(dissenting):
Shorn of its rhetoric this case is simple to resolve. The military judge, after an extended evidentiary hearing, made findings of fact and a conclusion of law. These findings of fact, if supported by the evidence of record, are binding on this Court. United States v. Middleton, 10 M.J. 123 (C.M.A.1981); United States v. Vasquez, 22 U.S.C.M.A. 492, 47 C.M.R. 793 (1973); United States v. Alaniz, 9 U.S.C.M.A. 533, 26 C.M.R. 313 (1958). I have read the entire record, and I agree with the findings of Judge Orser.
In order to set in context the findings of fact, some delineation of the states of mind of the officers in the case is necessary. It is clear to me that there was a misunderstanding of purpose at the very beginning of the investigation and that misunderstanding permeated the thinking of the officers to the extent that it became wide as a gulf. Why this happened, I need not speculate. Suffice it to say that the revelation of intentions of the officers was diluted and distorted in passing through the minds of the intermediaries to the extent that eventually there was a complete breakdown of communications.
On April 27,1981, Major General Pringle, Chief of Staff, Strategic Air Command (SAC), was notified by the District Director of the Air Force Office of Special Investigations (OSI), that a Titan Missile Crew Deputy Commander (Lieutenant Cooke) had made visits to the Embassy of the Union of Soviet Socialist Republics, and that it appeared that the visits were associated with studies in political science in which the officer had majored while in college. General *359Pringle notified the Commander-in-Chief, General Ellis, and the Vice Commander-in-Chief, Lieutenant General Leavitt. Subsequently, on April 80, General Pringle was informed that Lieutenant Cooke was scheduled to go on leave on May 2 and that the OSI wanted the leave cancelled. Because of the difficulty in rescheduling leave for the entire missile crew, General Pringle did not agree to cancel the leave. Instead, he told the OSI “to keep ... [Lieutenant Cooke] under close surveillance”1 and if he attempted to go to the Soviet Embassy, he was to be apprehended.
On the morning of May 5, the OSI director informed General Pringle that the OSI had lost Lieutenant Cooke and that he had gone to the Soviet Embassy on May 2. General Pringle immediately informed General Ellis, who directed that Lieutenant Cooke be picked up, read his rights, and interrogated.2 General Ellis told General Pringle to contact the SAC Staff Judge Advocate, Brigadier General Teagarden. At that point in time, General Ellis believed that “we either had an oddball with a possibility of a serious espionage case” since, in his experience, it was unusual for a spy to go to the front door of the Soviet Embassy. He also knew that he would have to take action to negate any possible damage which might have been done. However, he wished to find out, if possible, exactly what happened before beginning the negation process which was “very tedious, time consuming, and difficult to do.” General Ellis called the Deputy Chief of Staff, Intelligence, and asked for a list of those classified items to which a missile deputy commander would have access. He also called the Chairman of the Joint Chiefs of Staff and the Chief of Staff, Air Force, to inform them of what had happened and what SAC intended to do.
On May 9, General Ellis was briefed by Generals Leavitt, Pringle, and Teagarden on the statement made by Lieutenant Cooke on May 7 which sounded like a “fantasy.” 3 He was told that Lieutenant Cooke *360would not take a polygraph on the statement without assurances of some kind from SAC. It was recommended to General Ellis “that if ... the statement was validated by a polygraph examination,” it could be concluded “that we indeed had an oddball here, and ... he should be separated from the Air Force either by resignation or action” by the command.4 He agreed with the proposal, recognizing that if nothing was forthcoming from Lieutenant Cooke, he still had the option to negate, and time was running *361out for that action.5 If Lieutenant Cooke refused to take the polygraph, he was to be returned to his home base (McConnell Air Force Base, Kansas), and charges brought against him.6
Later that evening, General Teagarden contacted General Ellis with the information that Lieutenant Cooke had agreed to take the polygraph and that transportation to McConnell Air Force Base had been can-celled.
On the morning of May 10, while on board an aircraft ready to depart for the Western Pacific area, General Ellis was told by Generals Pringle and Teagarden that Lieutenant Cooke had confessed to actually passing sensitive papers to the Soviets and that the investigation was continuing.7 He released a message to the Joint Chiefs of Staff which initiated the negation process. While on the aircraft bound for Hawaii, General Ellis personally composed a message informing the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Chief of Staff of the Air Force of certain things which he believed needed to be done. He showed the message to Generals Pringle and Teagarden, who were on board. Knowing that Lieutenant Cooke had not been advised of his rights, he knew that the confession could not be used against him, but he wished the investigation continued to establish “as . . . prosecutable a case as possible.”8
*362Upon returning from the trip on May 15, General Ellis was briefed by General Leavitt, but he did not recall any mention of “immunity.”9 General Ellis, having had considerable experience as a general court-martial convening authority, knew that immunity was a formal process requiring his specific approval and was always presented to him in writing.10
It was not until May 19 or 20 that General Ellis became aware that there was a problem with the agreement.11 He called *363General Leaf, the Air Force Inspector General and overall commander of OSI, but could not get any clarification of the problem. He also called the Air Force Chief of Staff who said he would look into the problem. Receiving no further information, General Ellis assumed that there was no problem. When General Teagarden returned from Washington, D. C., on May 25, he brought with him certain requests from the General Counsel of the Department of Defense which had to be answered before Lieutenant Cooke was formally charged. General Ellis still did not understand that there was some problem with an agreement since no one in authority had contacted him and he was the only person who could grant immunity. He believed “that regardless of whose agreement it is, it’s invalid.”12 In this regard, he relied on his May 10 message as accurately stating his position on the matter.13
In sum, General Ellis had from the beginning intended to prosecute Lieutenant Cooke whom he considered “a traitor of first magnitude,” and he believed that any agreement which might have been made by OSI without his concurrence could not prevent him from taking that action.
