OPINION OF THE COURT EN BANC
LARSON, Chief Judge:
Pursuant to his pleas, the appellant was convicted by special court-martial of wrongful disposal of military property, theft of military property, and two instances of indecent behavior, in violation of Articles 108, 121, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 908, 921, and 934, respectively. He was sentenced by the military judge, sitting alone, to reduction to pay grade E-l, forfeiture of $500 pay per month for 4 months, and a bad-conduct discharge. The sentence was approved by the convening authority.
On appeal, the appellant asserts that he cannot receive a fair and impartial review by an independent appellate court, as guaranteed by the Due Process Clause of the Fifth Amendment to the United States Constitution.1 His challenge to the independence of this Court is based on the fact that the performance and conduct of the military appellate judges assigned to the Court are evaluated in Navy and Marine Corps fitness reports signed by the Judge Advocate General of the Navy (JAG). Because the JAG, as a senior official within the Department of the Navy, is responsible to the Secretary of the Navy for the efficient and effective administration of military justice in the Navy and Marine Corps, the appellant argues that the JAG has a vested interest in appellate decisions which preserve court-martial convictions and sentences; therefore, appellate judges risk professional adversity by issuing contrary opinions.
Appellant concedes at the outset that this attack is totally systemic in nature. He offers no evidence that the fitness report process has been used to influence any appellate judge assigned to review his case or that any judge has actually been affected by the latent threat of such use. Yet, he asserts that the mere existence of the threat — when coupled with the significance of a fitness report to a commissioned officer’s career — creates an untenable conflict of interests that necessarily undermines the Court’s independence. Recognizing our inability to fix the fitness report process itself in a manner that would guarantee the Court’s independence, he asks that we take no action on the findings and sentence in his case and that it (and, presumably, every case pending review by the Court) be returned to the JAG for referral to an “independent court” until appropriate officials in the Department of the Navy free the judges of this Court from this limitation on their independence.
We hold that the JAG’s preparation of fitness reports for the judges of this Court does not violate the appellant’s constitutional right to have his appeal decided by an independent appellate court.2 However, because of the fundamental nature of this attack on the integrity of the military justice system, it merits further discussion.
[905] BACKGROUND3
Fitness reports are required for all commissioned officers in the Department of the Navy. This requirement is imposed by Article 1129 of Navy Regulations, which are issued pursuant to 10 U.S.C. § 6011 and have the force of law. See Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Fitness reports are submitted annually and on certain other specified occasions, such as transfer. In the Navy, the fitness report requirement is implemented by Naval Military Personnel Command Instruction (NAVMILPERSCOMINST) 1611.1A of 26 March 1990, Subj: Reports on the Fitness of Officers, and in the Marine Corps by Marine Corps Order (MCO) P1610.7 of 6 November 1985, Subj: Performance Evaluation System. The latter specifically directs that reports for Marine judges comply with instructions of the JAG in addition to the policies in the Marine Corps order itself. Both directives stress the importance of the fitness report for promotion, retention, and assignment of the officer concerned. In addition, both entitle the officer concerned to review his report and, if he is dissatisfied with its contents, to submit a statement to that effect.
The fitness reports for Navy and Marine Corps officers serve not only to assess an officer’s performance and conduct during the past reporting period, but also to identify his value to the Department of the Navy for the future. Although the primary function of these reports is to identify those officers best qualified to meet the leadership and technical needs of the Nation’s sea services, another significant purpose is to inform the officer concerned of his deficiencies and areas where he can improve. Both directives require that the officer be counseled if his report is adverse in any category of evaluation. Both Navy and Marine Corps reports require evaluation in several key areas of performance, including some arguably relevant to this issue, such as loyalty (USMC), cooperation (USMC), organizational support (USN), working relations (USN), and judgment (both).
In addition, both fitness report directives identify the officer responsible for the submission of the report — the “reporting senior” — as the next officer senior to the evaluated officer in the chain of command who is specifically authorized by the controlling directives to submit the report. For this Court’s judges, that officer has been the JAG. Judge Advocate General Instruction 5400.1A of 6 July 1992, Subj: Office of the Judge Advocate General (OJAG) Organization Manual, § 109. For Marine judges, there is an additional participant in the fitness report process, called the “reviewing officer,” who is required to review the reporting senior’s submission for consistency, accuracy, lack of bias, and adherence to Marine Corps fitness report policy. MCO P1610.7. For the three Marine judges on this Court, that officer has, in recent times, been the Assistant Commandant of the Marine Corps.
Another requirement of both fitness report directives is comparison rankings with similarly evaluated officers of the same pay grade in the same organization. All presently assigned appellate judges are in pay grade 0-6. Consequently, the five existing Navy appellate judges (excluding the Chief Judge) are ranked against each other. Because of his additional administrative duties, the Chief Judge is ranked against no other officer. Marine appellate judges are ranked against other Marine Corps colonels for whom the JAG is the reporting senior. For each of the three Marine judges currently assigned, this group includes the other two Marine judges and the Assistant Judge Advocate General for Military Justice (“AJAG”).
