I 

111TH CONGRESS 

1ST SESSION H. R. 984 

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

claims of state secret privilege. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 11, 2009 

Mr. NADLER of New York (for himself, Mr. PETRI, Mr. CONYERS, Mr. 

DELAHUNT, Ms. ZOE LOFGREN of California, Mr. FRANK of Massachusetts, and Mr. DOGGETT) 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 Secret Protection 

5 Act of 2009’’. 

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 


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1 only if the Government shows that public disclosure of the 

2 information that the Government seeks to protect would 

3 be reasonably likely to cause significant harm to the na4 tional defense or the diplomatic relations of the United 

5 States. 

6 SEC. 3. PROTECTION OF SECRETS. 

7 (a) IN GENERAL.—The court shall take steps to pro8 tect sensitive information that comes before the court in 

9 connection with proceedings under this Act. These steps 

10 may include reviewing evidence or pleadings and hearing 

11 arguments ex parte, issuing protective orders, requiring 

12 security clearance for parties or counsel, placing material 

13 under seal, and applying security procedures established 

14 under the Classified Information Procedures Act for clas15 sified information to protect the sensitive information. 

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

17 other proceedings under this Act may be conducted in 

18 camera, as needed to protect information that may be sub19 ject to the privilege. 

20 (c) PARTICIPATION OF COUNSEL.—Participation of 

21 counsel in proceedings under this Act shall not be limited 

22 unless the court determines that the limitation is a nec23 essary step to protect information the Government asserts 

24 is protected by the privilege or that supports the claim 

25 of privilege and that no less restrictive means of protection 


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1 suffice. The court shall give a written explanation of its 

2 decision to the parties and their counsel, which may be 

3 placed under seal. 

4 (d) PRODUCTION OF ADEQUATE SUBSTITUTE PEND5 ING RESOLUTION OF THE CLAIM OF PRIVILEGE.—If at 

6 any point during its consideration of the Government’s 

7 claim, the court determines that disclosure of information 

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

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

10 described in section 2 that cannot be addressed through 

11 less restrictive means provided in this section, the court 

12 may require the Government to produce an adequate sub13 stitute, such as a redacted version, summary of the infor14 mation, or stipulation regarding the relevant facts, if the 

15 court deems such a substitute feasible. The substitute 

16 must be reviewed and approved by the court and must 

17 provide counsel with a substantially equivalent opportunity 

18 to assess and challenge the Government’s claim of privi19 lege as would the protected information. 

20 SEC. 4. ASSERTION OF THE PRIVILEGE. 

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

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

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

24 which it is not a party to do so. 


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1 (b) SUPPORTING AFFIDAVITS.—If the Government 

2 asserts the privilege, the Government shall provide the 

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

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

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

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

7 basis for the claim of privilege. The Government shall 

8 make public an unclassified version of the affidavit. 

9 SEC. 5. PRELIMINARY PROCEEDINGS. 

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

11 Government has asserted the privilege, and before the 

12 Court makes any determinations under section 6, the 

13 court shall undertake a preliminary review of the informa14 tion the Government asserts is protected by the privilege 

15 and provide the Government an opportunity to seek pro16 tective measures under this Act. After any initial protec17 tive measures are in place, the Court shall proceed to the 

18 consideration of additional preliminary matters under this 

19 section. 

20 (b) CONSIDERATION OF WHETHER TO APPOINT SPE21 CIAL MASTER OR EXPERT WITNESS.—The court shall 

22 consider whether the appointment of a special master with 

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

24 facilitate the court’s duties under this Act. 


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

2 Government to provide a manageable index of the informa3 tion that the Government asserts is subject to the privi4 lege. The index must correlate statements made in the af5 fidavit required under this Act with portions of the infor6 mation the Government asserts is subject to the privilege. 

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

8 adequate foundation to review the basis of the assertion 

9 of the privilege by the Government. 

