(concurring):
I
I concur. Judge Perry’s opinion constitutes a well-reasoned and articulate enunciation of the civilian law of search and seizure as interpreted at the present time and as generally applied in courts-martial. Yet, the implication of that opinion, namely, that a servicemember is entitled under the Fourth Amendment to a probable cause determination by a “neutral and detached magistrate” as in the civilian community, becomes increasingly suspect to me. As indicated in my recent opinions in United States v. Harris, 5 M.J. 44 (C.M.A.1978); United States v. Rivera, 4 M.J. 215 (C.M.A. 1978); United States v. Thomas, 1 M.J. 397 (C.M.A.1976), a reconsideration of this traditional mode of comparative analysis for the military law of search and seizure and its relationship to the Fourth Amendment is imminent. It is essential for this Court to keep pace with the constitutional evolution of the military justice system fashioned by the Supreme Court and the emerging realities of life in the modern military community.
II
The fundamental question before this Court and common to the several appellants is the degree of constitutional protection against unreasonable search and seizure available to a citizen on active duty in the military. The specific constitutional question before this Court is whether a service member is entitled under the Fourth Amendment to the impartial decision of a neutral and detached magistrate prior to a constitutional search of his person and property within the military community.1 This issue is raised in the particular context of the propriety of the authorization of a commanding officer to order searches and seizures of the person and property within his military control.2 The appellants contend that a military commander per se fails to meet the standards of impartiality required by the Fourth Amendment for neutral and detached magistrates in a civilian community and, consequently, the military procedure denies to the servicemember a fundamental right under the Constitution.
The lead opinion agrees that such a magistrate is required but continues to assert that a military commander, unless actively involved in the prosecution case, will not be de facto or de jure disqualified from issuing a lawful warrant to search.
I believe the assertion of a constitutional right for a service person in the idiom of the civilian community is increasingly unsatisfactory and confusing. Moreover, the resolution of a Fourth Amendment question on the propriety of the search need not unnecessarily focus ipso facto on the existence of a neutral and detached magistrate in the sense defined for a civilian community. The absence of any statutory posture for the Fourth Amendment as an element of the military justice system and the atti*327tude of the Supreme Court toward the applicability of constitutional protections embraced in the Bill of Rights for service persons lend support for a separate analysis of these issues focusing on the realities of life in the military.
The Constitution itself, except in case of indictment by a grand jury,3 contains no express pronouncement on the applicability of the individual protections in the Bill of Rights to a member of the armed forces. See also U.S.Const. art. I § 8, and art. II § 2. However, by implication, the Supreme Court has read the Sixth Amendment right to trial by jury as also excluding members of the armed forces on active duty.4
The Highest Court of our country has not decided a case concerning the application of the Fourth Amendment to the military justice system nor has it expressly indicated its position on the available protection under this amendment to citizens in the military. Congress in its enactment of the Uniform Code of Military Justice and its subsequent amendments to it did not expressly provide for search and seizure in the military justice system nor in particular for a neutral and detached magistrate. 10 U.S.C. §§ 801-934. Nevertheless, the President, acting under the authority of Article II, § 2, of the United States Constitution as commander-in-chief, as contended by Judge Perry, or under Article I, § 8 of the Constitution and Article 36, UCMJ, 10 U.S.C. § 936, as purported in the government’s briefs, has prescribed certain procedures, including the one at issue in the cases at bar, for search and seizure in the military.
I do not believe the absence of express constitutional pronouncements in the area of search and seizure for the military constitutes an abrogation of the rights of the citizen soldier so absolute as to preclude any review of the military search procedures for reasonableness of government action. Indeed, the Supreme Court has found the existence of limited constitutional rights for the service person even where that document remains silent.5 I believe that the change in status from civilian to soldier does not automatically vitiate those constitutional rights inherent in any citizen which military necessity does not constitutionally justify denying to him. Moreover, military necessity cannot assume the proportions of a legitimate constitutional justification for intrusive government action unless the party asserting it as warranting a different rule than in the civilian community shows this military condition to exist and to necessitate such a reasonable response by the Government.6
As the Supreme Court has said:7
The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.
Accordingly, in light of these considerations, I find it appropriate to test this Manual provision authorizing search and seizure in the military for compliance with the Fourth Amendment but expressly within the context of the necessary powers of the President as commander-in-chief and designee of the Congress as regulator of the armed services.
