(concurring in part and dissenting in part):
I agree that the conversation between appellee and his commanding officer which occurred shortly after appellee’s exercise of his right to consult with counsel was not admissible as evidence against him. I agree that Mil.R.Evid. 410, Manual for Courts-Martial, United States, 1984, would bar admissibility of the evidence. United States v. Barunas, 23 MJ 71 (CMA 1986). I respectfully dissent from the majority’s characterization of this conversation as an interrogation.
I have elsewhere stated my grave reservations about applying civilian constitutional doctrines to military jurisprudence without thoughtful consideration of all aspects of military life. As I indicated in United States v. Reeves, 20 MJ 234, 237 (CMA 1985) (Cox, J., concurring in the result): Quite simply, we are not dealing with the police practices condemned in ... [Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ] and its progeny. Moreover, the inflexible application of this rule in the above-context might seriously undermine the important, if not vital, relationship between a company commander and a member of his unit.
I am especially concerned about applying the exclusionary rule to evidence “obtained by responsible command action.” United States v. Morris, 28 MJ 8, 14, 18 (CMA 1989) (Cox, J., concurring in part and dissenting in part). This case illustrates once again the traps, pitfalls, and obstacles placed in front of military officials trying— in good faith — to carry out the responsibilities incumbent upon them. Ironically, it is uncontradicted by appellee or any evidence in the record that the officer here— who happened at the time to be the acting commander of the unit — was trying to ensure that appellee understood the seriousness of the allegations and that he obtained counsel. It is one thing to decline a police interrogation at 2:00 a.m. and quite another to actually get over to the area defense counsel’s office and initiate an attorney-client relationship. Contrary to the majority’s view, the acting commander’s actions and purposes were anything but an “obvious redundance.” 29 MJ at 263.1
The majority opinion does an excellent job of building a syllogism to apply the rule enunciated in Edwards v. Arizona, supra, to the situation here. If one accepts the conclusion that the conversation between appellee and his superior was the “functional equivalent” of an interrogation, then of course the exclusionary rule applies to the fruits of the unlawful interrogation. United States v. Harris, 19 MJ 331 (CMA 1985). I, however, do not accept that conclusion.
If this was an interrogation, it is the strangest one I have seen in over 22 years at the bar and bench:2
*266Q. What, if anything, did you say to him after he reported to you?
A. As soon as he reported, I got the feeling that he wanted to make a comment and I understood from the investigator that he did want a lawyer and I says, “Say nothing.” And he says, “Yeah, but — ” I said “Don’t say anything. You need to go see a lawyer.” And at that time he made a spontaneous comment.
Q. And what was the content of the comment that he made spontaneously?
A. To the best of my memory, his comment was “What can I do to make this right? I’ll sign over my motorcycle; I’ll give him my pink slip, Article 15, lose a stripe, whatever.”
(Emphasis added.) I characterize this conversation as a spontaneous negotiation attempt by appellee: a plea not to be prosecuted.3
The facts presented here are closely akin to those in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), where Bradshaw “reinitiated” interrogation by asking, “What is going to happen to me now?” Critical to the decision in Bradshaw was the fact that the policeman reminded Bradshaw that “you do not have to talk to me.” “Say nothing” is much stronger language than “You do not have to talk.”
[N]ot ... all statements ... are ... the product of interrogation. As the Court in Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] noted:
“Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” ... (emphasis added).
It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. “Interrogations,” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
Rhode Island v. Innis, 446 U.S. 291, 299-300, 100 S.Ct. 1682, 1688-89, 64 L.Ed.2d 297 (1980) (footnote omitted), quoting Miranda v. Arizona, supra at 478, 86 S.Ct. at 1630.
It is obvious that this exchange between appellee and his superior officer was not “the act of ... questioning,” which, according to The Random House Dictionary of the English Language 698 (College rev.ed. 1980), is “interrogation.” It also was not the “functional equivalent” of “interrogation,” since “equivalent” means “equal in value, ... force [or] significance.” Id. at 447, 86 S.Ct. at 1613.
The “functional-equivalent” doctrine is invoked “[w]hen conversation is designed to elicit a response from a suspect,” at which time “it ... [becomes] interrogation, regardless of the subtlety of the approach.” United States v. Borodzik, 21 USCMA 95, 97, 44 CMR 149, 151 (1971) (emphasis added). It has a component of intentional action by the interrogator “designed to elicit a” confession.
*267Nothing in this record suggests that the officer intentionally and designedly set out to obtain a confession during this one-and-one-half to two-minute conversation wherein appellee was twice admonished not to say anything and was also advised to get a lawyer. Further, there is nothing to indicate that this was an orchestrated event, one “reasonably likely” to induce appellee to give an incriminating response.4 If there were such a suggestion — a pregnant pause, a raised eyebrow, anything — I would be the first to champion exclusion. The fact is, there can be no interrogation or the functional equivalent thereof when the would-be interrogator is doing everything possible to prevent the communication.
Interestingly enough, the Court of Military Review did not ground its opinion on the conclusion that the conversation was the “functional equivalent” of interrogation or involved a “reinitiation of interrogation.” Rather, the gravamen of that court’s ruling sprang from the serendipitous circumstance that both the accused and the officer were police officials. In the court’s judgment, “Edwards [v. Arizona, supra,] requires the police to ‘go away’ for a reasonable time once an accused has requested a lawyer”; therefore, because appellee was taken to meet with his superior officer, who also happened to be a military policeman, the requirements of Edwards were not met. United States v. Brabant, 26 MJ 899, 902 (AFCMR 1988), citing Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).5
The Court of Military Review created a bright-line rule which prohibits a police superior from talking to a subordinate who has invoked the right to counsel until counsel has been meaningfully provided. This might be termed the “glass bubble” rule.
