(concurring in the result) :
I concur in the result.
I concur in the result but, because there are several unsound principles of law announced by my associates, I prefer to record my opposition to their becoming part of military law. An extended discussion is not necessary as a short reference will highlight my three areas of departure.
First, I would not require the Government to assume the burden of obtaining security clearance for counsel. To place responsibility there is similar to requiring a sovereign state or the Government to assume the task of qualifying lawyers for admission to practice in their courts. In my view, clearance in those few instances when classified materials must be used imposes reciprocal obligations on the parties, but the duty to move first and carry the major portion of the load falls on counsel. Obviously he cannot rule on his own application and, once he has initiated the proceedings and furnished the required data, the responsibility to carry on is squarely on the back of the Government, as is the duty to notify counsel when clearance has been granted or denied. However, as a condition precedent to the performance of the Government’s obligation, the lawyer must collect, compile, and furnish the Government with the information upon which to base a decision. Once counsel has done that, he can do little more, for the power to control the ultimate decision is vested in the Government and it should subordinate the time of hearing to the time of clearing counsel to appear. In the event defense counsel *127refuses to initiate a request with its information base, or becomes adamant, dilatory, or otherwise seeks to delay the judicial processes, the Government should be permitted to proceed.
Second, I disagree with the concept that restrictions reasonably calculated to protect classified information cannot be imposed by the military services. In military forums, and perhaps in civilian courts, if secret information must be disclosed in the proceedings, the Government has the right to impose reasonable regulations to prevent the possibility of disloyal persons obtaining classified information involving national security under the guise of representing an accused. In Jencks v United States, 353 US —, decided June 3, 1957, the Supreme Court affirmed the principle that the protection of vital national interests may militate against public disclosure of documents in the Government’s possession. It is no answer to say that the Government can abandon its prosecution, for the choice of one opposed to our form of Government as an advocate in a case involving the national welfare is not an acceptable method of defeating prosecution. Nothing any Federal court has said, so far as I know, impinges on that principle, and the quotation from United States v Andolschek, 142 F2d 503 (1944), found in the Court’s opinion, does not touch remotely on this subject. In keeping the rights of the Government in balance with those of an accused, it just appears to me that there are sufficient lawyers in this country who can meet the required security tests that an accused will not be denied a substantial right if he is limited to that class. Obviously my arguments on this phase of the controversy are in the abstract and have nothing to do with counsel in this case. The lawyer selected was an honored member of the bar, a reserve officer who had been president of the Counter Intelligence Corps Association. He readily met all security requirements and was, in fact, given a security clearance.
Third, I approach the question of waiver from a different viewpoint than my associates. Defense counsel was in a field in which he was eminently qualified. He knew confidential information would be disclosed and that a security clearance was necessary. As a matter of fact, he had initiated the necessary papers, albeit he procrastinated for a short period. He had ample warning of the time of hearing, yet he failed to appear. When that time arrived and information on clearance had not been received, he was not present and his associated military counsel failed to move for a continuance. Ordinarily, if an attorney fails to appear at the appointed time and place for hearing, or to have someone there with instructions to protect his rights, it requires a strong showing to relieve him from default. There is a positive duty placed upon counsel to be present in person when a trial is scheduled unless other prior arrangements have been made and, in this instance, a telephone call would have sufficed, for military counsel was available and he could have presented a motion for continuance based on the delay in clearance. However, defense counsel was not alone to blame as the Government took a cavalier view of his right to represent the accused and its agents acted arbitrarily in the treatment of the request for clearance. The convening authority seems to have adopted an attitude that when he set the time for the pretrial hearing, defense counsel was obligated to either have clearance or be disqualified. Of course, that is a capricious method of operation, particularly when his headquarters had some responsibility to assist counsel in qualifying.
Perhaps the most important factor militating against waiver arises from the following: This pretrial hearing seems to have been carried on in a peculiar sort of manner. Although I must confess the record leaves me somewhat uncertain, if I correctly understand ■ the method of operation used, because the crime involved a member of the Counter Intelligence Corps and the identity of its operators must be kept undisclosed, the pretrial hearing consisted of an officer of the Corps collecting affidavits of other members and *128other witnesses. The statements were then assembled, and those which had been declassified were offered to military defense counsel for his inspection. That appears to have been the pretrial hearing. If I am correct in that conclusion, then I fail to see any advantage of civilian counsel being present at the hearing, for the witnesses would not have been available for cross-examination. One of the cardinal principles underlying the holding of a pretrial hearing is to afford the accused that privilege prior to the time he must stand trial. Sending a Government agent across the country to collect ex parte affidavits is not a substantial compliance with the rights guaranteed by the Code. Apparently in this case, had civilian defense counsel appeared, he would have been handed a sheaf of papers for informative reading as the important witnesses were some 150 miles removed from the scene of the alleged pretrial hearing. His waiver, therefore, could hardly reach his client’s right to a hearing.
One matter which repeatedly sticks its head up in general court-martial records is the belief that, because strict compliance with Article 32 is not jurisdictional, it may be carried on in a haphazard manner or, for all practical purposes, utterly abandoned. Sooner or later the military services must realize that this process is the military counterpart of a civilian preliminary hearing, and it is judicial in nature and scope. At the time of the hearing, the accused is entitled to counsel if he so requests, and he should be informed to that effect. Furthermore, he should be advised that he is entitled to cross-examine the witnesses and, if he desires to exercise that right, with or without counsel, he should be permitted to do so. I need hardly say - that advising him of his right is worthless if the hearing is not to involve the presence of witnesses. If an1 accused does not want a full-dress hearing, then the record should disclose that he has requested affirmatively to dispense with that preliminary step. Absent that request, witnesses must be produced for examination and cross-examination. Now, I do not mean to say that when a hearing is held, all witnesses to be used at trial need be called by the Government, but those witnesses who furnish the evidence upon which the investigating officer makes his recommendation must be present if desired by the accused. Furthermore, the defense should be furnished the names of those who might be called subsequently. If that is not done, then indeed a pretrial hearing is a hollow gesture.
Summed up, the preliminary handling of this case was either so lacking in the fundamentals of fairness or so confused because of the difficulties incident to, handling confidential testimony, that charging either side with a large share of responsibility would be unjust and unfair. Under those circumstances, the doctrine of waiver ought not to be imposed, particularly when the issue was raised prior to the trial of the accused. In that connection, it seems to me that when an accused makes a motion for appropriate relief based on infirmities in the pretrial hearing, if there is some substance to his contention, the deficiencies should be corrected by giving him a new hearing before going to all of the trouble and expense incident to subsequent proceedings.
That leaves for disposition the question of prejudice. I have no difficulty in finding it present in substantial quantity. There is a distinct advantage in having a dress rehearsal, and Congress has given that privilege to an accused. When it is taken away, among other things, the opportunity to probe for weaknesses in the testimony of witnesses is denied; the probability of developing leads for witnesses who may be of assistance to the defense is decreased; and, the contingency of reducing the crime to one lesser than the one alleged is defeated. In this particular instance, the accused was denied at least the first two, and that was prejudicial to his defense.