I 

110TH CONGRESS 

2D SESSION H. R. 5607 

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

claims of state secret privilege. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 13, 2008 

Mr. NADLER (for himself, Mr. PETRI, Mr. CONYERS, and Mr. DELAHUNT) 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 2008’’. 

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 evidence 

9 and to prevent any person from giving evidence only if 

10 the Government shows that public disclosure of the eviVerDate Aug 31 2005 03:46 Mar 14, 2008 Jkt 069200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5607.IH H5607

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1 dence that the Government seeks to protect would be rea2 sonably likely to cause significant harm to the national 

3 defense or the diplomatic relations of the United States. 

4 SEC. 3. PROTECTION OF SECRETS. 

5 (a) IN GENERAL.—The court shall take steps to pro6 tect sensitive information that comes before the court in 

7 connection with proceedings under this Act. These steps 

8 may include reviewing evidence or pleadings and hearing 

9 arguments ex parte, issuing protective orders, requiring 

10 security clearance for parties or counsel, placing material 

11 under seal, and applying security procedures established 

12 under the Classified Information Procedures Act for clas13 sified 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 or evidence that 

17 may be subject to the privilege. 

18 (c) PARTICIPATION OF COUNSEL.—Participation of 

19 counsel in proceedings under this Act shall not be limited 

20 unless the court determines that the limitation is a nec21 essary step to protect evidence the Government asserts is 

22 protected by the privilege or that supports the claim of 

23 privilege and that no less restrictive means of protection 

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


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

2 placed under seal. 

3 (d) PRODUCTION OF ADEQUATE SUBSTITUTE PEND4 ING RESOLUTION OF THE CLAIM OF PRIVILEGE.—If at 

5 any point during its consideration of the Government’s 

6 claim, the court determines that disclosure of information 

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

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

9 described in section 2 that cannot be addressed through 

10 less restrictive means provided in this section, the court 

11 may require the Government to produce an adequate sub12 stitute, such as a redacted version, summary of the infor13 mation, or stipulation regarding the relevant facts, if the 

14 court deems such a substitute feasible. The substitute 

15 must be reviewed and approved by the court and must 

16 provide counsel with a substantially equivalent opportunity 

17 to assess and challenge the Government’s claim of privi18 lege as would the protected information. 

19 SEC. 4. ASSERTION OF THE PRIVILEGE. 

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

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

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

23 which it is not a party to do so. 

24 (b) SUPPORTING AFFIDAVITS.—If the Government 

25 asserts the privilege, the Government shall provide the 


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

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

3 evidence asserted to be subject to the privilege. In the affi4 davit, the head of the agency shall explain the factual basis 

5 for the claim of privilege. The Government shall make 

6 public an unclassified version of the affidavit. 

7 SEC. 5. PRELIMINARY PROCEEDINGS. 

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

9 Government has asserted the privilege, and before the 

10 Court makes any determinations under section 6, the 

11 court shall undertake a preliminary review of the informa12 tion the Government asserts is protected by the privilege 

13 and provide the Government an opportunity to seek pro14 tective measures under this Act. After any initial protec15 tive measures are in place, the Court shall proceed to the 

16 consideration of additional preliminary matters under this 

17 section. 

18 (b) CONSIDERATION OF WHETHER TO APPOINT SPE19 CIAL MASTER OR EXPERT WITNESS.—The court shall 

20 consider whether the appointment of a special master with 

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

22 facilitate the court’s duties under this Act. 

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

24 Government to provide a manageable index of evidence the 

25 Government asserts is subject to the privilege. The index 


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1 must correlate statements made in the affidavit required 

2 under this Act with portions of the evidence the Govern3 ment asserts is subject to the privilege. The index shall 

4 be specific enough to afford the court an adequate founda5 tion to review the basis of the assertion of the privilege 

6 by the Government. 

