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The Muted Rise Of The Silent Witness Rule In National Security Litigation: The Eastern District Of Virginia's Answer To The Fight Over Classified Information At Trial, Jonathan M. Lamb

Pepperdine Law Review

The state secrets problem is emblematic of a judicial issue which is not confined to the civil cases in which the privilege is asserted - the tension between the government's interest in protecting classified information and society's interest in justice by resolution on the merits. The United States must be allowed to prosecute terrorists, conspirators, and enemies by using classified information as evidence; but how may the government act as a civil defendant without invoking the state secrets privilege to dismiss actions before trial (or pre-discovery)? The answer might be a little known evidentiary doctrine called the silent witness rule. …