(dissenting):
I must dissent.
Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition), provides that evidence “obtained as a result of an unlawful search of” an accused’s “property ... by an ... agent of the United States” is inadmissible against him at a court-martial. This Manual provision also authorizes a commanding officer with probable cause to lawfully search the property of a servicemember in a foreign country, although it may be located in an area not under military control. In my opinion, this Court is required to construe these portions of the Manual for Courts-Martial in conformity with accepted principles of international law. 1 F.T.C. v. Compagnie De Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300, 1327 (D.C.Cir.1980). The Government in this case has not shown that the search of appellant’s home in Germany by military police agents was in accordance with the NATO SOFA2 and the Supplementary *258Agreement with Germany.3 Accordingly, as a matter of international law accepted by the United States, this search was unlawful. Consequently, in accordance with the Manual, its fruits must be suppressed. United States v. Reagan, 7 M.J. 490 (C.M.A.1979); United States v. Mitchell, 21 U.S.C.M.A. 340, 45 C.M.R. 114 (1972); United States v. Carter, 16 U.S.C.M.A. 277, 36 C.M.R. 433 (1966).
More particularly, in Wilson v. Girard, 354 U.S. 524, 529, 77 S.Ct. 1409, 1411, 1 L.Ed.2d 1544 (1957), the Supreme Court stated:
A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction.
Such a statement by the Supreme Court constitutes, at the very least, recognition of the principle of international law denominated the right of territorial sovereignty. See generally Lazareff, Status of Military Forces Under Current International Law 1 — 18 (1971); see also F.T.C. v. Compagnie De Saint-Gobain-Pont-A-Mousson, supra. This principle of international law embraces the collateral principle that a state sending troops peacefully within the territorial boundaries of another sovereign has no legal right to police violations of its own laws in the foreign country by these soldiers without the consent of the territorial sovereign. See Lazareff, supra at 254. The NATO SOFA and the Supplementary Agreement constitute legal recognition by the President of the United States of the territorial sovereignty of the Federal Republic of Germany. See Lazareff, supra at 70-76, 430-33. Article 28, Supplementary Agreement to the NATO SOFA, expressly provides that American military police have the direct right to patrol and take appropriate measures to insure “order and discipline” among servicemembers and civilian dependents in public places in Germany.4 No mention is made of any direct right of the American military to conduct law enforcement activities in non-public places, such as the off-base residence of an American servicemember. No such direct right to *259police in these areas can be implied where the agreement itself specifically delineates the areas where American military police may act without securing the consent of local authorities.5 In view of the foregoing principle of territorial sovereignty and NATO SOFA Article VII, paragraphs 6.-(a) and 10.-{b), the American military police agents had no legal authority or otherwise to search appellant’s off-base residence without the consent of the local foreign authorities. See Lazareff, supra at 235-37, 255-56. Such action by these government agents in the present case was unlawful.6 See Irvine v. California, 347 U.S. 128, 132, 74 S.Ct. 381, 382, 98 L.Ed. 561 (1954).
My Brother judges eschew the traditional approach to this question. Instead, they assert that the NATO SOFA and the Supplementary Agreement with Germany do not intend to confer nor do they confer any additional rights concerning search and seizure on the American servicemember which he would not otherwise possess as a matter of domestic law. Cf. United States v. Stokes, 12 M.J. 229 n. 3 (C.M.A.1982). Moreover, they assert that these agreements grant no rights to an individual to object to the admission of evidence because is was obtained by unreasonable search and seizure. Cf. Lazareff, supra at 225-28. Accordingly, they hold that a servicemember may not enforce the treaty provisions by invoking the exclusionary rule at a court-martial. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).
