(concurring):
I concur but write separately to urge the Court of Military Appeals to re-examine its holding in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976) that a commanding officer is not “neutral and detached” for the purpose of making the initial probable cause determination to justify pretrial detention under Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).
The commanding officer is already required by Article 9, UCMJ, 10 U.S.C. § 809 and Rule for Courts-Martial (R.C.M.) 305(h)(2) to make this very determination before he orders a person into pretrial detention or reviews the order of another authorized official. It is a determination that, by its very nature, demands an objective, rational assessment of the facts. In fact, I do not believe it is even possible to make an honest and sound determination of probable cause in other than a “neutral and detached” manner. Therefore, it makes little sense for Congress and the President to trust a commanding officer with this discretion on the one hand while the appellate courts build in automatic distrust of his ability to be “neutral and detached” on the other.1
It makes even less sense when one considers that a commanding officer is granted similar authority in the search and seizure arena, one that is also of constitutional dimension. This authority requires him to, in effect, balance the needs of the unit against the privacy interest of the individual by determining that probable cause exists before authorizing a search. Mil. R.Evid. 315(d). If he is “neutral and detached” when determining probable cause to search, why is he not when determining probable cause to confine? 2 Yet, this is the inconsistency that Courtney and R.C.M. 305, in combination, have brought us.
This is not to say that the commanding officer’s probable cause determinations should not be subject to review. On a given day, a particular commanding officer may abandon his “neutral and detached” role and order pretrial detention without probable cause. The President has built corrective measures into the Manual for Courts-Martial to cover this situation — review by another officer under R.C.M. 305(i) and by a military judge under R.C.M. 305(j). However, the existence of those *1084measures, which provide an excellent means to correct abuses, should not be read to render the original probable cause determination by the commanding officer constitutionally insufficient per se. I agree with Senior Judge Jones in his dissent where he concludes that the commanding officer’s prompt initial determination of probable cause, along with the review safeguards built into the Manual for Courts-Martial, should satisfy Gerstein and McLaughlin. Yet, the holding in Courtney that a commanding officer cannot serve as a “neutral and detached” judicial officer under Gerstein is settled law (see, e.g., United States v. Lynch, 13 M.J. 394 (C.M.A.1982); United States v. Malia, 6 M.J. 65 (C.M.A.1978)); Manual for Courts-Martial 1984, Analysis, R.C.M. 305(h)), and neither of my dissenting brothers faces this point squarely or effectively. Consequently, unless and until the Court of Military Appeals reconsiders its position in that case, I am bound by precedent to concur with the majority.
Senior Judge JONES, joined by Judges REED and LAWRENCE, dissenting:
The majority opinion mechanically forces a doctrine arising in a civilian context upon military cases already imbued with constitutionally sufficient protections provided by the President. See generally United States v. Lopez, 35 M.J. 35 (C.M.A.1992) (Cox, J., concurring with modest reservations). It misapplies a constitutionally based “48-hour timeline” required of probable cause determinations to the related but separate military due process right to the review of the commander’s determination of the necessity for pretrial confinement. Having misapplied the law, it is but a quick jump to the obvious but incorrect conclusion that the seven-day period envisioned by Rule for Court-Martial 305(i) for review of that determination is constitutionally infirm.1
I
Private First Class Jonathan Holloway absented himself three times over the course of 20 months, for a total time of absence of approximately 18 months. The most lengthy absence (nearly 15 months) was terminated by apprehension. After his third absence, which ended on 1 August 1991, PFC Holloway was ordered into pretrial confinement. A hearing to determine whether he should remain in pretrial confinement was held on 7 August 1991. The initial review officer acting under R.C.M. 305(i) determined that PFC Holloway should remain in confinement, and he did so until the trial date of 15 October 1991.
At his special court-martial, PFC Holloway asked the military judge to grant him credit for what he characterized as an illegal detention period between 3 August and 7 August, although he did not contest the legality of the initial determination to confine him. He claimed that County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), required the initial review officer hearing described in R.C.M. 305 to be held within 48 hours of his confinement, rather than the seven days currently specified by the rule.
