(concurring):
I agree with Judge Perry, but as he does not meet the issues tendered in Chief Judge Fletcher’s dissent, I am constrained to do so because they are important to military practice.
Chief Judge Fletcher’s pronouncement that the President’s rule-making authority is confined “to matters of trial procedure” and that he has no power in regard to the “procedural steps necessary to bring a case to trial” is contrary to 200 years of American military practice. It not only wipes out the rules prescribed by the President in the Manual for Courts-Martial, United States, 1969 (Revised edition), for pretrial proceedings, but also vitiates those provided for post-conviction proceedings.
Congress has the constitutional power to govern the armed forces. U.S.Const. art. I, § 8. The President, by the Constitution, is the nation’s Commander-in-Chief. When Congress defines military crimes and provides for their prosecution by courts-martial, but does not particularize all procedures necessary to achieve its purposes, the President, or his subordinates in the military departments, must formulate the rules. Long before Congress legislated as to procedure in any significant way, service regulations established the rules. Those regulations were expressly approved by the Unit*8ed States Supreme Court as having “the force of law.” Swaim v. United States, 165 U.S. 553, 565, 17 S.Ct. 448, 41 L.Ed. 823 (1897); Ex Parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879).
Article 67(g) of the Uniform Code of Military Justice, 10 U.S.C. § 867(g), requires the judges of this Court, the Judge Advocates General of the armed services, and the General Counsel of the Department of Transportation, as representative of the Coast Guard, to report annually to the Committees on Armed Services of the United States Senate and House of Representatives on “matters considered appropriate” to the operation of the Code. Twenty-four such reports have been made and filed. Never has a judge of this Court, or any of the other participants in the reports, suggested that the President has exceeded the authority conferred upon him in Article 36, 10 U.S.C. § 836 by promulgating appropriate rules for pretrial and post-conviction proceedings. Such a suggestion would have been contrary to the universal understanding that Article 36 confirmed the President’s power to prescribe rules for all courts-martial processes, not just those relating to the trial.
In the quarter century of its existence, this Court has dealt with many of the pretrial and post-trial rules promulgated in the Manual for Courts-Martial. On every occasion that the rule was determined to be consistent with the Constitution and the Uniform Code, it was acknowledged to have the “force of law.” Until recently, this Court has consistently and uniformly recognized the legal force of the Manual provisions in those areas. The list of cases is long, but I need not burden this separate opinion with enumeration. Suffice it to refer to one case in each area.
In United States v. Nix, 15 U.S.C.M.A. 578, 581, 36 C.M.R. 76, 79 (1965), the Court held that, under the Manual, “pretrial motions are properly addressed to the convening authority” and his determination “must be complied with . . . before proceeding with the trial.” In United States v. Dow, 1 M.J. 250 (C.M.A.1976), the Court unanimously reaffirmed United States v. Keller, 1 M.J. 159 (C.M.A.1975), in which the Court held that a Manual rule, not commanded by any provision of the Code, which required the convening authority to set out his reasons for not following the recommendations of the staff judge advocate in post-trial advice, was binding upon the convening authority, and his failure to comply with that rule was reversible error.
Turning to the merits of the issue upon which we granted review, I believe the Chief Judge is attempting to reshape the Code in his own image.
Article 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2), provides that “the convening authority shall detail” the members of the court-martial; Article 26 directs that “[t]he authority convening a court-martial shall . . . detail a military judge thereto”; and Article 27(a) provides that “the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate.” Thus, the language of the Uniform Code requires the convening authority personally to detail the court members, but it is said that, while the language is the same, when applied to the trial judge and to counsel, a different meaning and a different consequence are required.
The dissent maintains that the convening authority has so little choice as to the qualifications of the judge and counsel, in contrast to his discretion as regards the court members, that his selection of the legal personnel is purely ministerial and, therefore, delegable. The Military Justice Act of 1968, P.L. 90-632, 82 Stat. 1335, enlarged the functions of the judge and the occasions for appointment of legally-trained counsel, but it was not “an overall revision of the court-martial system”; it merely effected “a few changes” calculated “to improve some of the procedures and increase the substantive safeguards in courts-martial.” S.Rep.No. 1601, 90th Cong., 2nd Sess., 3 United States Code Cong. & Admin.News, p. 4503 (1968). The Act did not change the qualifications of the military judge from those specified for his predecessor, the law *9officer, under the Code as originally enacted in 1950. Moreover, the qualifications are also the same as those prescribed for the law member of the court-martial in the 1948 amendments to the Articles of War of 1920. Article of War 8, Act of June 24, 1948, 62 Stat. 604, 628-29. Similarly, the qualifications of counsel for a general and special court-martial were unchanged. As the qualifications for both the trial judge and counsel are not new, I discern no justification for attributing to them a significance different from what they had under the earlier legislation.
