State Secret Protection Act Legislative History Page

Overview

In the 111th Congress, Congress considered the State Secret Protection Act of 2009, including H.R. 984 in the House of Representatives, and S. 417 in the Senate. Generally, the legislation would establish new procedures for considering claims involving the State Secrets Privilege.

In the 111th Congress, after hearings by the House Judiciary Subcommitee on the Constitution, Civil Rights, and Civil Liberties, the House Judiciary Committee reported out H.R. 984 with amendments. There was no further action in the House. The Senate measure, S. 417, did not received full committee consideration. In the 110th Congress, after hearings, the Senate Judiciary Committee reported out legislation which was not considered by the Senate.

For more information concerning the legislation and related cases, see Blog Posts On The State Secrets Protection Act and Blog Posts On The State Secrets Privilege. Use the drop-down box below to find specific information on a particular measure.


Legislation: State Secret Protection Act of 2009


Timeline: S. 417 Congressional Action


DateS. 417 Congressional Action
Feb. 11, 2009
  • Senator Patrick J. Leahy (D-VT) introduces S. 417, 111th Cong., 1st Sess. (2009), which is referred to the Senate Judiciary Committee; Title: To enact a safe, fair, and responsible state secrets privilege Act.
  • See 155 Cong. Rec. S2155-S2159 (daily ed. Feb. 11, 2009) (statement of Sen. Leahy upon introduction) ("The State Secrets Protection Act will help guide the courts to balance the Government’s interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government’s ability to assert the privilege in appropriate cases. Rather, the bill would allow judges to look at the actual evidence the Government submits so that they, neutral judges, rather than selfinterested executive branch officials, would render the ultimate decision whether the State secrets privilege should apply. This is consistent with the procedure for other privileges recognized in our courts.")
  • Blog Post: State Secrets Protection Act To Be Heard By Senate Judiciary Committee
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Timeline: H.R. 984 Congressional Action


DateH.R. 984 Congressional Action
Feb. 11, 2009Rep. Jerrold Nadler (D-NY) introduces H.R. 984, 111th Cong., 1st Sess. (2009), which is referred to the House Judiciary Committee; Title: To provide safe, fair, and responsible procedures and standards for resolving claims of state secret privilege.
May 29, 2009Measure referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties
June 4, 2009
June 11, 2009House Judiciary Subcommittee mark-up and reports out measure on voice vote to the full committee
November 5, 2009
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Prior Action: House


DatePrior House Action
Jan. 29, 2008Reform of the State Secrets Privilege, Hearing before the House Judiciary Subcommittee On The Constitution, Civil Rights, And Civil Liberties, 110th Cong., 2d Sess. (Jan. 29, 2008) (Serial No. 110–74)

    Witnesses:

  • H. Thomas Wells, Jr., President-Elect, American Bar Association
  • Judith Loether, daughter of victim in U.S. v. Reynolds
  • The Honorable Patricia M. Wald, retired Chief Judge, U.S. Court of Appeals for the D.C. Circuit
  • Patrick F. Philbin, Partner, Kirkland & Ellis
  • Kevin S. Bankston, Senior Attorney, Electronic Frontier Foundation
March 13, 2008
  • Rep. Jerrold Nadler (D-NY) introduces H.R. 5607, 110th Cong., 2d Sess. (2008), which is referred to the House Judiciary Committee
  • See 154 Cong. Rec. E392 (Mar. 13, 2008) (Rep. Nadler statement on introduction) ("Modeled on CIPA, but adjusted for civil litigation, the State Secret Protection Act provides for secure judicial proceedings and other safeguards to protect valid state secrets. Under the act, a judge may not blindly rely upon assertions of secrecy and harm contained in an official’s affidavit. Judges must review the information that the Government seeks to protect, along with any other evidence or argument relevant to the claim, to determine whether the harm identified by the Government is reasonably likely to occur. Where this standard is met, a judge may not order disclosure of the information. The judge must, however, consider whether a non-privileged substitute can be created that would allow the litigation to continue.")
July 25, 2008Measure referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties
July 31, 2008State Secrets Protection Act of 2008, Hearing before the House Judiciary Subcommittee On The Constitution, Civil Rights, And Civil Liberties, 110th Cong., 2d Sess. (July 31, 2008) (Serial No. 110–155)

    Witnesses:

  • Meredith Fuchs, General Counsel, National Security Archives
  • Steven Shapiro, American Civil Liberties Union
  • Michael A. Vatis, Partner, Steptoe & Johnson, LLP
  • Bruce Fein, Chairman, The American Freedom Agenda
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Prior Action: Senate


DatePrior Senate Action
Jan. 22, 2008
  • Sen. Edward Kennedy (D-MA) introduces S. 2533, 110th Cong., 2d Sess. (2008), which is referred to the Senate Judiciary Committee
  • See 154 Cong. Rec. S198-S201 (Jan. 23, 2008) (Sen. Kennedy statement on introduction) ("The State Secrets Protection Act … act provides guidance to the Federal courts in handling assertions of the privilege in civil cases, and it restores checks and balances to this crucial area of law by placing constraints on the application of state secrets doctrine. The act will strengthen our national security by requiring judges to protect all state secrets from disclosure, and it will strengthen the rule of law by preventing misuse of the privilege and enabling more litigants to achieve justice in court. Recognizing that state secrets must be protected, the Act enables the executive branch to avoid publicly revealing evidence if doing so might disclose a state secret. If a court finds that an item of evidence contains a state secret, or cannot be effectively separated from other evidence that contains a state secret, then the evidence is privileged and may not be released for any reason. Secure judicial proceedings and other safeguards that have proven effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information.")
Feb. 13, 2008Examining The State Secrets Privilege: Protecting National Security While Preserving Accountability, Hearing before the Senate Judiciary Committee, 110th Cong., 2d Sess. (Feb. 13, 2008) (Serial No. J–110–74)

    Witnesses:

  • Robert M. Chesney, Associate Professor, Wake Forest University School of Law, Winston-Salem, North Carolina
  • Louis Fisher, Specialist in Constitutional Law, Law Library of the Library of Congress, Washington, D.C.
  • Carl J. Nichols, Deputy Assistant Attorney General, Department of Justice, Civil Division, Washington, D.C.
  • Michael Vatis, Partner, Steptoe & Johnson LLP, New York, New York
  • Hon. Patricia M. Wald, former Chief Judge, Court of Appeals for the D.C. Circuit, Washington, D.C.
Aug. 1, 2008
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Blog Posts On The State Secrets Protection Act

Blog Posts On The State Secrets Privilege

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