Page:United States Statutes at Large Volume 123.djvu/2617

 123STA T . 2 597PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 ‘ ‘ (2)CLAS S IF I ED I N F ORM A T ION K E P T U NDER SEAL .—Themil i -taryjudg e s hall all owc lassi f ied i n formation offered or acce p ted into e v idence to remain under seal during the trial , even if such evidence is disclosed in the military commission, and may, upon motion b y the U nited S tates, seal e x hibits containing classified information for any period after trial as necessary to prevent a disclosure of classified information when a k nowledgeable United States official possessing authority to classify information submits to the military judge a declaration setting forth the damage to the national security that the disclosure of such information reasonably could be expected to cause. ‘‘(c) TAKIN G OF TESTIMON Y .— ‘‘( 1 ) OBJ E C TION BY TRIAL COUNSEL.— D uring the examina- tion of a witness, trial counsel may object to any q uestion or line of inquiry that may require the witness to disclose classified information not previously found to be admissible. ‘‘(2) A CTION BY MILITARY JUDGE.— F ollowing an objection under paragraph (1), the military judge shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified informa- tion. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness ’ response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect classified information from disclosure, in accordance with the practice of the Federal courts under the Classified I nformation P roce- dures Act (1 8 U.S.C. App.). ‘‘(d) DISCLOSURE AT TRIAL OF CERTAIN STATEMENTS PRE V IOUSLY M ADEBYA W ITNESS.— ‘‘(1) MOTION FOR PRODUCTION OF STATEMENTS IN POSSES- SION OF T H E UNITED STATES.—After a witness called by the trial counsel has testified on direct examination, the military judge, on motion of the accused, may order production of state- ments of the witness in the possession of the United States which relate to the subject matter as to which the witness has testified. This paragraph does not preclude discovery or assertion of a privilege otherwise authori z ed. ‘‘(2) INVOCATION OF PRIVILEGE BY THE UNITED STATES.— If the United States invokes a privilege, the trial counsel may provide the prior statements of the witness to the military judge during an ex parte presentation to the extent necessary to protect classified information from disclosure, in accordance with the practice of the Federal courts under the Classified Information Procedures Act (18 U.S.C. App.). ‘‘( 3 ) ACTION BY MILITARY JUDGE ON MOTION.—If the military judge finds that disclosure of any portion of the statement identified by the United States as classified would be detri- mental to the national security in the degree to warrant classi- fication under the applicable E xecutive Order, statute, or regu- lation, that such portion of the statement is consistent with the testimony of the witness, and that the disclosure of such portion is not necessary to afford the accused a fair trial, the military judge shall excise that portion from the statement.