(dissenting):
I dissent.
For many years, this Court has decided issues on the periphery of the question whether an officer exercising general court-martial jurisdiction has the authority to compel an individual to testify to self-incriminatory matters by granting him immunity from prosecution for the offenses he — contrary to the terms of the Fifth Amendment, United States Constitution, and Uniform Code of Military Justice, Article 31, 10 USC § 831 — would thus be required to reveal. See, for example, United States v Werthman, 5 USCMA 440, 18 CMR 64; United States v White, 10 USCMA 63, 27 CMR 137; United States v Moffett, 10 USCMA 169, 27 CMR 243; United States v Borsella, 11 USCMA 80, 28 CMR 304; and United States v Thompson, 11 USCMA 252, 29 CMR 68. In none of these cases, however, was the accused tried for refusal to testify to self-incriminatory matter after purportedly being granted immunity by a competent authority, and we were not called upon to decide whether the power absolutely to preclude one’s trial for criminal offenses in return for cooperation with the prosecution exists in the armed forces. That is the question now directly before us, and I am of the view that it must be answered in the negative. I wholly disagree with the view of the principal opinion that such authority may be derived from the power to pardon or implied from the various provisions of the Code which it cites. I believe, lacking specific authority from the Congress, there can be no effective method to require an individual to forego his undoubted right to rely upon his Constitutional and codal protections.
The accused here was found guilty, in violation of Code, supra, Article 134, 10 USC § 934, of a specification alleging, in part, that he:
“. . . [H]aving received a grant of immunity from Major General B. F. Taylor, an officer exercising General Court-Martial jurisdiction, and being in the presence of a General Court-Martial of the United States . . . did . . . wrongfully refuse to answer . . . [certain enumerated questions when directed by the law officer to do so] by replying to each question as follows: ‘On the advice of my counsel I firmly stand on the Fifth Amendment to the Constitution of the United States of America and Article 31,’ or words to that effect.”
As the Chief Judge notes, accused, having been duly arraigned upon this count, contested its validity before the law officer on the ground that no officer exercising general court-martial jurisdiction had the authority to grant absolute immunity from prosecution to a military accused and that, in any event, such grant would not forbid the accused’s trial — based upon his revelations upon the stand in response to such grant — in a United States district court. In this respect, it is worthy of comment that the disclosures which the grant would have required accused to make would have subjected him ordinarily to trial in either Federal jurisdiction for violations of the Espionage Act. See, generally, 18 USC § 793, *100and United States v French, 10 USCMA 171, 27 CMR 245.
The parties having agreed upon the facts, and it appearing to the law officer the officer exercising general court-martial jurisdiction had purported to grant immunity from prosecution to the accused “for any offense concerning which you may testify in the case of the United States v Private First Class John D. Roumanis for which you have not been tried as of the date trial commences in the above entitled case,” the defense motion to dismiss was overruled. Thereafter, pursuant to a pretrial agreement with the convening authority, whereby no sentence in excess of a suspended punitive discharge was to be approved, the accused pleaded guilty and persisted in that plea throughout the trial.
The problem of granting immunity to suspects and securing their testimony against other defendants has perplexed judicial authorities for years. Normally, perhaps, cooperation of such persons and their appearance against criminal companions is secured by the device of entering writs of nolle prosequi as to the indictments of the proposed witnesses, interceding with the courts on their behalf in order to obtain more lenient punishment in view of their assistance to the Government or permitting them to enter pleas of guilty to lesser degrees of crime. But all such devices succeed only if the potential witness is willing to accept such a deal and testify voluntarily. In order to force the discard of his constitutional right not to incriminate himself and compel him to testify, he must be given an absolute grant of immunity which will serve to preclude his future prosecution for the criminal matters which he is required judicially to confess. Annotation, 100 L ed 533, at page 538. Such was noted in Counselman v Hitchcock, 142 US 547, 35 L ed 1110, 12 S Ct 195 (1892), at page 585:
“We are clearly of the opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminat-ing questions put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. ... In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.”
See also Brown v Walker, 161 US 591, 40 L ed 819, 16 S Ct 644 (1896), and Ullmann v United States, 350 US 422, 100 L ed 511, 76 S Ct 497 (1956).