How then could the OSI have misconstrued the agreement, intended by General Ellis as foregoing prosecution of the unreported visits to the Soviet Embassy if only for the purpose of furthering Lieutenant Cooke’s interest in political science, as being a grant of immunity from prosecution for any admitted espionage going back 15 years?14 The misunderstanding began on May 5 when, in discussing how the interrogation of Lieutenant Cooke was to be handled, Mr. Torpy, Acting Chief of OSI Counter Intelligence, told Colonel LeTarte, the Director of the United States Air Force Judiciary, that the best procedure to elicit the most complete information from Lieutenant Cooke was to interrogate him without advisement of his legal rights. However, in order to do that, the permission of the major command staff judge advocate was required. Colonel LeTarte was asked to intervene with General Teagarden to obtain that permission. Mr. Torpy understood that SAC wanted Lieutenant Cooke advised of his rights before questioning, but he knew that if Lieutenant Cooke asked for an attorney, OSI policy required interrogation to stop until an attorney was provided. Be*364lieving that this would foreclose further interrogation, Mr. Torpy preferred to interrogate without advisement in order to get full information, recognizing that any statement would not be admissible against Lieutenant Cooke. Colonel LeTarte called General Teagarden and discussed the matter. General Teagarden indicated that the primary purpose of the interrogation was damage assessment. Colonel LeTarte opined that if that were SAC’s main goal, then General Teagarden should approve the OSI request. General Teagarden acceded to Colonel LeTarte’s suggestion. Mr. Torpy then told Lieutenant Colonel Hoffman, the chief OSI interrogator, that SAC wanted damage-limiting information.15 From that point on Colonel Hoffman worked on the assumption that information, not prosecution, was foremost in the mind of General Ellis and others at SAC.
When he was advised of Lieutenant Cooke’s statement of May 7, Mr. Torpy felt that it “was plausible but bizarre.” He therefore wanted it confirmed by a polygraph examination. On the basis of this information, General Pringle believed that Lieutenant Cooke was a terribly naive and immature person, but not a spy. He also was told that Lieutenant Cooke had refused to take a polygraph test. This brought about the meeting with General Ellis and Generals Teagarden and Leavitt, from which General Teagarden’s statement of positions was given to Colonel Hoffman.16
It appears clear that the major parties to the matter, General Ellis and Colonel Hoffman, were subject to conflicting mind sets: General Ellis to obtain information with the dual aim of prosecuting a traitor and obtaining, if possible, damage assessment, and Colonel Hoffman determined to find the extent of Cooke’s disclosures even at the cost of having him go completely free. Once on these divergent tracks, the conduit of information, General Teagarden, neither adequately conveyed General Ellis’ wishes nor understood the import of his own words. Indeed, “OSI and SAC were not singing from the same sheet of music.”17
The question presented is: How can the person authorized to grant immunity be held to have acted when he consistently refused to so act and was unaware of the situation until long after the alleged immunity grant was made? Obviously, General Ellis cannot be bound by a breakdown in communications between his staff and the OSI without his knowledge and acquiesence. His only fault was in relying on his staff to carry out his instructions, which, he believed, were clear and unmistakable. The fact of his staff judge advocate’s apparent inability to recognize the ramifications of his offer, even coupled with Lieutenant Cooke’s reliance and detriment, cannot create something that was never there.
The power to grant immunity set forth in paragraph 68h, Manual for Courts-Martial, United States, 1969 (Revised edition), is based upon the decision of this Court in United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). There, we found the power to grant immunity to be derived from the power of a convening authority to discontinue investigations of crimes, dismiss formal charges, direct a charge be withdrawn, and set aside findings of guilty, which are plenary in nature. Clearly such powers can only be exercised specifically: no one could assert that someone had apparent authority to convene a court-martial, *365or dismiss charges. Only actual authority can be exercised in these related instances.18 From this, I conclude that the power to grant immunity from prosecution can only be exercised by a person authorized to convene general courts-martial and he must knowingly so act. It is not enough that an accused may have reasonably believed that he had been granted immunity; there must be actual immunity granted, or there is no immunity. See United States v. D’Apice, 664 F.2d 75, 30 CrL 2248 (5th Cir., 1981).
The lead opinion seems to combine the offices of convening authority and staff judge advocate at least to the extent of attributing knowledge and actions of one to the other. The identities and functions of the convening authority and the staff judge advocate are, however, different. The powers of the convening authority are found in Articles 22-30, 32-34, 49, 59-65, 71, 72, and 74(a), Uniform Code of Military Justice, 10 U.S.C. §§ 822-30, 832-34, 849, 859-65, 871, 872, and 874(a), respectively. At no place do I discover any indication that the convening authority may share his responsibilities with his staff judge advocate. At most he must obtain from his staff judge advocate certain legal advice before he exercises his discretionary power. ' Article 34(a), UCMJ, 10 U.S.C. § 834(a).
The convening authority exercises investigative [United States v. Conn, 6 M.J. 351 (C.M.A.1979) ], judicial [United States v. *366Crossley, 10 M.J. 376, 379 (C.M.A.1981) (Everett, C. J., concurring), United States v. Ellsey, 16 U.S.C.M.A. 455, 37 C.M.R. 75 (1966)], and prosecutorial [United States v. Hardin, 7 M.J. 399 (C.M.A.1979) ] powers— all as part of his overall role as the person responsible for the disciplinary status of his command. We have recognized that he must often view the same case while “wearing different hats” and have held that, as long as he does not commingle his separate functions in the exercise of his powers, the fact that they may involve, in a given situation, differing decisions at various stages of the court-martial process, creates no judicial impediment to his actions. Likewise, the staff judge advocate has certain statutory functions, some of which involve his decision-making role, and others which east him merely as an advisor to the convening authority. Obviously, if the two roles are combined, the basic concept of the Uniform Code is defeated. This certainly was not intended by Congress, which sought to create a system which balanced the commander’s need to maintain discipline with a regard for the rights of the accused.
