‘‘Rule 503. State Secrets Privilege 
‘‘(a) IN GENERAL.—In any civil action brought in 
Federal or State court, the Government has a privilege 
to refuse to give information and to prevent any person 
from giving information only if the Government shows 
that public disclosure of the information that the Govern-
ment seeks to protect would be reasonably likely to cause 
significant harm to the national defense or the diplomatic 
relations of the United States. 
‘‘(b) PROTECTION OF SECRETS.— 
‘‘(1) IN GENERAL.—The court shall take steps 
to protect sensitive information that comes before 
the court in connection with proceedings under this 
Rule. These steps may include reviewing evidence or 
pleadings and hearing arguments ex parte, issuing 
protective orders, placing material under seal, and 
applying security procedures established under the 
Classified Information Procedures Act for classified 
information to protect the sensitive information. 
‘‘(2) IN CAMERA PROCEEDINGS.—All hearings 
and other proceedings under this Rule may be con-
ducted in camera, as needed to protect information 
that may be subject to the privilege. 
‘‘(3) PARTICIPATION OF COUNSEL.—Participa-
tion of counsel in proceedings under this Rule may 
be limited if the court determines that the limitation 
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is a necessary step to protect information the Gov-
ernment asserts is protected by the privilege or that 
supports the claim of privilege. 
‘‘(4) GUARDIAN AD LITEM.—Where counsel is 
excluded from a proceeding, the court shall have dis-
cretion to appoint a guardian ad litem to represent 
the absent litigant’s interests, drawing, in consulta-
tion with the excluded nongovernmental party, from 
a previously generated list of attorneys who have 
been granted required security clearances in the past 
and have agreed to serve in this capacity. The 
guardian ad litem shall not discuss the information 
claimed as privileged or its content with any non-
governmental party or nongovernmental party’s 
counsel. 
‘‘(5) PRODUCTION OF ADEQUATE SUBSTITUTE 
PENDING
RESOLUTION
OF
THE
CLAIM
OF
PRIVI-
LEGE.—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 
subsection (a) that cannot be addressed through less 
restrictive means provided in this subsection, the 
court may require the Government to produce an 
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adequate substitute, such as a redacted version, 
summary of the information, or stipulation regard-
ing the relevant facts, if the court deems such a sub-
stitute 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 privilege as 
would the protected information. 
‘‘(c) ASSERTION OF THE PRIVILEGE.— 
‘‘(1) IN GENERAL.—The Government may as-
sert 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. 
‘‘(2) SUPPORTING AFFIDAVITS.—If the Govern-
ment asserts the privilege, the Government shall pro-
vide 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 pub-
lic an unclassified version of the affidavit. 
‘‘(d) PRELIMINARY PROCEEDINGS.— 
‘‘(1) PRELIMINARY REVIEW BY COURT.—Once 
the Government has asserted the privilege, and be-
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fore the court makes any determinations under sub-
section (e), the court shall undertake a preliminary 
review of the information the Government asserts is 
protected by the privilege and provide the Govern-
ment an opportunity to seek protective measures 
under this Rule. After any initial protective meas-
ures are in place, the court shall proceed to the con-
sideration of additional preliminary matters under 
this subsection. 
‘‘(2) CONSIDERATION
OF
WHETHER
TO
AP-
POINT SPECIAL MASTER OR EXPERT WITNESS.—The 
court shall consider whether the appointment of a 
special master with appropriate expertise or an ex-
pert witness, or both, would facilitate the court’s du-
ties under this Rule. 
‘‘(3) INDEX OF MATERIALS.—The court may 
order the Government to provide a manageable index 
of the information that the Government asserts is 
subject to the privilege. The index must correlate 
statements made in the affidavit required under this 
Rule with portions of the information the Govern-
ment asserts is subject to the privilege. The index 
shall be specific enough to afford the court an ade-
quate foundation to review the basis of the assertion 
of the privilege by the Government. 
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‘‘(4) PREHEARING
CONFERENCES.—After the 
preliminary review, the court shall hold one or more 
conferences with the parties to— 
‘‘(A) determine any steps needed to protect 
sensitive information; 
‘‘(B) define the issues presented by the 
Government’s claim of privilege, including 
whether it is possible to allow the parties to 
complete nonprivileged discovery before deter-
mining whether the claim of privilege is valid; 
‘‘(C) order disclosure to the court of any-
thing needed to assess the claim, including all 
information the Government asserts is protected 
by the privilege and other material related to 
the Government’s claim; 
‘‘(D) resolve any disputes regarding par-
ticipation of counsel or parties in proceedings 
relating to the claim, including access to the 
Government’s evidence and arguments; 
‘‘(E) set a schedule for completion of dis-
covery related to the Government’s claim; and 
‘‘(F) take other steps as needed, such as 
ordering counsel or parties to obtain security 
clearances. 
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‘‘(e) PROCEDURES AND STANDARD FOR ASSESSING 
THE PRIVILEGE CLAIM.— 
‘‘(1) HEARING.—The court shall conduct a 
hearing to determine whether the privilege claim is 
valid. 
