(dissenting):
I respectfully dissent. In the pretrial agreement for this contested general court-martial, the appellant agreed to waive his right to be tried by members, to present evidence on the merits, and to call witnesses on the merits. The appellant also agreed to enter into a confessional stipulation of fact, Prosecution Exhibit 1, which effectively encompassed all of the elements of the charged offenses. Now, the appellant contends that the combination of those pretrial agreement terms violates Rule for Courts-Martial 705(c)(1)(B), Manual for Courts-Martial, United States (1995 ed.) [hereinafter R.C.M.]. I agree.
The Government argues that R.C.M. 705(c)(1)(B) has not been violated, and, even if it was, the appellant waived the issue at trial, which precludes this court from reviewing the alleged error. Also, the Government argues that because the appellant understood the nature and the consequences of all of the agreement’s terms and voluntarily entered into the agreement, that the appellant should not be heard to complain now.
*557In ray opinion, this pretrial agreement is defective. It violates R.C.M. 705(c)(1)(B). Also, portions of the pre-trial agreement should be deemed void as a matter of law and public policy. A knowing and voluntary acceptance of a defective agreement does not change its objectionable nature. The agreement should not be approved by this court.
R.C.M. 705(c)(1)(B) indicates that “a term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: the right to counsel, the right to due process, ...” or several other rights. In this case, the appellant was denied the right to counsel. On its face, this case was a contested general court-martial. However, the trial defense counsel made no opening statement, and the pretrial agreement barred the appellant from offering evidence on the merits or calling witnesses on the merits. If there had been no pretrial agreement requiring such total inaction, we would not hesitate, I hope, to find that the appellant was denied his constitutional and statutory right to effective representation. I am not willing to approve of a pretrial agreement in which the parties contract for ineffective assistance of counsel in violation of R.C.M. 705(c)(1)(B).
This agreement also violates R.C.M. 705(e)(1)(B) because it deprives the appellant of his right to due process. There cannot be any more fundamental due process right at a contested general court-martial than the right of an accused to present evidence and call witnesses. By its terms, this agreement deprived the appellant of that opportunity.
Actually, this case was a contested general court-martial in name only. The appellant contends, and the Government concedes in its pleading, that this was a de facto guilty plea case. I agree and I am not satisfied with the trial judge’s inquiry regarding the rights of the appellant. The trial judge should have ascertained, on the record, that the appellant understood that his was not really a contested case. The trial judge should have ensured that the appellant was aware of the important rights he enjoyed because of his pleas of not guilty. Also, he should have ensured that the appellant was knowingly, consciously, and intelligently waiving those rights in this de facto guilty plea case. See R.C.M. 910(c); United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969). Such a procedure is subtly more extensive than the Bertelson inquiry conducted in this case because of the confessional stipulation of fact. United States v. Bertelson, 3 M.J. 314 (C.M.A.1977). Had the appellant actually pled guilty, I would have found that the trial judge failed to conduct a full providence inquiry. I find the same defect in this defacto guilty plea case.
I understand that the law in this area has evolved during the last 30 years. At one time, agreements were limited to pleas and sentence terms. Now, military appellate courts approve a much broader range of pretrial agreement terms. Also, I believe that the range of acceptable terms probably exceeds the limits of those listed in R.C.M. 705(c)(2). However, the pretrial agreement in the instant case goes too far. It became a substitute for the trial on the merits. The merits phase of the trial became nothing more than an empty ritual, a mere expedient for the sentencing phase of the trial. In short, the merits phase of the trial was a sham. Any pretrial agreement which requires such a sham should be void as a matter of law and public policy.
What the trial judge and my brethren approve, I would find contrary to public policy. In United States v. Cassity, 36 M.J. 759 (N.M.C.M.R.1992), this court indicated that “pretrial agreement provisions are contrary to public policy if they interfere with court-martial fact-finding, sentencing, or review functions or undermine public confidence in the integrity and fairness of the disciplinary process.” Id. at 762. I conclude that the public has a real interest in preserving a fair military justice system. In United States v. Keyes, 33 M.J. 567 (N.M.C.M.R.1991), our court stated this concept in stronger terms when addressing the viability of a different pretrial agreement provision. We indicated that an accused has no “right or authority to negotiate an agreement in his personal interest that subverts the Government’s or the public’s right to ensure the integrity of the military justice system.” Id. at 568. I believe that the appellant’s pretrial agreement undermines public confidence in our system *558of justice. This court should not approve of such an agreement.
Although they approve of the appellant’s pretrial agreement, my brethren indicate that they are disturbed by its use, which was apparently to avoid a complete Care inquiry. They caution counsel against this practice. Unfortunately, practitioners will see the bottom line, that this pretrial agreement has been approved by our court. The cautions expressed by the majority will be recognized as dicta, and likely will not be followed.
By approving this agreement, we have not improved our system of justice, done anything to increase public confidence, or enhanced the quality of representation and justice provided to our Marines and Sailors. We have done just the opposite. I would not approve the provisions of the pretrial agreement that require the appellant to present no evidence and call no witnesses on the merits. In my opinion, those terms violate R.C.M. 705(c)(1)(B) and should be deemed void and unenforceable as a matter of law and public policy.