Thus, mere inability to use the evidence against an accused in a subsequent criminal proceeding or a promised nolle prosequi of charges against him is insufficient to require him to forego his constitutional privilege. Counselman v Hitchcock, supra; United States v Bryan, 339 US 323, 94 L ed 884, 70 S Ct 724 (1950) ; State v Quarles, 13 Ark 307; Cullen v Commonwealth, 24 Grat (Va) 624 (1873); Temple v Commonwealth, 75 Va 892 (1881). In order to support the charge alleged here, therefore, it is necessary to find that an officer exercising general court-martial jurisdiction is authorized to grant to a military accused “absolute immunity against future prosecution for the offense to which the question relates.” Counselman v Hitchcock, supra, at page 585; Ullmann v United States, supra. The United States, however, relies only upon the fact that the Manual for Courts-Martial, United States, 1951, provides, in several instances, for application of the doctrine, and argues that the basis therefor may be found in Code, supra, Article 30, 10 USC § 830, which provides pertinently:
“Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should he made thereof in the interest of justice and discipline, . . .” [Emphasis supplied.]
It is clear that the contention regarding the Manual, supra, is untenable. First, the President is delegated, with regard to that volume, no further authority than to prescribe rules of procedure and modes of proof, neither of which categories is involved here. Code, supra, Article 36, 10 USC § 836; United States v Smith, 13 USCMA 105, *10132 CMR 105. As Judge Kilday declared for the Court, in the last-mentioned case, at pages 117-118:
“. . . [T]he Constitution vests in Congress the power to make rules for the government and regulation of the armed forces, . . . [and]
“. . . Congress may delegate to the President, . . . the power to make regulations to fill up details and implement statutory provisions, or to determine the details of the legislative scheme.” [Emphasis supplied.]
That is the scope of the Presidential authority with respect to the Manual, supra, and we there specifically rejected the concept that there existed in the Executive, separate and apart from the Uniform Code, supra, power to prescribe matters of substantive law such as that presently before us. United States v Smith, supra. Moreover, there is clear authority rejecting the concept that authority exists independently of the Congress to grant binding immunity to a proposed Government witness so that his constitutional privilege will avail him nothing.
In United States v Ford, 99 US 594, 25 L ed 399 (1879), defendants pleaded in bar of their conviction an arrangement with the United States District Attorney whereby, in return for their appearance on behalf of the Government, they were to be discharged from criminal and civil liability. The Supreme Court held that such promises could not, in absence of positive statutory authority, bind the United States not to prosecute the defendants. At most, they were entitled to a continuance of the trial for the purpose of obtaining a pardon from the President in return for their cooperation. Thus, Mr. Justice Clifford declared, at page 595:
“Where the case is not within any statute, the general rule is that if an accomplice, when examined as a witness by the public prosecutor, discloses fully and fairly the guilt of himself and his associates, he will not be prosecuted for the offense disclosed; but it is equally clear that he cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial, for it is merely an equitable title to the mercy of the Executive, subject to the conditions before stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the Executive for that purpose.” [Emphasis supplied.]
In Burdick v United States, 236 US 79, 59 L ed 476, 35 S Ct 267 (1915), it was sought to compel the petitioner’s testimony by having the President grant him a pardon as. to any offense concerning which he might incriminate himself in his testimony before a Federal grand jury. The petitioner, refusing to testify, argued that tender of such a pardon could not operate to deprive him of his right not to incriminate himself under the Constitution, if such were not accepted by him. Holding that a pardon must be accepted to be effective and finding that the petitioner had rejected the tender, the Court pointed out that it was not such an act as would remove the right not to incriminate onself. It declared, at page 94:
“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.”