[906] Recommended fitness reports for appellate judges are routinely prepared by the AJAG, or by his principal assistant, for submission to the JAG for review and signature. The JAG has the sole discretion to accept, modify, or reject the recommendations. Each judge has been afforded the opportunity to provide information and comments for incorporation into his report before its preparation.
Because the AJAG fills a significant role in the preparation of the judges’ fitness reports, an explanation of his duties is in order. He is generally responsible to the JAG for performance of the JAG’s military justice duties under the UCMJ, the Manual for Courts-Martial (MCM), and Judge Advocate General Instruction 5800.7C of 3 October 1990 (JAGMAN). OJAG Organization Manual, § 107. In this capacity he supervises the Director, Criminal Law Division, and is responsible for that officer’s performance of his duties. Id. The duties of the Director, Criminal Law Division, include drafting legal and policy advice for the JAG on military justice matters; reviewing legislative and regulatory proposals affecting military justice; reviewing all decisions of military appellate courts for systemic malfunction; staffing JAG certification of issues for appellate review; and providing timely guidance to all military justice practitioners in the Department of the Navy. Id. The AJAG also serves as the Officer-in-Charge, Navy-Marine Corps Appellate Review Activity (ÑAMARA). In that capacity, he is responsible to the JAG for the administrative processing of courts-martial under Articles 66, 67, 69 and 73, UCMJ. This general responsibility includes, inter alia, receiving cases from the field and preparing them for review by this Court and by the Court of Military Appeals; issuing mandates and orders directed by the appellate courts; and supervising appellate counsel for the appellants and the Government.
Having stated the relevant circumstances, we now consider whether the JAG’s preparation of the appellate judges’ fitness reports (including the manner in which they are prepared) violates the appellant’s right to have his case reviewed by a fair and impartial, i.e., an independent, appellate court. This process begins with an examination of this Court’s status as an “independent” court.
JUDICIAL INDEPENDENCE
The right to have one’s case heard before a fair and impartial judicial body as a matter of constitutional due process is firmly established in the law. In Re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). That right has been specifically recognized as applicable to members of the armed forces at courts-martial. United States v. Graf, 35 M.J. 450 (C.M.A.1992). It applies with equal force to review of those courts-martial by a fair and impartial appellate court. Id. A fair and impartial court must be an independent court, for no judge can be fair and impartial if he has to answer to another for his judicial decisions. In fact, so intrinsic in the fairness of our system of law is the concept of an “independent court” that the first of those two words is really redundant.
Congress recognized the importance of a professional, independent judiciary in the Military Justice Act of 1968, Pub.L. No. 90-632, §§ 2(9) and 2(27), 82 Stat. 1336-37, 1341 (Oct. 24, 1968), which established, inter alia, military judges for general courts-martial under the direct control of the JAG. The significance of this creation was made clear in United States v. Moorehead, 20 U.S.C.M.A. 574, 44 C.M.R. 4 (1971), where the Court found that the Coast Guard’s practice of detailing a judge advocate whose primary duty was not judging to sit as a general court-martial military judge violated congressional intent in Article 26(c), UCMJ, to establish a full-time, independent judiciary. See also United States v. Beckermann, 27 M.J. 334 (C.M.A.1989) (applying Moorhead to disapprove the assignment of an officer to temporary duty for a fixed period of time as military judge for general courts-martial).
The same Act redesignated the “boards of review” under Article 66, UCMJ, as “Courts of Military Review” and the “members” of the new court as “appellate mili[907] tary judges.” Although the boards of review had been functioning as appellate judicial tribunals since the enactment of the UCMJ in 1950, United States v. Lanford, 6 U.S.C.M.A. 371, 20 C.M.R. 87 (1955), the redesignation in the 1968 Act was more than just a symbolic gesture. It was designed “to improve and enhance the stature and independent status of these appellate bodies.” S.Rep. No. 1601, 90th Cong., 2d Sess. 15, reprinted in 1968 U.S.C.C.A.N. 4515. The Act also granted the Chief Judge the authority to assign other appellate judges to panels and to designate them as senior judges, and removed the Court from the Office of the JAG. There is no explanation for these specific provisions in the legislative history of the Act. Nevertheless, it is reasonable to infer that they were included to create a separate judicial body, apart from the JAG’s immediate staff, with responsibility for day-to-day administration assigned to the Chief Judge rather than the JAG. This explanation is consistent with the overall objective of enhancing the independence of the Court.
