(dissenting):
I dissent.
At the outset, I desire to make it crystal clear that in my opinion any accused in the military service is entitled not only to the benefits of the Uniform Code of Military Justice, but to the safeguards of the Bill of Rights of the Constitution of the United States as well, and, as a human being, is also entitled to the protections of both natural and divine law.
We have held that it is a violation of the fundamental rights of an accused to require him to write his name in court, to print the alphabet, and to read from the Manual for Courts-Martial, when these requests were designed to convict him of crime. See United States v. Rosato, 3 USCMA 143, 11 CMR 143; United States v. Eggers, 3 USCMA 191, 11 CMR 191; United States v. Greer, 3 USCMA 576, 13 CMR 132. We have likewise made it quite plain that there would be no violation of either the provisions of the Code or of the protections of the Constitution in requiring an accused to submit to fingerprinting, footprinting, trying on a coat, submitting his body to external examination for marks, scars, and so forth, or in requiring him to stand up in a courtroom for the purpose of identification; nor would we even consider it a violation of the Code, or the Constitution, to use a sample of blood or urine obtained from the accused with his consent. United States v. Booker, 4 USCMA 335, 15 CMR 335. We are now faced squarely with the question of whether or not it is lawful to forcibly extract by use of a catheter a sample of urine from the body of an accused, and then use that sample for the purposes of conviction.
There are several state cases which discuss the propriety of forcibly abstracting from an accused samples of blood and samples of urine. In this case we are not dealing with samples of blood, but in my opinion it would bo much simpler to justify the extraction by a needle from the tip of a finger a sample of blood which was later to be used as evidence against an accused. After all, the fingers are commonly exposed to the public view. There is no appreciable pain caused by the extraction, and certainly no degradation even remotely connected with such an act. Whether other cogent reasons exist which would make such a practice a questionable one, I am not now called upon to decide.
However, when we come to the use of a catheter forcibly and against the protests of the accused, or when, as in this case, a catheter is used upon the body of the accused when he is completely unconscious, then we face another problem.
The majority, in its opinion, cites the decisions of several courts which purport to justify the extraction of fluids from the human body against the will of a defendant by catheter, stomach pump, and so forth. The majority also frankly and fairly admits that there is good authority to the contrary. The case of Commonwealth v. Statti, 166 Pa Super 577, 73 A2d 688, refers to extracting testimony from a person’s own lips. We have definitely decided that the protections of Article 31 and the Uniform Code extend far beyond testimonial compulsion. This case, therefore, is of little or no value as support for the majority’s conclusion.
Another case cited by the majority to support its position is Block v. People, 125 Colo 36, 240 P2d 512. A careful scrutiny of the paragraph quoted from that decision makes ■ it definitely plain that there was in that case no use of either physical or moral compulsion to extort any communication from him. In other words, the court there held that compelling a man, in a criminal court, to put on a coat would be no violation of his rights under the Fifth Amendment of the Constitution. With this proposition, of course, I would wholeheartedly agree; but certainly using a catheter upon an unconscious man falls within an entirely different category. We have the utmost respect for the decisions of the state courts, and recognize their wis*332dom and logic. We often cite them to support our own conclusions. But it must be clear to everyone that the decisions of the state courts are not binding upon us; and if we conclude, in the matter under consideration, that there is a violation of either the Uniform Code of Military Justice, or of the Fifth Amendment to the Constitution of the United States, we should reverse in spite of any number of state decisions to the contrary.
Both Federal eases cited by the majority in support of its conclusions certainly do not apply to the situation in this case. In Bratcher v. United States, 149 F2d 742 (CA 4th Cir), the defendant was charged with evading the Selective Service Act by consuming benze-drine. Prior to the trial, he moved to suppress evidence obtained in the physical examination which was a part of the induction proceedings. The motion was denied on the ground that the accused did not sustain the burden of proving his claim that the object of the examination was to obtain evidence against him for a criminal proceeding. In affirming the action of the trial court, the Court of Appeals said:
“The trial judge took evidence on the motion to suppress thé evidence obtained while the defendant was in the hospital. A number of witnesses were heard and the trial judge in an able written opinion overruled the motion on the ground that the defendant had ‘totally failed to carry the burden resting on him’. The determination of this question by the trial judge was the determination of a question of fact and was sustained by substantial direct evidence offered on behalf of the Government. Had the examination of the defendant shown that he was physically fit for induction into the limited services he would have been inducted at once and there was no evidence offered to show that the authorities intended anything other than to comply with the regulations and induct the defendant if he was found acceptable.
“We do not think that defendant’s physical examination could possibly be considered an unlawful search and seizure. The evidence was obtained under the Selective Training and Service Act and the regulations issued thereunder. . We a-re therefore of the opinion that there was no violation of the Fifth Amendment in admitting this evidence.
“We are of the opinion that the action of the court below in refusing the motion to suppress the evidence was correct and that no constitutional rights of the defendant were violated by the admission of the evidence.”
In MacFarland v. United States, 150 F2d 593 (CA DC Cir), the court approved a visual examination of the external parts of the body of the accused. With that type of examination I have no quarrel.
Using a catheter upon an unconscious accused is an entirely different proposition. A catheter is a tubular instrument which is introduced into the urethra for the purpose of drawing urine from the bladder. Ordinarily it is a somewhat painful experience, although it is unlikely that an unconscious person would suffer any pain. That, however, is beside the point. The real question at issue is whether or not an outside agency is justified in invading the sanctity of the human body without consent.
