(dissenting):
Judge Cox states that “the sole question we must decide is whether a special agent of the CID knowingly approached appellant and got him involved in this transaction in violation of Army regulations.” In response to this question, he recites a finding by the military judge “[t]hat the CID did not know that the accused was in any sort of rehabilitation program until AFTER he had been targeted as a possible source of the distribution of drugs.” Concluding that “[tjhere is ample evidence of record to support [this] factual finding[ ] of the military judge,” Judge Cox impliedly answers the question, “No.” 33 MJ at 358.
*361The lead opinion errs, however, by phrasing the question too narrowly and, consequently, errs as well in its answer.
I
In the view of many, illegal drugs is the single most serious law-enforcement problem facing governments at all levels today. Drug abuse is a killer: It kills bodies; it kills spirit; it kills imagination; it kills love. It is not hyperbolic to call the drug epidemic in this country a human and social tragedy. Appellant’s personal downfall, summarized in footnote 3 of the lead opinion, is all too common.
Law-enforcement efforts, however, are not enough, alone, to remedy this sickness. We cannot — and we do not — give up on the lives and souls of those whose addictions own them; we can — and we do — put huge efforts into helping the helpless regain control of their own destinies. This not only is the morally right thing to do, but also it is socially beneficial.
Rehabilitation of a drug addict is extremely difficult. The physical and psychological torment that the addict experiences is a personal hell that, I am confident, cannot be fully appreciated by anyone who has not suffered the experience. It is, as well, a fragile process — one that is not without inherent steps backward and one that easily can be frustrated by outside influences.
To help remove some extraneous factors that might make rehabilitation all but impossible, Congress mandated confidentiality with respect to patients’ participation in any federally assisted drug-treatment program. See 42 USC § 290ee-3(a). This confidentiality extends even to generally proscribing use of records of program patients “to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.” 42 USC § 290ee-3(c). It is thus clear that, in the conflict that sometimes arises between law-enforcement and genuine rehabilitation efforts, Congress conceptually has protected the latter even at the limited expense of the former.
Following this lead, the Army has imposed reasonable self-restraint on its law-enforcement activities in order to protect the hoped-for success of its rehabilitation effort under the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). For instance, paragraph 2-16a of Army Regulation (AR) 600-85, Personnel — General: Alcohol and Drug Abuse Prevention and Control Program (21 Oct. 88), states:
It is Army policy to encourage voluntary entry into the ADAPCP. Military police, Criminal Investigation Division [sic] (CID) special agents, and other investigative personnel will not solicit information from clients in the program, unless they volunteer to provide information and assistance.
Also, paragraph 2-166 of this same regulation recognizes:
Title 42, Code of Federal Regulations, prohibits undercover agents from enrolling in or otherwise infiltrating an alcohol or other drug treatment or rehabilitation program for the purpose of law enforcement activities.
See n. 2 of the Chief Judge’s separate opinion.
In the same vein, paragraph 3-7, AR 195-2, Criminal Investigation: Criminal Investigation Activities (30 Oct 85), charges:
In compliance with the Army’s ADAPCP policy, CID will investigate participants in ADAPCP for controlled substance offenses only if the offense occurred after entry into the program or if the participant has been identified as a suspect or subject prior to the time of entry into the program. Participants in ADAPCP will not be knowingly approached by CID special agents for the purpose of soliciting information about controlled substances distribution unless the participant voluntarily offers to provide such information.
Even more pointedly, paragraph 2-5b(5), CID Regulation 195-15, Criminal Investigation: USACIDC Source Program (1 Nov. 1987), asserts:
*362The Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) prohibitions and restrictions are defined in AR 600-85. USACIDC special agents and other investigative personnel, to include sources, will not solicit information from participants in ADAPCP. Information which is volunteered is acceptable, as long as it is not obtained within an ADAPCP facility or in such a manner as to jeopardize the safety of the source or in a way which compromises the credibility of the ADAPCP.
