(dissenting):
I
My sources for interpreting Article 67(b)(2), Uniform Code of Military Justice, *11410 U.S.C. § 867(b)(2), are Hearings Before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., on H.R. 2498 (1949), and similar hearings in the United States Senate. As pointed out by the majority, an initial question to be decided is whether this case is properly before the Court under this statutory provision. This provision states that we shall review
all cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court of Military Appeals for review.
The above sources persuade me that Congress’ purpose in enacting this provision was to bring about uniformity among several panels within the same Court of Mili-, tary Review or between two divergent opinions from different Courts of Military Review. United States v. Gutierrez, No. 38,972, 11 M.J. 122 (C.M.A.1981); United States v. Monett, 16 U.S.C.M.A. 179, 36 C.M.R. 335 (1966). The historic use made of the certified question belies my thinking. Its use has primarily been an appeal for the Government.1 E. g. United States v. Leslie, No. 39,148, 11 M.J. 131 (C.M.A.1981) (Fletcher, J., dissenting); Dettinger v. United States, 7 M.J. 216 (C.M.A.1979).
The majority would extend this general application of Article 67(b)(2) to writs practice. I do not approve of its general use as an appeal for the Government from unfavorable decisions of the Court of Military Review during the normal appellate process. Accordingly, I would not extend it to writs practice unless the necessity arises by reason of conflict in Court of Military Review decisions. Such is not the case here.
This matter is also before this Court by order of a majority of this Court allowing the Government to file a petition for review of an adverse decision of the Court of Military Review. Rule 3(b)(2), Rules of Practice and Procedure, United States Court of Military Appeals, 4 M.J. XCVII. I believe this rule must be viewed in the context of our other rules. See Rule 15(d), id. at CIII. In particular, certain sections of Rule 25, id. at CXIII, indicate that this rule was not intended to provide an appeal for the Government:
(b) Service on Judge Advocate General. Immediately on receipt of any such petition, the Clerk shall forward a copy of the petition to The Judge Advocate General of the service of which the petitioner is or was a member.
(c) Briefs. Each petition for extraordinary relief shall be accompanied by a brief in support of the petition, unless it is filed in propria persona. The Court may issue a show cause order in which event the Government shall file an Answer. The petitioner may file a Reply to the Answer.
(d) Initial Action by the Court. The Court may, as the circumstances require, dismiss or deny the petition, order the respondent to show cause and file an Answer within a time specified, or take whatever other action is deemed appropriate. The Court also may direct the Judge Advocate General of the petitioner’s service to furnish counsel to represent him and the respondent.
(Emphasis added.)
It is apparent from a reading of these three rules that this Court intended an appeal to it from an adverse decision of a Court of Military Review on an extraordinary writ be made by some party other than the Government.
I would hold that the Government has no right to be here either under Article 67(b)(2), or the rules of this Court. The right of the Government to appeal is solely within the authority of Congress. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967); 9 Moore’s Federal Practice § 204.07 (2d ed.1980).
II
Since my Brother Judges have concluded that the Government can come before this *115Court in this manner, the next question is whether it is proper to hear them in the present case. I have examined the particular questions of the Judge Advocate General2 and Appellate Government Counsel.3 The premise of these questions is that the Navy Court of Military Review found that Judge Redding applied an incorrect standard of law in making his ruling. I do not find the lower court’s decision reached this conclusion. In any event, I do not believe that an exercise in semantics by the Government is good cause for expanding the extraordinary writ practice in military courts. See generally Will v. United States, supra.
Supervisory mandamus in the military justice system is limited to those cases where a military judge acts beyond authority given him by statute, judicial decision, or regulation. Dettinger v. United States, supra. It may not be used to control the decision of a trial judge. A majority of this Court recently said:
At the beginning of this opinion, we indicated that the office of the extraordinary writ is not to control the decision of the trial judge. On the facts of record, another judge might, perhaps, reach a different conclusion as to the unreasonableness of the delay, and as to the corrective action required. However, no violation of statute or decisional law or any provision of the Air Force Manual appears in the actions taken by the respective trial judges in these cases. Consequently, no grounds exist for extraordinary relief from those decisions.
Dettinger v. United States, supra at 224 (Emphasis added.)