Predecessor legislation on the composition of a court-martial has been consistently construed by those charged with administering the system as requiring the convening authority personally to select all persons detailed to a court. Naval Courts and Boards, 1937, notes that the precept, the order convening the court-martial (§ 345) and designating the members and the judge advocate, who was to be “skilled in the law” (§§ 329, 330), was to be “signed by the convening authority” (§ 345). In the same vein, Colonel Winthrop observed, in his authoritative work on Army practice, that the judge advocate of a court-martial is appointed by “the commander who . convenes the court-martial,” and this “authority to detail the judge advocate cannot be delegated to or assumed by an inferior or other commander.” Wintrop’s Military Law and Precedents, 2d ed., 1920 Reprint at 182, Section 3.1
As far as I have been able to ascertain, at the time Congress considered the Military Justice Act of 1968, no voice was raised against the long-established and uniform rule of nondelegability of the power to detail persons to courts-martial. The Act codified the concept of the field judiciary, which had been pioneered by the Army in 1958 and was adopted later by the other services, by providing that “[t]he military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee,” but the detail itself was still the responsibility of the convening authority. Article 26(c), UCMJ, 10 U.S.C. § 826(c). Consequently, if any congressional intention can be gleaned from the provisions dealing with the qualifications of the trial judge and counsel, and the Judge Advocate General’s designation of the judge for a general court-martial, it is, in my opinion, that Congress did not want to change the nondelegable nature of the convening authority’s power to detail to a court persons having such qualifications. See United States v. Kirsch, 15 U.S.C.M.A. 84, 94, 35 C.M.R. 56, 66 (1964).
This Court has condemned, as unauthorized by the Code and the 1968 Act, the detail by a commander of two military judges to the same court-martial, under an arrangement which contemplated that one or the other of the two would sit, as administrative convenience dictated. The Court noted that “designation of the membership of courts-martial is too important to be controlled by administrative convenience.” United States v. Sayers, 20 U.S.C.M.A. 462, 466, 43 C.M.R. 302, 306 (1971). As the Court was assuredly aware of the difference in qualifications between a court member and a military judge, I have no doubt the Court intended the word “membership” to include not only the members of the court-martial, but other personnel detailed to it, especially the military judge whose presence is required to constitute the court. See United States v. Wright, 2 M.J. 9 (C.M. A.1976).2 Sayers impliedly recognized the *10nondelegable character of the selection process as to all persons detailed to a court-martial; and its implication was made explicit in United States v. Singleton, 21 U.S.C.M.A. 432, 45 C.M.R. 206 (1972). There, the Court was confronted with a situation in which the detail of the military judge and counsel was not apparent on the record. The Court overturned the conviction, with the following pertinent comments:
We are constrained, however, to hold that this record is silent with regard to the contents of the oral appointment, when it was made or by whom. In sum, it is impossible to determine that the convening authority, or one acting as such in his absence, made the appropriate appointments as he is required to do so [sic] by both the Code and the Manual.
Id. at 434, 45 C.M.R. at 208.
In summary, the language of the statutory provisions on the detail of persons to a court-martial, the consistent construction accorded that language in the successive service manuals promulgating the rules of practice to administer the statutes, and the decisions of this Court are all opposed to a conclusion that the convening authority’s power to detail the trial judge and counsel to a court-martial can properly be delegated to others. The current practice of designation of the military judge of a general court-martial by the Judge Advocate General may suggest that the rule should be changed, but the change must be made by Congress, not judicial decree.
. The Manual for Courts-Martial, U.S. Army, 1917, paragraph 18, provided that “the authority to appoint general courts-martial is an attribute of command," and the commander “can not delegate to another officer such as his adjutant or any other staff officer . the authority to appoint a court.” Then Article of War 11, Act of June 24, 1948, 62 Stat. 604, 629, required appointment of a judge advocate for every general or special court-martial by “the authority appointing the court.” Successor manuals contained similar comments on the nondelegability of the power to detail personnel to court-martial duty. Manual for Courts-Martial, U.S. Army, 1928, paragraph 5a; Manual for Courts-Martial, U.S. Army, 1949 paragraph 5; Manual for Courts-Martial, United States, 1951, paragraph 5a (5).
. It should be noted that the question as to the “membership of courts-martial” in the present *10case is not what persons must be detailed to the court to enable it to function as a court-martial, that is, whether the court is complete in a jurisdictional sense, which was the issue in United States v. Wright, 2 M.J. 9 (C.M.A.1976), but rather is the ancillary question of who can, under the Uniform Code, detail persons who have duties incident to a court-martial, regardless of whether a particular person.is or is not essential to the composition of the court-martial in a jurisdictional sense.