(dissenting):
I must dissent from the result reached by the majority.
II
Uniqueness characterizes the case before us here. First, it is unique in its irony. The accused officer, a lieutenant colonel, was once a high functionary in the system of censorship imposed by the Eighth Army in Korea. Now he has been sentenced to dismissal for an alleged defiance of the very Regulations it had previously been his duty to enforce. His book, “Korean Tales,” produced his present difficulties largely because of assertions contained in it to the effect that General MacArthur had been irresponsible in public statements while commanding the United Nations Far Eastern forces, and that certain elements of the press corps in Korea had been equally irresponsible in their reporting. Yet the alleged irresponsibility of the accused in publishing these evaluations constitutes the gravamen of the present proceedings against him. While in Korea, he served as president of a general court convened by the Commanding General, Eighth Army — and one of the chapters of “Korean Tales” treats at length of trials by court-martial. Ironically enough, however, he is now concerned with the receiving, rather than the dispensive, aspect of military justice.
Uniqueness also inheres in the circumstance that the instant one must be regarded as a test case. Repeatedly during the trial, defense counsel sought to present evidence to the effect that military persons other than the accused, and of a rank considerably higher than his own, had on numerous occasions issued public statements without prior submission to Army public information officers for clearance — and that no trials by court-martial had resulted. Quite properly the law officer excluded this evidence as immaterial.
I am sure that neither the court-martial, nor this Court, properly can question the Army’s selection of Colonel Voorhees’ conduct for experimental purposes. Cf. United States v. Messenger, *5452 USCMA 21, 6 CMR 21. Nevertheless, I cannot ignore the fact that this is a test ease, and that it falls within the very sensitive areas of free speech and free press — facts which to me imply a burden of extraordinary caution in this Court’s review. Consistent with that duty, I find it impossible to affirm any of the findings of guilt here.
Ill
Although the areas of free speech and free press are sensitive ones, it is undeniable that a military person, by virtue of his status as such, may become subject to the imposition of special limitations on the freedom with which he may express his personal views. This circumstance is no more than a facet of the proper principle that the pressing demands associated with the successful conduct of war may authorize limitations, even discriminations, otherwise illegal. Hirabayashi v. United States, 320 US 81, 87 L ed 1774, 63 S Ct 1375. Nonetheless, and even as to service uer-sonnel, I deem applicable to a partial— even a substantial — extent the doctrine of the Supreme Court that the rights deriving from the First Amendment to the Constitution are to be jealously safeguarded by the judiciary — this regardless of whether they may be said to enjoy a “preferred position.” See, e.g., Thomas v. Collins, 323 US 516, 89 L ed 430, 65 S Ct 315; Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct 153.
In the protection of these rights, the Supreme Court has inveighed particularly against “previous restraints” on free speech and a free press. This hostility to censorship — which normally seeks to silence the expression of unpopular views or opinions — was displayed vividly in Near v. Minnesota ex rel Olson, 283 US 697, 75 L ed 1357, 51 S Ct 625. There the Court overturned an injunction which purported to prohibit the defendant’s publication of “malicious, scandalous and defamatory matter” — and it was emphasized that only in “exceptional cases” might previous restraints on publication be imposed. Cf. Lovell v. City of Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666; Cantwell v. Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct 900. More recently, the Supreme Court reaffirmed the Near doctrine in striking down an attempt by New York censors to prohibit the showing of an allegedly sacrilegious motion picture. Burstyn v. Wilson, 343 US 495, 96 L ed 1098, 72 S Ct 777. Accord, Gelling v. Texas, 343 US 960, 96 L ed 1359; 72 S Ct 1002; Superior Films v. Ohio, 346 US 587, 98 L ed —, 74 S Ct 286. The Court there pointed out that, in connection with the application of the broad and all-inclusive definition of “sacrilege” utilized by the State in its picture censorship, “the censor is set adrift upon a boundless sea.” In the Court’s eyes New York labored under a “heavy burden” to demonstrate that its censorship involved the “exceptional case” adverted to in the Near opinion.
An identical approach was taken in considering the refusal by public officials to permit the use of public places for the dissemination of unpopular views by certain groups or individuals. Kunz v. New York, 340 US 290, 95 L ed 280, 71 S Ct 312; Niemotko v. Maryland, 340 US 268, 95 L ed 267, 71 S Ct 325. In the former case the Court considered contentions that denial of a permit to speak was justified because the individual who sought it might produce breaches of the peace by statements made in the course of religious meetings. It was emphasized that “there are appropriate public remedies to protect the peace and order of the community if appellant’s speeches should result in disorder or violence.” And it was added that “We are here concerned with suppression — not punishment.” This latter remark displays unmistakably the view that censor ship is not justified for the sole reason that a projected utterance might result in a breach of the peace, the maintenance of a nuisance, or some other punishable offense. The premise, of course, is that society will be protected sufficiently through the likelihood of subsequent punishment administered in accordance with due process of law; and that there would be involved a great loss of freedom — and the benefits thereof — if an individual *546were to be subjected to the uncontrollable and unreviewable whims of a censor.