The Chief Judge, in his concurring opinion, has decided that the convening authority delegated his authority to his staff judge advocate to negotiate a binding immunity agreement. As I have shown before, the power to grant immunity does not appear in the Uniform Code of Military Justice but is derived from paragraph 68h, Manual, supra, which, in turn, was derived from the language in United States v. Kirsch, supra. There, as stated previously, the power to grant immunity was found to be inherent in the power of the convening authority to take certain actions involving courts-martial. Thus, my first disagreement with his opinion stems from his conclusion that a power exists to delegate an authority which is based solely on authority inherent in other powers specifically granted to the convening authority by the Code. True it is that “the Manual contains no explicit prohibition against a convening authority’s delegation to his staff judge advocate of the power to negotiate a binding immunity grant,” 12 M.J. 335, 353, but I have serious reservations as to whether, if such power were given in the Manual, it would be sustainable in the absence of some specific statutory recognition.19 The reason for my conclusion is that the concept of delegation of the authority to grant immunity would contradict the other powers of the convening authority given expressly by the Code to the convening authority and which are not delegable.20
Thus, I find it inconsistent to hold that the convening authority cannot delegate the power to refer eases to trial, convene courts, appoint members of a court-martial, detail a military judge or counsel, review the action of the court-martial, suspend the sentence adjudged or vacate the suspension of a sentence, but that he can delegate the even more substantial power to grant immunity from prosecution.
Of course, if the Chief Judge means “negotiate” in the sense of “negotiating” a treaty or other agreement, then I have no objection since that usage of the verb implies that the results of the negotiation require approval by some higher authority before acquiring any legal efficacy, i.e., treaties with foreign governments (see U.S. Const, art. II, § 2) and contracts with labor unions. In addition, the analogy to the power of a United States attorney to delegate authority to negotiate an immunity agreement necessarily recognizes that the finalized agreement still must be approved *367by the United States Attorney General or his delegate before it has any binding effect. See 18 U.S.C. § 6003.
But going even further, the Chief Judge concludes that General Ellis ratified the immunity grant here. I do not agree that General Ellis ratified the alleged immunity agreement, either in fact or in law.21
The Chief Judge places reliance on several state court holdings concerning agreement not to prosecute based upon successful taking of polygraph tests. While I find such holdings informative, I do not believe they have any decisional value under the facts of this case. The central theme of these decisions is that when, after indictment, the defendant consents to take a polygraph examination and the prosecution agrees that if the results are favorable, it will dismiss the indictment, the agreement will be enforced against the prosecution. Thus, a presumably innocent defendant offers to take a polygraph examination to prove his innocence, and the agreement of the prosecution is merely to substitute the test results for a trial by traditional methods. Under such circumstances, the real issue addressed is whether the prosecution agreement is enforceable. These are not plea bargaining cases in the sense of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), nor are they immunity-grant situations. With these thoughts in mind, we will examine the cases.
In People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975), the “[defendant was ... charged with assault to do great bodily harm ... and torturing a child.” At his arraignment he “stood mute.. . . Subsequently ... an agreement was ... [made] whereby if defendant [took and] passed a polygraph examination given by the Michigan State Police, his prosecution would be dismissed.” The defendant passed two tests. Thereupon, the prosecutor “prepared an order of nolle prosequi ” which reflected the tests’ results and indicated “‘that the injury was at most the result of defendant’s negligence.’ . . . The ... order . .. was signed by the trial judge.” Subsequently, the prosecutor had “serious misgivings” about the tests’ results largely engendered by psychiatric information that in crimes such as that “allegedly committed, a schizophrenic nature” might “distort polygraph test results.” Accordingly, the prosecutor “approached [the] defendant,” id. at 583, and stated that the tests “would be honored only if defendant” would submit “to [truth] serum testing. Defendant refused” and the prosecutor “filed a new complaint on the same charges.” Defendant moved to quash based on the agreement, but failed and was ultimately convicted. The Michigan Supreme Court reversed and dismissed the charges. Noting that the principal use of polygraph testing was during the investigatory process prior to the filing of charges, the court said:
Prosecutorial use of polygraph test results at any stage of the proceedings necessarily has the effect of supplanting the trial process. This is particularly so, where, as here, the prosecution is dismissed after a preliminary examination determination that there was probable cause to believe the crime charged was committed. We cannot commend the wisdom of the action taken by the prosecution and trial judge in this case. Ordinarily, dispositional use of polygraph test results should not occur after judicial proceedings have been instituted.
*368Defendant had much to gain and relatively little to lose by subjecting himself to the polygraph. The people contend that the bargain offered defendant was a “gift-type” bargain which lacked the consideration necessary to make it binding.10 While there is precedential reference to the concept of “consideration” for a bargain in the context of the administration of criminal justice,11 we feel that here the analogy to contract law is inappropriate. The standards of commerce do not govern, and should not govern, the administration of criminal justice.
235 N.W.2d at 585. The court then recognized that the agreement with the defendant was entered into by the prosecutor who had “the [sole] power to seek an order of nolle prosequi” and that the trial judge alone had the power to approve such an order. However, the trial court was never apprised of the agreement with the prosecutor. Although “[n]ormally a nolle prosequi is a dismissal without prejudice” to initiation of further prosecution, “[u]nder the facts of this case, ... entry of the order of nolle prosequi was . .. the final act of fruition of a binding agreement.” The court then chided the prosecutor for not acquainting himself “with the limitations of . .. polygraph [testing] before entering into an agreement to dismiss the case on the basis of polygraph results and then proceeding on to nolle prosequi. ” Further, the court found the agreement was not per se contrary to public policy. It concluded that “a pledge of public faith in this instance gave force to an unwise agreement which became binding upon trial court approval of nolle prosequi.” Id. at 587.
