(concurring in the result):
I concur fully in the result reached by the Chief Judge. However, I much prefer to base our determination on other grounds.
II
In light of the unqualified initial sentence of the Code’s Article 17 (a), 50 USC § 577, I suspect that Congress intended that a duly appointed court-martial of one Armed Force should always possess jurisdiction over the personnel of another — whatever exactly “jurisdiction” may mean. This view seems to enjoy the support of the spirit and objects of the Uniform Code — which legislation I conceive to constitute as much a phase of unification as it is an example of law reform. In short, I doubt that the question before us is one which could successfully be raised in a Federal civilian court on habeas corpus. Further, I see no reason why we should permit it to be raised for the first time on review within the military judicial hierarchy, even though — as pointed out in United States v. Garcia, cited in the principal opinion — jurisdiction may not be the subject of waiver.
III
Although we assume that “the regulations prescribed by the President” — • see Article 17 (a) —are part of the definition of reciprocal jurisdiction, I find no worrisome problem. These Presidential regulations are found in paragraph 13 of the Manual — and recite that “In general, jurisdiction . . . should be exercised only when the accused cannot be delivered to the armed force of which he is a member without manifest injury to the service.” (Italics supplied.) *.The italicized words do not seem to me to contain any suggestion of command — but rather imply no more than a policy directive. Cf. Sullivan v. United States, 23 Law Week 4019. The following sentence — it is to be observed — begins, “Subject to this policy,” a phrase also indicative of general guidance rather than a purpose to supply a hard-and-fast rule. (Italics supplied.) Why may not the President in his regulations permissibly leave flexible the decision as to cases in which a serviceman may be tried by the courts of an Armed Force other than his own? Indeed, I can recognize no sort of intendment in Article 17 (a) that the President may not appropriately make the utilization of reciprocal trials a matter of policy rather than one of jurisdiction.
IV
I am also not at all sure that the presence or absence of “manifest injury to the service” may properly be considered by this Court. Clearly — at least on collateral attack in civilian courts — there has been a noticeable reluctance to hold that determinations under conceptions similar to the one with which we are concerned are reviewable. See Swaim v. United States, 165 US 553, 41 L ed 823, 17 S Ct 448. Assuming, therefore, that the criterion of “manifest injury” constitutes a limitation within the present context, I would hesitate to hold that General Stranathan had, as a matter of law, overreached his discretion in referring the accused’s case for trial— and certainly so if the alleged abuse had not been raised at the court-martial hearing.