H. R. 2647—405 
a hearing and shall rule prior to conducting any further pro-
ceedings. 
‘‘(3) IN CAMERA HEARING UPON DECLARATION TO COURT BY 
APPROPRIATE OFFICIAL OF RISK OF DISCLOSURE OF CLASSIFIED 
INFORMATION.—Any hearing held pursuant to this subsection 
(or any portion of such hearing specified in the request of 
a knowledgeable United States official) shall be held in camera 
if a knowledgeable United States official possessing authority 
to classify information submits to the military judge a declara-
tion that a public proceeding may result in the disclosure 
of classified information. Classified information is not subject 
to disclosure under this section unless the information is rel-
evant and necessary to an element of the offense or a legally 
cognizable defense and is otherwise admissible in evidence. 
‘‘(4) MILITARY
JUDGE
TO
MAKE
DETERMINATIONS
IN 
WRITING.—As to each item of classified information, the military 
judge shall set forth in writing the basis for the determination. 
‘‘(b) NOTICE
AND USE
OF CLASSIFIED INFORMATION
BY
THE 
GOVERNMENT.— 
‘‘(1) NOTICE TO ACCUSED.—Before 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. When 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) ORDER
BY
MILITARY
JUDGE
UPON
REQUEST
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 Rules of 
Evidence, 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) PROTECTION
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 Executive 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—
H. R. 2647—406 
‘‘(i) the evidence is reliable; and 
‘‘(ii) the redaction is consistent with affording the 
accused a fair trial. 
‘‘(d) ALTERNATIVE PROCEDURE FOR DISCLOSURE OF CLASSIFIED 
INFORMATION.— 
‘‘(1) MOTION BY THE UNITED STATES.—Upon any determina-
tion by the military judge authorizing the disclosure of specific 
classified information under the procedures established by this 
section, the trial counsel may move that, in lieu of the disclosure 
of such specific classified information, the military judge order— 
‘‘(A) the substitution for such classified information 
of a statement admitting relevant facts that the specific 
classified information would tend to prove; 
‘‘(B) the substitution for such classified information 
of a summary of the specific classified information; or 
‘‘(C) any other procedure or redaction limiting the 
disclosure of specific classified information. 
‘‘(2) ACTION ON MOTION.—The military judge shall grant 
such a motion of the trial counsel if the military judge finds 
that the statement, summary, or other procedure or redaction 
will provide the defendant with substantially the same ability 
to make his defense as would disclosure of the specific classified 
information. 
‘‘(3) HEARING ON MOTION.—The military judge shall hold 
a hearing on any motion under this subsection. Any such 
hearing shall be held in camera at the request of a knowledge-
able United States official possessing authority to classify 
information. 
‘‘(4) SUBMISSION OF STATEMENT OF DAMAGE TO NATIONAL 
SECURITY IF DISCLOSURE ORDERED.—The trial counsel may, in 
connection with a motion under paragraph (1), submit to the 
military judge a declaration signed by a knowledgeable United 
States official possessing authority to classify information certi-
fying that disclosure of classified information would cause 
identifiable damage to the national security of the United States 
and explaining the basis for the classification of such informa-
tion. If so requested by the trial counsel, the military judge 
shall examine such declaration during an ex parte presentation. 
‘‘(e) SEALING OF RECORDS OF IN CAMERA HEARINGS.—If at the 
close of an in camera hearing under this section (or any portion 
of a hearing under this section that is held in camera), the military 
judge determines that the classified information at issue may not 
be disclosed or elicited at the trial or pretrial proceeding, the 
record of such in camera hearing shall be sealed and preserved 
for use in the event of an appeal. The accused may seek reconsider-
ation of the military judge’s determination prior to or during trial. 
‘‘(f) PROHIBITION ON DISCLOSURE OF CLASSIFIED INFORMATION 
BY THE ACCUSED; RELIEF FOR ACCUSED WHEN THE UNITED STATES 
OPPOSES DISCLOSURE.— 
‘‘(1) ORDER TO PREVENT DISCLOSURE BY ACCUSED.—When-
ever the military judge denies a motion by the trial counsel 
that the judge issue an order under subsection (a), (c), or 
(d) and the trial counsel files with the military judge a declara-
tion signed by a knowledgeable United States official possessing 
authority to classify information objecting to disclosure of the 
classified information at issue, the military judge shall order
H. R. 2647—407 
that the accused not disclose or cause the disclosure of such 
information. 