IV
It strikes me that — despite differences between the military and civil situations — the Supreme Court opinions adverted to in preceding paragraphs possess definite relevance to the problem at hand. The prosecution of Colonel Voorhees stems from an effort to enforce the Army’s system of censorship. This censorship was directed toward suppressing the publication of his book — which is to say, to the imposition of a “previous restraint” on the accused’s expression of views. The censorship was in no way operative to protect “security,” but instead to enforce “policy and, propriety.” This fact is made abundantly clear in the record of trial, which contains testimony of prosecution witnesses to the effect that the accused’s manuscript ran into trouble because of the author’s failure to meet “policy and propriety” standards, and not because of threats posed to “security.” In addition, General Dorn, the Army’s Deputy Chief of Information, who actively conducted the review of the Voorhees manuscript, wrote the accused’s publishers — as revealed by Defense Exhibit R — that security was not involved. Finally, a perusal of “Korean Tales” amply reveals the extent of unlikelihood that security could have been involved — in view of the very nature of the book.
The Army refused to grant clearance unless Colonel Voorhees effected substantial deletions. Had these deletions been accomplished — as General Dorn also wrote the publishers — the latter might well have been unwilling to publish the remnant. It is apparent that, in the absence of those deletions, the accused would never have been free to publish — so far as the Army was concerned — until that vague and uncertain day in the future when he would be released from active duty. At that time the manuscript unquestionably would have been “dead,” in light of the topical character of its subject matter. Thus the choice presented the accused was one between the risk of disciplinary action, on the one hand, and, on the other, the nonpublication of a book conceded by the Army to be unobjectionable security-wise. This was Colonel Voorhees’ option as of a time considerably earlier than June 15, 1952 — the date of the first alleged offense.
It is hard for me to understand how the phrase “policy and propriety”— although, as the Chief Judge says, it does not possess “simply the dictionary meaning” — is appreciably more definite than the term “sacrilegious.” Cf. Winters v. New York, 333 US 507, 92 L ed 840, 68 S Ct 665; Lanzetta v. New Jersey, 306 US 451, 83 L ed 888, 59 S Ct 618. Moreover, I perceive no channel for legal review of determinations by the Army’s Public Information Office of the question of what manuscripts do not conform to “policy and propriety,” and thus are unpublishable. When such massive vagueness characterizes a statute promulgated to restrict free speech and press, I do not feel inclined to inquire into what behavior, within the vast area covered by its terms, may legally be interdicted. Cf. Winters v. New York, supra; Thornhill v. Alabama, 310 US 88, 84 L ed 1093, 60 S Ct 736; Cantwell v. Connecticut, supra; Schneider v. New Jersey, supra; United States v. Cardiff, 344 US 174, 97 L ed 200, 73 S Ct 189. Nor am I able to see how the Army can — under its application of AR-360-5 — meet the “heavy burden,” referred to by the Supreme Court, in justifying the “previous restraint” it seeks to impose on the accused.
It has been maintained by the service concerned that the publication of “Korean Tales” would have involved the commission of multiple offenses by the accused — notably that of disrespect to his superior officer, General MacArthur, in violation of the Uniform Code, Article 89, 50 USC § 683. Initially I must record my difficulty in discerning the possibility of any sort of offense growing out of many of the passages on the deletion of which the Army Public Information Office insisted. For example, one such passage asserted that certain reporters in Korea had been extremely competent; it also indicated that others had been decidedly incom*547petent, and had used questionable tactics in obtaining and disseminating news. Even within the ample folds of Article 134, is a criminal offense committed in praising a group of newspaper reporters? Or in condemning others— so long as the motive is not criminal and the condemnatory facts and language are not false?
However, were I to concede arguendo that the publication of each of the statements complained of by the service concerned did involve an offense under the Uniform Code, I would not be required to conclude that the censorship of such statements was lawful. The Supreme Court has said as much in Near v. Minnesota, supra, and as well in Burstyn v. Wilson, supra. That Court — it seems to me — has unhesitatingly refused to remit law enforcement to the untender mercies of censorship, and has asserted that the remedy lies in prosecutions for the offenses committed, rather than in the suppression of a book, an article, or a public address. Accordingly, any disrespect to General Mae-Arthur could appropriately have been punished by a court-martial — with the determination of guilt left to an Army court operating within the framework of miliary due process and other safeguards provided by the Uniform Code of Military Justice. But “Korean Tales” could not lawfully be suppressed by service censors, acting within the terms of their own understanding of the nebulous phrase, “policy and propriety.” As for the possibility of insults to the press, I suspect the remedy would lie principally in civil suits for libel against the accused and his publishers — on the assumption, of course, that any reporters concerned could establish the untruth of Colonel Voorhees’ comments relating to themselves.
