(dissenting):
In United States v. Harris, 13 M.J. 288 (C.M.A.1982), the principal opinion concluded that the challenge for cause of a member should have been sustained. However, the member had been peremptorily challenged and did not serve on the court-martial. After asserting “that the right to peremptory challenge is an important codal right,” the opinion nonetheless affirmed the conviction, “because of the lack of any evidence in the record that appellant otherwise desired to exercise this right [of peremptory challenge].” Id. at 292. Because I was unclear as to the “evidence” which appellant should have provided of his wish to exercise his peremptory challenge “otherwise,” I speculated that “[p]erhaps the principal opinion *372... [was] subtly implying that a trial judge has the inherent authority to allow additional peremptory challenges.” Id. at 294 n. 3 (Everett, C.J., dissenting).
In the present case, the majority now repudiates any such implication and rules that the use of the term “entitled” in Article 41(b) of the Uniform Code of Military Justice, 10 U.S.C. § 841(b), indicated a congressional intent that no additional peremptory challenges could be allowed under any circumstances. I have some question that the limitation was intended to be so rigid. For example, I believe that the judge is free to allow additional peremptory challenges if the parties stipulate that he may do so; and there may be other situations where, in the exercise of his sound discretion and in order to assure a fair trial, the trial judge may allow additional peremptory challenges.
In this connection, I note that the American Bar Association’s Standards for Criminal Justice were amended in 1978 to include this paragraph:1
(c) Whenever there is a substantial likelihood that, due to pretrial publicity, the regularly allotted number of peremptory challenges is inadequate, the court shall permit additional challenges to the extent necessary for the impaneling of an impartial jury.
The addition is explained in this manner:
Paragraph (c) recommends permitting additional peremptory challenges whenever, due to pretrial publicity, the regular allotment of challenges is likely to be inadequate. This standard, like preceding ones, will no doubt lengthen some trials and will be subject to abuse. Nevertheless, in cases involving substantial pretrial publicity, the usual number of peremptories is frequently inadequate. A flat limitation on peremptories under such circumstances would seriously jeopardize the objective of voir dire — jury impartiality.22
However, even if an inflexible interpretation of Article 41(b) is adopted, I still conclude that appellant had the right to an additional peremptory challenge under the circumstances of this case. As I read the statutory language that “[e]ach accused and the trial counsel is entitled to one peremptory challenge,” this entitlement applies with respect to any person who sits as a member of the court-martial; accordingly, no person can sit on a court-martial who has never been exposed to peremptory challenge by the parties. Thus, if a peremptory challenge has been exercised and thereafter — because the number of members is below the statutory minimum or otherwise— new members are appointed, the peremptory challenge is revived with respect to those new members.
Of course, my construction of Article 41(b) is neither new nor unique. More than a quarter century ago, a highly regarded textbook on military law explained:
If the membership of the court is substantially changed by substitution of new members after the regular challenge procedure, each party is entitled to another peremptory challenge in regard to the new members. Article 41 which limits the peremptory challenges to one plainly contemplates an original panel. Cf. Article 29(a), UCMJ.
B. Feld, A Manual of Courts-Martial Practice and Appeal 66 (1957).
*373As the majority observes, a convening authority’s addition of new members to a court-martial does not create a new court-martial or commence a new trial. See generally McClaughry v. Deming, 186 U.S. 49, 63-66, 22 S.Ct. 786, 791-793, 46 L.Ed. 1049 (1902); Runkle v. United States, 122 U.S. 543, 556-57, 7 S.Ct. 1141, 1146-1147, 30 L.Ed. 1167 (1887). However, that proposition does not affect my premise that in Article 41(b), Congress intended for every member who sits on a court-martial to be subject to a peremptory challenge by each party. The only way to effectuate this legislative purpose is to hold that, if the convening authority exercises his statutory right to add members to a court-martial, his action confers upon each party the corresponding right to exercise one peremptory challenge as to the added members.
The legislative history of the Code, as amended in 1968, supports — rather than refutes — this interpretation. In enacting Article 37 of the Code, 10 U.S.C. § 837, in 1950, and in expanding this Article in 1968, Congress made clear its concern about command influence. By granting each accused a peremptory challenge under Article 41(b), Congress sought to provide added protection against such influence. The majority’s interpretation of Article 41(b) now dilutes that protection — a result which is inconsistent with the legislative goals.
The majority speaks of “the historical disfavor with which peremptory challenges have been viewed at courts-martial.” 17 M.J. 361, 365, 366. Certainly at one time such challenges were in disfavor; indeed, they simply were not authorized. However, that was prior to enactment of the Uniform Code. On the other hand, in drafting that Code, Congress rejected proposals that there be a prescribed number of peremptory challenges for “each side,” as is the case with Fed.R.Crim.P. 24(b), and, instead, enacted a more liberal provision whereunder peremptory challenges are guaranteed to “[e]ach accused.”2 See Article 41(b). At *374least in this respect, military justice has viewed the peremptory challenge with more — not less — favor than have the Federal courts.