The majority today has held that the initial review officer hearing must be held within 48 hours of confinement. Basing its decision on its interpretation of McLaughlin, and following the lead of the Army Court of Military Review in United States v. Rexroat, 36 M.J. 708 (A.C.M.R.1992), the Court today has effectively amended the Rules for Courts-Martial and thus usurped the President’s power. Because I believe *1085that McLaughlin does not require the hastening of the review process that the Court now mandates, I dissent.
II
The procedures for reviewing pretrial confinement that are now embodied in R.C.M. 305 trace their roots to Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). See R.C.M. 305 Analysis, App. 21, MCM, 1984. Courtney, for its part, was in response to Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). See Courtney at 269-70.
Gerstein involved the Florida practice of confining suspects based only upon a prosecutor’s information. Under that practice, a person could be arrested without a warrant and charged by information, and then jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination. The state defended this practice on the ground that the prosecutor’s decision to file an information was itself a determination of probable cause that furnished sufficient reason to detain a defendant pending trial. Ger-stein, 420 U.S. at 116-17, 95 S.Ct. at 864-65. The Court noted that it was possible then for a suspect to languish “for a substantial period solely on the decision of a prosecutor.” Id. at 106, 95 S.Ct. at 859.
Two issues were presented for resolution:
[Wjhether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution.
As noted in Courtney v. Williams, 1 M.J. at 269-70, the first issue was answered affirmatively:
[A] policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their, evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly.
Gerstein, 420 U.S. at 113, 95 S.Ct. at 862.
Soon after the Supreme Court decided Gerstein, the Court of Military Appeals had its chance to apply that decision in Courtney v. Williams. Courtney sought an extraordinary writ directing his release from pretrial confinement on an assault charge. Already facing a special court-martial for two unauthorized absences, Courtney first sought relief from the trial judge who, having determined that he had no jurisdiction because the offense had not been referred to the special court-martial, denied him review of the pretrial confinement. Courtney, 1 M.J. at 269. Although the Uniform Code of Military Justice provided that a person ordering confinement of a servicemember had to make an initial probable cause determination, there was no requirement for any further review of that determination. Id. at 270.
As Chief Judge Fletcher made clear in Courtney, the Gerstein decision requires only that a neutral and detached magistrate determine whether probable cause exists to detain a person. Such a determination that probable cause exists, he explains, only confirms that a person could be detained, not that he should be detained. Assuming that an accused could be detained, the bail procedures in the civilian community would then become applicable. As noted in United States v. Salerno, 481 U.S. 739, 766, 107 S.Ct. 2095, 2111, 95 L.Ed.2d 697 (1987) (Marshall, J. dissenting), “[t]he finding of probable cause conveys power to try, and the power to try imports of necessity the power to assure that the processes of justice will not be evaded or obstructed.”
Although finding that Gerstein itself required no more, the Court of Military Appeals recognized that because bail proce*1086dures in the military were absent, some further due process right was necessary.2
After the conclusion is reached that one could be detained because of the existence of probable cause, then the next question — whether he should be detained — is all important. A determination to detain has far-reaching consequences, both to the individual and to the potential fairness of the military justice system. [Footnote omitted].
Courtney, 1 M.J. at 271.
At the time of the Courtney decision, such a due process concern was warranted. Fireman Courtney was afforded no opportunity to contest or otherwise respond to the convening authority’s decision to incarcerate him. The Uniform Code of Military Justice provided no procedure for reviewing the probable cause determination that is made by. the person ordering arrest or confinement.
While the [Code] provides that probable cause is needed to order arrest or confinement and while it enumerates those persons authorized to arrest or confine, it does not go that next step that is mandated by the Constitution. Although the confinement officer must report confinement to the confinee’s commanding officer within 24 hours after confinement, the Code does not require the commanding officer to take further action. And, the general court-martial convening authority need only review the confinement every 30 days. [Footnotes omitted],
Courtney, 1 M.J. at 270.
Thus the Courtney court took the Ger-stein decision one step further to fill the military due process void resulting from the lack of bail procedures.3
We believe, then, that a neutral and detached magistrate must decide more than the probable cause question. A magistrate must decide if a person could be detained and if he should be detained. [Footnote omitted].
