(concurring in the result):
Civilian judicial opinion holds unanimously that the federal civilian statutes on witness immunity vest authority to override a witness’ valid assertion of the constitutional right to remain silent to avoid self-incrimination exclusively in the Executive Branch of Government.1 Only “upon . .. request of the United States attorney” may a judge “issue ... an order requiring . . . [the witness] to give testimony . . . which he refuses to give ... on the basis of his privilege against self-incrimination.” 18 U.S.C. § 6003(a). A judge, therefore, cannot review for abuse of discretion an executive decision to deny or grant immunity to a particular witness. United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). Although a few cases have fashioned two very narrow exceptions,2 the great weight of authority also *57holds that a judge cannot confer immunity on his own initiative. United States v. D’Apice, 664 F.2d 75 (5th Cir. 1981); United States v. Turkish, 623 F.2d 769-772 (2d Cir. 1980); United States v. Housand, 550 F.2d 818 (2nd Cir. 1977), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977). Is the military rule on witness immunity different from the civilian rule?
Although the lead opinion refers to the federal civilian rule, it nonetheless deems it “[a] . . . preliminary question of importance” to determine “the nature of a grant of immunity in the military justice system.” 13 M.J. 46, 52. I am not sure whether this inquiry constitutes a holding or only an intimation that the military rule is different from the civilian rule. Either circumstance impels me to declare my conviction that the military rule operates the same way as the federal civilian rule.
A grant of immunity to a witness asserting his privilege against self-incrimination, independent of the federal civilian rule, was indirectly recognized in paragraph 148e, Manual for Courts-Martial, United States, 1951. Under the caption, “Interest or bias,” as a disqualification of a witness, it provided: “The fact that a witness has obtained a promise of immunity without which he may not have been willing to testify does not disqualify him as a witness.” However, the power to compel testimony from a recalcitrant witness relying upon the right against self-incrimination through the medium of the grant of immunity was first considered in United States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). There, the Court reviewed the background and text of the Uniform Code and concluded that the plethora of powers conferred upon a convening authority equated to the “pardon” power of the Executive. To me, that enumeration identifies the substantive nature of a grant of immunity and aligns it precisely with the federal civilian rule. My conviction is supported by a provision of the civilian law. This Court has been included in the definition of “court of the United States” (18 U.S.C. § 6001(4)) to which the immunity provisions apply. Although it is unlikely that any proceedings in this Court might necessitate a grant of immunity to a witness at the request of the United States attorney,3 inclusion of this Court with all the civilian courts identified in the statutory definition, represents to me congressional identification of the military grant of immunity with the civilian grant. It follows, therefore, that a military judge cannot review, for abuse of discretion, the decision of a convening authority to grant or deny immunity to a witness, whether the request for immunity is presented by trial counsel or the accused. United States v. Smith, 542 F.2d 711 (7th Cir. 1976); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976). Neither can the judge grant immunity on his own initiative. United States v. D’Apice, supra; United States v. Lenz, 616 F.2d 960 (6th Cir. 1980), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980). What, then, may a military judge do when a recalcitrant witness requested by the accused can apparently provide material, exculpatory testimony, but refuses to testify because of self-incrimination?
Defense-witness immunity increasingly has been the subject of judicial opinion and commentary. The cases and commentary are noted in United States v. Turkish, supra. I need not review them. Suffice it to say that I agree with these determinations by the Court of Appeals in Turkish :
1. The Sixth Amendment right to bring a witness into court “does not carry with it the additional right to displace a proper claim of privilege, including the privilege against self-incrimination.” Id. at 774.
2. The principle of fairness and the concept that a trial is a search for truth inher*58ent in the due process protection of the Fifth Amendment do not:
(a) Mandate “equalizing” the imbalance between the Government and the accused in respect to a grant of immunity any more than it does in respect to other enforcement procedures, such as search and seizure [id.; cf. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), United States v. De Palma, 476 F.Supp. 775 (S.D.N.Y.1979), reversed sub nom. United States v. Horwitz, 622 F.2d 1101 (2d Cir. 1980)]4; or,
(b) Require the Government “to assist the defense in extracting from others evidence the Government does not have.” 623 F.2d at 775.
