Page:United States Statutes at Large Volume 123.djvu/2612

 123STA T . 2 59 2 PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 ‘ ‘ §94 9 p– 4 .Discovery o f,and access t o,c l assified infor m ation b yt h e acc u sed ‘ ‘ (a)LIM I TA TI ONS ON D IS C O VERY OR A CCESS B YT H E ACC U SE D.— ‘‘( 1 ) DEC L ARATIONS BY THE UNITED STATES O F DAMA G ETO NATIONAL SECURITY.— In an yc a seb e for ea mil i t ary commission in wh ich the U nite dS tates see k s to delete , withhold, or other - wise obtain other relief with res p ect to the disco v ery of or access to any classified information, the trial co u nsel shall submit a declaration invokin g the United States ’ classified information privilege and setting forth the damage to the national security that the discovery of or access to such informa- tion reasonably could be e x pected to cause. T he declaration shall be signed by a knowledgeable United States official pos- sessing authority to classify information. ‘‘( 2 ) STANDARD FOR AUTHORI Z ATION OF DISCOVERY OR ACCESS.—Upon the submission of a declaration under para- graph (1), the military j udge may not authori z e 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 F ederal criminal cases. If the discovery of or access to such classified information is authorized, it shall be addressed in accordance with the re q uirements of subsection (b). ‘‘(b) DISCOVERY OF C LASSIFIED INFORMATION.— ‘‘(1) SUBSTITUTIONS AND OTHER RELIEF.—The military judge, in assessing the accused’s discovery of or access to classi- fied 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) EXP ARTE 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 P rocedures Act (1 8 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 J UDGE.—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