10 (d) PREHEARING CONFERENCES.—After the prelimi11 nary review the court shall hold one or more conferences 

12 with the parties to— 

13 (1) determine any steps needed to protect sen14 sitive information; 

15 (2) define the issues presented by the Govern16 ment’s claim of privilege, including whether it is pos17 sible to allow the parties to complete nonprivileged 

18 discovery before determining whether the claim of 

19 privilege is valid; 

20 (3) order disclosure to the court of anything 

21 needed to assess the claim, including all information 

22 the Government asserts is protected by the privilege 

23 and other material related to the Government’s 

24 claim; 


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1 (4) resolve any disputes regarding participation 

2 of counsel or parties in proceedings relating to the 

3 claim, including access to the Government’s evidence 

4 and arguments; 

5 (5) set a schedule for completion of discovery 

6 related to the Government’s claim; and 

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

8 counsel or parties to obtain security clearances. 

9 (e) SECURITY CLEARANCES.—If the court orders a 

10 party or counsel to obtain a security clearance, the Gov11 ernment shall promptly conduct the necessary review and 

12 determine whether or not to provide the clearance. If the 

13 necessary clearance is not promptly provided to counsel 

14 for a party, the party may propose that alternate or addi15 tional counsel be cleared. If within a reasonable time, al16 ternative or additional counsel selected by the party can17 not be cleared, then the court, in consultation with that 

18 party and that party’s counsel, shall appoint another at19 torney, who can obtain the necessary clearance promptly, 

20 to represent the party in proceedings under this Act. 

21 When a security clearance for counsel sought under this 

22 Act is denied, the court may require the Government to 

23 present an ex parte explanation of that denial. 


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1 SEC. 6. PROCEDURES AND STANDARD FOR ASSESSING THE 

2 PRIVILEGE CLAIM. 

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

4 determine whether the privilege claim is valid. 

5 (b) BASIS FOR RULING.— 

6 (1) GENERALLY.—The court may not deter7 mine that the privilege is valid until the court has 

8 reviewed— 

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

10 all of the information that the Government as11 serts is privileged; 

12 (B) the affidavits, evidence, memoranda 

13 and other filings submitted by the parties re14 lated to the privilege claim; and 

15 (C) any other evidence that the court de16 termines it needs to rule on the privilege. 

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

18 volume of information the Government asserts is 

19 privileged precludes a timely review, or the court 

20 otherwise determines a review of all of that informa21 tion is not feasible, the court may substitute a suffi22 cient sampling of the information if the court deter23 mines that there is no reasonable possibility that re24 view of the additional information would change the 

25 court’s determination on the privilege claim and the 

26 information reviewed is sufficient to enable to court 


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1 to make the independent assessment required by this 

2 section. 

3 (c) STANDARD.—In ruling on the validity of the privi4 lege, the court shall make an independent assessment of 

5 whether the harm identified by the Government, as re6 quired by section 2, is reasonably likely to occur should 

7 the privilege not be upheld. The court shall weigh testi8 mony from Government experts in the same manner as 

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

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

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

12 to the likelihood of its occurrence. 

13 SEC. 7. EFFECT OF COURT DETERMINATION. 

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

15 privilege is not validly asserted, the information may be 

16 disclosed to a nongovernmental party or admitted at trial, 

17 subject to the other rules of evidence. If the court deter18 mines that the privilege is validly asserted, that informa19 tion shall not be disclosed to a nongovernmental party or 

20 the public. 

21 (b) NONPRIVILEGED SUBSTITUTE.— 

22 (1) COURT CONSIDERATION OF SUBSTITUTE.— 

23 If the court finds that the privilege is validly as24 serted and it is possible to craft a nonprivileged sub25 stitute, such as those described in section 3(d), for 


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1 the privileged information that would provide the 

2 parties a substantially equivalent opportunity to liti3 gate the case, the court shall order the Government 

4 to produce the substitute to the satisfaction of the 

5 court. 

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

7 brought against the Government, if the court orders 

8 the Government to provide a nonprivileged substitute 

9 for information and the Government fails to comply, 

10 in addition to any other appropriate sanctions, the 

11 court shall find against the Government on the fac12 tual or legal issue to which the privileged informa13 tion is relevant. If the action is not brought against 

14 the Government, the court shall weigh the equities 

15 and make appropriate orders as provided in sub16 section (d). 