Courtney at 271.
Appellant points us to the Court of Military Appeals’ decisions in United States v. Malia, 6 M.J. 65 (C.M.A.1978) and United States v. Lynch, 13 M.J. 394 (C.M.A.1982) for the principle that the commander qua convening authority is precluded from making the probable cause determination required by Gerstein.4 We disagree. Some*1087one other than a judge or lawyer may certainly serve as the “judicial officer” envisioned by the Fourth Amendment so long as he is neutral and detached, and capable of determining whether probable cause exists for the requested arrest or search. No minimal legal or educational qualifications are constitutionally required. Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). Within military practice an impartial commander may certainly authorize a search based on probable cause. M.R.E. 315(d)(1) and (f). We require, however, that one in such a position be neutral and detached in order to impose an orderly process in which that authorizing official is prevented from representing a law enforcement interest while at the same time authorizing searches and seizures. See generally Lopez, 35 M.J. 35. The requirement in the Manual that a commander be impartial derives from United States v. Ezell, 6 M.J. 307 (C.M.A.1979) and is significant because it recognizes that there is a difference between a commander with his or her various roles and a civilian magistrate. Lopez, 35 M.J. at 41.
The Court’s concern in those earlier cases of Malia and Lynch was with the commander as the individual who not only made the pretrial confinement decision, but by default or pursuant to regulation, ultimately determined the legitimacy or justification for pretrial confinement in a given case. As observed in United States v. Rexroat, 36 M.J. at 711 n. 1, in most military situations the offending servicemember is apprehended by shore patrol or military police and returned to control of his commander. The commander then determines the charges and the need for pretrial confinement. Accordingly, there is a probable cause determination for charges before confinement is authorized.
Malia, in pertinent part, held that the confining commander may not overrule the magistrate’s decision to release, relying on the similar reasoning of United States v. Ware, 1 M.J. 282 (C.M.A.1976) (under Article 62(a), UCMJ, 10 U.S.C. § 862(a), a commander could not reverse the finding of a trial judge but could only return the record to the court for reconsideration of the ruling). In Lynch, the Court found an Air Force procedure to be infirm where the special court-martial convening authority was called upon to make the “pretrial confinement decision” because it could not be reconciled with the constitutional requirement that “the detached judgment of a neutral magistrate” must determine whether an accused remains in pretrial confinement. Lynch at 397 (Everett, C.J. concurring) (emphasis supplied). Whether the commander qua convening authority continues to be disqualified is unclear. “Although a commanding officer cannot be equated to a magistrate, he — like a magistrate — must be ‘neutral and impartial’ in performing some of his responsibilities. This expectation applies when the commander is issuing search authorizations; and, likewise, when ordering a suspect into confinement, he must act in a neutral capacity.” United States v. Sharrock, 32 M.J. 326, 333 (C.M.A.1991) (Everett, S.J., concurring in part and dissenting in part).
*1088III
The significant aspect of Gerstein overlooked by the majority is that the Court inferentially distinguished the initial confinement resulting from arrest from any subsequent determination that confinement should be continued, specifically, bail determinations. See Gerstein, 420 U.S. at 124, 95 S.Ct. at 868 (the probable cause determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release). Cf. id. at 114, 95 S.Ct. at 863 (“[e]ven pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty [citing Bail Act]”). The decision to continue pretrial confinement simply was not at issue in McLaughlin.
McLaughlin is concerned solely with the need for a prompt (i.e., 48-hour) determination by an impartial authority of the probable cause to arrest that has led to an individual’s being retained in custody. The military already has such a procedure. All would agree that the commander, as in the case of all officers, may direct pretrial confinement. R.C.M. 304(b). But before he may do so, he must conclude that an offense triable by court-martial has been committed and that the accused committed that offense, i.e., the probable cause determination required by Gerstein. R.C.M. 305(d)(1) and (2). Cf. Lopez. Only then may he determine whether pretrial confinement is warranted by the circumstances. R.C.M. 304(d)(3).