In State v. Davis, 188 So.2d 24 (Fla.App.1966), cert. denied, 194 So.2d 621 (Fla.1966), defendant and the assistant state attorney agreed shortly before trial “that defendant would take a polygraph .. . examination ... by an operator [to be] selected by the parties. If the results . . . showed defendant was telling the truth in denying his guilt, ... he would not be prosecuted”; if the result was to the contrary, “defendant would enter a plea of guilty to the lesser charge of manslaughter. If the results were inconclusive, neither side would be bound.” Id. at 25. The case was taken “off the trial docket for the purpose of giving ... [the] examination.” A state deputy sheriff “administered the examination using both the Keeler technique and the Baxter technique.” He opined “that defendant was telling the truth.” Later, another polygraph operator of the Florida Sheriff’s Bureau examined the charts, and, because he disapproved “of the Keeler technique,” he did not agree with the results. However, he did indicate that “the Keeler method is [recognized as] a proper technique” and “that much of the outcome of a polygraph test depends upon the examiner.” Id. at 26. When the state then attempted to try the defendant, he pleaded the agreement in a motion to quash. The Florida District Court of Appeal held:
It is argued that an immunity agreement may not be pleadable in bar of an adjudication of guilt, although it may affect the right of the court to enforce or to impose a sentence. This seems to be the general rule in cases where immunity is promised an admittedly guilty criminal in return for testifying or giving other evidence against his confederates in the crime. [Citations omitted.]
The case at bar, however, does not involve such a situation. Here a professed innocent man agreed to take a polygraph examination to prove his innocence. He was, however, willing to risk a plea of guilty to a lesser charge if the test indi*369cated he was not telling the truth. Thus, the case is more analogous to those in which immunity is extended to an accused on one charge in return for his plea of guilty to another charge.
Thus, it can be seen that where a plea of guilty is entered in reliance upon a promise to dismiss other charges, the promise may be enforced and raised as a bar to prosecution. The difference between that situation and the one before us is the added act regarding the polygraph examination. Defendant had agreed to plead guilty to manslaughter if the test was not in his favor, but the state had agreed to dismiss the case if the results indicated defendant was telling the truth. This was a pledge of public faith — a promise made by state officials — and one that should not be lightly disregarded.
Id. at 27. The court then found that the agreement postulated that the results would be based upon the findings of the person selected to conduct the test. Since he concluded that the defendant was truthful, the state was bound by his, not someone else’s, opinion.
ín Butler v. State, 228 So.2d 421 (Fla.App.1969), a written agreement between the State’s Attorney, the defendant and his counsel was made after indictment and before trial, to the effect “that ... defendant would take a polygraph test” and “ ‘that the state will be bound by the results ... if it develops that he is telling the truth,’ ” but “ ‘that if the .. . tests result in an opinion by the operator that [he] is not telling the truth,’ ” such “unfavorable test results” would be admissible “at trial and on appeal... [T]he agreement would be cemented by a stipulation made in open court, with defendant ‘ * * * being fully advised by the Judge of all of his constitutional rights.’ ” Id. at 422. Defendant took the examination and, in the opinion of the examiner, was found to be truthful when he denied participation or knowledge of the rapes. “The State’s Attorney ... [then] obtained an order of nolle prosse.” Id. at 423-24. However, he subsequently changed his mind and “the defendant was again indicted on the same charge and events.” Defendant “unsuccessfully moved to quash on the basis of the agreement,” and “was tried [and] found guilty.” The court found that “here, a professed innocent man agreed to take a polygraph examination to prove his innocence” and that “the state had agreed to dismiss the case if the results indicated defendant was telling the truth.” Id. at 424. The state argued that the approval of the court was not obtained, but that argument was rejected by the court.
It is inconceivable and certainly no compliment to the system to suppose that a judge would entertain the stipulation and participate in such proceeding by obtaining the understanding and agreement of, as here, an illiterate charged with a capital offense to the terms of this proposal while disapproving the agreement. Further, it would be unconscionable and a trap of the worst sort to persuade this illiterate to forego his legal right not to take the test and to expose himself to a disaster if the results were unfavorable when — if the results were favorable — it would be said by the authorities that the judge didn’t approve the agreement and the state is in no way bound by the agreement.
Criminal prosecutions are, of course, a deadly serious undertaking. They are not a game and sportsmanship is perhaps not a factor. Even so, we feel that our historical ideals of fair play and the very majesty of our government command that an advantage as here reflected not be sanctioned. In parting on this question, we, while honoring the right of the state to choose its procedures and weapons of prosecution, would quite frankly question the wisdom of such contracts which tend to remove the decision to prosecute and the guilt determination from the hands of the traditional authority and delegate it to the conscience of a scientific device — a device which may not be infallible.
Id. at 424-25.
In Chambers v. State, 146 Ga.App. 126, 245 S.E.2d 467 (Ga.App.1978), “defendant *370was convicted of statutory rape of the daughter of a woman with whom he was living.- On appeal,” the conviction was “reversed ... on the basis that there was ‘no corroborative evidence to the testimony of the alleged victim ... to prove the incident occurred.’ ” On further appeal the State “Supreme Court reversed, holding that ‘polygraph results were adequate to provide the [necessary] corroboration of the victim’s testimony.’ ” Defendant argued that “it was error for the trial court to admit ‘testimony ... [concerning the results of] the polygraph test given to Defendant under conditions which were contrary to the stipulation entered into between Defendant and The State.” The agreement, in essence, was that the defendant’s attorney would “ ‘be allowed to review each question’ ” posed to defendant by the polygraph operator “ ‘prior to the time’ ” of the test. Id. at 468. Certain questions designed to provide the operator with “ ‘control’ ” or “ ‘guilt complex’ ” responses were not reviewed in advance by defendant’s attorney. The court was faced with the question of whether the agreement under which a polygraph examination was to be conducted should be broadly or narrowly construed. It held:
If one lesson is to be learned from this decision it is that all agreements of counsel relating to polygraph examination should be placed in writing and the trial court can resolve any differences in a pretrial hearing, or a motion to suppress.
We hold that agreements between counsel regarding conditions for taking a polygraph examination must be scrupulously adhered to by both sides. Deviation from the spirit or letter of the agreement can be grounds for denial of admissibility of test results. [Citations omitted.]
As this is a new evidentiary rule and a new procedural problem, counsel could not reasonably be expected to foresee and provide for all contingencies which could occur. When such unforeseen events occur, and they violate the spirit or the wording of counsel’s agreement which is detrimental to a substantial right of an accused, we cannot say that the error is harmless.
Id. at 469.
