I 

114TH CONGRESS 

2D SESSION H. R. 4767 

To provide safe, fair, and responsible procedures and standards for resolving 

claims of state secret privilege. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 16, 2016 

Mr. NADLER (for himself, Mr. MCCLINTOCK, and Mr. CONYERS) introduced 

the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To provide safe, fair, and responsible procedures and 

standards for resolving claims of state secret privilege. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘State Secrets Protec5 tion Act’’. 

6 SEC. 2. STATE SECRET PRIVILEGE. 

7 In any civil action brought in Federal or State court, 

8 the Government has a privilege to refuse to give informa9 tion and to prevent any person from giving information 

10 only if the Government shows that public disclosure of the 


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1 information that the Government seeks to protect would 

2 be reasonably likely to cause significant harm to the na3 tional defense or the diplomatic relations of the United 

4 States. 

5 SEC. 3. PROTECTION OF SECRETS. 

6 (a) IN GENERAL.—The court shall take steps to pro7 tect sensitive information that comes before the court in 

8 connection with proceedings under this Act. These steps 

9 may include reviewing evidence or pleadings and hearing 

10 arguments ex parte, issuing protective orders, placing ma11 terial under seal, and applying security procedures estab12 lished under the Classified Information Procedures Act for 

13 classified information to protect the sensitive information. 

14 (b) IN CAMERA PROCEEDINGS.—All hearings and 

15 other proceedings under this Act may be conducted in 

16 camera, as needed to protect information that may be sub17 ject to the privilege. 

18 (c) PARTICIPATION OF COUNSEL.—Participation of 

19 counsel in proceedings under this Act may be limited if 

20 the court determines that the limitation is a necessary step 

21 to protect information the Government asserts is protected 

22 by the privilege or that supports the claim of privilege. 

23 (d) GUARDIAN AD LITEM.—Where counsel is ex24 cluded from a proceeding, the court shall have discretion 

25 to appoint a guardian ad litem to represent the absent 


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1 litigant’s interests, drawing, in consultation with the ex2 cluded nongovernmental party, from a previously gen3 erated list of attorneys who have been granted required 

4 security clearances in the past and have agreed to serve 

5 in this capacity. The guardian ad litem shall not discuss 

6 the information claimed as privileged or its content with 

7 any nongovernmental party or nongovernmental party’s 

8 counsel. 

9 (e) PRODUCTION OF ADEQUATE SUBSTITUTE PEND10 ING RESOLUTION OF THE CLAIM OF PRIVILEGE.—If, at 

11 any point during its consideration of the Government’s 

12 claim, the court determines that disclosure of information 

13 to a party or counsel, or disclosure of information by a 

14 party that already possesses it, presents a risk of a harm 

15 described in subsection (a) that cannot be addressed 

16 through less restrictive means provided in this subsection, 

17 the court may require the Government to produce an ade18 quate substitute, such as a redacted version, summary of 

19 the information, or stipulation regarding the relevant 

20 facts, if the court deems such a substitute feasible. The 

21 substitute must be reviewed and approved by the court 

22 and must provide counsel with a substantially equivalent 

23 opportunity to assess and challenge the Government’s 

24 claim of privilege as would the protected information. 


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1 SEC. 4. ASSERTION OF THE PRIVILEGE. 

2 (a) IN GENERAL.—The Government may assert the 

3 privilege in connection with any claim in a civil action to 

4 which it is a party or may intervene in a civil action to 

5 which it is not a party to do so. 

6 (b) SUPPORTING AFFIDAVITS.—If the Government 

7 asserts the privilege, the Government shall provide the 

8 court with an affidavit signed by the head of the executive 

9 branch agency with responsibility for, and control over, the 

10 information asserted to be subject to the privilege. In the 

11 affidavit, the head of the agency shall explain the factual 

12 basis for the claim of privilege. The Government shall 

13 make public an unclassified version of the affidavit. 

14 SEC. 5. PRELIMINARY PROCEEDINGS. 

15 (a) PRELIMINARY REVIEW BY COURT.—Once the 

16 Government has asserted the privilege, and before the 

17 court makes any determinations under section 6, the court 

18 shall undertake a preliminary review of the information 

19 the Government asserts is protected by the privilege and 

20 provide the Government an opportunity to seek protective 

21 measures under this Act. After any initial protective meas22 ures are in place, the court shall proceed to the consider23 ation of additional preliminary matters under this section. 

24 (b) CONSIDERATION OF WHETHER TO APPOINT SPE25 CIAL MASTER OR EXPERT WITNESS.—The court shall 

26 consider whether the appointment of a special master with 


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1 appropriate expertise or an expert witness, or both, would 

2 facilitate the court’s duties under this Act. 

