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State Secrets Privilege and Other Limits on Litigation Involving Classified Information
Edward C. Liu (au)
The state secrets privilege is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during litigation, if there is a reasonable danger that such disclosure would harm the national security of the U.S. The Classified Information Procedures Act (CIPA) provides pretrial procedures that permit a trial judge to rule on questions of admissibility involving classified information before introduction of the evidence in open court. The use of classified evidence may also implicate criminaldefendants’ rights to exculpatory information and witnesses’ statements held by the prosecution, or their right to confront witnesses under the Sixth Amendment. Congressional action may affect the operation or coverage of the state secrets privilege. In 2008, a federal district court held that the Foreign Intelligence Surveillance Act supplanted the statesecrets privilege with respect to civil claims of unlawful electronic surveillance. Contents of this report: (I) U.S. v. Reynolds: The Seminal Case: Asserting the Privilege; Evaluating the Validity of the Privilege; The Effect of a Valid Privilege; (II) Totten v. U.S.: The Special Case of Nonjusticiable Contracts for Espionage; (III) The Classified Information Procedures Act and Secret Evidence in Criminal Litigation: Withholding Classified Information During Discovery; The Confrontation Clause and the Use of Secret Evidence At Trial; (IV) Legislative Modification of the State Secrets Privilege: The Foreign Intelligence Surveillance Act; The State Secrets Protection Act; Appendix A. Section-by-Section Summary of the Classified Information Procedures Act, 18 U.S.C. App. 3; Appendix B. Section-by-Section Summary of H.R. 984; Appendix C. Section-by-Section Summary of S. 417.
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