Here, there is no claim that the military judge had no authority to decide the question of the availability of individual military counsel.4 Instead, the argument made by the Government is that the military judge had no authority to make a ruling on this question based on an incorrect standard of law.
Such an argument I find irrelevant to the present case. The Navy Court of Military Review found that Judge Redding’s erroneous decision was a result of his misapplication of the proper standard for review of abuse of discretion. See Will v. United States, supra at 103, 88 S.Ct. at 278. In any event, I would not open the floodgates for extraordinary writs to this Court or the Courts of Military Review in such unclear and disputable circumstances. Id. at 96, 88 S.Ct. at 274.
Ill
Proceeding to the merits of the majority opinion, I first note that it ignores the *116specific questions of the Judge Advocate General and Appellate Counsel. Besides this, it is based on a factual assumption which is inaccurate and which fatally flaws its rationale. Finally, and more importantly, the opinion wreaks considerable havoc within the very foundations of our military justice system.
My reading of the majority opinion reveals that this Court has ruled that the United States Navy Court of Military Review erred in United States v. Redding, 8 M.J. 719 (C.M.A.1979). In particular, the lower court was wrong when it concluded that it had no authority to grant extraordinary relief to the Government in the present case. This ruling rests on the legal conclusion “that a [military] judge has no authority [in any case] to dismiss charges referred to trial, or otherwise prevent further proceedings in the case, because he concludes that the command determination of nonavailability is so wrong as to constitute an abuse of discretion.” 11 M.J. 112. Cf. United States v. Mitchell, 15 U.S. C.M.A. 516, 36 C.M.R. 14 (1965), and United States v. Mickel, 9 U.S.C.M.A. 324, 26 C.M.R. 104 (1958). The majority assumes that this occurred factually in the present case. Such an assumption belies the facts of this case and obfuscates the real issue at stake on this appeal.
In the Appendix to this opinion, I have provided a chronology as to the important events in this case. It is clear that Captain Redding, the trial judge, ruled on May 4, 1979, that the drastic remedy of dismissal was not appropriate in this case simply because Captain Clark was not made available to represent Seaman Pickens as he ordered.5 Accordingly, there was no dismissal on this ground in the present case. The trial judge has taken two other actions since that time. On May 4, 1979, he ordered that proceedings in the case be abated and removed from the trial docket with the option of either party or the Court on its own initiative to reopen the case for consideration of new matters. On July 15, 1980 (over one year later), after reopening the court-martial to entertain a demand for speedy trial by Seaman Pickens, he ordered the Government to show cause on August 4,1980, why the charges should not be dismissed. In my opinion neither of these orders of the trial judge effectively precludes prosecution of Seaman Pickens or is tantamount to a final disposition of the case as assumed by the majority opinion.
Turning to the abatement order of the trial judge, I note that he took such action on May 4,1979, without objection from trial counsel and at his suggestion. Trial counsel defined abatement as “a temporary suspension of further proceedings in the suit because of want of proper parties” in his answer to the April 26, 1979, show cause order of the military judge. Moreover, the record of trial states:
MJ: This case will be removed from the trial docket of this Court. Either counsel will have the opportunity to petition this Court to reset this case at some future time if they have any matters which they feel should be presented to this Court and which are necessary for determination by this Court, including the setting of a trial date or dismissal of the charges if the counsel feel that is appropriate in the future.
Does either counsel have anything further?
ATC: No, Your Honor. I would only ask that — May the Government assume that essentially the terms of the abatement are such that the abatement might reasonably be expected to terminate if the Government indeed produces Captain Clark, that is to say, the *117abatement would continue unless and until either Captain Clark is produced or for other reasons the charge is dismissed?
MJ: Well, those would seem to be the only conditions that come readily to mind, Counsel, but I’m not willing to limit either counsel in presenting matters to this Court for further consideration.
On May 11, 1979, trial counsel requested that the military judge reverse his ruling and allow the case to proceed. He noted that his communications with Captain Clark’s command indicate his situation of availability “seems to be getting worse, and not better.” The message from General Barker on May 11,1979, stated that Captain Clark “will not be available] in June or at any time in the forseeable future.” The majority of this Court found, as asserted by trial counsel, that the abatement order operated in fact as an effective curtailment and permanent forestalling of the government’s right to prosecute this case. I join the United States Navy Court of Military Review in rejecting this argument. See United States v. Redding, supra.
