When the government withholds classified evidence that is relevant and helpful to the defense, a specific set of procedures and remedies under Military Rule of Evidence (MRE) 505 is triggered. The defense attorney will first file a motion with the military judge, providing notice that they are seeking classified evidence. The judge will then conduct a closed, in camera hearing with only the government and defense counsel present to determine the evidence’s relevance and necessity for the defense. This hearing protects the classified information while allowing the judge to evaluate the defense’s request.
If the judge agrees that the classified evidence is necessary for a fair trial, they will order the government to provide it to the defense under a protective order. At this point, the government must make a choice. They can either comply with the judge’s order and disclose the information, or they can invoke the national security privilege and refuse to disclose it. If they refuse to disclose the information after being ordered to do so, the judge must impose a remedy to prevent the accused from being unfairly disadvantaged by the government’s withholding of evidence.
The remedies are significant and are at the discretion of the military judge. The judge can strike the testimony of a government witness, find that a specific fact is established in favor of the defense, or, in the most extreme cases where the withheld evidence is critical to proving innocence, the judge has the authority to dismiss the charges against the service member entirely. This process balances the government’s need to protect classified information with the accused’s constitutional right to a fair trial.