[Eugene Volokh] Classified Evidence in the Tiktok Case

The majority stated only that its decision was "based on the public record, without reference to the classified evidence the Government filed below," but Justice Gorsuch's concurrence in the judgment added:

I am pleased that the Court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel. Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns. Usually, "the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."

Maybe there is a way to handle classified evidence that would afford a similar opportunity in cases like these. Maybe, too, Congress or even the Standing Committee on Rules of Practice and Procedure would profit from considering the question. Cf. United States v. Zubaydah (2022) (Gorsuch, J., dissenting). But as the Court recognizes, we have no business considering the government's secret evidence here.

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