(concurring in part/dissenting in part):
I concur with the majority on their resolution of all issues except those discussed in section’s three and eight of the majority opinion. I dissent from their resolution of the assignment of error relating to the Presidential authority to promulgate Rule for Court-Martial (R.C.M.) 1004, Manual for Courts-Martial (MCM), 1984, because I have concluded that, until Congress acts in an affirmative manner, the Article 118, Uniform Code of Military Justice (UCMJ), provision authorizing the imposition of the death penalty is constitutionally invalid as a result of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Even if I am incorrect in that conclusion, I further conclude that the delegation of authority by the Congress to the President to promulgate R.C.M. 1004(c) was absolutely impermissible and as presently set forth in Article 36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836, does not include sufficient standards to guide the President, in accordance with the principles set forth in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), to promulgate R.C.M. 1004(c).
R.C.M. 1004 enunciates the only procedures and aggravating factors within the military justice system (except for Article 106a, UCMJ) for determining the appropriateness of the imposition of the death penalty. R.C.M. 1004 was promulgated in light of the suggestion of the United States Court of Military Appeals decision in United States v. Matthews, 16 M.J. 354 (C.M.A.1983) which in turn was based upon the United States Supreme Court decision in Furman v. Georgia. Thus, I do not contest the finding of my Brothers in the majority that the procedures set forth in R.C.M. 1004(a), (b), (d) and (e) meet the requirements the Supreme Court mandated before imposition of the death penalty could be considered constitutional. I believe, however, that the only Governmental authority that can identify, at least as they relate to aggravating factors, (i.e., R.C.M. 1004(c)) and effectuate the standards for imposition of the death penalty in accordance with the Supreme Court’s mandate within the military justice system, as it is presently established, is the United States Congress. While Congress might be able to delegate the Furman mandate, it can only do so after meeting certain criteria, United States v. Mistretta, — U.S.-, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) citing American Power and Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946),1 which, at this point in time, it has not met. Accordingly, I find that the impo*1097sition of the death penalty upon a military accused convicted within the military justice system is unconstitutional under the principles announced in Furman v. Georgia, (hereinafter Furman) and United States v. Mistretta. I shall explain in more detail below. With regard to the eighth assignment of error, the appropriateness of the imposition of the death penalty in appellant’s case, I dissent only because I cannot reach a consideration of that issue since I am not convinced that the death penalty is a valid punishment or that the guidelines set forth in R.C.M. 1004(c) are authorized and appropriate guidelines.
I.
Furman v. Georgia
Furman declared that existing state capital punishment statutes violated the Eighth Amendment because they permitted exercise of uncontrolled discretion by sentencing authorities in determining whether to impose capital punishment in any specific case. United States v. Matthews, 16 M.J. at 369. Subsequently in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. at 2920, 49 L.Ed.2d at 859 (1976) (hereinafter Gregg), the Supreme Court examined the new (post-Furman) Georgia statute which retained the death penalty for six categories of crime. In addition to the six categories of crime for which the legislature retained the death penalty, the Georgia legislature also adopted new trial procedures and capital sentencing guidelines that it mandated be followed before imposition of the death penalty upon one convicted of a capital offense was authorized. For example, the Georgia statute established a bifurcated trial, including a separate sentencing stage wherein evidence in aggravation, extenuation, and mitigation of the crime was presented. Additionally, the judge was required to instruct the jury as to any of 10 statutory aggravating circumstances that were supported by the evidence and that it, the jury, must find, and specify, at least one of the ten aggravating circumstances beyond a reasonable doubt before they could adjudge the death penalty. Finally, the new statute required expedited and automatic direct review by the state supreme court.
The Supreme Court upheld the new Georgia statute as passing constitutional muster because the jury’s attention had been focused “on the particularized nature of the crime and the particularized characteristics of the individual defendant.” Gregg, 428 U.S. at 206, 96 S.Ct. at 2940, 49 L.Ed.2d at 893. In particular the Court was impressed with the channeling of the jury’s discretion such that the jury could not impose the death sentence in a wanton and freakish manner. The Supreme Court arrived at the same conclusion with regard to Florida’s reenacted statute. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, reh’g den. 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).
II.