‘‘(2) BASIS FOR RULING.— 
‘‘(A) GENERALLY.—The court may not de-
termine that the privilege is valid until the 
court has reviewed— 
‘‘(i) except as provided in subpara-
graph (B), all of the information that the 
Government asserts is privileged; 
‘‘(ii) the affidavits, evidence, memo-
randa and other filings submitted by the 
parties related to the privilege claim; and 
‘‘(iii) any other evidence that the 
court determines it needs to rule on the 
privilege. 
‘‘(B) SAMPLING
IN
CERTAIN
CASES.— 
Where the volume of information the Govern-
ment asserts is privileged precludes a timely re-
view, or the court otherwise determines a review 
of all of that information is not feasible, the 
court may substitute a sufficient sampling of 
the information if the court determines that 
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there is no reasonable possibility that review of 
the additional information would change the 
court’s determination on the privilege claim and 
the information reviewed is sufficient to enable 
the court to make the independent assessment 
required by this subsection. 
‘‘(3) STANDARD.—In ruling on the validity of 
the privilege, the court shall make an independent 
assessment of whether the harm identified by the 
Government, as required by subsection (a), is rea-
sonably likely to occur should the privilege not be 
upheld. The court shall weigh testimony from Gov-
ernment experts in the same manner as it does, and 
along with, any other expert testimony. 
‘‘(4) 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. 
‘‘(f) EFFECT OF COURT DETERMINATION.— 
‘‘(1) IN
GENERAL.—If the court determines 
that the privilege is not validly asserted, the court 
shall issue appropriate orders regarding the disclo-
sure of the information to a nongovernmental party 
and its admission at trial, subject to the other rules 
of evidence, with the right to interlocutory appeal as 
provided in subsection (g) for any such orders. If the 
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court determines that the privilege is validly as-
serted, that information shall not be disclosed to a 
nongovernmental party or the public. 
‘‘(2) NONPRIVILEGED SUBSTITUTE.— 
‘‘(A) COURT
CONSIDERATION
OF
SUB-
STITUTE.—If the court finds that the privilege 
is validly asserted and it is possible to craft a 
nonprivileged substitute, such as those de-
scribed in subsection (b)(5), for the privileged 
information that would provide the parties a 
substantially equivalent opportunity to litigate 
the case, the court shall order the Government 
to produce the substitute to the satisfaction of 
the court. 
‘‘(B) REFUSAL TO PROVIDE.—In a civil ac-
tion brought against the Government, if the 
court orders the Government to provide a non-
privileged 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 factual or legal 
issue to which the privileged information is rel-
evant. If the action is not brought against the 
Government, the court shall weigh the equities 
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and make appropriate orders as provided in 
paragraph (4). 
‘‘(3) 
OPPORTUNITY
TO
COMPLETE
DIS-
COVERY.—The court shall not resolve any issue or 
claim and shall not grant a motion to dismiss or mo-
tion for summary judgment based on the state se-
crets privilege and adversely to any party against 
whom the Government’s privilege claim has been 
upheld until that party has had a full opportunity to 
complete nonprivileged discovery and to litigate the 
issue or claim to which the privileged information is 
relevant without regard to that privileged informa-
tion. 
‘‘(4) APPROPRIATE ORDERS IN THE INTEREST 
OF JUSTICE.—After reviewing all available evidence, 
and only after determining that privileged informa-
tion, for which it is impossible to create a nonprivi-
leged substitute, is necessary to decide a factual or 
legal issue or claim, the court shall weigh the equi-
ties 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 factual 
or legal issue to which the information is relevant, 
or dismissing a claim or counterclaim. This para-
graph does not permit an award of money damages 
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against a party based in whole or in part on privi-
leged information that was not disclosed to that 
party. 
‘‘(g) INTERLOCUTORY APPEAL.— 
‘‘(1) IN GENERAL.—The courts of appeal shall 
have jurisdiction of an appeal from a decision or 
order of a district court determining that the state 
secrets privilege is not validly asserted, sanctioning 
a refusal to provide an adequate or nonprivileged 
substitute required under this Rule, or refusing pro-
tective steps sought by the Government under this 
Rule pending the resolution of the claim of state se-
crets privilege. 
‘‘(2) APPEAL.— 
‘‘(A) IN
GENERAL.—An appeal taken 
under this section either before or during trial 
shall be expedited by the court of appeals. 
‘‘(B) DURING
TRIAL.—If an appeal is 
taken during trial, the district court shall ad-
journ the trial until the appeal is resolved and 
the court of appeals— 
‘‘(i) shall hear argument on appeal as 
expeditiously as possible after adjournment 
of the trial by the district court; 
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‘‘(ii) may dispense with written briefs 
other than the supporting materials pre-
viously submitted to the trial court; 
‘‘(iii) shall render its decision as expe-
ditiously as possible after argument on ap-
peal; and 
‘‘(iv) may dispense with the issuance 
of a written opinion in rendering its deci-
sion. 
‘‘(h) REPORTING.— 
‘‘(1) IN GENERAL.—Consistent with applicable 
authorities and duties, including those conferred by 
the Constitution of the United States upon the exec-
utive and legislative branches, the Attorney General 
shall report in writing to the Permanent Select Com-
mittee on Intelligence of the House of Representa-
tives, the Select Committee on Intelligence 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 privi-
lege, not later than 30 calendar days after the date 
of such assertion. Each report submitted under this 
subsection shall include all affidavits filed under this 
Rule by the Government. 
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