If any doubt as to the independent status of the Court lingered after the 1968 Act, the Court of Military Appeals resolved it in United States Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (C.M.A.1988). In that case, the Court ordered the Inspector General of the Department of Defense not to proceed with an investigation into an anonymous allegation that this Court’s judges had been improperly influenced in their appellate review of a particularly controversial case. Such an investigation threatened the independence and integrity of this Court because it intended to explore its deliberative processes. Id. at 336-37. The opinion made specific reference to the binding authority of the Canons of Judicial Conduct on the judges of this Court, the first of which requires judges to uphold the independence and integrity of their courts. ABA Code of Judicial Conduct, Canon 1. The Court concluded that the proper course of action to resolve the allegation of judicial misconduct in that case would be to appoint a judicial commission to investigate — a procedure similar to that authorized by 28 U.S.C. § 372(c) for investigations of federal judges, and to the remedy suggested by the Court of Military Appeals, itself, 12 years earlier in United States v. Ledbetter, 2 M.J. 37, 43 (C.M.A.1976) (allegation of an attempt by the JAG to influence a trial judge).4 Following Carlucci, Congress added Article 6a to the UCMJ, which authorized the President to establish procedures for the investigation of allegations pertaining to the fitness of military judges to perform their duties. This amendment is merely the latest expression of congressional intent to preserve the independence of the judiciary.
JUDICIAL ACCOUNTABILITY
To conclude, as we do emphatically, that appellate military judges must be independent in their judicial decision-making capacity is not to say that they are not accountable for their performance and behavior. This concept of accountability is not foreign to our civilian brethren. Every state in the Union has a procedure for investigating and resolving complaints against judges. See Matter of Certain Complaints Under Investigation By An Investigating Committee of the Judicial Council of the Eleventh Circuit (Matter Under Investigation), 783 F.2d 1488, 1507 (11th Cir.), cert. denied, 477 U.S. 904, 106 S.Ct. 3273, 91 L.Ed.2d 563 (1986). Even federal judges, whose independence has more safeguards than virtually any other judicial creature (e.g., life tenure), are subject to impeachment by the Senate for “high crimes and misdemeanors,” see U.S. Const, art. I, § 3, and art. II, § 4, and administrative control by a circuit judicial council for inability or unwillingness to carry out judi[908] cial duties, 28 U.S.C. § 332. Exercise of the judicial council’s statutory authority may amount to virtual elimination of a federal judge’s caseload. Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1969).
Similarly, administrative law judges (“ALJs”), who, like military judges, are not appointed under Article III of the Constitution, are accountable to their agency head for compliance with administrative and procedural requirements. See Nash v. Califano, 613 F.2d 10 (2d Cir.1980) (case holding limited to questions of jurisdiction and standing but contains insight into administrative controls and limitations of agency vis-a-vis ALJs); Social Sec. Admin. v. Burris, 39 M.S.P.R. 51 (M.S.P.B.1988) (insubordination and disruptive behavior constitute “good cause” for removal of AU under 5 U.S.C. § 7521).
Accountability as a feature of judicial life is even more evident for military judges. Every appellate judge on this Court took an oath as an officer in the Navy or Marine Corps long before he assumed his position on the appellate bench. Accountability for performance of duty by officers has been a cornerstone of the sea services since this Nation was founded. Traditionally, an officer’s duty to account increases as he rises in grade because the extent of his responsibility increases as well. Practitioners of military justice know full well the principle of accountability for one’s actions or failures to act, for it has often been tested through trial by court-martial. See United States v. Grow, 3 U.S.C.M.A. 77, 11 C.M.R. 77 (1953); United States v. Lawson, 33 M.J. 946 (N.M.C.M.R.1991), aff'd, 36 M.J. 415 (C.M.A.1993); United States v. Sievert, 29 C.M.R. 657 (N.B.R.1958); United States v. Levy, 39 C.M.R. 672 (A.B.R.1968).
As officers — indeed, as senior officers— military appellate judges cannot use the black robes of the bench as a shield against professional accountability. For example, it cannot be gainsaid that a lazy judge or one who willfully violates the Canons of Judicial Conduct or uses intemperate language should be held to account for his deficiencies notwithstanding his decisional independence. Chief Judge Everett observed in Carlucci that the failure of a military judge to abide by the Canons may even subject him to a charge of dereliction of duty under Article 92, UCMJ, and possible trial by court-martial as a result. 26 M.J. at 336.
Yet, if this fundamental principle of military life is to coexist in peaceful harmony with the equally fundamental principle of judicial independence, one cannot be used to subvert the other. A crucial feature of the statutory/regulatory schemes by which civilian judges are held accountable is protection of the decisional independence of the judge — as opposed to his administrative responsibilities and professional conduct. Nash v. Califano, 613 F.2d at 15; Matter Under Investigation, 783 F.2d at 1508. This feature must obviously be an integral part of any method of accountability for military judges as well, if congressional intent that they be independent is to be honored. Carlucci. A significant procedural safeguard to preserve judicial independence, at least for Article III judges, is investigation of misconduct and incompetence by a judicial body. Matter Under Investigation, 783 F.2d at 1508. For judges created by acts of Congress under Article I of the Constitution, investigative and disciplinary authority is generally granted to an official of the Executive Department, e.g., an agency head for AUs, as noted above. See Territorial Court of the Virgin Islands v. Richards, 847 F.2d 108 (3d Cir.1988). Similarly, for military judges, Congress expressly granted this authority to the President in Article 6a, UCMJ, who, in turn, has delegated it to the JAG. Rule for Courts-Martial (R.C.M.) 109. Regardless of where such authority is placed, it is clear in every case that it is not to be used to subvert the decisional independence of the judiciary.