Impact Of Furman On Article 118, UCMJ
What, then, is the status of Article 118, UCMJ? In 1950 Congress enacted Article 118, Uniform Code of Military Justice, 10 U.S.C. § 118. That article defines the offense of murder within the military community. Within that statute Congress identified four specific types of murder of which two, premeditated murder [Article 118(1) ] and murder committed during the commission of certain felonies [Article 118(4)], were designated capital offenses. The other two types of murder, death as a result of an act done with the intent to kill or inflict great bodily harm [Article 118(2)] and death resulting from an act inherently dangerous to others [Article 118(3)], were designated as offenses punishable “as a court-martial may direct.”2 See R.C.M. *10981003(b). Offenses punishable “as a court-martial may direct” have generally been understood to carry any punishment exclusive of death, see, e.g., para. 127(c), (Article 118) MCM, 1969; para. 43(e), Part IV, MCM, 1984, and exclusive of those punishments deemed cruel and unusual under Article 55, UCMJ. Article 118 has not been amended since the enactment of the UCMJ. Thus, Article 118 is a pr e-Furman statute.3
The next step is to determine what impact the Supreme Court’s decisions in Fur-man and Gregg have on pr e-Furman statutes, such as Article 118, in which the death penalty is authorized but fails to set forth Furman-Gregg type guidelines.4 In other words, what is the status of Article 118 in view of Furman?
I believe the concurring and dissenting opinions in Furman clarify its impact on Article 118’s status.5 First, let us look at the concurring opinions that provide the narrowest grounds for the majority’s opinion. Justice Stewart concurred in reversing Furman’s sentence to death because he believed that “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Furman, 408 U.S. at 310, 92 S.Ct. at 2763, 33 L.Ed.2d at 390. Justice White, also concurring, stated:
... [A]s the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.
In this respect, I add only that past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime. Legislative “policy” is thus necessarily defined not by what is legislatively authorized but by what juries and judges do in exercising the discretion so regularly conferred upon them. In my judgment what was done in these cases violated the Eighth Amendment.
408 U.S. at 313-314, 92 S.Ct. at 2764, 33 L.Ed.2d at 392-393.
*1099Now let us turn to the dissenters. Chief Justice Burger stated in his dissent:
The actual scope of the Court’s ruling, which I take to be embodied in these concurring opinions, is not entirely clear. This much, however, seems clear: if the legislatures are to continue to authorize capital punishment for some crimes, juries and judges can no longer be permitted to make the sentencing determination in the same manner they have in the past.
408 U.S. at 397, 92 S.Ct. at 2807, 33 L.Ed.2d at 440.
The Chief Justice went on to say:
While I would not undertake to make a definitive statement as to the parameters of the Court’s ruling, it is clear that if state legislatures and the Congress wish to maintain the availability of capital punishment, significant statutory changes will have to be made____ (Emphasis added.) [Ljegislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed.
408 U.S. at 400, 92 S.Ct. at 2809, 33 L.Ed.2d at 442. Finally, the Chief Justice stated:
Since there is no majority of the Court on the ultimate issue presented in these cases, the future of capital punishment in this country has been left in an uncertain limbo. Rather than providing a final and unambiguous answer on the basic constitutional question, the collective impact of the majority’s ruling is to demand an undetermined measure of change from the various state legislatures and the Congress. (Emphasis added.) While I cannot endorse the process of decision making that has yielded today’s result and the restraints that result imposes on legislative action, I am not altogether displeased that legislative bodies have been given the opportunity, and indeed unavoidable responsibility, to make a thorough re-evaluation of the entire subject of capital punishment. If today’s opinions demonstrate nothing else, they starkly show that this is an area where legislatures can act far more effectively than courts.
408 U.S. at 403, 92 S.Ct. at 2811, 33 L.Ed.2d at 444. Also dissenting was Justice Powell who wrote:
Because of the pervasiveness of the constitutional ruling sought by petitioners, and accepted in varying degrees by five members of the Court, today’s departure from established precedent invalidates a staggering number of state and federal laws. (Emphasis added.) The capital punishment laws of no less than 39 States (footnote omitted) and the District of Columbia are nullified. In addition, numerous provisions of the Criminal Code of the United States and of the Uniform Code of Military Justice also are voided. (Emphasis added.) The Court’s judgment not only wipes out laws presently in existence, but denies to Congress and to the legislatures of the 50 States the power to adopt new policies contrary to the policy selected by the Court____
[T]he impact of the majority’s ruling is all the greater because the decision encroaches upon an area squarely within the historic prerogative of the legislative branch — both state and federal — to protect the citizenry through the designation of penalties for prohibitable conduct. It is the very sort of judgment that the legislative branch is competent to make and for which the judiciary is ill-equipped.
