(dissenting):
The majority undermines truth in sentencing and promotes inequality among service-members who are tried by courts-martial. Neither the Constitution, the Uniform Code of Military Justice, congressional intent, the Rules for Court-Martial, nor public policy requires the result mandated by the majority.
In Loving v. United States, — U.S.-, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996), the Supreme Court held that, under Articles 18, 36, and 56, UCMJ, 10 USC §§ 818, 836, and 856, respectively, the President could determine aggravating factors in death penalty cases. Now, this Court holds that the President does not have the authority to determine admissibility of punishments under Article 15, UCMJ, 10 USC § 815, and summary courts-martial.
There can be little disagreement that this Court could not dictate the right to counsel at either a summary court-martial or in proceedings held under Article 15. But that is exactly what the Court did, indirectly, in United States v. Booker I, 5 MJ 238 (CMA1977). United States v. Mack, 9 MJ 300 (CMA1980), recognized the weakness of the Booker I rationale. In Mack, this Court justified Booker I by relying on Baldosar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). Since that time, the Supreme Court has overruled Baldasar. Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921,128 L.Ed.2d 745 (1994).
The court below made an honest effort to abide by the doctrine of stare decisis. Numerous changes have taken place since Booker I and Mack: A new Manual for Courts-Martial with no right to counsel at Article 15 proceedings — para. 4c(1) & (2), Part V, Manual for Courts-Martial, United States (1995 ed.), and summary courts-martial, RCM 1301(e), Manual, supra (“The accused at a summary court-martial does not have the right to counsel.”); rules for admissibility of prior punishment — RCM 1001(b)(2) & (3) (no limitation on admissibility of prior Article 15s or prior convictions); direct review by the Supreme Court — Article 67a, UCMJ, 10 USC § 867a; and potential review of summary courts-martial by the Courts of Criminal Appeals and this Court — Art. 69(d), UCMJ, 10 USC § 869(d). The history behind Booker I and Mack does not justify the majority’s conclusion. A brief chronology of that history is as follows:
• United States v. Alderman, 22 USCMA 298, 46 CMR 298 (1973) (1-1-1 opinion). Judge Quinn writing for a majority of the Court, Chief Judge Darden dissenting, held that Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), requires either a waiver of counsel or representation by defense counsel at summary courts-martial.
• Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). The Supreme Court held that the Argersinger right to counsel did not apply to summary courts-martial.
• United States v. Booker I, supra (2-1 opinion). Chief Judge Fletcher writing for a majority of the Court, Judge Cook dissenting, held that absent waiver of counsel or representation by counsel:
(1) the escalator clause would not apply to summary courts-martial;
(2) a summary courts-martial conviction was not admissible for sentencing;
(3) Article 15s were not admissible for sentencing; and
(4) Article 15s and summary courts-martial were limited to military-type offenses.
• United States v. Booker II, 5 MJ 246 (CMA 1978). (2-1 opinion). Judge Cook writing for a majority of the Court, Chief Judge Fletcher dissenting, struck (4) from Booker I.
• United States v. Mack, 9 MJ 300 (CMA 1980). (1-1-1 opinion). Chief Judge Everett supported the Booker I rationale as to the escalator clause based on Baldosar.
• The Supreme Court overruled Baldasar in Nichols v. United States, supra.
Booker I has been criticized by Judges of this Court; other judges, see, e.g., Judge Gasch, Who is Out of Step?, The Army Lawyer 1, 5 (June 1978) (“Again the Court [in Booker /] has upset the balance between justice and discipline with this unnecessary *267unrealistic conclusion.”); and commentators, see, e.g., Comment, United States v. Booker: The Institutional Implications of the Court of Military Appeals Immunity from Direct Supreme Court Review, 59 B.U.L.Rev. 754 (1979).
While the majority criticizes the court below for not following the doctrine of stare decisis, it is the majority of this Court that is not applying the doctrine. The majority should follow Supreme Court precedent which holds that Booker I, Mack, and Article 27 are not bases for requiring waiver of the right to counsel or representation or consultation with counsel prior to Article 15s and summary courts-martial.
In Weiss v. United States, 510 U.S. 163, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994),* the Supreme Court recognized that courts should pay special deference to congressional legislation regarding the rules applicable to the military. The Supreme Court has also recognized the validity of the rules promulgated by the President pertaining to aggravating factors in capital cases. Loving v. United States, supra. Lastly, the Court in Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986), acknowledged that courts should give special deference to regulations promulgated by the services.
Unless the majority is basing their decision on public policy or supervisory authority, they should follow the normal hierarchy of express rights. By doing so I believe that we maintain our role as jurists. “It is not wisdom but Authority that makes a law.” Thomas Hobbes, Dialogue Between a Philosopher and a Student of The Common Laws of England 55 (Chicago 1971). However, when judges disregard the validity of properly promulgated rules and rely upon their own judgment, they run the risk of stepping across the separation-of-powers boundary by acting as legislators and engaging in rule-making.
There may be some fairness aspect to the decision of the majority. But fairness means equality of treatment in a system where servicemembers are spread throughout the world. In effect, the majority’s application of an implied-fairness rationale without reference to the Constitution, a statute, or a Rule for Courts-Martial is tantamount to an overhaul of the criminal justice system by judicial fiat.
The Court was quick in Alderman to apply Argersinger. Now, 20 years later, it is hesitant to apply Middendotf. As Judge Duncan stated: “With certain exceptions, criminal constitutional standards announced by the United States Supreme Court are applicable as precedent to this Court ... unless there is demonstrated a military necessity demanding nonapplicability.” Alderman, 22 USCMA at 303, 46 CMR at 303. Judge Duncan stressed that, absent Argersinger, he would be inclined to continue following the procedure set forth by Congress, but he felt constrained to follow the Supreme Court precedent. If this Court applied such constraint, today’s holding would be different.
The Chief Justice stated: "Petitioners’ argument also ignores the fact that Congress has not hesitated to expressly require the separate appointment of military officers to certain positions.” Weiss v. United States, 510 U.S. 163, 171, 114 S.Ct. 752, 757, 127 L.Ed.2d 1 (1994). He went on to observe: “Judicial deference thus 'is at its apogee’ when reviewing congressional decision-making in this area.” Id. at 177, 114 S.Ct. at 760-61.