with whom Senior Judge NAUGHTON joins, dissenting in part:
I dissent from the holding that a probable cause review of appellant’s confinement was not conducted within forty-eight hours, as required by County of Riverside v. McLaughlin, 500 U.S.-, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), and Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and as applied to the military by Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). I specifically disagree with the conclusion that military judges and military magistrates are the only individuals capable of performing a valid probable cause review of pretrial confinement. I also disagree with the assumption that the procedure set forth in R.C.M. 305(i) is the sole procedure available in the military for accomplishing a probable cause review of confinement. I agree that the findings of guilty and the sentence should be affirmed.
In Gerstein v. Pugh, the United States Supreme Court held that a person arrested without warrant and held for trial on an information is entitled to a prompt judicial determination of probable cause by a neutral and detached magistrate, under the Fourth Amendment to the Constitution. The person making this determination does not necessarily have to be an attorney, but must be independent from the police or prosecution. Gerstein, 420 U.S. at 118, 95 S.Ct. at 865. McLaughlin defined a prompt review as one conducted within forty-eight hours. McLaughlin 500 U.S. at -, 111 S.Ct. at 1670, 114 L.Ed.2d at 63.
In Courtney, the United States Court of Military Appeals applied the requirements *716of Gerstein to the military.1 1 M.J. at 270. Chief Judge Fletcher further stated that since the military did not have a bail system, “a neutral and detached magistrate must decide more than the probable cause question. A magistrate must decide if a person could be detained and should be detained.” Courtney, 1 M.J. at 271. Although the analysis of R.C.M. 305(i) indicates the rule was promulgated to comply with Gerstein, that conclusion may be faulty. For the Army, at least, R.C.M. 305(i) arose from the pilot magistrate program, which was established to comply with the Bail Reform Act of 1966, 18 U.S.C. § 3152(2). The pilot magistrate program was in existence prior to Courtney. See Courtney, 1 M.J. at 271 n. 14.
Unlike the civilian system, in the military a soldier is not placed in pretrial confinement by police officials. Several probable cause determinations are made for pretrial confinement. Only a commanding officer, to whose authority an officer is subject, can order pretrial confinement of an officer. See R.C.M. 304(b)(1) and 305(c). Only an officer can order enlisted personnel into pretrial confinement. R.C.M. 304(b)(2) and 305(c). Probable cause is required for pretrial confinement, and the officer ordering pretrial confinement must make that probable cause determination. See R.C.M. 304(c) and 305(d). If the officer ordering pretrial confinement is not the commanding officer of the prisoner, a report must be made to the commanding officer who must make another probable cause determination. See R.C.M. 305(h). A determination to continue pretrial confinement must be placed in a memorandum with supporting documentation and forwarded to another officer for what is essentially another probable cause determination under R.C.M. 305(i). It is this latter determination which my brothers require to satisfy Gerstein, and it is that with which I disagree.
The probable cause determination made by the officer who initially orders a soldier into confinement or any of the probable cause determinations discussed in the previous paragraph are sufficient to satisfy the Gerstein and McLaughlin requirements so long as the officer making the determination is neutral and detached. It has been held that a commanding officer of a soldier is neutral and detached. See United States v. Lopez, 35 M.J. 35 (C.M.A. 1992); see also United States v. Ezell, 6 M.J. 307 (C.M.A.1979).
In the ease before us, as evidenced by the record and the stipulation of appellant and counsel at trial, appellant’s absence without leave was terminated on 26 June 1991 by his apprehension by military police at the Navy exchange. Appellant was placed in pretrial confinement on 27 June 1991 by his commanding officer.2 On 28 June 1991, LTC R conducted a “neutral and detached" review of appellant’s confinement, and determined that probable cause existed to believe that the accused had committed offenses under the Uniform Code of Military Justice, and that continued pretrial confinement was justified. On 3 July 1991, appellant’s commanding officer prepared the memorandum required by R.C.M. 305(h)(2)(C). On 3 July 1991, the military magistrate found probable cause to continue pretrial confinement, after a determination pursuant to R.C.M. 305(i) and AR 27-10.
*717I would hold that the probable cause determination made by appellant’s commander the day following the appellant’s apprehension was sufficient to satisfy the Gerstein and McLaughlin requirement. Further, a probable cause determination was also made by LTC R the next day. After reviewing the entire record, I find nothing that would disqualify LTC R from making the probable cause determination required by Gerstein. The determination was made within forty-eight hours of confinement, and McLaughlin was also satisfied.
