10 U.S.C. § 950d — Interlocutory appeals by the United

Page 870 TITLE 10—ARMED FORCES § 950c graph may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. (C) In taking action under this paragraph, the convening authority may, in the sole discretion of the convening authority, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening authority may not increase a sentence beyond that which is found by the military commission. (4) The convening authority shall serve on the accused or on defense counsel notice of any ac- tion taken by the convening authority under this subsection. (d) ORDER OF REVISION OR REHEARING.—(1) Sub- ject to paragraphs (2) and (3), the convening au- thority of a military commission under this chapter may, in the sole discretion of the con- vening authority, order a proceeding in revision or a rehearing. (2)(A) Except as provided in subparagraph (B), a proceeding in revision may be ordered by the convening authority if— (i) there is an apparent error or omission in the record; or (ii) the record shows improper or incon- sistent action by the military commission with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. (B) In no case may a proceeding in revision— (i) reconsider a finding of not guilty of a specification or a ruling which amounts to a finding of not guilty; (ii) reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation; or (iii) increase the severity of the sentence un- less the sentence prescribed for the offense is mandatory. (3) A rehearing may be ordered by the con- vening authority if the convening authority dis- approves the findings and sentence and states the reasons for disapproval of the findings. If the convening authority disapproves the finding and sentence and does not order a rehearing, the convening authority shall dismiss the charges. A rehearing as to the findings may not be or- dered by the convening authority when there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sen- tence may be ordered by the convening author- ity if the convening authority disapproves the sentence. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2599; amended Pub. L. 113–291, div. A, title X, § 1071(f)(10), Dec. 19, 2014, 128 Stat. 3510.) Editorial Notes PRIOR PROVISIONS A prior section 950b, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2618, related to review by the con- vening authority, prior to the general amendment of this chapter by Pub. L. 111–84. AMENDMENTS 2014—Subsec. (b)(2)(A). Pub. L. 113–291 substituted ‘‘given’’ for ‘‘give’’. § 950c. Appellate referral; waiver or withdrawal of appeal (a) AUTOMATIC REFERRAL FOR APPELLATE RE- VIEW.—Except as provided in subsection (b), in each case in which the final decision of a mili- tary commission under this chapter (as ap- proved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Military Commission Review. Any such referral shall be made in accordance with procedures prescribed under regulations of the Secretary. (b) WAIVER OF RIGHT OF REVIEW.—(1) Except in a case in which the sentence as approved under section 950b of this title extends to death, an ac- cused may file with the convening authority a statement expressly waiving the right of the ac- cused to appellate review by the United States Court of Military Commission Review under sec- tion 950f of this title of the final decision of the military commission under this chapter. (2) A waiver under paragraph (1) shall be signed by both the accused and a defense coun- sel. (3) A waiver under paragraph (1) must be filed, if at all, within 10 days after notice of the action is served on the accused or on defense counsel under section 950b(c)(4) of this title. The con- vening authority, for good cause, may extend the period for such filing by not more than 30 days. (c) WITHDRAWAL OF APPEAL.—Except in a case in which the sentence as approved under section 950b of this title extends to death, the accused may withdraw an appeal at any time. (d) EFFECT OF WAIVER OR WITHDRAWAL.—A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 950f of this title. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2600.) Editorial Notes PRIOR PROVISIONS A prior section 950c, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2620, related to appellate referral and waiver or withdrawal of appeal, prior to the gen- eral amendment of this chapter by Pub. L. 111–84. § 950d. Interlocutory appeals by the United States (a) INTERLOCUTORY APPEAL.—Except as pro- vided in subsection (b), in a trial by military commission under this chapter, the United States may take an interlocutory appeal to the United States Court of Military Commission Re- view of any order or ruling of the military judge— (1) that terminates proceedings of the mili- tary commission with respect to a charge or specification; (2) that excludes evidence that is substantial proof of a fact material in the proceeding; (3) that relates to a matter under subsection (c) or (d) of section 949d of this title; or Page 871 TITLE 10—ARMED FORCES § 950f (4) that, with respect to classified informa- tion— (A) authorizes the disclosure of such infor- mation; (B) imposes sanctions for nondisclosure of such information; or (C) refuses a protective order sought by the United States to prevent the disclosure of such information. (b) LIMITATION.