Chapter4 Access to Justice | 87 or of which it is aware. According to the rules, trial counsel must provide to the defense any paper which accompanied the charges, the convening order and any amending orders, any statement relating to an offense charged in the case, the names of the witnesses it intends to call, any prior criminal convictions of the accused which it may offer on the merits for any purpose, including impeachment, and the existence of exculpatory evidence. Upon request, the Government has to provide the defense access to any document within its control which is material to the preparation of the defense or intended for use by trial counsel as evidence in the prosecution. In addition, upon request of the defense, trial counsel has to provide the defense with information to be offered at sentencing. 203. Regarding the disclosure of classified information, the rules provide that “the military judge may issue a protective order to limit the distribution or disclosure to the defense of classified evidence, including the sources, methods or activities by which the United States acquired the evidence.” 235 In those cases, the military judge can authorize alternatives such as “(A) the deletion of specified items of classified information from documents made available to the defense; (B) the substitution of a portion or summary of the information for such classified documents; (C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.” 236 According to the prosecution, this statute was designed to balance the competing interests of protecting national security and providing the defense the information they need, and essentially mirrors the rules and practice of the federal courts and military courts under the UCMJ. 237 b. The implementation of the military commissions 204. At the expert meeting held by the Inter-American Commission on October 3, 2013, defense counsel raised several concerns regarding the implementation of the system of military commissions at Guantanamo, particularly concerning structural defects and practical limitations. One of the structural issues raised by military defense counsel was the question as to whether the U.S. Constitution applies in Guantanamo Bay, an aspect that was litigated in a round of pre-trial hearings. The military judge did not rule on this question and decided to hear it on an issue by issue basis, instead of delivering a blanket statement. 205. In this regard, defense counsel has raised the point that, notwithstanding the similarities to the trial procedures for courts-martial, Congress specifically deviated from various procedural guarantees in the MCA. Those constitutional guarantees are: the right to a speedy trial; the right to remain silent; the grand jury requirement or equivalent process for securing the right to indictment and presentment; the freedom from unreasonable search and seizure given that evidence obtained without a search warrant or other lawful authorization may reportedly be admitted; 235 236 237 2012 Manual for Military Commissions, Part II. Rules for Military Commissions, Rule 701 (f). 2012 Manual for Military Commissions, Part II. Rules for Military Commissions, Rule 701 (f)(2). IACHR, Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013. Inter-American Commission on Human Rights | IACHR