Article 40, UCMJ, 10 U.S.C. § 840, provides that a “military judge . .. may, ..., grant a continuance to any party for such time, and as often, as may appear to be just.” See para. 58b, Manual for Courts-Martial, United States, 1969 (Revised edition). In view of his ruling on the question of Captain Clark’s availability, it was reasonable for the military judge to resolve this stand-off with General Barker by means of a continuance of the proceedings. See Article 39(a)(1), UCMJ, 10 U.S.C. § 839(a)(1). The Government was still provided ample opportunity to continue its prosecution of Seaman Pickens. First, with the additional times provided by the military judge, the convening authority, General Barker, and the Judge Advocate General of the Navy (see Article 6(a), UCMJ, 10 U.S.C. § 806(a)), could make additional efforts to comply with the trial judge’s ruling. If they were successful, this matter could be brought to the attention of the military judge and the trial could proceed. Second, with the passage of time, Captain Clark’s employment situation might have changed so as to convince General Barker that this counsel could be made available to defend Seaman Pickens. No serious argument can be made that Captain Clark never would be reasonably available to represent the accused. Finally, Seaman Pickens may decide to forego the representation of Captain Clark. In view of these alternatives left open to the Government, it is not correct to say that Judge Redding’s abatement order was tantamount to a final disposition of the case. Moreover, I believe it is contrary to the Code to deny him the power to control the proceedings in this manner at the trial level.
I do not have the record of trial before me which evidences the proceedings in this case on July 15, 1980. The Government in its brief and in a message attached thereto stated that a demand for speedy trial was made in the case. I presume that Seaman Pickens made this request. In any event, the military judge having continued this case for over 14 months, ordered the Government to show cause why the charges should not be dismissed. In my mind, such a ruling is also not tantamount to final disposition of this case.
The hearing to be held on August 4,1980, was directed toward the issue of whether the accused Pickens had been denied a speedy trial. See Articles 10 and 33, UCMJ, 10 U.S.C. §§ 810 and 833, respectively. See also U.S.Const. amend. VI. The appellant’s confinement during this period was a result of his earlier court-martial sentence. Cf. United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). Under such circumstances, dismissal is not automatic simply because of the length of the delay. In any event, other factors normally considered under Articles 10 or 33 (United States v. Marshall, 22 U.S.C.M.A. 431, 47 C.M.R. 409 (1973)), or the sixth amendment (Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2191-2192, 33 L.Ed.2d 101 (1972)), would have to be developed at the hearing and *118considered by the military judge before dismissal could be adjudged. In any event, dismissal would not simply be on the basis of the denial of individual military counsel nor would it be beyond the judge’s authority. See Dettinger v. United States, supra.
Turning now to the import of the majority opinion, I believe it reduces the military judge in most instances to a court reporter without power or authority to insure compliance with his judicial orders. Unless the authority to dismiss the case is provided as a matter of statutory, decisional or regulatory law for an error perceived by the military judge at trial, the majority opinion provides him no option but to make a record and refer the matter for later consideration by an appellate court. The court-martial will continue uncorrected, respect for the role of the military judge will be eroded, and the accused must forego his rights to avoid a finding of no prejudice at a later date.
Article 26, UCMJ, 10 U.S.C. § 826, provides that the “military judge [will] preside over each open session of the court-martial to which he has been detailed.” (Emphasis added.) More importantly, Article 39(a)(1) specifically provides that a military judge may call the court into session for purposes of “hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues.” (Emphasis added.) These congressional enactments to my mind do not anticipate that the military judge shall stand powerless in the face of the deliberate refusal of military authorities to comply with his decisions and rulings.6
I cannot and will not join in the majority’s judicial emasculation of our military justice system.
APPENDIX
CHRONOLOGY
June 23,1978: Seaman Pickens convicted at general court-martial and placed in confinement. (CHL 21 months).
November 18,1978: Seaman Pickens allegedly escapes from confinement and allegedly deserts.
January 5,1979: Seaman Pickens allegedly apprehended.