The majority’s opinion appears to rest on a doctrine of preemption, i.e., that R.C.M. 305(i) provides the exclusive means of compliance with the Fourth Amendment requirement for a judicial determination of probable cause. This interpretation ignores the fact that R.C.M. 305(i) is a review of prior probable cause determinations. I assume it could be termed as an “Army due process” requirement with noncompliance resulting in illegal confinement. Appellant in this case received his R.C.M. 305(i) review, and “Army due process” was satisfied.
In arriving at its holding in this case, the majority states that:
While the Secretary of the Army could have provided that the review be conducted by a wide range of neutral and detached individuals, he designated, in Army Regulation 27-10, that the authority, in the Army, to perform the probable cause review of a decision to place a soldier in pretrial confinement rests only with a military judge or military magistrate.
At 712 [emphasis added]. I disagree with that interpretation. The relevant paragraphs of AR 27-10 provide:
d. A military magistrate is a JA [judge advocate] empowered to direct the release of persons from pretrial confinement, or to recommend release from confinement pending final disposition of foreign criminal charges, on a determination that continued confinement does not meet legal requirements, and to issue search and seizure authorizations on probable cause.
e. An assigned military magistrate is a JA appointed by TJAG [The Judge Advocate General] or TJAG’s designee and assigned to USALSA [US Army Legal Services Agency], a military judge assigned to the U.S. Army Judiciary, or an individual mobilization augmentee ordered to annual training with duty as a military judge.
AR 27-10, paras. 9-l(d) and (e). These paragraphs merely define the powers of a military magistrate. I find nothing in these provisions which limits pretrial probable cause review to only military magistrates.3 Absent such a restriction, a convening authority is authorized to appoint officers as he sees fit to fulfill military justice responsibilities. See generally Army Reg. 600-20, Personnel: General Army Command Policy, paras. 1-4 and 1-5 (30 Mar. 1988).
The majority’s opinion further states that “Lieutenant Colonel R may have been a neutral and detached magistrate to satisfy the Fourth Amendment constitutional requirement as outlined in Gerstein and McLaughlin, but he does not satisfy the due process procedural requirements of R.C.M. 805® and Chapter 9, AR 27-10.” At 714. If the Manual for Courts-Martial and Army regulations create due process requirements which exist independent of constitutional requirements, then there is no requirement that those separate due process requirements be met within the forty-eight hour limit set forth in McLaughlin. R.C.M. 305(i) establishes a requirement that pretrial confinement be reviewed by a military magistrate within seven days, as was done in appellant’s case.4
*718I would hold that the appellant received both a prompt probable cause determination under Gerstein and McLaughlin, and a timely review of that determination under R.C.M. 305(i), and is entitled to no further sentence credit. Accordingly, I dissent.
. An argument can be made that the probable cause to apprehend requirement of the Fourth Amendment is an exception that does not apply to the military. Rule For Courts-Martial 305(m) provides exceptions when a hearing by a magistrate is not required. Those exceptions are for operational necessity and aboard ships at sea. If the requirement is truly constitutional, it should apply in those instances. But see Courtney, 1 M.J. at 270. In addition, part of the reason for the probable cause determination as set forth in Gerstein; i.e., pretrial confinement may imperil the suspect’s job and interrupt his source of income, does not exist in the military service. See R.C.M. 305 analysis at A21-14.2. Additionally, the initial probable cause determination may be equivalent to a warrant, and thus Gerstein would not apply. Perhaps the Court of Military Appeals will reexamine the holding in Courtney.
. Under R.C.M. 305(d), a commander may not order pretrial confinement unless there is probable cause to order such confinement. Appellant has never contended that his commander did not make such a determination prior to confinement.
. Indeed, as stated earlier in this dissent, any officer ordering pretrial confinement must make a probable cause determination pursuant to R.C.M. 305(d).
. I am concerned that this Court has entered the area of establishing policy by advocating no change in personnel appointed as magistrates and using the implied threat of possible reversal on appellate review if nonlawyers are appointed to perform this function. I mention this only to *718emphasize that the UCMJ permits nonlawyers to perform numerous judicial functions. Indeed, it has been said that the convening authority, rarely a lawyer, is the most powerful judicial officer in the military justice system. In any event, this Court should stick to its business under Article 66, UCMJ, rather than resort to this type of obiter dictum. ■