Judge Latimer suggests the possibility of “chaotic conditions” unless censors are permitted to delete statements which might invade Army concepts of “policy and propriety.” He suggests, indeed, that it is an undue burden to require prosecutions for disrespect and the like instead of permitting the censorship of offending statements in the first place. His supposition of disorganization does not serve to justify in my mind the vagueness and concomitant chaos which currently appear to infest the Army’s system of censorship. Moreover, if offenses in the nature of disrespect to a superior officer tend to multiply dangerously, a remedy more consistent with the rights of free speech and press might take the form of an increase in the punishment assessable for the crime — a measure which the President is empowered to take when he feels necessary. It is genuinely hard to believe that the deterrent effect of action of this sort would not suffice to stiffen discipline. Civilian analogies certainly suggest that it would. Yet the action would in no wise require the imposition of “prior restraints” — branded as odious by the Supreme Court.
Judge Latimer at another point indicates that Congress, in enacting Article 88 of the Code, which prohibits contemptuous statements by a commissioned officer against enumerated public officials, wished to preclude “unbridled expressions of opinions by service personnel.” The argument that an express prohibition of one type of behavior implies an intent to forbid all generally similar conduct not only flies in the face of the ancient canon of construction, expressio unius, exclusio aIterius, but also defies the previous decisions of this Court. United States v. Norris, 2 USCMA 236, 8 CMR 36; United States v. Hallett, 4 USCMA 378, 15 CMR 378; United States v. Hamilton, 4 USCMA 383, 15 CMR 383.
Additionally this same associate quotes from Schenck v. United States, 249 US 47, to support his argument. However, that case involved a World War I prosecution for the distribution of leaflets which counselled opposition to the conscription program then in effect. This distribution violated specific statutes enacted by Congress on which the indictment rested — legislation involving no such nebulous phrase as “policy and propriety.” Most important, no attempt was there made to impose a “prior restraint.” In fact, as the very quotation from the case indicates, the absence of such restraints constituted one of the grounds on which the Government sought to sustain the conviction. Likewise I would find no *548valid constitutional objection here were Colonel Voorhees being prosecuted — not for a failure to accede to “prior restraints”- — but for past violations of some one of those enactments, found in the Uniform Code and elsewhere designed to maintain military discipline and efficiency. Balancing, on the one hand, the Congressionally authorized deterrents available for conduct which undermines discipline against the amor-phism of the Army’s censorship, on the other, I cannot descry the overriding necessity that I would require to sustain the legality of the restrictions the latter imposes. Nor can I find any circumstance which would induce me to attempt by judicial construction to rewrite the offending Army Regulations in order that they may be made to conform to law.
Government counsel have urged that the Army’s Public Information Office would have aided and abetted in the commission of crime by the accused had it cleared his manuscript — containing as it did disrespectful references to General MacArthur. The simple answer to this argument is that if the censors lacked authority to review other than for security — -which was found not to be involved in the manuscript of “Korean Tales” — they could not be criticized for failure to act beyond their powers. On this premise, their clearance would have reflected no more than the representation that the bodk presented no security problem — which is indisputably the case — and thus could have established no criminal participation on the part of censorship personnel.2
Y
Ch-ief Judge Quinn has taken the view that AR-360-5 does not, in fact, authorize censorship either for “policy” or for “pro priety” — with the unquestioned result that these Regulations do not touch legal limitations on the Army’s authority to regulate the free speech of its personnel. To me, this interpretation seems as unique as certain other aspects of the present case. I observe that the For-restal Memorandum of March 17, 1949, authorized review for “security, policy and propriety.” Although I were to adopt the Chief Judge’s notion that the words “policy and propriety” do not possess “simply the dictionary' meaning,” it is undeniable that they were not used in the Memorandum as synonyms for “security.” In the first place, and in terms of normal meaning content, they are not at all synonymous— and in the second, there would have been no point (even in a Government directive) in the use of three words to do the work of one.
On June 7, 1949, Secretary Johnson, of the Department of Defense, issued a further Memorandum which provided that the responsibility of public information officers — including those of the top echelon — “for the review of manuscripts or other material ... is limited to deletion of matter which is classified for security reasons.” Seemingly, this Memorandum had sounded the death knell for “policy and propriety” review. Yet on October 20, 1950, the Army promulgated AR-360-5, which resurrected those terms and that sort of review. Paragraph 13a of those Regulations provides that the preparation of books, -articles, and the like, is authorized “within the bounds of security and Department of the Army policy.” Thus, it might be concluded that beyond those bounds such writings are not authorized. And this conclusion is reinforced by the provision in paragraph 15b, directing public information officers to “review for accuracy, propriety, and conformance to policy.” That these terms are not synonymous with “security” is deducible from the distinction made in paragraph 15c of the Regulations which requires Army *549civilian personnel to submit material for review “when there is any doubt concerning its security or propriety.” (Emphasis supplied.)