3 (c) INDEX OF MATERIALS.—The court may order the 

4 Government to provide a manageable index of the informa5 tion that the Government asserts is subject to the privi6 lege. The index must correlate statements made in the af7 fidavit required under this Act with portions of the infor8 mation the Government asserts is subject to the privilege. 

9 The index shall be specific enough to afford the court an 

10 adequate foundation to review the basis of the assertion 

11 of the privilege by the Government. 

12 (d) PREHEARING CONFERENCES.—After the prelimi13 nary review, the court shall hold one or more conferences 

14 with the parties to— 

15 (1) determine any steps needed to protect sen16 sitive information; 

17 (2) define the issues presented by the Govern18 ment’s claim of privilege, including whether it is pos19 sible to allow the parties to complete nonprivileged 

20 discovery before determining whether the claim of 

21 privilege is valid; 

22 (3) order disclosure to the court of anything 

23 needed to assess the claim, including all information 

24 the Government asserts is protected by the privilege 


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1 and other material related to the Government’s 

2 claim; 

3 (4) resolve any disputes regarding participation 

4 of counsel or parties in proceedings relating to the 

5 claim, including access to the Government’s evidence 

6 and arguments; 

7 (5) set a schedule for completion of discovery 

8 related to the Government’s claim; and 

9 (6) take other steps as needed, such as ordering 

10 counsel or parties to obtain security clearances. 

11 SEC. 6. PROCEDURES AND STANDARD FOR ASSESSING THE 

12 PRIVILEGE CLAIM. 

13 (a) HEARING.—The court shall conduct a hearing to 

14 determine whether the privilege claim is valid. 

15 (b) BASIS FOR RULING.— 

16 (1) GENERALLY.—The court may not deter17 mine that the privilege is valid until the court has 

18 reviewed— 

19 (A) except as provided in paragraph (2), 

20 all of the information that the Government as21 serts is privileged; 

22 (B) the affidavits, evidence, memoranda 

23 and other filings submitted by the parties re24 lated to the privilege claim; and 


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1 (C) any other evidence that the court de2 termines it needs to rule on the privilege. 

3 (2) SAMPLING IN CERTAIN CASES.—Where the 

4 volume of information the Government asserts is 

5 privileged precludes a timely review, or the court 

6 otherwise determines a review of all of that informa7 tion is not feasible, the court may substitute a suffi8 cient sampling of the information if the court deter9 mines that there is no reasonable possibility that re10 view of the additional information would change the 

11 court’s determination on the privilege claim and the 

12 information reviewed is sufficient to enable the court 

13 to make the independent assessment required by this 

14 section. 

15 (c) STANDARD.—In ruling on the validity of the privi16 lege, the court shall make an independent assessment of 

17 whether the harm identified by the Government, as re18 quired by section 2, is reasonably likely to occur should 

19 the privilege not be upheld. The court shall weigh testi20 mony from Government experts in the same manner as 

21 it does, and along with, any other expert testimony. 

22 (d) BURDEN OF PROOF.—The Government shall have 

23 the burden of proof as to the nature of the harm and as 

24 to the likelihood of its occurrence. 


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1 SEC. 7. EFFECT OF COURT DETERMINATION. 

2 (a) IN GENERAL.—If the court determines that the 

3 privilege is not validly asserted, the court shall issue ap4 propriate orders regarding the disclosure of the informa5 tion to a nongovernmental party and its admission at trial, 

6 subject to the other rules of evidence, with the right to 

7 interlocutory appeal as provided in section 8 for any such 

8 orders. If the court determines that the privilege is validly 

9 asserted, that information shall not be disclosed to a non10 governmental party or the public. 

11 (b) NONPRIVILEGED SUBSTITUTE.— 

12 (1) COURT CONSIDERATION OF SUBSTITUTE.— 

13 If the court finds that the privilege is validly as14 serted and it is possible to craft a nonprivileged sub15 stitute, such as those described in section 3(e), for 

16 the privileged information that would provide the 

17 parties a substantially equivalent opportunity to liti18 gate the case, the court shall order the Government 

19 to produce the substitute to the satisfaction of the 

20 court. 

21 (2) REFUSAL TO PROVIDE.—In a civil action 

22 brought against the Government, if the court orders 

23 the Government to provide a nonprivileged substitute 

24 for information and the Government fails to comply, 

25 in addition to any other appropriate sanctions, the 

26 court shall find against the Government on the facVerDate Sep 11 2014 22:20 Mar 17, 2016 Jkt 059200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4767.IH H4767

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1 tual or legal issue to which the privileged informa2 tion is relevant. If the action is not brought against 

3 the Government, the court shall weigh the equities 

4 and make appropriate orders as provided in sub5 section (d). 

