(dissenting) :
In my opinion the Court’s action cannot accurately be described as being in aid of this Court’s jurisdiction or potential jurisdiction. See Collier v United States, 19 USCMA 511, 42 CMR 113 (1970), dissenting opinion. The paradoxical result here is that in attempting to aid its jurisdiction, the Court stops proceedings that could lead to a general court-martial, the sentence limits of which are more likely to result in a *444case of which this Court would ultimately have jurisdiction, and permits proceedings by a special court-martial, the sentence limits of which are less likely to produce a case to which this Court’s jurisdiction would attach. Without any action by this Court, the charges against the petitioner may be abandoned after the Article 32 investigation.
Congress simply has not empowered this Court to vindicate all constitutional or statutory rights of a member of the armed forces at all places and in all circumstances. Just as Congress has not conferred on Article III courts all the jurisdiction that the Constitution permits, Congress has not conferred on this Court all the power that might be given us. Since an important part of our function is to assure that officials administering military justice act within the limits of their authority, we ought to be certain that our actions are within the limits of our own charter.
Beyond the issue of jurisdiction, it seems to me that the principal opinion goes beyond existing law. After a court is convened, the withdrawal of charges from one court and referral of them to another requires good cause. United States v Williams, 11 USCMA 459, 29 CMR 275 (1960); paragraph 56, Manual for Courts-Martial, United States, 1969 (Revised edition). But in this case the court has not been convened and thus the convening authority presumably was acting within his power. Cf. United States v Lord, 13 USCMA 78, 32 CMR 78 (1962).
If the accused is being subjected to procedures looking toward a general court-martial only because he desired special court-martial witnesses who had already been transferred, any such action is reprehensible. In this connection, the attempted explanation about why the allegations of complicity by the guards should be pursued in an Article 32 investigation of the accused’s offense may be less than overpowering in its persuasiveness. But this issue can be developed by the defense at the Article 32 investigation or at the general court-martial, if one results. After this Court’s emphasis on the importance of confronting witnesses in evaluating their credibility, I am surprised by the willingness to resolve a factual issue on nothing more than a petition and the Government’s response to the Court’s show cause order. This is another illustration of the normal impracticality of initiating action on extraordinary writs in the highest court within a system. When Congress intends for extraordinary relief to be granted in cases of this type, I believe it will legislate a system under which hearings can be conducted and witnesses produced for a factual determination that would be reviewable by the Courts of Military Review or this Court, or both.
I believe the Court’s action in ordering the Government to show cause was improvident and that any harm the accused suffered should be reviewed in the normal course of the appellate process.