(dissenting):
I dissent to the dismissal of this petition. I would issue an order requiring the Government to show cause why the petitioners should not be released from pretriál confinement.
Neither the Uniform Code of Military Justice nor the Manual for Courts-Martial, United States, 1969 (Revised edition), invest a military judge with specific authority to consider a petition for writ of habeas corpus. Inasmuch as courts-martial, while authorized by legislative enactment, are established by order of military commanders, it may be argued that these courts are not courts established by act of Congress and the officers presiding • thereat are not invested with extraordinary judicial powers. But see paragraph 69, "MOTIONS TO GRANT APPROPRIATE *94RELIEF,” and paragraph 57, “INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES,” Manual, supra; We need not now decide this question for prior decisions of this Court have established our power to grant this reiief under the “All Writs Act.” 28 USC § 1651. Levy v Resor, 17 USCMA 135, 37 CMR 399 (1967). See also United States v Frischholz, 16 USCMA 150, 36 CMR 306 (1966); Gale v United States, 17 USCMA 40, 37 CMR 340 (1967). Cf. Henderson v Wondolowski, 21 USCMA 63, 64, 44 CMR 117, 118 (1971), where we expressed at footnote 1, “no opinion respecting the applicability of 28 USC § 1651 (a) to Courts of . Military Review.”
The petitioners aver that their challenge to the jurisdiction of the court-martial was overruled at an Article 39(a) hearing before the military judge. Judge Quinn contends that it cannot be determined from the petition whether the issue of the legality of the petitioners’ pretrial confinement was litigated at that hearing. In any event, he is of the opinion that this matter “may more appropriately be presented to and resolved by the military judge of the special court-martial to which charges have been referred.” Under the circumstances of this case, I disagree with this view.
'The vital purposes of the writ of habeas corpus are to “obtain immediate reliefxfrom illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody.” 39 Am Jur 2d, Habeas Corpus § 1 (1968) (emphasis supplied). To require petitioners to wait until trial to contest the question of the legality of their pretrial confinement would subvert the very purpose of the writ. Post-conviction relief would be meaningless. As this Court stated in Gale v United States, 17 USCMA 40, 43, 37 CMR 304, 307 (1967):
“We conclude, therefore, that, in an appropriate case, this Court clearly possesses the power to grant relief to an accused prior to the completion of court-martial proceedings against him. To hold otherwise would mean that, in every instance and despite the appearance of prejudicial and oppressive measures, he would have to pursue the lengthy trial of appellate review — perhaps even serving a long term of confinement — before securing ultimate relief. We cannot believe Congress, in revolutionizing military justice and creating for the first time in the armed services a supreme civilian court in the image of the normal Federal judicial system, intended it not to exercise power to grant relief on an extraordinary basis, when the circumstances so require.”
As I read Levy v Resor, supra, the decision of the convening authority to order pretrial confinement will be reversed only upon a showing of an abuse of discretion. Petitioners contend that they are being held in confinement in violation of Article 10, Code, supra, 10 USC § 810, and related military documents. On its face the petition is not frivolous or taken for delay, and raises questions which, in my opinion, demand explanation.
If the military judge has the power to grant the requested relief, under his authority to consider motions for appropriate relief (paragraph 69, Manual, supra) as Judge Quinn indicates, it is incumbent upon this Court now to so decide. However, in view of “the confinement already served, I believe that this Court should proceed to the heart of the issue and direct the Government to show cause why a writ of habeas corpus should not issue in this case.