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. Under the silent witness rule, trial participants would have copies of a classified document key designating code names for classified places, names, documents or other information. When referring to classified information during trial, trial participants would use the code name to reference a particular piece of classified information – protecting the actual information from disclosure. The procedure allows classified evidence to be used at trial without fear of public disclosure.
This paper addresses Judge Ellis’ recent judicial approval of the silent witness rule in United States v. Rosen, 520 F. Supp. 2d 786 (E.D. Va. 2007), and whether its approval for use in the criminal arena implicitly endorses its use in civil actions as an answer state secrets dismissals. It does not suppose to analyze the practical applicability of invoking the silent witness rule in the civil arena, but instead endeavors to present the information necessary to understand this new doctrine and its potential applications. The approval of the silent witness rule presents a possible remedy to the state secrets problem. Indeed, Judge Ellis’ opinion suggests that the rule meets and defeats constitutional concerns in criminal trials, paving the way for its use in civil actions. As civil actions have lesser constitutional concerns than criminal matters, the silent witness rule can be fashioned into a workable way to end pre-discovery dismissals pursuant to the state secrets privilege.