(concurring in the result) :
I concur in the result but because of the importance of the issue before us and prior rulings in this area I feel that certain aspects of the case should be emphasized.
The question before the Court is whether an order to a subordinate to furnish a urine specimen to be used as evidence in a criminal prosecution, is a lawful command within the meaning of Article 90 of the Uniform Code of Military Justice, 10 USC § 890. The issue is not the admissibility of the evidence so obtained, but rather the le*456gality of the order. It is important for purposes of analysis to remember that the first clause of Article 31(a) of the Code, 10 USC § 831, that “No person subject to this chapter may compel any person to incriminate himself” and Article 90, violation of a lawful command of a superior officer, have no counterpart in civilian practice. Civilian courts have never ruled on the question of the legality of an order requiring a person to incriminate himself and making it a criminal offense not to obey that order. Therefore, I am not as positive as the dissent, as to what the “Judges of the Supreme Court of the United States, the judges of the other courts referred to in our previous decisions, and the framers of the American Law Institute’s Model Code of Evidence” would hold were they faced with the same problem. The courts have many times ruled on evidence problems in dealing with the Fifth, Fourth and Fourteenth Amendments to the Constitution but that problem is not involved here. The problem now before us is simply whether an order by a superior to submit a urine specimen for the sole purpose of obtaining incriminating evidence against the accused violates Article 31(a) and is, therefore, illegal.
Paragraph 2 of Article 90 of the Code is directed toward “Any person subject to this chapter who willfully disobeys a lawful command of his superior officer.” (Emphasis supplied.) Article 90 is essential to the successful operation of the military establishment. However, this Article does not make disobedience to all orders of a superior officer punishable by courts-martial. Clearly, Congress did not intend that the disobedience of unlawful orders should be punishable. “A person cannot be convicted under this article if the order was illegal.” Paragraph 1696, Manual for Courts-Martial, United States, 1951. (In this connection it is interesting to note that during the trial of the war criminals, recognition was taken of the fact that in wartime not all commands of superior officers relieved the defendants from their criminal accountability.) Turning then to the problem before us in this case, the accused argues that the order to give a specimen of his urine was illegal. Our inquiry, therefore, must be directed as to whether or not the Code contains a provision which would make the command to furnish a specimen of urine unlawful and hence not punishable. Article 31(a), supra, provides that “No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.” (Italics supplied.) Logically the use of the disjunctive “or” in connecting the words “incriminate himself” and “to answer any question” indicates a difference between the two phrases. This difference is that the first part refers to any type of “compelled” incrimination, whereas the second refers to testimonial evidence described in sections (b) and (d) of the Article. The first portion of 31 (a) has to do with compulsion upon the part of any person subject to the Code, whereby a person is compelled to incriminate himself. This is not a limitation to only testimonial utterances, it is all inclusive. The second part of Article 31 (a) carries a limitation to answering any question, i. e., testimonial utterances. If the first part of Article 31 (a) means anything, it means that a superior officer cannot compel a man subject to the Code to give a specimen of his urine to be used to convict him of an offense under the Code, or suffer the penalties of an offense under Article 90 of the Code, supra, which offense in time of war carries the death penalty. Certainly it could have been reasonably concluded by the accused that the order to give a specimen of his urine would incriminate him. To my mind the order to furnish a urine specimen under these circumstances falls within the prohibition of Article 31(a).
The question of whether an order is lawful or not, for the purposes of an Article 90 prosecution, is a problem different from that of the admissibility of evidence under the evidentiary portions of Article 31(d). The two should be separately considered. In holding an order unlawful, the question of admissibility of evidence which might be obtained as a result of such an order is still open and is to be determined by *457applicable rules of evidence in each particular instance. As far as incrimination here is concerned, it is obvious that in any case where the object of the order is to obtain evidence to be used in a prosecution such order is illegal.