And in United States v Shotwell Manufacturing Company, 225 F2d 394 (CA7th Cir) (1955), reversed on other grounds, 355 US 233, 2 L ed 2d 234, 78 S Ct 245 (1957), the Circuit Court of Appeals rejected the contention that “defendants had acquired immunity from criminal prosecution by making a ‘voluntary disclosure’, in reliance upon an announced policy of the Treasury Department not to prosecute in *102[tax] cases where such a disclosure had been made.” Circuit Judge Schnackenberg declared at page 397:
“There was no statutory basis for the alleged promises of immunity announced by the various Treasury Department officials. Thus the making of a voluntary disclosure by the defendants was no legal bar to a criminal prosecution. Only an act of Congress could create such immunity. In the absence of statute, a defendant cannot enforce such a promise and 'cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial. In re Whiskey Cases, 99 US 594, 25 L Ed 399, 400.” [Emphasis supplied.]
From these holdings of the Supreme Court and other Federal courts, it is patent that the Executive Branch of the Government does not possess any authority, either under the pardoning power or otherwise, to grant immunity from prosecution for a violation of a criminal statute. Only an act of Congress can create such immunity. United States v Shotwell Manufacturing Company, supra. Similarly, the judiciary does not possess such power to treat an individual’s crimes so that he escapes their punitive consequences. Sorrells v United States, 287 US 435, 77 L ed 413, 53 S Ct 210 (1932). There, Mr. Chief Justice Hughes declared, at page 449:
“We are unable to approve the view thát the court, although treating the statute as applicable . . . and the defendant as guilty, has authority to grant immunity, or to adopt a procedure to that end.”
See also Ex parte United States, 242 US 27, 61 L ed 129, 37 S Ct 72 (1916).
Nor has the military traditionally claimed the authority to grant the immunity necessary to require an individual to forego his right not to incriminate himself. Winthrop’s monumental work treats accused’s cooperation with the Government only as one “of the principal grounds upon which the discretion to ‘pardon or mitigate’ has been, in practice, exercised.” Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 474. He further notes that where “the witness has testified in good faith on the trial” either a nolle prosequi is entered as to the charges against him or “it is in general announced in the Order in which the proceedings in the case are passed upon that he is released from arrest, and further proceedings against him are discontinued.” Id., at page 336. It has also been noted that the early military practice was to have “the court ... in its discretion, upon the application of the prosecutor, order . . . [accomplice-witnesses] to be acquitted, for the purpose of giving evidence against the rest” and then adjourn to have such acquittal confirmed by the convening authority. Dehart, Observations on Military Law, and the Constitution and Practice of Courts-Martial, page 395 (1846); Grimm, Grants or Promises of Immunity Under Military Law, page 61 (Thesis, The Judge Advocate General’s School, United States Army, Charlottes-ville, Virginia, April 1957). Another authority pointed out that such witnesses were permitted to appear for the Government under an implied promise of pardon and, if they acted in good faith, the United States was honorably bound to discharge its obligation to them. Benét, A Treatise on Military Law and the Practice of Courts-Martial, 6th ed, page 300 (1868). See also Simmons, Remarks on the Constitution and Practice of Courts-Martial, 5th ed, page 360 (1863).
Thus, the early military practice was precisely that approved for use in the Federal courts in United States v Ford, supra, i.e., that the cooperation of the witness entitled him to no more than an “equitable claim to a pardon . . . limited to the particular offence, for the prosecution of which his testimony is admitted.” Benét, supra, at page 300. Indeed, the applicable principle was recognized in A Manual for Courts-Martial, U. S. Army, 1917:
“. . . As in the following cases the witness would not be liable to the law’s punishment, his privilege as to self-incrimination ceases:
“Conviction and the suffering of the punishment; acquittal, or other *103former jeopardy; abolition of the general crime, subsequent to its commission (provided the rule of criminal law thereby exonerates prior offenders) ; lapse of time barring prosecution of the particular offense; executive pardon [accepted, see Bur-dick v United States, supra] for the particular offense; statutory amnesty, before or after the act, for the particular criminal act or for the offender. (Wigmore, p 3163.)” [Emphasis supplied.] [Manual, 1917, supra, paragraph 233, page 116.]
Elsewhere, the same volume refers to the fact that an accomplice is not rendered immune from trial by reason of turning state’s evidence, “unless immunity has been promised him by the authority competent to order his trial” and points out that, if he “makes a full and frank statement of the circumstances of the offense, it is customary to pardon his offense, or impose upon him a milder punishment than upon his accomplices.” Manual, 1917, supra, paragraph 216.