7 (d) PREHEARING CONFERENCES.—After the prelimi8 nary review the court shall hold one or more conferences 

9 with the parties to— 

10 (1) determine any steps needed to protect sen11 sitive information; 

12 (2) define the issues presented by the Govern13 ment’s claim of privilege, including whether it is pos14 sible to allow the parties to complete nonprivileged 

15 discovery before determining whether the claim of 

16 privilege is valid; 

17 (3) order disclosure of evidence to the court 

18 needed to assess the claim, including all evidence the 

19 Government asserts is protected by the privilege and 

20 other evidence related to the Government’s claim; 

21 (4) resolve any disputes regarding participation 

22 of counsel or parties in proceedings relating to the 

23 claim, including access to the Government’s evidence 

24 and arguments; 


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1 (5) set a schedule for completion of discovery 

2 related to the Government’s claim; and 

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

4 counsel or parties to obtain security clearances. 

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

6 party or counsel to obtain a security clearance, the Gov7 ernment shall promptly conduct the necessary review and 

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

9 necessary clearance is not promptly provided to counsel 

10 for a party, the party may propose that alternate or addi11 tional counsel be cleared. If within a reasonable time, al12 ternative or additional counsel selected by the party can13 not be cleared, then the court, in consultation with that 

14 party and that party’s counsel, shall appoint another at15 torney, who can obtain the necessary clearance promptly, 

16 to represent the party in proceedings under this Act. 

17 When a security clearance for counsel sought under this 

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

19 present an ex parte explanation of that denial. 

20 SEC. 6. PROCEDURES AND STANDARD FOR ASSESSING THE 

21 PRIVILEGE CLAIM. 

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

23 determine whether the privilege claim is valid. 

24 (b) BASIS FOR RULING.— 


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1 (1) GENERALLY.—The court may not deter2 mine that the privilege is valid until the court has 

3 reviewed— 

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

5 all of the evidence that the Government asserts 

6 is privileged; 

7 (B) the affidavits, evidence, memoranda 

8 and other filings submitted by the parties re9 lated to the privilege claim; and 

10 (C) any other evidence that the court de11 termines it needs to rule on the privilege. 

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

13 volume of evidence the Government asserts is privi14 leged precludes a timely review of each item of evi15 dence, or the court otherwise determines a review of 

16 all of that evidence is not feasible, the court may 

17 substitute a sufficient sampling of the evidence if the 

18 court determines that there is no reasonable possi19 bility that review of the additional evidence would 

20 change the court’s determination on the privilege 

21 claim and the evidence reviewed is sufficient to en22 able to court to make the independent assessment 

23 required by this section. 

24 (c) STANDARD.—In ruling on the validity of the privi25 lege, the court shall make an independent assessment of 


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1 whether the harm identified by the Government, as re2 quired by section 2, is reasonably likely to occur should 

3 the privilege not be upheld. The court shall weigh testi4 mony from Government experts in the same manner as 

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

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

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

8 to the likelihood of its occurrence. 

9 SEC. 7. EFFECT OF COURT DETERMINATION. 

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

11 privilege is not validly asserted as to an item of evidence, 

12 the item may be disclosed to a nongovernmental party or 

13 admitted at trial, subject to the other rules of evidence. 

14 If the court determines that the privilege is validly as15 serted as to an item, that item shall not be disclosed to 

16 a nongovernmental party or the public. 

17 (b) NONPRIVILEGED SUBSTITUTE.— 

18 (1) COURT CONSIDERATION OF SUBSTITUTE.— 

19 If the court finds that the privilege is validly as20 serted as to an item of material evidence and it is 

21 possible to craft a nonprivileged substitute, such as 

22 those described in section 3(d), for the privileged 

23 evidence that would provide the parties a substan24 tially equivalent opportunity to litigate the case, the 


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1 court shall order the Government to produce the 

2 substitute to the satisfaction of the court. 

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

4 brought against the Government, if the court orders 

5 the Government to provide a nonprivileged substitute 

6 for evidence or information and the Government 

7 fails to comply, in addition to any other appropriate 

8 sanctions, the court shall find against the Govern9 ment on the factual or legal issue to which the privi10 leged information is relevant. If the action is not 

11 brought against the Government, the court shall 

12 weigh the equities and make appropriate orders as 

13 provided in subsection (d). 

