(dissenting):
This appeal presents the question of whether the accused was deprived of due process of law because he was denied the right to interview, before trial, agents of the Office of Special Investigations “unehaperoned” by either trial counsel or a senior agent.
Several members of the 686th Air Force Band, stationed at Weisbaden, Germany, were suspected of using marihuana. Among them was the accused. An investigation was initiated by the OSI. Special Agent Donald D. Sherrow obtained authority from the wing commander to search the quarters of the suspected bandsmen. A search was made of the accused’s room. The next day the accused gave Agent Herbert L. Hall a written statement in which he admitted smoking marihuana at various times between the Spring of 1963 and August 1963.
Charges of use and possession of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, were filed against the accused on September 25, 1963. Similar charges were brought against Airman Dominic A. Lombardi, Jr. Both groups of charges were referred to Captain Bernard A. Waxstein, Jr., for investigation under the provision of Article 32’ of the Uniform Code, supra, 10 USC § 832. At the investigation, Lombardi and the accused were represented by Captain Thomas M. French, a lawyer certified in accordance with Article 27 (b) of the Uniform Code, supra, 10 USC § 827. Captain French was requested as counsel by each accused. Sworn testimony was received from several agents who participated in the OSI investigation; and the testimony of other agents was expressly waived by defense counsel. At the end of the hearing, the investigating officer recommended that Lombardi and the accused be tried in common by general court-martial. The same recommendation was made by the staff judge advocate to the convening authority. These recommendations were followed by the convening authority.
The cases came on before a general court-martial on December 19.1 Lombardi was still represented by Captain French; the accused, however, was represented by Captain James E. Apple-gate, a qualified lawyer who had been appointed defense counsel in place of Captain French on December 17. Special Agent Sherrow was ' the Government’s first witness. When his testimony reached the point of his application to the wing commander for authority to search the quarters of the members of the band suspected of marihuana use, Captain Applegate objected “to any further testimony.” He contended the accused had “been deprived of the effective assistance - of counsel” because, before trial, he had been denied a private interview with the “OSI agent witnesses.” Captain French made the same objection on behalf of Lombardi. *264The law officer held an out-of-court hearing on the objections.
At the hearing it appeared that on December 17, Captain French, acting as defense counsel for both the accused and Lombardi, submitted a request to examine Sherrow, Hall, and four other agents “without the presence of a representative of the US Government.”2 On the same day, the OSI District Office, in response to the request, advised Captain French that the agents would be “available for interview,” but OSI directives required that “another OSI representative be present during all interviews.” Apparently, Captain French was unwilling to accept the condition of another agent’s presence. The next day, Captain Applegate was appointed defense counsel for the accused. He informally inquired of the OSI District Office whether he would be allowed an unchaperoned interview if he renewed the request. He was informed that if he made the request he would receive the same answer Captain French had received. He, too, declined to interview the witnesses before trial in the presence of another agent. .Nevertheless, Captain Applegate argued at trial that the refusal of a private interview with the agents was an “unbearable” police tactic, and a “basic . . . infringement” on the right of the accused to prepare for trial.
The directive upon which the local OSI relied in imposing the condition that another agent be present at the interview requested by defense counsel was promulgated by the Director of Special Investigations. Department of the Air Force. It was titled “Agent Relationship With Defense Counsel” and was issued as an OSI Command Letter on December 3, 1963. The letter is quoted in full in the principal opinion. In pertinent part, it referred to a “policy” to allow defense counsel, military or civilian, to interview special agents prior to formal courts-martial proceedings, such as the Article 32 investigation or the trial itself, and proceedings before administrative boards. The general policy of broad cooperation was, however, qualified by a direction that in “no instance will the agent being interviewed be unaccompanied.” The letter provided that appointed trial counsel would be present “[i]f possible” and that “at all stages of the interview” the district commander or a senior, experienced agent would be with the agent being interviewed. It further conferred upon the district commander authority to deny a request to interview an agent, if he deemed the interview would be merely a “ ‘fishing expedition’ ” or result in embarrassment to the agent or agency. The letter concluded with the reminder that the OSI would “continue to conduct impartial and unbiased investigations and cooperate with all involved” to the best of its ability and judgment.