II
This regulatory approach toward safeguarding the integrity of ADAPCP may fairly be summarized as follows: If an ADAPCP patient has been identified as a drug suspect prior to his entry into the program, the investigation may continue; additionally, law-enforcement efforts may be pursued to investigate any suspicion of illegal drug activity that occurs after the patient is enrolled in the program. As the lead opinion puts it, “It is not the purpose of drug rehabilitation programs to provide a safe harbor for those who continue to engage freely and voluntarily in subsequent criminal activity.” 33 MJ at 358.
Other than these caveats, however, ADAPCP participants are to be left alone, free from any government contacts that might well frustrate the successful rehabilitation of the patient. Any action that might psychologically lure a flawed and vulnerable addict back into the environment he is trying so mightily to shun is morally reprehensible and legally proscribed.
In my view, that is what happened here. To clear up a perceived drug problem in the very office building that housed the headquarters of the Army’s Criminal Investigation Command, CID agents approached Powell and offered him assistance in a variety of ways; in return, Powell was to furnish the agents the names of five people in the building who were “dealing drugs.” Powell submitted appellant’s name as one of the five.
Appellant came to Powell’s mind because the two of them had, in the past, used cocaine together. Powell candidly admitted at trial, however, that he had no knowledge at all that appellant ever had sold drugs. When asked why he had said appellant was a seller when that was not true, he answered:
A: Because of the position I was in.
Q [DC]: What position were you in?
A: I was trying to, I guess, run away from my problems and get [back] in the Army, but I had these charges hanging over my head that they [the CID agents] said they could get rid of. They told me that if I produced some names and helped them get, I think it was, they came up — they said like five people, then they would squash the charges. So I was coming up with some names.
Not only did Powell know, at least to the extent of their relationship, that appellant was not a drug dealer, but Powell also knew that appellant was in a drug rehabilitation program — and he knew it in the first moments of his initial telephone conversation with appellant. While Agent Duperron, Powell’s contact, could not “recall” whether Powell had told him early on about appellant’s rehabilitation participation, he acknowledged that Powell “could have” told him that.
In any event, the record makes clear that Powell, acting as a source and informant for the CID, falsely identified appellant to the CID as a drug dealer, knowing of appellant’s participation in a drug rehabilitation program. Additionally, Powell may even have told Agent Duperron of this participation. Thereafter, Powell made contact with appellant, while the latter was . in the program, urging him to do something that, so far as Powell knew, appellant never had done before: distribute drugs.
Assuming, for present purposes, that Powell did not tell his handler, Agent Duperron, about appellant’s program participation, the Government cannot escape the taint associated with Powell’s own knowledge of this participation. “The Govern*363ment cannot make such use of an informer and then claim disassociation through ignorance.” Sherman v. United States, 356 U.S. 369, 375, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958). See para. 1-2d, CID Reg. 195-15 (“Registered sources are always considered agents of the Government.”).
It is this last point that is the flaw both in the military judge’s finding and in the lead opinion. In looking to see what the CID did or did not know, the military judge failed to consider Powell as part of the CID for this purpose; in my view and based on the authority just cited above, he erred in that regard. Similarly, in limiting the “sole question” to “whether a special agent of the CID ... approached appellant” while having the knowledge that appellant was a participant in a drug rehabilitation program, Judge Cox inappropriately excludes Powell — an informant and registered source — from the scope of his inquiry.
As the lead opinion quite aptly states, “Powell, the informant, was given a free hand to try to catch persons distributing drugs.” 33 MJ at 358. Obviously, he had too free a hand! The Government cannot turn loose a desperate drug addict as an informant and then later seek to shield itself from responsibility for his actions and his knowledge.
The fact of the matter is that, in contravention of both the spirit and the letter of the drug-rehabilitation-program concept and in contravention of Army-wide and CID regulations, appellant was approached by the CID while he was a rehabilitation patient and lured back into the drug environment that he had spent countless hours trying to shirk and that the government had spent countless hours and dollars helping him shirk. This was unlawful and immoral, to say nothing of plain stupid.
Accordingly, I dissent.