(dissenting):
The record in the present case fails to demonstrate that the convening authority fulfilled his Article 25, UCMJ, 10 USC § 825, responsibility to select personally those members best qualified for service on the court-martial panel. I respectfully dissent.
I. BACKGROUND A
As a matter of constitutional law, “trial by jury in criminal cases is fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). “[Tjrial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.” Id. at 156 n. 23, 88 S.Ct. 1444, quoting P. Devlin, Trial by Jury 164 (1956). U.S. Const. Amend. VI. The selection of a jury “from a representative cross section of the community is an essential component of the Sixth Amendment.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The constitutional right to trial by jury applies when the sentence may include confinement in excess of 6 months. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).
A member of the armed forces facing similar criminal punishment in the military justice system does not have the right to trial by jury. A military accused is tried before a panel composed of his or her superiors, not a jury of his or her peers. The panel is not randomly selected, nor does it constitute a representative cross-section of the community. Each member of the panel is selected personally by the commander who convenes the court-martial. Art. 25. The convening authority, who is not a judicial official, exercises command authority and responsibility over the accused, over the members of the panel, and over the discretionary prosecutorial decision to refer the charges to a court-martial. See, e.g., RCM 407 and 503, Manual for Courts-Martial, United States (2000 ed.).
B
The rationale for providing commanders with the power to select panel members is based on the responsibility and accountability of commanders for the successful conduct of military operations. In the exercise of that responsibility, maintenance of a high state of discipline is necessary to persevere and prevail amidst the danger, death, destruction, and chaos of armed conflict. Congress has determined that the convening authority’s command responsibility requires the authority to appoint court members, and the courts repeatedly have sustained this denial of the Sixth Amendment right to trial by jury. See, e. g., United States v. Smith, 27 MJ 242, 248 (CMA 1988), citing Ex Parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 2, 16, 87 L.Ed. 3 (1942); Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 123 (maj. op.), 137-38, 18 L.Ed. 281 (sep. op.) (1866); and United States v. Kemp, 22 USC-MA 152, 154, 46 CMR 152, 154 (1973).
C
From Revolutionary War era Articles of War though World War I, the convening authority exercised virtually unfettered discretion in the selection of commissioned officers senior to an accused for service as panel members. See William Winthrop, Military Law and Precedents 70-80 (2d ed. 1920 Reprint). When allegations of command abuses led to considerable criticism of the Articles of War in the aftermath of World War I, Congress responded with several reforms, including the establishment of criteria for the selection of panel members. Act of June 4, 1920, ch. II, 41 Stat. 787, 788 (Article of War (AW) 4); H.R.Rep. No. 66-940 at 2-3 (1920). See Terry W. Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T. Ansell, 35 Mil. L.Rev. 1, 21-22 (1967).
*457As revised, AW 4 provided that the commander convening the court-martial “shall detail as members thereof those officers of the command who, in his opinion, are best qualified for the duty by reason of age, training, experience, and judicial temperament.” The 1948 Elston Act amended AW 4 to permit enlisted persons to serve on courts-martial. Act of June 24, 1948, ch. 625, tit. II, 62 Stat. 627, 628. The UCMJ, enacted in 1950, made the selection criteria applicable to all the armed forces and added two items — • education and length of service. Act of May 5,1950, ch. 169, § 1, 64 Stat. 108,116 (Article 25). The present version of this provision states that “[wjhen convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Art. 25(d)(2), 10 USC § 825(d)(2).
D
Because the selection of the court-martial panel is so intimately bound to the responsibilities of command, military law traditionally has prohibited a commander from delegating the authority and responsibility for detailing court members. See United States v. Ryan, 5 MJ 97, 100-101 (CMA 1978). It is noteworthy that when Congress modified the convening authority’s responsibilities in the aftermath of Ryan and related cases, the legislation did not overturn the prohibition against delegation of the power to detail court-members. See S.Rep. No. 98-53, at 12-13 (1983), U.S.Code Cong. & Admin.News 1983, pp. 2177, 2178-79. The amendments were limited in scope, authorizing officials other than the convening authority to detail military judges and counsel, and permitting the convening authority to delegate only the power to excuse panel members. Military Justice Act of 1983, 97 Stat. 1393, 1394 (Arts. 26, 27, and 25). Congressional interest in sustaining the convening authority’s personal responsibility for member selection is reflected in the report of the Senate Armed Services Committee, which stated that the Manual for Courts-Martial should “place reasonable limits on delegation of excusal authority to ensure that the convening authority does not avoid his primary responsibility for the selection of members.” S.Rep. No. 98-53, at 13, U.S.Code Cong. & Admin.News 1983, pp. 2177, 2178. See RCM 505(c)(1)(B)(ii) (“no more than one-third of the total number of members detailed by the convening authority may be excused by the convening authority’s delegate in any one court-martial”).
The convening authority’s responsibility to exercise personal discretion in the selection of court members does not preclude an appropriate degree of staff assistance in formulating recommendations for panel membership. See United States v. Marsh, 21 MJ 445 (CMA 1986), cert. denied, 479 U.S. 1016, 107 S.Ct. 666, 93 L.Ed.2d 719 (1986). Cf. United States v. Kemp, 22 USCMA 152, 46 CMR 152 (1973). Staff may not present proposals, however, “in such a way that a superior has no practical alternative but to follow their recommendation.” Marsh, supra at 449.