The right of an accused to interview, privately, before trial, a prospective witness for the Government is an old and troublesome subject. Over the years it has engaged the attention of many courts; and conflicting decisions are recorded in the reports. See Hagan, “Interviewing Witnesses in Criminal Cases,” 28 Brooklyn Law Review 207 (1962). Both parties here recognize the conflicting positions that have been taken on the subject. Appellate defense counsel contend the “better opinion” is that the interview must be private. Oppositely, in one of the briefs filed on the issue, Government counsel insist that the “overwhelming weight of authority” sanctions the attendance of a third person at the interview. See Wigmore, Evidence, 3d ed, § 1850, footnote 9, at page 397. The majority accepts the accused’s contention. I disagree.
This Court has dealt previously with the general problem of communicating with witnesses before trial. We have indicated that if there were “good old days” sentiments which considered it unethical, or even criminal, for a defense lawyer to talk to the prosecution’s witnesses, those sentiments had no place in modern military practice. United States v Parker, 6 USCMA 75, 19 CMR *265201. See also Pulich, “Discovery in Criminal Cases: Procedures and Their Elements,” Criminal Law Seminar, 93, 98 (1961). Some months ago we decided United States v Aycock, 15 USCMA 158, 159, 35 CMR 130. There, the accused had been ordered by his company commander “ ‘not to contact’ ” designated persons “ ‘about any matters’ ” concerning charges then pending against him. We held the order was illegal because it deprived the accused of the opportunity to interview prospective witnesses in preparation for trial of the charges against him. Our conclusion, we observed, was consistent with substantial civilian opinion to the effect that the Government cannot impede or deprive an accused of the opportunity to interview prospective witnesses. The reason for the rule appears most directly in a question formulated by the Supreme Court of Delaware, as follows: “Of what avail is the defendant’s right to use compulsory process for the attendance of a witness [a constitutional guarantee] if the defendant may not discuss with a witness in advance, the facts within the witness’ knowledge?” Wisniewski v State, 1 Storey (51 Del) 84, 138 A2d 333, 338 (1957).
Information as to the probable testimony of a witness may be gleaned from a number of sources; but the most direct and generally reliable source is the witness himself. Reasonably, therefore, the pretrial interview with a prospective witness is important to effective realization of the right to “compulsory process for obtaining witnesses” in the accused’s favor. Constitution of the United States, Amendment VI. Until the full substance of the witness’ knowledge of the relevant facts is ascertained, it cannot safely be concluded that the witness will be in “favor” of, or “against,” the accused. Also, the Constitution, Amendment VI, requires that the accused be “confronted with the witnesses against him.” Every experienced trial lawyer knows that sound cross-examination rests upon the bedrock of pretrial preparation. While it may be unnecessary in some cases, and economically or physically impossible in others, effective preparation for trial includes the interview of all prospective witnesses, whether denominated Government, defense, or nonparty. An interview, however, need not be private to fulfill its purpose.
At trial, defense counsel conceded that in “certain cases,” it “probably” was appropriate for a third person to be present at an interview between a probable witness for the Government and defense counsel. See People v Mason, 301 Ill 370, 133 NE 767 (1921); Abbott, Criminal Trial Practice (4th ed, Viesselman rev), § 259a (1939). Indeed, in the case of a young child or a person of limited intelligence, a third person’s presence might safeguard against confusion or encourage the witness to speak. See Holladay v State, 130 Tex Crim 591, 95 SW2d 119 (1938). If it be conceded that a third person’s presence is legal and reasonable in some instances, then the point of our inquiry would seem to be narrowed to whether it was reasonable for a third person to be present at the requested interviews in this case. However, in view of the broader base of the appellate challenge, I pass over the trial concession to consider the problem for what it really is, namely, a matter of pretrial discovery of the testimony of a prospective adverse witness.
