This bill would require the federal government to demonstrate that public disclosure of information would significantly damage the national defense or diplomatic relations of the U.S. before using “state secrets privilege” to withhold evidence in legal proceedings. Courts would be responsible for determining if privilege is appropriate in a certain case and creating standards by which the government would produce adequate substitutes through redactions or summaries.
The federal government could still assert state secrets privilege in litigation it is involved in or civil cases that could lead to the revelation of sensitive information, as it’s allowed to do currently. Once the government has asserted that privilege, the court — before it has decided whether privilege is valid in the case — would undertake a review of the information and give the government an opportunity to seek protective measures (like redactions or summaries).
If the court finds that privilege isn’t valid as requested by the government, it would require the release of the information to the non-governmental parties to the case and allow its admission at trial. If state secrets privilege is found to be valid, disclosure or admission of that information would be prohibited.
Courts of appeal would have jurisdiction for hearing an appeal of a decision or order from a district court determining that the state secrets privilege isn’t valid in a case, allowing the federal government to avoid providing an adequate substitute, or refusing protective measures requested.