Similarly, the Manual for Courts-Martial, U. S. Army, 1921, lists one of the grounds for nolle prosequi of charges as being “That it is proposed to use one of the accused as a witness.” Manual, 1921, supra, paragraph 158. But, again, it refers only to removal of the privilege against self-incrimination by “statutory amnesty, before or after the act, for the particular criminal act or for the offender.” (Emphasis supplied.) Manual, 1921, supra, paragraph 233, at page 195. It repeats the injunction that appearing for the prosecution does not render an accomplice immune from trial, except insofar as he has been promised immunity by competent authority. Manual, 1921, supra, paragraph 216. And the Manual for Courts-Martial, U. S. Army, 1928, similarly points out that if a witness is “not on trial himself he may assert his privilege not to incriminate himself,” and the fact that he does so testify does not “make him afterwards immune from trial except to the extent that immunity may have been promised him by an authority competent to order his trial by general court-martial.” Manual, 1928, supra, paragraph 120, at page 125. Indeed, the Manual for Courts-Martial, U. S. Army, 1949, also speaks in terms of promised immunity and makes no reference to its impingement upon a witness’ right to claim his constitutional protection. Manual, supra, 1949, paragraphs 134, 136, pages 175-176, 180-181. Thus, it was not until the Uniform Code of Military Justice was passed and the 1951 Manual for Courts-Martial promulgated, that references are found in military law to grants of immunity by a general court-martial convening authority as abridging the constitutional right of a witness not to incriminate himself and requiring him to testify, “by military orders carrying the awesome sanctions of the 90th Article, supra, or otherwise to furnish a necessary evidential fact.” United States v Rosato, 3 USCMA 143, 147, 11 CMR 143, 147. Here, for the first time, the Executive claimed the right to force a witness to testify by promising not to try him. From the foregoing, therefore, it may safely be gathered that military law has not heretofore considered the cooperation of an accused or accomplice witness in return for a promise of immunity to be required or, indeed, to entitle him to more than an engagement on the part of the convening authority not to prosecute him or, in the event of such prosecution, to an equitable expectation of pardon by the Executive. See also Naval Courts and Boards, 1937, section 236. Such is not the sort of immunity which a defendant may properly plead in bar of trial. “In the absence of statute, a defendant cannot enforce such a promise and ‘cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial, . . ” United States v Shotwell Manufacturing Company, supra, at page 397. As it does not shield the accused from prosecution, it cannot make him subject to punishment for reliance upon his privilege and cannot make legal any military order to compel him to answer. United States v Ford, supra; Ullmann v United States, supra; Counselman v Hitchcock, supra; Brown v United States, 359 US 41, 3 L ed 2d 609, 79 *104S Ct 539 (1959); Annotations, 100 L ed 533, 5 L ed 2d 950.
I do not understand my brothers, except for their untenable interpretation of past Manual provisions, necessarily to disagree with the foregoing concepts, for the principal opinion puts to one side the question of Presidential authority and “perceive [s] a Congressional grant of power to provide immunity from prosecution in the provisions of the Uniform Code.” Aside from resting upon the erroneous premise that earlier Manuals followed this practice, and Congress, knowing this, must have approved of it, it relies, in this respect, upon the following Articles:
“Art. 30. Charges and Specifications
“(b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable.” [10 USC § 830.]
“Art. 44. Former Jeopardy
“(a) No person may, without his consent, be tried a second time for the same offense.
“(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.” [10 USC § 844.]
“Art. 64. Approval by the convening authority
“In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved.” [10 USC § 864.]
Combined, my brothers say, these provisions of the Uniform Code “confer upon courts-martial authority the power to create an absolute legal bar to prosecution of a person subject to the Code and to his command for any offense in violation of the Code” and, in consequence, “comprehend the right to grant immunity from prosecution to a witness to free him from the danger that he may be punished for an offense to which he might be linked by his testimony.” His authority, they say, “equates to the power to pardon.”
