(dissenting):
I believe that my Brothers have misinterpreted both the judicial and legislative history of Article 16(1)(B), Uniform Code of Military Justice, 10 U.S.C. § 816(1)(B). At a time when trial by judge alone constitutes a significant segment, if not the majority, of the courts-martial tried today, it is all too easy to forget that such an option has not always been available to either a military or civilian accused.
During the pretrial hearing, the military judge informed the parties that “[t]he record should reflect that ... [he had] received at the bench a request ... [from] the accused in this case for trial before .. . [military judge] alone. The request ... [was] disapproved.” No responding comment was made by either civilian or mili*75tary defense counsel. Later, however, counsel moved “that the court reconsider its denial of the accused’s request for trial by military judge alone,” contending that “as ... [the judge was] well aware, this is a statutory right, that is further explained by Section 53b(2) [53d(2)] of the MCM [Manual for Courts-Martial, United States, 1969 (Revised edition)] which indicates that the judge may allow arguments on the request.” Counsel cited United States v. Ward, 3 M.J. 365 (C.M.A.1977), and United States v. Morris, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975), in support of the motion. After a recess to review the precedents, the military judge announced:
The court has before it a motion to reconsider the accused’s request to be tried by judge alone. The court indeed has reconsidered that request, has read the Ward case. The disapproval which the court originally entered remains the same. The request for a judge alone trial is disapproved.
Nothing more was said on this subject.
I
Because of unpleasant experiences under the domination of the British crown, the American colonists were quick to declare their insistence on the right to trial by jury in criminal cases.1 “[I]n the Declaration of Rights adopted October 14, 1774,” by the first Continental Congress, it was “resolved that ‘the respective Colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.’ ” 1 Journals of Congress 28, quoted in Capital Traction Company v. Hof, 174 U.S. 1, 6, 19 S.Ct. 580, 582, 43 L.Ed. 873 (1899).
Later, such right was recognized by the Constitution of the United States, as follows: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” U.S.Const. art. Ill, § 2. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S.Const. amend. VI. See the Judiciary Act of 1789, § 12, as cited in Patton v. United States, 281 U.S. 276, 301, 50 S.Ct. 253, 259, 74 L.Ed. 854 (1930), which states “the trial of issues in [of] fact in the circuit courts shall, in all suits, except those of equity, and of admiralty, and maritime jurisdiction, be by jury.” Such an expressly granted right has been jealously guarded by the courts of the United States. In Thompson v. Utah, 170 U.S. 343, 351,18 S.Ct. 620, 623, 42 L.Ed. 1061 (1898), the Court said:
When Thompson’s crime was committed, it was his constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.
In Capital Traction Company v. Hof, supra 174 U.S. at 13-14, 19 S.Ct. at 585-586, the Court said:
“Trial by jury,” in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This *76proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.
The right to trial by jury has been so firmly engrained in our jurisprudence that the concept to waive it was not accepted until much more recent times.2 In Patton v. United States, supra, the Court rejected the view that to waive trial by jury in criminal cases was against public policy and would not be valid in any criminal case. Instead, it affirmed the power of the defendant in a criminal case to waive trial by jury and submit to trial by judge alone; but, in so doing, the Court cautioned:
Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.
Id. 281 U.S. at 312-13, 50 S.Ct. at 263.
Having accepted the concept of waiver of trial by jury, the courts have closely scrutinized the exercise of the consent to such waiver. In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), McCann chose to defend himself and sought to waive trial by jury.
The Assistant United States Attorney consented, and the judge (one of long trial experience and tested solicitude for the civilized administration of criminal justice) entered an order approving this “waiver.”
Id. at 271, 63 S.Ct. at 238. However, after being convicted, McCann hired an attorney who promptly contested the jurisdiction of the court to conduct a trial without a jury based upon the attempted waiver of a pro se defendant. The Court held that an unrepresented defendant could waive the right to trial by jury, and stated:
There is nothing in the Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury even though, in deciding what is best for himself, he follows the guidance of his own wisdom and not that of a lawyer.
Id. at 275, 63 S.Ct. at 240. But the Court examined the waiver to ensure that the decision was “taken with ... express, intelligent consent, where the Government also consented], and where such action ... [was] approved by the responsible judgment of the trial court.” Id. at 277-78, 63 S.Ct. at 240-241.
Based on the rationale of these cases, Fed.R.Crim.P. 23 was adopted which provides:
(a) Trial by jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.
In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), the *77requirement of Rule 23 that both the Government and the trial judge consent to an accused’s request for trial by judge alone as a prerequisite to granting such request was challenged. The Court recognized that there was no federally recognized right to a criminal trial before judge alone, but that a defendant could, in some instances, waive his right to trial by jury. The Court stated:
In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.
