However, even in cases where there are legitimate expectations of secrecy, such that parties are not required to give full disclosure of all this evidence, there is still a general principle of litigation that the party in control of a relevant piece of evidence is the one that is expected to put forward that evidence, or suffer an adverse inference from the court if they refrain from doing so. Courts have generally required that when a party refrains from putting forward relevant evidence under their own control, and without good reason, it is advisable for the court to draw an adverse inference from this — i.e., if they don’t want us to see it, it must not do them any good.
But of course, the very nature of the program is that it is kept secret, and all evidence which would prove that the plaintiff lies within the scope of the program is “classified.” To obtain this evidence, a plaintiff would have to access classified information, which would then lead them to legal dangers of another kind. Hence, a wonderfully absurd situation has prevailed. Every citizen in the US (and many outside the US) are subjected to this unlawful mass surveillance, but none, until Klayman, have been considered by the courts to have any standing to sue. Moreover, the reason that Klayman was successful in obtaining standing was because he was able to rely on documents leaked by Edward Snowden — leaks which the US government still regards as criminal espionage, punishable by death.