Since the Johnson Memorandum was unrevoked at the time of its promulgation, any doubt that AR-360-5 was born in illegality is dispelled by the construction given the Regulations by the persons charged with their administration. I have always tended to accord considerable weight to the interpretation placed on Regulations by the enforcement agency. Billings v. Truesdell, 321 US 542, 88 L ed 917, 64 S Ct 737; United States v. Jackson, 280 US 183, 74 L ed 361, 50 S Ct 143; Stout v. Hancock, 146 F2d 741 (CA 4th Cir), cert den 325 US 850, 89 L ed 1971, 65 S Ct 1086. Particularly would this approach seem appropriate to a situation in which the persons charged with administering the directive are. the very ones who drafted it. In the present case these individuals were — in both instances — the personnel of the Army Public Information Office. The sworn testimony of General Parks, the Chief of Information, and of his Deputy, General Dorn — both prosecution witnesses and both unrefuted on the point— was to the effect that AR%60-5 was drafted under the auspices of the Public Information Office.
General Parks admitted specifically that AR-360-5 “is not consonant with” the Johnson Memorandum. He explained that the Army had set up a review agency of its own for the purpose of dealing with manuscripts and other statements “because there is propriety involved in many articles, and accuracy, and the Secretary of Defense’s Review Board does not go into those things. Somebody had to do it and we do it.” Later General Parks reiterated that the people of the Security Review Board of the Defense Department “have based their review solely on security, that is, classified material.” From this it is reasonably inferable that the raison d’etre of the Army’s Review Branch was the accomplishment of review unauthorized by the Johnson Memorandum — with the limits of which Memorandum, on the other hand, the Defense Department Security Review Board complied meticulously.
General Dorn too recognized explicitly the sharp inconsistency between AR-360-5 and the Johnson Memorandum. His explanation simply was that the Regulations were promulgated under the authority of the Truman Directive of December 5, 1950. There is considerable doubt — as Judge Latimer makes clear — that this last directive has any sort of applicability to the immediate area with which we are concerned. In any event, General Dorn’s attempted explanation distinctly involves the assumption of clairvoyance on the Army’s part — since AR-360-5 was published on October 5, 1950.3 Colonel Edgerton, Chief of the Defense Department Security Review Board, also admitted that when AR-360-5 appeared, he had “informally” raised the question of whether it must not be deemed ■ to conflict with the Johnson Memorandum.
Although — like the Chief Judge — I were able to reject the testimony of prosecution witnesses to the effect that AR-360-5 is so broad as to conflict with the Johnson Memorandum, I do not see that my conclusion need be altered. Under such a view, the greatest variation would simply involve the substitution of legal Regulations, with illegal censorship taking place thereunder, for Regulations themselves illegal. Personally, however, I feel no slightest inclination to charge the Army Public Information Office with a disregard of the intent of AR-360-5— *550drafted in that very Office — and with an arrogation of powers not conferred by those Regulations. Yet this is the logical consequence of Judge Quinn’s interpretation — for it is clear that by their own admission, functionaries of the Army Public Information Office censored Colonel Voorhees’ manuscript for “policy and propriety,” in at least some sense of those loose and unexacting words. If this action was not authorized by, and in fact exceeded, AR-360-5 — as he concludes — then a flagrant violation of these Regulations was committed by the Public Information Office. For my part, I consider that the Regulations themselves were illegal and that the Public Information Office acted in good faith in seeking to comply with an ultra vires directive emanating ultimately from the Secretary of the Army. Yet the censorship here is just as real— and just as illegal — regardless of whether it derives from an ultra vires Army directive or from the totally unauthorized action of Army personnel.
VI
The only findings of guilty deemed free from error by the board of review- — and a majority of this Court-— relate to the Additional Charge that accused had submitted two articles to the New York Journal-American in December 1952, in violation of AR-360-5. The wholly incidental character of that Additional Charge is demonstrated beyond peradventure by the evidence. In the first place, the articles were at no time published — for the reason that the accused was unwilling to proceed with publication in the absence of approval by the Public Information Office. Second, there would seem to be some question of whether the manuscripts concerned had been “submitted” within the meaning of the Regulation. Mr. Richards, the prosecution witness by whom the Government sought to show submission, asserted that he did not regard them as having been “submitted.”