At the outset, of course, a basic flaw in their rationale is apparent, for granting the equation between the powers of a convening authority and the constitutional prerogative of the President to pardon an offender against the laws of the United States, such pardon has been twice held by the Supreme Court to be ineffective to require an accused to testify despite his right not to incriminate himself. Burdick v United States, supra; Curtin v United States, 236 US 96, 59 L ed 482, 35 S Ct 271 (1915). Thus, if the convening authority’s powers regarding courts-martial be construed as the right to pardon, still the defendant has the right to choose his course of action, i.e., either to rely on the purported grant of immunity and testify, or to rely upon his constitutional privilege and remain silent in face of military orders to the contrary. Cf. United States v Rosato, supra. And that is precisely the choice which Kirsch exercised here. Be that as it may, the statutes in question may not be construed to grant a convening authority the right to suspend the execution of the criminal laws, either military or civilian, and Congress did not intend any such result to occur.
First, as noted above, it is clear from the holdings of the Supreme Court that grants of immunity coextensive with removal of the protection of the constitutional privilege must be found in positive enactments of the Congress. United States v Ford, supra; Burdick v United States, supra; United States v Shotwell Manufacturing Company, supra. Indeed, as stated in United States v Levy, 153 F2d 995 (CA 3d Cir) (1946), only *105the equitable right to pardon “exists unless a statute expressly authorizes a grant of immunity in the particular situation.” (Emphasis supplied.) Id., at page 997. See also Mattes v United States, 79 F2d 127 (CA 3d Cir) (1935). That there is no express provision in the Code or elsewhere granting such authority to military commanders is unarguable.
Secondly, the construction of the aforementioned Articles to grant such authority through implication is strained and unreal. Aside from the general “unwillingness of Congress to permit . . . the acquisition of immunity,” Sherwin v United States, 297 Fed 704, 709 (CA 5th Cir) (1924), no such intention on its part is manifest either in the wording or fair implication of the portions of the Act relied upon. Thus, Code, supra, Article 30, while providing for the taking of immediate steps to dispose of charges against an accused “in the interest of justice and discipline,” does no more than to direct the commander concerned rapidly to determine, “Upon the preferring of charges” (emphasis supplied), in court-martial cases, whether they are properly supported by the accusa-torial investigation and to provide his recommendation as to their disposition or reference to trial. He is, in the same sentence, enjoined to have the accused “informed of the charges against him as soon as practicable” and, by no stretch of the imagination, can I conceive these general directions to review a file and to inform the accused of the nature of the formal accusation against him as granting any authority to immunize him from further prosecution. In fact, we have held if such scrutiny results in a determination either not to prefer charges or to dismiss them, no bar to their later revival and prosecution may be interposed. United States v Werthman; United States v Thompson, both supra. Compare United States v Ford, supra. The Article, in fact, as the title of the sub-chapter in which it is found indicates, refers to the ordinary pretrial procedure regarding the preliminary disposition of charges and specifications in order to screen out unwarranted accusations and to handle counts at the lowest possible level consistent with the just enforcement of military discipline. Manual, 1951, supra, paragraphs 32, 33. It has never been interpreted otherwise. See United States v Werthman and United States v Thompson, both supra. In sum, all that the Article was intended to provide was the requirement of “disposition of the charges as soon as possible and . . . notification of the accused.” House Report No. 491, 81st Congress, 1st Session, page 19.
I find the argument concerning the possible effect of Code, supra, Article 44, equally fallacious. This portion of the Code is limited to enactment of the constitutional provision regarding double jeopardy, in light of its interpretation by the Supreme Court. Wade v Hunter, 336 US 684, 93 L ed 974, 69 S Ct 834 (1949). It prescribes the conditions under which jeopardy is held to attach and, undoubtedly, where the accused is so protected against future punishment for his crime, he could be compelled to testify without regard to his Fifth Amendment rights. Annotation, 100 L ed 533, supra. But there is not the slightest indication that Congress intended such protection to be afforded him by the convening authority without resort to the conditions prescribed in the statute. To the contrary, it provides that an accused is not protected against retrial unless he “has been found guilty” and “the finding of guilty has become final after review of the case has been fully completed” or his trial has been terminated “after the introduction of evidence but before a finding ... by the convening authority or on motion of the prosecution.” Such provisions are no more than a reiteration of his commonly understood right not to be twice punished for the same crime and, if as here, he has never been arraigned or tried, it hardly may serve as a foundation for the implication that —quite without resort to trial- — -an officer exercising general court-martial 'jurisdiction may, by simple fiat, shield him from further danger of prosecution. In short, Congress intended nothing further here than a codification of the rule of double jeopardy for the military, *106and there is nothing to support the proposition that it thereby intended to grant carte blanche authority to commanders to immunize one from criminal prosecution, particularly where it has denied such power to the ordinary Federal authorities except in a few limited areas and then only when the consent of the Attorney General, a cabinet officer, is obtained. House Report, supra, page 23; Reina v United States, 364 US 507, 5 L ed 2d 249, 81 S Ct 260 (1960).
