§949p–4 Discovery Of, and Access To, Classified Information by the Accused

Summary

When the United States wants to hide, remove, or limit access to classified evidence in a military commission, the government's trial lawyer must file a written statement saying how revealing that information would harm national security. That statement must be signed by an official who has authority to classify information. The military judge cannot let the accused see that classified evidence unless the judge finds it is not just repetitive, is relevant, and would actually help the accused’s defense, rebut the prosecution, or affect sentencing, using standards like those in federal criminal cases. If the judge allows handling of classified material, the judge may let the government delete or withhold items, give a summary instead, or give a written admission of the facts the secret evidence would show. The government may make private (ex parte) filings or hearings to protect secrets; those filings are sealed and kept for any appeal. The judge must approve a summary or admitted-facts statement if it gives the accused substantially the same ability to defend. Orders made after a private showing cannot be reconsidered by the accused.