The articles themselves constituted brief and general discussions of problems then current — articles which Colonel Voorhees had written at Richards’ instance. It appears that Richards and the accused had agreed that the. articles would not be regarded as “publishable” until Pentagon clearance had been obtained for them — an arrangement attested by the circumstance that they never in fact appeared in print. Under my interpretation of “submission,” as used in AR-360-5, I would tend to doubt that the evidence established a violation of the Regulations — and the Article 32 investigator, I observe, concluded that the manuscripts had not been “submitted.” The law officer appears to have entertained a contrary view, although he did not choose to advise court members of what was required to show “submission.” In any event, the existence of the agreement between Richards and the accused to the effect that publication would be withheld until clearance makes of the offense, if such it was, a very minor one indeed.
I must say that, after examining the two manuscripts, I can see nothing in either of them which conceivably could either endanger American security or transgress national policy. One of them was prefaced by a quotation from Secretary of State Dulles and sought to indicate agreement on the part of the accused with then Dulles view that Americans should practice “human fellowship.” I find it impossible to discern anything objectionable in it, even if the statement from that article quoted in the Chief Judge’s opinion be considered — as it was there — quite out of context. The second paper purported to expand a statement by President Eisenhower, with which it too was prefaced. Judge Quinn speaks of a “concise analysis of the Eighth Army,” which is said to appear in this article. This analysis — I must confess — is so “concise” that, after reading it, I have little idea of my brother’s meaning.
The incidental and minor nature of the Additional Charge — on which rested the only findings of guilt my brothers deem free from error — demonstrates the eminent soundness of Judge Latimer’s position that the sentence to dismissal should not be approved. Like him, I entertain little doubt that the court’s sentence to dismissal was influenced in large part by other findings held by a *551majority — both here and in the board of review- — to have been tainted with error. It is even conceivable to me that the findings themselves under this Additional Charge were substantially influenced by evidence relating to other Charges. Cf. Manual for Courts-Martial, paragraph 138g.
Examining both Additional Charges having to do with the Journal-American articles against the background of previous transactions, I feel convinced that they would never have been preferred save for the events which gave rise to the original ones. Justice — and this Court — would be more blind than is often assumed were we to ignore the circumstance that in filing them the Army was employing a “shotgun” technique. The premise of this technique — not hitherto unknown — is that, if enough charges are filed relating to the same transaction, or merely to the same accused, it is possible that: (1) the accumulation of damaging evidence will lead the court-martial to find the accused guilty “across the board”; (2) a heavy sentence will be imposed by the court; and (3) although some findings are disapproved on review, the sentence may yet be affirmed on the basis of those which are approved. In the instant ease the use of the Army “shotgun” is made painfully obvious by the factual weaknesses and minor nature of the Additional Charges. Presumably it was for this reason that the Article 32 investigator recommended against trial thereon and commented inter alia: “It is believed that the two additional charges, if prosecuted, would tend to weaken the case in which charges have previously been filed against Lt Col Voorhees.”
VII
As I understand the majority’s action, its members order a rehearing under the Additional Charge hav- jng to do with the submission of articles to the Journal-American and dismiss all others. In view of the intertwining of them all, I would go further and dismiss all. There are at least two precedents supporting our dismissal of charges — as an alternative to the direction of a rehearing — in a situation where the. trial was replete with error. United States v. James, 1 USCMA 379, 3 CMR 113; United States v. Perna, 1 USCMA 438, 4 CMR 30. I find no difficulty in extending this principle to a case like the present — one where the trial was contaminated not by procedural error, but by an attempt to sustain an unwarranted and illegal censorship.
Court action becomes illegal when it is used as an instrument for the achievement of condemned ends. Thus, the United States Supreme Court held that the enforcement of a racially restrictive covenant by a state court constituted a violation of “due process” within the purview of the Fourteenth Amendment. Shelley v. Kraemer, 334 US 1, 92 L ed 1161, 68 S Ct 836. Within the meaning of such a Supreme Court decision, the conduct of the court-martial here represents official action which tended to put a new sanction behind illegal censorship. Were we to follow the example of the board of review, and to leave the sentence to dismissal intact, we would, I believe, be acquiescing in, and thereby encouraging, illegal censorship by the Army. Any member of the service concerned might then readily draw the moral that it does not pay to protest against illegal censorship, and that the safe course is to accept with equanimity the loss of fundamental rights. Unfortunately, my brothers’ opinions, and their result, do not preclude the drawing of this same inference. On the contrary, they subject the accused to the expense, the hazards, and the inconvenience of a retrial on an Additional Charge which, to speak charitably, is minor in nature, and which in all likelihood owes its existence to Colonel Voorhees’ refusal to permit the illegal censorship of “Korean Tales” for “propriety and policy.” The Supreme Court’s zeal in blocking the use of court action for unlawful ends suggests to me that in like manner we should not permit retrial under the Additional Charge to become a vehicle for the Army’s purpose to punish Colonel Voorhees for failing to accede to its unlawful “policy and propriety” censorship.