The final, crumbling mortar with which the principal opinion attempts to cement its conclusion is Code, supra, Article 64, entitled. “Approval by the convening authority,” and dealing exclusively with that officer’s action “on the findings and sentence of a court-martial.” (Emphasis supplied.) Undoubtedly, his authority to disapprove and set aside a conviction below and the sentence based thereon is broad and discretionary. United States v Massey, 5 USCMA 514, 18 CMR 138. The legislative background of the Article makes it clear he is empowered so to act for any reason or for no reason. House Report, supra, page 31. The statute, however, was designed substantially to reenact the former practice of convening authorities in all the armed forces. House Report, supra, page 30. There is not a word to be found in its terms or legislative background to indicate that the authority here conferred was intended to apply in any manner to granting an individual absolute immunity. Once more, the express wording of the Article negates such a construction, for its delineation of the powers of a convening authority is, in so many words, limited in exercise to “acting on the findings and sentence of a court-martial.” Under such circumstances, the action of the convening authority might well serve to remove the accused’s shield of protection under the Constitution, for, by setting aside the findings and sentence, he has placed him in jeopardy and ended any possibility of the accused’s punishment. Code, supra, Article 44; cf. Wade v Hunter, supra. Thus, there is complete protection afforded him, and he cannot rely upon his rights under the Fifth Amendment. Reina v United States, supra. But, where, as here, there has been no court-martial with reference to the charges concerning which it was desired that Kirsch testify, there was nothing on which the convening authority could act in order to protect him against self-incrimination. In consequence, there is simply no rational connection between what might have, under such circumstances, been done to make the accused a usable witness and what my brothers state such statute implies he has the authority to do, i.e., without convening a court or referring a charge to trial, grant an immunity from prosecution which the very statute declares can have no effect unless there has been at least a partial trial and then only on the basis of the protection against double jeopardy. Code, supra, Article 44.
I confess that I am unable to follow such reasoning or to conclude that, since Congress intended to give an officer exercising general court-martial jurisdiction broad authority to process, dispose of, and disapprove court-martial proceedings, it intended also — without intimating such course in any way either by way of hearings, committee reports, or floor debate — to grant that functionary the power to forego such procedures in any case and to accomplish the same result by immunizing any accused from prosecution through means of a simple letter to him. Such rationale is completely contrary to every case decided on the subject by the Federal judiciary, all of which have insisted upon finding a positive Congressional enactment to protect the witness —indeed, a statute “expressly . . . [authorizing] a grant of immunity” (emphasis supplied), United States v Levy, supra — and who have pointed out the seeming reluctance of the Congress to grant such authority on any broad scale. Sherwin v United States, supra. Indeed, the latter observation is borne out, as I have noted, by the lack of any general statute on the subject, and the careful provision which Congress has made in such limited acts as it has passed that the consent of the Attorney General be secured to the grant. See, for example, 18 USC § 3486. Undoubt*107edly, a convening authority may, as he has for years, promise not to prosecute an individual and thereby secure his cooperation as a witness against another person, such promise in honor and good faith being considered binding upon him if the individual carries out his part of the bargain. Cf. United States v Ford, supra; Shotwell Mfg. Co. v United States, 371 US 341, 9 L ed 2d 357, 83 S Ct 448 (1963). But such a promise, which is the only device to which any of the manuals, supra, addressed themselves prior to the Code, is not that sort of immunity which does away with one’s constitutional right to remain silent concerning self-incriminatory matters. United States v Ford, supra; Brown v Walker, supra. This latter type of immunity must be granted by statute enacted by the only body which has constitutional power over both the criminal law and military law. United States v Smith, supra; Ex parte United States, supra. What we do here today is to sustain an executive nullification of Congress’ prerogative, and I cannot, in good conscience, join in such a decision.
