II
112th CONGRESS
1st Session
S. 354
IN THE SENATE OF THE UNITED STATES
February 15, 2011
Mr. Cardin introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend the Classified Information Procedures Act to improve the protection of classified information and for other purposes.
Short title; definitions
Short title
This Act may be cited as the Classified Information Procedures Reform and Improvement
Act of 2011
.
In general
Section 1 of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
by redesignating subsection (b) as subsection (c); and
by inserting after subsection (a) the following:
Disclosure, as used in this Act, includes the release, transmittal, or making available of, or providing access to, classified information to any person (including a defendant or counsel for a defendant) during discovery, or to a participant or member of the public at any proceeding.
.
Technical and conforming amendment
Section 501(3) of the Immigration and
Nationality Act (8 U.S.C. 1531(3)) is amended by striking section
1(b)
and inserting section 1
.
Pretrial conference
Section 2 of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
by inserting
(a) In
general.—
before At any time
;
by adding at the end the following:
Ex parte
If the United States or the defendant certifies that the presence of both parties at a pretrial conference reasonably could be expected to cause damage to the national security of the United States or the defendant’s ability to make a defense, then upon request by either party, the court shall hold such pretrial conference ex parte, and shall seal and preserve the record of that ex parte conference in the records of the court for use in the event of an appeal.
.
Protective orders
Section 3 of the Classified Information Procedures Act (18 U.S.C. App) is amended—
by inserting
(a) In
general.—
before Upon motion
;
by inserting
use or
before disclosure
;
by inserting
, or access to,
after disclosure of
;
by inserting
, or any classified information derived therefrom, that will be
after classified information
;
by inserting
or made available
after disclosed
; and
by adding at the end the following:
Notice
In the event the defendant is convicted and files a notice of appeal, the United States shall provide the defendant and the appellate court with a written notice setting forth each date that the United States obtained a protective order under this Act.
.
Discovery of and access to classified information by defendants
Section 4 of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
in the section
heading, by inserting and access to
after
discovery
of
;
by inserting
(a) In
general.—
before The court,
upon
;
in the first sentence—
by inserting
to restrict the defendant’s access to or
before to
delete
;
by striking
from documents
;
by striking
classified documents, or
and inserting classified
information,
; and
by striking the
period at the end and inserting , or to provide other relief to the
United States.
;
in the second
sentence, by striking alone.
inserting “alone, and may permit ex
parte proceedings with the United States to discuss that request.”;
in the third sentence—
by striking
If the court enters an order granting relief following such an ex parte
showing, the
and inserting The
; and
by inserting
, and the transcript of any argument and any summary of the classified
information the defendant seeks to obtain discovery of or access to,
after text of the statement of the United States
; and
by adding at the end the following:
Access to other classified information
If the defendant seeks access to nondocumentary information from a potential witness or other person through deposition under the Federal Rules of Criminal Procedure, or otherwise, which the defendant knows or reasonably believes is classified, the defendant shall notify the attorney for the United States and the court in writing. Such notice shall specify with particularity the nondocumentary information sought by the defendant and the legal basis for such access.
Showing by the United States
In any prosecution in which the United States seeks to restrict, delete, withhold, or otherwise obtain relief with respect to the defendant’s discovery of or access to any specific classified information, the attorney for the United States shall file with the court a declaration made by the Attorney General invoking the United States classified information privilege, which shall be supported by a declaration made by a knowledgeable United States official possessing the authority to classify information that sets forth the identifiable damage to the national security that the discovery of, or access to, such information reasonably could be expected to cause.
Standard for discovery of or access to classified information
Upon the submission of a declaration of the Attorney General under subsection (c), the court may not authorize the defendant’s discovery of, or access to, classified information, or to the substitution submitted by the United States, which the United States seeks to restrict, delete, or withhold, or otherwise obtain relief with respect to, unless the court first determines that such classified information or such substitution would be—
noncumulative, relevant, and helpful to—
a legally cognizable defense;
rebuttal of the prosecution’s case; or
sentencing; or
noncumulative and essential to a fair determination of a pretrial proceeding.
