ON MONDAY, the U.S. Court of Military Appeals ordered that Lt. Christopher M. Cooke, a Strategic Air Command officer who had confessed to passing classified information to the Soviets, be freed on grounds that court martial proceedings brought against him were in violation of a promise of immunity granted by his superiors.

Lt. Cooke was first suspected of espionage when he was seen visiting the Russian embassy here in Washington. Air Force investigators subsequently followed and arrested him for failing to report those unauthorized visits and for transferring information to the Russians. The first objective of the military in this situation was to determine what material had been compromised and, learning that, to change codes and procedures so that the potential for further security breaches would be minimized. Its second objective was to prosecute Lt. Cooke for espionage. The problem here is that the two objectives were apparently incompatible since the accused declined to cooperate with military investigators if he weren't granted immunity from prosecution.

>Because of the importance of learning what information had been compromised, the decision was made to offer Lt. Cooke a deal. He was to make a full, detailed confession, revealing the information he had given to the Russians. He was then to take and pass a lie detector test to satisfy SAC officials that he had told the truth. If he agreed to these conditions, he would be discharged from the service and not be prosecuted.

Lt. Cooke complied. But then the Air Force claimed that the offer of immunity was invalid since it had not been made in writing by the commanding general of SAC. This "I had my fingers crossed" excuse was offered in spite of the fact that the accused man had relied on the specific promises of the staff judge advocate who, in turn, had briefed the SAC commander and was acting with his knowledge and implied consent. Not fair, held the Court of Military Appeals. To go forward with a court martial under these conditions would violate due process and deny the accused man a fair proceeding. The indictment was dismissed.

Why wasn't the Air Force right in trying to prosecute Lt. Cooke in spite of its bargain with him? Isn't he a self-confessed spy? So why should we have to keep bargains made with persons of this description and under circumstances of pressure? There are more reasons than the basic due-process constraints governing the prosecutor's reason for keeping this promise. This bargain was made in the first place for the vital purpose of finding out what information had been compromised in order to limit the damage--without delay. Perhaps a lesser inducement--leniency--would have been enough eventually, and perhaps the accused man would have cooperated anyway after another week of questioning. But time was of the essence. Under the circumstances, the Air Force made a reasonable bargain that had to be kept. And if the government had been allowed to go back on its word in this case, the precedent, as the court rightly put it, "would clearly discourage cooperation by suspected spies or traitors in future damage assessment investigations." The Air Force blew it. The court did what it had to.