Ideally, a witness belongs to neither side. State v Papa, 32 RI 453, 80 Atl 12 (1911) ; Kardy v Shook, 237 Md 524, 207 A2d 83 (February 15, 1965). But practically, and in the case of a retained expert witness, perhaps actually (see Boynton v R. J. Reynolds Tobacco Co., 36 F Supp 593 (D Mass) (1941)), a witness expected to testify voluntarily for one party is that party’s witness. In fact, once the witness takes the stand he is so identified with the party calling him that he cannot, under ordinary circumstances, be impeached by that party. Manual for Courts-Martial, United States, 1951, paragraph 1535, at page 290; United States v Reid, 8 USCMA 4, 23 CMR 228. In the usual case, no difficulty is encountered in interviewing privately one’s own witness. It may reasonably be anticipated, however, that a potentially adverse witness or a potentially favorable but reluctant witness, *266may not want to talk unless he is compelled by legal process.
A prospective witness can refuse to be interviewed, privately or otherwise, by either the Government or the accused. Byrnes v United States, 327 F2d 825, 832 (CA 9th Cir) (1964); Kardy v Shook, supra. He cannot be compelled to speak to anyone, whether it be to a law enforcement agent, to Government counsel, or to the accused and his counsel, except when summoned, in proper form, before an officer or a tribunal empowered by law to require him to testify. Blackmer v United States, 284 US 421, 76 L ed 375, 52 S Ct 252, 255 (1932) ; Shotkin v Nelson, 146 F2d 402 (CA 10th Cir) (1944) ; United States v Chin Lim Mow, 12 FRD 433 (SD Cal) (1952); see also Article 135, Uniform Code, supra, 10 USC § 935. Appellate defense counsel concede these rights to the witness,3 but contend the witness should decide for himself whether he wants to be interviewed, and if he does, whether he will allow the interview only on condition that some named third person be present. See Byrnes v United States, supra. They say the contention is supported by the Manual for Courts-Martial provision that “[c]ounsel may properly interview any witness or prospective witness for the opposing side in any case without the consent of opposing counsel.” Manual for Courts-Martial, supra, paragraph 42c.
From what I have said earlier, it is apparent that the Manual provision does not establish - a rule for the military different from that prevailing in American courts generally. The Manual merely restates the rule that counsel can talk to potentially adverse witnesses without the consent of opposing counsel. See United States v Parker, supra, at page 87. To say that the consent of opposing counsel is not a condition precedent to the interview does not mean opposing counsel must be bai’red from the interview.
Modern practice emphasizes pretrial disclosure -of the probable facts. In criminal cases, the Government has been compelled to disclose more of its case than has the accused. In military practice, the names and addresses of Government witnesses must be endorsed on the charge sheet, and a copy thereof must be given to the accused. See Manual for Courts-Martial, supra, paragraphs 29, 44h, and Appendix 5. When charges are investigated under the provisions of Article 32, the accused is entitled to confront and cross-examine the available witnesses against him, and to examine the statement of every Government witness. Ibid., paragraphs 33i and 44h. No similar obligations are imposed upon the accused as to his prospective witnesses; nor is he required to disclose in advance of trial whether he intends to rely upon an affirmative defense, such as alibi or insanity. I do not regard these advantages as justifying secrecy in an area that has no sanction in law or logic.
Appellate defense counsel have advanced many reasons to indicate that the presence of neither trial counsel nor a senior OSI agent is necessary to protect confidential military information or other legitimate interests of the Government. The directive may indeed be unnecessary, but a lack of essentiality does not establish illegality or unreasonableness.
It will be recalled that at the time the interview was requested, the agents engaged in the investigation had already testified in person at the Article 32 investigation or had submitted sworn summaries of the substance of their probable testimony. Had the defense only been concerned about possible uncertainties in their testimony and had it only desired to clarify those points, a wholly public interview would have served its purpose as well as a private one. Yet both of the accused’s lawyers declined to interview the agents other than privately. Part of defense counsel’s argument at trial suggests that, in requesting the interview, he was not so much interested in additional information as he was in the hope that he might create a situation which he could use against these agents if they testified for the Government. Thus, he said:
. I think . . . [the law *267officer] has tried enough law suits to know that when a witness gets on the stand and on cross-examination you — you wouldn’t see me would you - — this at least gives the impression of secrecy and furtiveness on the part of the witness. I think . . . this directive is attempting ... to give the OSI its cake and let them eat it too. They will never be accused on cross-examination in the courtroom in front of the triers of the fact of being secretive or furtive, but they will never be able to be crossed up because if possible the trial — the appointed trial counsel should be present.”
