Concurrence with denial of en banc: When assessing State Secrets privilege, courts must attempt to determine if the contested materials contain privileged information, and if so, if there is any way to segregate the non-privileged information.
This applies when the basis for discovery is the statutory obligation to assist foreign tribunals.
Facts generally known and acknowledged by heads of government cannot be considered state secrets.
Dissent from denial of en banc: Information requested has been held to be within the privilege.
Deference to the Executive warranted on national security interests.
Third party disclosure can't waive privilege, because it belongs to the govt.
Forcing govt to confirm or deny would be harmful.
State secrets privilege not diminished when discovery directed to government contractor.
Not incidental to foreign proceeding -- the purpose of the proceeding is to discover this information.
The fact that it is being sent to a foreign tribunal changes the state secrets balancing.