Finally, in Workman v. Commonwealth, 580 S.W.2d 206 (Ky.1979), after being indicted for murder, the defendant entered into an agreement proposed by the Commonwealth “ ‘that if . . . [he] would voluntarily submit to a polygraph examination [conducted] by the Kentucky State Police, and’ ” the results thereof “ ‘indicated that ... [he] had no involvement in the shooting . . . the charge would be dismissed. The defendant did submit to ... [such test] as well as a separate test conducted by’ ” an out-of-state consulting agency and the results indicated that he was truthful in denying his guilt. Id. At trial, defendant moved to dismiss the indictment on the basis of the agreement. “The Commonwealth filed no response to the motion,” id. at 207, and the trial judge denied it without giving any reasons. Defendant was thereupon “convicted ... on what may be charitably described as far less than overwhelming evidence.” Id. at 206. The Kentucky Supreme Court held that the Commonwealth’s “agents .. . had apparent if not actual authority” to enter “into an agreement with ... [defendant] to abandon ... prosecution of him if he passed a polygraph” test, and that defendant did, in fact, pass such test. The court viewed the issue before it as “not whether the Commonwealth’s bargain was wise or foolish,” but “whether the Commonwealth should be permitted to break its word.” The court further stated:
The standards of the market place do not and should not govern the relationship between the government and a citizen .... If the government breaks its word, it breeds contempt for integrity and good faith.
When as here, our historical ideals of fair play and substantial justice do not permit attorneys for the Commonwealth to disregard promises and fail to perform bargains, it does not permit the judge to allow such iniquities to succeed.
*371The record .. . disclosed no rational basis which would relieve the attorney for the Commonwealth from the performance of his bargain or justify the refusal of the trial judge to grant the motion to dismiss.
Id. at 207.
With the exception of Chambers v. State, supra, which admittedly concerns the application of a new evidentiary and procedural rule, these cases stand for the proposition that when the state chooses to substitute a polygraph test for the normal trial procedures to determine the guilt or innocence of the defendant, whatever the wisdom of the choice, the state will be bound by the results and not permitted to return to the trial forum for a second chance if it does not find the result to its liking. In effect, the state agreed that if the results of the polygraph established the defendant’s innocence, it would forego trial on the facts — an offer not dissimilar to that made by General Ellis in this case. Had petitioner passed the polygraph test based on the statement of May 7,1 have no doubt that the agreement would have been honored, and if not, enforced by judicial action as a bar to trial. In contrast here, the polygraph results established petitioner’s guilt of new and varied offenses of espionage — a result not envisioned by General Ellis. Hence, I cannot see how these holdings have any decisional value to the resolution of the issue at hand.
Defendant risked nothing in this one-sided “agreement” — and indeed had nothing to lose by taking the polygraph test. It is the people of Michigan who instead are cast in the role of “losers”.
People v. Reagan, supra at 590 (Coleman, J., dissenting).
The remedy envisioned by Judge Orser would be to suppress the statement made by the petitioner on May 17, 1981, and any other evidence derivative therefrom, “unless the government can demonstrate that said evidence was not obtained by use of the statement.” I agree that this is the correct remedy required by the law of this country. As stated by the Supreme Court of the United States:
Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. While the general common-law practice is to admit evidence despite its illegal origins, this Court in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused’s rights under the Constitution, federal statutes, or federal rules of procedure. . . . Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.
United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966) (footnote omitted).
More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate. This has been the result reached where a Fifth Amendment violation has occurred, and we have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.
United States v. Morrison, 449 U.S. 361, 365-66, 101 S.Ct. 665, 668-69, 66 L.Ed.2d 564 (1981) (footnotes omitted) (Sixth Amendment violation).22
Whatever may be the cost to someone’s career, or to the reputation of a branch of *372the armed services, it is our duty to apply the law of the land. There are three parties to each criminal action; one of those parties, not represented before this Court, has suffered by the majority’s decision this day.
I would, therefore, deny the petition.
. General Ellis
Yes, General Pringle indicated that the Lieutenant was going on leave and I asked what arrangements had been made and he said that the OSI was going to keep him under close surveillance. And I said, “Fine.” And that was the end of that conversation.
. General Ellis
Yes, General Pringle came in my office and said that the Lieutenant had in fact visited the Soviet Embassy, that the OSI had him at the airport. However, they had verified later that he had visited the embassy. I asked him what the intentions of the OSI were and he said they were going to let him finish his leave, return to McConnell, and undertake the investigation at that point. I said, “No, we’re going to pick him up right now.”
General Pringle
General Ellis directed me to do a couple of things; one, to get General Teagarden and come into the office and pick Cooke up immediately, or to put into action those things that had to be done to have him picked up.
Yes, we did. It was very apparent now that we knew that our Second Lieutenant had in fact been talking to the Russians. We wanted to find out what his relationship was immediately with the Russians and what it was he was doing there and what it was he was talking about or doing. We wanted him picked up immediately. We wanted his rights read to him. We wanted to have the OSI get a statement from the cab driver of the cab that he did in fact take Lieutenant Cooke to the Embassy, and then we wanted a statement from the guard at the gate of the embassy that Cooke had passed, passed through the embassy gates.
General Ellis
Q. Did anyone explain to you that the problem was, reading Cooke his rights might well shut off the opportunity to do the damage limiting investigation that you yourself had asked for?
A. I didn’t look at it that way. If anyone else did, there’s the possibility I guess. I always looked at it that we could negate anything he had done at any time and it was desirable, however, to find out the extent of damage, if any, before negating it.
In my own mind, obviously, the first thing was to find out what had to be done to negate the damage, if there had been any damage.
And the second thing was to insure that punishment was passed out to the offender.
. General Pringle
Yes, he came to me and said that Cooke had made a statement on 7 May and conveyed to me the sense and the essence of the statement. It was conveyed that we had a very *360naive young Second Lieutenant who was deeply involved in an issue of political science in relationship between the USSR and the US, and that it appeared that his motives were ones to specifically bring a better relationship between Russia and the US. 1 thought to myself, “My God, all the men in Russia and all the men in this country haven’t been able to do it and here we’ve got a Second Lieutenant who can do that.” It seemed highly honorable but kind of naive and we needed to know more about him. But I think that my impression was that it confirmed the things that we had heard previously from the OSI that they knew about him, that it looked as though we had a pretty naive young man that was doing some things that were not very realistic.
