(concurring):
A treaty with the Republic of Korea requires American officials to cooperate in the enforcement of Korean customs laws. To fulfill these treaty obligations, military authorities have promulgated paragraph 17' of USFK Regulation 27-5, which prohibits disposition of duty-free goods “to any person not authorized duty-free import privileges” and provides enforcement mechanisms.
Even treaty obligations, however, cannot override the Constitution and the Bill of Rights. For this reason, the NATO Status of Forces Agreement did not create military jurisdiction to try civilian dependents and employees accompanying American forces overseas. Cf. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Likewise, the treaty with Korea does not displace the privilege against self-incrimination, which is protected both by the Fifth Amendment and by Article 31 of the Uniform Code of Military Justice, 10 U.S.C. § 831.*
The principal opinion makes clear that Lee’s prosecution for violating subparagraphs 176 (2) and (3) of USFK Regulation 27-5 contravened the Fifth Amendment and Article 31. Even though accountability is part of military life, appellant’s failure to “present valid and bona fide information or documentation” “[u]pon request of the unit commander, military law enforcement personnel, or responsible officer” cannot be punished as a separate offense under Article 92, UCMJ, 10 U.S.C. § 892. However, specification 3 of the Charge attempts to do this very thing.
The dissent refers to South Dakota v. Neville, 459 U.S. 553, 560, 103 S.Ct. 916, 920-21, 74 L.Ed.2d 748 (1983), a criminal trial for drunk driving in which the prosecution was allowed to comment on the defendant’s refusal to take a blood test. Ne-ville would be more in point if it had involved a prosecution for failing to take the blood test — a prosecution which, so far as I know, has not been authorized in any jurisdiction — or if the present case had involved solely a trial for wrongful disposition of duty-free goods and comment by trial counsel on the accused’s failure to explain satisfactorily what had become of those goods. More importantly, a blood test has no testimonial characteristics, see 459 U.S. at 559-61, 103 S.Ct. at 920-21; and there is no testimonial compulsion in violation of the Fifth Amendment when someone is forced to submit to a blood test.
On the other hand, subparagraphs 176 (2) and (3) required Lee to engage in conduct which would be the functional equivalent of testimony. To “present valid and bona fide information or documentation showing the continued possession or lawful disposition of” duty-free goods involves an exercise of mental faculties — an activity quite different from extending an arm for the drawing of blood or from blowing air into a breathalyzer. The act which Lee was asked to perform is like the identification of a suspect’s clothing, which has been repeatedly held to violate Article 31 of the Uniform Code of Military Justice. United States v. Williams, 10 U.S.C.M.A. 578, 28 C.M.R. 144 (1959); United States v. Bennett, 7 U.S.C.M.A. 97, 21 C.M.R. 223 (1956); United States v. Taylor, 5 U.S.C.M.A. 178, 17 C.M.R. 178 (1954).
Of special relevance here is United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), which held that the owner of several sole proprietorships could not be compelled to respond to a subpoena of his business records when, by doing so, he would attest to the existence of the records and their genuineness. Justice Powell’s majority opinion explains:
Although the contents of a document may not be privileged, the act of producing the document may be. Id., [425 U.S.] at 410 [96 S.Ct. at 1581]. A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect. As we noted in Fisher [v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)]:
*465“Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer’s belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125 [77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225] (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof.” Id., [425 U.S.] at 410 [96 S.Ct. at 1581].
465 U.S. at 612-13, 104 S.Ct. at 1242.
In the present case, the presentation of “valid and bona fide information or documentation” required by the regulation would have “testimonial aspects and an incriminating effect.” Moreover, a failure to present the “information or documentation” is given the testimonial aspect of constituting an implied admission by the accused that no such data exist; and, in turn, this admission is the sole basis for convicting him of violating the regulation.
A regulation may properly require that records be maintained of business transactions. Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). Such records are not protected by a Fifth Amendment privilege, see United States v. Doe, supra 465 U.S. at 612, 104 S.Ct. at 1242; and so they are subject to reasonable searches and seizures. However, to require that a servicemember “present valid and bona fide information or documentation” goes beyond mere record keeping and, under Doe, is impermissible.
Under the Fifth Amendment and Article 31 of the Uniform Code, subparagraphs 17 b (2) and (3) of USFK Regulation 27-5, as presently drafted, cannot be made the basis for trial by court-martial under Article 92 of the Uniform Code. Therefore, I concur fully with the principal opinion.
Contrary to the suggestion in the dissenting opinion, whether Korean officials could have required appellant to account under Korean law is not relevant to whether American officials may do so under United States law. Once American officials become actively involved in foreign officials’ activity, that activity must fully comply with the Constitution of the United States if the fruits thereof are to be admissible in an American court-martial. See United States v. Morrison, 12 M.J. 272 (C.M.A.1982); United States v. Armstrong, 9 M.J. 374 (C.M.A.1980); United States v. Schnell, 1 M.J. 94 (C.M.A.1975). See also Mil.R.Evid. 311(c), Manual for Courts-Martial, United States, 1969 (Revised edition).