What the majority purports to place at issue here is the timing of the subsequent decision as to whether the member should continue to be confined or be released, the counterpart of the civilian bail setting procedures. Recognizing the needs of the state in the orderly administration of justice, Gerstein permitted the states to delay the probable cause determination until some subsequent stage in the process, e.g., either the suspect’s first appearance before a judicial officer, or arraignment, or other session for the purpose of setting bail or conditions of pretrial release. 420 U.S. at 124-25, 95 S.Ct. at 868-69. But such a determination had to be “promptly after arrest,” id. at 125, 95 S.Ct. at 869, a promptness now defined as 48 hours.
Through the implementation of R.C.M. 305, the President has elected not to defer the probable cause determination mandated by Gerstein. Instead, it is made prior to the decision to confine. The commander, himself, is normally the individual to make that initial determination to confine and there is no reason in law or policy that he should not do so. See Sharrock, 32 M.J. at 334 (Cox, J., concurring in part and concurring in the result) (pretrial confinement [is] but an extreme form of apprehension). “[I]t must be remembered that a commanding officer has the duty to maintain law and order and to protect the welfare, health, well-being, and safety of the command.” Lopez, 35 M.J. at 44 (Cox, J., concurring). If another has directed that confinement, the commander is required to be notified within 24-hours. R.C.M. 305(h). Even in the somewhat unusual event that he is not the individual who initially made the probable cause determination and decision that confinement was warranted, the commander must, within 72-hours after receiving notice of confinement, make his own independent decision as to whether pretrial confinement should continue. R.C.M. 305(h)(2)(A). The commander must then direct the prisoner’s release from pretrial confinement unless, again, he concludes that there is probable cause for the apprehension of the accused and that continued confinement is necessary. R.C.M. 305(h)(2)(B). An extensive list of factors is provided to focus the commander’s consideration of those issues. Id. See also Discussion. The commander must then prepare a written memorandum stating the reasons for his conclusions of probable cause and the need for confinement. R.C.M. 305(h)(2)(C). That memorandum is then provided to the reviewing officer, a neutral and detached officer as required by R.C.M. 305(i), who within seven days must review the commander’s determination of probable cause and his determination that pretrial confinement is necessary.5
*1089Where the commander first undertakes the determination required by R.C.M. 305(d) and (h) as a neutral and detached official, and concludes that the test for probable cause is met, he has done all that Gerstein and McLaughlin require. He then, appropriately, may make the initial determination as to whether pretrial confinement is necessary, R.C.M. 305(d)(3) and (h)(2)(B), by virtue of his responsibility to protect the good order and safety of his command.
[T]he real initial decision for pretrial confinement [lies] with the prisoner’s commander. Although the immediate commander may not be a neutral and detached official for pretrial confinement purposes,6 it is appropriate to give this officer the initial decision on pretrial confinement, so that the command implications of this determination may be fully considered and developed for further review. This will enable the commander, who is in the best position to assess the predictive elements of the pretrial confinement decision, including not only the prisoner’s likely behavior, but also the impact of release or confinement on mission performance, to make a record of such factors for the initial review. (Citations omitted).
Rule for Courts-Martial 305(h), Analysis, A21-15, MCM, 1984.
Only where the commander is not the individual initially directing confinement, and thus operating under the 72-hour obligations imposed by R.C.M. 305(h), are the standards of McLaughlin arguably not met. In such cases, if one were to assume that the President erred by 24 hours in assessing the liberty interest of the individual in the context of the practical realities of military society, then one would have to conclude that the commander’s decision itself required under that rule could occur no later than 48 hours after confinement has been imposed. No requirement exists, however, that should then compel the commander to submit the written memorandum supporting his determination, R.C.M. 305(h)(2)(C), any earlier than existing practice.
IV
The federal system, unlike the military, has a bail procedure, contained in the Bail Reform Act of 1984. See 18 U.S.C. §§ 3141 et seq. (1987 Supp. V). In upholding that Act’s provisions permitting pretrial detention on the basis of future dangerousness, the Supreme Court has engaged in a weighing process, balancing the Government’s interest in preventing crime by arrestees against the individual’s strong interest in liberty.7
*1090We do not minimize the importance and fundamental nature of this right. But, as our eases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society. We think that Congress’ careful delineation of the circumstances under which detention will be permitted satisfies this standard.