General Ellis
And they described to me these conditions and they recommended that if, in fact, the statement was validated by a polygraph examination that we indeed had an oddball here and that he should be separated from the Air Force either by resignation or action on our part.
General Leavitt
Teagarden was pleased because apparently Lieutenant Cooke had made a confession that was now written down and available to us, and the indications from the confession were that we had a nut on our hands, if you’ll pardon the use of the vernacular, and that the serious concerns that SAC had about the compromise of classified material could be put aside on the basis of this confession. That Cooke had visited the Soviet Embassy as a foreign relations student in a broad sense, and that he was interested in acting as a conduit, I think, were the words that were used to discuss frictional areas that existed between the Soviet Union and the United States. Naturally, we would be very much relieved if that had been the case.
. General Leavitt
So I told Teagarden, I said, “Well that’s good news if that’s the case, but I am skeptical about it and what are our precautions against this?” And Teagarden told me that they had an agreement, they being SAC and___the principal had worked out an agreement that covered several points. And the points as I recall them were, first of all, to make sure Cooke’s confession was accurate he would be given a polygraph; that all points that were covered in the confession would have to be absolutely accurate; and that the whole of his confession would have to be accurate. In other words, there would not be omissions. The third point was that if any part of this was not accurate, we would go ahead and prosecute.
On the other hand, if it was an accurate confession, as proven by the polygraph, then we would grant Cooke an honorable discharge, and not prosecute him for his relatively innocuous crime of going to the___ relatively, in the sense of comparing it to espionage___innocuous crime of going to the Soviet Embassy and not reporting it several times.
Special Agent Hoffman recorded this agreement as follows:
SAC POSITION
1. If the polygraph is not taken
a. Worse Case — Continue with AFOS1 investigation and upon completion [¶] SAC will evaluate appropriate Command action, based on investigative results, IAW the UCMJ for failure to obey AFR 205-57 and any other offenses uncovered.
b. Best Case — Investigation continues and [¶] SAC will initiate Administrative separation action under AFR 36-3.
2. If the polygraph is taken and deception is indicated.
Same as la and lb, above.
3. If the polygraph is taken and no deception is indicated
a. [¶] SAC will allow Subject to resign under AFR 36-12 section B, Para 2-8, 2-13, table 2-6, rule 29 (mise reasons).
b. Subject’s tender of resignation will be favorably received.
c. Subject will be allowed to continue leave in the Richmond area until requested to return to McConnell AFB for final outprocessing.
4. Considerations
a. AFR 36-3. Subject will receive an honorable discharge but action will be initiated by the USAF (fired).
b. AFR 36-12. Subject’s resignation will be honorable however Subject initiates and it is basically a mutual separation without the connotation of Subject being fired.
c. Successful resolution clears any doubts that might exist regarding exact nature and extent of Subject’s relationship with Soviets and allows Subject the opportunity for future employment with another government agency.
. General Ellis
I don’t remember exactly who he had it with. As I recall it was a proposal and I agreed with it, recognizing that if we didn’t get anything from him we still had the option to negate. And I must say by this time I was beginning to feel a little pressure in terms of urgency in taking some action.
. General Ellis
Was going to return him to___and they briefed me on that too___to return him to McConnell and continue the investigation or charge him.
General Pringle
[W]e had agreed that we, one, would want the Lieutenant to take a polygraph test and the purpose of the test was to insure that the 7 May statement was fully revealing about his association with the Russian Embassy, and that it was truthful; and that if it was in fact fully revealing and truthful, the 7 May statement, that we would honor any request from Lieutenant Cooke for an honorable separation from the Air Force. And if at any time he refused to take the polygraph test, I was going to arrange for an airplane to bring him back immediately and told him that that had already happened, that just prior to my coming into his office I had heard from the OSI that Cooke had in fact refused to take the polygraph test. I told him that if there were any changes to that I would be sure to keep him informed.
. General Pringle
I guess if that’s what you call it. I call it a yellow scratch pad. But there was about a page and a half of statements recorded by the OSI over a secure phone that Cooke had testified to giving to the Russians. And I have to tell you that I was really in a state of shock. I read that piece of paper a couple of times and I simply___It was difficult for me to believe what I was reading. Now, you have to remember that up until about one o’clock that afternoon of that day, everything that we had heard about our Lieutenant was that he was a naive political science student and he was pursuing those endeavors and that was his reason for seeing the Russians. And I’ve got a piece of paper in my hand, the likes of which I’ve never seen in my thirty-one years in the Air Force and never hope to see again. And I was reading something that told me we had a traitor on our hands and that really shocked me.
General Ellis
We were getting ready to depart on a trip and when I boarded the aircraft, Generals Pringles [sic] and Teagarden told me that the accused had confessed to actually passing sensitive papers to the Soviets, that the investigation was continuing, that we had sent specialists from the different functional areas within the SAC staff to assist the OSI in carrying out the investigation, that___I think they also told me that two or three people from the Joint Staff had been sent down to assist them and there was a message that had been drafted up to the Joint Staff which initiated the negation process that I mentioned earlier and it described the actions we were taking and what we intended to do. I think we made a couple of corrections to it and I approved the message and it was sent out by, I believe, General Autry.
. The message, in pertinent part, reads as follows:
FOR GENS JONES AND ALLEN INFO SECY WEINBERGER AND GEN LEAVITT FROM ELLIS
. . . HOWEVER, THERE IS NO FEASIBLE ALTERNATIVE TO FULL DISCLOSURE, AT THIS POINT OUR OBJECTIVES SHOULD BE TO MAKE THE EPISODE AS UNCOM*362FORTABLE AND AS UNPLEASANT FOR THE SOVIETS AS POSSIBLE AND TO ESTABLISH THE STRONGEST POSSIBLE DETERRENT TO FUTURE BREACHES OF SECURITY THROUGH SWIFT AND UNRELENTING PROSECUTION OF THIS CASE TO THE FULL EXTENT OF THE LAW. COOKE IS A TRAITOR OF FIRST MAGNITUDE AND TREASON IS THE CRIME.