14 (c) OPPORTUNITY TO COMPLETE DISCOVERY.—The 

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

16 grant a motion to dismiss or motion for summary judg17 ment based on the state secrets privilege and adversely 

18 to any party against whom the Government’s privilege 

19 claim has been upheld until that party has had a full op20 portunity to complete discovery of nonprivileged evidence 

21 and to litigate the issue or claim to which the privileged 

22 evidence is relevant without regard to that privileged infor23 mation. 

24 (d) APPROPRIATE ORDERS IN THE INTEREST OF

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


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1 after determining that privileged evidence, for which it is 

2 impossible to create a nonprivileged substitute, is nec3 essary to decide a factual or legal issue or claim, the court 

4 shall weigh the equities and make appropriate orders in 

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

6 a witness, finding in favor of or against a party on a fac7 tual or legal issue to which the evidence is relevant, or 

8 dismissing a claim or counterclaim. 

9 SEC. 8. INTERLOCUTORY APPEAL. 

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

11 jurisdiction of an appeal by any party from any interlocu12 tory decision or order of a district court of the United 

13 States under this Act. 

14 (b) APPEAL.— 

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

16 section either before or during trial shall be expe17 dited by the court of appeals. 

18 (2) DURING TRIAL.—If an appeal is taken dur19 ing trial, the district court shall adjourn the trial 

20 until the appeal is resolved and the court of ap21 peals— 

22 (A) shall hear argument on appeal as expe23 ditiously as possible after adjournment of the 

24 trial by the district court; 


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1 (B) may dispense with written briefs other 

2 than the supporting materials previously sub3 mitted to the trial court; 

4 (C) shall render its decision as expedi5 tiously as possible after argument on appeal; 

6 and 

7 (D) may dispense with the issuance of a 

8 written opinion in rendering its decision. 

9 SEC. 9. REPORTING. 

10 (a) IN GENERAL.—Consistent with applicable au11 thorities and duties, including those conferred by the Con12 stitution of the United States upon the executive and legis13 lative branches, the Attorney General shall report in writ14 ing to the Permanent Select Committee on Intelligence of 

15 the House of Representatives, the Select Committee on In16 telligence of the Senate, and the chairmen and ranking 

17 minority members of the Committees on the Judiciary of 

18 the House of Representatives and Senate on any case in 

19 which the Government invokes a state secrets privilege, 

20 not later than 30 calendar days after the date of such as21 sertion. Each report submitted under this subsection shall 

22 include all affidavits filed under this Act by the Govern23 ment. 

24 (b) OPERATION AND EFFECTIVENESS.— 


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

2 deliver to the committees of Congress described in 

3 subsection (a) a report concerning the operation and 

4 effectiveness of this Act and including suggested 

5 amendments to the Act. 

6 (2) DEADLINE.—The Attorney General shall 

7 submit this report not later than 1 year after the 

8 date of enactment of this Act, and every year there9 after until the date that is 3 years after that date 

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

11 that date of enactment, the Attorney General shall 

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

13 SEC. 10. RULE OF CONSTRUCTION. 

14 This Act provides the only privilege that may be as15 serted based on state secrets and the standards and proce16 dures set forth in this Act apply to any assertion of the 

17 privilege. 

18 SEC. 11. APPLICATION. 

19 This Act applies to claims pending on or after the 

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

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

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

23 on the state secrets privilege if— 


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1 (1) the motion for relief is filed with the ren2 dering court within one year of the date of enact3 ment of this Act; 

4 (2) the underlying judgment, order, or pro5 ceeding from which the party seeks relief was en6 tered after January 1, 2002; and 

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

8 proceeding is based is— 

9 (A) against the Government; or 

10 (B) arises out of conduct by persons acting 

11 in the capacity of a Government officer, em12 ployee, or agent. 

Æ 


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