S.Amdt. 3921

SA 3921. Mr. KYL submitted an amendment intended to be proposed by
him to the bill S. 2248, to amend the Foreign Intelligence Surveillance
Act of 1978, to modernize and streamline the provisions of that Act,
and for other purposes; which was ordered to lie on the table; as
follows:

At the appropriate place, insert the following:

SEC. __. IMPROVEMENTS TO THE CLASSIFIED INFORMATION
PROCEDURES ACT.

(a) Interlocutory Appeals Under the Classified Information
Procedures Act.--Section 7(a) of the Classified Information
Procedures Act (18 U.S.C. App.) is amended by adding at the
end ``The Government's right to appeal under this section
applies without regard to whether the order appealed from was
entered under this Act.''.
(b) Ex Parte Authorizations Under the Classified
Information Procedures Act.--Section 4 of the Classified
Information Procedures Act (18 U.S.C. App.) is amended--
(1) in the second sentence--
(A) by striking ``may'' and inserting ``shall''; and
(B) by striking ``written statement to be inspected'' and
inserting ``statement to be made ex parte and to be
considered''; and
(2) in the third sentence--
(A) by striking ``If the court enters an order granting
relief following such an ex parte showing, the'' and
inserting ``The''; and
(B) by inserting ``, as well as any summary of the
classified information the defendant seeks to obtain,'' after
``text of the statement of the United States''.
(c) Application of Classified Information Procedures Act to
Nondocumentary Information.--Section 4 of the Classified
Information Procedures Act (18 U.S.C. App.) is amended--
(1) in the section heading, by inserting ``, and access
to,'' after ``of'';
(2) by inserting ``(a) Discovery of Classified Information
From Documents.--'' before the first sentence; and
(3) by adding at the end the following:
``(b) Access to Other Classified Information.--
``(1) If the defendant seeks access through deposition
under the Federal Rules of Criminal Procedure or otherwise to
non-documentary information from a potential witness or other
person which he knows or reasonably believes is classified,
he shall notify the attorney for the United States and the
district court in writing. Such notice shall specify with
particularity the classified information sought by the
defendant and the legal basis for such access. At a time set
by the court,

[[Page S335]]

the United States may oppose access to the classified
information.
``(2) If, after consideration of any objection raised by
the United States, including any objection asserted on the
basis of privilege, the court determines that the defendant
is legally entitled to have access to the information
specified in the notice required by paragraph (1), the United
States may request the substitution of a summary of the
classified information or the substitution of a statement
admitting relevant facts that the classified information
would tend to prove.
``(3) The court shall permit the United States to make its
objection to access or its request for such substitution in
the form of a statement to be made ex parte and to be
considered by the court alone. The entire text of the
statement of the United States, as well as any summary of the
classified information the defendant seeks to obtain, shall
be sealed and preserved in the records of the court and made
available to the appellate court in the event of an appeal.
``(4) The court shall grant the request of the United
States to substitute a summary of the classified information
or to substitute a statement admitting relevant facts that
the classified information would tend to prove if it finds
that the summary or statement will provide the defendant with
substantially the same ability to make his defense as would
disclosure of the specific classified information.
``(5) A defendant may not obtain access to classified
information subject to this subsection except as provided in
this subsection. Any proceeding, whether by deposition under
the Federal Rules of Criminal Procedure or otherwise, in
which a defendant seeks to obtain access to such classified
information not previously authorized by a court for
disclosure under this subsection must be discontinued or may
proceed only as to lines of inquiry not involving such
classified information.''.
______