In United States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court "set forth various 'principles which control the application of the privilege'" and established the procedure by which federal courts review the government's invocation of the privilege. Doe v. C.I.A., 576 F.3d 95, 102 (2d Cir. 2009) (quoting id. at 7). First, the Court made clear that the privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party.

Other courts, including ones cited by the dissent, recognize that in camera review may not only be appropriate but required. Doe v. CIA , 576 F.3d 95, 105 (2d Cir. 2009) ("Sometimes, however, review may require examination of the classified material itself."); Sterling v. Tenet , 416 F.3d 338, 345 (4th Cir. 2005) ("There may of course be cases where the necessity for evidence is sufficiently strong and the danger to national security sufficiently unclear that in camera review of all materials is required to evaluate the claim of privilege."). In any event, these limitations on in camera review, if they exist, come at Reynolds Step 2—not Step 3.

It is beyond dispute that the judiciary must protect that concern. See, e.g., Doe v. CIA, 576 F.3d 95 (2d Cir. 2009). But inasmuch as there are established procedures for doing just that, we think treating that need as giving rise to "special factors counseling hesitation" is an unfortunate form of double counting.

First, courts must determine whether the Government has satisfied the privilege's procedural prerequisites. Doe v. CIA, 576 F.3d 95, 104 (2d Cir. 2009).

WHEREAS, by order dated May 29, 2009, (Doc. I.D. No. 422, the "Order") the court gave the U.S. Attorney the opportunity to substantiate certain claims of privilege or the like made in the Objection in the context of an affidavit (an "In Camera Affidavit") filed for the court's in camera review. Cf. Jane Doe v. Central Intelligence Agency, 576 F.3d 95, 103 (2d Cir. 2009) (recognizing from Supreme Court precedent that if the court "is not satisfied by the claim of privilege, it may examine the evidence in question, so long as the review is ex parte and in camera." (citing United States v. Reynolds, 345 U.S. 1 (1953) (emphasis in original)).

While the Reynolds Court refused to "automatically require a complete disclosure to the judge before [a] claim of privilege will be accepted," it expressly recognized that in camera review might sometimes be necessary to evaluate a privilege claim. Id.; Sterling, 416 F.3d at 345 ("There may of course be cases where the necessity for evidence is sufficiently strong and the danger to national security sufficiently unclear that in camera review of all materials is required to evaluate the claim of privilege."); see also Doe v. CIA, 576 F.3d 95, 105 (2d Cir. 2009). In the decades since Reynolds, courts have repeatedly concluded that in camera review is a "necessary process" when, as here, the Government asserts that the state secrets privilege will preclude it from raising a valid defense to a constitutional claim.

While the Reynolds Court refused to "automatically require a complete disclosure to the judge before [a] claim of privilege will be accepted," it expressly recognized that in camera review might sometimes be necessary to evaluate a privilege claim. Id. ; Sterling , 416 F.3d at 345 ("There may of course be cases where the necessity for evidence is sufficiently strong and the danger to national security sufficiently unclear that in camera review of all materials is required to evaluate the claim of privilege."); see also Doe v. CIA , 576 F.3d 95, 105 (2d Cir. 2009). In the decades since Reynolds , courts have repeatedly concluded that in camera review is a "necessary process" when, as here, the Government asserts that the state secrets privilege will preclude it from raising a valid defense to a constitutional claim.

This conundrum is not unique to the FISC—it confronts any Article III court addressing what purports to constitute state secrets or other information the confidentiality of which is protectable by law. See, e.g., United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953) (setting forth the method for judicial consideration of civil cases touching on state secrets); United States v. Stewart, 590 F.3d 93, 125–32 (2d Cir.2009) (describing at length the methods employed when a criminal defendant in federal district court seeks FISA documents); Doe v. CIA, 576 F.3d 95 (2d Cir.2009) (civil) (describing this Court's manner of conducting an appeal involving state secrets). In such cases, courts typically operate publicly only to the extent they think practicable after evaluating the basis of the government's purported need for secrecy and the effects of such secrecy on the other parties before them.

As a result, the district judge "los[es] the benefit of an adversarial process, which may . . . inform[] and sharpen[] the judicial inquiry." Doe v. C.I.A., 576 F.3d 95, 107 (2d Cir. 2009); see also Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Goldberger, 209 F.3d at 53 ("It is not without significance that when [lead counsel for plaintiffs on appeal] stood up at oral argument to petition for a bigger slice of his clients' recovery, no one sat adjacent to him at opposing counsel's table."). But the percentage method has its limitations as well.

Likewise, when reviewing the government's invocation of the state-secrets privilege, "the district court must be 'satisf[ied] . . . from all the circumstances of the case[] that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.'" Doe v. CIA, 576 F.3d 95, 103 (2d Cir. 2009) (quoting United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953)). 3. Defendants' Inability To Prevent Publication of Information that Has Been "Officially Disclosed" by the CIA