In considering the petition in the Rochin case, 342 US 165, 96 L ed 183, 72 S Ct 205, 25 ALR2d 1396, the Supreme Court said:
“. . . The Supreme Court of California denied without opinion Rochin’s petition for a hearing. Two justices dissented from this denial, and in doing so expressed themselves thus: ‘. . . a conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse. . . . Had the evidence forced from defendant’s lips consisted of an oral confession that he illegally possessed a drug ( ... he would have the protection of the rule of law which excludes coerced confessions from evidence. *333But because the evidence forced from his lips consisted of real objects the People of this state are permitted to base a conviction upon it. [We] find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant’s body by physical abuse.’
. . 'we must be deeply mindful of the responsibilities of the States for the enforcement of criminal laws, and exercise with due humility our merely negative function in subjecting convictions from state courts to the very narrow scrutiny which the Due Process Clause of the Fourteenth Amendment authorizes.’ ”
And here let me interpolate. We are not dealing with any appeal from a state court. There are no limitations) upon our right to construe the Uniform 1 Code of Military Justice and the Con- / stitution of the United States. The' language and reasoning of the Rochin case quoted below is particularly appropriate to the problem which now confronts us. Here is what the United States Supreme Court said in that case:
“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.
“It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend ‘a sense of justice.’ See Mr. Chief Justice Hughes, speaking for a unanimous Court in Brown v. Mississippi, 297 US 278, 285-286, 56 S St 461, 464-465, 80 L Ed 682. It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.
“To attempt in this case to - distinguish what lawyers call ‘real evidence’ from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.
“In deciding this case we do not heedlessly bring into question deci*334sions in many States dealing with essentially different, even if related, problems. We therefore put to one side cases which have arisen in the State courts through use of modern methods and devices for discovering wrongdoers and bringing them to book. It does not fairly represent these decisions to suggest that they legalize force so brutal and so offensive to human dignity in securing evidence from a suspect as is revealed by this record. Indeed the California Supreme Court has not sanctioned this mode of securing a conviction. It merely exercised its discretion to decline a review of the conviction. All the California judges who have expressed themselves in this case have condemned the conduct in the strongest language.
“We are not unmindful that hypothetical situations can be conjured up, shading imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions. But the Constitution is ‘intended to preserve practical and substantial rights, not to maintain theories.’ Davis v. Mills, 194 US 451, 457, 24 S Ct 692, 695, 48 L Ed 1067.
“On the facts of this case the'conviction of the petitioner has been obtained by methods that offend the Due Process Clause. The judgment below must be reversed.”
Even stronger is the position of Mr. Justice Black and the language used by him. He says:
“. . . I think a person is compelled to be a witness against himself not only when he is compelled to testify, but also when as here, incriminating evidence is forcibly taken from him by a contrivance of modern science.”
We must remember that no complication involving any state sovereignty faces us here. This is a Federal case in every sense. In Adamson v. California, 332 US 46, the Supreme Court pointed out that the limitations imposed upon the states under the “due process” clause of the Fourteenth Amendment are much less rigorous than those which bind the Federal Government under the Fifth Amendment. There the court said:
“It is settled law that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship, or because it is a personal privilege or immunity secured by the Federal Constitution as. one of the rights of man that are listed in the Bill of Rights.”
If such shocking conduct is prohibited to the states, which have much greater latitude of action under the Constitution than the Federal Government, then it most certainly is prohibited to the Federal authorities, and particularly in the military establishment where, there are the additional protections of j the Uniform Code of Military Justice.]
In the Rochin case a stomach pump was used instead of a catheter. If anything, it seems to me that of the two, the use of the catheter would be the more reprehensible. Such an invasion of the inherent right of privacy of every human being is prohibited not only by the Fifth Amendment to the Constitution of the United States and by the provisions of the Uniform Code of Military Justice, but by natural and divine law as well. The precepts of natural law and the law of nature which long preceded the adoption of the Bill of Rights revolt at the practice approved by the majority in this ease.
The theory of the law of nature arose in the ancient world, and was based upon eternal principles of law inherent in the nature of the universe itself. Man-made law was merely the affirmation of natural and divine law. Plato argued that absolute justice existed whether recorded by human experience or not. The Greek philosophers expounded the necessity of reconciling man-made laws with the law of nature. The same philosophies obtained throughout the Roman world. Cicero expounded these theories in De Legibus *335in which he said that the binding quality of the civil law rose out of its harmony with the eternal principles of right and justice. He argued that man-made law was valid only when it did not conflict with the principles of right and justice; and that it would be impossible to make robbery or adultery, or falsification true law, by mere enactment.
In the middle ages natural law received universal recognition. The Roman Law as codified by the Emperor Justinian was only a reflection of the natural law. The Decretum, Gratian’s Canonical Code of the 12th Century, was also based on natural law. In England in the 12th Century, John of Salisbury wrote:
“There are certain principles of law which have perpetual necessity, having the force of law among all nations, and which absolutely cannot be broken.”
In the 13th Century Henry de Bracton supported the same principles, and so did Sir John Fortesque, two centuries later, in his leading treatise, DeNatura Legis Naturae. Other exponents of the natural law were Roger Williams, Thomas Hooker, Hugo Grotius, the great Dutch authority on international law, John Milton, James Harrington, Algernon Sidney, John Locke, and the continental writers, Samuel Pufendorf, Emmerich Vattel, Jean Jacques Bur-lanoqui. These writers conceived a definite body of inalienable rights and privileges possessed by every individual in organized society. It was the state’s duty to protect these rights, which were virtually immune from infringement, even by the Government, in the name of the general welfare.
The entire genius of our American institutions, the guarantees of the Bill of Rights, the protections of the Uniform Code of Military Justice, all combine to establish the truth of the aphorism “that a man’s home is his castle.” A fortiori then, these inalienable rights, which are implicit in the Law of Nature, and of Nature’s God, demand that the sanctity of the human body, made in the image and likeness of God — the temple of his immortal soul— be and remain forever sacred and inviolate.