or the court otherwise
determines a review of all of that information is not
feasible, the court may substitute a sufficient
sampling of the information if the court determines
that there is no reasonable possibility that review of
the additional information would change the court's
determination on the privilege claim and the
information reviewed is sufficient to enable the court
to make the independent assessment required by this
subsection.
``(3) Standard.--In ruling on the validity of the
privilege, the court shall make an independent assessment of
whether the harm identified by the Government, as required by
subsection (a), is reasonably likely to occur should the
privilege not be upheld. The court shall weigh testimony from
Government experts in the same manner as it does, and along
with, any other expert testimony.
``(4) Burden of proof.--The Government shall have the
burden of proof as to the nature of the harm and as to the
likelihood of its occurrence.
``(f) Effect of Court Determination.--
``(1) In general.--If the court determines that the
privilege is not validly asserted, the court shall issue
appropriate orders regarding the disclosure of the information
to a nongovernmental party and its admission at trial, subject
to the other rules of evidence, with the right to interlocutory
appeal as provided in subsection (g) for any such orders. If
the court determines that the privilege is validly asserted,
that information shall not be disclosed to a nongovernmental
party or the public.
``(2) Nonprivileged substitute.--
``(A) Court consideration of substitute.--If the
court finds that the privilege is validly asserted and
it is possible to craft a nonprivileged substitute,
such as those described in subsection (b)(5), for the
privileged information that would provide the parties a
substantially equivalent opportunity to litigate the
case, the court shall order the Government to produce
the substitute to the satisfaction of the court.
``(B) Refusal to provide.--In a civil action
brought against the Government, if the court orders the
Government to provide a nonprivileged substitute for
information and the Government fails to comply, in
addition to any other appropriate sanctions, the court
shall find against the Government on the factual or
legal issue to which the privileged information is
relevant. If the action is not brought against the
Government, the court shall weigh the equities and make
appropriate orders as provided in paragraph (4).
``(3) Opportunity to complete discovery.--The court shall
not resolve any issue or claim and shall not grant a motion to
dismiss or motion for summary judgment based on the state
secrets privilege and adversely to any party against whom the
Government's privilege claim has been upheld until that party
has had a full opportunity to complete nonprivileged discovery
and to litigate the issue or claim to which the privileged
information is relevant without regard to that privileged
information.
``(4) Appropriate orders in the interest of justice.--After
reviewing all available evidence, and only after determining
that privileged information, for which it is impossible to
create a nonprivileged substitute, is necessary to decide a
factual or legal issue or claim, the court shall weigh the
equities and make appropriate orders in the interest of
justice, such as striking the testimony of a witness, finding
in favor of or against a party on a factual or legal issue to
which the information is relevant, or dismissing a claim or
counterclaim. This paragraph does not permit an award of money
damages against a party based in whole or in part on privileged
information that was not disclosed to that party.
``(g) Interlocutory Appeal.--
``(1) In general.--The courts of appeal shall have
jurisdiction of an appeal from a decision or order of a
district court determining that the state secrets privilege is
not validly asserted, sanctioning a refusal to provide an
adequate or nonprivileged substitute required under this Rule,
or refusing protective steps sought by the Government under
this Rule pending the resolution of the claim of state secrets
privilege.
``(2) Appeal.--
``(A) In general.--An appeal taken under this
section either before or during trial shall be
expedited by the court of appeals.
``(B) 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--
``(i) shall hear argument on appeal as
expeditiously as possible after adjournment of
the trial by the district court;
``(ii) may dispense with written briefs
other than the supporting materials previously
submitted to the trial court;
``(iii) shall render its decision as
expeditiously as possible after argument on
appeal; and
``(iv) may dispense with the issuance of a
written opinion in rendering its decision.
``(h) Reporting.--
``(1) In general.--Consistent with applicable authorities
and duties, including those conferred by the Constitution of
the United States upon the executive and legislative branches,
the Attorney General shall report in writing to the Permanent
Select Committee on Intelligence of the House of
Representatives, the Select Committee on Intelligence of the
Senate, and the chairmen and ranking minority members of the
Committees on the Judiciary of the House of Representatives and
Senate on any case in which the Government invokes a state
secrets privilege, not later than 30 calendar days after the
date of such assertion. Each report submitted under this
subsection shall include all affidavits filed under this Rule
by the Government.
``(2) Operation and effectiveness.--
``(A) In general.--The Attorney General shall
deliver to the committees of Congress described in
paragraph (1) a report concerning the operation and
effectiveness of this Rule and including suggested
amendments to the Rule.
``(B) Deadline.--The Attorney General shall submit
this report not later than 1 year after the date of
enactment of this Rule, 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 subparagraph (A) as necessary.
``(i) Rule of Construction.--This Rule provides the only privilege
that may be asserted in civil cases based on state secrets and the
standards and procedures set forth in this Rule apply to any assertion
of the privilege.
``(j) Application.--This Rule applies to claims pending on or after
the date of enactment of this Rule. A court also may relieve a party or
its legal representative from a final judgment, order, or proceeding
that was based, in whole or in part, on the state secrets privilege
if--
``(1) the motion for relief is filed with the rendering
court within one year of the date of enactment of this Rule;
``(2) the underlying judgment, order, or proceeding from
which the party seeks relief was entered after January 1, 2002;
and
``(3) the claim on which the judgment, order, or proceeding
is based is--
``(A) against the Government; or
``(B) arises out of conduct by persons acting in
the capacity of a Government officer, employee, or
agent.''.
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