March 6,1979: Charges of escape from confinement and desertion referred to general court-martial by Commandant 11th Naval District (San Diego).
March 19,1979: Seaman Pickens’ request for Captain Clark as Individual Military Counsel under Article 38(b), UCMJ, transmitted by message to CG, Camp Lejeune. Expected length of trial is 3 days.
March 20,1979: Request denied by General Barker, CG, Camp Lejeune, N. C.; see para. 48b, Manual. (By message)
April 9,1979: Article 39(a) session of court-martial opened by Captain Redding, military judge, to arraign Seaman Pickens.
*119Detailed defense counsel, Lieutenant Solomon, makes written and oral motion for appropriate relief.
He asserts that Captain Clark was reasonably available to defend Pickens as individual military counsel under Article 38(b), UCMJ.
He requests that military judge-
1. declare Captain Clark reasonably available
2. order Captain Clark to defend Pickens
3. or that charges be dismissed
4. or that proceedings be abated (R. 8)
Defense requests General Barker be subpoenaed in support of his motion. Military judge requests defense counsel to prepare summary of expected testimony. Court adjourned.
(1305) Court Reopened: Defense explains inability to contact General Barker. Military judge accepts as evidence messages of request and denial of Captain Clark. (App. Ex. Ha and lib). Military judge takes judicial notice of section 1904(a), Navy JAG Manual, and hears argument from both counsel on issue of production of General Barker as witness on motion. Military judge rules General Barker is a material witness and orders written interrogatories and cross-interrogatories. Court adjourned.
(1322) Court reopened: Defense submits interrogatories which were given to trial counsel.
April 11,1979: Trial counsel informs military judge that General Barker had no personal knowledge of information sought in interrogatories. Answers provided by Captain Clark and his supervisor, Major Roundtree. Case continued.
(1359) Court reopened: Stipulation of fact accepted by judge and request for General Barker withdrawn by defense. App. Ex. Ia.
Military judge rules that General Barker abused his discretion in not finding Captain Clark reasonably available to represent Seaman Pickens, and
1. finds Captain Clark reasonably available:
2. expects Captain Clark to be present at next session of trial;
3. orders detailed defense counsel to brief him on case (R. 41-43).
April 20,1979: Court reopened: Government counsel requests reconsideration of military judge’s decision that Captain Clark is reasonably available. Military judge considers points and authorities submitted by trial counsel. He rescinds order that Captain Clark and accused form attorney-client relationship (R. 51). He reaffirms original decision.
Government requests a 3-week continuance to appeal decision under Dettinger (R. 53). Military judge denies motion for continuance and trial scheduled for April 26, 1979, as before. Judge understands Government will seek extraordinary writ (R. 54).
April 26,1979: Court reopened. Government files more message traffic with court between convening authority and General Barker. Messages indicate that Captain Clark will not be made available in near future. On *120behalf of convening authority, trial counsel asks for reconsideration. He denies motion. He then authenticates record of trial for government appeal (R. 56-58).
Military judge then states:
“I am going to continue these proceedings until Friday the 4th of May 1979 at which time the govenment will have the opportunity to show cause to this court why these charges should not be dismissed.” (R. 58).
May 1,1979: Trial counsel’s first petition for extraordinary relief filed at Navy Court of Military Review. (Misc. Dkt. 79-8).
It seeks:
1. temporary order restraining judge from dismissing charges with prejudice until NCMR has ruled.
2. final ruling on writ of mandamus reversing ruling that Captain Clark was available.
or-
writ of prohibition issued to trial judge that charges not be dismissed because Captain Clark is not made available.
May 3,1979: Navy Court of Military Review Denies Government’s Petition for Extraordinary Relief (Misc. Dkt. 79-8).
Court rules that it is inappropriate at this time to exercise extraordinary relief power. It finds trial judge’s ruling (order that Captain Clark is available and be present or Government show cause why charges not be dismissed) does not amount to termination of proceedings, dismissal of Government’s case, or forestallment of jurisdiction of CMR. Military judge ordered hearing on question whether dismissal appropriate as matter of law. The Government can present arguments there and come back if judge dismisses case.
May 4,1979: Court reopened and trial counsel filed a written answer to military judge’s show cause order as well as decision of NCMR. The Government asserts that the case should not be dismissed with prejudice but it suggested abatement of proceedings as the appropriate remedy.