Salerno, 481 U.S. at 750-51, 107 S.Ct. at 2103.
In concluding that the Act was not facially invalid under the Due Process Clause of the Fifth Amendment, the Court, after identifying the substantial procedural protections 8 afforded an individual under the Act, noted that those protections “far exceeded] what we found necessary to effect limited postarrest detention in Gerstein v. Pugh.” In other words, these heightened procedures were sufficient to justify the state’s interest in further confining an accused. This is precisely what the President has accomplished with the promulgation of R.C.M. 304 and 305. A continuum of rights is thus provided the pretrial confinee in both military and civilian settings, from the probable cause assessment of the arrest/apprehension made by the neutral and detached judicial officer (civilian magistrate and commander) to the bail proceedings of the federal system and the confinement review procedures of the military.
Under the Bail Reform Act,
The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, such person shall be detained____ The person may be detained pending completion of the hearing.
18 U.S.C. § 3142(f) (emphasis supplied).
In the only Supreme Court case to review the timing of the hearing, United States v. Montalvo-Murillo, 495 U.S. 711, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990), the granted issue was whether a magistrate’s own motion to postpone the hearing, which resulted in the defendant’s being held over ten days before his first appearance before the magistrate, warranted the defendant's release. The Court noted that a prompt hearing is necessary, and that the Act’s time limitations must be followed with care and precision. Id. at 716, 110 S.Ct. at 2077. Montalvo-Murillo argued that because the statute required a hearing at a specific event, and did not permit the continuance the magistrate took, the Government was barred from seeking pretrial detention. Id. at 718,110 S.Ct. at 2078. The Court rejected that argument, stating that it did not
agree that we should, or can, invent a remedy to satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits.
Id. at 721, 110 S.Ct. at 2079.
The Court’s declination to craft a remedy for delay in a case involving the Bail Reform Act supports the position that the well delineated time limits and procedures of R.C.M. 304 and 305 are also constitution*1091ally valid. Not surprisingly, in the only post-McLaughlin case we have found that addresses the holding in Montalvo-Murillo, there is no suggestion that the time lines of the Bail Reform Act, or even their breach, would be violative of the “48-hour” rule. United States v. Gotti, 776 F.Supp. 666 (E.D.N.Y.1991).
The American Bar Association Standards, Pretrial Release Sec. 10-4.2. (Rev. 1985) lends additional support for such a position. A preceding section, 10-4.1, provides that a defendant should be taken before a judicial officer without unnecessary delay, which except during nighttime, is defined as within six hours of arrest. Notwithstanding such an interest in a prompt first appearance exceeding even that of McLaughlin, Standard 10-4.2 was amended in 1985 to adopt procedures for the imposition of preventive detention. Analysis, Standard 10.4.2, “Nature of First Appearance.” Under the change, if, at the first appearance, the prosecuting attorney files a written notice of intent to seek preventive detention, a judicial officer should be authorized, after finding probable cause to believe that the defendant has committed a predicate felony for preventive detention as alleged in the charging document, to order provisional preventive detention for a period that may not exceed three calendar days. “This meets the constitutional requirements laid down by the Supreme Court in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).” Id. In other words, without more, upon motion by the Government, an accused may be held an additional three days so long as the judicial officer has reached the probable cause determination required by Ger-stein; no consideration of the need for the initial pretrial confinement or even continued pretrial restraint is even addressed.
V
In conclusion, “[tjhere is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole.” Gerstein, 420 U.S. at 123, 95 S.Ct. at 868. From appellant’s point of view, a determination of the need for continued pretrial confinement at the 48-hour, rather than the seven-day, mark, is certainly preferable,9 “[b]ut our federal system warns of converting desirable practice into constitutional commandment.” Shadwick, 407 U.S. at 353, 92 S.Ct. at 2124. The President has created a two-tiered system of protection for pretrial detainees. In doing so, he has implemented Congressional will (see 10 U.S.C. §§ 809 and 810) and complied with the mandates of both the Court of Military Appeals and the United States Supreme Court. Because I believe the issue in McLaughlin to be one of probable cause to arrest leading to initial pretrial detention, and not one of continued pretrial confinement following the “brief period of detention to take the administrative steps incident to arrest,” 10 I dissent.
