I respectfully dissent. Although I adhere to my position in United States v. Mills, 641 F.2d 785 (9th Cir.1981), the majority’s unprecedented expansion of the right to counsel requires that I comment further.

The Supreme Court has spoken with a clear and consistent voice regarding the point at which the right to counsel attaches. It attaches when adversary judicial criminal proceedings are initiated. Kirby v. Illinois, 406 U.S. 682, 688 , 92 S.Ct. 1877, 1881 , 32 L.Ed.2d 411 (1972). By contrast, the speedy trial right may attach at other times, depending on threats to the liberty interests it protects. United States v. Marion, 404 U.S. 307, 320-321 , 92 S.Ct. 455, 463-464 , 30 L.Ed.2d 468 (1971).

The majority today has confused these distinct Sixth Amendment guarantees. Relying on a de facto accusation concept derived from Marion , it rules that a prisoner stands accused if he is subjected to prolonged administrative detention pending investigation of a prison crime. Although Marion concerned the speedy trial right, the majority concludes that the right to counsel attaches when an inmate is so detained, though formal proceedings have not begun.

The reasons for the majority’s intertwining of these different Sixth Amendment rights are obvious. In United States v. Clardy, 540 F.2d 439, 441 (9th Cir.), cert. denied, 429 U.S. 963 , 97 S.Ct. 391 , 50 L.Ed.2d 331 (1976), we ruled that administrative detention did not bear the characteristics of a de facto arrest outside prison walls, and we refused to extend the speedy trial right to prisoners detained pending investigation of prison crimes.

Because Clardy forecloses a ruling that the speedy trial right applies to appellants, the majority has focused instead on the right to counsel. It insists that the assistance of counsel is necessary to combat the unique investigatory disadvantages faced by those in administrative detention. It points out that these appellants were powerless to interview witnesses or otherwise combat the “corrosive effects” of the passage of time while the government investigated.

The majority’s focus on appellants’ inability to interview witnesses underscores its misperception of the role played by the right to counsel. In United States v. Ash, 413 U.S. 300 , 93 S.Ct. 2568 , 37 L.Ed.2d 619 (1973), the Court noted the historic expansion of the right to counsel. It ruled, however, that the right applied to trial-like confrontations and not to the prosecutor’s investigations or interviews with witnesses. Id. at 312-320 , 93 S.Ct. at 2575-2579 .

As the Court noted in Kirby , the right to counsel protects the defendant once he faces the prosecutorial forces of society and becomes immersed in the intricacies of the law. 406 U.S. at 689 , 92 S.Ct. at 1882. Appellants may have suffered restrictions on their liberties and may have been isolated from the government’s investigations. Until indicted, however, they faced no confrontations for which the right to counsel was designed.

Just as the majority’s interpretation of the right to counsel does not conform to precedent, its emphasis on the appellants’ investigatory disadvantages does not conform to reality. I can readily envision situations in which suspects face similar obstacles. One convicted and imprisoned for a single crime may be under continuing investigation for other offenses. Another may *1128 have probation or parole revoked for renewed criminal activity. The government may incarcerate these suspects while it investigates criminal activities outside prison, for which they have not been arraigned or indicted. They are equally as “powerless” as appellants to interview witnesses or otherwise mitigate the effects of the passage of time.

Even free suspects often lack the investigatory advantages the majority attributes to them. Many law enforcement investigations are confidential and continue for months or years. Like appellants, the targets in such cases have limited knowledge or none about the investigations.

In any of these situations, indigent suspects might benefit from the assistance of counsel before indictment. As the Court noted in .Ash, abuse or subversion of an investigation may occur at any point, but the extraordinary safeguard of the right to counsel is unnecessary to protect against such abuse. Suspects are amply protected by the “ethical responsibility” of the prosecutor and due process standards. United States v. Ash, 413 U.S. at 320-321 , 93 S.Ct. at 2578-2579 .

