Page:United States Statutes at Large Volume 123.djvu/2614

 123STA T . 2 594PUBLIC LA W 111 –8 4 —O CT. 28 , 2 0 09 ahe a ring an ds ha l lr u le p ri o r t o c onducting an yf urther pro - ceedings .‘ ‘ (3)INCAMER A H EAR I N GUPO N D EC L ARA T ION TO COURT BY APPROPRIATE O F FICIAL OF RI SK OF DISCLOSURE OF CLASSIFIED INFORMATION. —A ny hearing held pursuant to this su b section (or any portion of such hearing specified in the re q uest of a k no w ledgeable U nited S tates official) shall be held in ca m era if a knowledgeable United States official possessing authority to classify information submits to the military j udge a declara- tion that a public proceeding may result in the disclosure of classified information. C lassified information is not subject to disclosure under this section unless the information is rel- e v ant and necessary to an element of the offense or a legally cogni z able defense and is otherwise admissible in evidence. ‘‘( 4 ) M ILITARY J UDGE TO MAKE DETERMINATIONS IN W RITING.—As to each item of classified information , the military judge shall set forth in writing the basis for the determination. ‘‘(b) N OTICE AND USE OF CLASSIFIED INFORMATION BY THE G O V ERNMENT.— ‘‘( 1 ) NOTICE TO ACCUSED.— B efore any hearing is conducted pursuant to a request by the trial counsel under subsection (a), trial counsel shall provide the accused with notice of the classified information that is at issue. Such notice shall identify the specific classified information at issue whenever that information previously has been made available to the accused by the United States. W hen the United States has not pre- viously made the information available to the accused in connec- tion with the case the information may be described by generic category, in such forms as the military judge may approve, rather than by identification of the specific information of con- cern to the United States. ‘‘( 2 ) O RDER BY MILITARY JUDGE UPON RE Q UEST OF ACCUSED.—Whenever the trial counsel requests a hearing under subsection (a), the military judge, upon request of the accused, may order the trial counsel to provide the accused, prior to trial, such details as to the portion of the charge or specification at issue in the hearing as are needed to give the accused fair notice to prepare for the hearing. ‘‘(c) SUBSTITUTIONS.— ‘‘(1) IN CAMERA PRETRIAL HEARING.—Upon request of the trial counsel pursuant to the Military Commission R ules of E vidence, and in accordance with the security procedures estab- lished by the military judge, the military judge shall conduct a classified in camera pretrial hearing concerning the admissi- bility of classified information. ‘‘(2) P ROTECTION OF SOURCES, METHODS, AND ACTIVITIES BY WHICH EVIDENCE ACQUIRED.—When trial counsel seeks to introduce evidence before a military commission under this chapter and the E x ecutive branch has classified the sources, methods, or activities by which the United States acquired the evidence, the military judge shall permit trial counsel to introduce the evidence, including a substituted evidentiary foundation pursuant to the procedures described in subsection (d), while protecting from disclosure information identifying those sources, methods, or activities, if— ‘‘(A) the evidence is otherwise admissible and ‘‘(B) the military judge finds that—