[Congressional Record: February 15, 2011 (Senate)]
[Page S753-S754]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CARDIN:
S. 354. A bill to amend the Classified Information Procedures Act to
improve the protection of classified information and for other puroses;
to the Committee on the Judiciary.
Mr. CARDIN. Mr. President, the Classified Information Procedures Act,
CIPA, was enacted in 1980 with bipartisan support to address the
``disclose or dismiss'' dilemma that arose in espionage prosecutions
when a defendant would threaten the government with the disclosure of
classified information if the government did not drop the prosecution.
Previously, there were no Congressionally-mandated procedures that
required district courts to make discovery and admissibility rulings
regarding classified information in advance.
CIPA has worked reasonably well during the last 30 years, but some
issues have arisen in a number of notable terrorism, espionage, and
narcotics cases that demonstrate that reforms and improvements could be
made to ensure that classified sources, methods and information can be
protected, and to ensure that a defendant's due process and fair trial
rights are not violated. In 2009, when the Congress enacted the
Military Commissions Act, MCA, the Congress drew heavily from the
manner in which the federal courts interpreted CIPA when it updated the
procedures governing the use of classified information in military
commission prosecutions. At that time, however, the Congress did not
update CIPA. Indeed, since its enactment in 1980, there have been no
changes to the key provisions of CIPA.
As the former Chairman of the Senate Judiciary's Terrorism and
Homeland Security Subcommittee, I chaired a number of hearings during
which witnesses testified about the capacity of our civilian courts to
try alleged terrorists and spies. The first Subcommittee hearing that I
chaired was on July 28, 2009, and was entitled ``Prosecuting
Terrorists: Civilian and Military Trials for GTMO and Beyond.'' The
second Terrorism and Homeland Security Subcommittee hearing that I
chaired was on May 12, 2010, and was entitled ``The Espionage Statutes:
A Look Back and A Look Forward.'' The testimony I have heard in regard
to terrorism, espionage and our civilian courts, has convinced me that
while our courts have the capacity and the procedures in place to try
alleged terrorists and spies, reforms and improvements could be made to
CIPA to codify and clarify the decisions of the federal courts.
As a result, today I am reintroducing the Classified Information
Procedures Reform and Improvement Act, CIPRIA. CIPRIA contains reforms
and improvements to ensure that the statute maintains the proper
balance between the protection of classified sources, methods and
information, and a defendant's constitutional rights. Among other
things, this legislation, which includes the applicable changes that
the Congress made when it enacted the Military Commissions Act of 2009,
will: codify, clarify and unify federal case law interpreting CIPA;
ensure that all classified information, not just documents, will be
governed by CIPA; ensure that prosecutors and defense attorneys will be
able to fully inform trial courts about classified information issues;
and will clarify that the civil state secrets privilege does not apply
in criminal cases. CIPRIA will also ensure high-level DOJ approval
before the government invokes its classified information privilege in
criminal cases and will ensure that the federal courts will order the
disclosure and use of classified information when the disclosure and
use meets the applicable legal standards. This legislation will also
ensure timely appellate review of lower court CIPA decisions before the
commencement of a trial, explicitly permit trial courts to adopt
alternative procedures for the admission of classified information in
accordance with a defendant's fair trial and due process rights, and
make technical fixes to ensure consistent use of terms throughout the
statute.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 354
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; DEFINITIONS.
(a) Short Title.--This Act may be cited as the ``Classified
Information Procedures Reform and Improvement Act of 2011''.
(b) In General.--Section 1 of the Classified Information
Procedures Act (18 U.S.C. App.) is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b) `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.''.
(c) 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''.
SEC. 2. PRETRIAL CONFERENCE.
Section 2 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) by inserting ``(a) In General.--'' before ``At any
time'';
(2) by adding at the end the following:
``(b) 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.''.
SEC. 3. PROTECTIVE ORDERS.
Section 3 of the Classified Information Procedures Act (18
U.S.C. App) is amended--
(1) by inserting ``(a) In General.--'' before ``Upon
motion'';
(2) by inserting ``use or'' before ``disclosure'';
(3) by inserting ``, or access to,'' after ``disclosure
of'';
(4) by inserting ``, or any classified information derived
therefrom, that will be'' after ``classified information'';
(5) by inserting ``or made available'' after ``disclosed'';
and
(6) by adding at the end the following:
``(b) 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.''.
SEC. 4. DISCOVERY OF AND ACCESS TO CLASSIFIED INFORMATION BY
DEFENDANTS.
