(concurring in the result):
In my dissents in Porter v. Richardson, 50 C.M.R. 910 (1975), and Phillippy v. McLucas, 50 C.M.R. 915 (1975), I explained my reasons for adhering to a long line of eases in this Court which held that an accused “ ‘who, prior to trial, believes his confinement is improper for any reason must pursue the remedy provided by Article 138.’ Tuttle v. Commanding Officer, 21 U.S.C.M.A. 229, 230, 45 C.M.R. 3, 4 (1972).” As to the impact of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), upon the military practice in regard to confinement and the authority of a military judge, under existing law, to order an accused’s release from pretrial confinement, my views are contrary to those of the majority. I stated my reasons at length in Porter and Phillippy and, therefore, think it sufficient here to set out only a few excerpts from my Porter opinion:
In Gerstein, the Supreme Court expressly held that an adversary hearing [to determine probable cause to confine before trial] was not required. It observed that “traditionally . . . [the matter was considered] in a nonadversary proceeding on hearsay and written testimony” and confrontation, cross-examination, and counsel were not constitutionally required. 420 U.S. at 120 [, 95 S.Ct. 854].
What jurisdiction . . . does a court-martial or a military judge have to change or eliminate the restraint imposed by proper authority upon an accused charged with a violation of the Uniform Code?
*273Commenting on proposals to reform the courts-martial system beyond the changes effected by the Military Justice Act of 1968, one of the leading commentators on the military system, Professor Robinson O. Everett, has suggested that Congress might “enact enabling legislation” to authorize “use of military magistrates in any decision to release an accused from pretrial confinement.” 2
In our 1972 Annual Report to Congress, we described “[responsibility for pretrial confinement” as a “command function.”3
Both statements merely summarize the principle that, currently, whether or not an accused should be in confinement or under other restraint before trial is not a matter within the jurisdiction of a court-martial.
Federal civilian law grants a defendant the right to appeal a magistrate’s decision to retain him in pretrial confinement to the “court having original jurisdiction over the offense.” 18 U.S.C. § 3147. Military law also grants the right to review the decision to impose pretrial restraint, but not by a court-martial. In fact, the Manual for Courts-Martial prohibits a court-martial from interceding in the matter except to preserve the accused’s right to be present at all sessions of the court. Thus, as provided by paragraphs 21c and 22 of the Manual, a court-martial has no control over the nature of arrest or other status of restraint of a prisoner except as regards his custody in its presence, and the proper authority to release an accused from confinement in a military confinement facility is the commanding officer to whose command that facility is subject. In cases decided after the Military Justice Act of 1968, the Court left no doubt that the act’s redesignation of the law officer as military judge and the enlargement of his powers did not affect existing law as to release of an accused from pretrial confinement.
Whether an accused should or should not be in pretrial confinement is wholly unrelated to the question of his guilt and punishment. As the Supreme Court recently reaffirmed, illegal pretrial detention cannot affect a conviction. Gerstein v. Pugh, supra at 119 [, 95 S.Ct. 854]. Consequently, the propriety of pretrial confinement is an altogether different question from the conditions of confinement and the consequences of those conditions. The latter may improperly affect the accused’s capability to prepare for trial, the admissibility of evidence obtained from him while in confinement, or otherwise amount to a denial of due process. [Citations omitted.] These issues are appropriate for presentation to a trial court; but the question of whether an accused should be released from confinement is not.
As I perceive no merit in the petition for extraordinary relief, I agree with the majority that it must be denied.
Everett, Military Justice in the Wake of Parker v. Levy, 67 Military L.Rev. 1, 15, 16 (1975).
Annual Report of the US Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of Transportation, 1972, at 6.