Opinion of the Court
CRAWFORD, Judge:
Appellant pleaded guilty to numerous offenses, in violation of Articles 86, 112a, and 85, Uniform Code of Military Justice, 10 USC §§ 886, 912a, and 885, respectively. He was sentenced to a dishonorable discharge, confinement for 10 months, partial forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence, except for confinement exceeding 4 months and 3 days. The Court of Military Review set aside the Article 86 offenses and the offenses of use and distribution of methamphetamines because of a speedy-trial violation. It then affirmed the remaining findings of guilty and reassessed the sentence, substituting a bad-conduct discharge for the dishonorable discharge. We granted review to determine whether the military judge improperly admitted appellant’s “four confessions taken without notification to appellant’s counsel” in violation of Mil.R.Evid. 305(e), Manual for Courts-Martial, United States, 1984. 37 MJ 232.
Appellant argues that, when a suspect establishes an attorney-client relationship and subsequently initiates contact with investigators, waives his rights, and agrees to make a statement, no statement can be taken until counsel has been notified. We reject appellant’s argument and hold that, when a suspect initiates contact with investigators and, with knowledge of his rights under Article 31, UCMJ, 10 USC § 831; Mil.R.Evid. 305(e); and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. (1966), [491]*491waives those rights, there is no duty to notify his counsel prior to taking his statement.
FACTS
On May 12, 1989, appellant waived his rights and made a statement to a security police investigator. Three days later appellant was called to be interviewed by Special Agent Grantham of the Office of Special Investigations (OSI) and Special Agent Mullins, also of OSI. At that interview appellant requested an attorney, and the interview was terminated. About 2 hours later Grantham initiated an interview with appellant concerning other charges, and appellant waived his rights. However, the military judge suppressed the evidence from this second interview, after the prosecution stated it would not offer that statement in evidence.
On July 5, 1989, appellant went to the office of the area defense counsel to see his attorney, Captain LeEllen Coacher. Another area defense counsel, Captain T. Edward Vestal, told appellant that Captain Coacher had been reassigned and that Major Dent was the new circuit defense counsel but was then on temporary duty. Appellant telephonically contacted Major Dent and entered into an attorney-client relationship. Appellant concedes that no one subject to the Code attempted to interview him again from May 15 until July 14, 1989.
On July 12, 1989, the Philippine Narcotics Command (NARCOM) informed the OSI of its plan to run a “buy-bust” operation against appellant at his off-base residence. This undercover operation resulted in appellant’s arrest by NARCOM. However, an interrogation was commenced by the OSI who advised appellant of his rights. Appellant waived his rights and consented to a search of his residence. This search revealed methamphetamine and drug paraphernalia.
On July 13, 1989, the OSI coordinated appellant’s release from Philippine custody. Appellant then assisted the OSI in the search and apprehension of two servicemembers. Before appellant left the OSI office, Special Agent Grantham instructed appellant to contact Major Dent and to return to the OSI office to make a statement if appellant so desired after consulting with his attorney. Special Agent Grantham provided appellant with a phone and the phone number of the area defense counsel’s office so that appellant could contact Major Dent.
Appellant returned to the OSI office on July 14, 1989, read, and signed the following:
After being advised of my rights, I understand that the matter being investigative [sic] by AFOSI involves the incident that I was involved in on the night of 12-13 July 89 in which I obtained some shabu (methamphetamines) for a local National. Prior to this incident, I was interviewed by Security police and AFOSI regarding some other matters in which I was involved in or of which I have knownledge [sic] of. Regarding these prior incidents, I have consulted with a lawyer, I would now like to talk to AFOSI about all of these incidents and I do not wish to consult with my lawyer prior to discussing all of these matters with AFOSI. I understand that I am allowed to consult with my lawyer prior to being interviewed by AFOSI; however, I do not wish to talk with my lawyer or to have my lawyer with me during this interview.
On October 2, 3, and 11, 1989, appellant contacted the OSI three more times without requesting counsel in each instance and making statements. At trial the military judge found that the NARCOM operation was “not a subterfuge” for “reinitiating contact with the accused.”
DISCUSSION
Mil.R.Evid. 305(e) has the following notice requirement that overlaps Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981):
When a person subject to the code who is required to give warnings under subdivision (c) intends to question an accused or person suspected of an offense and knows or reasonably should know that counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the counsel must be notified of the intended interrogation and given a [492]*492reasonable time in which to attend before the interrogation may proceed.
Mil.R.Evid. 305(g)(1) further provides:
After receiving applicable warnings under this rule, a person may waive the rights described therein and in Mil.R.Evid. 301 and make a statement. The waiver must be made freely, knowingly, and intelligently. A written waiver is not required. The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement.