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 ``discovery of'';
(2) by inserting ``(a) In General.--'' before ``The court,
upon'';
(3) in the first sentence--
(A) by inserting ``to restrict the defendant's access to
or'' before ``to delete'';
(B) by striking ``from documents'';
(C) by striking ``classified documents, or'' and inserting
``classified information,''; and
(D) by striking the period at the end and inserting ``, or
to provide other relief to the United States.'';
(4) in the second sentence, by striking ``alone.''
inserting ``alone, and may permit ex parte proceedings with
the United States to discuss that request.'';
(5) 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 ``, 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
[[Page S754]]
(6) by adding at the end the following:
``(b) 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.
``(c) 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.
``(d) 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--
``(1) noncumulative, relevant, and helpful to--
``(A) a legally cognizable defense;
``(B) rebuttal of the prosecution's case; or
``(C) sentencing; or
``(2) noncumulative and essential to a fair determination
of a pretrial proceeding.
``(e) 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.''.
SEC. 5. NOTICE OF DEFENDANT'S INTENTION TO DISCLOSE
CLASSIFIED INFORMATION.
Section 5 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in the section heading, by inserting ``use or'' before
``disclose'';
(2) in subsection (a)--
(A) in the first sentence--
(i) by inserting ``use or'' before ``disclose''; and
(ii) by striking ``thirty days prior to trial'' and
inserting ``45 days prior to such proceeding'';
(B) in the second sentence by striking ``brief'' and
inserting ``specific'';
(C) in the third sentence--
(i) by inserting ``use or'' before ``disclose''; and
(ii) by striking ``brief'' and inserting ``specific''; and
(D) in the fourth sentence--
(i) by inserting ``use or'' before ``disclose''; and
(ii) by inserting ``reasonably'' before ``believed''; and
(3) in subsection (b), by inserting ``the use or'' before
``disclosure''.
SEC. 6. PROCEDURE FOR CASES INVOLVING CLASSIFIED INFORMATION.
Section 6 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) in subsection (a)--
(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
(B) in the third sentence, by striking ``petition'' and
inserting ``request'';
(2) in subsection (b)(2) by striking ``trial'' and
inserting ``the trial or pretrial proceeding'';
(3) by redesignating subsections (c), (d), (e), and (f), as
subsections (d), (e), (f), and (g), respectively;
(4) by inserting after subsection (b) the following:
``(c) Standard for Admissibility, Use, and Disclosure at
Trial.--(1) 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.
``(2) 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.'';
(5) in subsection (d), as so redesignated--
(A) in the subsection heading, by inserting ``Use or''
before ``Disclosure'';
(B) in paragraph (1), by inserting ``use or'' before
``disclosure'' both places that term appears;
(C) in the flush paragraph following paragraph (1)(B), by
inserting ``use or'' before ``disclosure''; and
(D) in paragraph (2)--
(i) by striking ``an affidavit of'' and inserting ``a
declaration by'';
(ii) by the striking ``such affidavit'' and inserting
``such declaration''; and
(iii) by inserting ``the use or'' before ``disclosure'';
(6) in subsection (e), as so redesignated, in the first
sentence, by striking ``disclosed or elicited'' and inserting
``used or disclosed''; and
(7) in subsection (f), as so redesignated--
(A) in the subsection heading, by inserting ``Use or''
before ``Disclosure'' both places that term appears;
(B) in paragraph (1)--
(i) by striking ``(c)'' and inserting ``(d)'';
(ii) by striking ``an affidavit of'' and inserting ``a
declaration by'';
(iii) by inserting ``the use or'' before ``disclosure'';
and
(iv) by striking ``disclose'' and inserting ``use,
disclose,''; and
(C) in paragraph (2), by striking ``disclosing'' and
inserting ``using, disclosing,''; and
(8) in the first sentence of subsection (g), as so
redesignated--
(A) by inserting ``used or'' before ``disclosed''; and
(B) by inserting ``or disclose'' before ``to rebut the''.
SEC. 7. INTERLOCUTORY APPEAL.
Section 7(a) of the Classified Information Procedures Act
(18 U.S.C. App.) is amended--
(1) by striking ``disclosure of'' both times that places
that term appears and inserting ``use, disclosure, discovery
of, or access to''; and
(2) 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.''.
SEC. 8. INTRODUCTION OF CLASSIFIED INFORMATION.
Section 8 of the Classified Information Procedures Act (18
U.S.C. App.) is amended--
(1) 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
(2) by adding at the end the following:
``(d) Admission of Evidence.--(1) 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.
``(2) 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.''.
SEC. 9. 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.
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