. The reason given in the Manual for Courts-Martial Analysis for R.C.M. 305(h) is to afford the commanding officer an opportunity to build a record for the reviewing officer under R.C.M. 305(i). While this may be one objective — one that could no doubt be accomplished by other means — I suspect that the principal goal of R.C.M. 305(h) is to establish a procedure by which a commanding officer can ensure that the requirements of Article 9, UCMJ and R.C.M. 304 have been met when one of his or her personnel is confined.
. In fact, this inherent distrust seems particularly insupportable when one considers the awesome responsibility for lives and property that our Nation places on a commanding officer. He or she is required to rise above the emotional fray of the moment and exercise sound rational judgment in balancing the often conflicting interests of unit and individual in a myriad of non-legal matters on a daily basis.
. The culprit behind what I believe to be a misapplication of the law by the majority and concurring opinions is the specified issue itself. Since I planted the seed of concern that germinated this specified issue springing from my panel, I bear a large measure of responsibility for its creation. But, it is a non sequitur. County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), provides us with a working timeline for the prompt post-arrest probable cause determination required by Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); it does no more. It well may be that the military due process principles enunciated in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976), require a foreshortening of constitutional underpinnings of McLaughlin require corrective action in the military system.
. Discussing Gerstein, the U.S. Court of Appeals for the Second Circuit noted, "[i]t would be ironic if a decision rendered to assure a suspect the protection of a neutral magistrate’s determination of probable cause after 'a brief period of detention to take the administrative steps incident to arrest’ became the basis for extending that detention for weeks or months after the probable cause determination has been made.” United States v. Salerno, 794 F.2d 64 (1986), rev’d, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). As will be discussed, this concern for extended pretrial confinement in the military is addressed by Rule for Courts-Martial 305.
. After recognizing the nonadversarial nature of the probable cause hearing required in order to detain an arrested person pending further proceedings, Chief Judge Fletcher acknowledged “the additional question before a military magistrate of the propriety of confinement,” United States v. Malia, 6 M.J. 65, 67 (C.M.A.1978), but concluded that "the initial consideration of pretrial confinement must be immediate and does not necessitate an adversary proceeding.” Id.
. As discussed above, the Court of Military Appeals has concluded that a court-martial convening authority is disqualified from making the “pretrial confinement decision," Lynch, 13 M.J. at 397, (as contrasted to the probable cause determination required by Gerstein). This pronouncement originates from the Court’s earlier decisions defining the Codal role of the staff judge advocate. The pretrial obligations of the staff judge advocate “inextricably linked [him] to the command function of policing and law enforcement in the military community” and thus placed him in the posture of a prosecutor. Lynch, 13 M.J. at 396; United States v. Hardin, 7 M.J. 399 (C.M.A.1979). As such, the institutional position of the staff judge advocate was inconsistent with the neutrality and detachment of a pretrial confinement magistrate; moreover, that same institutional position disqualified him as the source of advice to the commander in the latter's pretrial confinement decision. Thus, in Lynch an Air Force provision permitting a staff judge advocate to hold the pretrial confinement hearing and then make a recommendation to the special court-martial convening authority as to whether an accused should remain in confinement was found constitutionally deficient.
The reasoning is less clear as to why a commander using his independent judgment, not operating under such a regulatory scheme requiring the advice of the staff judge advocate, would be disqualified from making the determination whether an accused remains in pretrial *1087confinement. Notwithstanding the prosecutorial bent of the staff judge advocate as discussed in Hardin, he evaluates an accused’s guilt for the purposes of his Article 34(a), UCMJ, 10 U.S.C. § 834(a), advice in terms of whether a charge "is warranted by evidence indicated in the [Article 32] report of investigation.” This quantum of evidence is left unspecified in both the Uniform Code of Military Justice and the Manual for Courts-Martial (both 1969 and 1984 versions), but the Court of Military Appeals has stated in United States v. Engle, 1 M.J. 387, 389, n. 4 (1976), that "it is that degree of proof which would convince a reasonable, prudent person there is probable cause to believe a crime was committed and the accused committed it. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).”