In my judgment, the Court of Military Review was on the right track, although I emphasize that this case need not be resolved by applying civilian constitutional doctrine. As I view it, the jurisprudential value of this case does not lie in its unique facts. Instead, we should be addressing the tension between Edwards v. Arizona, supra, a rule designed to apply to police interrogations, and Article 31, Uniform Code of Military Justice, 10 USC § 831, a rule designed to protect servicemembers from inherently unequal superior-subordinate relationships.
I have no doubt that the concerns expressed by the Supreme Court in Miranda and Edwards can be accommodated in military jurisprudence. See United States v. Lewis, 12 MJ 205 (CMA 1982), wherein Judge Cook, speaking for the Court, gave an excellent treatment of the subordinate-superior relationship and the reasons for the enactment of Article 31. Wherever the balance be struck, however, the rules must be simple and straightforward; easy to teach and apply at the lowest levels of leadership. If the only way to ensure these constitutional values is to propound a *268rule prohibiting anyone from talking to anybody who has invoked the right to counsel, then so be it. But, if such a prophylactic rule is needed in the military society, we should say so and not create fictions such as the one perpetrated here.
A straight-forward rule would require the military community to isolate individuals who have invoked counsel rights and to adopt methods for identifying unapproachable persons to prevent inadvertent contamination (even that re-initiated by the suspect) such as here.6 The other extreme is to reject Oregon v. Bradshaw, supra, and hold that all statements made by a member after counsel has been requested are excluded.
I do not subscribe to the view that such prophylactic rules are necessary or appropriate, and I do not believe that such rules are required by the Constitution or by military due process. In any event, the rules heretofore announced by the Supreme Court have consistently dealt with the confrontation between police and citizens, and not with the working relationships developed over a period of time in a military command. I believe courts can examine the conduct of officials involved and rationally determine whether it constitutes interrogation or the “functional equivalent” thereof. There is a difference between contact for some legitimate purpose and interrogation.
Here there was no interrogation or anything remotely similar thereto. I would hold the conversation inadmissible because of what was,said and not because of the circumstances wherein it took place. Indeed, if appellee himself had requested permission to speak to the commander and had “reinitiated” their conversation, it would still be inadmissible, in my view, as a pretrial negotiation.
. Regarding the right to counsel, Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966), states:
Once warnings have been given, the subsequent procedure is clear____ If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
. It is interesting to note that appellee has never testified that he felt "compelled” to incriminate himself. U.S. Const. amend. V. The "interrogator” also did not testify that circumstances surrounding the conversation would lead a reasonably prudent sergeant in the United States Air Force to confess. It is interesting for me to note facts in evidence:
1. Appellee was on duty from 2300 hours until 0700 hours. Thus, the investigation and *266questioning took place during his normal duty day or some 30 minutes thereafter.
2. Appellee was never confined in a jail cell as are most civilians who are apprehended in the middle of the night for larceny of a motor vehicle.
3. The "interrogator” who was called as a witness to the conversation was a long-time acquaintance of appellee and a fellow air policeman; hardly the "heavy" that he is depicted to be.
. This is the reason that I concur in Part II of the majority opinion. If appellee had obtained counsel and if counsel had approached the commander with this same suggestion, no one would have considered it to be of evidentiary value.
. Compare Rhode Island v. Innis, 446 U.S. 291, 302-03, 100 S.Ct. 1682, 1690-91, 64 L.Ed.2d 297 (1980) (where the Supreme Court held Innis "was not subjected by the police to words or actions that ... [they] should have known were reasonably likely to elicit an incriminating response from him” and, thus, he "was not ‘interrogated’ within the meaning of Miranda ”) with Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (where the Court held there was "no reasonable basis for finding that Williams waived his right to the assistance of counsel” where "[d]espite ... [his] express and implicit assertions of his right to counsel, [the] Detective ... proceeded to elicit incriminating statements from" (id. at 405, 97 S.Ct. at 1243) him by "deliver[ing] what has been referred to ... as the 'Christian burial speech,' ” (id. at 392, 97 S.Ct. at 1236) without "prefacing] this effort by telling Williams that he had a right to the presence of a lawyer" or attempting “to ascertain whether Williams wished to relinquish that right,” id. at 405, 97 S.Ct. at 1243).
. The problem is not new to the military. Although decided before Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), United States v. Duga, 10 MJ 206 (CMA 1981), foretold the problems concerning informal pretrial admissions between service policemen. The lessons of Duga seem applicable here. This conversation was not an "official interrogation” and appellee could not have reasonably conceived it as such. Thus, neither Article 31, Uniform Code of Military Justice, 10 USC § 831, nor Edwards v. Arizona, supra, has been violated.
. Obviously such a rule would be unworkable. A commander has many other responsibilities which require his communication with an accused. For example, he must decide whether to confine him pretrial; he must deal with his dependants, his personal belongings, and his vehicle. If there is a decision not to confine the accused pretrial, the commander must then decide what duties he shall perform and what restrictions shall be imposed. In other words, a commander is confronted with a number of decisions regarding his unit and the accused which require communications. A "good commander,” as pointed out by the majority, will counsel and guide his subordinates, inspiring loyalty, trust, and confidence and insure that they understand their legal rights. I would suggest this is exactly what happened here. If not, appellee would most certainly have said so.