So, the question is not whether the military judges assigned to this Court are accountable for their performance and behavior; it is whether the means used to hold us accountable tends to subvert our independence. Before we answer that question, it is appropriate to examine the role of the officer who holds us accountable — the [909] Judge Advocate General — as well as the principal means he uses to do so — the fitness report.5
THE JUDGE ADVOCATE GENERAL
The JAG is a creation of federal statute, 10 U.S.C. § 5148, which assigns him responsibility for “legal matters” in the Department of the Navy as well as those specific duties assigned him under the Uniform Code of Military Justice. Under Navy Regulations, he is assigned to the Office of the Secretary of the Navy and is specifically tasked with, inter alia, the duties of supervising the provision of all legal advice and related legal services throughout the Department of the Navy, and with providing legal and policy advice to the Secretary on military justice matters. U.S. Navy Regulations, 1990, art. 0331. In addition, the JAG is designated as the Chief of the Judge Advocate General’s Corps and, in that capacity, is the principal advisor and sponsor of matters concerned with the officers in the Corps. Id., art. 1009.
The UCMJ authorizes the JAG to perform a variety of functions, which in sum total describe his role in the military justice system as a crucial one. Specifically, under Article 6, assignments of all judge advocates in the Navy, including trial and appellate judges, are made upon his recommendation. Article 6(b) also establishes the right of any staff judge advocate in the field to communicate directly with the JAG. Under Articles 26 and 27, military judges and trial and defense counsel must be certified by him before they can practice in courts-martial, authority that necessarily implies the concomitant authority to decertify. Noted earlier was his mandate to establish this Court and appoint its judges under Article 66. Article 67 grants him the authority to refer issues of law to the Court of Military Appeals, as does Article 69 with respect to the Court of Military Review. Article 69 also assigns the JAG the responsibility to determine legal and factual errors in all courts-martial which are not subject to review under Article 66. Finally, the JAG is authorized to grant a new trial under Article 73. Furthermore, under departmental regulations, the JAG acts for the Secretary of the Navy in the exercise of many of the latter’s powers under the UCMJ. For example, in the name of the Secretary, he grants convening authority status to various commanders pursuant to Article 22(a)(6). JAGMAN § 0115.
From this cursory review of the JAG’s statutory and regulatory authority, it is apparent that he is more than an administrative functionary in the military justice system — indeed, he is the linchpin that holds the system together and, most important, the key to its integrity. Congress, as well as the Secretary in the exercise of his statutory authority, has bestowed considerable trust and confidence in the JAG to ensure that the system works as designed: fairly, effectively, and in accordance with the law. It has conferred upon him judicial or quasi-judicial responsibilities in the court-martial arena that require him to stand apart from either party to the case. United States v. Monett, 16 U.S.C.M.A. 179, 180 n. 1, 36 C.M.R. 335, 336 n. 1 (1966). Even in the exercise of his administrative functions, he must be fair and even-handed or the overall system of justice in the Na[910] val Service — -for which he bears considerable responsibility — will suffer.
With regard to his supervision of military judges in particular, the JAG is duty-bound to preserve their independence if he is to remain true to the congressional intent behind the Military Justice Act of 1968. Indeed, that is precisely why military judges were removed from line control and brought under the direct supervision of the JAG. Moorhead, 20 U.S.C.M.A. at 578, 44 C.M.R. at 8; Ledbetter, 2 M.J. at 42. Furthermore, the appellate courts have shown no hesitation in emphasizing the duty of the JAG (or his designee) to preserve judicial independence. United States v. Mabe, 33 M.J. 200 (C.M.A.1991); Ledbetter. In Graf, the Court reaffirmed the JAG’s obligation in this regard by holding that the use of his power to decertify or transfer a judge based on disagreement with the judge’s findings and sentences would violate Articles 26 and 37 of the UCMJ. 35 M.J. at 465.6 In United States v. Martinez, 11 U.S.C.M.A. 224, 29 C.M.R. 40 (1960), the Court found fault as well with a letter written by the JAG to a convening authority which expressed disagreement with the board of review’s decision in that ease.7 Finally, the JAGMAN establishes departmental policy that the independence of military judges, unhampered by fear of undue criticism and unswayed by personal interests, will be maintained. JAGMAN § 0165c(l)(a).
FITNESS REPORTS AND THE LAW
“The lifeblood of any officer’s career is his efficiency report.” United States v. Hubbard, 20 U.S.C.M.A. 482, 485, 43 C.M.R. 322, 325 (1971) (Ferguson, J., dissenting). See also Sanders v. United States, 594 F.2d 804, 219 Ct.Cl. 285 (1979) (recognizing the importance of the fitness report in an officer’s career). In Hubbard, the Court addressed the impropriety of a trial counsel endorsing the defense counsel’s efficiency report. While expressing concern for the potential conflict inherent in such an arrangement, the Court found no specific prejudice because the defense counsel performed creditably in that case. ^As indicated by the quote, Judge Ferguson argued in dissent that the defense counsel’s inherent conflict of interests in this situation created prejudice per se.
