(concurring in part and in the result):
I agree with the result of the lead opinion and much of its reasoning, but there are several points on which I must register my disagreement.
First, trial counsel did not violate Federal law in issuing and serving subpoenas duces tecum in this case! Article 46, Uniform Code of Military Justice, 10 USC § 846, provides:
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 and shall run to any part of the United States, or the Territories, Commonwealths, and possessions.
Federal courts clearly have the authority to compel the appearance of witnesses and other evidence. Fed.R.Crim.P. 17(a) and (c); cf. RCM 703(e)(2)(B), Manual for Courts-Martial, United States, 1984.
As to mechanics, Congress plainly delegated to the President the authority to prescribe Rules for Courts-Martial, Art. 36(a), UCMJ, 10 USC § 836(a), and the President designated trial counsel as the issuing authority in general courts-martial. RCM 703(e)(2)(C). Nothing in the Right to Financial Privacy Act, 12 USC §§ 3401-22, affects court-martial process. 12 USC § 3413 (e); see also Doe v. Board on Professional Responsibility of District of Columbia Court of Appeals, 717 F.2d 1424, 1427 (DC Cir.1983). Moreover, nothing in the Fourth Amendment provides appellant a haven in the records of the very financial institutions he defrauded. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).
Thus trial counsel’s issuance of the subpoenas was perfectly legal. Needless to say, issuance of a legal subpoena does not violate “military due process.”
Whether the subpoenas could be enforced in the manner intended by trial counsel may be another question, but it does not affect their legality. In United States v. Bennett, 12 MJ 463 (CMA1982), we recognized that a civilian witness cannot be compelled to travel outside the United States to appear at a court-martial. Noting in Bennett merely gives the witness the option of declining a foreign appearance. Clearly, the witness can be required to appear at a forum within the United States for an evidentiary hearing, deposition, or other proceeding as needed. Cf. United Staes v. Crockett, 21 MJ 423 (CMA), cert. denied, 479 U.S. 835, 107 S.Ct. 130, 93 L.Ed.2d 74 (1986). In any event, the right recognized in Bennett is the witness’, not the accused’s.
Thus there was no bar to admission of the evidence in this case.