State Secrets Protection Act

In general— The court shall take steps to protect 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, placing material under seal, and applying security procedures established under the Classified Information Procedures Act for classified information to protect the sensitive information.

In camera proceedings— All hearings and other proceedings under this Act may be conducted in camera, as needed to protect information that may be subject to the privilege.

Participation of counsel— Participation of counsel in proceedings under this Act may be limited if the court determines that the limitation is a necessary step to protect information the Government asserts is protected by the privilege or that supports the claim of privilege.

Guardian ad litem— Where counsel is excluded from a proceeding, the court shall have discretion to appoint a guardian ad litem to represent the absent litigant’s interests, drawing, in consultation 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 nongovernmental party or nongovernmental party’s counsel.

Production of adequate substitute pending 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 subsection (a) that cannot be addressed through less restrictive means provided in this subsection, the court may require the Government to produce an adequate substitute, such as a redacted version, summary of the information, 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 privilege as would the protected information.

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.

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.

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 information the Government asserts is protected by the privilege and provide the Government an opportunity to seek protective measures under this Act. After any initial protective measures are in place, the court shall proceed to the consideration of additional preliminary matters under this section.

Consideration of whether To appoint special 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.

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 Act with portions of the information the Government asserts is subject to the privilege. The index shall be specific enough to afford the court an adequate foundation to review the basis of the assertion of the privilege by the Government.

Prehearing conferences— After the preliminary review, the court shall hold one or more conferences with the parties to—

Hearing— The court shall conduct a hearing to determine whether the privilege claim is valid.

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 section 2, is reasonably likely to occur should the privilege not be upheld. The court shall weigh testimony from Government experts in the same manner as it does, and along with, any other expert testimony.

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.

In general— If the court determines that the privilege is not validly asserted, the court shall issue appropriate orders regarding the disclosure 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 section 8 for any such orders. If the court determines that the privilege is validly asserted, that information shall not be disclosed to a nongovernmental party or the public.

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 judgment 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 opportunity to complete nonprivileged discovery and to litigate the issue or claim to which the privileged information is relevant without regard to that privileged information.

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 necessary 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 factual or legal issue to which the information is relevant, or dismissing a claim or counterclaim. This paragraph does not permit an award of money damages against a party based in whole or in part on privileged information that was not disclosed to that party.

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 Act, or refusing protective steps sought by the Government under this Act pending the resolution of the claim of state secrets privilege.

In general— Consistent with applicable authorities and duties, including those conferred by the Constitution of the United States upon the executive and legislative branches, the Attorney General shall report in writing to the Permanent Select Committee on Intelligence of the House of Representatives, 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 the Senate on any case in which the Government invokes a state secrets privilege, 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 Act by the Government.

the motion for relief is filed with the rendering court within one year of the date of enactment of this Act;

the underlying judgment, order, or proceeding from which the party seeks relief was entered after January 1, 2002; and

the claim on which the judgment, order, or proceeding is based is—