or investigator of the case should be disclosed to the defence.992 This includes the disclosure of any information which: (1) would reasonably tend to “negate the guilt of the accused (…) or reduce the degree of guilt of the accused”, (2) could reasonably affect the credibility of a prosecution witness. This disclosure is to occur “as soon as practicable”.993 Additionally, any evidence that may reasonably be viewed as mitigation evidence is to be disclosed “as soon as practicable upon a finding of guilt”.994 All of the information admitted into evidence under any rule is to be provided to the defendant.995 396. The military commission rules for the protection of classified information are similar to those applied in federal terrorism trials.996 Classified information997 is to be protected from disclosure if its disclosure would “be detrimental to the national security”.998 Where potential evidence is classified, the prosecution is to work with the original classification authority to declassify the information to the maximum extent possible.999 In case the defence reasonably expects to disclose or cause the disclosure of information “known or believed to be classified” during the proceedings, it should provide timely written notice to the prosecution and military judge, with a brief description of the information.1000 Whenever the prosecution wishes to protect classified information from disclosure, it should submit a declaration to the military judge explaining the damage that the discovery or access to this information could reasonably be expected to cause.1001 In such cases, the military judge may only authorize the disclosure of the information if he or she determines that it would be “noncumulative, relevant and helpful” to any part of the defence’s case.1002 Furthermore, the judge is to authorize the government to delete or withhold specified portions of classified information, substitute a summary of the information or a statement setting forth the facts the classified information would tend to prove whenever he or she 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”.1003 The application for these protective measures may be submitted on an ex parte basis.1004 The MCA 2009 does not appear to allow defence counsel to have access to the classified information that serves as the basis of these protective measures, nor to file a motion for reconsideration once the military judge has authorised the use of protective measures if the judge’s order was entered pursuant to an ex 992 MCA 2009, § 949j (b). Ibid. 994 Ibid. 995 MCA 2009, § 949p-1(b); MCRE, Rule 505(a)(2). 996 MCA 2009, § 949p-1(d); MCRE, Rule 505(a)(4); Elsea, “The Military Commissions Act of 2009”, op. cit., note 621, pp. 26, 30. 997 Classified information is to be understood as “(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security. (B) Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).” MCA 2009, § 948a(2); MCRE, Rule 505(b)(1). 998 MCA 2009, § 949p-1(a); MCRE, Rule 505(a)(1). 999 However, decisions not to declassify are not subject to review by the military judge. MCA 2009, § 949p-1(c). See, also, Elsea, “The Military Commissions Act of 2009”, op. cit., note 621, p. 26. 1000 MCA 2009, § 949p-5; MCRE, Rule 505(g)(1). 1001 This declaration is to be signed by “a knowledgeable United States official possessing authority to classify information”. MCA 2009, § 949p-4(a)(1); MCRE, Rule 505(f)(1)(A). 1002 MCA 2009, § 949p-4(a)(2); MCRE, Rule 505(f)(1)(B). 1003 MCA 2009, § 949p-4(b)(1), (3); MCRE, Rule 505(f)(2)(A), (C). 1004 MCA 2009, § 949p-4(b)(2); MCRE, Rule 505(f)(2)(B). 993 173