The Supreme Court has also said:8
*328We do not make the laws of war but we respect them so far as they do not conflict with the commands of Congress or the Constitution.
To do less would be to fail in our duty imposed by Congress in Article 67(d), UCMJ, 10 U.S.C. § 867(d), and to ignore the responsibility placed on us by the Supreme Court in Burns v. Wilson, supra, and its progeny.
Ill
With respect to the issue particularly granted for review by this Court, we first must consider whether the Fourth Amendment requires, for a reasonable search of the person and property of a servicemember, the determination of a neutral and detached magistrate as mandated in civilian cases. As earlier indicated, the Constitution, Congress and the Supreme Court are silent as to this matter. The President, however, has established a procedure in paragraph 152 Manual for Courts-Martial, United States, 1969 (Revised edition), for a probable cause determination by a commanding officer. This Court has chosen in the past9 to equate the commander of the base in making his probable cause determination under paragraph 152, Manual, supra, with the neutral and detached magistrate10 required by the Fourth Amendment in civilian cases. This traditional and accepted analysis has increasingly become inappropriate to the military legal system and unresponsive to the proper constitutional question raised in the military context. See Curry v. Secretary, 439 F.Supp. 261 (D.D.C. 1977).
The touchstone for the constitutional propriety of a search under the Fourth Amendment in any circumstance is “reasonableness” 11 because the amendment on its face only prohibits those searches and seizures which are unreasonable. The Supreme Court in generally assessing the applicability of the protection of the Bill of Rights to military personnel on active duty has balanced such fundamental rights with the competing constitutional interests of military necessity as inherent to the war-making power of the President and as interpreted by the rule-making power of Congress.12 I believe it unnecessary as well as increasingly in contradiction of common sense to equate the military commander in his duty to produce an effective fighting force and his concomitant responsibility as the chief law enforcement official on a military installation to a neutral and detached magistrate within the meaning of judge or magistrate in the civilian society. Such a legal fiction is counterproductive in assessing the realities of everyday military life and provides no viable standard for a determination of reasonableness under the Fourth Amendment. Nevertheless, this line of thinking will not per se disqualify him from lawfully ordering searches in all cases in the military society which do not otherwise run afoul of the balanced interests of the Fourth Amendment. What is unreasonable in the civilian society is not necessarily unreasonable in the military society due to the added factor, considered valid by the Supreme Court, of the competing constitution*329al interest of military necessity.13 Accordingly, the question becomes whether requesting authority from the commanding officer is always the reasonable method to order a search in the military situation.
It must be pointed out that military necessity does not give rise to a constitutional authority in the military commander in his own right to authorize searches without compliance with the reasonableness requirement of the Fourth Amendment. I believe the military commander is a surrogate for the primary society in its constitutional right to be protected in person and property by the armed services from the threats or conduct of war by hostile forces. This uncontroverted legitimate national interest of the United States as well as certain facts of military life constitutionally and necessarily justify the denial of a neutral and detached civilian magistrate’s decision for search and seizure for criminal evidence in military criminal cases. As earlier stated, however, all constitutional protection need not be sacrificed because of status in the armed forces. Paragraph 152, Manual, supra, is a response by the President to both this critical national interest and the residual individual rights of the servicemember.14 As stated earlier, it is the responsibility of this Court to assess the reasonableness of this response to the remaining constitutional protection available to the serviceman within the constitutional context of the military justice system as appreciated by the Supreme Court.
Paragraph 152, Manual, supra, states in part that: control over the place where the property or person searched is situated or found or, if that place is not under military control, having control over persons subject to military law or the law of war in that place:
The following searches are among those which are lawful:
A search of any of the following three kinds which has been authorized upon probable cause by a commanding officer, including an officer in charge, having
(1) A search of property owned, used, or occupied by, or in the possession of, a person subject to military law or the law of war, the property being situated in a military installation, encampment, or vessel or some other place under military control or situated in occupied territory or a foreign country.
(2) A search of the person of anyone subject to military law or the law of war who is found in any such place, territory, or country.
(3) A search of military property of the United States, or of property of non-appropriated fund activities of an armed forced of the United States.
The commanding officer may delegate to persons of his command, or made available to him, the general authority to order searches upon probable cause, and a search ordered by virtue of any such delegation is to be considered as having been authorized by the commanding officer. Any such delegation should be made to an impartial person. The person who orders a search need not himself make or be present at the search.
