(concurring in the result):
I am unwilling to join the majority opinion because it leaves unanswered several significant Constitutional, Codal, and regulatory arguments presented in this case. In my view, appellant has asserted that he has a legal right to subpoena witnesses who may not be relevant and necessary if he proffers to pay witness fees and expenses. I would hold that he does not have such a right under the Constitution, the Uniform Code of Military Justice, or the Manual for Courts-Martial, United States, 1984. Otherwise, I agree that the military judge did not legally err in concluding that the defense-requested witnesses were not necessary in this case.
The granted issue in this case seems incomplete. It asks:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BOTH BY DENYING CERTAIN DEFENSE REQUESTS FOR THE PRODUCTION OF CERTAIN WITNESSES AND BY PERSISTING IN HIS DENIAL OF SAID WITNESSES NOTWITHSTANDING THE WILLINGNESS OF THE DEFENSE TO RELIEVE THE PROSECUTION OF THE EXPENSES ASSOCIATED WITH THEIR APPEARANCE AT TRIAL, THEREBY DEPRIVING APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO EQUAL OPPORTUNITY TO OBTAIN WITNESSES UNDER RCM 703.
*353A servicemember has the right to “compulsory process for obtaining witnesses in his favor” under the Sixth Amendment. He also has a right to due process of law as guaranteed by the Fifth Amendment. See Weiss v. United States, 510 U.S. 168, 177-78, 114 S.Ct. 752, 761, 127 L.Ed.2d 1 (1994). He also has a right to equal opportunity to obtain witnesses and other evidence in accordance with Presidential regulations under Article 46, UCMJ, 10 USC § 846. Whether RCM 703, Manual, supra, satisfies Article 46 and the Fifth and Sixth Amendments are distinct but related inquiries.
Appellant initially calls this Court’s attention to Fed.R.Crim.P. 17(a) and (b), which state:
Rule 17. Subpoena
(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blanks before it is served. A subpoena shall be issued by a United States magistrate judge in a proceeding before that magistrate judge, but it need not be under the seal of the court.
(b) Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.
He asserts that, under this rule, a defendant in Federal court may subpoena any person he wants as a witness without approval of the prosecutor or judge, if he will pay the required witness fees. See 2 Wright, Federal Practice and Procedure: Criminal 2d § 273 at 42 (1996 Pocket Part) (“Rule 17(a) does not provide for judicial screening of subpoenas issued under it before they are served.”) A subpoena, however, is not the same as a court order or warrant compelling an appearance of a witness. See United States v. Simpson, 992 F.2d 1224, 1230 (D.C.Cir.1993).
In any event, he contrasts the federal civilian right with RCM 703, which states:
(e) Determining which witness will he produced.
(1) Witnesses for the prosecution. The trial counsel shall obtain the presence of witnesses whose testimony the trial counsel considers relevant and necessary for •the prosecution.
(2) Witnesses for the defense.
(A) Request. The defense shall submit to the trial counsel a written list of witnesses whose production by the Government the defense requests.
(B) Contents of request.
(i) Witnesses on merits or interlocutory questions. A list of witnesses whose testimony the defense considers relevant and necessary on the merits or on an interlocutory question shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity.
(ii) Witnesses on sentencing. A list of witnesses wanted for presentencing proceedings shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence, a synopsis of the testimony that it is expected the witness will give, and the reasons why the witness’ personal appearance will be necessary under the standards set forth in RCM 1001(e).
*354(C) Time of request. A list of witnesses under this subsection shall be submitted in time reasonably to allow production of each witness on the date when the witness’ presence will be necessary. The military judge may set a specific date by which such lists must be submitted. Failure to submit the name of a witness in a timely manner shall permit denial of a motion for production of the witness, but relief from such denial may be granted for good cause shown.
(D) Determination. The trial counsel shall arrange for the presence of any witness listed by the defense unless the trial counsel contends that the witness’ production is not required under this rule. If the- trial counsel contends that the witness’ production is not required by this rule, the matter may be submitted to the military judge. If the military judge grants a motion for a witness, the trial counsel shall produce the witness or the proceedings shall be abated.