Quite recently, in Barrows v. Jackson, 346 US 249, 97 L ed 1586, 73 S Ct 1031, *552there was dismissed an action for damages for breach of contract brought against a vendor who had sold realty in violation of a racially restrictive' covenant. It was there deemed unimportant that the respondent — who interposed the defense of unenforcibility — was not himself a member of the racial minority against which the convenant ran, the Court reasoning that:
. . To compel respondent to respond in damages would be for the State to punish her for her failure to perform her covenant to continue to discriminate against non-Caucasians in the use of her property. The result of that sanction by the State would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants. If the State may thus punish respondent for her failure to carry out her covenant, she is coerced to continue to use her property in a discriminatory manner, which in essence is the purpose of the covenant.”
In that case a respondent was allowed the benefit of a defense which was predicated on the protection of the rights of a minority — and yet the defendant was not a member of that group. Here Colonel Yoorhees is protesting the violation of his own rights. Consequently I scarcely feel that dismissal of the Additional Charge can be deemed to constitute unearned increment — an unprecedented windfall — as to him. However, even if he were the beneficiary of such a windfall, I would consider this far less important than the converse possibility. By permitting a rehearing we would — in my view — be encouraging an illegal enterprise on the part of the Army; would be punishing Colonel Yoorhees for refusing to accede thereto; and would be coercing other service personnel to relinquish their rights in the future. In fact, failure to dismiss all of the Charges here is distinctly incongruous in light of the solicitude with which this Court has protected numerous rights which, in my eyes, are of infinitely less importance than those of free speech and a free press.
VIII
In paragraph 15e, AR-360-5 directs that “Personnel on active duty will submit their writing and pub 1⅛ statements to the appropriate security review authority.” In my view this requirement was intended to embrace all writings and statements designed for public release. Judge Latimer, on the contrary, denies that “matters of a nonmilitary nature which have nothing to do with the armed services need be submitted for accuracy, propriety and conformance to policy.” I observe that paragraph 15c, which he quotes in his opinion, provides that retired personnel and civilian employees will submit their writings “when the material concerns military subjects.” Similarly civilian component personnel are enjoined to submit material “which concerns military subjects.” The area of “military subjects” conforms roughly to the area to which Judge Latimer says the requirement of submission is limited. Since in two instances AR-360-5 specifically restricts the requirement of submission to writings in that area, yet in another — dealt with in the same paragraph — omits mention of any such restriction, I must conclude that the latter area is not subject to any such limitation.
Here again I am aided by Army administrative interpretations — since the functionaries of the Public Information Office certainly took an all-embracing view of the matter. General Parks stated that — under the construction of his office — anything written by an Army officer on active duty must be reviewed for accuracy, propriety and conformance to policy. In answer to a specific —and colorful — question, he stated in testimony that one on active duty would be required to submit for review even a manuscript entitled “The Love Life, of a Texas Rattlesnake.” General Dorn took an identical view, even as to the mentioned example. Major Pizer originally offered the same broad interpretation. Subsequently, however, on recall, he proffered a narrower interpretation —and, when referred to his prior testimony, indicated that he did not recall what he had said earlier. Finally the Major conceded that under AR-360-5 anything written by an officer on active *553duty “could be required to be submitted.”
The inelusiveness of this requirement of submission — as I interpret that injunction-dovetails with my construction of AR-360-5 to authorize review for “policy and propriety,” and not alone for “security.” The area encompassed by statements which might conceivably touch on “policy and propriety” — as those terms are generously applied in the Army Public Information Office— is almost limitless. Thus, it would be not at all inconsistent to require the submission and examination of everything written for public release by a person-on active duty. Indeed, to effectuate such a policy and propriety censorship such a view would seem to be downright necessary. For example, a writing or statement may be obscene, and thus violate “propriety”; it may be critical of someone — apparently almost anyone would suffice — and thus violate “policy”; or it might contain technical inaccuracies, and thus reflect indirectly on the Army, thereby violating the apparent “policy” of the Public Information Office to reject publication of all items which do not serve to raise that service in public esteem.
On the other hand, the area of security, broad as it may be, is markedly more limited — and review for security might with much logic be thought to demand only that certain categories of public statements be submitted for clearance. For instance, it might justifiably be deemed unnecessary to require preliminary screening of a chaplain’s sermon or a medical treatise for this purpose.4 Or it might be regarded as appropriate to limit the screening of public papers or utterances to those emanating from persons connected with “highly classified projects or agencies in which highly classified information is processed.” Cf. AR-360-5, paragraph 15e. My point simply is that the requirement of submission, in all its vastness, may well have, been geared to the facilitation of censorship for policy and propriety, and may not have been considered by the draftsmen of AR-360-5 as required by security review. As a matter of plain intendment, this requirement of submission of all manuscripts must — it seems to me — be linked to review for policy and propriety. Therefore, as a matter of constructional inseparability, I would regard it as appropriate to say that the requirement of submission, as it currently stands, may not serve as a basis for prosecution.
