Lack of Independent Judicial OversightThe military commissions do not allow for review by a court independent of the executive branch of government. Review of the commissions’ proceedings is limited to a specially created review panel appointed by the Secretary of Defense.5 No appeal is permitted to U.S. federal courts or the U.S. Court of Appeals for the Armed Forces, a civilian court independent of the executive branch that handles appeals from the courts martial.6 The President has final review of commission convictions and sentences. The executive branch is thus prosecutor, judge, jury and – since the commissions can impose the death penalty – potential executioner. Persons tried and convicted by the commissions will have no opportunity for direct, independent judicial review of verdicts, no matter how erroneous, arbitrary, or legally unsound. Review of commission decisions thus remain wholly within the control of the military, other than by relatively deferential habeas corpus review. By skirting review by a civilian court, the military commissions depart from the well-established principle of civilian review in the U.S. military justice system. [5] Review panels will consist of three military officers, only one of which must have experience as a judge. The Secretary of Defense may include on the panel civilians who have been temporarily commissioned into the military, but there is no obligation to do so. MCO No. 1, (6)(H)(4). On December 30, 2003, Defense Secretary Donald Rumsfeld designated four members of the Review Panel: Judge Griffin Bell, former U.S. Attorney General and former U.S. Court of Appeals judge; Judge Edward G. Biester, Judge, Court of Common Pleas of Bucks County, PA and former Pennsylvania Attorney General; Hon. William T. Coleman, Jr., former Secretary of Transportation; and Frank J. Williams, Chief Justice of the Rhode Island Supreme Court. They are appointed for a term “which normally shall not exceed two years.” MCI No. 9 (Dec. 26, 2003), 4(B)(2). [6] The U.S. Court of Appeals for the Armed Forces was established under Article I of the Constitution, which empowers Congress to make rules for the regulation of the armed forces. The court consists of five civilian judges appointed by the President and confirmed by the Senate to fifteen-year terms. The legislative history of the Uniform Code of Military Justice provides that the court is not subject to the “authority, direction, or control of the Secretary of Defense." Its decisions are subject to review by the U.S. Supreme Court.
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