The Court’s rulings on administrative detention cannot buttress the majority’s departure from the accepted view of the right to counsel. Although the majority suggests that prosecutorial confrontations began at appellants’ prison disciplinary hearings, the Court has ruled that such hearings do not implicate the right to counsel. Wolff v. McDonnell, 418 U.S. 539, 570 , 94 S.Ct. 2963, 2981 , 41 L.Ed.2d 935 (1974).

The majority’s reliance on the Court’s recent decision in Hewitt v. Helms, - U.S. -, 103 S.Ct. 864 , 74 L.Ed.2d 675 (1983), is misplaced. There the Court recognized that strong governmental interests supported the isolation of suspects in prison crimes. It pointed out that the decision to isolate suspects was peculiarly within the expertise of prison officials and might be necessary to protect witnesses during investigations. Id. 103 S.Ct. at 872-873 . Although the Court ruled that state regulations could create a liberty interest in remaining in the general prison population, it decided that prisoners did not need the right to counsel to protect that interest. Id. 103 S.Ct. at 871, 874 .

Hewitt reaffirmed the notion that lawful incarceration of criminals is likely to restrict rather than expand their constitutional liberties. By its decision today, the majority has given suspects in prison crimes a right to counsel during government investigations, a right not available to suspects outside of prison. Rather than limiting the rights of prisoners, the majority has expanded them.

The inconsistencies in the majority’s position are revealed further by its presumption of prejudice to appellants. The right to counsel is meant to ensure fairness in the adversary criminal process. United States v. Morrison, 449 U.S. 361, 364 , 101 S.Ct. 665, 667 , 66 L.Ed.2d 564 (1981). Even if we assume that appellants were improperly denied counsel at an earlier stage, we must ask: were they given a fair trial?

Rather than focus on this question, the majority presumes prejudice and dismisses the indictments. Any presumption of prejudice is unwarranted and conflicts with the Court’s holding in Morrison . The Court there noted that even the total denial of counsel might not warrant the presumption of prejudice and the drastic remedy of indictment dismissal. Id. at 364r-365, 101 S.Ct. at 667-668 .

The' appellants here were afforded defenses of uncommon quality and vigor. The Gouveia appellants alone presented 14 alibi witnesses. The majority’s presumption of prejudice neglects the Court’s teaching that the courts will dismiss indictments in response to claims that government conduct has rendered the assistance of counsel ineffective only if there is “demonstrable prejudice, or substantial threat thereof.” Id. at 364-365 , 101 S.Ct. at 667-668 .

The majority then declares that the appellants have proved prejudice. To show the effects of detention on appellants’ defenses, the majority notes the absence of witnesses, dimming of memories, and deterioration of physical evidence.

*1129 These are factors commonly noted by those who complain of pre-indictment delay. They result from the passage of time rather than from ineffective advocacy. The applicable statutes of limitations and the Due Process Clause protect accused persons from the effects of any delay. Marion, 404 U.S. at 322-325 , 92 S.Ct. at 464-466 .

To the extent that appellants argue that the government interfered actively with their access to witnesses, they have adequate remedies without resorting to the right to counsel. On a showing that the government has deliberately procured the absence of a material witness favorable to the defense, the indictment can be dismissed. United States v. Valenzuela-Bernal, - U.S. -, 102 S.Ct. 3440 , 73 L.Ed.2d 1193 (1982). On a showing that a witness peculiarly within the government’s control has not been produced, the defendants may request a missing witness instruction. If given, the instruction allows the inference that the witness would have testified unfavorably to the prosecution. See United States v. Bramble, 680 F.2d 590 (9th Cir.1982).

Finally, the likelihood of exonerating testimony from absent witnesses is preeminently a factual matter for the jury’s determination if the defendant chooses to advance the theory as part of his defense. Such contentions are legitimate parts of the defense case that guilt has not been proven beyond a reasonable doubt. All such defenses are fully adequate to meet the arguments presented by the appellants here without straining to grant relief by a new application of the right to counsel under the Sixth Amendment.

Appellants suffered no prejudice from the absence of counsel. By creating a right to counsel here, the majority has departed substantially from Supreme Court precedent. That departure compels me to suggest that review by that Court is indicated.

I would affirm the judgments.