§949p–4 Discovery of, and access to, classified information by the accused

Summary

When the government in a military commission case wants to hide, remove, or limit access to classified evidence, the prosecutor must file a signed statement from an official who can classify information saying how releasing that evidence could harm national security. The judge cannot allow access unless the judge finds the classified material would be new, relevant, and helpful to the accused’s defense, to challenge the prosecution, or to sentencing, using the same standards courts use in federal criminal cases. If access is allowed, the judge may let the government delete or withhold parts, replace them with a summary, or replace them with a short statement admitting the facts the classified material would show. The prosecutor can make secret requests to protect classified details, like under federal practice for classified evidence. Any secret presentation that leads to an order must be sealed and kept for appeal. A judge must allow a summary or admitted statement if it gives the accused substantially the same ability to defend. If the judge’s order came from a secret showing, the accused cannot ask the judge to reconsider it.