Moreover, I deem the application of the clearance requirement to all manuscripts and public statements to fly squarely in the face of the policy of the Johnson Memorandum, and even perhaps of the later Truman Memorandum. The former attempts to eliminate one area of previous review — and thereby to facilitate the free and ready flow of information to the public. The other recites that it does not purpose “to curtail the flow of information to the American people,” and thus by negative implication recognizes the policy of fostering that flow. But what sort of free dissemination is possible if every proposed public statement of every person —regardless of connection in subject or content with military security, or even with military matters — must pass through the hands of an Army censor— perhaps to languish on his desk for months, as did Colonel Voorhees’ manuscript, while the censor ponders moodily on “policy and propriety”? The submission requirement in AR-360-5, as interpreted and applied by the Army, constitutes nothing less than a distinct impediment to the flow of information to the American people, and thus contravenes the policy set by the Secretary of Defense and- the President. Therefore, it must fall. And I do not propose to pick up the pieces through some feat of interpretative legerdemain.
The inconsistency of AR-360-5 with directives from superior authority is made more apparent under the Army’s —and my own — construction of the submission requirement than under Judge Latimer’s. But even under his, I am sure that sufficient inconsistency exists *554to warrant striking down that portion of the Regulations.5 And I do not see how he can meet the argument that- — as a matter of strict service intendment— it is entirely possible that the requirement of submission meshes too closely with the unlawful purpose to censor for “policy and propriety” to warrant any *555sort of attempt by us to disentangle some possibly legal requirement of submission from the illicit effort to delete material unobjectionable security-wise. Certainly he does not do so by means of his mechanical two-from-three-leaves-one approach. Indeed, if two of three bales of goods are jettisoned, none remains if the third is roped to the pair thrust overboard. Thus here, a denial of (1) policy and (2) propriety does not at all leave us with (3) security — if a nexus exists between the three. But does such a link appear? Since that is a matter for primary Army consideration, genuinely, I do not know. But does Judge Latimer? Then why does he not eschew judicial legislation and permit the Army — the source of the Regulations — to express its purpose? True, it might desire — as Judge Latimer believes — to require a submission of all manuscripts concerning military subjects for security clearance. But then again it might desire to limit the requirement in some manner or other— in light of its inability to censor on the basis of undefined policy and propriety. I cannot know this — and neither can my colleague. ^Thus, even under his interpretation, I do not believe that the Additional Charge on which a rehearing has been ordered should be considered a legal one.
IX
Several conclusions appropriate in the present setting should be stated specifically before this memorandum ends. (1) To my mind, Army review for policy and propriety is strictly forbidden by the Johnson Memorandum, and possibly is in conflict with the later Truman Memorandum. (2) Quite apart from these Memoranda, “prior restraints” based on unrestricted policy and propriety considerations are inconsistent with the law of the United States Supreme Court. No one is more aware than I of the need for a selective hand in the application of civilian precedents to the solution of problems in the military scene. Here, however, and on balance, I find no need for distinction. (3) On the contrary, an exercise of the same process of weighing and balancing causes me to conclude that “prior restraints” must not be considered odious in the area of security, and their employment in that sphere may not be said to be unlawful as such. (4) Conceding arguendo an absence of inconsistency with the spirit of the Johnson and Truman Memoranda, I would not be inclined to hold it beyond the power of the Army — if it wished to do so — to require the submission for security review of all public statements of military personnel. (5) On the other hand, I cannot deny the possibility that this, or any other service, might elect not to provide for review of every such statement in every situation and from every military person. (6) Because of the close interrelation of security, on the one side, and policy and propriety, on the other, in the wording of the Regulations under consideration — and for other reasons mentioned earlier in this opinion — I do not find in AR-360-5 a clear mandate directing judicial severance of the demand for submission of material for security clearance from the requirement that public statements be submitted to facilitate an illegal policy and propriety clearance. Genuinely, I do not feel that the Army will be unduly burdened by my notion that in drafting censorship regulations it must proceed with a certain amount of specificity. Pretermitting any question of security, I will be no party to a “gag rule” on military personnel — one by which their public utterances are subjected to the whims of a censor who is without statutory guidance and quite beyond review. Those utterances deemed harmful to military discipline have been the subject of legislative proscription by Congress. The maximum punishment for violations of such enactments is by and large within the President’s discretion — with the result that the deterrent may be adjusted readily to current demands. Security infractions too are the subject both of Federal punitive legislation, applicable to servicemen, and of valid Army regulations. See United States v. Grow, supra. Should these alternatives not suffice, it is clearly open to the Army to consider applicable precedents, and thereafter to redraft AR-360-5 to eliminate its vagueness and to confine its scope to justifiable goals.
