H. R. 2647—401 
‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PENALTY 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 members. 
‘‘(2) In any case described in paragraph (1) in which 12 members 
are not reasonably available for a military commission because 
of physical conditions or military exigencies, the convening authority 
shall specify a lesser number of members for the military commis-
sion (but not fewer than 9 members), and the military commission 
may be assembled, and the trial held, with not less than the 
number of members so specified. In any such 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 reasonably available. 
‘‘§ 949n. Military commission to announce action 
‘‘A military commission under this chapter shall announce its 
findings and sentence to the parties as soon as determined. 
‘‘§ 949o. Record of trial 
‘‘(a) RECORD; AUTHENTICATION.—Each military commission 
under this chapter shall keep a separate, verbatim, record of the 
proceedings in each case brought before it, and the record shall 
be authenticated by the signature of the military judge. If the 
record cannot be authenticated by the military judge by reason 
of death, disability, or absence, it shall be authenticated by the 
signature of the trial counsel or by a member of the commission 
if the trial counsel is unable to authenticate it by reason of death, 
disability, or absence. Where appropriate, and as provided in regula-
tions prescribed by the Secretary of Defense, the record of a military 
commission under this chapter may contain a classified annex. 
‘‘(b) COMPLETE RECORD REQUIRED.—A complete record of the 
proceedings and testimony shall be prepared in every military 
commission under this chapter. 
‘‘(c) PROVISION OF COPY TO ACCUSED.—A copy of the record 
of the proceedings of the military commission under this chapter 
shall be given the accused as soon as it is authenticated. If the 
record contains classified information, or a classified annex, the 
accused shall receive a redacted version of the record consistent 
with the requirements of subchapter V of this chapter. Defense 
counsel shall have access to the unredacted record, as provided 
in regulations prescribed by the Secretary of Defense. 
‘‘SUBCHAPTER V—CLASSIFIED INFORMATION PROCEDURES 
‘‘Sec. 
‘‘949p–1. Protection of classified information: applicability of subchapter. 
‘‘949p–2. Pretrial conference. 
‘‘949p–3. Protective orders. 
‘‘949p–4. Discovery of, and access to, classified information by the accused. 
‘‘949p–5. Notice by accused of intention to disclose classified information. 
‘‘949p–6. Procedure for cases involving classified information. 
‘‘949p–7. Introduction of classified information into evidence. 
‘‘§ 949p–1. Protection of classified information: applicability 
of subchapter 
‘‘(a) PROTECTION
OF
CLASSIFIED
INFORMATION.—Classified 
information shall be protected and is privileged from disclosure 
if disclosure would be detrimental to the national security. Under
H. R. 2647—402 
no circumstances may a military judge order the release of classified 
information to any person not authorized to receive such informa-
tion. 
‘‘(b) ACCESS TO EVIDENCE.—Any information admitted into evi-
dence pursuant to any rule, procedure, or order by the military 
judge shall be provided to the accused. 
‘‘(c) DECLASSIFICATION.—Trial counsel shall work with the 
original classification authorities for evidence that may be used 
at trial to ensure that such evidence is declassified to the maximum 
extent possible, consistent with the requirements of national secu-
rity. A decision not to declassify evidence under this section shall 
not be subject to review by a military commission or upon appeal. 
‘‘(d) CONSTRUCTION OF PROVISIONS.—The judicial construction 
of the Classified Information Procedures Act (18 U.S.C. App.) shall 
be authoritative in the interpretation of this subchapter, except 
to the extent that such construction is inconsistent with the specific 
requirements of this chapter. 
‘‘§ 949p–2. Pretrial conference 
‘‘(a) MOTION.—At any time after service of charges, any party 
may move for a pretrial conference to consider matters relating 
to classified information that may arise in connection with the 
prosecution. 
‘‘(b) CONFERENCE.—Following a motion under subsection (a), 
or sua sponte, the military judge shall promptly hold a pretrial 
conference. Upon request by either party, the court shall hold 
such conference ex parte 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.). 
‘‘(c) MATTERS TO BE ESTABLISHED AT PRETRIAL CONFERENCE.— 
‘‘(1) TIMING OF SUBSEQUENT ACTIONS.—At the pretrial con-
ference, the military judge shall establish the timing of— 
‘‘(A) requests for discovery; 
‘‘(B) the provision of notice required by section 949p– 
5 of this title; and 
‘‘(C) the initiation of the procedure established by sec-
tion 949p–6 of this title. 
‘‘(2) OTHER MATTERS.—At the pretrial conference, the mili-
tary judge may also consider any matter— 
‘‘(A) which relates to classified information; or 
‘‘(B) which may promote a fair and expeditious trial. 