I AM ADVISED BY THE SAC JA THAT SINCE COOKE WAS NOT ADVISED OF HIS RIGHTS, WE HAVE NO CONFESSION WE CAN LEGALLY USE ON WHICH TO CHARGE ESPIONAGE, FROM THIS POINT ON, ____ FUTURE INTERROGATIONS OF COOKE SHOULD CENTER ON ESTABLISHING AS STRONG AND PROSECUTABLE A CASE AS POSSIBLE. IN THIS REGARD EXHAUSTION OF ALL INVESTIGATIVE AVENUES SHOULD BE ACCOMPLISHED PRIOR TO PLACING COOKE ON THE POLYGRAPH.
I RECOMMEND WE MOVE QUICKLY TO ORGANIZE THE APPROPRIATE PUBLIC RELEASES BEFORE A LEAK OCCURS. REGARDS.
. General Leavitt
Well, as you mentioned, it was my custom to always meet the CINC when he returned from a trip. In the priority of things, this was not our highest priority item. I realize this may seem incongruous in this setting, but it really was not at the time. When he first got off the airplane, I asked him how the trip went and we exchanged a couple pleasantries on that. The second item, and of prominent concern in my mind, was the business about how our new bomber program was coming. We were in the midst, at that time, of arguments with both the present administration and the Air Staff about what should be the new bomber, and we were very intensely interested in that and there was a lot of Congressional interest in it and so on. So that was the major thrust of my conversation with him, was a quick resume of what we’d been talking about that week on the new bomber.
Then I said, “There’s been a”___or words to this effect and I don’t recall my exact words. I said, “There’s been an unfortunate turn of circumstances in the Cooke case.” I said, “The OSI in the interrogation has apparently gone beyond what we had visualized and we may not be able to use the confession that Lieutenant Cooke___the second confession that Lieutenant Cooke made.” But I said, “I’ve had the staff,” and I’m speaking now of the JAG staff, “working on other ways that he violated the law to see if we could press on these other points.” And that was a follow-on from the meeting that I had with Ratcliff. He said___General Ellis is a very calm and deliberate individual and I didn’t detect from him any great concern in expression that this was a surprise to him or anything like that. He simply advised me, asked me if I had___he told me to advise Teagarden of these, General Teagarden of these points. And I did shortly thereafter.
General Ellis
Q. And I assume he [General Leavitt] briefed you on several matters, possibly including the Cooke case?
A. Yes, I’m not too clear as to what he told me about the latter subject. Our attention was focused on the selection of a new bomber. We were vitally interested in that and most of the short discussion we had had to do with developments with regards to the bomber. He probably brought the case up, gave me a short status report, but I don’t remember anything that was of significance.
Q. You don’t remember him briefing you that there was a question as to immunity, is that correct?
A. No, that doesn’t mean he didn’t, but I don’t remember. And it didn’t raise any hackles at the time because there was no immunity and none intended at any time.
. General Ellis
Well, it’s a very formalized process. I can’t remember a single time that I granted immunity, and it wasn’t all that number of times as my statement may have sounded like, but there was a formal paper that was drawn up by the judge, staffed throughout the staff, and usually presented to me by the Judge Advocate or his Deputy. If it just came up as part of the paper mill, I can remember one or two instances when that happened, I would call him on the squawk box and make sure I had the authority. I knew that there were some restrictions on the authority to grant immunity, so I was very careful to insure that I had the authority when I signed that piece of paper.
. General Ellis
Q. Did you know that General Leavitt and Colonel Ratcliff, while you and General Tea-*363garden were on the road, heard about some immunity and asked for a written report?
A. I have subsequently learned of that. 1 can’t give you the exact time. He may have mentioned it to me, as a matter of fact, but it doesn’t ring a bell. You’ve got to understand my mind set. My mind set was the 10 May message and the thought that anybody would expect CINCSAC to offer immunity across the board regardless of what had been done is incredible in my opinion.
. General Ellis
I think as I testified earlier that Mister Taft or his superior, Secretary Weinberger, had never discussed this with me. He obviously had been briefed, presumably by General Bruton or his office, on General Bruton’s understanding of the agreement. General Bruton never talked with me about whether or not SAC had offered immunity. He provided Mister Taft that information on the basis of one side of the questions only. Mister Taft, obviously, on the basis of that, thought there was an agreement of some kind. This was not the time, as far as I was concerned, to bring up the subject and introduce a new thought in here and I was just saying that regardless of whose agreement it is, it’s invalid.
. See n. 11, supra.
. On May 9, 1981, in a taped interview between Special Agent Hoffman and Lieutenant Cooke, Hoffman remarked:
That’s a hell of an offer they’re making. Because in their minds they don’t know that you haven’t given away everything that SAC owns, okay? You’ve said you haven’t. In their mind, they don’t really know it. They are willing to know it. They are still willing to let you take the Goddamn polygraph after that full disclosure, and if successfully passing it, at that stage still allow you option three. Now, if that doesn’t typify and amplify their concerns about their weapons system and negate their concerns about nailing you to the wall, I don’t know what the hell it means. Well, I mean that’s[..]They’re willing to accept you telling us that you’ve been spying for the Soviet Intelligence Service for the last fifteen years, as long as a full disclosure is made and you successfully resolve the issue with a polygraph. Just in case that didn’t come through loud and clear.
. Special Agent Hoffman
Well, I received a wide range of instructions. It wasn’t difficult to get any guidance at that time. And we were basically to interview Lieutenant Cooke, as I have previously testified to, without advisement of rights and to determine damage. That was the basic guidance and the basic course of action that we were pursuing at that time.
Q. When you received this advice, according to one of our interviews, Colonel Hoffman, you informed Mister Torpy that in your opinion the result would be tantamount to granting the accused immunity, is that correct?