In light of the foregoing — while con-*556eurring in my brother’s reversal of the findings and, as I understand it, their dismissal of four specifications — I am compelled to go further than they and to vote to dismiss the single remaining Charge and specification. As a practical matter, I doubt that we are very far apart.
If the Army does not censor the public writing of its personnel to determine policy and propriety, it would be hárd to view that service as being in any way bound by what the individual says. On the other hand, if it does censor everything stated publicly by its personnel, to determine conformity to Army “policy,” it might be argued that anything said in public by a serviceman constituted an expression of official views. I doubt that the Army would desire this consequence. No objection would exist in my mind to requiring *549that any statement made by service personnel be prefaced by a disclaimer that the statement does not represent an official view, unless the individual has properly submitted it for approval by the appropriate public information office.
Another equally extraordinary explanation offered at the trial by the Government was that the Secretary of the Army, as the agent of the Secretary of Defense, was impliedly authorized to issue any directive he thought necessary and proper, although it conflicted with those of his superior. For obvious reasons this rationalization is also untenable.
Similarly it might be thought unnecessary to require preliminary clearance of books like “The Dorn Cook Book” recently published by General Dorn, the Army’s Deputy Chief of Information, who testified as a prosecu*554tion witness. No stretch of the imagination could relate such a tome to “security.”
If Judge Latimer’s interpretation is correct that only public statements on military subjects must be submitted for clearance prior to release, then an additional error tainted the findings as to three of the specifications found on the Charge Sheet, which alleged merely that the accused violated paragraph 15, AR-360-5 “by knowingly submitting” a manuscript on a certain date to a named publisher. The defense, from the outset, objected to these specifications — on the ground that their allegations encompassed the submission of every projected article or public statement, and not merely those which might conceivably relate to military security and the like. As revealed in Appellate Exhibit 1, trial counsel took the opposed position that any manuscript must be submitted regardless of content. The law officer clarified this Government attitude by a specific question:
“LO: Then I take it the prosecution’s theory of the case is that any writing written by an accused was required to be submitted for Army clearance before publication?
“TC: As far as this AR-360-5 in and of itself is concerned.”
On the basis of this explanation of the Government’s position, the law officer overruled the defense objection that the three specifications improperly failed to allege that Colonel Voorhees’ manuscripts dealt with military subjects.
As the trial progressed, the law officer seems to have reconsidered the difficulties inherent in the Army’s broad assertion of power over all projected manuscripts and public statements. Thereupon he announced — as reflected in Appellate Exhibit 20 — -“I am seriously reconsidering whether I did not commit legal error in denying all of the motions.” Later during the same hearing, he commented “I am informing both of you gentlemen that I think I committed legal error in denying the motions.”
At the instructional stage the law officer attempted to cure whatever error derived from the inclusive nature of the specification — and supplied an extremely narrow construction of AR-360-5 with respect to the classes of manuscripts requiring submission for review. If, however, AR-360-5 does not require, submission of all manuscripts I am inclined to believe that the law officer’s action came too late to avoid prejudice to the accused from the overruling of the defense objection to the specifications as drawn. Certainly the wording of paragraph 15 of AR-360-5 affords no clear notion of any sort of limitation on the character of manuscripts included; and the specification went no further than the Regulations. Indeed, the entire case was tried on the theory — inherent in the pleadings — that all public writings and statements must be submitted for review. Of course, the presentation of evidence and argument by the defense was conditioned on the pleadings, and so on the Government’s theory of the case. There was simply no point in offering testimony or argument concerning the nature of the manuscripts by Colonel Voorhees, since the premise on which the trial proceeded was that the nature of the articles was immaterial to guilt or innocence. If that premise was incorrect, then I must conclude that the law officer prejudiced the accused in failing to sustain objections to the three specifications which dealt with the knowing submission of manuscripts to publishers. That error would — it seems to me — have special impact as to the specification charging the submission of articles in December 1952 to the Journal-American. Those articles were almost completely dissevered. from any possible “security” criterion, and could scarcely have been objectionable in the sphere of policy— for they attempted no more than to support the wisdom and feasibility of statements made by President Eisenhower and Secretary of State Dulles. These latter statements, I feel sure, have not been disavowed by either of these high officials. Yet until the moment the law officer instructed — of course at a late stage of the trial — the court-martial was necessarily proceeding on the assumption that Colonel Voorhees would have been guilty although the two articles had dealt solely with the amours of a Texas rattler. Unless the assumption is correct, I cannot see that reversible error was not present.