Military judge rules that Government has shown cause why charges should not be dismissed and proceedings abated as requested by Government (R. 78). Case ordered removed from trial docket with option of counsel to reopen at later date.
May 23,1979: Trial counsel’s second petition filed with NCMR for extraordinary relief in form of a Writ of Mandamus to trial judge to permit Government to proceed with trial of United States v. Pickens [- M.J. -(N.C.M.R.1981)] (Misc. Dkt. 79-9). He states trial judge was incorrect in ruling Pickens was entitled to Captain Clark as IMC beeause-
a. he exceeded his statutory authority
b. it represented a clear abuse of discretion
c. he employed a plainly erroneous standard
d. contrary to his own special findings.
*121December 21,1979: NCMR denies petition for extraordinary relief in form of mandamus to compel trial judge to proceed with court-martial. Court rules abatement of proceedings “constitutes ‘no violation of statute or decisional law or any provision of [regulations].’ ”
January 9,1980: JAG certifies decision of Navy Court in Misc. Dkt. 79-9 to USCMA for review of correctness of decision that court had no power of extraordinary relief simply because trial judge’s ruling was erroneous.
January 15,1980: Government appeals Navy Court decision denying Extraordinary Relief, under Rule 3(b)(2), USCMA Rules.
July 15,1980: Judge Redding opens trial because of demand for speedy trial and he announces hearing on August 4,1980, where Government must show cause why charges should not be dismissed.
July 21,1980: Government petitions this Court to stay proceedings.
July 30,1980: Judge Cook as acting Chief Judge of this Court stays proceedings of trial court.
November 21,1980: Both appellate actions are consolidated for oral argument.
. It has been used sparingly on behalf of the accused, and rightfully so, for the accused has the right to petition this Court for review under Article 67(b)(3), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(3).
. "It is requested that action be taken with respect to the following issue:
Was the United States Navy Court of Military Review correct in determining that it lacked authority to grant the extraordinary relief requested, where it factually concluded that the general court-martial trial judge used an erroneous standard of law in his review of the determination of the reasonable availability of a requested individual military counsel?”
. Statement of Issues:
I. WHETHER THE UNITED STATES NAVY COURT OF MILITARY REVIEW WAS CORRECT AS A MATTER OF LAW WHEN IT HELD THAT “THE EXTRAORDINARY RELIEF REQUESTED BY THE UNITED STATES IS NOT WITHIN OUR POWER TO GRANT” IN VIEW OF THE COURT’S FACTUAL CONCLUSION THAT THE RESPONDENT SUBSTITUTED HIS JUDGMENT FOR THAT OF THE COMMANDING GENERAL, CAMP LEJEUNE, ON THE PRIMARY QUESTION OF THE REASONABLE AVAILABILITY OF REQUESTED MILITARY COUNSEL?
II. WHETHER A REQUESTED WRIT OF MANDAMUS SHOULD ISSUE DIRECTING RESPONDENT TO UTILIZE A CORRECT STANDARD OF LAW AND RECONSIDER HIS DECISION THAT THE COMMANDING GENERAL, CAMP LEJEUNE, ABUSED HIS DISCRETION WHEN IT HAS BEEN FACTUALLY CONCLUDED THAT THE RESPONDENT SUBSTITUTED HIS JUDGMENT FOR THAT OF THE COMMANDING GENERAL, CAMP LEJEUNE, ON THE PRIMARY QUESTION OF THE REASONABLE AVAILABILITY OF REQUESTED MILITARY COUNSEL?
. United States v. Kelker, 4 M.J. 323 (C.M.A. 1978); United States v. Quinones, 1 M.J. 64 (C.M.A.1975); United States v. Mitchell, 15 U.S.C.M.A. 516, 36 C.M.R. 14 (1965).
. The military judge stated: “This Court had previously ordered the Government to — or given the Government the opportunity to show cause why the charges in this case should not be dismissed. Based upon the evidence that I have received and the arguments presented by both counsel, it is the opinion of this Court that the Government has shown cause why the charges should not be dismissed in this case.”
. Since March 1979, more than two years ago, General Barker has not seen fit to make Captain Clark available for a three-day trial.