Opinion of the Court
On June 26, 1966, the accused, an Army master sergeant, stationed at Aberdeen Proving Ground, Maryland, was confined in the post stockade at Fort George G. Meade, Maryland. No charges were preferred against him until August 19, 1966. On that date, hе was charged with carnal knowledge, in violation of Uniform Code of Military Justice, Article 120, 10 USC § 920. Various events transpired thereafter, and a general court-martial was convened to hear the case on January 10, 1967. Fоllowing Sergeant Gale’s arraignment, his counsel moved to dismiss the charge on the basis that accused had been denied a speedy trial and had, in any event, been improperly confined. Following an extensive hearing into the matter, the law officer dismissed the charges, “based on all the facts and circumstances, including the delays and actions by various persons which impeded, to some extent, the defense counsel in preрaring a defense, but especially it is based on the failure by responsible officials to give proper consideration to the need for pretrial confinement in this case.”
On February 15, 1967, pursuant to an order of thе convening authority, the court-martial reconvened. Purporting to act under the provisions of Code, supra, Article 62, 10 USC § 862, the convening authority ordered the law officer to reconsider his ruling, and the trial to proceed. Such action, it is said, was taken despite the law officer’s findings of fact and the limitation on the convening authority’s acting in such respect to matters of law. Cf. Manual for Courts-Martial, United States, 1951, paragraph 67f; United States v Lamphere,
The law officer, construing the order
From this action of the convening authority and the law officer, which has resulted in reinstitution of the dismissed charges and probable trial thereon, the accused has taken the extraordinary step of direct appeal to this Court, seeking a certification of the record here and prohibition of his further рrosecution on the grounds that the convening authority’s intervention and order were unwarranted and a denial of due process of law. As the Government filed with this Court an authenticated record of the proceеdings had thus far in the case, petitioner on oral argument abandoned his request for certiorari and now desires only that we uphold the law officer’s original dismissal of charges.
I
At the outset, we are met with a contention by the United States that ac-cused’s petition should be dismissed for want of jurisdiction in this Court to grant extraordinary relief to an accused prior to the ■ return of findings and sentence in a court-martial and the approval thereof, in whole or in part, by the convening authority and a board of review. We disagree with the limitations which would thus be set on our power and express no doubt that, in an appropriate case, we have the authority to grant extraordinary relief to one accused of crime in the armed services, though his trial be not completed.
True it is that the basic charter of this Court’s powers is Code, supra, Article 67, 10 USC § 867, and that such Article provides “the Court of Military Appeals may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law” (emphasis supplied), but this proviso does not рurport to act as a jurisdictional prohibition against granting extraordinary relief at an earlier stage of criminal proceedings against an accused. Its purpose is to limit our review in cases propеrly before us to questions of law. House Report No. 491, 81st Congress, 1st Session, page 32; United States v Lamphere, supra; United States v Remele,
We have never doubted the extent of our authority over military criminal proceedings. In United States v Rinehart,
“The All Writs Act merely makes ‘explicit the right to exercise powers implied from the creation of such courts.’ Reviser’s Note, Historical and Revision Notes, 28 USC § 1651. See United States v Morgan,346 US 502 , 506, 98 L ed 248,74 S Ct 247 , footnote 6 (1954). The fact that a court is empowered by Congress to act only in a specially defined area of law does not make it any the less a court established by Congress. Glidden Co. v Zdanok,370 US 530 , 561, 8 L ed 2d 671,82 S Ct 1459 (1962). Part of our responsibility includes the protection and preservation of the Constitutional rights of persons in the armed forces. Burns v Wilson, supra; see also Chief Justice Warren, ‘The Bill of Rights and the Military,’ 37 New York University Law Review 182 (1962). We entertain no doubt, therefore, that this Court is a court established by act of Congress within the meaning of the All Writs Act. Consequently, the Government’s motion to dismiss the accused’s petition because this Court lacks jurisdiction to grant reliеf is denied.”
We conclude, therefore, that, in an appropriate case, this Court clearly possesses the power to grant relief to an accused prior to the completion of court-martial proceedings against him. To hold otherwise would mean that, in every instance and despite the appearance of prejudicial and oppressive measures, he would have to pursue the lengthy trial of appellate review — ■ perhaps even serving a long term of confinement — before securing ultimate relief. We cannot believe Congress, in ^revolutionizing military justice and I creating for the first time in the armed I services a supreme civilian court in I the image of the normal Federal judi-Icial system, intended it not to exercise power to grant relief on an extraordinary basis, when the circumstances so require. We hold it did so endow us and the Government’s contention to the contrary is ill-founded. United States v Frischholz, supra; Shaw v United States, supra.
II
Is this, then, an appropriate case in which to interfere in the normal trial processes and grant the extraordinary remedy for which prayer is made by the accused? We think not, and base our conclusion on the following considerations.
The chief matter in issue here is the binding effect of the law officer’s ruling regarding denial tо accused of a speedy trial and illegal pretrial confinement. On oral argument, we were informed the accused has been released from confinement, and we are certain, absent a change in circumstances, that he will not again be imprisoned pending disposition of this matter. The Government has indicated that the outcome of the case on the merits is uncertain. Reference to the record of the proceedings thus far had would indicate some basis for its speculation. The proceedings now pending against the accused are not void for want of jurisdiction, but merely involve a question whether the law officеr’s ruling was final and binding on the issues presented. Cf. Crittenden v Town of Booneville, 92 Miss 277, 45 So 723 (1908); Evans v Willis, 22 Okla 310,
The remedy sought from this Court is extraordinary in nature, and it is incumbent upon the accused to demonstrate that the ordinary course of the case through trial and appellate channels is not adequate. As was stated by Judge Brosman, in United States v
. . Being extraordinary remedies, writs of mandamus ‘are reserved for really extraordinary causes.’ Ex parte Fahey,332 US 258 , 91 L ed 2041,67 S Ct 1558 . The рossible inconvenience of proceeding to an unnecessary trial does not justify the use of mandamus. Gulf Research & Development Co. v Harrison, 185 F2d 457 (CA 9th Cir).”
Boiled down, the accused’s basis for seeking relief at this time is the inconvenience to which he is being subjected by the resumption of his trial. As we have noted, however, such is usually not the ground for resort to extraordinary judicial measures. United States v Knudson, supra; Annotation,
In so acting, it should be made quite clear that we pass not here on the merits of the accused’s claim, nor do we express any approval of the convening authority’s action in the proceedings. These matters must await resolution until when and if the accused is convicted and such conviction survives to this level.
The motion by the United States to dismiss accused’s petition and accused’s petition for extraordinary relief are denied.