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

Abstract

This Comment hopes to address Judge Ellis's recent judicial approval of the silent witness rule and whether its approval for use in the criminal arena implicitly endorses its use in civil actions. However, this Comment 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.

Part II will acquaint the reader as to the history of the state secrets privilege and survey some of the current legal thought. Part III will discuss the Classified Information Procedures Act (CIPA, or the Act), its application to classified evidence in national security litigation, and the government's reliance on the Act to justify the use of the silent witness rule. Part IV will address the preliminary case law history of the silent witness rule, culminating with an analysis of Judge Ellis's opinion in United States v. Rosen—arguing that his approval creates an answer to the state secrets "problem." Part VI will conclude the Comment.