II

106TH CONGRESS

1ST SESSION S. 1360

To preserve the effectiveness of Secret Service protection by establishing

a protective function privilege, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 13 (legislative day, JULY 12), 1999

Mr. LEAHY introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To preserve the effectiveness of Secret Service protection

by establishing a protective function privilege, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Secret Service Protec5 tive Privilege Act of 1999’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress makes the following find8 ings:
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1 (1) The physical safety of the Nation’s top

2 elected officials is a public good of transcendent im3 portance.

4 (2) By virtue of the critical importance of the

5 Office of the President, the President and those in

6 direct line of the Presidency are subject to unique

7 and mortal jeopardy—jeopardy that in turn threat8 ens profound disruption to our system of representa9 tive government and to the security and future of

10 the Nation.

11 (3) The physical safety of visiting heads of for12 eign states and foreign governments is also a matter

13 of paramount importance. The assassination of such

14 a person while on American soil could have calami15 tous consequences for our foreign relations and na16 tional security.

17 (4) Given these grave concerns, Congress has

18 provided for the Secret Service to protect the Presi19 dent and those in direct line of the Presidency, and

20 has directed that these officials may not waive such

21 protection. Congress has also provided for the Secret

22 Service to protect visiting heads of foreign states

23 and foreign governments.

24 (5) The protective strategy of the Secret Serv25 ice depends critically on the ability of its personnel
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1 to maintain close and unremitting physical proximity

2 to the protectee.

3 (6) Secret Service personnel must remain at the

4 side of the protectee on occasions of confidential

5 conversations and, as a result, may overhear top se6 cret discussions, diplomatic exchanges, sensitive con7 versations, and matters of personal privacy.

8 (7) The necessary level of proximity can be

9 maintained only in an atmosphere of complete trust

10 and confidence between the protectee and his or her

11 protectors.

12 (8) If a protectee has reason to doubt the con13 fidentiality of actions or conversations taken in sight

14 or hearing of Secret Service personnel, the protectee

15 may seek to push the protective envelope away or

16 undermine it to the point at which it could no longer

17 be fully effective.

18 (9) The possibility that Secret Service personnel

19 might be compelled to testify against their protectees

20 could induce foreign nations to refuse Secret Service

21 protection in future state visits, making it impossible

22 for the Secret Service to fulfill its important statu23 tory mission of protecting the life and safety of for24 eign dignitaries.
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1 (10) A privilege protecting information acquired

2 by Secret Service personnel while performing their

3 protective function in physical proximity to a

4 protectee will preserve the security of the protectee

5 by lessening the incentive of the protectee to dis6 tance Secret Service personnel in situations in which

7 there is some risk to the safety of the protectee.

8 (11) Recognition of a protective function privi9 lege for the President and those in direct line of the

10 Presidency, and for visiting heads of foreign states

11 and foreign governments, will promote sufficiently

12 important interests to outweigh the need for pro13 bative evidence.

14 (12) Because Secret Service personnel retain

15 law enforcement responsibility even while engaged in

16 their protective function, the privilege must be sub17 ject to a crime/treason exception.

18 (b) PURPOSES.—The purposes of this Act are—

19 (1) to facilitate the relationship of trust and

20 confidence between Secret Service personnel and cer21 tain protected officials that is essential to the ability

22 of the Secret Service to protect these officials, and

23 the Nation, from the risk of assassination; and

24 (2) to ensure that Secret Service personnel are

25 not precluded from testifying in a criminal investiga-
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1 tion or prosecution about unlawful activity com2 mitted within their view or hearing.

3 SEC. 3. ESTABLISHMENT OF PROTECTIVE FUNCTION PRIVI4 LEGE.

5 (a) ADMISSIBILITY OF INFORMATION ACQUIRED BY

6 SECRET SERVICE PERSONNEL WHILE PERFORMING

7 THEIR PROTECTIVE FUNCTION.—Chapter 203 of title 18,

8 United States Code, is amended by inserting after section

9 3056 the following:

10 ‘‘§ 3056A. Testimony by Secret Service personnel; pro11 tective function privilege

12 ‘‘(a) DEFINITIONS.—In this section:

13 ‘‘(1) PROTECTEE.—The term ‘protectee’

14 means—

15 ‘‘(A) the President;

16 ‘‘(B) the Vice President (or other officer

17 next in the order of succession to the Office of

18 President);

19 ‘‘(C) the President-elect;

20 ‘‘(D) the Vice President-elect; and

21 ‘‘(E) visiting heads of foreign states or for22 eign governments who, at the time and place

23 concerned, are being provided protection by the

24 United States Secret Service.
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1 ‘‘(2) SECRET SERVICE PERSONNEL.—The term

2 ‘Secret Service personnel’ means any officer or agent

3 of the United States Secret Service.

4 ‘‘(b) GENERAL RULE OF PRIVILEGE.—Subject to

5 subsection (c), testimony by Secret Service personnel or

6 former Secret Service personnel regarding information af7 fecting a protectee that was acquired during the perform8 ance of a protective function in physical proximity to the

9 protectee shall not be received in evidence or otherwise dis10 closed in any trial, hearing, or other proceeding in or be11 fore any court, grand jury, department, officer, agency,

12 regulatory body, or other authority of the United States,

13 a State, or a political subdivision thereof.

14 ‘‘(c) EXCEPTIONS.—There is no privilege under this

15 section—

16 ‘‘(1) with respect to information that, at the

17 time the information was acquired by Secret Service

18 personnel, was sufficient to provide reasonable

19 grounds to believe that a crime had been, was being,

20 or would be committed; or

21 ‘‘(2) if the privilege is waived by the protectee

22 or the legal representative of a protectee or deceased

23 protectee.

24 ‘‘(d) CONCURRENT PRIVILEGES.—The proximity of

25 Secret Service personnel to a protectee engaged in a privi-
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1 leged communication with another shall not, by itself, de2 feat an otherwise valid claim of privilege.’’.

3 (b) TECHNICAL AND CONFORMING AMENDMENT.—

4 The analysis for chapter 203 of title 18, United States

5 Code, is amended by inserting after the item relating to

6 section 3056 the following:

‘‘3056A. Testimony by Secret Service personnel; protective function privilege.’’.

7 SEC. 4. APPLICATION.

8 This Act and the amendments made by this Act shall

9 apply to any proceeding commenced on or after the date

10 of enactment of this Act.

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