‘‘(4) Any classified exculpatory evidence that is not 
disclosed to the accused under this subsection— 
‘‘(A) shall be provided to military defense coun-
sel; 
‘‘(B) shall be provided to civilian defense coun-
sel, if civilian defense counsel has obtained the nec-
essary security clearances and access to such evi-
dence is consistent with regulations that the Sec-
retary may prescribe to protect classified informa-
tion; and 
‘‘(C) shall be provided to the accused in a re-
dacted or summary form, if it is possible to do so 
without compromising intelligence sources, methods, 
or activities or other national security interests. 
‘‘(5) A defense counsel who receives evidence under 
this subsection shall not be obligated to, and may not, dis-
close that evidence to the accused. 
‘‘§ 949k. Defense of lack of mental responsibility 
‘‘(a) AFFIRMATIVE DEFENSE.—It is an affirmative 
defense in a trial by military commission under this chap-
ter that, at the time of the commission of the acts consti-
tuting the offense, the accused, as a result of a severe 
mental disease or defect, was unable to appreciate the na-
ture and quality or the wrongfulness of the acts. Mental 
disease or defect does not otherwise constitute a defense. 
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‘‘(b) BURDEN OF PROOF.—The accused in a military 
commission under this chapter has the burden of proving 
the defense of lack of mental responsibility by clear and 
convincing evidence. 
‘‘(c) FINDINGS FOLLOWING ASSERTION
OF DE-
FENSE.—Whenever lack of mental responsibility of the ac-
cused with respect to an offense is properly at issue in 
a military commission under this chapter, the military 
judge shall instruct the members of the commission as to 
the defense of lack of mental responsibility under this sec-
tion and shall charge them to find the accused— 
‘‘(1) guilty; 
‘‘(2) not guilty; or 
‘‘(3) subject to subsection (d), not guilty by rea-
son of lack of mental responsibility. 
‘‘(d) MAJORITY VOTE REQUIRED FOR FINDING.— 
The accused shall be found not guilty by reason of lack 
of mental responsibility under subsection (c)(3) only if a 
majority of the members present at the time the vote is 
taken determines that the defense of lack of mental re-
sponsibility has been established. 
‘‘§ 949l. Voting and rulings 
‘‘(a) VOTE BY SECRET WRITTEN BALLOT.—Voting 
by members of a military commission under this chapter 
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on the findings and on the sentence shall be by secret writ-
ten ballot. 
‘‘(b) RULINGS.—(1) The military judge in a military 
commission under this chapter shall rule upon all ques-
tions of law, including the admissibility of evidence and 
all interlocutory questions arising during the proceedings. 
‘‘(2) Any ruling made by the military judge upon a 
question of law or an interlocutory question (other than 
the factual issue of mental responsibility of the accused) 
is conclusive and constitutes the ruling of the military 
commission. However, a military judge may change his 
ruling at any time during the trial. 
‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before a vote 
is taken of the findings of a military commission under 
this chapter, the military judge shall, in the presence of 
the accused and counsel, instruct the members as to the 
elements of the offense and charge them— 
‘‘(1) that the accused must be presumed to be 
innocent until his guilt is established by legal and 
competent evidence beyond a reasonable doubt; 
‘‘(2) that in the case being considered, if there 
is a reasonable doubt as to the guilt of the accused, 
the doubt must be resolved in favor of the accused 
and he must be acquitted; 
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‘‘(3) that, if there is reasonable doubt as to the 
degree of guilt, the finding must be in a lower de-
gree as to which there is no reasonable doubt; and 
‘‘(4) that the burden of proof to establish the 
guilt of the accused beyond a reasonable doubt is 
upon the United States. 
‘‘§ 949m. Number of votes required 
‘‘(a) CONVICTION.—No person may be convicted by 
a military commission under this chapter of any offense, 
except as provided in section 949i(b) of this title or by 
concurrence of two-thirds of the members present at the 
time the vote is taken. 
‘‘(b) SENTENCES.—(1) No person may be sentenced 
by a military commission to suffer death, except insofar 
as— 
‘‘(A) the penalty of death is expressly author-
ized under this chapter for an offense of which the 
accused has been found guilty; 
‘‘(B) trial counsel expressly sought the penalty 
of death by filing an appropriate notice in advance 
of trial; 
‘‘(C) the accused is convicted of the offense by 
the concurrence of all the members; and 
‘‘(D) all the members concur in the sentence of 
death. 
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‘‘(2) No person may be sentenced to life imprison-
ment, or to confinement for more than 10 years, by a mili-
tary commission under this chapter except by the concur-
rence of three-fourths of the members present at the time 
the vote is taken. 
‘‘(3) All other sentences shall be determined by a 
military commission by the concurrence of two-thirds of 
the members present at the time the vote is taken. 
‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PEN-
ALTY OF DEATH.—(1) Except as provided in paragraph 
(2), in a case in which the penalty of death is sought, the 
number of members of the military commission under this 
chapter shall be not less than 12. 
‘‘(2) In any case described in paragraph (1) in which 
12 members are not reasonably available because of phys-
ical conditions or military exigencies, the convening au-
thority shall specify a lesser number of members for the 
military commission (but not fewer than 9 members), and 
the military commission may be assembled, and the trial 
held, with not fewer than the number of members so speci-
fied. In such a case, the convening authority shall make 
a detailed written statement, to be appended to the record, 
stating why a greater number of members were not rea-
sonably available. 
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