—The United States may not appeal under subsection (a) an order or ruling that is, or amounts to, a finding of not guilty by the military commission with respect to a charge or specification. (c) SCOPE OF APPEAL RIGHT WITH RESPECT TO CLASSIFIED INFORMATION.—The United States has the right to appeal under paragraph (4) of subsection (a) whenever the military judge en- ters an order or ruling that would require the disclosure of classified information, without re- gard to whether the order or ruling appealed from was entered under this chapter, another provision of law, a rule, or otherwise. Any such appeal may embrace any preceding order, ruling, or reasoning constituting the basis of the order or ruling that would authorize such disclosure. (d) TIMING AND ACTION ON INTERLOCUTORY AP- PEALS RELATING TO CLASSIFIED INFORMATION.— (1) APPEAL TO BE EXPEDITED.—An appeal taken pursuant to paragraph (4) of subsection (a) shall be expedited by the United States Court of Military Commission Review. (2) APPEALS BEFORE TRIAL.—If such an appeal is taken before trial, the appeal shall be taken within 10 days after the order or ruling from which the appeal is made and the trial shall not commence until the appeal is decided. (3) APPEALS DURING TRIAL.—If such an appeal is taken during trial, the military judge shall adjourn the trial until the appeal is decided, and the court of appeals— (A) shall hear argument on such appeal within 4 days of the adjournment of the trial (excluding weekends and holidays); (B) may dispense with written briefs other than the supporting materials previously submitted to the military judge; (C) shall render its decision within four days of argument on appeal (excluding week- ends and holidays); and (D) may dispense with the issuance of a written opinion in rendering its decision. (e) NOTICE AND TIMING OF OTHER APPEALS.— The United States shall take an appeal of an order or ruling under subsection (a), other than an appeal under paragraph (4) of that subsection, by filing a notice of appeal with the military judge within 5 days after the date of the order or ruling. (f) METHOD OF APPEAL.—An appeal under this section shall be forwarded, by means specified in regulations prescribed by the Secretary of De- fense, directly to the United States Court of Military Commission Review. (g) APPEALS COURT TO ACT ONLY WITH RE- SPECT TO MATTER OF LAW.—In ruling on an ap- peal under paragraph (1), (2), or (3) of subsection (a), the appeals court may act only with respect to matters of law. (h) SUBSEQUENT APPEAL RIGHTS OF ACCUSED NOT AFFECTED.—An appeal under paragraph (4) of subsection (a), and a decision on such appeal, shall not affect the right of the accused, in a subsequent appeal from a judgment of convic- tion, to claim as error reversal by the military judge on remand of a ruling appealed from dur- ing trial. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2601.) Editorial Notes PRIOR PROVISIONS A prior section 950d, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2620, related to appeal by the United States, prior to the general amendment of this chapter by Pub. L. 111–84. § 950e. Rehearings (a) COMPOSITION OF MILITARY COMMISSION FOR REHEARING.—Each rehearing under this chapter shall take place before a military commission under this chapter composed of members who were not members of the military commission which first heard the case. (b) SCOPE OF REHEARING.—(1) Upon a rehear- ing— (A) the accused may not be tried for any of- fense of which the accused was found not guilty by the first military commission; and (B) no sentence in excess of or more than the original sentence may be imposed unless— (i) the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings; or (ii) the sentence prescribed for the offense is mandatory. (2) Upon a rehearing, if the sentence approved after the first military commission was in ac- cordance with a pretrial agreement and the ac- cused at the rehearing changes his plea with re- spect to the charges or specifications upon which the pretrial agreement was based, or oth- erwise does not comply with pretrial agreement, the sentence as to those charges or specifica- tions may include any punishment not in excess of that lawfully adjudged at the first military commission. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2602.) Editorial Notes PRIOR PROVISIONS A prior section 950e, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2621, related to rehearings, prior to the general amendment of this chapter by Pub. L. 111–84. § 950f. Review by United States Court of Military Commission Review (a) ESTABLISHMENT.—There is a court of record to be known as the ‘‘United States Court of Military Commission Review’’ (in this section referred to as the ‘‘Court’’). The Court shall con- sist of one or more panels, each composed of not less than three judges on the Court. For the pur- pose of reviewing decisions of military commis- sions under this chapter, the Court may sit in panels or as a whole, in accordance with rules prescribed by the Secretary of Defense.