(concurring in the result) :
I concur in the result.
My views on the law of intercepted communications are set forth in United States v. Noce, 5 USCMA 715, 19 CMR 11, this day decided, and they will not be repeated.
I concur in the principal opinion in this instance because neither the Code, Manual, nor Federal stat- utes apply. The Supreme Court in Olmstead v. United States, 277 US 438, 72 L ed 944, 48 S Ct 564, held that wire tapping did not abridge any Constitutional right or privilege, and all subsequent decisions have dealt with illegal telephonic interceptions as being violations of the Communications Act. In connection with that Act, I believe, when properly construed, it evinces a Congressional intent to limit applicability to messages either confined to areas where Federal law applies or to foreign messages which originate in or are received in those areas. Statutory provisions' are to be fairly construed according to the Congressional intent expressed in the enactment, and I find no words in the Communications Act which indicate that messages which do not leave foreign soil are intended to be covered.
In United States v. DeLeo, 5 USCMA 148, 17 CMR 148, I contended that when an accused is tried before a court-martial, the provisions of the Code and the Manual govern regardless of the locale of the criminal violation, and I do not retreat from that position. But, when I interpret their provisions which have to do with this violation, I find the evidence under attack to be admissible. It is to be remembered that peculiar to this evidentiary field, the admissibility of the testimony is determined by the fate it would meet in a Federal district court. If, as all members of the Court agree, the Federal *775Communications Act has no application in Korea, then there is no Congressional or judicial proscription against the use of this testimony. Assuming, argu-endo, that this accused could be tried by a Federal district court upon his return to the United States, I believe the questioned testimony would be admissible in evidence. For that reason, I join with my associates in affirming the findings and sentence.