If there is a violation of Mil.R.Evid. 305(e), then the evidence is inadmissible. Mil. R.Evid. 305(a) and 304(a). Mil.R.Evid. 305(e) “is taken from United States v. McOmber, 1 MJ 380 (CMA 1976).”
Since the rule is derived from McOmber, a discussion of that ease is in order. McOmber was taken to the investigator’s office after initial questioning at his residence. Immediately after being warned of his rights, he requested counsel. Almost 2 months after the accused’s attorney contacted the agent to discuss the case, the investigator again interviewed McOmber concerning related offenses. In McOmber we indicated that our
concern is whether an attorney once appointed or retained to represent a military suspect must first be contacted by investigators who have notice of such representation when they wish to question the suspect. No decision of which we are aware has condoned such a surreptitious interrogation technique which plainly seeks to deprive an individual of the effective assistance of counsel.
1 MJ at 382.
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Opinion of the Court
CRAWFORD, Judge:
Appellant pleaded guilty to numerous offenses, in violation of Articles 86, 112a, and 85, Uniform Code of Military Justice, 10 USC §§ 886, 912a, and 885, respectively. He was sentenced to a dishonorable discharge, confinement for 10 months, partial forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence, except for confinement exceeding 4 months and 3 days. The Court of Military Review set aside the Article 86 offenses and the offenses of use and distribution of methamphetamines because of a speedy-trial violation. It then affirmed the remaining findings of guilty and reassessed the sentence, substituting a bad-conduct discharge for the dishonorable discharge. We granted review to determine whether the military judge improperly admitted appellant’s “four confessions taken without notification to appellant’s counsel” in violation of Mil.R.Evid. 305(e), Manual for Courts-Martial, United States, 1984. 37 MJ 232.
Appellant argues that, when a suspect establishes an attorney-client relationship and subsequently initiates contact with investigators, waives his rights, and agrees to make a statement, no statement can be taken until counsel has been notified. We reject appellant’s argument and hold that, when a suspect initiates contact with investigators and, with knowledge of his rights under Article 31, UCMJ, 10 USC § 831; Mil.R.Evid. 305(e); and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. (1966), [491]*491waives those rights, there is no duty to notify his counsel prior to taking his statement.
FACTS
On May 12, 1989, appellant waived his rights and made a statement to a security police investigator. Three days later appellant was called to be interviewed by Special Agent Grantham of the Office of Special Investigations (OSI) and Special Agent Mullins, also of OSI. At that interview appellant requested an attorney, and the interview was terminated. About 2 hours later Grantham initiated an interview with appellant concerning other charges, and appellant waived his rights. However, the military judge suppressed the evidence from this second interview, after the prosecution stated it would not offer that statement in evidence.
On July 5, 1989, appellant went to the office of the area defense counsel to see his attorney, Captain LeEllen Coacher. Another area defense counsel, Captain T. Edward Vestal, told appellant that Captain Coacher had been reassigned and that Major Dent was the new circuit defense counsel but was then on temporary duty. Appellant telephonically contacted Major Dent and entered into an attorney-client relationship. Appellant concedes that no one subject to the Code attempted to interview him again from May 15 until July 14, 1989.
On July 12, 1989, the Philippine Narcotics Command (NARCOM) informed the OSI of its plan to run a “buy-bust” operation against appellant at his off-base residence. This undercover operation resulted in appellant’s arrest by NARCOM. However, an interrogation was commenced by the OSI who advised appellant of his rights. Appellant waived his rights and consented to a search of his residence. This search revealed methamphetamine and drug paraphernalia.
On July 13, 1989, the OSI coordinated appellant’s release from Philippine custody. Appellant then assisted the OSI in the search and apprehension of two servicemembers. Before appellant left the OSI office, Special Agent Grantham instructed appellant to contact Major Dent and to return to the OSI office to make a statement if appellant so desired after consulting with his attorney. Special Agent Grantham provided appellant with a phone and the phone number of the area defense counsel’s office so that appellant could contact Major Dent.
Appellant returned to the OSI office on July 14, 1989, read, and signed the following:
After being advised of my rights, I understand that the matter being investigative [sic] by AFOSI involves the incident that I was involved in on the night of 12-13 July 89 in which I obtained some shabu (methamphetamines) for a local National. Prior to this incident, I was interviewed by Security police and AFOSI regarding some other matters in which I was involved in or of which I have knownledge [sic] of. Regarding these prior incidents, I have consulted with a lawyer, I would now like to talk to AFOSI about all of these incidents and I do not wish to consult with my lawyer prior to discussing all of these matters with AFOSI. I understand that I am allowed to consult with my lawyer prior to being interviewed by AFOSI; however, I do not wish to talk with my lawyer or to have my lawyer with me during this interview.