‘‘(2) RESULT OF ORDER UNDER PARAGRAPH (1).—Whenever 
an accused is prevented by an order under paragraph (1) from 
disclosing or causing the disclosure of classified information, 
the military judge shall dismiss the case, except that, when 
the military judge determines that the interests of justice would 
not be served by dismissal of the case, the military judge 
shall order such other action, in lieu of dismissing the charge 
or specification, as the military judge determines is appropriate. 
Such action may include, but need not be limited to, the fol-
lowing: 
‘‘(A) Dismissing specified charges or specifications. 
‘‘(B) Finding against the United States on any issue 
as to which the excluded classified information relates. 
‘‘(C) Striking or precluding all or part of the testimony 
of a witness. 
‘‘(3) TIME FOR THE UNITED STATES TO SEEK INTERLOCUTORY 
APPEAL.—An order under paragraph (2) shall not take effect 
until the military judge has afforded the United States— 
‘‘(A) an opportunity to appeal such order under section 
950d of this title; and 
‘‘(B) an opportunity thereafter to withdraw its objection 
to the disclosure of the classified information at issue. 
‘‘(g) RECIPROCITY.— 
‘‘(1) DISCLOSURE
OF
REBUTTAL
INFORMATION.—Whenever 
the military judge determines that classified information may 
be disclosed in connection with a trial or pretrial proceeding, 
the military judge shall, unless the interests of fairness do 
not so require, order the United States to provide the accused 
with the information it expects to use to rebut the classified 
information. The military judge may place the United States 
under a continuing duty to disclose such rebuttal information. 
‘‘(2) SANCTION
FOR
FAILURE
TO
COMPLY.—If the United 
States fails to comply with its obligation under this subsection, 
the military judge— 
‘‘(A) may exclude any evidence not made the subject 
of a required disclosure; and 
‘‘(B) may prohibit the examination by the United States 
of any witness with respect to such information. 
‘‘§ 949p–7. Introduction of classified information into evi-
dence 
‘‘(a) PRESERVATION
OF
CLASSIFICATION
STATUS.—Writings, 
recordings, and photographs containing classified information may 
be admitted into evidence in proceedings of military commissions 
under this chapter without change in their classification status. 
‘‘(b) PRECAUTIONS BY MILITARY JUDGES.— 
‘‘(1) PRECAUTIONS IN ADMITTING CLASSIFIED INFORMATION 
INTO
EVIDENCE.—The military judge in a trial by military 
commission, in order to prevent unnecessary disclosure of classi-
fied information, may order admission into evidence of only 
part of a writing, recording, or photograph, or may order admis-
sion into evidence of the whole writing, recording, or photograph 
with excision of some or all of the classified information con-
tained therein, unless the whole ought in fairness be considered.
H. R. 2647—408 
‘‘(2) CLASSIFIED INFORMATION KEPT UNDER SEAL.—The mili-
tary judge shall allow classified information offered or accepted 
into evidence to remain under seal during the trial, even if 
such evidence is disclosed in the military commission, and 
may, upon motion by the United States, seal exhibits containing 
classified information for any period after trial as necessary 
to prevent a disclosure of classified information when a 
knowledgeable 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) TAKING OF TESTIMONY.— 
‘‘(1) OBJECTION BY TRIAL COUNSEL.—During the examina-
tion of a witness, trial counsel may object to any question 
or line of inquiry that may require the witness to disclose 
classified information not previously found to be admissible. 
‘‘(2) ACTION BY MILITARY JUDGE.—Following 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 Information Proce-
dures Act (18 U.S.C. App.). 
‘‘(d) DISCLOSURE AT TRIAL OF CERTAIN STATEMENTS PREVIOUSLY 
MADE BY A WITNESS.— 
‘‘(1) MOTION FOR PRODUCTION OF STATEMENTS IN POSSES-
SION OF THE 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 authorized. 
‘‘(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 Executive 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.