In other cases after Hubbard, the appellate courts have disapproved of similar situations where a defense counsel opposed an officer authorized to evaluate the defense counsel’s performance, calling the situation, in one such case, “wholly inimical to the appearance of integrity of the military justice system.” United States v. Nicholson, 15 M.J. 436 (C.M.A.1983); See also United States v. Lodi, 22 M.J. 184 (C.M.A.1986) (denying pet. for review) (Everett, C.J., concurring).
Likewise, the courts have recognized the damage to military justice inherent in the use of the fitness report to punish a member or a witness for his or her role in the court-martial process. United States v. Deain, 5 U.S.C.M.A. 44, 17 C.M.R. 44 (1954); United States v. Littrice, 3 U.S.C.M.A. 487, 13 C.M.R. 43 (1953); United States v. Jones, 30 M.J. 849 (N.M.C.M.R. [911]*9111990). In Mabe, the Court made it quite clear that this proscription applies with equal, if not greater, force to fitness reports for military judges. 33 M.J. at 206.
Congress, too, has recognized the potential of the fitness report to subvert military justice. Article 37, UCMJ, prohibits the use of such reports to comment on a member’s performance at a court-martial or to punish defense counsel for the zeal with which they represent accused servicemembers. In addition, Article 37 prohibits, by inference, the use of such a report to admonish a military judge for his findings or sentence. Graf, 35 M.J. at 465. Similarly, in Article 26, convening authorities are prohibited from using the fitness report to rate a judge on his performance in the courtroom. These same provisions are implemented in the MCM. R.C.M. 104.
While the primary purpose of the fitness report is to identify those officers best qualified for promotion, retention, and assignment to positions of leadership, its use as the primary means to hold officers (including appellate military judges) accountable for their performance of duty and professional conduct is inherent in its nature.8 It is intended to paint a complete picture of an officer’s professional qualifications and character through a combination of objective grading of specific character traits and professional qualities, such as those described earlier in this opinion, and subjective comments in narrative form. One of the most significant entries of any report is the officer’s ranking vis-a-vis other officers similarly situated, for he must ultimately compete with his peers for limited promotion and retention opportunities. NAVMILPERSCOMINST 1611.1A.
In conclusion, there is no dispute as to the significance of the fitness report in a judge advocate’s career or to the threat that it can pose to the integrity of the military justice system if it is used to subvert the independence of a military judge.
ANALYSIS
There are three ways to describe and then analyze the appellant’s position. First, his argument bears striking resemblance to an allegation that the judges on this Court have been subjected to a form of unlawful command influence, systemic in nature, through the unspoken threat of an adverse fitness report. Second, his assertions, if true, might establish grounds for the judges to disqualify themselves, pursuant to R.C.M. 902 and 28 U.S.C. §§ 144 and 455, based on a “personal” interest in affirming the proceedings below to please the officer who prepares their fitness reports. Third, there is his expressly stated basis— an alleged denial of constitutional due process.9
The constitutional due process analysis of this issue seems most appropriate for two reasons. First, it was the means by which the Court of Military Appeals resolved a similar systemic attack based on the lack of fixed terms for judges in Graf, 35 M.J. at 455. Second, if the appellant is to prevail in his effort to convince this Court to invalidate the statutory underpinnings of the JAG's authority to prepare the [912] judges’ fitness reports, it would have to be on constitutional grounds.
We begin by noting that the system of military justice which permits the two fundamental principles of judicial independence and judicial accountability to coexist is a creation of the Congress. The UCMJ specifically recognizes the existence of the “military judge,” in lieu of the generic term “judge.” Inherent in that term is a recognition by the Congress that these officers, like everyone in uniform, would be subject to military orders and professional evaluation, but that these features of military life must not be permitted to interfere with their independence as judges. The balance struck by the Congress between these two potentially conflicting dynamics is clearly reflected throughout the UCMJ, e.g., Articles 6, 6a, 26, and 37, and in the placement of the JAG at the helm to keep the ship of military justice on course. Indeed, the legislative history of the Military Justice Act of 1968 refers to a congressional intent that general court-martial judges be “responsible only to [the JAG] or his designees for direction and fitness ratings.” S.Rep. 1601, 90th Cong., 2d Sess. 7 (1969), reprinted in 1968 U.S.C.C.A.N. 4507-08 (emphasis added). That same balance is an intrinsic aspect of the regulatory scheme established, pursuant to congressional authority, by the President in the MCM and in regulations of the Department of the Navy, to hold military judges accountable as officers and to simultaneously preserve their independence as judges. These regulations reflect, as well, the JAG’s obligation to maintain and preserve the “integrity of judicial independence.” JAGMAN § 0165(c).
