(dissenting):
I dissent.
My brothers hold that owing to the availability of other remedies (appeal to higher authorities under Article 138, Uniform Code of Military Justice, 10 USC § 938, and, where appropriate, reassessment of sentence by the Court of Military Review or by this Court under the principles established in United States v Nelson, 18 USCMA 177, 39 CMR 177 (1969)) and recognizing that except in extreme cases courts do not interfere with the conduct of a prison, with the enforcement of its rules and regulations, or discipline, extraordinary relief seems inappropriate in this instance. I cannot agree with that view because I believe that it contravenes the plain import of this Court’s opinion in Reed v Ohman, 19 USCMA 110, 41 CMR 110 (1969).
Reed had been convicted by a general court-martial convened at Andrews Air Force Base. He petitioned this Court seeking release from confinement pending appellate review of the conviction or, alternatively, to prevent his transfer from the Fort Belvoir Center Confinement Facility, where he was then confined, to the United States Disciplinary Barracks, Fort Leavenworth, Kansas. We denied his petition on the ground that since nothing in his petition indicated that the established regime of the Disciplinary Barracks would result in unlawful conditions of confinement, it did not justify judicial interference with current efforts to maintain restraint.
This case is unlike Reed in that this accused has, in detail, set forth the conditions of his current confinement in the Disciplinary Barracks. These conditions can only be described as punitive. The Government’s response is more in the nature of an explanation rather than a denial. It appears therefrom that the accused is required to follow the regular procedures for all prisoners because to do otherwise would tax the facilities of the institution. Any other standard would result in the giving of preferential treatment to an adjudged prisoner-accused only because his sentence has not yet been executed. Even the staff judge advocate, who recommended to the convening authority that the accused’s request for deferment of sentence under Article 57(d), Code, supra, 10 USC § 857, be denied, did so on the ground that “[o]nce the presumption of innocence was destroyed by the findings of the court, I saw no reason to grant any preferential treatment based upon his rank or position.”1
The idea that a person, whose sentence has not yet been executed, is being given preferential treatment by having his sentence to confinement deferred under Article 57(d), Code, supra, is absurd. The function of the statute is to toll the service of the sentence which begins to run on the day announced by the court (Article 57(b), Code, supra) whether the accused is confined or not. Deferment of the sentence will stop that. When the sentence is finally ordered into execution, the time remaining must still be served and the accused can then be considered as a sentenced prisoner without any of the restrictions imposed by the operation of Article 71(c), Code, supra, 10 USC § 871.
I can readily appreciate the inherent difficulties encountered within a disciplinary institution when it must make separate provision for prisoners whose sentences have not been ordered into execution. However, this is the law of the land and all concerned with its administration must obey the law. Difficulty in complying therewith is no excuse. In my view, the adoption by the Congress of the provisions of Article 57(d), Code, supra, is the perfect answer to this problem. It should be viewed as an attempt not only to benefit one whose sentence might be *260reversed or ameliorated on appeal, but also as an effort to alleviate a situation, with regard to the handling of certain confinees, which undoubtedly is viewed by disciplinary authorities as overburdening and intolerable. Convening authorities should give serious consideration to this situation when passing on applications for deferment of service of sentence.
In Reed v Ohman, supra, at page 115; we said:
“. . . [T]he decision to restrain is reviewable for abuse of discretion. Levy v Resor, ... [17 USCMA 135, 37 CMR 399 (1967)]; United States v Howard, ... [2 USCMA 519, 10 CMR 17 (1953)].”
In my opinion, so, too, is the decision of the convening authority not to defer service of sentence to confinement under Article 57(d), Code, supra. Cf. United States v Jennings, 19 USCMA 88, 41 CMR 88 (1969), where we found an abuse in the pretrial confinement (Article 13) of that accused.
I cannot leave this question without expressing my concern over the manner in which the Government has replied to our order to show cause why a writ of habeas corpus, or other appropriate relief, should not be granted. In this, as in other cases, it has been the staff judge advocate or a correctional officer who, through counsel, has replied to the Court’s order. This, in my opinion, is not proper, procedure. It is-the convening authority - who, by the exercise of statutory authority, orders the accused confined and it is he alone who is being called upon to establish the legality of that confinement, not the staff judge advocate. The same explanation should be forthcoming from the commanding officer of the disciplinary barracks, in those cases wherein he was not also the convening authority, with reference to the terms of the confinement. The staff judge advocate is only the legal ad-visor and we lessen the majesty of the military judicial process when we accept an explanation from one other than the responsible judicial officer.