Avoidance of the risk referred to by defense counsel is surely a legitimate, rather than an illaudable, objective. Other reasonable objectives come readily to mind. For example, if the agent is to be taken from his assigned task during regular duty hours to be interviewed by defense counsel, it is not unreasonable to provide some means to have the interview proceed expeditiously and along lines not patently irrelevant to the particular accused. Also, while even an inexperienced OSI agent who has participated in “working up” the case against the accused might perhaps not need special protection, in an interview with skilled defense counsel, who would naturally regard him as a hostile witness, it is not unreasonable for the agency to attempt to safeguard against confusion or misunderstanding. In any event, assuming the validity of the defense argument, that, on balance, the directive is unnecessary, unwise, and unfairly one-sided, the unavoidable fact is that the directive preserves the right to interview an agent. And, I am not persuaded that the presence of a third person would ineluctably lead the agent either to remain silent, or to falsify his testimony, to avoid possible recrimination by his superiors. Cf. United States v Crawford, 15 USCMA 31, 40, 35 CMR 3.
The judiciary has consistently recognized the right of an administrative agency to make reasonable regulations regarding the use of its own records, reports, and employees. Such regulations will not be allowed to interfere with, or impede, the administration of justice, but to the extent they can be given effect, without injury to a substantial right of the litigant, they are respected by the courts. Boske v Comingore, 177 US 459, 44 L ed 846, 20 S Ct 701 (1900); Universal Airline v Eastern Air Lines, 188 F2d 993, 999 (CA DC Cir) (1951).
We are dealing here with a purely preliminary matter. It is important to the judicial process, but it is not part of it. Also, we must not lose sight of the fact that even if the private interview is denied, the accused is not without relief as to other means of discovery. Congress has provided adequate measures to compel disclosure of the witness’ knowledge of the matters relative to the case. Unlike the situation in the civilian community, where the defense does not usually have available the witness’ testimony before the grand jury, or the defense is otherwise limited in ascertaining before trial the substance of the prospective witness’ testimony, in the military, the accused has other means at his disposal to obtain the information. If there is an Article 32 investigation, he is entitled not only to previous statements made by the witness, but he can call the witness for personal examination. At any time after the charges have been signed, and without regard to personal wishes of the witness, the accused may “for good cause” take the oral or written deposition of the witness. Article 49, Uniform Code of Military Justice, 10 USC § 849. Cf. Article of War 25, 10 USC (1946 ed) § 1496; Rule 15, Federal Rules of Criminal Procedure. On these occasions, trial counsel may be present. Why then should his presence at an informal interview with the witness be deemed reprehensible ? I see nothing in his presence, or in the presence of another person, at the informal interview which can possibly prejudice the defense in the preparation of its case.
Principle aside, I see no basis from which to conclude that the accused was prejudiced by the lack of an “unchaperoned” interview with the OSI agents. He knew all they knew about the case; and all they would probably testify to if called as witnesses. He *268had available the sworn testimony at the Article 32 investigation of some; and sworn statements of the substance of the proposed testimony of the others. He has not suggested a single avenue of inquiry not covered by these statements. I have already pointed out that the right to request a private interview with a witness is not a constitutional right; yet the principal opinion appears to accord it greater dignity and protection than a constitutional right, for a deprivation thereof does not entitle an accused to reversal of an otherwise valid conviction, if there is no possible risk of harm. See United States v Simpson, 15 USCMA 18, 22, 34 CMR 464.
Under the circumstances disclosed by the record of trial, in my opinion, the OSI directive defining the conditions of a defense interview with its agents did not deprive the accused of due process of law. I would affirm the decision of the board of review.
. Enloe was acquitted of the wrongful possession charge, but convicted of the wrongful use of marihuana offense, and sentenced to a bad-conduct discharge, confinement at hard labor for six months, and partial forfeitures for a like period.
. Trial counsel represented that to his knowledge Captain French had in fact examined Agent Sherrow on at least two occasions without “any chaperon.” Captain French admitted the interviews, but maintained they dealt with other persons whom he was representing in the same investigation.
. I need not decide whether these rights are qualified by special needs of the military service.