Concurrence with denial of en banc (starting at 108):
Statutory FISA ex pare in camera review speaks squarely to and therefore displaces the state secrets privilege.
Dismissal remedy not identical with the privilege.
Privilege is an evidentiary privilege, not a constitutional one.
FISA remedy not limited to when the govt is on the offensive, and the other party need not be a defendant.
Dissent from denial of en banc:
FISA review limited to discrete instances of admissibility in criminal prosecutions
Displacement of state secrets privilege by statute privileges the legislature within the balance of powers.
An executive privilege can have a Constitutional core.
FISA review limited to "such other materials," not every possible material.
Any department can invoke privilege, but only DOJ can invoke FISA.
Govt invocation of privilege insufficient for statutory trigger of FISA.