Title: The Effect of the Successful Assertion of the State Secrets Privilege in a Civil Lawsuit in Which the Government is Not a Party: When, If Ever, Should the Defendant Shoulder the Burden of the Government’s Successful Privilege Claim?
Abstract: If the privilege is successfully claimed by the government in litigation to which it is not a party, the effect is simply to make the evidence unavailable, as though a witness had died or claimed the privilege against self-incrimination . . .." 1 -FED.R. EVID.509 Advisory Committee note to 1969 draft."The result [of the government's successful assertion of the state secrets privilege] is simply that the evidence is unavailable, as though a witness had died, and the case will proceed accordingly, with no consequence save those resulting from the loss of the evidence."