As to the views espoused by my brother Kilday in his concurring opinion, I can only express my wholehearted disagreement with the proposition that the Supreme Court has in any way impugned the validity of its earlier and frequently expressed view that there must be a statutory basis for the granting of immunity effective to wipe out an accused’s right to rely upon his constitutional protection against self-incrimination under the Fifth Amendment. Neither Malloy v Hogan, 378 US 1, 12 L ed 2d 653, 84 S Ct 1489, nor Murphy v Waterfront Commission of New York Harbor, 378 US 52, 12 L ed 2d 678, 84 S Ct 1594 (1964), support that assertion. To the contrary, Malloy v Hogan, supra, deals only with whether the Federal constitutional protection against self-incrimination applies in a state proceeding to compel a witness to testify concerning certain violations of state law. Finding that the questions put to the witness tended in fact to incriminate him under state law, the Court held “the Fourteenth Amendment guaranteed the petitioner the protection of the Fifth Amendment’s privilege against self-incrimination, and that under the applicable federal standard, the Connecticut Supreme Court of Errors erred in holding that the privilege was not properly invoked.” Id., at page 3. No offer of immunity under either state or Federal law was ever tendered the witness and the question is not discussed in the opinion.
The principle laid down in Malloy v Hogan, supra, however, created the problem confronting the Court in Murphy v Waterfront Commission of New York Harbor, supra. There, the petitioner had been committed for refusal to answer questions put to him, under a grant of immunity pursuant to a state statute, on the basis that his replies would incriminate him under Federal law and possibly subject him to Federal prosecution. Having held in Malloy v Hogan, supra, that the Fifth Amendment’s privilege against self-incrimination applied to state action, the Supreme Court was faced with the dilemma created by that conclusion on the one hand and the obvious fact that no state possesses the authority to grant immunity which was binding on the Federal courts, the authority of the United States under the Constitution being supreme in its sphere. It found a solution to the difficulty by declaring, at page 79:
“. . . We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony [obtained by a grant of immunity under state statute] and its fruits. This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.”
We are here, of course, not confronted with the delicate balancing of relations between separate sovereigns *108whose proper execution of their own laws have come into conflict. We are concerned with the basic issue of authority to grant immunity effective enough to eliminate the right of an accused to rely upon his constitutional protection and to subject him to punishment if he refuses to incriminate himself. The Supreme Court in Murphy, supra, in no way detracted from its previous holdings that such authority is confided solely to the legislature. Only Mr. Justice White, with whom Mr. Justice Stewart joined, concurring separately, suggested that total immunity was not required in order to invalidate a defendant’s reliance upon his privilege, if it were clearly established that neither his admissions nor their fruits could be subsequently used against him in either state or Federal prosecutions. Cf. Counselman v Hitchcock, supra. But even that separate opinion does not discuss the problem presented here, nor does it assign responsibility for immunity grants to any branch of the government other than Congress. In short, while the cases which my brother cites might be of, governing significance in determining whether a valid military grant of immunity is sufficient to prohibit Kirsch’s prosecution in the ordinary Federal courts, they are quite without value in determining whether there is any authority for the armed services to make such a binding grant. The latter is the fence which I cannot hurdle and, conceding all that Judge Kilday says, I do not find that he has succeeded in climbing the stile either.