A. Yes, Sir, I didn’t agree with the process.
. See n. 4, supra.
. General Leavitt
My concern was confirmed by that message that clearly the OSI and SAC were not singing from the same sheet of music.
. Unlike the Chief Judge, I do not believe the civil law principles of contracts and agency apply in this setting. However, I feel compelled to point out that it is well-settled that the doctrine of apparent authority — or equitable estoppel — is not applicable to one dealing with the United States Government:
The case no doubt presents phases of hardship .... Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority must be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. See, e.g., Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 L.Ed. 791; United States v. Stewart, 311 U.S. 60, 70, 61 S.Ct. 102, 108, 85 L.Ed. 40, and see, generally, In re Floyd Acceptances [74 U.S. 666], 7 Walls. 666, 19 L.Ed. 169.
Federal Crop Ins. Corporation v. Merrill, 332 U.S. 380, 383-84, 68 S.Ct. 1, 2-3, 92 L.Ed. 10 (1947).
Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit. Lee v. Munroe, 11 U.S. (7 Cranch, 366), 3 L.Ed. 373; Filor v. United States, 76 U.S. (9 Wall. 45, 49), 19 L.Ed. 549; Hart v. United States, 95 U.S. 316, 24 L.Ed. 479; Pine River Logging Co. v. United States, 186 U.S. 279, 291, 22 S.Ct. 920, 925, 46 L.Ed. 1164.
As presenting another ground of estoppel it is said that the agents in the forestry service and other officers and employees of the Government, with knowledge of what the defendants were doing, not only did not object thereto but impliedly acquiesced therein until after the works were completed and put in operation. This ground also must fail. As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. United States v. Kirkpatrick, [22 U.S.] 9 Wheat. 720, 735 [6 L.Ed. 199]; Steele v. United States, 113 U.S. 128, 134 [5 S.Ct. 396, 398, 28 L.Ed. 952]; United States v. Beebe, 127 U.S. 338, 344 [8 S.Ct. 1083, 1086, 32 L.Ed. 121]; United States v. Insley, 130 U.S. 263, 265-266 [9 S.Ct. 485, 489-450, 32 L.Ed. 968]; United States v. Dalles Military Road Co., 140 U.S. 599, 632 [11 S.Ct. 988, 998, 35 L.Ed. 560]; United States v. Michigan, 190 U.S. 379, 405 [23 S.Ct. 742, 751, 47 L.Ed. 1103]; State ex rel. Lott v. Brewer, 64 Alabama, 287, 298; State v. Brown, 67 Illinois, 435, 438; Den v. Lunsford, 20 N.Car. 407; Humphrey v. Queen, 2 Can.Exch. 386, 390; Queen v. Black, 6 Can. Exch. 236, 253.
Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09, 37 S.Ct. 387, 391, 61 L.Ed. 791 (1917).
Accord: Jacob Reed’s Sons, Inc. v. United States, 273 U.S. 200, 47 S.Ct. 339, 71 L.Ed. 608 (1927); Chase v. United States, 155 U.S. 489, 15 S.Ct. 174, 39 L.Ed. 234 (1894); Whiteside v. United States, 93 U.S. 247, 257, 23 L.Ed. 882 (1876); The Floyd Acceptances, 74 U.S. (7 Wall.) 666, 680, 19 L.Ed. 169 (1869); United States v. Bentley & Sons, Co., 293 F. 229, 234 (S.D.Ohio 1923).
Thus, in contracts as well as here, a government agent can only bind the Government by the exercise of actual authority.
. “[W]henever Congress conferred a power upon a particular authority in the court-martial system and intended that authority to give others the right to exercise the power, it expressly provided for such designation.” United States v. Butts, 7 U.S.C.M.A. 472, 474, 22 C.M.R. 262, 264 (1957).
. I.e., refer charges to trial, United States v. Bunting, 4 U.S.C.M.A. 84, 15 C.M.R. 84 (1954); withdraw charge from court-martial, United States v. Hardy, 4 M.J. 20 (C.M.A.1977); appoint court members, United States v. Ryan, 5 M.J. 97 (C.M.A.1978); detail military judge and trial counsel, United States v. Newcomb, 5 M.J. 4 (C.M.A.1978); suspend or remit sentence, United States v. Butts, supra; conduct vacation proceedings, United States v. Bingham, 3 M.J. 119 (C.M.A.1977).
. Where an agent has acted without authority and it is claimed that the principal has thereafter ratified his act, such ratification can only be based upon a full knowledge of all the facts upon which the unauthorized action was taken. This is as true in the case of the Government as in that of an individual. Knowledge is necessary in any event. Story on Agency, 9th ed. sec. 239, notes 1 and 2. If there be want of it, though such want arises from the neglect of the principal, no ratification can be based upon any act of his. Knowledge of the facts is the essential element of ratification, and must be shown or such facts proved that its existence is a necessary inference from them.
United States v. Beebe, 180 U.S. 343, 354, 21 S.Ct. 371, 375, 45 L.Ed. 563 (1901). In my view, this standard was not met here.
- A prosecutor who enters into an agreement of this kind has doubts about the defendant’s guilt. If the defendant fails the polygraph examination, such doubts may be removed and a faltering investigation energized. The prosecutor is less likely to agree to charge concessions. He knows that if the defendant takes the stand at trial he may wilt under the pressure of intensive cross-examination.
There is no way of assuring that the test results will not come to the judge’s attention. The defendant may therefore be unable, as a practical matter, to waive jury trial. The test results may strengthen a judgment of conviction resulting in imposition of a longer sentence or delay in parole.
. See Santobello ... [v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)].
. In view of my Brothers’ insistence on applying due process principles to this case, I would point out that the court below concluded “that agents of the Drug Enforcement Agency effected a willful and unjustified interference with Mrs. Morrison’s sixth amendment right to *372counsel.” United States v. Morrison, 602 F.2d 529, 530 (3d Cir. 1979) (footnote omitted). The court specifically rejected the remedies of suppression or reversal of the conviction, holding that only dismissal of the indictment with prejudice was appropriate. The Supreme Court reversed. 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981).