‘‘(d) EFFECT OF ADMISSIONS BY ACCUSED AT PRETRIAL CON-
FERENCE.—No admission made by the accused or by any counsel 
for the accused at a pretrial conference under this section may 
be used against the accused unless the admission is in writing 
and is signed by the accused and by the counsel for the accused. 
‘‘§ 949p–3. Protective orders 
‘‘Upon motion of the trial counsel, the military judge shall 
issue an order to protect against the disclosure of any classified 
information that has been disclosed by the United States to any 
accused in any military commission under this chapter or that 
has otherwise been provided to, or obtained by, any such accused 
in any such military commission.
H. R. 2647—403 
‘‘§ 949p–4. Discovery of, and access to, classified information 
by the accused 
‘‘(a) LIMITATIONS ON DISCOVERY OR ACCESS BY THE ACCUSED.— 
‘‘(1) DECLARATIONS BY THE UNITED STATES OF DAMAGE TO 
NATIONAL SECURITY.—In any case before a military commission 
in which the United States seeks to delete, withhold, or other-
wise obtain other relief with respect to the discovery of or 
access to any classified information, the trial counsel shall 
submit a declaration invoking 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 expected to cause. The declaration 
shall be signed by a knowledgeable United States official pos-
sessing authority to classify information. 
‘‘(2) STANDARD
FOR
AUTHORIZATION
OF
DISCOVERY
OR 
ACCESS.—Upon the submission of a declaration under para-
graph (1), the military judge may not authorize 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 Federal criminal cases. 
If the discovery of or access to such classified information 
is authorized, it shall be addressed in accordance with the 
requirements of subsection (b). 
‘‘(b) DISCOVERY OF CLASSIFIED 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) EX PARTE 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 Procedures Act (18 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 JUDGE.—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
H. R. 2647—404 
relief would provide the accused with substantially the same 
ability to make a defense as would discovery of or access 
to the specific classified information. 
‘‘(c) RECONSIDERATION.—An order of a military judge author-
izing a request of the trial counsel to substitute, summarize, with-
hold, or prevent access to classified information under this section 
is not subject to a motion for reconsideration by the accused, if 
such order was entered pursuant to an ex parte showing under 
this section. 
‘‘§ 949p–5. Notice by accused of intention to disclose classified 
information 
‘‘(a) NOTICE BY ACCUSED.— 
‘‘(1) NOTIFICATION
OF
TRIAL
COUNSEL
AND
MILITARY 
JUDGE.—If an accused reasonably expects to disclose, or to 
cause the disclosure of, classified information in any manner 
in connection with any trial or pretrial proceeding involving 
the prosecution of such accused, the accused shall, within the 
time specified by the military judge or, where no time is speci-
fied, within 30 days before trial, notify the trial counsel and 
the military judge in writing. Such notice shall include a brief 
description of the classified information. Whenever the accused 
learns of additional classified information the accused reason-
ably expects to disclose, or to cause the disclosure of, at any 
such proceeding, the accused shall notify trial counsel and 
the military judge in writing as soon as possible thereafter 
and shall include a brief description of the classified informa-
tion. 
‘‘(2) LIMITATION ON DISCLOSURE BY ACCUSED.—No accused 
shall disclose, or cause the disclosure of, any information known 
or believed to be classified in connection with a trial or pretrial 
proceeding until— 
‘‘(A) notice has been given under paragraph (1); and 
‘‘(B) the United States has been afforded a reasonable 
opportunity to seek a determination pursuant to the proce-
dure set forth in section 949p–6 of this title and the time 
for the United States to appeal such determination under 
section 950d of this title has expired or any appeal under 
that section by the United States is decided. 
‘‘(b) FAILURE TO COMPLY.—If the accused fails to comply with 
the requirements of subsection (a), the military judge— 
‘‘(1) may preclude disclosure of any classified information 
not made the subject of notification; and 
‘‘(2) may prohibit the examination by the accused of any 
witness with respect to any such information. 
‘‘§ 949p–6. Procedure for cases involving classified informa-
tion 
‘‘(a) MOTION FOR HEARING.— 
‘‘(1) REQUEST FOR HEARING.—Within the time specified by 
the military judge for the filing of a motion under this section, 
either party may request the military judge to conduct a 
hearing to make all determinations concerning the use, rel-
evance, or admissibility of classified information that would 
otherwise be made during the trial or pretrial proceeding. 
‘‘(2) CONDUCT OF HEARING.—Upon a request by either party 
under paragraph (1), the military judge shall conduct such