Considering the congressional role described above and the Supreme Court’s traditional deference to the Congress in military matters, even those involving constitutional rights, see, e.g., Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987), we find it appropriate to follow the lead of our superior court in its analysis of the similar issue in Graf and apply the test in Medina v. California, — U.S. -, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). That test was adopted by the Supreme Court to determine whether a provision of criminal procedure that fell within the peculiar province of state law was constitutionally acceptable. Applied to this case, the Medina test is whether the JAG’s evaluation in fitness reports of our performance and conduct as appellate military judges “transgresses any recognized principle of fundamental fairness.” Graf, 35 M.J. at 464. Only if we find that it does can we conclude that the factors militating against the fitness report requirement for judges are so “extraordinarily weighty” as to justify “overcoming] the balance struck by Congress.” Graf, 35 M.J. at 464 (quoting Middendorf v. Henry, 425 U.S. 25, 44, 96 S.Ct. 1281, 1292, 47 L.Ed.2d 556 [1976]).
There is no dispute that the appellant’s right to have his appeal heard by an appellate tribunal that enjoys decisional independence is a “recognized principle of fundamental fairness.” Graf. In Medina terms, the only question remaining is whether the JAG’s preparation of fitness reports for appellate military judges “transgresses” that “recognized principle.”
Based upon the matters addressed in the previous sections of this opinion, we make the following observations. First, judicial accountability and judicial independence are not mutually exclusive concepts. Chandler; Matter Under Investigation, 783 F.2d at 1509; Carlucci, 26 M.J. at 337; Nash v. Califano, 613 F.2d at 15. Second, the appropriate official in the Department of the Navy to evaluate military judges and hold them accountable for their performance and conduct is the JAG. Articles 6, 6a, 26, and 66, UCMJ; Graf; Mabe. Third, evaluation by fitness report is an authorized and traditional means in the Naval Service to hold officers (including military judges) accountable for their performance and conduct. Fourth, basing a military appellate judge’s fitness report on the appropriateness of his opinions and rulings would tend to undermine the independence of that judge.
We conclude from these observations that the JAG’s preparation of fitness reports for military appellate judges does not “transgress” the appellant’s right to have his appeal heard by an independent judicial [913] body if there are adequate assurances within the military justice system that those reports will not be based upon nor influenced by judicial opinions and rulings.
We find those assurances primarily in two distinct features of the law. First, the law proscribing the use of the fitness report to “punish” a military judge for his findings and sentence, and by inferential extension to the appellate arena for his action on the record, is clear. Article 37, UCMJ; Mabe, 33 M.J. at 205. A judge is presumed to know the law and to follow it. Allen, 31 M.J. at 602. Likewise, we presume that the JAG, who sits at the head of the judiciary, knows the law and will follow it. Second, the JAG has been assigned, by congressional mandate, the specific duty to ensure that the military justice system operates fairly and impartially and, in particular, to ensure that the independence of the judiciary is preserved. In other words, his professional interest in carrying out his duty under the UCMJ and our interest in performing our duty under Canon 1 of the Code of Judicial Conduct are identical. It is obvious to us, and we presume to the JAG as well, that basing fitness report marks and comments on his view of the appropriateness of judicial decisions and rulings would subvert judicial independence and would, therefore, be contrary to his sworn duty.
To be sure, an important aspect of the JAG’s interest in the administration of the military justice system is that it operate efficiently, i.e., that it support rather than detract from the operational efficiency of the service. Decisions of this Court which set aside any portion of the proceedings below may impede that efficiency. (On the other hand, such action by this Court would certainly be more efficient than forwarding error-laden cases up the appellate ladder only to see them reversed at a higher rung. See United States v. Moseley, 35 M.J. 481, 485 [C.M.A.1992] [Cox, J. concurring]). Yet, to conclude that efficiency is the dominant force that drives the JAG’s interest in appellate results — to the detriment of fairness and legal accuracy — is to lose sight of his overall responsibility to see that the military justice system operates fairly and in accordance with the law. An independent and robust appellate judiciary is indispensable to achieving that objective.
