II 

112TH CONGRESS 

1ST SESSION S. 354 

To amend the Classified Information Procedures Act to improve the protection 

of classified information and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 15, 2011 

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

to the Committee on the Judiciary 

A BILL 

To amend the Classified Information Procedures Act to improve the protection of classified information and for 

other purposes. 

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

3 SECTION 1. SHORT TITLE; DEFINITIONS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Classified Information Procedures Reform and Improve6 ment Act of 2011’’. 

7 (b) IN GENERAL.—Section 1 of the Classified Infor8 mation Procedures Act (18 U.S.C. App.) is amended— 

9 (1) by redesignating subsection (b) as sub10 section (c); and 


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1 (2) by inserting after subsection (a) the fol2 lowing: 

3 ‘‘(b) ‘Disclosure’, as used in this Act, includes the re4 lease, transmittal, or making available of, or providing ac5 cess to, classified information to any person (including a 

6 defendant or counsel for a defendant) during discovery, 

7 or to a participant or member of the public at any pro8 ceeding.’’. 

9 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

10 Section 501(3) of the Immigration and Nationality Act (8 

11 U.S.C. 1531(3)) is amended by striking ‘‘section 1(b)’’ 

12 and inserting ‘‘section 1’’. 

13 SEC. 2. PRETRIAL CONFERENCE. 

14 Section 2 of the Classified Information Procedures 

15 Act (18 U.S.C. App.) is amended— 

16 (1) by inserting ‘‘(a) IN GENERAL.—’’ before 

17 ‘‘At any time’’; 

18 (2) by adding at the end the following: 

19 ‘‘(b) EX PARTE.—If the United States or the defend20 ant certifies that the presence of both parties at a pretrial 

21 conference reasonably could be expected to cause damage 

22 to the national security of the United States or the defend23 ant’s ability to make a defense, then upon request by ei24 ther party, the court shall hold such pretrial conference 

25 ex parte, and shall seal and preserve the record of that 


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1 ex parte conference in the records of the court for use 

2 in the event of an appeal.’’. 

3 SEC. 3. PROTECTIVE ORDERS. 

4 Section 3 of the Classified Information Procedures 

5 Act (18 U.S.C. App) is amended— 

6 (1) by inserting ‘‘(a) IN GENERAL.—’’ before 

7 ‘‘Upon motion’’; 

8 (2) by inserting ‘‘use or’’ before ‘‘disclosure’’; 

9 (3) by inserting ‘‘, or access to,’’ after ‘‘disclo10 sure of’’; 

11 (4) by inserting ‘‘, or any classified information 

12 derived therefrom, that will be’’ after ‘‘classified in13 formation’’; 

14 (5) by inserting ‘‘or made available’’ after ‘‘dis15 closed’’; and 

16 (6) by adding at the end the following: 

17 ‘‘(b) NOTICE.—In the event the defendant is con18 victed and files a notice of appeal, the United States shall 

19 provide the defendant and the appellate court with a writ20 ten notice setting forth each date that the United States 

21 obtained a protective order under this Act.’’. 

22 SEC. 4. DISCOVERY OF AND ACCESS TO CLASSIFIED INFOR23 MATION BY DEFENDANTS. 

24 Section 4 of the Classified Information Procedures 

25 Act (18 U.S.C. App.) is amended— 


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1 (1) in the section heading, by inserting ‘‘AND

2 ACCESS TO’’ after ‘‘DISCOVERY OF’’; 

3 (2) by inserting ‘‘(a) IN GENERAL.—’’ before 

4 ‘‘The court, upon’’; 

5 (3) in the first sentence— 

6 (A) by inserting ‘‘to restrict the defend7 ant’s access to or’’ before ‘‘to delete’’; 

8 (B) by striking ‘‘from documents’’; 

9 (C) by striking ‘‘classified documents, or’’ 

10 and inserting ‘‘classified information,’’; and 

11 (D) by striking the period at the end and 

12 inserting ‘‘, or to provide other relief to the 

13 United States.’’; 

14 (4) in the second sentence, by striking ‘‘alone.’’ 

15 inserting ‘‘alone, and may permit ex parte pro16 ceedings with the United States to discuss that re17 quest.’’; 

18 (5) in the third sentence— 

19 (A) by striking ‘‘If the court enters an 

20 order granting relief following such an ex parte 

21 showing, the’’ and inserting ‘‘The’’; and 

22 (B) by inserting ‘‘, and the transcript of 

23 any argument and any summary of the classi24 fied information the defendant seeks to obtain 


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1 discovery of or access to,’’ after ‘‘text of the 

2 statement of the United States’’; and 

3 (6) by adding at the end the following: 

4 ‘‘(b) ACCESS TO OTHER CLASSIFIED INFORMA5 TION.—If the defendant seeks access to nondocumentary 

6 information from a potential witness or other person 

7 through deposition under the Federal Rules of Criminal 

8 Procedure, or otherwise, which the defendant knows or 

9 reasonably believes is classified, the defendant shall notify 

10 the attorney for the United States and the court in writ11 ing. Such notice shall specify with particularity the non12 documentary information sought by the defendant and the 

13 legal basis for such access. 