Nor may any comfort be drawn from the declaration by the President in the Manual, supra, that statements obtained by making promises of immunity are inadmissible against an accused. Aside from the rather obvious fact that we here deal with a defendant’s right not to make a statement despite such promise, as opposed to its subsequent admissibility against him, such would be the law quite without regard to the Manual or, indeed, in face of a contrary provision. As to this, I invite attention to the express provisions of the Code, supra, Article 31, prohibiting the use of “coercion, unlawful influence, or unlawful inducement” in order to obtain a statement from a suspect and forbidding the receipt of such statement in evidence. Indeed, whether such promise be valid or not, it serves to render a statement coerced and inadmissible as a matter of constitutional law. Thus, the Supreme Court declared, in Shotwell Mfg. Co. v United States, supra, at page 347:
“It is of course a constitutional principle of long standing that the prosecution ‘must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.’ Rogers v Richmond, 365 US 534, 541, 5 L ed 2d 760, 766, 81 S Ct 735. We have no hesitation in saying that this principle also reaches evidence of guilt induced from a person under a governmental promise of immunity, and where that is the case such evidence must be excluded under the Self-Incrimination Clause of the Fifth Amendment. See Bram v United States, 168 US 532, 542, 543, 42 L ed 568, 573, 574, 18 S Ct 183; Hardy v United States, 186 US 224, 229, 46 L ed 1137, 1140, 22 S Ct 889; Ziang Sung Wan v United States, 266 US 1, 14, 69 L ed 131, 148, 45 S Ct 1; Smith v United States, 348 US 147, 150, 99 L ed 192, 197, 75 S Ct 194. The controlling test is that approved in Bram: * “a confession, in order to be admissible, must be free and voluntary: that is, . . . not . . . obtained by any direct or implied promises, however slight. . . Bram v United States, supra, (168 US at 542, 543). Evidence so procured can no more be regarded as the product of a free act of the accused than that obtained by official physical or psychological coercion.”
Indeed, we recently unanimously so concluded with regard to an accused’s purported statement. United States v Dalrymple, 14 USCMA 307, 34 CMR 87. There, we declared, at page 310:
“Undoubtedly, if an accused is promised immunity from prosecution in return for a confession to crime, *109Such would, as a general proposition, operate to deprive him of the mental freedom to choose either to speak or to remain silent and thus render his statement involuntary.”
See also United States v Johnson, 5 USCMA 795, 19 CMR 91, and United States v Howell, 5 USCMA 664, 18 CMR 288.
In light of these considerations, I hardly see how it may be said that a Presidential recordation of a well-established example of the inadmissibility of a coerced confession offers support for the right to demand such a statement and to prosecute him criminally for remaining silent. The reeds upon which my brother relies are, I fear, too slender indeed to support the edifice which he erects upon them.
In sum, then, I would hold that there is no authority under the Uniform Code of Military Justice for an officer exercising general court-martial jurisdiction to grant immunity to an individual member of the services of that particularized nature which removes the latter’s right to rely upon his constitutional protection against self-incrimination. That there may be effective arrangements between convening authorities and accused whereby one promises not to prosecute the other in return for his appearance on behalf of the Government does not extend so far as to affect the individual’s right to refuse to act on the basis of such promise. Undoubtedly there is a need to secure the services of accomplices and other criminals as witnesses, although, practically speaking, they are usually found available without resort to passage of broad immunity acts. It is, indeed, serving the interests of society to assist in the prompt detection, prosecution, and conviction of guilty parties. But, in the words of Chief Judge Cardozo, regarding the subject before us:
“. . . Commanding as those interests are, they do not supply us with a license to palter with the truth or to twist what has been written in the statutes into something else that we should like to see. Historic liberties and privileges are not to bend from day to day ‘because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment’ . . . are not to change their form and content in response to the ‘hydraulic pressure’ . . . exerted by great causes. A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price for relieving itself of the bother of awaiting a session of the Legislature and the enactment of a statute in accordance with established forms.” [Doyle v Hofstader, 257 NY 244, 177 NE 489, 498 (1931).]
Concluding that there is no authority under the Uniform Code of Military Justice for an officer exercising general court-martial jurisdiction to grant immunity to a witness who relies upon his right against self-incrimination, I need not reach the question whether such “grant” would be binding in the ordinary Federal courts. Cf. United States v Ford, supra. I record, therefore, my dissent to the proposition there is any such doctrine of immunity authorized within the services and, consequently, would hold it not binding upon the witness quite without regard to the situs of his possible prosecution at a later date. Cf. Murphy v Waterfront Commission of New York Harbor, supra.
I would reverse the board of review and order the charge dismissed.