(concurring):
As the dissent points out, the Rules of this Court contemplate that an appeal to us from an adverse decision by the Court of Military Review on a petition for extraordinary relief will be filed by some party other than the Government. See Rules 3(b)(2), 15, 25, 26, Rules of Practice and Procedure, United States Court of Military Appeals, 4 M.J. XCVII, CIII, CXII, CXIII. This language of our Rules can be explained in either of two diametrically opposed ways: (a) It was assumed that the Government would use the certification procedure to bring cases to this Court from the Court of Military Review where extraordinary relief is involved; or (b) No means exists whereby the Government can obtain review in this Court of an adverse decision by the Court of Military Review on an extraordinary writ. Whatever our Rules provide — and regardless of the premise on which they are based — they may not in my view preclude the Government from exercising a power given to it by Congress.
*113Since we conclude that the Government is properly before us pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), we need not decide whether (1) the literal wording of our Rules can be stretched to authorize access to this Court by the Government by means of a petition for discretionary review in a case involving extraordinary relief; or (2) whether, if not our Rules could be redrafted to allow such access. Since the greater usually includes the lesser, I am inclined to the conclusion that — whatever our Rules may now be construed to provide — valid rules of this Court can be promulgated under Article 67(a)(1), UCMJ, 10 U.S.C. § 867(a)(1), which would allow the Government to petition this Court to review in its discretion an adverse decision by the Court of Military Review on an extraordinary writ. Admittedly, it can be argued that Congress contemplated that, if a Judge Advocate General believes that a case has an issue which merits review by this Court, then he should compel an answer by us through use of certified questions pursuant to Article 67(b)(2). However, it would seem equally consistent with the congressional intent for the Judge Advocate General also to be allowed to present an issue to this Court as to which we may at the outset decide whether, in our discretion, full scale review is warranted in the case then at hand. Certainly the trend in appellate courts — perhaps induced in part by heavy judicial workloads — is to move away from mandatory review towards granting the appellate courts some discretion to determine whether an issue should be decided in a particular case. Indeed, this Court has over the years construed the literal wording of Article 67(b)(2) in a way which permitted some leeway to leave questions unanswered that the Judge Advocate General had certified under Article 67(b)(2).1
I agree with the principal opinion that this case differs from Dettinger v. United States, 7 M.J. 216 (C.M.A.1979). Here, of course, the military judge was dealing with an accused’s statutory right to be provided by the Government with counsel of his choice, rather than with a right to be brought to trial within a prescribed period of time. As the principal opinion points out, dismissal of charges usually is not an appropriate remedy even for deprivation of the Sixth Amendment right to counsel— which is more fundamental than the statutory right of an accused to select a particular military attorney to represent him. Thus, in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), the Supreme Court reversed a decision by a Court of Appeals, which had ordered dismissal of an indictment to remedy an egregious violation of the defendant’s Sixth Amendment right to counsel. In light of this precedent, I conclude that, in a case like the one at bar, the trial judge had no authority to dismiss the charges as the remedy for a supposed abuse of a commander’s discretion in failing to provide the requested military counsel.2
Of course, the trial judge should allow the parties to present on the record for future appellate review all the circumstances they consider relevant to a possible abuse of discretion by the commander who has declined to make available the requested military defense counsel. Moreover, the judge can make findings as to any disputed facts. Thereafter, if an abuse of discretion has occurred in the denial of the accused’s request and if the accused is convicted, his remedy will lie in seeking a rehearing upon direct appellate review.
. Thus, we have declined to answer questions which were moot or only advisory. See, e. g., United States v. McAnally, 10 M.J. 270 (C.M.A. 1981); United States v. Clay, 10 M.J. 269 (C.M. A.1981).
. However, the judge is entitled to grant reasonable continuances until requested counsel can be made available, if the unavailability results from temporary conditions or if the decision of nonavailability is in the process of review in command channels.