The majority refers to an ancient text to explain the reason for the alleged “historical disfavor” for peremptory challenges in military law. This reason is that “the interests and circumstances of the military service will not at all times permit an equal facility of replacing a member, as exists in the case of a challenged juror in the civil courts.” W. DeHart, Observations on Military Law, and the Constitution and Practice of Courts-Martial 118 (1846). However, while military exigencies might explain why an accused should not be “entitled” to more than one peremptory challenge as a matter of course, it fails to justify denying an accused the meaningful exercise of the one peremptory challenge which Congress chose to grant him.
In summary, I conclude that, under Article 41(b), when the constitution of a court-martial is changed by the convening authority’s addition of new members to the original panel, all parties are “entitled” to exercise a peremptory challenge as to the added members. The plain language of the statute is consistent with this construction; the legislative history does not suggest a different congressional intent; and, as even the majority concedes, this construction makes sense “in terms of equity and common sense.” 17 M.J. at 365. That, after all, is what the law is all about.
Although the Federal Rules of Criminal Procedure have limited the number of peremptory challenges for years, some courts have found it necessary to ignore that limit in cases tried in an atmosphere of highly prejudicial publicity. See, e.g., United States v. Bonanno, 177 F.Supp. 106, 123 (S.D.N.Y.1959), revd. on other grounds subnom. United States v. Bufalino, 285 F.2d 408 (2d Cir.1960); People v. Speck, 41 Ill.2d 177, 213, 242 N.E.2d 208, 227 (1968). Adherence to such a procedure may well be constitutionally required. Cf. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971).
. See ABA, Standards Fair Trial and Free Press § 8-3.5 — Selecting the jury (2nd Ed.1978) (footnote omitted). Except for the addition of this paragraph, the present Standard, which was approved by the American Bar Association’s House of Delegates on August 9, 1978, substantially conforms to the original Standard 3.4.
. The original draft of Article 41(b), provided:
The accused and trial counsel shall each be entitled to one peremptory challenge.
Proposed Article 41(b), Hearings on H.R. 2498 before a Subcommittee of the House Armed Services Committee, 81st Cong., 1st Sess. 576 (1949), reprinted in Index and Legislative History of the Uniform Code of Military Justice. It was suggested by Colonel John P. Oliver, Legislative Counsel of the Reserve Officers Association, who in commenting on this language, stated that “[t]he word accused is both singular and plural,” and, accordingly, if read in the former number only one peremptory challenge could be exercised by the defense side of the aisle even if there were several accused being tried jointly. Id. at 756. This concern was echoed by Mr. Robert D, L’Heureux, Chief Counsel of the Senate Banking and Currency Committee, who noted that then-current law permitted “only one peremptory challenge ... for all the accused together” in a court-martial. He suggested that, if this was what the draftsmen intended, existing language should be retained; but if the draftsmen intended to allow each accused in a trial a peremptory challenge, the provision should read “each accused.” Id. at 821. After Representative Elston had suggested an amendment which would give each accused his own challenge, Mr. Felix Larkin, the Executive Secretary of the drafting committee, stated that it had been the original intent of the draftsmen simply to adopt the Army practice at the time — which he submitted was consistent with the “more common civilian practice” — and to allow each side one peremptory challenge. However, he did concur in Mr. L’Heureux’ suggestion that clarifying language was needed, whichever practice the committee adopted. Id. at 1026.
Representatives of the various services opposed any change in the intent of the draftsmen to restrict the defense side to one peremptory challenge. Captain Woods of the Navy argued that increasing the number of peremptory challenges by affording one to each accused would exacerbate a problem already perceived in having enough officers available to compose a court. Id. at 1027. Colonel Dinsmore of the Army, opining that to provide each accused his own peremptory challenge would be counterproductive, agreed that the real problem was “having members available for the court.” Major Alyea of the Air Force concurred that the Army position was a sound one, although his Service already provided each accused in a common trial a peremptory challenge. Id. at 1028.
Nonetheless, Representative Elston proposed an amendment resulting in language substantially like that which appears today. His amendment was received without objection, id. at 1029, and the Report of the full Committee explained that the new provision would authorize “one peremptory challenge by the trial counsel and one peremptory challenge for each accused.” H.R.Rep. No. 491, 81st Cong., 1st *374Sess. 22 (1949), reprinted in Index and Legislative History of the Uniform Code of Military Justice (emphasis added). Despite similar resistance to the change in the testimony during the Senate hearings, see Hearings on S. 857 and H.R. 4080 before a' Subcommittee of the Senate Armed Services Committee, 81st Cong., 1st Sess. 36, 111, and 150 (1949), reprinted in Index and Legislative History of the Uniform Code of Military Justice, the Senate apparently accepted the Elston Amendment, because the Senate Report explained Article 41(b) as “authoriz[ing] one peremptory challenge by the trial counsel and one peremptory challenge for each accused. S.Rep. 486, 81st Cong., 1st Sess. 18 (1949), reprinted in Index and Legislative History of the Uniform Code of Military Justice.