14 ‘‘(c) SHOWING BY THE UNITED STATES.—In any 

15 prosecution in which the United States seeks to restrict, 

16 delete, withhold, or otherwise obtain relief with respect to 

17 the defendant’s discovery of or access to any specific clas18 sified information, the attorney for the United States shall 

19 file with the court a declaration made by the Attorney 

20 General invoking the United States classified information 

21 privilege, which shall be supported by a declaration made 

22 by a knowledgeable United States official possessing the 

23 authority to classify information that sets forth the identi24 fiable damage to the national security that the discovery 


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1 of, or access to, such information reasonably could be ex2 pected to cause. 

3 ‘‘(d) STANDARD FOR DISCOVERY OF OR ACCESS TO

4 CLASSIFIED INFORMATION.—Upon the submission of a 

5 declaration of the Attorney General under subsection (c), 

6 the court may not authorize the defendant’s discovery of, 

7 or access to, classified information, or to the substitution 

8 submitted by the United States, which the United States 

9 seeks to restrict, delete, or withhold, or otherwise obtain 

10 relief with respect to, unless the court first determines 

11 that such classified information or such substitution would 

12 be— 

13 ‘‘(1) noncumulative, relevant, and helpful to— 

14 ‘‘(A) a legally cognizable defense; 

15 ‘‘(B) rebuttal of the prosecution’s case; or 

16 ‘‘(C) sentencing; or 

17 ‘‘(2) noncumulative and essential to a fair de18 termination of a pretrial proceeding. 

19 ‘‘(e) SECURITY CLEARANCE.—Whenever a court de20 termines that the standard for discovery of or access to 

21 classified information by the defendant has been met 

22 under subsection (d), such discovery or access may only 

23 take place after the person to whom discovery or access 

24 will be granted has received the necessary security clear25 ances to receive the classified information, and if the clasVerDate Mar 15 2010 05:05 Feb 16, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S354.IS S354

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1 sified information has been designated as sensitive com2 partmented information or special access program infor3 mation, any additional required authorizations to receive 

4 the classified information.’’. 

5 SEC. 5. NOTICE OF DEFENDANT’S INTENTION TO DISCLOSE 

6 CLASSIFIED INFORMATION. 

7 Section 5 of the Classified Information Procedures 

8 Act (18 U.S.C. App.) is amended— 

9 (1) in the section heading, by inserting ‘‘USE

10 OR’’ before ‘‘DISCLOSE’’; 

11 (2) in subsection (a)— 

12 (A) in the first sentence— 

13 (i) by inserting ‘‘use or’’ before ‘‘dis14 close’’; and 

15 (ii) by striking ‘‘thirty days prior to 

16 trial’’ and inserting ‘‘45 days prior to such 

17 proceeding’’; 

18 (B) in the second sentence by striking 

19 ‘‘brief’’ and inserting ‘‘specific’’; 

20 (C) in the third sentence— 

21 (i) by inserting ‘‘use or’’ before ‘‘dis22 close’’; and 

23 (ii) by striking ‘‘brief’’ and inserting 

24 ‘‘specific’’; and 

25 (D) in the fourth sentence— 


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1 (i) by inserting ‘‘use or’’ before ‘‘dis2 close’’; and 

3 (ii) by inserting ‘‘reasonably’’ before 

4 ‘‘believed’’; and 

5 (3) in subsection (b), by inserting ‘‘the use or’’ 

6 before ‘‘disclosure’’. 

7 SEC. 6. PROCEDURE FOR CASES INVOLVING CLASSIFIED 

8 INFORMATION. 

9 Section 6 of the Classified Information Procedures 

10 Act (18 U.S.C. App.) is amended— 

11 (1) in subsection (a)— 

12 (A) in the second sentence, by striking 

13 ‘‘such a hearing.’’ and inserting ‘‘a hearing and 

14 shall make all such determinations prior to pro15 ceeding under any alternative procedure set out 

16 in subsection (d).’’; and 

17 (B) in the third sentence, by striking ‘‘pe18 tition’’ and inserting ‘‘request’’; 

19 (2) in subsection (b)(2) by striking ‘‘trial’’ and 

20 inserting ‘‘the trial or pretrial proceeding’’; 

21 (3) by redesignating subsections (c), (d), (e), 

22 and (f), as subsections (d), (e), (f), and (g), respec23 tively; 

24 (4) by inserting after subsection (b) the fol25 lowing: 


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1 ‘‘(c) STANDARD FOR ADMISSIBILITY, USE, AND DIS2 CLOSURE AT TRIAL.—(1) Classified information which is 

3 the subject of a notice by the United States pursuant to 

4 subsection (b) is not admissible at trial and subject to the 

5 alternative procedures set out in subsection (d), unless a 

6 court first determines that such information is noncumu7 lative and relevant to an element of the offense or a legally 

8 cognizable defense, and is otherwise admissible in evi9 dence. 

