(dissenting):
I
Paragraph 68h of the Manual for Courts-Martial, United States, 1969 (Revised edition) authorizes an officer exercising general court-martial jurisdiction to promise or grant immunity. This immunity is transactional and forbids prosecution of the offenses disclosed. While such an “immunity bath” may enlist enthusiastic cooperation from the witnesses immunized, the obvious disadvantage is that a culprit may thereby escape prosecution — even though the Government already possesses adequate information to establish his guilt at the very time that he is granted immunity.
For many decades, it was assumed that the decisions in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), and Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), required that transactional immunity be granted as a prerequisite for compelling a witness to give self-incriminating testimony. During that period more than fifty federal statutes and many state laws were enacted which authorized transactional immunity under varying circumstances. See Kastigar v. United States, 406 U.S. 441, 447, 92 S.Ct. 1653, 1657, 32 L.Ed.2d 212 (1972); Green, Grants of Immunity and Military Law, 53 Mil.L.Rev. 1, 7 (1971). Then, in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the Supreme Court indicated that testimonial immunity — which only shields the witness from use of his testimony or other evidence derived therefrom — would suffice as a basis to compel a witness to give testimony which he claimed would be incriminating.
Accordingly, Congress replaced the diverse laws concerning immunity grants with the Federal Immunity of Witnesses Act of 1970, which was passed as part of the Organized Crime Control Act of 1970, Public Law No. 91 — 152, 84 Stat. 926, and is codified in 18 U.S.C. § 6001-6005. Under this Act, whose constitutionality was upheld in Kastigar v. United States, supra, a witness may be compelled to testify under a grant of immunity which protects him against the use in criminal proceedings of the testimony he gives and of any evidence derived therefrom.1 If the witness fails to testify after receipt of the order granting immunity, he can be punished for contempt. If he testifies falsely, he can be prosecuted for perjury. Moreover, he remains amenable to prosecution for offenses as to which the Government can prove its case by evidence independent of his testimony and its fruit.
The Federal Immunity of Witnesses Act authorizes immunity “in a proceeding before or ancillary to — (1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a Joint Committee of the two Houses, or a committee or a subcommittee of either House.” 18 U.S.C. § 6002. “[Cjourt of the United States” is defined to include federal district courts, bankruptcy courts, and several other designated courts, including “the Court of Military Appeals.” 18 U.S.C. § 6001(4). However, courts-martial are not included. An “agency of the United States” refers to “any executive department as defined in section 101 of title 5, United States Code, a military department as defined in section 102 of title 5, United States Code,” and a variety of specified federal boards and commissions. 18 U.S.C. § 6001(1). Whether these definitions are *60broad enough to include a court-martial is uncertain. See Green, supra at 27. If courts-martial are not included within the coverage of this Act, which was designed to supersede prior federal immunity legislation, did it preempt the power of military commanders to grant immunity under paragraph 68h of the Manual? Also, did the Act authorize, prohibit, or otherwise affect grants of testimonial immunity for witnesses appearing at trial by court-martial?
The confusion generated by the Federal Immunity of Witnesses Act is compounded by the circumstance that, although the Supreme Court has embraced testimonial immunity, the Manual for Courts-Martial still contains no explicit provision for it. Paragraph 68h still refers only to transactional immunity. Mil.R.Evid. 301(c)(1), in dealing with the privilege against compulsory self-incrimination, provides:
Immunity generally. The minimum grant of immunity adequate to overcome the privilege is that which under either paragraph 68h of this Manual or other proper authority provides that neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial other than in a prosecution for perjury, false swearing, the making of a false official statement, or failure to comply with an order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity.
Since paragraph 68h of the Manual — as earlier noted — does not even refer to testimonial immunity, the most that can be said for the cross-reference to that provision is that it implies that the power to grant transactional immunity includes the power to grant the lesser immunity against the use, or derivative use, of the immunized testimony. According to the Draftsmen’s analysis of Mil.R.Evid. 301(c)(1), the reference to “other proper authority” in the Rule “recognizes that immunity may be granted under federal statutes as well as under paragraph 68h of the Manual.” Obviously, however, this recognition does not help much if federal statutes concerning immunity do not themselves apply to courts-martial — an issue which, as already noted, still seems to remain open.
Despite the possible uncertainty as to a legal basis for so doing, grants of testimonial immunity are being made by convening authorities — as we are well aware from examining various records of trial. Indeed, in the case at hand, such immunity was granted to two prosecution witnesses — Privates Crone and Gary — and to a defense witness — Corporal Paul.
