(dissenting):
I dissent.
Unfortunately the inevitable, but nonetheless undesirable, occurrence which I forsaw as a result of the majority opinion in United States v Albright, 9 USCMA 628, 26 CMR 408, has now come to pass. I would much prefer not having been prophetic, for I believe the Court errs to the detriment of military law by stripping a convening authority of his judicial power and disqualifying him from performing his review functions in a particular case simply because he has, in his official capacity as an officer exercising general court-martial jurisdiction, previously granted immunity to a Government witness in the case. The detriment of which I speak affects both the government and the accused. As to the former, the review of cases is complicated and delayed and, as to the latter, the prospects of clemency are decreased. If there is a chance for an accused to be given favorable consideration, the possibilities are diminished by having his record reviewed by an officer far removed from any personalized contact with him and unfamiliar with the disciplinary problems of the command. Those officers who do not have an opportunity to size up the accused are handicapped in their attempt to fit the punishment to the person, and they have a natural reluctance to return him to a command without the approval of the interested commander.
With those few comments, I pass on to the legal aspects of the problem. My views concerning the distinctive peculiarities inherent in the military judicial system and the duality of functions frequently imposed by Congress upon those charged with the administration of this system were set out at length in my dissenting opinion in the Albright case, supra. While they are cogent, it is unnecessary to repeat those views here. However, certain differentiating factors in the case at bar necessitate comment.
Traditionally, the right in the military to grant immunity from prosecution has rested in the hands of an authority competent to order trial. Originally it took the form of nolle prosequi of the accusation against one of the offenders, and I can trace the history of that power from at least 1893 until the present time. Much before then the same officer reviewed the record of trial, and it must always have been assumed that he would act fairly and impartially in both offices. Either Congress has been lax in permitting officers to operate in conflicting areas or it concluded those occupying position's of trust had the capacity to perform honestly their statutory functions in both fields. For my purpose, I accept the latter philosophy for Congress has considered the question of disqualifying convening authorities and has not yet seen fit to use the conditions present in this ease for that purpose. As a matter of fact — over the contrary recommendations of a number of well-informed witnesses — it purposely delegated to a convening authority the power to act in a number of areas where it appears he must alter his views to fit the role he is occupying, without regard to his prior action. One need only read some of the testimony before the Committees of Congress to understand Congress was *66well advised that a reviewing officer was being clothed with powers which required he have some mental resiliency to administer and adjudge dispassionately and properly. I believe the powers exercised in this case — if it can be said the commander’s grant of immunity is inconsistent with his subsequent review; — must be catalogued with those which Congress concluded were not so hostile as to require legislative interference with existing law, regulations, and customs of the service.
To grant immunity is purely an official act that falls upon a convening authority by virtue of his assignment. His position is substantially similar to that of judges in civilian courts who, in many jurisdictions, must approve or consent to grants of immunity before they become valid. See annotation: 18 Ann Cas 747. I do not know of any case, nor has my attention been called to one, where a judge was disqualified from hearing a case, imposing a sentence, or hearing a petition for new trial merely because he granted immunity to a joint offender.
To follow the reasoning of the majority opinion, one must ignore the purpose of the' grant and the prime interest of the law in the exposition of truth and the disposition of justice. The purpose of the grant is merely to remove the bar of self-incrimination which closes the mouth of one who is known to have some information relating to the offense. The interest of the law is to ascertain the truth. It is not necessary that a convening authority, to make those objectives attainable, have a fixed opinion on the veracity of a witness. On the contrary, he could not possibly make that determination until the person who received the grant had testified under oath, been cross-examined, and subjected to the tests of credibility and balanced against any witnesses testifying in opposite vein. It should be obvious that the witness starts under a cloud of unreliability, for he is himself a party to the crime and there is a natural tendency to reject the testimony of an admitted criminal. About all this case accomplishes is to discourage a commander from performing administrative duties which are calculated to permit the court-martial to ascertain all of the facts. The request for immunity merely discloses one source, from which evidence might be obtained, and the grant only opens the way to its production. The witness is not compelled to testify but, if he chooses to do so, he need not be concerned that the evidence tends to incriminate him. And, parenthetically, I might note that this is not a one-way gate which opens only for the prosecution. I have read records where an accused benefited by having a witness freed from prosecution to present favorable testimony for the defense.
For many years it has been accepted doctrine in American military jurisprudence that it is unfair to prosecute a person who, in order to assist the sovereign, or the accused, testifies against himself. Moreover, the right against self-incrimination is one of the constitutional guarantees afforded a witness and, in order for him to be fully protected by immunity, the grant must have its sources and sanction in the law. In military jurisprudence, the convening authority is the source of the grant. Daily newspapers of recent vintage inform me of the efforts of Congress to give legislative immunity to witnesses appearing before committees of both houses. Various states have enacted laws which permit grants of immunity. Surely, by exercising the power to grant immunity, the respective bodies, courts, and committees are not bound to accept the testimony of the witnesses. Removing the bar is a form of compulsion on the witness to take the stand, but it is not a stamp of verity on his testimony. That same reason should apply here, for if it does not, we will find ourselves disqualifying convening authorities because they order the taking of depositions by the Government and the subpoenaing of prosecution witnesses. Those, like grants of immunity, are expedients which permit the Government to produce evidence, and presumably the taking of a deposition or the production of a witness would not be requested unless the testimony was believed to be favorable to the prosecution. If we are to keep our concepts *67consistent, I wonder just where this decision of the Court will take us.
So there will be no mistake about the position I take, I call attention to the fact that there is no evidence in this record that the convening authority took any part in influencing the witness to testify other than by granting the immunity. See United States v Kennedy, 8 USCMA 251, 24 CMR 61. Obviously, under the law the request had to be presented to him for action. If, under those circumstances, as my associates state, “It is asking too much of him to determine the weight to be given this witness’s testimony since he granted the witness immunity in order to obtain his testimony,” I am in error. However, I leave to others a determination of whether I stand alone.