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) in-
troduced 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. 
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 2008’’. 
SEC. 2. STATE SECRET PRIVILEGE. 
In any civil action brought in Federal or State court, 
the Government has a privilege to refuse to give evidence 
and to prevent any person from giving evidence only if 
the Government shows that public disclosure of the evi-
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dence that the Government seeks to protect would be rea-
sonably likely to cause significant harm to the national 
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 or evidence that 
may be subject 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 evidence the Government asserts is 
protected by the privilege or that supports the claim of 
privilege and that no less restrictive means of protection 
suffice. The court shall give a written explanation of its 
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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. 
(b) SUPPORTING AFFIDAVITS.—If the Government 
asserts the privilege, the Government shall provide the 
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court with an affidavit signed by the head of the executive 
branch agency with responsibility for, and control over, the 
evidence asserted to be subject to the privilege. In the affi-
davit, 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. 
(c) INDEX OF MATERIALS.—The court may order the 
Government to provide a manageable index of evidence the 
Government asserts is subject to the privilege. The index 
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must correlate statements made in the affidavit required 
under this Act with portions of the evidence the Govern-
ment asserts is subject to the privilege. The index shall 
be specific enough to afford the court an adequate founda-
tion to review the basis of the assertion of the privilege 
by the Government. 
(d) PREHEARING CONFERENCES.—After the prelimi-
nary review the court shall hold one or more conferences 
with the parties to— 
(1) determine any steps needed to protect sen-
sitive information; 
(2) define the issues presented by the Govern-
ment’s claim of privilege, including whether it is pos-
sible to allow the parties to complete nonprivileged 
discovery before determining whether the claim of 
privilege is valid; 
(3) order disclosure of evidence to the court 
needed to assess the claim, including all evidence the 
Government asserts is protected by the privilege and 
other evidence related to the Government’s claim; 
(4) resolve any disputes regarding participation 
of counsel or parties in proceedings relating to the 
claim, including access to the Government’s evidence 
and arguments; 
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(5) set a schedule for completion of discovery 
related to the Government’s claim; and 
(6) take other steps as needed, such as ordering 
counsel or parties to obtain security clearances. 
(e) SECURITY CLEARANCES.—If the court orders a 
party or counsel to obtain a security clearance, the Gov-
ernment shall promptly conduct the necessary review and 
determine whether or not to provide the clearance. If the 
necessary clearance is not promptly provided to counsel 
for a party, the party may propose that alternate or addi-
tional counsel be cleared. If within a reasonable time, al-
ternative or additional counsel selected by the party can-
not be cleared, then the court, in consultation with that 
party and that party’s counsel, shall appoint another at-
torney, who can obtain the necessary clearance promptly, 
to represent the party in proceedings under this Act. 
When a security clearance for counsel sought under this 
Act is denied, the court may require the Government to 
present an ex parte explanation of that denial. 
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.— 
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(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 evidence that the Government asserts 
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 evidence the Government asserts is privi-
leged precludes a timely review of each item of evi-
dence, or the court otherwise determines a review of 
all of that evidence is not feasible, the court may 
substitute a sufficient sampling of the evidence if the 
court determines that there is no reasonable possi-
bility that review of the additional evidence would 
change the court’s determination on the privilege 
claim and the evidence reviewed is sufficient to en-
able to court 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 
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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 as to an item of evidence, 
the item may be disclosed to a nongovernmental party or 
admitted at trial, subject to the other rules of evidence. 
If the court determines that the privilege is validly as-
serted as to an item, that item 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 as to an item of material evidence and it is 
possible to craft a nonprivileged substitute, such as 
those described in section 3(d), for the privileged 
evidence that would provide the parties a substan-
tially equivalent opportunity to litigate the case, the 
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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 evidence or information and the Government 
fails to comply, in addition to any other appropriate 
sanctions, the court shall find against the Govern-
ment on the factual or legal issue to which the privi-
leged information is relevant. If the action is not 
brought against the Government, the court shall 
weigh the equities and make appropriate orders as 
provided in subsection (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 discovery of nonprivileged evidence 
and to litigate the issue or claim to which the privileged 
evidence is relevant without regard to that privileged infor-
mation. 
(d) APPROPRIATE ORDERS IN THE INTEREST OF 
JUSTICE.—After reviewing all available evidence, and only 
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