In upholding the validity of Rule 23(a), we reiterate the sentiment [citation omitted] that the government attorney in a criminal prosecution is not an ordinary party to a controversy, but a “servant of the law” with a “twofold aim . .. that guilt shall not escape or innocence suffer.” ... Because of this confidence in the integrity of the federal prosecutor, Rule 23(a) does not require that the Government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant’s proffered waiver. Nor should we assume that federal prosecutors would demand a jury trial for an ignoble purpose. We need not determine in this case whether there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial.. .. [Slince petitioner gave no reason for wanting to forgo jury trial other than to save time, this is not such a case.
Id. at 36, 37-38, 85 S.Ct. at 790, 791-792.
The lower courts have consistently held that there is no right to waive trial by jury or to insist on trial by judge alone. See United States v. Joyce, 499 F.2d 9 (7th Cir. 1974) , cert. denied sub nom. Joyce v. United States, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); United States v. Bowles, 428 F.2d 592 (2d Cir. 1970), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970); Dixon v. United States, 292 F.2d 768 (D.C.Cir.1961); Mason v. United States, 250 F.2d 704 (10th Cir. 1957); Shaw v. United States, 299 F.Supp. 824 (D.Ga.1969). And the consent of the Government and of the trial judge have been generally considered essential. United States v. Morlang, 531 F.2d 183 (4th Cir. 1975); United States v. Johnson, 496 F.2d 1131 (5th Cir. 1974), cert. denied, 421 U.S. 981, 95 S.Ct. 1983, 44 L.Ed.2d 473 (1974).
However, based upon the caveat in Singer, some courts have considered the refusal of the Government to consent in light of reasons advanced by the defendant in support of his request for trial by judge alone. In United States v. Morlang, supra, the court found that the defendant “recited the very substantial publicity that the case had received” as a ground for granting his request for waiver. However, that defendant offered “no evidence to establish ‘reasons’ ‘so compelling that the Government’s insistence on trial by jury would result in the denial to the defendant of an impartial trial,’ ...” Id. at 186, 188. In United States v. Braunstein, 474 F.Supp. 1 (D.N.J. 1979), the court granted a bench trial over objection by the Government on the basis of costs in time and money since it was “a *785-defendant case, with separate attorneys for each, plus another for the government”; the complicated laws involved; the complex accounting rules and practices that would have to be explained to the jury; the complicated instructions that would have to be given to the jury; and the necessary evidentiary rulings where evidence which might be admissible against only one or more of the defendants might make it “unlikely to have fair assurance that a jury could consider each charge against that defendant independently of the verdicts in respect to other charges or against other defendants.” Id. at 13, 14. The court based its ruling on a reading of Fed.R. Crim.P. 23(a) and 2, and specifically rejected any constitutional grounds. In reaching its decision, the court cataloged a series of federal cases where the defendants offered allegations, and even evidence, in support of requests for waiver of trial by jury.
II
Prior to 1968, there was no provision in military law for trial by military judge alone.3 With the increased stature provided to the military judge (formerly law officer), there was interest in providing a means to permit such a practice. S.752, 89th Cong., 2d Sess. § 12 (1965), proposed to amend Article 55, UCMJ, 10 U.S.C. § 855, to provide an “opportunity [to the accused] to waive his right to a trial by the members of the court and elect instead to be tried by the law officer of the court”; however, such a waiver required “the consent of the trial counsel.” H.R. 273, 89th Cong., 1st Sess. § (2) (1966), would have amended Article 16 to provide for trial by “only a law officer, if before the court is assembled the accused, knowing the identity of the law officer and after consultation with counsel, requests in writing a court composed only of a law officer and the convening authority consents thereto.” The Proposed Substitute Bill for S.750 (sec. 1); S.752, 89th Cong., 1st Sess., adopted the language of the House bill. In the comments accompanying the textual material, the following is found:
Although such a procedure has not heretofore been available in any of the Armed Forces, an analogous method of disposition of criminal cases is provided in the Federal courts by rule 23 of the Federal Rules of Criminal Procedure.
Joint Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary and a Special Subcommittee of the Committee on Armed Services, United States Senate, 89th Cong., 2d Sess., 690-91 (1966).
Ultimately, the Military Justice Act of 1968, P.L. 90-632, was passed and became law. In the accompanying Senate Report No. 1601, 90th Cong., 2d Sess. (1968), reprinted in [1968] U.S.Code Cong, and Ad. News 4501, 4504-05, the analysis of the Article 16 amendment states:
The bill as passed by the House made the election of the accused to be tried by such a single-officer court subject to the approval of the military judge and the consent of the convening authority. The committee has amended the provision by deleting the requirement for consent by the convening authority.... The command structure in the military presents a possibility of undue prejudicial command influence that is not present in civilian life. In any case, the military judge, after having heard arguments from both trial counsel and defense counsel concerning the appropriateness of trial by a military judge alone, will be in the best position to protect the interest of both the Government and the accused.