The obvious shortcoming in the majority’s approach to this question is that it fails to recognize or ignores the requirements of the fourth amendment in this context. It is well established that the Constitution including the Bill of Rights applies abroad whenever an agent of our government acts against a citizen of the United States to deprive him of his life, liberty or property. Reid v. Covert, 354 U.S. 1, 5-14, 77 S.Ct. 1222, 1224-1229, 1 L.Ed.2d 1148 (1957) (plurality opinion). Accordingly, the absence of a specific right in an international agreement to be free from an unreasonable search and seizure or for the individual to object to the admission of its fruits in a criminal proceeding of a foreign state does not abrogate his right under the fourth amendment to object in an American court-martial to unreasonable search and seizure by our government. See generally Tribe, American Constitutional Law 170 (1978).
A second shortcoming in the majority’s approach to this question is its misperception of the basis of appellant’s claim in this case. He is not seeking to enforce the sovereign rights of the Federal Republic of Germany under these treaty agreements by application of the exclusionary rule at his court-martial.7 What he is doing is challenging the authority of agents of the United States to act upon his private property in the Federal Republic of Germany without consent of that sovereign. See F.T.C. v. Compagnie De Saint-Gobain-Pont-A-Mousson, supra. His claim, though sounding in international law and jurisdictional in nature, questions the reasonableness of such government action in light of the fourth amendment. In other words, does the Constitution or federal law (Leslie Miller, Inc. v. United States, 357 U.S. 301, 77 S.Ct. 257, 1 L.Ed.2d 231 (1958)) protect the privacy of individuals in appellant’s position from such unauthorized police action by agents of the United States? See 2 W. LaFave, Search and Seizure § 4.2(f) (1978).
*260In United States v. Caceres, supra, the Supreme Court addressed the same question under materially different circumstances. There, it held that neither the Constitution nor federal statutory law required that an Internal Revenue Agent secure the administrative approval of his superiors, as required by agency regulations, before he secretly tape recorded his conversations with a taxpayer. Such a holding presumes that this government agent was executing a lawful power of the sovereign government in interviewing the taxpayer. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). In the case before us, as indicated earlier, the sovereign government of the United States has no power, reasonably exercised or not, to search and seize property of an American citizen located in a foreign country unless it is done in conformity with its agreement with that foreign country.8 Accordingly, the rationale articulated in United States v. Caceres, supra, is not relevant to the case before us.
The question which remains to be answered is whether the government agents violated appellant’s rights under the fourth amendment or federal law when they searched the off-base residence of appellant in Germany. It is well established that a servicemember has a legitimately greater expectation of privacy in his off-base dwelling in the United States than in his on-base dwelling within the territorial limits of our country. See generally Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). This is true because, with certain exceptions not applicable in the present case, the former may not be lawfully searched without a warrant based on probable cause issued by a neutral and detached magistrate. See United States v. Mitchell, supra at 342, 45 C.M.R. at 116. The on-base dwelling of a servicemember, however, may be constitutionally searched upon authorization of his commanding officer acting also on the basis of probable cause. See United States v. Ezell, 6 M.J. 307, 317-18 (C.M.A.1979). The added protection offered by the warrant as compared to command authorization is significant but the different standard can be justified constitutionally within the context of the military community. Id.
With this difference in mind, I must next recognize the fact that many servicemembers assigned overseas are permitted and do maintain off-base dwellings in foreign countries. Appellant is one of these servicemen. In addition, it must be recognized that there are no American civilian courts in this country or overseas which are available or empowered to issue warrants for searches and seizures in these off-post dwellings. See United States v. DeLeo, 5 U.S.C.M.A. 148, 157, 17 C.M.R. 148, 157 (1954). The question, which the majority ignores, is what becomes of this greater expectation of privacy that a servicemember legitimately has in his off-post dwelling when it is situated in a foreign country? See generally Cooley, Constitutional Limitations 229-307 (1874).
