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 Massachu-
setts, and Mr. DOGGETT) introduced the following bill; which was re-
ferred to the Committee on the Judiciary 
A BILL 
To provide safe, fair, and responsible procedures and 
standards for resolving claims of state secret privilege. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘State Secret Protection 
Act of 2009’’. 
SEC. 2. STATE SECRET PRIVILEGE. 
In any civil action brought in Federal or State court, 
the Government has a privilege to refuse to give informa-
tion and to prevent any person from giving information 
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only if the Government shows that public disclosure of the 
information that the Government seeks to protect would 
be reasonably likely to cause significant harm to the na-
tional defense or the diplomatic relations of the United 
States. 
SEC. 3. PROTECTION OF SECRETS. 
(a) IN GENERAL.—The court shall take steps to pro-
tect sensitive information that comes before the court in 
connection with proceedings under this Act. These steps 
may include reviewing evidence or pleadings and hearing 
arguments ex parte, issuing protective orders, requiring 
security clearance for parties or counsel, placing material 
under seal, and applying security procedures established 
under the Classified Information Procedures Act for clas-
sified information to protect the sensitive information. 
(b) IN CAMERA PROCEEDINGS.—All hearings and 
other proceedings under this Act may be conducted in 
camera, as needed to protect information that may be sub-
ject to the privilege. 
(c) PARTICIPATION OF COUNSEL.—Participation of 
counsel in proceedings under this Act shall not be limited 
unless the court determines that the limitation is a nec-
essary step to protect information the Government asserts 
is protected by the privilege or that supports the claim 
of privilege and that no less restrictive means of protection 
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suffice. The court shall give a written explanation of its 
decision to the parties and their counsel, which may be 
placed under seal. 
(d) PRODUCTION OF ADEQUATE SUBSTITUTE PEND-
ING RESOLUTION OF THE CLAIM OF PRIVILEGE.—If at 
any point during its consideration of the Government’s 
claim, the court determines that disclosure of information 
to a party or counsel, or disclosure of information by a 
party that already possesses it, presents a risk of a harm 
described in section 2 that cannot be addressed through 
less restrictive means provided in this section, the court 
may require the Government to produce an adequate sub-
stitute, such as a redacted version, summary of the infor-
mation, or stipulation regarding the relevant facts, if the 
court deems such a substitute feasible. The substitute 
must be reviewed and approved by the court and must 
provide counsel with a substantially equivalent opportunity 
to assess and challenge the Government’s claim of privi-
lege as would the protected information. 
SEC. 4. ASSERTION OF THE PRIVILEGE. 
(a) IN GENERAL.—The Government may assert the 
privilege in connection with any claim in a civil action to 
which it is a party or may intervene in a civil action to 
which it is not a party to do so. 
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(b) SUPPORTING AFFIDAVITS.—If the Government 
asserts the privilege, the Government shall provide the 
court with an affidavit signed by the head of the executive 
branch agency with responsibility for, and control over, the 
information asserted to be subject to the privilege. In the 
affidavit, the head of the agency shall explain the factual 
basis for the claim of privilege. The Government shall 
make public an unclassified version of the affidavit. 
SEC. 5. PRELIMINARY PROCEEDINGS. 
(a) PRELIMINARY REVIEW
BY COURT.—Once the 
Government has asserted the privilege, and before the 
Court makes any determinations under section 6, the 
court shall undertake a preliminary review of the informa-
tion the Government asserts is protected by the privilege 
and provide the Government an opportunity to seek pro-
tective measures under this Act. After any initial protec-
tive measures are in place, the Court shall proceed to the 
consideration of additional preliminary matters under this 
section. 
(b) CONSIDERATION OF WHETHER TO APPOINT SPE-
CIAL MASTER OR EXPERT WITNESS.—The court shall 
consider whether the appointment of a special master with 
appropriate expertise or an expert witness, or both, would 
facilitate the court’s duties under this Act. 
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SEC. 6. PROCEDURES AND STANDARD FOR ASSESSING THE 
PRIVILEGE CLAIM. 
(a) HEARING.—The court shall conduct a hearing to 
determine whether the privilege claim is valid. 
(b) BASIS FOR RULING.— 
(1) GENERALLY.—The court may not deter-
mine that the privilege is valid until the court has 
reviewed— 
(A) except as provided in paragraph (2), 
all of the information that the Government as-
serts is privileged; 
(B) the affidavits, evidence, memoranda 
and other filings submitted by the parties re-
lated to the privilege claim; and 
(C) any other evidence that the court de-
termines it needs to rule on the privilege. 
(2) SAMPLING IN CERTAIN CASES.—Where the 
volume of information the Government asserts is 
privileged precludes a timely review, or the court 
otherwise determines a review of all of that informa-
tion is not feasible, the court may substitute a suffi-
cient sampling of the information if the court deter-
mines that there is no reasonable possibility that re-
view of the additional information would change the 
court’s determination on the privilege claim and the 
information reviewed is sufficient to enable to court 
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to make the independent assessment required by this 
section. 
(c) STANDARD.—In ruling on the validity of the privi-
lege, the court shall make an independent assessment of 
whether the harm identified by the Government, as re-
quired by section 2, is reasonably likely to occur should 
the privilege not be upheld. The court shall weigh testi-
mony from Government experts in the same manner as 
it does, and along with, any other expert testimony. 