Of course, if a witness testifies before a court-martial pursuant to an order premised on an unauthorized grant of immunity, he nonetheless will be protected from the use of his testimony against him. Article 31(a) of the Code, 10 U.S.C. § 831(a), provides, “No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him”; Article 31(d) dictates, “No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.” Thus, the immunized testimony cannot itself be used against the accused in a trial by court-martial.2 Moreover, as construed by our Court, the exclusionary rule under Article 31(d) applies to the fruit of an incriminating statement. Cf. United States v. Haynes, 9 U.S.C.M.A. 792, 27 C.M.R. 60 (1958). Thus, because of Article 31(d), a witness who is compelled to testify in a court-martial — whether or not the official who exercised such compulsion had a legal right to do so — will receive testimonial immunity akin to that called for by Murphy v. Waterfront Commission, su*61pra, and authorized by 18 U.S.C. § 6003 in those proceedings to which that section applies. However, the existence of this protection does not adequately answer the issue of whether there is a right to grant testimonial immunity; instead it leaves open whether a witness who declines to testify, even though he is ordered to do so and even though under Article 31(d) any statements he makes cannot be used as evidence against him, may be punished.3
Paragraph 68h of the Manual may provide some basis for grants of testimonial immunity by an officer exercising general court-martial jurisdiction. The premise would be that, since this official can grant the more sweeping transactional immunity, he must likewise have the power to grant testimonial immunity. Of course, this rationale assumes that enactment of 18 U.S.C. §§ 6001-6005 was not intended by Congress to preempt the field of testimonial immunity — an assumption which is not indisputable. Moreover, it can be argued that the power to forestall prosecution is different in kind from the power to control evidence to be received in future judicial proceedings, so that the commander’s possession of the former power does not necessarily signify that he also possesses the latter.
In one way, the provisions of the Federal Immunity of Witnesses Act tend to support the view that testimonial immunity can be granted in the administration of military justice. Certainly, it would be odd for Congress to authorize such immunity for a number of courts — including courts of appeals, such as our Court, which have almost no occasion to grant testimonial immunity — and to administrative agencies — including “military departments” — but not to authorize the grant of such immunity in trials by courts-martial. However, the failure to enumerate courts-martial in the definition of “courts of the United States” in 18 U.S.C. § 6001(1) gives rise to a negative implication that courts-martial were not within the purview of the Act. On the other hand, if courts-martial are an “agency of the United States,” rather than a “court of the United States,” such treatment would be at odds with an underlying theme of the Uniform Code of Military Justice. Cf. United States v. Bennett, 12 M.J. 463, 468 (C.M.A.1982) (which interprets “court of the United States”). Furthermore, under 18 U.S.C. § 6004(a), a grant of testimonial immunity in a court-martial would then require “the approval of the Attorney General”; and obtaining such approval has not heretofore been the prevailing practice.
Perhaps Article 46 of the Code provides a source of authority for grants of testimonial immunity in stating:
Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue.
The grants of testimonial immunity authorized by the 1970 legislation might be subsumed under the term “[pjrocess ... to compel witnesses to appear and testify”; and such a construction would avoid the irrational gap which otherwise is left by a literal construction of the definitions in 18 U.S.C. § 6001.
Furthermore, since a court-martial is a “court,” it may possess some inherent authority to grant immunity in accord with Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). There the Supreme Court ruled that testimony given by a defendant in order to establish his standing to object to an unreasonable search and seizure cannot thereafter be received in evidence to establish his guilt. By authorizing this judicially enforced testimonial immunity, the Supreme Court laid a foundation for requiring that a defendant establish his standing — even if, in so doing he is, as a practical matter, “compelled” to incriminate himself. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 *62L.Ed.2d 619 (1980)4; Simmons v. United States, supra. Similarly, in Murphy v. Waterfront Commission, supra, the Court judicially established an immunity from use in a federal prosecution of testimony which a state-created commission sought to compel by granting transactional immunity as to violations of state law.5
Obviously, it would be desirable if the Federal Immunity of Witnesses Act were promptly amended to include courts-martial explicitly within its purview and if the Manual for Courts-Martial were revised to deal more specifically with testimonial immunity. Nonetheless, upon reading Article 46 of the Code in tandem with the Federal Immunity of Witnesses Act, supra, and against the backdrop of a court’s inherent authority to enforce testimonial immunity under some circumstances, I am convinced that a sound legal basis exists for granting testimonial immunity in connection with trial by court-martial.6
Article 46 provides that witnesses in courts-martial shall be obtained “in accordance with such regulations as the President may prescribe.” In view of the role which the President has assigned convening authorities and military judges in compelling the attendance of witnesses, see para. 115a, Manual, supra, I conclude that these are the officials empowered to determine whether testimonial immunity will be granted a witness who is to testify before a general or special court-martial.
