69–010 

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 


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1See 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). 2 345 U.S. 1 (1953). 

3See, 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State Secrets Privilege 57–66 (Feb. 10, 2008) (unpublished manuscript), available at http://papers.ssrn.com/abstract=1079364; Justin Florence & Matthew Gerke, State Your Secrets: The 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. 4See, 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 * * *.’’). 

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. 

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: 

(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 


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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). 6See 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.’’). 7See, 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). 8See, e.g., Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005), cert. denied sub nom Sterling v. 

Goss, 546 U.S. 1093 (2006). 9See, e.g., Edmonds v. U.S. Dep’t of Justice, 323 F. Supp. 2d 65 (D.D.C. 2004). 10See, 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). 

overcome by a showing of need or offsetting considerations.5

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 critiVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR442.XXX SR442

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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). 13See 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. 14 18 U.S.C. app. 3 §§ 1–16 (2000). 15 5 U.S.C. § 552 (2000). 16 50 U.S.C. §§ 1801–1811 (2000). 17See 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.’’). 18See 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). 19Scholars’ 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 

cism,’’ 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

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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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’’). 20The controversial El-Masri decision, for example, featured each of these practices. See ElMasri 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’’). 21William 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.’’). 23 345 U.S. 1 (1953). 24See Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the 

Reynolds Case (2006). 

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. 

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. 

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 


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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). 26Patrick 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.’’). 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). 29Scholars’ 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). 31See, 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 ‘‘con- stitutional 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)); Monthey contain no state secrets. The Court was misled by the executive branch and allowed itself to be misled.’’ 25

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

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

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 


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arch Assur. P.L.C. v. United States, 244 F.3d 1356, 1358 (Fed. Cir. 2001) (describing the ‘‘com- mon-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. 33See, 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, § 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 * * *.’’). 35See 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/ 

congresslpowerlletter.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, § 8, cl. 18. 37This 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 seContinued 

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


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curity 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. 

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

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 


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39 154 Cong. Rec. S198 (daily ed. Jan. 23, 2008) (statement of Sen. Kennedy). 40 154 Cong. Rec. S199 (daily ed. Jan. 23, 2008) (statement of Sen. Specter). 

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

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

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


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41Statement of Senator Patrick Leahy (Feb 13, 2008), http://leahy.senate.gov/press/200802/ 

021308a.html. 

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 shortcircuiting 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


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42Letter from Senator Kennedy, Senator Leahy and Senator Specter to Senate Colleagues 

(Feb. 25, 2008). 

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

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 plainVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR442.XXX SR442

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tiffs 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. 


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• 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 


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43The 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. 

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. 

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). 


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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, ConContinued 

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


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stitutional 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 * * *’’). 45 345 U.S. 1, 10 (1953). 46See, 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). 47See, e.g., Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546–47 (2d Cir. 1991). 48See, e.g., Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983). 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 

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

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 


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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). 50See, 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). 

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. 

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. 

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 § 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 

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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)). 

ity 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

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, § 4052(d), and sealed or 

redacted orders, § 4052(e), are likewise permissible but disfavored. 


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52See 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. 53Meredith 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’’). 

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 

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54 345 U.S. 1, 7–8 (1953) (internal citation omitted). 

tions. Subsection 4052(f) is meant to stimulate courts to use special 

masters. 

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


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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 nonprivileged 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. 


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55Section six of CIPA provides for pre-trial hearings on the admissibility of classified evidence, 

18 U.S.C. app. § 6 (2000), during which the court must determine the relevance of the classified 

information, id. § 6(a), and the adequacy of substitutes offered by the Government in lieu of classified documents, id. § 6(c). 

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

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 inVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\SR442.XXX SR442

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56See 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). 58Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary 

Secrecy, 58 Admin. L. Rev. 131, 172 (2006). 59See 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’’). 

vocation 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. 

Subsection 4054(e)(1) instructs the court to review each item of 

evidence, or each item in the sample if sampling is used under 

§ 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. 


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60 United States v. Reynolds, 345 U.S. 1, 8 (1953). 61 Id. at 11. 62 Id. at 9–10. 63Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546–47 (2d Cir. 1991). 64 Reynolds, 345 U.S. at 11. 65 5 U.S.C. § 552(a)(4)(B) (2000). 66 Id. § 552(b)(1). 67 Reynolds, 345 U.S. at 10. 

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

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. 

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. 

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 jusVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\SR442.XXX SR442

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68Thus, 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. 70See, 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). 71The 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. § 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 * * *.’’) 73See, 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). 

ticiable.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

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. 

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 


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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 nonprivileged information by invoking the mosaic theory and to warn 

judges against expansive applications of the theory. 

