Classified information

(a) General Rule. Classified information must be protected and if disclosure would be detrimental to the national security. Under no circumstances may a military judge order the release of classified information to any person not authorized to receive such information. The security Secretary of Defense may prescribe III-23 procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities. (b) Definitions. As used in this rule: (1) “Classified information” means any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulations, to require protection against unauthorized disclosure for reasons of national security, and any restricted data, as defined in 42 U.S.C. §2014(y). (2) “National security” means the national defense and foreign relations of the United States. (3) “In camera hearing” means a session under Article 39(a) from which the public is excluded. (4) “In camera review” means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record. (5) “Ex parte” means a discussion between the military judge and either defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect classified information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate. (c) Access to Evidence. Any information admitted into evidence pursuant to any rule, procedure, or order by the military judge must be provided to the accused. (d) Declassification. Trial counsel should, when practicable, seek declassification of evidence that may be used at trial, consistent with the requirements of national security. A decision not to declassify evidence under this section is not subject to review by a military judge or upon appeal. (e) Action Prior to Referral of Charges. (1) Prior to referral of charges, upon a showing by the accused that the classified information sought is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority III-24 must respond in writing to a request by the accused for classified information if the privilege in this rule is claimed for such information. In response to such a request, the convening authority may: (A) delete classified information from documents made available to the accused; items of specified (B) substitute a portion or summary of the information for such classified documents; (C) substitute a statement admitting relevant facts that the classified information would tend to prove; (D) provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or (E) withhold disclosure if actions under (A) taken without causing through (D) cannot be identifiable damage to the national security. (2) An Article 32 preliminary hearing officer may not rule on any objection by the accused to the release of documents or information protected by this rule. (3) Any objection by the accused to the withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference. (f) Actions after Referral of Charges. (1) Pretrial Conference. At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a). (2) Ex Parte Permissible. Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect classified information from disclosure. (3) Matters to be Established at Pretrial Conference. (A) Timing of Subsequent Actions. At the pretrial conference, the military judge must establish the timing of: (i) requests for discovery; (ii) the provision of notice required by subdivision (i) of this rule; and (iii) established by subdivision (j) of this rule. (B) Other Matters. At the pretrial conference, the military judge may also consider any matter that relates to classified information or that may promote a fair and expeditious trial. (5) requiring the maintenance of logs regarding access by all persons authorized by the military judge to have access to the classified information in connection with the preparation of the defense; (4) Convening Authority Notice and Action. If a claim of privilege has been made under this rule with respect to classified information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court- martial proceeding, the matter must be reported to the convening authority. The convening authority may: (A) institute action to obtain the classified information for the use by the military judge in making a determination under subdivision (j); (B) dismiss the charges; (C) dismiss the charges or specifications or both to which the information relates; or (D) take such other action as may be required in the interests of justice. (5) Remedies. If, after a reasonable period of time, the information is not provided to the military judge in circumstances where proceeding with the case without information would materially prejudice a such substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the classified information relates. (g) Protective Orders. Upon motion of trial counsel, the military judge must 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 court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions: (6) regulating the making and handling of notes taken from material containing classified information; or (7) requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities. (h) Discovery and Access by the Accused. (1) Limitations. (A) Government Claim of Privilege. In a court- martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any classified information, trial counsel must 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 information reasonably could be expected to cause. The declaration must be signed by the head, or designee, of the executive or military department or government agency concerned. (B) Standard for Discovery or Access by the Accused. Upon the submission of a declaration under subdivision (h)(1)(A), 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 and relevant to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing. If the discovery of or access to such classified information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2). (1) prohibiting the disclosure of the information (2) Alternatives to Full Discovery. except as authorized by the military judge; (2) requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed; (3) requiring controlled accesses to the material during normal business hours and at other times upon reasonable notice; (4) mandating that all persons requiring security clearances will cooperate with investigatory personnel in any investigations that are necessary to obtain a security clearance; (A) Substitutions and Other Alternatives. The military judge, in assessing the accused’s right to discover or access classified information under subdivision (h), may authorize the government: (i) to delete or withhold specified items of classified information; (ii) to substitute a summary for classified information; or (iii) to substitute a statement admitting relevant facts that the classified information or material would tend to prove, unless the military judge determines that III-25 disclosure of the classified information itself is necessary to enable the accused to prepare for trial. (B) In Camera Review. The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution’s motion and any materials submitted in support thereof and must not disclose such information to the accused. (C) Action by Military Judge. The military judge must grant the request of trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other 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. (3) Reconsideration. An order of a military judge authorizing a request of trial counsel to substitute, summarize, withhold, or prevent access to classified information under subdivision (h) is not subject to a motion for reconsideration by the accused, if such order was entered pursuant to an ex parte showing under subdivision (h). (i) Disclosure by the Accused. (1) Notification to 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 must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify trial counsel and the military judge in writing. (2) Content of Notice. Such notice must include a brief description of the classified information. (3) Continuing Duty to Notify. Whenever the accused learns of additional classified information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the classified information. (4) Limitation on Disclosure by Accused. The accused may not 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 subdivision (i); and III-26 (B) the government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j). (5) Failure to comply. If the accused fails to comply with the requirements of subdivision (i), the military judge: (A) may preclude disclosure of any classified information not made the subject of notification; and (B) may prohibit the examination by the accused of any witness with respect to any such information. (j) Procedure for Use of Classified Information in Trials and Pretrial Proceedings. (1) Hearing on Use of Classified Information. (A) Motion for Hearing. Within the time specified by the military judge for the filing of a motion under this rule, either party may move for a hearing concerning the use at any proceeding of any classified information. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings. (B) Request for In Camera Hearing. Any hearing held pursuant to subdivision (j) (or any portion of such hearing specified in the request of a knowledgeable United States official) must be held in camera if a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration that a public proceeding may result in the disclosure of classified information. (C) Notice to Accused. Before the hearing, trial counsel must provide the accused with notice of the classified information that is at issue. Such notice must 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 previously made the information available to the accused in connection 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 concern to the United States. Standard for Disclosure. Classified (D) information to disclosure under subdivision (j) unless the information is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence. In presenting proceedings, relevant and material classified information pertaining to the appropriateness of, or the appropriate degree of, is not subject punishment must be admitted only if no unclassified version of such information is available. (E) Written Findings. As to each item of classified information, the military judge must set forth in writing the basis for the determination. or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1113 and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge’s determination prior to or during trial. (2) Alternatives to Full Disclosure. (A) Motion by the Prosecution. Upon any determination by the military judge authorizing the disclosure of specific classified information under the procedures established by subdivision (j), trial counsel may move that, in lieu of the disclosure of such specific classified information, the military judge order: substitution such classified information of a statement admitting relevant facts that the specific classified information would tend to prove: such classified information of a summary of the specific classified information; or substitution the the (ii) for for (i) (4) Remedies. (A) If the military judge determines that alternatives to full disclosure may not be used and the prosecution continues to object to disclosure of the information, the military judge must issue any order that the interests of justice require, including but not limited to, an order: (i) striking or precluding all or part of the testimony of a witness; (ii) declaring a mistrial; (iii) finding against the government on any issue as to which the evidence is relevant and material to the defense; (iii) any other procedure or redaction limiting (iv) dismissing the charges, with or without the disclosure of specific classified information. prejudice; or (B) Declaration of Damage to National Security. Trial counsel may, in connection with a motion under subdivision (j), submit to the military judge a declaration signed by the head, or designee, of the executive or military department or government that disclosure of agency concerned certifying classified identifiable information would cause damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by trial counsel, the military judge must examine such declaration during an in camera review. (C) Hearing. The military judge must hold a hearing on any motion under subdivision (j). Any such hearing must be held in camera at the request of a knowledgeable United States official possessing authority to classify information. (D) Standard for Use of Alternatives. The military judge must grant such a motion of trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific classified information. (3) Sealing of Records of In Camera Hearings. If at the close of an in camera hearing under subdivision (j) (or any portion of a hearing under subdivision (j) that is held in camera), the military judge determines that the classified information at issue may not be disclosed (v) dismissing the charges or specifications or both to which the information relates. (B) The government may avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding. (5) Disclosure of Rebuttal Information. Whenever the military that classified judge determines information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution the information it expects to use to rebut the classified information. the accused with to provide (A) Continuing Duty. The military judge may place the prosecution under a continuing duty to disclose such rebuttal information. (B) Sanction for Failure to Comply. If the prosecution fails to comply with its obligation under subdivision (j), the military judge: (i) may exclude any evidence not made the subject of a required disclosure; and (ii) may prohibit the examination by the prosecution of any witness with respect to such information. (6) Disclosure at Trial of Previous Statements by a Witness. (A) Motion for Production of Statements in Possession of the Prosecution. After a witness called III-27 by trial counsel has testified on direct examination, the military judge, on motion of the accused, may order production of statements of the witness in the possession of the prosecution that 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. (B) Invocation of Privilege by the Government. If the government invokes a privilege, trial counsel may provide the prior statements of the witness to the military judge for in camera review to the extent necessary to protect classified information from disclosure. (C) Action by Military Judge. If the military judge finds that disclosure of any portion of the statement identified by the government as classified would be detrimental to the national security in the degree required to warrant classification under the applicable Executive Order, statute, or regulation, 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 must excise that portion from the statement. If the military judge finds that such portion of the statement is inconsistent with the testimony of the witness or that its disclosure is necessary to afford the accused a fair trial, the military judge must, upon the request of trial counsel, consider alternatives in accordance with subdivision (j)(2). (k) Introduction Information. into Evidence of Classified to disclosure (1) Preservation of Classification Status. Writings, recordings, and photographs containing classified information may be admitted into evidence in court- martial proceedings under this rule without change in their classification status. (A) Precautions. The military judge in a trial by to prevent unnecessary court-martial, in order disclosure of classified information, may order admission into evidence of only part of a writing, recording, or photograph, or may order admission into evidence of recording, or the whole writing, photograph with excision of some or all of the classified information contained therein, unless the whole ought in fairness be considered. (B) Classified Information Kept Under Seal. The military judge must allow classified information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in III-28 the court-martial proceeding, and may upon motion by the government, seal exhibits containing classified information in accordance with R.C.M. 1113 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. (2) Testimony. (A) Objection by Trial Counsel. During the examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness information not to disclose classified previously found to be admissible. (B) Action by Military Judge. Following an objection under subdivision (k), the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. 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. that portion of the public during (3) Closed session. The military judge may, subject to the requirements of the United States Constitution, exclude the presentation of evidence that discloses classified information. (l) Record of Trial. If under this rule any information is reviewed in camera by the military judge and withheld from the accused, the accused objects to such withholding, and the trial continues to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as any motions and any materials submitted in support thereof must be sealed in accordance with R.C.M. 701(g)(2) or R.C.M. 1113 and attached to the record of trial as an appellate exhibit. Such material will be made available to reviewing and appellate authorities in accordance with R.C.M. 1113. The record of trial with respect to any classified matter will be prepared under R.C.M. 1112(e)(3).