§950d Interlocutory Appeals by the United States

Summary

The United States can ask the United States Court of Military Commission Review to review certain trial-judge decisions in military commission cases before the trial is over. The government may appeal orders that end proceedings on a charge, that exclude evidence that is important to the case, that involve matters listed in section 949d(c) or (d), or that deal with classified information (ordering disclosure, punishing nondisclosure, or denying a protective order). The government cannot appeal an order that is, or amounts to, a not-guilty finding. Appeals about classified information must move quickly. If filed before trial, the appeal must be taken within 10 days and the trial cannot start until the appeal is decided. If taken during trial, the judge must pause the trial while the appeal is decided; the appeals court must hear argument within 4 days of the pause (not counting weekends and holidays), can skip extra written briefs, must decide within 4 days of argument (not counting weekends and holidays), and may not write an opinion. Other appeals must start by filing notice with the military judge within 5 days. Appeals go straight to the Court of Military Commission Review as the Secretary of Defense’s rules require. For appeals about ending the case, excluding evidence, or 949d matters, the court may decide only legal questions. A classified-information appeal and its result do not stop the accused from later claiming on appeal that a reversed ruling harmed them.