(concurring in part and in the result).
I write separately to address the dubious validity of Rule for Military Commission (R.M.C.) 705(c)(2)(E)5 permitting the waiver of appellate review as a term or condition of a pretrial agreement. Because appellant did not execute and deliver an appellate waiver after trial, post-action, in this case, the question is whether his pretrial waiver is valid in and of itself.
The majority here, and the parties to this litigation, struggle to reconcile R.M.C. 705 with R.M.C. 1110(f), the latter being relative to post-action submission of waiver of appellate review. The problem is that the rules are irreconcilable. They are inherently incompatible, and the one does not contemplate the other.
This problem is borne of the fact that Congress never intended, and the Military Commissions Act (MCA) does not contemplate waiver of appellate review as part of a pretrial agreement. Instead, exactly like the Uniform Code of Military Justice, the MCA contemplates only the possibility of post-trial, post-action waiver of appellate review.
The MCA 2006 and 2009 both contain the same statutory authority permitting post-action waiver of appellate review, § 950c. This provision effectively mirrors the present version of Article 61, UCMJ, promulgated by Congress as part of the Military Justice Act of 1988. There, Congress quite consciously limited the possibility of waiving appellate review to the post-trial process and intentionally maintained the prohibition against pretrial provisions that involved waiver of the right to appellate review. See, e.g., S.Rep. No. 98-53, at 22-24 (1983).
That statutory limit was manifested through Rules for Courts-Martial (R.C.M.) 705 and 1110. The former prohibiting waiver of appellate review as a term of pretrial agreements, the latter permitting a post-trial waiver.
Fulfilling their rulemaking responsibility under MCA § 949a, successive Secretaries of Defense promulgated a Manual for Military Commissions (M.M.C.) modeled on the Manual for Courts-Martial. In both the M.M.C. that applied at the time of appellant’s trial and the M.M.C. that applies now, the Secretary promulgated R.M.C. 1110 to define the process by which one convicted by military commission might waive appellate review after action. This rule mirrors R.C.M. 1110.
*1249The MCA generally requires that the rules for military commissions mirror the rules for courts-martial. Departure from this general requirement is permitted only if explicitly provided for in the MCA or if military or intelligence operations require otherwise. In any event, rules promulgated by the Secretary may not be contrary or inconsistent with the MCA. See 2006 MCA § 949a(a) and 2009 MCA § 949a(a) and (b).
Departing from the Manual for Courts-Martial (M.C.M.) and contrary to R.C.M. 705, the Secretary promulgated R.M.C. 705 permitting waiver of appellate review as part of a pretrial agreement. This departure is valid, under the 2006 MCA, only if: (1) it is not contrary to or inconsistent with the MCA, and, (2) if practicable or consistent with military or intelligence activities. 2006 MCA § 949a(a). Under MCA 2009, this provision was revised to permit exceptions to the MCA, if required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with the MCA.2009 MCA § 949a(a) and (b).
The 2007, 2010, and 2012 editions of the M.M.C. are prefaced with a conclusory statement from the Secretary essentially averring that any rule therein different than that applicable at courts-martial is warranted by the practical requirements of military or intelligence operations. There is no further reason articulated that describes waiver of appellate review before trial as required by the unique circumstances of military or intelligence operations. Nor is there any explanation as to how prohibiting waiver of appellate rights before trial is somehow impracticable in the military commission, system.
Indeed, the benefits to the system enjoyed under the UCMJ would seem to be equally beneficial to the system of justice under the MCA, most- importantly, independent appellate scrutiny to encourage and verify that any plea of guilty is provident, to ensure a fair hearing on sentence and to ensure the propriety of the proceeding generally.6 See United States v. Jones, 23 M.J. 305, 307 (C.M.A.1987); United States v. Mills, 12 M.J. 1, 4 (C.M.A.1981); United States v. Green, 1 M.J. 453, 456 (C.M.A.1976); Analysis to R.C.M. 705, M.C.M. (2012 Ed.) at A21-40 to A21-42; see also United States v. Miller, 62 M.J. 471 (C.A.A.F.2006). Never has there been any indication that the prohibition against an appellate waiver in a pretrial agreement under the UCMJ is impracticable in light of military or intelligence operations.
The amount of deference we need render the blanket practicability assessment prefatory to the M.M.C. may be an open question. See Hamdan v. Rumsfeld, 548 U.S. 557, 623, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006); Id. at 640, 126 S.Ct. 2749 (Kennedy, J., concurring in part). In any event, the provision permitting waiver of appellate review as part of a pretrial agreement in R.M.C. 705 is plainly inconsistent with the MCA. Congress essentially adopted the same appellate review waiver procedure housed in the UCMJ for purposes of military commissions. That procedure carries with it, by definition, a limit to post-action waiver only: the case must first be-subject to appellate review, meaning, under the MCA, a case in which a final decision that includes a finding of guilty is approved by the convening authority, be*1250fore a person tried by military commission is permitted to waive that review.
I would therefore hold that appellant’s waiver under R.M.C. 705 is invalid. Otherwise I concur with the majority opinion.
. Rules for Military Commissions (R.M.C.) 705(c)(2)(E) and R.M.C. 1110(f) are unchanged in the 2007, 2010, and 2012 versions of the Manual for Military Commissions.
. Limiting submission of an appellate waiver until after action also permits an accused to assess the value of appeal in light of the findings and sentence actually approved by the convening authority.