On October 2, 3, and 11, 1989, appellant contacted the OSI three more times without requesting counsel in each instance and making statements. At trial the military judge found that the NARCOM operation was “not a subterfuge” for “reinitiating contact with the accused.”
DISCUSSION
Mil.R.Evid. 305(e) has the following notice requirement that overlaps Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981):
When a person subject to the code who is required to give warnings under subdivision (c) intends to question an accused or person suspected of an offense and knows or reasonably should know that counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the counsel must be notified of the intended interrogation and given a [492]*492reasonable time in which to attend before the interrogation may proceed.
Mil.R.Evid. 305(g)(1) further provides:
After receiving applicable warnings under this rule, a person may waive the rights described therein and in Mil.R.Evid. 301 and make a statement. The waiver must be made freely, knowingly, and intelligently. A written waiver is not required. The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement.
If there is a violation of Mil.R.Evid. 305(e), then the evidence is inadmissible. Mil. R.Evid. 305(a) and 304(a). Mil.R.Evid. 305(e) “is taken from United States v. McOmber, 1 MJ 380 (CMA 1976).”
Since the rule is derived from McOmber, a discussion of that ease is in order. McOmber was taken to the investigator’s office after initial questioning at his residence. Immediately after being warned of his rights, he requested counsel. Almost 2 months after the accused’s attorney contacted the agent to discuss the case, the investigator again interviewed McOmber concerning related offenses. In McOmber we indicated that our
concern is whether an attorney once appointed or retained to represent a military suspect must first be contacted by investigators who have notice of such representation when they wish to question the suspect. No decision of which we are aware has condoned such a surreptitious interrogation technique which plainly seeks to deprive an individual of the effective assistance of counsel.
1 MJ at 382.
McOmber preceded Edwards by 5 years. Edwards, like McOmber, is designed to prevent police badgering, Davis v. United
States, — U.S. -, 114 S.Ct. 2250, —
L.Ed.2d --- (1994), and overreaching. See,
e.g., Griffin v. Lynaugh, 823 F.2d 856 (5th Cir.1987); State v. Smith, 156 Ariz. 518, 753 P.2d 1174 (1987). Mil.R.Evid. 305(e) is triggered when a person subject to the Code “intends to question” someone. This language was designed to protect the right to counsel when the police initiate the interrogation. If Mil.R.Evid. 305(e) is applicable, the suspect has a right to have his counsel notified, and his counsel must be given a reasonable period of time to attend the interrogation.
Here there is no evidence of police overreaching or badgering or attempting to “surreptitiousfly]” deprive appellant of the right to counsel. Rather, this is a case in which appellant intended to give a statement, indeed several statements, to the OSI agents. This discourse was initiated by appellant and not by the agents. If, as here, the prosecution can show that the accused was aware of his right to have his counsel notified and present at the interrogation, but that he affirmatively waived those rights, then a valid waiver under Mil.R.Evid. 305(g)(1) can be found.
On each of the four occasions appellant voluntarily came to the investigator’s office. On July 13, 1989, the interrogator instructed appellant to contact his attorney. He provided appellant with a phone, an office, and a phone number of the area defense counsel. On July 14, 1989, appellant, who was not in custody, voluntarily returned to the OSI office and indicated that he had “consulted with a lawyer” and did “not wish to consult with my lawyer prior to discussing all of these matters with AFOSI.” Additionally, there was no subterfuge by the OSI agents, and there is no issue in this case about the accuracy of appellant’s confessions.
[493]*493We reject the idea that there is an indelible right of notice to counsel under Mil. R.Evid. 305(e). Like other Constitutional rights, a suspect may make a knowing and intelligent waiver. Under the circumstances of this case, we hold that there was a valid waiver under Mil.R.Evid. 305(g)(1).
The decision of the United States Air Force Court of Military Review is affirmed.
Judges COX and GIERKE concur.
McOmber cannot reasonably be based on Article 27, Uniform Code of Military Justice, 10 USC § 827, which concerns assignment of counsel for special and general courts-martial. In United States v. Clark, 22 USCMA 570, 48 CMR 77 (1973), the Court held that there was no right to counsel at interrogations other than those specifled in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Article 27 has not changed since that decision. See also Ulmer, Military Justice and the Right to Counsel (1970); Christensen, Pretrial Right to Counsel, 23 Mil. L.Rev. 1 (1964).