Federal Evidence Review

S. 417 and H.R. 984, which would establish new court procedures for considering the government’s claim of a state secrets privilege, will be considered in the Senate Judiciary Committee and in the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on June 4, 2009; Is this the year that Congress will approve a new State Secret legislation?

As previously noted by the Federal Evidence Blog, on February 11, 2009, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 417, the State Secrets Protection Act. S. 417 would establish a new process for a court to review claims of executive privilege. The bill replicates legislation approved by the Senate Judiciary Committee in the last Congress (S. 2533), but includes changes to S. 2533 by Senators Edward Kennedy (D-MA) and Diane Feinstein (D-CA) that had been proposed after the Senate Judiciary Committee recommended passage of the bill in 2008.

Also introduced on February 11, 2009 was H.R. 984 by Representative Jerrold Nadler (D-NY) who is chair of the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. H.R. 984 would require courts to independently assess the government’s claim of a state secrets privilege and direct that the privilege be enforced to withhold evidence only if “public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States.” H.R. 984 is identical to H.R. 5607, which was introduced in the prior Congress.

Scheduled Committee Meetings

S. 417 is presently scheduled to be considered by the Senate Judiciary Committee on June 4, 2009 in the Committee’s Executive Business Meeting, after considering reports on nominations of several circuit judges. In April and May, the bill had been on the Executive Business Meeting’s agenda, but no action of the bill had been reported.

On the same day, H.R. 984 is set for a hearing before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The scheduled witnesses for the House hearing include:

• Patricia Wald, retired chief judge of the U.S. Court of Appeals for the District of Columbia
• Asa Hutchinson, former house member, (R-Arkansas) and senior partner, Asa Hutchinson Law Group
• Ben Wizner, National Security Project Staff Attorney, ACLU
• Andrew Grossman, Senior Partner, The Heritage Foundation

Summaries Of The Legislation

The brief summary of S. 417 by the Congressional Research Service notes (bullets added below):

State Secrets Protection Act - S. 417

• “Amends the federal judicial code to: (1) require a federal court to determine which filings, motions, and affidavits (or portions) submitted under this Act shall be submitted ex parte; (2) allow a federal court to order a party to provide a redacted, unclassified, or summary substitute of a filing, motion, or affidavit to other parties; and (3) require a federal court to make decisions under this Act, taking into consideration the interests of justice and national security.
• Requires any hearing under this Act to be conducted in camera. Prohibits an in camera hearing, however, based on the assertion of the state secrets privilege, if the court determines that the hearing relates only to a question of law and does not present a risk of revealing state secrets.
• Allows a federal court to conduct hearings (or portions) ex parte if the court determines, following in camera review of the evidence, that the interests of justice and national security cannot adequately be protected through attorney security clearances, protective orders, sealed opinions or orders, and special masters.
• Authorizes a court, if the United States fails to provide an attorney or guardian ad litem with necessary security clearance in a reasonable period of time, to review in camera and ex parte the reasons for denying or delaying the clearance, in order to ensure that the United States is not withholding a security clearance from a particular attorney or class of attorneys for any reason other than protection of national security.
• Authorizes the United States to intervene in any civil action in order to protect information that may be subject to the state secrets privilege. Declares, however, that the state secrets privilege shall not constitute grounds for dismissal of a case or claim.
• Prescribes procedures for: (1) determining whether evidence is protected from disclosure by the state secrets privilege; and (2) when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim.
• Requires the court to give substantial weight to an assertion by the United States relating to why public disclosure of an item of evidence would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.
• Grants courts of appeal jurisdiction of an appeal by any party from any interlocutory decision or order of a U.S. district court.
• Requires the Attorney General within 30 days to report in writing to Congress on any case in which the United States asserts the state secrets privilege.
• Applies this Act to civil cases pending on or after the enactment of this Act.”

The brief summary of H.R. 984 by the Congressional Research Service notes (bullets added below):

State Secret Protection Act of 2009 - H.R. 984

• “Declares that 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 government seeks to protect would be reasonably likely to cause significant harm to the national defense or the diplomatic relations of the United States.
• Requires the court to take steps, including in camera hearings and other proceedings, to protect sensitive information that comes before it.
• Sets forth rules regarding the participation of counsel or the disclosure of information when it presents a risk of harm. Provides for court-ordered presentation of adequate or nonprivileged substitutes for privileged information.
• Allows the government to: (1) assert the privilege in connection with any claim in a civil action to which it is a party; or (2) intervene in a civil action to which it is not a party in order to do so.
• Provides that once the government has asserted the privilege, and before the court makes any determinations, the court shall: (1) undertake a preliminary review of the information in question; and (2) provide the government an opportunity to seek protective measures under this Act.
• Establishes procedures and a standard for assessing the privilege claim.
• Allows disclosure of information to a nongovernmental party, or admission at trial under the rules of evidence, if the court determines that the privilege is not validly asserted. Prohibits such disclosure or admission if the privilege is determined valid.
• Grants the courts of appeal jurisdiction of an appeal by any party from any interlocutory decision or order of a U.S. district court.”