10 ‘‘(2) Nothing in this subsection may be construed to 

11 prohibit the exclusion from evidence of relevant, classified 

12 information in accordance with the Federal Rules of Evi13 dence.’’; 

14 (5) in subsection (d), as so redesignated— 

15 (A) in the subsection heading, by inserting 

16 ‘‘USE OR’’ before ‘‘DISCLOSURE’’; 

17 (B) in paragraph (1), by inserting ‘‘use 

18 or’’ before ‘‘disclosure’’ both places that term 

19 appears; 

20 (C) in the flush paragraph following para21 graph (1)(B), by inserting ‘‘use or’’ before ‘‘dis22 closure’’; and 

23 (D) in paragraph (2)— 

24 (i) by striking ‘‘an affidavit of’’ and 

25 inserting ‘‘a declaration by’’; 


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1 (ii) by striking ‘‘such affidavit’’ and 

2 inserting ‘‘such declaration’’; and 

3 (iii) by inserting ‘‘the use or’’ before 

4 ‘‘disclosure’’; 

5 (6) in subsection (e), as so redesignated, in the 

6 first sentence, by striking ‘‘disclosed or elicited’’ and 

7 inserting ‘‘used or disclosed’’; 

8 (7) in subsection (f), as so redesignated— 

9 (A) in the subsection heading, by inserting 

10 ‘‘USE OR’’ before ‘‘DISCLOSURE’’ both places 

11 that term appears; 

12 (B) in paragraph (1)— 

13 (i) by striking ‘‘(c)’’ and inserting 

14 ‘‘(d)’’; 

15 (ii) by striking ‘‘an affidavit of’’ and 

16 inserting ‘‘a declaration by’’; 

17 (iii) by inserting ‘‘the use or’’ before 

18 ‘‘disclosure’’; and 

19 (iv) by striking ‘‘disclose’’ and insert20 ing ‘‘use, disclose,’’; and 

21 (C) in paragraph (2), by striking ‘‘dis22 closing’’ and inserting ‘‘using, disclosing,’’; and 

23 (8) in the first sentence of subsection (g), as so 

24 redesignated— 


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1 (A) by inserting ‘‘used or’’ before ‘‘dis2 closed’’; and 

3 (B) by inserting ‘‘or disclose’’ before ‘‘to 

4 rebut the’’. 

5 SEC. 7. INTERLOCUTORY APPEAL. 

6 Section 7(a) of the Classified Information Procedures 

7 Act (18 U.S.C. App.) is amended— 

8 (1) by striking ‘‘disclosure of’’ both times that 

9 places that term appears and inserting ‘‘use, disclo10 sure, discovery of, or access to’’; and 

11 (2) by adding at the end the following: ‘‘The 

12 right of the United States to appeal pursuant to this 

13 Act applies without regard to whether the order or 

14 ruling appealed from was entered under this Act, 

15 another provision of law, a rule, or otherwise. Any 

16 such appeal may embrace any preceding order, rul17 ing, or reasoning constituting the basis of the order 

18 or ruling that would authorize such use, disclosure, 

19 or access. Whenever practicable, appeals pursuant to 

20 this section shall be consolidated to expedite the pro21 ceedings.’’. 

22 SEC. 8. INTRODUCTION OF CLASSIFIED INFORMATION. 

23 Section 8 of the Classified Information Procedures 

24 Act (18 U.S.C. App.) is amended— 


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1 (1) in subsection (b), by adding at the end 

2 ‘‘The court may fashion alternative procedures in 

3 order to prevent such unnecessary disclosure, pro4 vided that such alternative procedures do not deprive 

5 the defendant of a fair trial or violate the defend6 ant’s due process rights.’’; and 

7 (2) by adding at the end the following: 

8 ‘‘(d) ADMISSION OF EVIDENCE.—(1) No classified in9 formation offered by the United States and admitted into 

10 evidence shall be presented to the jury unless such evi11 dence is provided to the defendant. 

12 ‘‘(2) Any classified information admitted into evi13 dence shall be sealed and preserved in the records of the 

14 court to be made available to the appellate court in the 

15 event of an appeal.’’. 

16 SEC. 9. APPLICATION TO PROCEEDINGS. 

17 The amendments made by this Act shall take effect 

18 on the date of the enactment of this Act but shall not 

19 apply to any prosecution in which an indictment or infor20 mation was filed prior to such date. 

Æ 


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