17 (c) OPPORTUNITY TO COMPLETE DISCOVERY.—The 

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

19 grant a motion to dismiss or motion for summary judg20 ment based on the state secrets privilege and adversely 

21 to any party against whom the Government’s privilege 

22 claim has been upheld until that party has had a full op23 portunity to complete nonprivileged discovery and to liti24 gate the issue or claim to which the privileged information 

25 is relevant without regard to that privileged information. 


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1 (d) APPROPRIATE ORDERS IN THE INTEREST OF

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

3 after determining that privileged information, for which 

4 it is impossible to create a nonprivileged substitute, is nec5 essary to decide a factual or legal issue or claim, the court 

6 shall weigh the equities and make appropriate orders in 

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

8 a witness, finding in favor of or against a party on a fac9 tual or legal issue to which the information is relevant, 

10 or dismissing a claim or counterclaim. 

11 SEC. 8. INTERLOCUTORY APPEAL. 

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

13 jurisdiction of an appeal by any party from any interlocu14 tory decision or order of a district court of the United 

15 States under this Act. 

16 (b) APPEAL.— 

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

18 section either before or during trial shall be expe19 dited by the court of appeals. 

20 (2) DURING TRIAL.—If an appeal is taken dur21 ing trial, the district court shall adjourn the trial 

22 until the appeal is resolved and the court of ap23 peals— 


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1 (A) shall hear argument on appeal as expe2 ditiously as possible after adjournment of the 

3 trial by the district court; 

4 (B) may dispense with written briefs other 

5 than the supporting materials previously sub6 mitted to the trial court; 

7 (C) shall render its decision as expedi8 tiously as possible after argument on appeal; 

9 and 

10 (D) may dispense with the issuance of a 

11 written opinion in rendering its decision. 

12 SEC. 9. REPORTING. 

13 (a) IN GENERAL.—Consistent with applicable au14 thorities and duties, including those conferred by the Con15 stitution of the United States upon the executive and legis16 lative branches, the Attorney General shall report in writ17 ing to the Permanent Select Committee on Intelligence of 

18 the House of Representatives, the Select Committee on In19 telligence of the Senate, and the chairmen and ranking 

20 minority members of the Committees on the Judiciary of 

21 the House of Representatives and Senate on any case in 

22 which the Government invokes a state secrets privilege, 

23 not later than 30 calendar days after the date of such as24 sertion. Each report submitted under this subsection shall 


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1 include all affidavits filed under this Act by the Govern2 ment. 

3 (b) OPERATION AND EFFECTIVENESS.— 

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

5 deliver to the committees of Congress described in 

6 subsection (a) a report concerning the operation and 

7 effectiveness of this Act and including suggested 

8 amendments to the Act. 

9 (2) DEADLINE.—The Attorney General shall 

10 submit this report not later than 1 year after the 

11 date of enactment of this Act, and every year there12 after until the date that is 3 years after that date 

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

14 that date of enactment, the Attorney General shall 

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

16 SEC. 10. RULE OF CONSTRUCTION. 

17 This Act provides the only privilege that may be as18 serted in civil cases based on state secrets and the stand19 ards and procedures set forth in this Act apply to any 

20 assertion of the privilege. 

21 SEC. 11. APPLICATION. 

22 This Act applies to claims pending on or after the 

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

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


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

2 on the state secrets privilege if— 

3 (1) the motion for relief is filed with the ren4 dering court within one year of the date of enact5 ment of this Act; 

6 (2) the underlying judgment, order, or pro7 ceeding from which the party seeks relief was en8 tered after January 1, 2002; and 

9 (3) the claim on which the judgement, order, or 

10 proceeding is based is— 

11 (A) against the Government; or 

12 (B) arises out of conduct by persons acting 

13 in the capacity of a Government officer, em14 ployee, or agent. 

Æ 


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