II
Even though testimonial immunity does not preclude prosecution, it may hinder subsequent efforts by the Government to prosecute the immunized witness. See Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C.L.Rev. 299 (1981); Comments, Defense Witness Immunity and the Right to a Fair Trial, 129 U.Pa.L.Rev. 377 (1980) (hereafter Comments). In the later prosecution of an immunized witness, the Government bears the burden of proving that its evidence did not stem from his immunized testimony, Kastigar v. United States, supra ; if it fails to do so, the evidence will be excluded and the Government cannot establish its case. Indeed, to avoid defense arguments that the government’s evidence is derived from the immunized testimony, the prosecutor in the case where the immunized testimony was given may be replaced by another prosecutor to conduct the subsequent trial of the immunized witness; sometimes, before testimony is given pursuant to a grant of immunity, a prosecutor will in some way certify or record his available evidence so that he will be able to establish subsequently that this evidence was obtained independent of the immunized testimony. Id.
Of course, before asking that a prospective government witness be immunized, trial counsel will undoubtedly consider the likelihood that the witness will be prosecuted and, if so, whether a grant of immunity may impede that prosecution because of probable difficulty for the Government in establishing an independent source for the evidence that will be presented at that time. On the other hand, a defense counsel will not labor under such constraints in deciding whether to ask that a witness be immunized. Indeed, it is conceivable that a request for immunizing a witness may be, in part, a defense tactic intended to discon*63cert or inconvenience the prosecutor by posing a possible impediment to an intended future prosecution.7 Accordingly, in ruling on a defense request for a witness, a convening authority or military judge should give great weight to any prosecution assertion that the testimonial immunity will impede the contemplated prosecution of the witness who is claiming his privilege against self-incrimination.8 Nonetheless, since testimonial immunity leaves the prosecutor “in substantially the same position as if the witness had claimed his privilege in the absence of a ... grant of immunity,” see Murphy v. Waterfront Commission, supra 378 U.S. at 79, 84 S.Ct. at 1609, the prosecutor’s wishes need not be determinative. In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court ruled that due process had been violated by a state procedural rule which denied the defendant a fair opportunity to present available testimony in his behalf. Likewise, “due process” and “fair trial” considerations cannot be ignored in disposing of a request that testimonial immunity be granted a defense witness. See Note, supra ; Comments, supra.9 Also, the Sixth Amendment provides some support for a claim that, if prosecutors can obtain testimonial immunity for government witnesses, then an accused is entitled to the benefits of a similar procedure as part of his right “to have compulsory process for obtaining witnesses in his favor.”10
However, an accused servicemember’s constitutional rights need not be considered further since in military justice, Article 46 provides an accused this statutory right;
The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.
In my view, this language requires that, if a procedure exists — whether or not properly authorized by statute — whereby a prosecutor can obtain testimonial immunity for government witnesses, the same procedure must be made available to the defense. Moreover, the same criteria applied to requests by the Government should be employed for requests by an accused.11
Where a prospective government witness is involved, the criterion of effect on a future prosecution will be applied automatically by the trial counsel in deciding whether even to request immunity for the witness. Where the defense requests immunity, the responsibility will rest on the trial counsel to inform the convening authority or military judge if a grant of testimonial immunity would probably impede a prospec*64tive prosecution of the immunized witness. In that event, the convening authority or judge should give weight to the government’s representations; if they appear to be well-founded, the request should be treated in almost the same manner that a request for transactional immunity would be.
Ill
In the case at bar, the military judge misconceived his responsibilities — a not surprising occurrence in light of the general confusion surrounding grants of immunity in military law. For one thing, the judge apparently concluded that he possessed no authority to rule on testimonial immunity and that only the convening authority could do so. Nonetheless, in the instance of one defense-requested witness. Corporal Paul — the judge sought to do indirectly that which he did not believe he was authorized to do directly. Had his premise been correct as to his lack of authority, the judge would in my view have erred in the remedy that he employed. See United States v. Redding, 11 M.J. 100 (C.M.A.1981). However, since under my analysis the military judge himself possessed the authority to grant testimonial immunity and since that witness did testify pursuant to an immunity grant from the convening authority, the military judge’s error is immaterial.
On the other hand, the military judge committed prejudicial error by his ruling on the request that Private Holodinski be granted testimonial immunity. Of course, he did not accede to the trial counsel’s fallacious contention that the defense request should be denied because the witness would probably testify falsely at the court-martial. Whatever the valid reasons may be to deny a request for immunized testimony, it cannot be predicated on an assertion by trial counsel that, if immunized, the witness probably will commit perjury.12 Unfortunately, however, the military judge concluded that, although testimonial immunity should be granted as to Corporal Paul — who had not yet been prosecuted — he should uphold its denial for Holodinski — who had been tried and convicted but whose conviction was not yet final on appeal.
