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The government may protect national secrets from the process of discovery. The government has such a privilege but its exercise may also require the acquittal of a defendant.

The state secrets privilege is a common law privilege that permits the government to bar the disclosure of information if 'there is a reasonable danger' that disclosure will 'expose military matters which, in the interest of national security, should not be divulged.' United States v. Reynolds, 345 U.S. 1, 10, 73 S. Ct. 528, 97 L. Ed. 727 (1953). The state secrets privilege strikes a delicate balance 'between fundamental principles of our liberty, including justice, transparency, accountability and national security.' Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010).

The state secrets privilege has two applications: as a rule of evidentiary privilege, barring only the secret evidence from exposure during litigation, and as a rule of non-justiciability, when the subject matter of the lawsuit is itself a state secret, necessitating dismissal. See ACLU v. National Security Agency, 493 F.3d 644, 650 n.2 (6th Cir. 2007). The first application of evidentiary withholding can serve to remove only certain specific pieces of evidence or can ...

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