law and precedent controls a particular issue”.816 For these reasons, ODIHR considers that the Guantánamo military commissions constitute an ad hoc system which has denied Guantánamo detainees the right to be tried by well-established legal procedures of ordinary federal courts or courts-martial.817 347. The need for independence from the executive branch of government, as well as for actual impartiality and safeguards to ensure the appearance of impartiality, has led international bodies and experts to raise serious concerns over the independence and impartiality of military tribunals.818 348. Military commissions at Guantánamo are administered by the Department of Defense.819 Concerns regarding the lack of structural independence within the commissions first arise in relation to the designation of and roles played by the Convening Authority in the proceedings. Whereas the Office of the Convening Authority is under the authority and the responsibility of the Department of Defense, and ultimately of the President,820 the Convening Authority has broad powers, including referring charges to trial and subsequently intervening in the conduct of these trials. This proximity with the executive branch, combined with an ability to influence the proceedings, “adds to an appearance that military commissions are not independent”.821 349. Similar concerns arise in relation to the independence and impartiality of military commission judges.822 Judges are detailed for each commission823 and have no fixed term of office. This insecurity of tenure makes them particularly vulnerable to threats to their independence.824 This vulnerability is said to be illustrated, for example, in the decision not to renew the contract of Judge Peter Brownback, on retiree recall status,825 a few months after he was publically criticized by the executive for dismissing all charges without prejudice in United States v. Khadr, in 2007.826 The retiree recall status of Judge James 816 United States Military Commission, United States of America v. Mohammad et al., “Unofficial/unauthenticated transcript of motions hearing dated 31/01/2013 from 9:01 AM to 09:22 AM”, p. 1720. 817 UN Special Procedures, “Situation of detainees at Guantánamo Bay”, op. cit., note 23, para. 30; “Basic Principles on the Independence of the Judiciary”, op .cit., note 771, Principle 5. 818 UN HRC, General Comment No. 32, op. cit., note 648, para. 22; Nowak, CCPR Commentary, op. cit., note 93, p. 320; UN Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, A/68/285, op. cit., note 647, para. 14; UN Special Rapporteur on human rights and counter-terrorism, Report to the Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 23; Alex Conte, “Approaches and Responses of the UN Human Rights Mechanisms to Exceptional Courts and Military Commissions”, in Fionnula Ni Aolain & Oren Gross, Guantánamo and Beyond, Exceptional Courts and Military Commissions in Comparative Perspective (Cambridge: Cambridge University Press, 2013), pp. 333-334; ODIHR interview with Amnesty International, 5 August 2013. 819 “Organization Overview”, Office of Military Commissions website. 820 MCA 2009, § 948h; RTMC 2011, Regulation 2-1. See, also, UN Special Procedures, “Situation of detainees at Guantánamo Bay”, op. cit., note 23, para. 32. 821 UN Special Rapporteur on human rights and counter-terrorism, Report to the Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 25. ODIHR interview with Human Rights Watch, 3 March 2014. 822 ODIHR interview with Human Rights Watch, ibid. 823 RMC, Rule 503(b)(1). See, also, UN Special Rapporteur on human rights and counter-terrorism, Report to the Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 24. 824 UN Special Rapporteur on the independence of judges and lawyers, Report to the Commission on Human Rights, E/CN.4/2004/60, op. cit., note 783, para. 45; UN Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, A/HRC/11/41, op. cit., note 777, para. 54. 825 This status leads to the renegotiation of the judge’s contract every year. 826 United States Military Commission, United States of America v. Al-Nashiri, AE 084, “Motion to Disqualify or, in the Alternative Requesting the Recusal of Colonel James L. Pohl as Military Judge in this Case”, 14 June 2012, pp. 3-4. 151