In interpreting Article 16, this Court has followed the civilian rationale. In United States v. Morris, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975), we held that “[a] request for trial by judge alone ... [was] not operative on its submission by the accused, but rather on approval by the judge,” and we agreed with the conclusion of the court *79below “that Congress intended to invest the judge with some discretion as to whether to approve or disapprove a submitted request.” Id. at 324, 49 C.M.R. at 658. See also United States v. Bryant, 23 U.S.C.M.A. 326, 49 C.M.R. 660 (1975). Later, in United States v. Ward, 3 M.J. 365, 367 (C.M.A. 1977), we equated Article 16 to Fed.R. Crim.P. 23(a) and held:
While Article 16 does not require the consent of the Government, it does require the approval of the military judge. Such approval is a necessary prerequisite for a bench trial and Article 16, like rule 23a, creates no absolute right to trial by judge alone.
Cf. United States v. Paulin, 6 M.J. 38 (C.M. A.1978).
Ill
My consideration of the legislative and judicial backgrounds of Article 16 of the Uniform Code leads me inescapably to conclude:
1. That a military accused has a primary right, as is true of a civilian accused, to trial by members.4
2. That the privilege to waive such right is to be carefully scrutinized in its exercise to ensure that it is intelligently and informatively made.5
3. That there is no constitutional or statutory impediment to attaching conditions to the exercise of the privilege.6
4. That the requirement for the military judge’s consent to the request for trial by judge alone is reasonable and is similar to the requirement for the consent of the Government and the trial judge under Fed. R.Crim.P. 23(a).7
5. That the military judge has the discretion to approve or disapprove such a request and his discretion should not be overturned except in cases of demonstrated abuse.8
This leads me to the ultimate question now before us:
Is the military judge required to give reasons for refusing a request for trial by judge alone?
My Brothers say he is, without saying more, and this is my point of departure. In no other area of judicial discretion of which I am aware is a military judge forced to give reasons for his discretionary decision without benefit of the specific objections and arguments of counsel. I believe that my Brothers put the “cart before the horse.” The better rule would be to require that an accused seeking reconsideration of a denial of a request for trial by judge alone give reasons why such a request should be granted and, where pertinent, why the military judge should reverse his prior action. In this manner, both counsel could present argument, evidence, or proffers of evidence, and the military judge would have the entire matter before him for an informed decision. In like manner, reviewing authorities, including this Court, would have a factual predicate upon which to test the decision for abuse of discretion. Just as the military judge need not rule in an evidentiary vacuum, we should not overturn his ruling for no reason whatsoever.
The procedure I advocate places no undue burden on the accused, since he alone is best situated to know why he wishes to waive his right to trial by members.9 Further, it *80provides much more information for the trial judge and appellate reviewers to aid them in fully understanding the grounds for the ultimate decision.
In this case, trial defense counsel offered no reasons to the military judge explaining why the judge should either grant the request for trial by judge alone, or reconsider and reverse his earlier decision to deny the request. Lacking either, I find no error and would affirm the decision of the United States Air Force Court of Military Review.
. The “long-continued and consistent interpretation” of Article III, § 2, and the Fifth and Sixth Amendments to the Constitution is that they do not extend the right to jury trial to military courts. Ex parte Quirin, et al., 317 U.S. 1, 40, 63 S.Ct. 1, 16, 87 L.Ed. 3 (1942); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866); United States v. Jenkins, 20 U.S.C.M.A. 112, 42 C.M.R. 304 (1970). However, the model for Article 16(1)(B), Uniform Code of Military Justice, 10 U.S.C. § 816(1)(B) is Fed.R. Crim.P. 23(a), which is the result of a series of judicial decisions interpreting these particular provisions of the Constitution of the United States. See section II of text.
. Circuit Justice Joseph Story posed this question:
“Suppose they had answered that they wished to be tried by the court, could the court have tried the cause otherwise than by jury? ... The constitution decides how he shall be tried, independent of any election on his part. The plea of not guilty puts the party for all purposes upon his trial by jury.” United States v. Gibert, 25 Fed.Cas. 1287, 1306 (C.C.D.Mass.1834), quoted in Orfield, Trial by Jury in Federal Criminal Procedure, 1962 Duke L.J. 29, 57.
. United States v. Dean, 20 U.S.C.M.A. 212, 43 C.M.R. 52 (1970). Up to this time, the “normal” and only “mode” was trial by a court-martial composed of members. Patton v. United States, 281 U.S. 276, 300-01, 50 S.Ct. 253, 258-259, 74 L.Ed. 854 (1930).
. United States v. Jenkins, 20 U.S.C.M.A. 112, 117, 42 C.M.R. 304, 309 (1970) (Ferguson, J., dissenting).
. United States v. Jenkins, supra.
. United States v. Ward, 3 M.J. 365 (C.M.A. 1977); United States v. Morris, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975).
. United States v. Ward, supra.
. United States v. Morris, supra; United States v. Bryant, 23 U.S.C.M.A. 326, 49 C.M.R. 660 (1975).
. Without attempting to catalog the myriad possibilities, one reason might be the possibility of command influence in the selection of court members. However, a request for trial by judge alone, based on this reason, led to reversal of the conviction because improper standards were used in the selection of court members. United States v. Greene, 20 U.S.C. M.A. 232, 43 C.M.R. 72 (1970).