(concurring):
I agree with the majority that the terms of the conditional guilty plea did not preserve Issues I and II. Issue III and the specified issue concerning effective assistance of counsel give me some pause, but after careful reflection, I agree with the majority.
Although the issue whether the confession was tainted by the command-directed urinalysis is not directly before us, appellant’s claim of ineffective representation usually would require us to address it. See United States v. Loving, 41 MJ 213, 244 (1994) (appellant must show reasonable probability that motion to suppress “would have been meritorious”), affd cm, other grounds, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). However, I need not reach the question whether the confession in this case was tainted.
In my view our Court has not spoken with a clear voice on the relationship between a command-directed urinalysis and a subsequent confession. Our holdings in United States v. Williams, 35 MJ 323 (1992) (that any possible taint from the earlier command-directed urinalysis had been clearly dissipated), and United States v. McCastle, 43 MJ 438 (1996) (that appellant, in faulting his counsel for failing to make a suppression motion, had failed to overcome the strong presumption of the competence of his counsel), were narrow and case-specific. I do not believe that our opinions in Williams and McCastle put counsel on notice that a motion to suppress probably would be meritorious. We cannot expect counsel to be prescient. Instead, counsel’s “performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential.” McCastle at 440, citing Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). Because the law on use of command-directed urinalysis results in subsequent interrogations is unsettled, it was not unreasonable for defense counsel to rely on other legal grounds to attack the confession. See United States v. McCastle, swpra. As in McCas-tle, I do not believe that the “strong presumption” of competence is overcome in this case. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Accordingly, I join in holding that defense counsel was not ineffective.