In such a situation where a warrant cannot be secured, the servicemember, as is his civilian counterpart, is entitled to reasonable government action as dictated by the facts and circumstances of the case. See Richardson v. Zuppann, 81 F.Supp. 809, 813 (M.D.Pa.1949), aff’d, 174 F.2d 829 (3d Cir. 1949), citing Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931); see also United States v. DeLeo, supra. One of the circumstances surrounding this exercise of government power to be considered is the nature of the presence of American servicemembers within the foreign country. See Best v. United States, 184 F.2d 131, 140-41 (1st Cir. 1950); Grewe v. France, 75 F.Supp. 433, 437 (E.D.Wisc.1948). Another circumstance is the existence of orderly procedures by which such a search might be ordered and customarily carried out by American mili*261tary police in a foreign country.9 See Richardson v. Zuppann, supra. Here, the presence of American servicemembers in the Federal Republic of Germany was for mutual defense purposes during a time of peace. Moreover, the President, by signing the treaty and promulgating the Manual for Courts-Martial, established orderly procedures for the search and seizure of a servicemember’s property in this context in a foreign country. The military police in this case did not comply with these orderly procedures prior to searching appellant’s off-base apartment. No explanation or justification was offered for their conduct nor was evidence offered that it was customarily agreed, in accordance with the treaty, not to seek permission of German authorities in these matters. In my opinion, these government agents acted unreasonably and in violation of appellant’s fourth amendment rights.
. It is unreasonable to assume that the President as Commander in Chief would promulgate provisions in the Manual for Courts-Martial which would undermine treaty commitments to foreign countries made by him as our chief foreign policy maker. See Tribe, Constitutional Law 168-69 (1978).
. Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their *258Forces, 4 U.S.T. 1972, 1800, 1802; T.I.A.S. No. 2846 (effective date August 23, 1953).
ARTICLE VII
6.-(a) The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them.
* * * * * if!
10.-(a) Regularly constituted military units or formations of a force shall have the right to police any camps, establishments or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.
(b) Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force.
. Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, 14 U.S.T. 531, 559-60; T.I.A.S. No. 5351 (effective date July 1, 1963).
Article 28
1. The military police of a force shall have the right to patrol on public roads, on public transport, in restaurants (Gaststátten) and in all other places to which the public has access and to take such measures with respect to the members of a force, of a civilian component or dependents as are necessary to maintain order and discipline. Insofar as it is necessary or expedient the details of the exercise of this right shall be agreed upon between the German authorities and the authorities of the force, who shall maintain close mutual liaison.
2. If public order and safety are endangered or disturbed by an incident in which members of a force or of a civilian component or dependents are involved, the military police of a force shall, if so requested by the German authorities, take appropriate measures with respect to such persons to maintain or restore order and discipline.
. See n. 3, supra.
. See United States v. Bunkley, 12 M.J. 240 (C.M.A.1982) (Fletcher, J., concurring in the result).
. The majority opinion today indirectly encourages, if not condones, action by American military police which is in violation of federal law. See Foster v. Neilson, 27 U.S. (2 Peters) 253, 314, 7 L.Ed. 415 (1829). Such unlawful police conduct, as indicated above, also infringes on the rights of territorial sovereignty of the Federal Republic of Germany. See Lazareff, Status of Military Forces Under Current International Law 254 (1971). Finally, such military police action is an express violation of the President’s directions in the sensitive area of foreign affairs. See Tribe, supra at 163-72.
. Of course, a ruling in appellant’s favor on this question would avoid many of the deleterious effects of the majority opinion. Seen. 6, supra.
. I need not address the question whether such power exists during time of war or absent any agreement with the foreign state, for those facts are not before us. See Lazareff, supra at 11-18; Cooley, Constitutional Limitations 1-11 (1874).
. Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition) — the Manual provision which purportedly authorized the government agents to search appellant’s off-post dwelling in this case — is a clarification of paragraph 152, Manual for Courts-Martial, United States, 1951. See Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition), para. 152. The latter provision concerning military searches was based on paragraph 138, Manual for Courts-Martial, U.S. Army, 1949, and its acceptance by federal courts in Grewe v. France, 75 F.Supp. 433 (E.D.Wisc.1948), and Best v. United States, 184 F.2d 131 (1st Cir. 1950). See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, para. 152. The NATO SOFA, as indicated in footnote 2, was effective as to the United States in 1953 and the Supplementary Agreement, as indicated in footnote 3, was effective as to the United States in 1963. Accordingly, these agreements were not in effect when the federal courts decided this issue.