6 (c) OPPORTUNITY TO COMPLETE DISCOVERY.—The 

7 court shall not resolve any issue or claim and shall not 

8 grant a motion to dismiss or motion for summary judg9 ment based on the state secrets privilege and adversely 

10 to any party against whom the Government’s privilege 

11 claim has been upheld until that party has had a full op12 portunity to complete nonprivileged discovery and to liti13 gate the issue or claim to which the privileged information 

14 is relevant without regard to that privileged information. 

15 (d) APPROPRIATE ORDERS IN THE INTEREST OF

16 JUSTICE.—After reviewing all available evidence, and only 

17 after determining that privileged information, for which 

18 it is impossible to create a nonprivileged substitute, is nec19 essary to decide a factual or legal issue or claim, the court 

20 shall weigh the equities and make appropriate orders in 

21 the interest of justice, such as striking the testimony of 

22 a witness, finding in favor of or against a party on a fac23 tual or legal issue to which the information is relevant, 

24 or dismissing a claim or counterclaim. This paragraph 

25 does not permit an award of money damages against a 


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1 party based in whole or in part on privileged information 

2 that was not disclosed to that party. 

3 SEC. 8. INTERLOCUTORY APPEAL. 

4 (a) IN GENERAL.—The courts of appeal shall have 

5 jurisdiction of an appeal from a decision or order of a dis6 trict court determining that the state secrets privilege is 

7 not validly asserted, sanctioning a refusal to provide an 

8 adequate or nonprivileged substitute required under this 

9 Act, or refusing protective steps sought by the Govern10 ment under this Act pending the resolution of the claim 

11 of state secrets privilege. 

12 (b) APPEAL.— 

13 (1) IN GENERAL.—An appeal taken under this 

14 section either before or during trial shall be expe15 dited by the court of appeals. 

16 (2) DURING TRIAL.—If an appeal is taken dur17 ing trial, the district court shall adjourn the trial 

18 until the appeal is resolved and the court of ap19 peals— 

20 (A) shall hear argument on appeal as expe21 ditiously as possible after adjournment of the 

22 trial by the district court; 

23 (B) may dispense with written briefs other 

24 than the supporting materials previously sub25 mitted to the trial court; 


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1 (C) shall render its decision as expedi2 tiously as possible after argument on appeal; 

3 and 

4 (D) may dispense with the issuance of a 

5 written opinion in rendering its decision. 

6 SEC. 9. REPORTING. 

7 (a) IN GENERAL.—Consistent with applicable au8 thorities and duties, including those conferred by the Con9 stitution of the United States upon the executive and legis10 lative branches, the Attorney General shall report in writ11 ing to the Permanent Select Committee on Intelligence of 

12 the House of Representatives, the Select Committee on In13 telligence of the Senate, and the chairmen and ranking 

14 minority members of the Committees on the Judiciary of 

15 the House of Representatives and the Senate on any case 

16 in which the Government invokes a state secrets privilege, 

17 not later than 30 calendar days after the date of such as18 sertion. Each report submitted under this subsection shall 

19 include all affidavits filed under this Act by the Govern20 ment. 

21 (b) OPERATION AND EFFECTIVENESS.— 

22 (1) IN GENERAL.—The Attorney General shall 

23 deliver to the committees of Congress described in 

24 subsection (a) a report concerning the operation and 


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1 effectiveness of this Act and including suggested 

2 amendments to the Act. 

3 (2) DEADLINE.—The Attorney General shall 

4 submit this report not later than 1 year after the 

5 date of enactment of this Act, and every year there6 after until the date that is 3 years after that date 

7 of enactment. After the date that is 3 years after 

8 that date of enactment, the Attorney General shall 

9 submit a report under paragraph (1) as necessary. 

10 SEC. 10. RULE OF CONSTRUCTION. 

11 This Act provides the only privilege that may be as12 serted in civil cases based on state secrets and the stand13 ards and procedures set forth in this Act apply to any 

14 assertion of the privilege. 

15 SEC. 11. APPLICATION. 

16 This Act applies to claims pending on or after the 

17 date of enactment of this Act. A court also may relieve 

18 a party or its legal representative from a final judgment, 

19 order, or proceeding that was based, in whole or in part, 

20 on the state secrets privilege if— 

21 (1) the motion for relief is filed with the ren22 dering court within one year of the date of enact23 ment of this Act; 


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1 (2) the underlying judgment, order, or pro2 ceeding from which the party seeks relief was en3 tered after January 1, 2002; and 

4 (3) the claim on which the judgment, order, or 

5 proceeding is based is— 

6 (A) against the Government; or 

7 (B) arises out of conduct by persons acting 

8 in the capacity of a Government officer, em9 ployee, or agent. 

Æ 


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