The examples of lawful searches set forth above are not intended to indicate a limitation upon the legality of searches otherwise reasonable under the circumstances.
The promulgation of this particular procedure and its upholding as constitutional by this Court was based on several federal court cases which found similar conduct by a military commander reasonable government action under the Fourth Amendment.15 These cases, however, involved *330searches and seizures of civilian and military personnel in foreign countries designated as war zones where no magistrate or judge was available to grant the order to search. Since that time military judges have been provided by Congress16 and the system of military magistrates17 as required by this Court on similar Fifth Amendment problems is in its initial stage of development. Accordingly, in view of these emerging facts of military life, I may find in the future that it is unreasonable that a military commander did not refer his decision to search in the usual case provided under paragraph 152, Manual, supra, for review and action by a military judge or magistrate where available.18 Yet, as indicated in Judge Perry’s opinion, there are other situations where a clear and present danger to the military mission exists which would preclude referral of the probable cause to search decision to those military officials designated as military judges or magistrates. Searches authorized by other appropriate military officials in this instance would be found reasonable under the well-established Fourth Amendment doctrine of exigent circumstances. Moreover, in those eases where no military judge or magistrate is available, I believe the procedure outlined in paragraph 152, Manual, supra, is eminently satisfactory and reasonable to authorize a lawful search for criminal evidence under circumstances and conditions therein provided and enunciated in Judge Perry’s opinion. All of these decisions solely with respect to their impact on the admission of evidence at a court-martial will be subject to judicial review for abuse of discretion in the trial court and appropriate appellate bodies.
IV
As for the immediate cases before this Court, I concur in their resolution by Judge Perry as reflecting the existing law as understood in the military justice system at this time. Henceforth, my resolution of these search and seizure issues on grounds of reasonableness will take into consideration the failure of the commander to refer his decision to search for review and action to a military judge or magistrate in those situations which the above analysis renders applicable.19
. Similar questions concerning a servicemember’s rights under the Fifth and Sixth Amendments to the Constitution were treated by the Supreme Court in Middendorf v. Henry, 425 U.S. 25, 34 n. 12, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). See also Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv.L.Rev. 293, 315, 324 n. 172 (1957); Wiener, Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv.L.Rev. 266, 271 (1958).
. Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition).
. U.S.Const. amend. V states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; .
. O’Callahan v. Parker, 395 U.S. 258, 261, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). See also Middendorf v. Henry, supra, 424 U.S. at 53 n. 2, 96 S.Ct. 1281 (Marshall, J., dissenting).
. See Middendorf v. Henry, supra; Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953).
. Courtney v. Williams, 1 M.J. 267, 270 (C.M.A. 1976).
. Bums v. Wilson, supra, 346 U.S. at 142, 73 S.Ct. at 1048.
. In Re Yamashita, 327 U.S. 1, 16, 66 S.Ct. 340, 348, 90 L.Ed. 499 (1946).
. United States v. Guerette, 23 U.S.C.M.A. 281, 49 C.M.R. 530 (1975); United States v. Staggs, 23 U.S.C.M.A. 111, 48 C.M.R. 672 (1974); United States v. Sam, 22 U.S.C.M.A. 124, 46 C.M.R. 124 (1973); United States v. Drew, 15 U.S.C.M.A. 449, 35 C.M.R. 421 (1965), and cases cited therein.
. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1974); Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972); United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
. Coolidge v. New Hampshire, supra; Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).
. See footnote 5.
. Id.
. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, para. 152, and D. A. Pamphlet 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition), para. 152.
. Best v. United States, 184 F.2d 131 (1st Cir. 1950), cert. denied 340 U.S. 939, 71 S.Ct. 480, *33095 L.Ed. 677 (1951); Richardson v. Zuppmann, 81 F.Supp. 809 (D.Pa.1949), aff'd 174 F.2d 829 (3d Cir. 1949); Grewe v. France, 75 F.Supp. 433 (D.Wis.1948). See also, United States v. Doyle, 1 U.S.C.M.A. 545, 548, 4 C.M.R. 137 (1952).
. See Article 26, Uniform Code of Military Justice, 10 U.S.C. § 826.
. Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976).
. See footnote 30 of Judge Perry’s opinion.
. I do not read the decision in Wallis v. O’Kier, 491 F.2d 1323 (10th Cir. 1974), cert. denied 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974), as taking into consideration the existence or potential of military judges or military magistrates. Accordingly, I do not find its holding inapposite to my opinion or Judge Perry’s.