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State Secrets Procedure Gets Supreme Court Look

June 7, 2021, 1:35 PM

The U.S. Supreme Court granted review in a case that could alter the way courts consider evidence claimed to implicate “state secrets.”

The case involves Foreign Intelligence Surveillance Act Section 1806(f), which requires that courts use private court proceedings to consider information that could implicate national security. Private parties don’t participate when courts review information “in camera and ex parte.”

Prior to the FISA, federal common law—that is, judge-made law in the absence of a congressional statute—didn’t require disclosure, even to the court.

The U.S. Court of Appeals for the Ninth Circuit said the FISA’s new procedures “displaced” federal common ...