As no constitutional provision confers upon an accused the right to compel immunity of a witness who asserts the privilege of self-incrimination and no provision of the Uniform Code of Military Justice or the Manual for Courts-Martial, United States, 1969 (Revised edition), accords such right, I am certain that the trial judge cannot dismiss the charges for a refusal of the Government to immunize the • witness at accused’s request. See United States v. Redding, 11 M.J. 100 (C.M.A.1981). However, other actions short of dismissal are within the judge’s authority; one such action is to continue the case to such time as the circumstances indicate are appropriate. Here, for example, the recalcitrant witness had been convicted of the same offense with which the accused was charged. If that conviction became final, the witness would have no further right to claim the right against self-incrimination and could be compelled to testify at the accused’s trial. Similarly, the trial judge can, with the accused’s consent, declare a mistrial if the proceedings were then past the point of attachment of jeopardy; in rescheduling the case for trial, he can accord the accused a further reasonable opportunity to request immunization of the witness, as was done here in respect to the witness Paul.
Turning to this accused’s attack upon the trial judge’s handling of his request for immunity of Holodinski, I would not inquire, as my Brother does, into whether defense counsel sufficiently established that Holodinski’s probable testimony would have exculpated the accused and presented no danger to the public interest. As the accused did not request a continuance, there is obviously no need to inquire into whether a denial of a continuance, on the showing made by the accused, would have been an abuse of discretion by the trial judge. United States v. Knudson, 4 U.S.C.M.A. 587, 16 C.M.R. 161 (1954).
For the reasons indicated, I would answer in the negative that part of subdivision a of the certified question which asks whether a military judge has authority to immunize, at accused’s request, a prospective defense witness who refuses to testify in reliance upon his right not to incriminate himself. I would also answer in the negative that part of subdivision b which asks whether a military judge can properly review a convening *59authority’s denial of immunity to a defense witness for an abuse of discretion.
My negative answers make unnecessary restatement of my views of the actions a military judge can take in response to an accused’s representation that a witness desired by him could provide material, exclupatory testimony, but refuses to do so because he fears self-incrimination. I agree to affirming the decision of the Court of Military Review.
. United States v. D'Apice, 664 F.2d 75 (5th Cir. 1981); United States v. Turkish, 623 F.2d 769, 772 (2d Cir. 1980); see also United States v. Davis, 623 F.2d 188 (1st Cir. 1980); United States v. Lenz, 616 F.2d 960 (6th Cir. 1980), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980); United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979); United States v. Wright, 588 F.2d 31 (2d Cir. 1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 467 (1979); United States v. Smith, 542 F.2d 711 (7th Cir. 1976); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976).
. Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980); United States v. La Duca, 447 F.Supp. 779 (D.N.J.1978), aff’d on other grounds sub nom. United States v. Rocco, 587 F.2d 144 (3d Cir. 1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979). United States v. Lenz and United States v. Alessio, both supra, reserved the question of the effect of deprivation of due process by the Government’s failure to grant immunity to key defense witnesses.
. Some of the services note that the Department of Justice has construed the Memorandum of Understanding between the Department of Justice and the Department of Defense of November 1955 to require coordination “with the Department of Justice through the medium of the staff judge advocate and the local United States Attorney concerned” in respect to cases within the scope of the memorandum. Para. 2-8, AFM 111-1 (C. 3).
. Horwitz had requested limited use immunity be granted to two defense witnesses who refused to testify on Fifth Amendment grounds.
“The prosecutor . . . rejected a suggestion by the” trial judge that the witnesses “be granted . . . use immunity, noting that both . . . were the subjects of a continuing investigation.” After conviction Horwitz moved for a new trial, “arguing . . . that he had been denied a fair trial by the government’s refusal to immunize” his witnesses. 622 F.2d at 1104. The trial judge granted his motion for a new trial. Although finding no bad faith in the prosecutors, the trial judge concluded, “Horwitz was deprived of due process of law because broad immunity was granted to government witness Brodsky and, to a lesser extent, Kosman, while two witnesses to the events at issue sought to be called by Horwitz were unavailable because of the government’s failure to grant them even limited use immunity.” Quoted, id. at 1104. The Court of Appeals reversed. It cited Turkish for the propositions: (1) “due process considerations of fairness seldom, if ever, require immunization of potential defense witnesses,” id. at 1105; and (2) “trial judges should summarily reject claims for defense witness immunity whenever the witness for whom immunity is sought is an actual or potential target of prosecution.” 622 F.2d at 1105, quoting 623 F.2d at 778. The case was remanded to the trial judge to “consider entering a judgment of conviction upon the jury verdict” “if Horwitz’ reverse immunity claim is found to be untenable in light of Turkish.” Id. at 1106.