¶1(dissenting):.
¶2In the case before us I am unable to perceive that the legality of the' petitioner’s restraint has any effect on the jurisdiction of this Court to entertain a petition for review, of. his trial at such time as that petition, may be'ripe for presentation. '•
¶3*517This Court is one “established by Act of Congress” and consequently it may issue “all writs necessary or appropriate in aid of” its jurisdiction, under section 1651 of Title 28, United States Code. Noyd v Bond, 395 US 683, 23 L Ed 2d 631, 89 S Ct 1876 (1969). Definition of what is in aid of jurisdiction necessarily entails a consideration of what is this Court’s jurisdiction.
¶4The only statutory basis for our jurisdiction is Article 67 of the Uniform Code of Military Justice, 10 USC § 867. Under the language of this article, jurisdiction of this Court attaches only after an earlier review by a Court of Military Review. Article 67(g) requires the United States Court of Military Appeals and the Judge Advocates General to make a comprehensive survey of military justice and to make legislative recommendations on this subject. I consider this as other than a grant of authority, though, and I am unable to point to any other section of chapter 47, Title 10, United States Code, that could be viewed as conferring any jurisdiction on this Court.
¶5Generally, then, this Court has no jurisdiction until after a Court of Military Review has acted.
¶6I have carefully considered, of course, this Court’s decisions in United States v Frischholz, 16 USCMA 150, 36 CMR 306 (1966); Gale v United States, 17 USCMA 40, 37 CMR 304 (1967); and United States v Bevilacqua, 18 USCMA 10, 39 CMR 10 (1968). In Bevilacquathe Court referred to its decisions in Frisehholz and Galeand declared that “[t]hese comments and decisions certainly tend to indicate that this Court is not powerless to accord relief to an accused who has palpably been denied constitutional rights in any court-martial; and that an accused who has been deprived of his rights need not .go outside the military justice system to find relief in the civilian courts of the Federal judiciary.” Id.,at pages 11-12.- This language was later clarified in United States v Snyder, 18 USCMA 480, 483, 40 CMR 192 (1969), by a statement that it referred “to cases in which we have jurisdiction to hear appeals or to those to which our jurisdiction may extend when a sentence is finally adjudged.” To this I would add that our powers on “cases in which we have jurisdiction to hear appeals” are only powers to prevent that potential jurisdiction from being thwarted, not powers to regulate every step of the proceedings by which a case later subject to our review is developed.
¶7The Supreme Court’s decisions on. what is in aid of jurisdiction make clear that what is now section 1651 of Title 28, United States Code, is not an independent grant of authority. Some cases enunciate a rule that for an appellate court to issue writs under section 1651, the appellate court must already have obtained jurisdiction of the case. Whitney v Dick, 202 US 132, 50 L Ed 963, 26 S Ct 584 (1906) ; Price v Johnston, 334 US 266, 92 L Ed 1356, 68 S Ct 1049 (1948); Adams v United States, 317 US 269, 87 L Ed 268, 63 S Ct 236 (1942). But other decisions hold that if a case is potentially within the appellate jurisdiction of the higher court, extraordinary writs may issue in aid of the appellate jurisdiction that might otherwise be defeated by the unauthorized action or inaction of the court below. McClellan v Carland, 217 US 268, 54 L Ed 762, 30 S Ct 501 (1910); Federal Trade Com. v Dean Foods Co., 384 US 597, 16 L Ed 2d 802, 86 S Ct 1738 (1966). It seems clear, however, that such a broad view of extraordinary writ powers in aid of jurisdiction is still predicated on the threat of a loss of the Court’s appellate powers over the subject matter. Under such a view, if a Court of Military Review or another official or entity were acting or failing to act in a manner that tended to impair the right of an accused to petition this Court or to prevent this Court from discharging its responsibilities under Article 67, an extraordinary writ such as mandamus or prohibition might well be appropriate as an aid of jurisdiction.
¶8Habeas corpus in aid of jurisdiction is strikingly different from habeas corpus as an original and independent proceeding under specific statutes such *518as sections 2241, 2242, and 2243 of Title 28, United States Code. Because an evidentiary hearing may be required, under that statutory arrangement an appellate court has express authority to decline to entertain an application for a writ of habeas corpus and may transfer the application for a hearing and a determination to the district court having jurisdiction to entertain it. In contrast, this Court in entertaining habeas corpus applications alleged to be in aid of jurisdiction is without any express authority to conduct a hearing to determine the facts and instead must attempt to resolve any factual controversies on the basis of appellate briefs. To me this is impractical, if not impossible.
¶9Accordingly, I would dismiss the petition for lack of jurisdiction to order the relief it seeks.