Security clearance
Whenever a court determines that the standard for discovery of or access to classified information by the defendant has been met under subsection (d), such discovery or access may only take place after the person to whom discovery or access will be granted has received the necessary security clearances to receive the classified information, and if the classified information has been designated as sensitive compartmented information or special access program information, any additional required authorizations to receive the classified information.
.
Notice of defendant’s intention to disclose classified information
Section 5 of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
in the section
heading, by inserting use or
before
disclose
;
in subsection (a)—
in the first sentence—
by
inserting use or
before disclose
; and
by
striking thirty days prior to trial
and inserting 45 days
prior to such proceeding
;
in the second
sentence by striking brief
and inserting
specific
;
in the third sentence—
by
inserting use or
before disclose
; and
by
striking brief
and inserting specific
; and
in the fourth sentence—
by
inserting use or
before disclose
; and
by
inserting reasonably
before believed
; and
in subsection
(b), by inserting the use or
before
disclosure
.
Procedure for cases involving classified information
Section 6 of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
in subsection (a)—
in the second
sentence, by striking such a hearing.
and inserting a
hearing and shall make all such determinations prior to proceeding under any
alternative procedure set out in subsection (d).
; and
in the third
sentence, by striking petition
and inserting
request
;
in subsection
(b)(2) by striking trial
and inserting the trial or
pretrial proceeding
;
by redesignating subsections (c), (d), (e), and (f), as subsections (d), (e), (f), and (g), respectively;
by inserting after subsection (b) the following:
Standard for admissibility, use, and disclosure at trial
Classified information which is the subject of a notice by the United States pursuant to subsection (b) is not admissible at trial and subject to the alternative procedures set out in subsection (d), unless a court first determines that such information is noncumulative and relevant to an element of the offense or a legally cognizable defense, and is otherwise admissible in evidence.
Nothing in this subsection may be construed to prohibit the exclusion from evidence of relevant, classified information in accordance with the Federal Rules of Evidence.
;
in subsection (d), as so redesignated—
in the subsection
heading, by inserting use
or
before disclosure
;
in paragraph (1),
by inserting use or
before disclosure
both places
that term appears;
in the flush
paragraph following paragraph (1)(B), by inserting use or
before
disclosure
; and
in paragraph (2)—
by
striking an affidavit of
and inserting a declaration
by
;
by
striking such affidavit
and inserting such
declaration
; and
by inserting
the use or
before disclosure
;
in subsection
(e), as so redesignated, in the first sentence, by striking disclosed or
elicited
and inserting used or disclosed
;
in subsection (f), as so redesignated—
in the subsection
heading, by inserting use
or
before disclosure
both places that term
appears;
in paragraph (1)—
by
striking (c)
and inserting (d)
;
by
striking an affidavit of
and inserting a declaration
by
;
by inserting
the use or
before disclosure
; and
by
striking disclose
and inserting use, disclose,
;
and
in paragraph (2),
by striking disclosing
and inserting using,
disclosing,
; and
in the first sentence of subsection (g), as so redesignated—
by inserting
used or
before disclosed
; and
by inserting
or disclose
before to rebut the
.
Interlocutory appeal
Section 7(a) of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
by striking
disclosure of
both times that places that term appears and
inserting use, disclosure, discovery of, or access to
;
and
by adding at the
end the following: The right of the United States to appeal pursuant to
this Act applies without regard to whether the order or ruling appealed from
was entered under this Act, another provision of law, a rule, or otherwise. Any
such appeal may embrace any preceding order, ruling, or reasoning constituting
the basis of the order or ruling that would authorize such use, disclosure, or
access. Whenever practicable, appeals pursuant to this section shall be
consolidated to expedite the proceedings.
.
Introduction of classified information
Section 8 of the Classified Information Procedures Act (18 U.S.C. App.) is amended—
in subsection
(b), by adding at the end The court may fashion alternative procedures
in order to prevent such unnecessary disclosure, provided that such alternative
procedures do not deprive the defendant of a fair trial or violate the
defendant’s due process rights.
; and
by adding at the end the following:
Admission of evidence
No classified information offered by the United States and admitted into evidence shall be presented to the jury unless such evidence is provided to the defendant.
Any classified information admitted into evidence shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
.
Application to proceedings
The amendments made by this Act shall take effect on the date of the enactment of this Act but shall not apply to any prosecution in which an indictment or information was filed prior to such date.