10 U.S.C. § 949p–4: Discovery of, and access…

Summary

When the government wants to block or limit a defendant’s access to classified evidence at a military commission trial, the government lawyer must file a written statement saying how letting the defendant see the information could harm national security. That statement must be signed by an official who can classify information. A military judge may only let the defendant see the classified material if the judge finds it is not repetitive, is relevant, and would help the defense, rebut the prosecution, or affect sentencing, using the same standards federal courts use for classified evidence. If access is not allowed, the judge can permit the government to delete or hide parts, give a summary, or offer a statement admitting facts instead. The government may make these requests in a private court session to protect secrets, following the federal Classified Information Procedures Act. Any private submissions must be sealed and kept in the record for an appeal. If the judge finds a summary or admission gives the defendant substantially the same ability to defend, the judge must approve it. Orders entered after a private showing cannot be reopened by the defendant through a motion for reconsideration.

Title 10, §949p–4

Armed Forces, Source: USLM XML via OLRC

(a)Limitations on Discovery or Access by the Accused.—

(1)Declarations by the united states of damage to national security.—

In any case before a military commission in which the United States seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any classified information, the trial counsel shall submit a declaration invoking the United States’ classified information privilege and setting forth the damage to the national security that the discovery of or access to such information reasonably could be expected to cause. The declaration shall be signed by a knowledgeable United States official possessing authority to classify information.

(2)Standard for authorization of discovery or access.—

Upon the submission of a declaration under paragraph (1), the military judge may not authorize the discovery of or access to such classified information unless the military judge determines that such classified information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing, in accordance with standards generally applicable to discovery of or access to classified information in Federal criminal cases. If the discovery of or access to such classified information is authorized, it shall be addressed in accordance with the requirements of subsection (b).

(b)Discovery of Classified Information.—

(1)Substitutions and other relief.—

The military judge, in assessing the accused’s discovery of or access to classified information under this section, may authorize the United States—

(A)to delete or withhold specified items of classified information;

(B)to substitute a summary for classified information; or

(C)to substitute a statement admitting relevant facts that the classified information or material would tend to prove.

(2)Ex parte presentations.—

The military judge shall permit the trial counsel to make a request for an authorization under paragraph (1) in the form of an ex parte presentation to the extent necessary to protect classified information, in accordance with the practice of the Federal courts under the Classified Information Procedures Act (18 U.S.C. App.). If the military judge enters an order granting relief following such an ex parte showing, the entire presentation (including the text of any written submission, verbatim transcript of the ex parte oral conference or hearing, and any exhibits received by the court as part of the ex parte presentation) shall be sealed and preserved in the records of the military commission to be made available to the appellate court in the event of an appeal.

(3)Action by military judge.—

The military judge shall grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with paragraph (1), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.

(c)Reconsideration.—

An order of a military judge authorizing a request of the trial counsel to substitute, summarize, withhold, or prevent access to classified information under this section is not subject to a motion for reconsideration by the accused, if such order was entered pursuant to an ex parte showing under this section.

Editorial Notes

References in Text

The Classified Information Procedures Act, referred to in subsec. (b)(2), is Pub. L. 96–456, Oct. 15, 1980, 94 Stat. 2025, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure.

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

Summary

Title 10, §949p–4

Notes & Related Subsidiaries

Editorial Notes

References in Text

Citations & Metadata