As noted above, my brothers base their holding, in part, on the fact that except in extreme cases courts do not interfere with the conduct of a prison, with the enforcement of its rules and regulations, or discipline. Childs v Pegelow, 321 F2d 487 (CA 4th Cir) (1963), certiorari denied, 376 US 932, 11 L Ed 2d 652, 84 S Ct 702 (1964). I agree with this position, and, with regard to military prisoners whose sentence to confinement has properly been ordered into execution, I would follow it unhesitatingly. That, however, is not the situation facing us in this petition. The confined military accused, whose sentence has not become final, occupies a unique position by virtue of the Uniform Code of Military Justice for which there is no civilian precedent. The ordinary civilian rule is not applicable to- these situations.
On February 10, 1970, the following self-explanatory document, was filed with this Court:
“1. On 20 November -1969,' the above captioned matter came on before the court for oral argument on a ‘Petition for Writ of Habeas Corpus, or in the Alternative Other Ap-' propriate Relief’. The matter was on that date taken under advisement by the court. No decision as of .this date has been rendered ,by the court.
“2. That since the .filing of this action and continuing ’ to 1 ' date Relator Ltc Dale, Has been subjected to increased debasement, harassment, and cruel, unusual -and entirely .inappropriate interference with his rights. In support 'thereof, Petition- - er shows to. the Coiirt that to the best of his knowledge and’ belief all of the practices of the • government coni • plained of in the petition herein'and heard by the court during oral argument herein have .been continued by the government and in ’.addition. thereto have been increased in their frequency and severity.' Petitioner believes relator' to have been un-. necessarily injured .at the hands' of government guard .personnel; that relator’s laundry has been on ocea*261sion withheld from him for as long as two weeks and that these and other acts of harassment etc. have been continued and have been increased as reprisal for the filing of this action. Petitioner is positively certain that following every consultation with his counsel relator is subjected to an exacting strip search, which means that relator is made to strip naked and is thoroughly examined to the extent of his scrotum being moved aside and inspected under and his anal orifice being manually examined. Relator’s counsel is a member of the bar of this and other courts and is a person of honor and integrety [sic] and cannot imagine what item or article might be so concealed during a consultation between counsel and client so as to require such an examination. Counsel can certainly say that not all of his officer-prisoner clients in the same status as relator are subjected to similar treatment. Counsel can further state that as a result of the severity of these strip search indignities relator has requested counsel to avoid personally consulting with him unless absolutely necessary. It appears to counsel that the attorney-client privileges and relationship has been unnecessarily and wrongfully interfered with by these acts of the government.
“3. These interferences and har-assments have been called to the attention of the officials of the United States Discplinary [sic] Barracks many times by relator with no apparent results and not even any hesitation in their continuance. There is no reason, therefore, to believe that at the present or within the foreseeable future there will be any improvement in the lot or circumstances of relator.
“4. That the relief prayed for herein is the only form of relief available to relator at this time, short of the relief prayed for in the original petition in this action.
“WHEREFORE, it is by petitioner for relator moved and prayed for to the court that the court grant and issue an order totally suspending during the pendency of this action the operation of the orders under which relator is now confined and either subjecting relator to deferment or bond or bail or to a less severe form of restraint than that which he is now suffering, or in the alternative petitioner moves the court for such other or further relief as may be deemed just and equitable in the premises by this honorable court.”
My brothers have voted to deny this-second motion for appropriate relief without argument. In view of the information set forth in the above-quoted motion, I would again direct the Government to show cause why the relief sought should not be granted.
Since I believe that the terms and' conditions of the accused’s confinement are more rigorous than required to insure his presence during appellate review (see Reed v Ohman, supra), I' would grant the relief requested. Inasmuch as the Government has not demonstrated that it is capable of confining-the accused in accordance with the law, I would order his release.
The accused was not confined prior to trial.