Page 410 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 10113

U) Procedure for Use of Government Iriformation Subject to a Claim of Privilege in Trials and
Pretrial Proceedings.
(!)Hearing on Use of Government Information.
(A) Motion jar Hearing. Within the time specified by the military judge for the filing of a
motion under this rule, either party may move for an in camera hearing concerning the use at any
proceeding of any govenunent information that may be subject to a claim of privilege. Upon a
request by either party, the military judge must conduct such a hearing and must mle prior to
conducting any further proceedings.
(B) Requestfor In Camera Hearing. Any hearing held pursuant to subdivision G) must be
held in camera if a knowledgeable United States official described in subdivision (d) of this rule
submits to the military judge a declaration that disclosure of the information reasonably could be
expected to cause identifiable damage to the public interest.
(C) Notice to Accw•;ed. Subject to subdivision (j)(2) below, the prosecution must disclose
government information claimed to be privileged under this mle for the limited purpose of
litigating, in camera, the admissibility of the information at trial. The military judge must enter
an appropriate protective order to the accused and all other appropriate trial participants
concerning the disclosure of the information according to subdivision (g), above. The accused
may not disclose any information provided under subdivision (j) unless, and until, such
information has been admitted into evidence by the military judge. In the in camera hearing, both
parties may have the opportunity to brief and argue the admissibility of the government
information at trial.
(D) Standard for Disclosure. Government information is subject to disclosure at the
court-martial proceeding under subdivision (j) if the party making the request demonstrates a
specific need for information containing evidence that is relevant to the guilt or innocence or to
punishment of the accused, and is otherwise admissible in the court-martial proceeding.
(E) Written Findings. As to each item of government information, the military judge must
set forth in writing the basis for the detennination.
(2) Alternatives to Full Disclosure.
(A) Motion by the Prosecution. Upon any determination by the military judge authorizing
disclosure of specific government information under the procedures established by subdivision
(j), the prosecution may move that, in lieu of the disclosure of such infonnation, the military
judge order:
(i) the substitution for such government infonnation of a statement admitting
relevant facts that the specific government information would tend to prove;
(ii) the substitution for such government information of a summary of the specific
government information; or
(iii) any other procedure or redaction limiting the disclosure of specific
government information.
(B) Hearing. The military judge must hold a hearing on any motion under subdivision (j).
At the request of trial counsel, the military judge will conduct an in camera hearing.
(C) 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 government information.
(3) Sealing r<f Records r<f In Camera Hearings. If at the close of an in camera hearing under
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subdivision (j) (or any pmtion of a hearing under subdivision (j) that is held in camera), the

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