In other words, although the staff judge advocate may be institutionally precluded from making or giving advice on the determination to continue pretrial confinement, he is not precluded from making the probable cause determination that is the subject of Gerstein. Similarly, although the convening authority exercises his pretrial Codal functions in a prosecutorial context, Hardin at 404, if he finds or is advised by a judge advocate that there are reasonable grounds to believe that an offense triable by court-martial has been committed and that the accused committed it, and that the preferred specification alleges an offense, he may then refer the charge to trial. Rule for Courts-Martial 601(d)(1).
. Following confinement, an accused shall be informed promptly of the charges against him, *1089his right to remain silent, and his right to retain civilian counsel or request assignment of military counsel. If requested, military counsel are to be provided to the prisoner before the review contemplated under R.C.M. 305(i). R.C.M. 305(e), (f). The prisoner and his counsel shall be allowed to appear before the reviewing officer and make a statement, if practicable. R.C.M. 305(i)(3)(A). The reviewing officer’s conclusions, including the factual findings on which they are based, shall be set forth in a written memorandum. R.C.M. 305(i)(6). The prisoner may petition the review officer for reconsideration of his decision to confine based upon information not previously considered. R.C.M. 305(i)(7). Upon referral of charges, the military judge shall review the propriety of pretrial confinement upon motion for appropriate relief. R.C.M. 305(j). Finally, the prisoner is credited day for day against his adjudged confinement for each day of pretrial confinement served as a result of an abuse of discretion or of a failure to comply with subsections (f), (h), or (i) of the rule. Such credit is in addition to any credit given under United States v. Allen, 17 M.J. 126 (C.M.A.1984).
. As discussed earlier, "for pretrial confinement purposes” in this context means only that the commander is disqualified by decisional law from serving as the final authority on the question of the need or justification, and ultimately, the legitimacy of pretrial confinement.
. As recognized by the Supreme Court in Ger-stein, 420 U.S. at 114, 95 S.Ct. at 863, "[pjretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.” We hasten to point out that the fiscal concerns of the Court would be diminished in the military context. A pretrial confinee continues as a fully compensated member of the service to and through trial and until the convening authority approved a sentence affecting an accused’s financial state. We also have no hesitation in commending the relative safe and secure environments of our Navy brigs and other military confinement facilities *1090in contrast to their civilian counterparts. Lastly, we note that the liberty interest of a sailor or marine, in comparison to his civilian brother or sister, is qualified by the very nature of his or her military duties. Cf. Schall v. Martin, 467 U.S. 253, 264, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984).
. Detainees have a right to counsel at the detention hearing. 18 U.S.C. § 3142(f). They may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing. Id. The judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include the nature and the circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community. Sec. 3142(g). The government must prove its case by clear and convincing evidence. Sec. 3142(f). Finally, the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain. Sec. 3142(i). The Act’s review provisions, Sec. 3145(c), provide for immediate appellate review of the detention decision. Salerno, 481 U.S. at 751-52, 107 S.Ct. at 2103-04.
. Appellate defense counsel within their brief and at oral argument take a position based on policy considerations that implementation of a "48-hour rule” will not prove impracticable. We do not agree. By example, they suggest that the requirement for a R.C.M. 305 hearing is not triggered until a geographically displaced servicemember is returned to his command and ordered into confinement: such is not clear to us. Would not the military member be entitled to a McLaughlin-dictated hearing when confined in a civilian jail awaiting pickup by the military? Cf. United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (accused entitled to sentence credit for pretrial confinement). As an accused were moved between military confinement facilities en route to his parent command, would not such a hearing be required?
. Gerstein, 420 U.S. at 114, 95 S.Ct. at 863.