(concurring in the result):
18. I would affirm this case on the basis of harmless error. United States v. Thomas, 22 MJ 388, 396 (CMA 1986), cert, denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). The command influence in this case (Captain Morris’ order to Lieutenant Hottman, soon to be the acting commander during her leave, to “sign” the charges — App. Ex. IX (motion to dismiss) — is clearly the imposition of the influence of a senior over a junior in the preferral-of-charges stage under *20the Uniform Code of Military Justice)1 was not prejudicial in light of the entire record here. See United States v. Johnston, 39 MJ 242 (CMA 1994). The majority in its opinion, however, goes further and would legalize waiver of command-influence issues. In my view, the majority makes a grave mistake in applying waiver to the important area of command influence. Art. 37(a), UCMJ, 10 USC § 837(a). See Weiss v. United States, 510 U.S. 163, -, 114 S.Ct. 752, 762, 127 L.Ed.2d 1 (1994).
19. Let there be no. misunderstanding about the majority opinion in this case. It is a landmark decision in this Court’s 44-year history which, for the first time, permits affirmative waiver of a prima facie case of unlawful command influence. It attempts to justify such a holding by relying on this Court’s decision in United States v. Hamilton, 41 MJ 32 (1994). That case, however, was not decided on the basis of waiver, and I disagree with the majority’s attempt to bootstrap today’s decision on ambiguous dicta in that opinion.2 See generally United States v. Johnston, supra. ¶ 18. Moreover, Article 37 of the Code does not provide for waiver or for private deals between an accused and a *21command to cover-up instances of unlawful command influence which have been discovered at trial. See United States v. Mezzanatto, — U.S.-,-, 115 S.Ct. 797, 803, 130 L.Ed.2d 697 (1995) (“[T]here may be some evidentiary provisions that are so fundamental to the reliability of the fact-finding process that they may never be waived without irreparably discrediting] the federal courts.”).
20. The majority today offers what at best can be described as a “blackmail type” option to those who would engage in unlawful command influence. Any accused who finds out about command influence can blackmail the guilty commander into giving him a lenient deal. In effect, this approach holds that the integrity of the military justice system, a major component in morale and discipline of our armed forces, may be subverted by the private interests of an accused and a convening authority. I strongly disagree. See United States v. Kitts, 23 MJ 105, 108 (CMA 1986).
21. The majority opinion mouths the traditional denunciations of unlawful command influence but then avoids resolving the command-influence issue so as to not “deprive appellant of the benefit of his bargain.” ¶ 14. In view of this Court’s experience with unlawful command influence for over 44 years, the “contract” rationale proffered by the majority is dead wrong. The majority’s condo-nation of bartered justice is not only self-defeating in an institutional sense but reneges on our traditional commitment to vigilance on this issue. See Weiss v. United States, 510 U.S. at, 114 S.Ct. at 762.
22. What happened to the straightforward approach of uncovering the facts of any command influence and dealing with it using the provisions of law that Congress gave us under the UCMJ? This approach ensures the reliability of courts-martial in the eyes of the American people and its military forces. See generally United States v. Mezzanatto, supra at 803. To discard this approach in a case which may simply be resolved on the basis of harmless error, as suggested by Judge Wiss, raises serious concerns as to the Weasler majority’s agenda. Undercutting the UCMJ’s provisions against command influence brings us back to the old days of American military justice where the commander could do no wrong and the service-member had few rights.
. A few words on the command influence in this case may be necessary. The majority opinion examines Captain Morris' intervention with LT Hottman, the about-to-be acting commander, as a command-influence issue but then fails to confront it except by waiver. The military judge also treated the intervention as apparent command influence which may have resulted in an improper preferral. RCM 306, Manual for Courts-Martial, United States, 1984, states that "[e]ach commander has discretion to dispose of offenses by members of that command.” The Discussion following the rule indicates that each commander must have "independent” discretion to "dispose" of the charges. Here Captain Morris interferred with that discretion by ordering LT Hottman to "sign” the charges. When the military judge discovered this fact at a hearing on a pretrial motion to dismiss, a continuance was granted whereupon appellant was able to negotiate a very favorable sentence limitation.
In my view when a commander is given discretion, that discretion should be sacrosanct from interference especially in the military justice field. See RCM 307(a), Discussion: "A person authorized to dispose of offenses should not be ordered to prefer charges when this would disqualify that person from exercising that person’s authority or would improperly restrict that person’s discretion to act on the case. See RCM 104 [Art. 37, Uniform Code of Military Justice, 10 USC § 837] and 504(c).” (Citations omitted.)
Under the UCMJ, when Congress or the President confers a power on a servicemember to perform a judicial or quasi-judicial duty, that duty must be performed without interference from a superior. That duty can be the power of a commander to make a decision on preferring charges or the power of a panel member to vote on the guilt of a fellow servicemember or the power of a military judge to try a case. All must be free from interference from above. All must be free from the influence of command. That is a bedrock assumption of the military system of justice. That is the law. Art. 37; see also United States v. Hagen, 25 MJ 78, 86 (CMA 1987) (Sullivan, J., concurring), cert, denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 981 (1988); Standard 3-3.9, ABA Standards for Criminal Justice: The Prosecution Function (3d ed. 1992) states: "A prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused.”
While there was clear command influence in the instant case, the record also indicates that, since this was discovered prior to trial, the Government could have easily withdrawn the charges and done a proper preferral of charges without any prejudice to appellant. Hence, I can affirm this case on harmless error.
. The majority opinion in United States v. Hamilton, 41 MJ 32, 37 (CMA 1994), held that an Article 37 violation was neither asserted nor established in that case. The Court stated:
Based on the evidence before us, we conclude — as did the Court of Military Review— that appellant has not made out his case for command influence. Accordingly, we hold that the Court of Militaty Review did not err in concluding that COL Solomon’s decision to prefer charges and his recommended disposition of those charges was untainted by unlawful command influence.
The Hamilton majority in dicta further stated:
Unlawful command influence at the referral, trial, or review stage is not waived by failure to raise the issue at trial. See generally United States v. Blaylock, 15 MJ 190, 193 (CMA 1983). If a party is deterred by unlawful command influence from challenging at trial any defects in the preferral or forwarding of charges, then the provisions of Article 37 are triggered and the issues are not waived, because the trial itself has been subjected to unlawful command influence. Appellant does not assert a violation of Article 37 in the case before us.
Absent opposition from the majority, I expressed my view that its opinion should not be construed to permit waiver of command-influence issues. See United States v. Hamilton, 41 MJ at 39 (Sullivan, C.J.) (concurring in part and in the result).