It has been suggested that this opinion is inconsistent with United States v Williamson, 4 USCMA 320, 15 CMR 320, and United States v Barnaby, 5 USCMA 63, 17 CMR 63. However, as I read those cases, both involve the admission of urine specimens into evidence. In the first case no order was involved. The late Judge Brosman in obiter dictum declared that he was satisfied a suspected person could be ordered to furnish urine samples for chemical analysis. Judge Latimer, the organ of the Court in the Barnaby case, supra, asserted that the holding in Williamson, supra, was dispositive of that issue in Barnaby, quoting Judge Brosman’s dictum. I do not agree with the above dictum in the Williamson case, nor with Judge Latimer that it was dispositive of the issue in Barnaby. To my mind the holding of the Williamson case was concerned with the application of the doctrine of Rochin v California, 342 US 165, 72 S Ct 205, 96 L ed 183, as a due process question operating in the military through the Fifth Amendment. I express no further views here on that subject except to point out that it does not seem applicable to the case at hand. The Barnaby case involves introduction of evidence, and, to my way of thinking, should have been resolved by consideration of the applicable rules of evidence, e.g., Article 31(d), paragraph 152, Manual for Courts-Martial, supra, with perhaps consideration given to the Rochin doctrine operating through the due process provisions of the Fifth Amendment. In any event, I would not involve myself in the circuity of reasoning implicit in the determination that evidence compelled by an order is admissible; the order being legal if such evidence is admissible, viz., non-testimonial.
In the instant case no such reasoning is needed. Article 31 (a) announces that no person shall compel an individual to incriminate himself. An order by a superior officer is compulsion in a case such as this when the order is given with only one end in mind, i.e., to obtain incriminatory evidence against the accused. It violates the express prohibition of Article 31(a) and is unlawful. It follows, as night the day, therefore, that if — in an Article 90 prosecution — the order in question is unlawful the prosecution must fall.
The crime for which the evidence was to be obtained in this case is indeed a serious one and all legal means should be adopted to secure convictions to stamp it out. No doubt some guilty persons have escaped punishment as a result of Constitutional protections and by guarantees similar to Article 31 of the Code, but as a Nation we adhere to a philosophy of government by laws, not men. I fail to see how the heinousness of dope crimes and the resulting thought of “most forward-thinking persons” is germane to the case here where no evidence with respect to the accused’s use of dope was ever in fact obtained unless, of course, we desire in dope cases to commence with a presumption of guilt. I think perhaps that some of the language used by the Court of Appeals in United States v Gordon, 236 F2d 916 (CA 2d Cir) (1956), is apropos :
“3. The government urges that a decision sustaining the privilege in a case like this will seriously impair the utility of every future grand jury investigation as a means of obtaining evidence with which to indict and convict criminals. That argument cuts too far: It would yield the patently illegal repeal by judges of the constitutional provision guaranteeing the anti-self-incrimination privilege. That provision unquestionably does sometimes impede enforcement of the criminal laws. But that was one of the clear purposes of the constitutional privilege, i.e., to prevent á court from compelling a witness — who might or not be a criminal — to give testimony which might incriminate him. All privileges not to testify have the same impeding effect. This fact was emphasized by Bentham, the first doughty foe of the anti-self-incrimination privilege. *458He depicted it as an absurd interference with the expeditious punishment of criminals. But, on the same grounds, he argued for the abandonment of the client-lawyer privilege. Yet few today want that privilege abandoned, although it enjoys no explicit constitutional protection.
“What the government contends with respect to the Fifth Amendment privilege applies with equal force to the immunity, from unreasonable searches and seizures, guaranteed by the Fourth Amendment. It, too, often becomes a barrier to crime investigation, as when evidence slips away because the police may not promptly search without a warrant.
“American prosecutors must learn to adjust themselves to these obstacles. The purpose of the Bill of Bights was, as Madison declared, ‘ “to oblige the government to control itself.” ’ We are committed to the principle that any method of pursuing suspected criminals must give way when it clashes with these constitutional guarantees. The framers of the Constitutional Amendments thought those guarantees embodied an even more important policy than that of detecting and punishing crime. Considered solely in terms of procedure, those constitutional safeguards seem logically indefensible. Considered, however, as conferring substantive rights, they assume a different significance: They express the high value our democracy puts on the individual’s right of privacy. ‘Traditionally, Anglo-American law values the individual’s life and freedom so highly that the interest of the state in discovering and punishing wrong-doers is subordinated to the right of the accused to remain a passive spectator of the fact of his wrongdoing.’ ”
Centuries of experience have taught us that in order to be free, provisions such as the Fifth and Fourth Amendments to the Constitution and the guarantees of due process are essential. In this instance we are governed by the Congressional mandate of Article 31 of the Uniform Code. Its meaning is clear and unequivocal, and, in my opinion, should not be changed by judicial legislation.