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 soughtafter 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. 


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74Scholars’ Letter to Senate Judiciary Committee 1 (Feb. 12, 2008). 75See 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 eviContinued 

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

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 


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dentiary 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. § 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. 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 § 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 

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

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


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again, that it cannot be trusted not to use bogus national security claims to avoid exposure of 

misconduct or embarrassment’’). 78See 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. § 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. § 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). 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). 

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 nongovernmental 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). 

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


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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. § 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.’’). 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). 

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. 

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 


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83 18 U.S.C. app. 3 § 6(e)(2)(B) (2000). 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’’). 85See 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’’). 

United States on any issue as to which the excluded classified information relates.’’ 83

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. 

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. ‘‘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, § 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 


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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.’’). 87See, 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). 88See, e.g., El-Masri v. United States, 479 F.3d 296, 306 (4th Cir. 2007). 89See 18 U.S.C. app. § 7 (2000). 

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

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 nonprivileged 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. 

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 


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90See 18 U.S.C. app § 9 (2000). 

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. 

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. 

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,’’ § 4058(a)(4), and Members of Congress are no 


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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)). 92See, 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.’’). 

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. 

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 reVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\SR442.XXX SR442

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93 50 U.S.C. § 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’’). 

quested 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. 

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. 


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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. 


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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 

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1 Black’s Law Dictionary 135 (3d ed. 1933). 2See William G. Weaver & Danielle Escontrias, Origins of the State Secrets Privilege 17 

(2008) (unpublished manuscript) (quoting 12 Co. Rep. 50, 53 (c. 1607)). 3William 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.’’). 4See 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. 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. 7See 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.’’). 8 Reynolds, 345 U.S. at 10. 9See 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.’’). 

crets],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

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

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. 

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 makVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00038 Fmt 6604 Sfmt 6604 E:\HR\OC\SR442.XXX SR442

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11See, e.g., Nixon 418 U.S. 683. 12 Reynolds, 345 U.S. at 11. 13 Id. 14 Id. 15 154 Cong. Rec. S198–02 (2008) (statement of Sen. Kennedy). 16See S. Rep. No. 110–TBA at 4 (2008) (draft Committee report circulated by Chairman Leahy 

to accompany S.2533). 

ing 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

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. 

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 


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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. 19 Reynolds v. United States, 345 U.S. 1, 11 (1953). 20 Id. at 9–10. 21 439 F. Supp. 2d 974 (N.D. Cal. 2006). 22See Reynolds, 345 U.S. at 9–10. 23See 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.’’). 

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-bycase 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

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. 

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. 

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


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24 Reynolds, 345 U.S. at 7–8. 25 Id. 26 El-Masri v. United States, 479 F.3d 296, 305 (4th Cir. 2007). 27See 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.’’). 28S. Rep. No. 110–TBA at 12 (2008) (Majority report circulated by Chairman Leahy to accompany S.2533). 29Several 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). 

Under the courts’ state secret doctrine, in theory and in practice, 

the Judiciary has provided the final word. 

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

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

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 gatekeeper role of preventing spurious assertions of the state secrets 

privilege.29

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. 


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30See, 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). 31 Compare U.S. Const., Art. II with id. at Art. III. 

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

‘‘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 

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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.’’). 33Letter of Michael B. Mukasey to Patrick J. Leahy, March 31, 2008, at 3–4. 

telligence, and staff that dwarf that of the District Judge who reviews that assertion of the privilege.32

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

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 


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34 Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007). 35State Secrets Protection Act, S. 2533, 110th Cong. § 4051 (2008). 36See, e.g., El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007); Al-Haramain, 507 F.3d 

1190. 37See, e.g., Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006). 

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. 

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. 

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 

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38S. 2533 at § 4055(1); see also id. at § 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). 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). 

nition 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. 

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 


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40 Id. at 538–39. 41 92 U.S. 105 (1875) (dismissing a claim for breach of an alleged covert espionage contract). 

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. 

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. 


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(47) 

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. 

‘‘§ 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. 

‘‘§ 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. 


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‘‘(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. 


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‘‘§ 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. 

‘‘§ 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. 


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‘‘(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 admisVerDate Aug 31 2005 02:39 Aug 07, 2008 Jkt 069010 PO 00000 Frm 00050 Fmt 6604 Sfmt 6603 E:\HR\OC\SR442.XXX SR442

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sion 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. 

‘‘§ 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. 

‘‘§ 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. 


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‘‘(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. 

‘‘§ 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). 

‘‘§ 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 


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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. 

‘‘§ 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. 

Æ 


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