(d) BURDEN OF PROOF.—The Government shall have 
the burden of proof as to the nature of the harm and as 
to the likelihood of its occurrence. 
SEC. 7. EFFECT OF COURT DETERMINATION. 
(a) IN GENERAL.—If the court determines that the 
privilege is not validly asserted, the information may be 
disclosed to a nongovernmental party or admitted at trial, 
subject to the other rules of evidence. If the court deter-
mines that the privilege is validly asserted, that informa-
tion shall not be disclosed to a nongovernmental party or 
the public. 
(b) NONPRIVILEGED SUBSTITUTE.— 
(1) COURT CONSIDERATION OF SUBSTITUTE.— 
If the court finds that the privilege is validly as-
serted and it is possible to craft a nonprivileged sub-
stitute, such as those described in section 3(d), for 
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the privileged information that would provide the 
parties a substantially equivalent opportunity to liti-
gate the case, the court shall order the Government 
to produce the substitute to the satisfaction of the 
court. 
(2) REFUSAL TO PROVIDE.—In a civil action 
brought against the Government, if the court orders 
the Government to provide a nonprivileged substitute 
for information and the Government fails to comply, 
in addition to any other appropriate sanctions, the 
court shall find against the Government on the fac-
tual or legal issue to which the privileged informa-
tion is relevant. If the action is not brought against 
the Government, the court shall weigh the equities 
and make appropriate orders as provided in sub-
section (d). 
(c) OPPORTUNITY TO COMPLETE DISCOVERY.—The 
court shall not resolve any issue or claim and shall not 
grant a motion to dismiss or motion for summary judg-
ment based on the state secrets privilege and adversely 
to any party against whom the Government’s privilege 
claim has been upheld until that party has had a full op-
portunity to complete nonprivileged discovery and to liti-
gate the issue or claim to which the privileged information 
is relevant without regard to that privileged information. 
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(d) APPROPRIATE ORDERS IN THE INTEREST OF 
JUSTICE.—After reviewing all available evidence, and only 
after determining that privileged information, for which 
it is impossible to create a nonprivileged substitute, is nec-
essary to decide a factual or legal issue or claim, the court 
shall weigh the equities and make appropriate orders in 
the interest of justice, such as striking the testimony of 
a witness, finding in favor of or against a party on a fac-
tual or legal issue to which the information is relevant, 
or dismissing a claim or counterclaim. 
SEC. 8. INTERLOCUTORY APPEAL. 
(a) IN GENERAL.—The courts of appeal shall have 
jurisdiction of an appeal by any party from any interlocu-
tory decision or order of a district court of the United 
States under this Act. 
(b) APPEAL.— 
(1) IN GENERAL.—An appeal taken under this 
section either before or during trial shall be expe-
dited by the court of appeals. 
(2) DURING TRIAL.—If an appeal is taken dur-
ing trial, the district court shall adjourn the trial 
until the appeal is resolved and the court of ap-
peals— 
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(A) shall hear argument on appeal as expe-
ditiously as possible after adjournment of the 
trial by the district court; 
(B) may dispense with written briefs other 
than the supporting materials previously sub-
mitted to the trial court; 
(C) shall render its decision as expedi-
tiously as possible after argument on appeal; 
and 
(D) may dispense with the issuance of a 
written opinion in rendering its decision. 
SEC. 9. REPORTING. 
(a) IN GENERAL.—Consistent with applicable au-
thorities and duties, including those conferred by the Con-
stitution of the United States upon the executive and legis-
lative branches, the Attorney General shall report in writ-
ing to the Permanent Select Committee on Intelligence of 
the House of Representatives, the Select Committee on In-
telligence of the Senate, and the chairmen and ranking 
minority members of the Committees on the Judiciary of 
the House of Representatives and Senate on any case in 
which the Government invokes a state secrets privilege, 
not later than 30 calendar days after the date of such as-
sertion. Each report submitted under this subsection shall 
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include all affidavits filed under this Act by the Govern-
ment. 
(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 Act and including suggested 
amendments to the Act. 
(2) DEADLINE.—The Attorney General shall 
submit this report not later than 1 year after the 
date of enactment of this Act, and every year there-
after 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. 
SEC. 10. RULE OF CONSTRUCTION. 
This Act provides the only privilege that may be as-
serted in civil cases based on state secrets and the stand-
ards and procedures set forth in this Act apply to any 
assertion of the privilege. 
SEC. 11. APPLICATION. 
This Act applies to claims pending on or after the 
date of enactment of this Act. A court also may relieve 
a party or its legal representative from a final judgment, 
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order, or proceeding that was based, in whole or in part, 
on the state secrets privilege if— 
(1) the motion for relief is filed with the ren-
dering court within one year of the date of enact-
ment of this Act; 
(2) the underlying judgment, order, or pro-
ceeding from which the party seeks relief was en-
tered after January 1, 2002; and 
(3) the claim on which the judgement, order, or 
proceeding is based is— 
(A) against the Government; or 
(B) arises out of conduct by persons acting 
in the capacity of a Government officer, em-
ployee, or agent. 
Æ 
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