Of course, Holodinski still retained his privilege against self-incrimination with respect to offenses which were the subject of his conviction pending appeal; but the circumstance that the Government already had convicted Holodinski reduces to the vanishing point the validity of any contention that he could not be convicted without the use of the immunized testimony. Admittedly, the possibility existed that Holodinski’s conviction could be set aside and a rehearing ordered, in which the Government might seek to present additional evidence and, in that event, the prosecution would bear the burden of establishing that the additional evidence was not derived from testimony given by Holodinski pursuant to an immunity grant.13 This contingency is remote enough that it adds little weight when balanced against the seeming materiality of Holodinski’s testimony. In short, the military judge obviously denied the defense request for Holodinski’s immunized testimony because of his misconception of the applicable law: consequently, Villines was denied the testimony of an important eyewitness.14
*65IV
My answers to the certified questions have been adequately presented in the foregoing discussion; so they need not be reiterated here. Under the circumstances, I would not allow the findings of guilty to stand; I would remand the case either for a rehearing or, at the least, for a DuBay hearing which can inquire into the testimony that Holodinski would have given.15
. However no protection is granted — nor need be granted, Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956)-with respect to civil proceedings or use of such evidence other than in a criminal case. See 18 U.S.C. § 6002.
. Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, does not purport to extend this prohibition to use of the evidence in a criminal proceeding in a federal district court or in a state court. Perhaps, under the reasoning of Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the statutory exclusionary rule would be extended to other federal courts and to state courts.
. Moreover, since Article 31 applies only to servicemembers, it would be irrelevant in seeking immunized testimony from a civilian witness.
. By establishing this testimonial immunity, the Court was enabled to overrule Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which gave automatic standing to a defendant charged with an offense in which possession was an essential element. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
. The occasion to create such immunity arose from the holding in Murphy that, to be valid, a grant of immunity by a state must give protection in connection with federal prosecutions, and vice versa.
. Under the reasoning of Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), whereunder trial by summary court-martial is not a “criminal prosecution” for purposes of the Sixth Amendment, I doubt that testimonial immunity can be granted in connection with such a trial, regardless of the summary court’s power to subpoena witnesses and administer oaths.
. We must take into account the possibility that — regardless of the ethics of doing so — a defense counsel may seek to assert certain rights as a means of enhancing the government’s willingness to plea bargain. See, e.g., United States v. Killebrew, 9 M.J. 154 (C.M.A.1980).
. Other factors to be taken into account would include the seriousness of the offense being tried as compared to the offenses for which the witness' might be prosecuted and whether it appears likely that the testimony to be elicited from the witness, if he is granted immunity, will be material and clearly exculpatory of the accused.
. A request for testimonial immunity is quite different from a request for transactional immunity. The latter involves a decision that one person shall receive complete immunity from prosecution in order to establish the guilt or innocence of another. In such a situation, the discretion of prosecutors should be almost absolute; the right to compel immunity, if it exists at all, undoubtedly is limited to a situation where defendant is charged with a capital offense or other serious felony and the prospective witness claims privilege only as to some minor offense.
. This contention relies on Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which held that an arbitrary evidentiary rule which precluded the defendant from offering certain exculpatory evidence violated his Sixth Amendment right to process, as incorporated in the Fourteenth Amendment. The preeminent analysis of the Sixth Amendment right to “compulsory process” — as interpreted in Washington v. Texas, supra-is offered in Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 166-70 (1974). See United States v. Vietor, 10 M.J. 69 (C.M.A.1980).
. As noted earlier, a major criterion should be whether the grant of testimonial immunity will impede significantly the prospective prosecution of the immunized witness.
. The lead opinion agrees with this proposition, but nevertheless upholds the convening authority’s denial of immunity, even though no reasons were given for the denial; so presumably it was based on the improper grounds expressed to the convening authority by the trial counsel.
. Of course, there is nothing in the record to suggest that the convening authority had this in mind when he denied the defense request that he immunize Holodinski. At this late date, I believe it inappropriate for us to try to supply a justification for the convening authority’s action. Likewise, it is impossible for me to understand the trial judge’s distinction between testimonial immunity for a witness who has already been convicted and for three witnesses who have not even been tried. The distinction is at 180 degrees with the ruling.
. According to the lead opinion Holodinski’s testimony was “potentially material” but not shown by appellant to be “clearly exculpatory.” 13 M.J. 46, 56. Of course, when a prospective witness will not speak, it is very difficult to establish in advance that his testimony will be “clearly exculpatory.”
. See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967); see also United States v. Killebrew, supra; United States v. Vietor, supra. Presumably, the conviction of Holodinski has become final by now, so he no longer will have a privilege against self incrimination. See Mil.R.Evid. 301(c). If not, the defense request for testimonial immunity can be reconsidered by the military judge in light of the situation that exists at the time of the rehearing.