Presumably, the same tension between efficiency and fairness that is inherent in military justice exists in federal agencies which employ ALJs to adjudicate matters under their cognizance. Yet, the statutory scheme that balances the decisional independence of ALJs with accountability for non-decisional performance and behavior has passed constitutional muster, notwithstanding the fact that allegations of interference with judicial independence by agency officials have led to considerable litigation. Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 73 S.Ct. 570, 97 L.Ed. 872 (1953); Chocallo v. Bureau of Hearings and Appeals, 548 F.Supp. 1349 (E.D.Pa.), aff'd, 716 F.2d 889, cert. denied, 464 U.S. 983, 104 S.Ct. 426, 78 L.Ed.2d 360 (1982).10
To counter the presumption that the JAG would not violate his duty to preserve the Court’s independence through misuse of the fitness report, the appellant offers an affidavit submitted by a former (now retired) Marine appellate judge in which the former judge states that, after his participation in several controversial and high-visibility cases in which convictions were set aside, he received fitness reports from the JAG with comments that can be de[914] scribed as “mediocre” at best. Affidavit of Jonathan E. Rubens at 3. Following his tour of duty on the Court, he failed selection for promotion to colonel. The inference drawn by the appellant, and apparently shared by the judge himself, is that he was punished by fitness report because of his appellate decisions. This inference is strongly disputed in affidavits submitted by a former AJAG (who prepared the judge’s fitness reports for the JAG’s signature, see Affidavit of Charles H. Mitchell at 9-10) and by the former Staff Judge Advocate to the Commandant of the Marine Corps (who, as the senior judge advocate in the Marine Corps, claims familiarity with the former judge’s record and his failure to promote to colonel; see Affidavit of Michael E. Rich at 2-3). This factual dispute need not detain us.11 Just considering the former judge’s affidavit alone, we cannot conclude that his fitness reports or his non-selection for colonel was affected in any way by his appellate decisions. There are many other possible explanations for these career set-backs, and we decline to engage in the speculation urged by the appellant.12
Although he concedes that it is not direct evidence of the JAG’s abuse of the fitness report process, the appellant points to the JAG’s “record” in recent years in certifying issues to the Court of Military Appeals for review under Article 67(b)(2), UCMJ, as evidence of his prosecutorial orientation, i.e., as proof that he has not exercised his discretionary functions in an impartial manner. That record reveals that virtually all the issues certified under Article 67(b)(2) arose from cases in which the appellants had been granted some relief by this Court. Even if we were to view this evidence as persuasive proof of the JAG’s prosecutorial bent in the certification process, we would still decline to make the quantum leap required to reach the conclusion that he is necessarily compromised thereby in his duty to fairly evaluate the performance of duty and conduct of this Court’s appellate judges. However, we need not discuss the absence of a compelling nexus between the two because we do not even accept the premise. The JAG is entitled to present issues of law he deems significant to the Court of Military Appeals. The fact that nearly all the issues presented arose in cases in which the accused was granted relief tells us nothing about his reasons for certifying the particular issues involved, nor, in particular, whether he was necessarily assuming the role of a Government advocate in so doing. We take note of the fact that the vast majority of this Court’s decisions which grant relief to the appellants are not certified. Without more than raw statistics, we are not inclined to conclude that the JAG has abused the certification process under Article 67(b)(2). See United States v. Caprio, 12 M.J. 30, 31 n. 1 (C.M.A.1981).
In the absence of persuasive contrary evidence, we find no valid reason to reject the presumption that the JAG will faithfully carry out his duty to preserve the independence of the judiciary and, in particular, to ensure that fitness reports are not used to subvert that independence. In fact, what little meaningful evidence does exist [915] in this ease supports the presumption. In an affidavit referred to above, a former AJAG stated that judicial decisions were not considered in his preparation of fitness reports for the JAG’s signature. Affidavit of Charles H. Mitchell at 8.13
On the other side of the fitness report equation are the appellate military judges themselves. Any attempt to subvert independence through the power of the fitness report could only be successful if they were readily susceptible to such influence. Judges, too, are well aware of proscriptions on the use of the fitness report and presumably can find in those proscriptions some assurances that permit them to exercise their discretion unfettered by fear of retribution. Moreover, each appellate judge has a duty himself to resist any intrusion into his decisional independence. ABA Code of Judicial Conduct, Canon 1; Carlucci, 26 M.J. at 336. Assuming the JAG were inclined to intrude, we would expect every judge to do his duty and not allow his independence to be compromised. See Mabe, 33 M.J. at 207 (Cox, J. dissenting in part and concurring in the result).
Finally, we note that any judge may pursue several means of redress should he receive a fitness report which appears to him to be unlawfully based on decisions favoring appellants. NAVMILPERSCOMINST 1611.1A; Article 138, UCMJ; 10 U.S.C. § 1552 (Correction of Records); Navy Regulations, 1990, art. 1106. At the same time, we recognize the severe limitations of these means of redress. Retribution by fitness report need not be blatant to be effective. In today’s professional atmosphere of intense competition for promotion and retention in the Navy and Marine Corps, even the most subtle shading of grades or narrative comment in a report can signal the end of an officer’s march up the ladder of success. Yet, these subtleties may not provide a sufficient basis for relief through the methods listed above, but, if misapplied, constitute as much a threat to judicial independence as the more blatant variety.
For this reason, we place little reliance on these means of redress as a safety net against the improper use of a fitness report. We rely instead on our conclusion that the JAG’s best interest lies in preserving, not undermining, judicial independence and on the presumptions that the JAG will recognize and faithfully execute his duty to preserve our independence and that the judges of this Court will have the integrity and moral courage to steadfastly resist any attempt at undermining that independence.
We recognize that the provisions that preserve judicial independence in the military justice system are not foolproof. No such provisions could be. Inherent in any system of justice that includes measures to hold a judge accountable for his professional conduct is the possibility that those measures may be misused to subvert the judge’s independence. The military justice system is no exception. However, our analysis of those measures convinces us that this possibility is minimal. We find that there are adequate assurances that the JAG’s preparation of fitness reports for military appellate judges does not subvert judicial independence and, in particular, that this appellant has not been denied his right to have his appeal heard by an independent judicial body.