Appellant at trial challenged the constitutionality of RCM 703 on the basis of Fed. R.Crim.P. 17(a). He argued at trial:
In the federal system and in all state courts a criminal defendant can obtain the issuance of a subpoena without permission from the Court or the prosecution. For example, F.R.Cr.P. 17 directs the clerk of the court to issue a subpoena on the request of a party. If the witness who is subpoenaed does not wish to testify, he or she may file a motion to quash. If the prosecution does not believe the testimony of the witness is relevant, it may object to the testimony when it is offered; however, neither the government nor the witness can prevent the subpoena from being issued and served.
The military system prevents the accused from having subpoenas issued. The accused has a right to have subpoenas issued as he has requested; whether the government must pay for the witnesses to travel to Offutt Air Force Base for the trial is a different question and the two issues should not be confused. By allowing the government and the military judge to prevent a subpoena from being issued, RCM 703 denies the accused his Sixth Amendment right to compulsory process. For this reason, RCM 703 should be declared unconstitutional, and the government should be ordered to subpoena all witnesses requested by the accused.
Before this Court appellant adopts a somewhat different approach. He asserts that RCM 703, properly construed, permits a military judge to issue a subpoena “if the defense was willing and able to take the financial responsibility for witness production.” Final Brief at 19. I construe this argument as having two prongs: First-RCM 703 permits a military judge to issue a defense subpoena solely on the basis of a defense proffer to pay witness fees and expenses. Second-if RCM 703 is not so construed, it constitutes a violation of Article 46, his Fifth Amendment right to due process, and his Sixth Amendment right of compulsory process. The majority opinion overlooks these questions.
Turning first to RCM 703, I note that appellant has not proffered any authority directly supporting his broad reading of this Manual provision. Review of the plain language of this provision suggests that a military judge does not have authority to order a defense subpoena solely on the basis of a defense proffer of witness fees. See RCM 703(c)(2)(B)(i) (relevance and necessity). Accordingly, it is necessary to proceed to appellant’s alternative arguments.
Turning next to Article 46, I would hold that RCM 703, construed in light of its plain language, does not violate this Codal provision, which states: .
§ 846. Art. 46. Opportunity to obtain witnesses and other evidence
The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction *355may lawfully issue and shall run to any part of the United States, or the Territories, Commonwealths, and possessions.
Admittedly, RCM 703 permits trial counsel to issue his own subpoenas without immediate judicial supervision. RCM 703(e)(2)(c). However, RCM 703(b)(1) requires that both prosecution and defense requests for subpoenas be evaluated in terms of relevance and necessity. In addition it provides that a military judge ultimately resolves questions concerning particular government or defense subpoenas. In my view, Article 46 is satisfied.
Finally, I will address the constitutionality of RCM 703. Admittedly, RCM 703 establishes a different scheme of process than Fed.R.Crim.P. 17(a), at least with respect to witnesses which the defense tenders fees and expenses to. However, that fact alone does not establish a denial of due process. See Weiss v. United States, at 177-78, 114 S.Ct. at 761. Appellant must show that “the factors militating in favor” of a civilian procedure “are so extraordinarily weighty as to overcome the balance struck by Congress” in Article 46 and RCM 703. 510 U.S. at 177-78, 114 S.Ct. at 761, quoting Middendorf v. Henry, 425 U.S. 25, 44, 96 S.Ct. 1281, 1292, 47 L.Ed.2d 556 (1976), Appellant makes no argument on this critical Fifth Amendment question. In addition, I note that RCM 703 itself does not deny an accused the right to subpoena material and relevant witnesses as guaranteed by the Sixth Amendment. In fact, it simply allows for judicial review of denial of subpoenas on relevance and materiality grounds before they are enforced by court order. Cf. Fed.R.Crim.P. 17(c) and (d) (provisions for motion to quash and contest finding). In these circumstances I see no Sixth Amendment violation either. United States v. Dean, 55 F.3d 640, 662-63 (D.C.Cir.1995); United States v. Campbell, 874 F.2d 838, 851 (1st Cir.1989); and United States v. Bertoli, 854 F.Supp. 975, 1082-84 (D.N.J.1994).