Sealed exhibits, proceedings, and other

materials (a) In general. If the report of preliminary hearing or record of trial contains exhibits, proceedings, or other materials ordered sealed by the preliminary hearing officer or military judge, counsel for the Government, the court reporter, or trial counsel shall cause such materials to be sealed so as to prevent unauthorized examination or disclosure. Counsel the Government, the court reporter, or trial counsel shall ensure that such materials are properly marked, including an annotation that the material was sealed by order of the preliminary hearing officer or military judge, and inserted at the appropriate place in the record of trial. Copies of the report of preliminary hearing or record of trial shall contain appropriate annotations that materials were sealed by order of the preliminary hearing officer or military judge and have been inserted in the report of preliminary hearing or record of trial. This rule shall be implemented in a manner consistent with Executive Order 13526, concerning classified national security information. (b) Examination and disclosure of sealed materials. Except as provided in this rule, sealed materials may not be examined or disclosed. (1) Prior to referral. Prior to referral of charges, the following individuals may examine and disclose sealed materials only if necessary for proper fulfillment of their responsibilities under the UCMJ, this Manual, governing regulations, applicable rules for practice and procedure, or rules of professional conduct: the judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff instructions, directives, judge advocate to the general court-martial convening authority; a military judge detailed to an Article 30a proceeding; and the general court-martial convening authority. (2) Referral through certification. After referral of charges and prior to certification of the record under R.C.M. 1112(c), sealed materials may not be examined or disclosed in the absence of an order from the military judge based upon good cause. (3) Reviewing and appellate authorities; appellate counsel. (A) Examination by reviewing and appellate authorities. Reviewing and appellate authorities may examine sealed matters when those authorities determine that examination is reasonably necessary to a proper fulfillment of their responsibilities under the UCMJ, this Manual, governing directives, instructions, regulations, applicable for practice and procedure, or rules of professional conduct. rules (B) Examination by appellate counsel. Appellate counsel may examine sealed materials subject to the following procedures. (i) Sealed materials released to trial counsel or defense counsel. Materials presented or reviewed at trial and sealed, as well as materials reviewed in camera, released to trial counsel or defense counsel, and sealed, may be examined by appellate counsel upon a colorable showing to the reviewing or appellate authority that examination is reasonably necessary to a the appellate counsel’s proper this Manual, responsibilities under governing regulations, directives, applicable rules for practice and procedure, or rules of professional conduct. fulfillment of the UCMJ, instructions, (ii) Sealed materials reviewed in camera but not released to trial counsel or defense counsel. Materials reviewed in camera by a military judge, not released to trial counsel or defense counsel, and sealed may be examined by reviewing or appellate authorities. After examination of said materials, the reviewing or appellate authority may permit examination by appellate counsel for good cause. (C) Disclosure. Appellate counsel shall not disclose sealed materials in the absence of: (i) prior authorization of the Judge Advocate General in the case of review under R.C.M. 1201 or 1210; or (ii) prior authorization of the appellate court before which a case is pending review under R.C.M. II-117 1203 or 1204; or (iii) prior authorization of the Judge Advocate General for a case eligible for review under R.C.M. 1203 or 1204. (D) For purposes of this rule, reviewing and appellate authorities are limited to: (i) Judge advocates reviewing records pursuant to R.C.M. 1307; (ii) Officers and attorneys in the office of the Judge Advocate General reviewing records pursuant to R.C.M. 1201 and 1210; (iii) Officers and attorneys designated by the Judge Advocate General; (iv) Appellate judges of the Courts of Criminal Appeals and their professional staffs; (v) The judges of the United States Court of Appeals for the Armed Forces and their professional staffs; (vi) The Justices of the United States Supreme Court and their professional staffs; and (vii) Any other court of competent jurisdiction. (4) Examination of sealed materials. For purposes of this rule, “examination” includes reading, inspecting, and viewing. rule, “disclosure” (5) Disclosure of sealed materials. For purposes of includes photocopying, this releasing, photographing, manipulating, or communicating the contents of sealed materials in any way. disseminating, (6) Notwithstanding any other provision of this rule, in those cases in which review is sought or pending before the United States Supreme Court, authorization to disclose sealed materials or information shall be obtained under that Court’s rules of practice and procedure.