APPEARANCE OF IMPROPRIETY
Finally, we must address the allegation that, aside from any actual effect on the independence of the Court, the JAG’s preparation of our fitness reports creates an [916] appearance of unfairness, i.e., that a reasonable observer would conclude that our independence is compromised by this process. Judges must be extremely sensitive to the appearance, as well as the fact, of impartiality. ABA Code of Judicial Conduct, Canon 2; United States v. Sherrod, 26 M.J. 30 (C.M.A.1988). The remedy in cases where a judge is faced with facts giving rise to an appearance of bias is to disqualify himself. Sherrod; R.C.M. 902(a).
Even if we were to find an appearance of bias based upon the latent threat of an adverse fitness report, we would still find this remedy and the case law that addresses judicial disqualification inapplicable to this issue. While the appearance of bias requiring disqualification can arise in a systemic or non-case-specific manner, see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1926), if that appearance is based on the abstract threat posed by an inherent feature of the system of justice, as it is in this case, without a showing of specific harm, it does not mandate disqualification. United States v. Graf, 32 M.J. 809 (N.M.C.M.R.1990). Moreover, per se disqualification of all appellate judges on this basis would violate the “maxim of the law to the effect that when all are disqualified, none are disqualified.” Allen, 31 M.J. at 601.
Although such an appearance would not be dispositive of this issue, nevertheless our obligation under the Canons of Judicial Conduct — to preserve public confidence in military justice — requires that we determine whether it exists and, if it does, to take steps to dispel it. In determining whether such an appearance exists, judges must look, objectively, to what a reasonable observer with full knowledge of the facts giving rise to the question would conclude. United States v. Berman, 28 M.J. 615 (A.F.C.M.R.1989).
The facts giving rise to this question are the relationship between the JAG and the Court, the JAG’s statutory role as the steward of military justice, the provisions that safeguard the independence of the judiciary, and the directives that address the preparation of fitness reports in the Navy and Marine Corps. We assume as well that this informed reasonable observer would be aware of the nature of fitness reports, their importance in the Navy and Marine Corps, and the manner in which they are actually prepared for the JAG’s signature. Finally, it is nearly as important to note what would not be included in his factual database as it is to consider what is before him. He would have no convincing evidence that the JAG has in fact attempted to punish a judge for his decisions or that any judge has been affected by the mere threat of such punishment.
These particulars have been thoroughly discussed above and we find therefrom that a reasonable observer would conclude, as we did, that the JAG’s interest lies in preserving, • not undermining, the Court’s independence, and that any threat arising from the potential for misuse is more abstract than real. To conclude otherwise, that reasonable observer would have to engage in the presumption that the JAG would knowingly violate the law proscribing interference with judicial independence, a presumption no reasonable person would make. In addition, if he were to learn of adverse comments in a judge’s fitness report, he would have to speculate that they were the result of the JAG’s disapproval of the judge’s decisions rather than an assessment based upon lawful grounds. A determination of whether there is an appearance of impropriety should not be based upon speculation and insupportable presumptions. In the end, we find at least a partial answer to the “appearance” question in the fact that the elected representatives of the American public created this system whereby accountable military officers sit as independent judges. If the balance they struck appears fair to them, surely objective onlookers have little cause to complain.
Our inquiry into the appearance aspect of this assigned error does not stop with an assessment of the JAG’s role in the fitness report process. Arguably, the method by which the JAG uses his staff to prepare fitness reports for his signature is solely [917] within his discretion. Yet, if evidence suggests that fitness reports are actually prepared for the JAG’s signature by an officer whose interests may be contrary to decisions that favor the appellant, we must look behind the veil to see if that process offends the appellant’s right to an independent court. See United States v. Hilow, 32 M.J. 439 (C.M.A.1991) (court must examine process by which convening authority detailed members to court-martial to ensure compliance with Article 25, UCMJ).
As disclosed above, fitness reports for appellate judges are prepared in the office of the AJAG. Within the Office of the JAG, this officer “stands in the shoes” of the JAG for military justice matters and, therefore, is duty-bound to ensure that military justice is administered fairly and independently. Presumably, he shares the same interest as the JAG in preserving the Court’s independence.
At the same time, the AJAG is responsible, through the Director, Criminal Law Division, for implementing this Court’s decisions in the field. Some of those decisions may disapprove service-wide policy previously approved by the AJAG and some could lead to significant change in the way that the military justice system operates in the Navy and Marine Corps. See, e.g., United States v. Holloway, 36 M.J. 1078 (N.M.C.MJR.1993) (holding that the Navy’s military magistrate program does not comply with County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 [1991]). In addition, we attach meaning to the fact that, organizationally, the appellate judges fall directly under the JAG and, unlike those assigned military justice duties in the Office of the JAG, judges are not subject to the control of the AJAG. OJAG Organization Manual § 107. For these reasons, although we find nothing actually inimical to our independence in this arrangement, arguably a reasonable observer may conclude that it is inappropriate for an officer whose duties do not include supervising the Court’s judges, but whose professional responsibilities are so directly and closely affected by the Court’s decisions, to participate in the evaluation of the appellate judges.14
For the reasons stated, we find that the appellant has not been denied his right to have his case reviewed by an independent appellate court. We have examined the record of trial and the pleadings and have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed.
Senior Judges WELCH and JONES concur.