E
In response to a recent statutory requirement, the Department of Defense issued a report on the method of selecting court members, including an examination of alternatives such as random selection. Department of Defense, Joint Service Committee on Military Justice, Report on the Method of Selection of Members of the Armed Forces to Sei~ve on Courts-MaHial (1999) (hereafter “DoD Report”). See Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub.L. No. 105-261, § 552, 112 Stat. 1920, 2023 (1998). The report discussed whether a modified form of “random selection” could be implemented in a manner consistent with the convening authority’s responsibility personally to select those “best qualified” to serve as panel members. Under such a modified system: (1) the convening authority would establish criteria for identifying those “best qualified” to serve as members; (2) a proposed panel would be randomly selected from among those identified as “best qualified”; and (3) the convening authority would then exercise discretion *458as to whether such members should be detailed as panel members. DoD Report at 26-27. Our Court has suggested in dicta that such process would comport with Article 25, United States v. Smith, 27 MJ 242, 249 (1988), but Smith did not involve a random selection procedure, and the DoD Report did not recommend random selection, even in such a modified form.
The DoD Report endorsed the current system of detailing panel members, noting that Article 25 requires the convening authority “personally” to select the court members. DoD Report at 11. The report noted that the convening authority may consider lists forwarded by staff and that, to “ensure that no prospective service members are systematically excluded, convening authorities are advised that they are not limited to the list of nominees forwarded for consideration.” Id. n. 30. The report observed that the “best qualified” criteria in Article 25(d)(2)—
ensure[s] the highest caliber personnel [are] available to serve as court-martial members. This represents a significant protection for the accused. Moreover, the “best qualified” court-martial members presumably reach fair and accurate verdicts more efficiently.
Id. at 12 (footnote omitted). The report added:
The fact-finding, sentencing, and judicial roles of court-martial members require a high degree of competence — providing an important protection for the accused service member.
Id. n. 33.
With respect to the relationship between staff nominations and convening authority selections, the report noted:
The current practices used by the Services promote the selection of the best qualified court-martial members. Using subordinate commander nominations enhances the competency of court-martial members by repeated application of the Article 25(d)(2), UCMJ, criteria. First, subordinate commanders, who are in the best position to evaluate their personnel, nominate their most competent and available service members for possible court-martial duty based upon the Article 25(d)(2), UCMJ, criteria. The convening authority applies the Article 25(d)(2), UCMJ, criteria a second time when selecting court-martial members. An advantage of this process is that it permits the convening authority to rely upon the advice and recommendations of subordinate commanders before applying his or her own judgment and assessment to ensure the best qualified and most competent service members serve on courts-martial.
Id. at 18. The report underscored the need for the convening authority to make a personal assessment, rather than rely solely on staff recommendations, because “some subordinate commanders may nominate personnel who are merely most available, rather than most qualified.” Id.
F
In sum, the constitutional right to trial by jury does not apply in courts-martial. Congress, however, has been sensitive to the need for fairness in military justice proceedings. In Article 25, Congress has provided members of the armed forces with a valuable protection by requiring the convening authority personally to select those members of the armed forces “best qualified” to serve as court members by reason of judicial temperament and related statutory criteria.
II. DISCUSSION
In the present case, the Deputy of the Administrative Division, Lieutenant Commander Litsinger, compiled a packet of questionnaires from members of the command that he determined to be reasonably available for court-martial service. He forwarded these nominees to the convening authority through the chief of staff, Captain Sinclair, with the request that Sinclair “select 9 officers from the enclosed candidates to be assigned to YNC Benedict Court-Martial.”
Sinclair pared down the list given to him, excluding members who he believed would be unavailable and those who he suspected might be knowledgeable on some level about the case. He gave the shorter list of “six or so” names to his secretary to prepare a final *459court-martial convening order, and he then delivered the order to the convening authority for his signature. The convening authority later signed the order without change and without any further inquiry of any sort.
There is no evidence that the convening authority specifically was advised that he could exercise his discretion to add to or subtract from the list of recommended members. See DoD report, supra at 11 n. 30 (“To ensure that no prospective service members are systematically excluded, convening authorities are advised that they are not limited to the list of nominees forwarded for consideration.”). As noted in the majority opinion, when Sinclair was asked at trial whether he would “have substituted anyone if the Admi•ral had asked to have anyone substituted,” he answered, “I don’t think I would have without discussing why. If there was any reason why.” When asked a similar question a short time later, Sinclair responded, “I would have to hear his arguments for such____”
The record in this case raises a substantial question as to whether the convening authority was handed a fait accompli and signed the already-prepared final order without question and without applying the criteria of Article 25. In light of the record, it is inappropriate to rely on the presumption of regularity or any similar presumption as to whether the convening authority, in fact, personally applied the criteria of Article 25 to select those “best qualified” to serve as court members. The issue in this case is not whether the convening authority signed the convening order, but whether he applied the criteria of Article 25 when doing so. As reflected in the majority opinion, the prosecution was determined to avoid presentation of testimony from the one witness' — the convening authority — -who could have addressed directly the issue of whether the members were selected in accordance with Article 25. See 55 MJ at 452. In view of the testimony by the convening authority’s subordinates raising a significant question as to whether his action represented a mere fait accompli, the absence of testimony by the convening authority on these matters is inexplicable.
When members of the armed forces are denied a basic constitutional right afforded to their civilian counterparts, it is particularly important they not be deprived of the corresponding right provided by Congress to ensure fundamental fairness. In this case, appellant did not have the right to trial by jury, but he did have the right to be tried before panel members personally selected by the convening authority as “best qualified” by reason of judicial temperament and the related statutory criteria. I would remand this case for a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to determine whether the convening authority personally selected the members of the court-martial panel applying the criteria in Article 25.