408 U.S. at 462-463, 92 S.Ct. at 2840, 33 L.Ed.2d at 418.
Justice Blackmun, dissenting, found:
Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided. No longer is capital punishment possible for [various federal crimes listed in Title 18 U.S.Code]. Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice. 10 *1100use §§ 885, 890, 894, 899, 901, 904, 906, 913, 918, and 920. (Emphasis added.) All these seem now to be discarded without a passing reference to the reasons, or the circumstances, that prompted their enactment, some very recent, and their retention in the face of efforts to repeal
them.
408 U.S. at 412, 92 S.Ct. at 2815, 33 L.Ed.2d at 449.
From these dissents, it would appear that at least four justices of the Supreme Court believed that Furman declared all state and federal statutes, including the UCMJ, null and’void if they authorized the imposition of the death penalty but did not meet the standards identified by Furman.6 The Ninth Circuit Court of Appeals was compelled to reach the same conclusion in United States v. Harper, 729 F.2d 1216 (9th Cir.1984). In fact, it based its conclusion on the position not only of petitioner, but also of the Government, whose brief on this issue in the district court stated that Title 18 U.S.C. § 794’s death penalty provision is:
... unenforceable and void because it sets forth no legislated guidelines to control the fact-finder’s discretion. (Emphasis added.) The Department of Justice has long been of the view that Furman rendered section 794’s death penalty provision unconstitutional. See Imposition of Capital Punishment: Hearings on S. 1, S. 1400, and S. 1401 Before the Sub-comm. on Criminal Laws and Procedures of the Comm, of the Judiciary, 93d Cong., 1st Sess. 43 (1973) (statement of Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Department of Justice); To Establish Constitutional Procedures for the Imposition of Capital Punishment: Hearings on S. 1382 Before the Subcomm. on Criminal Laws and Procedures of the Comm, on the Judiciary, 95th Cong., 1st Sess. 22 (1977) (statement of Mary Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice); Capital Punishment: Hearings on S. 114 Before the Comm, of the Judiciary, 97th Cong., 1st Sess. 22 (1981) (statement of D. Lowell Jensen, Assistant Attorney General, Criminal Division, Department of Justice). Moreover, the Senate has recently passed a bill, supported by the Justice Department, that would authorize the imposition of the death penalty for certain crimes, including espionage. S. 1765, 98th Cong., 2d Sess., 130 Cong.Rec.S. 1491-93.
In light of the above, we believe it clear that the death penalty provision of the espionage statutes is unconstitutional. It cannot be saved by judicial formulation of the missing, but essential, statutory guidelines.
729 F.2d at 1225-6. See McKenzie v. Risley, 801 F.2d 1519 (9th Cir.1986), cert. denied — U.S. -, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).
Additionally, the decisions of the federal circuit courts, e.g., United States v. Watson, 496 F.2d 1125, 1129 (4th Cir.1973) and United States v. McNally, 485 F.2d 398 (8th Cir.1973) (en banc), reflect the two differing rationales state and federal courts have utilized for analyzing the continuing constitutional validity of statutes related to the imposition of the death penalty in light of Furman.7 Watson sides with the classification rationale while McNally reflects the penalty rationale.8
*1101These judicial decisions shed some light on how we might interpret the status of Article 118 as a whole, or the status of its provision authorizing imposition of the death penalty in particular. The courts that follow the classification rationale hold that the statutes identifying offenses as “capital offenses” established a category of offenses that because of their gravity remained classified as “capital offenses.” That being so, all statutes that interrelated to a “capital offense” statute remained operative if a capital offense was involved. The courts using the penalty rationale declare that since capital punishment provisions were no longer constitutional unless they met current schemes offered by the judiciary, the “capital offense” no longer existed. Thus, any legislation that was triggered by the possibility of imposition of the death penalty was not operative until that penalty was again constitutionally imposable. Hence, while the death penalty may be authorized by the legislature, its imposition is constitutionally prohibited; the authorization provision is invalid.
I can accept the penalty rationale more readily than I can the classification rationale because of the concept of severability. It is well-established that a statute may be constitutional in part and unconstitutional in another; and, as long as the unconstitutional provision is severable from the rest of the statute, the constitutional provision will stand with its unconstitutional aspect rejected. United. States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). But regardless of which rationale one accepts, I believe little argument remains with the fact that Furman, at the very least, declared all provisions of statutes authorizing imposition9 of capital punishment existing at the time of the decision ineffectual. Gregg v. Georgia, 428 U.S. at 153, 96 S.Ct. at 2920; Watson, 496 F.2d 1125; In re Ex Parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975).
All of this precedent tells me that the federal and state courts have exercised caution when called upon to interpret the impact of Furman on a statutory authori*1102zation for imposition of the death penalty. Where legislatures have not specifically and affirmatively indicated their intent since Furman to authorize imposition of the death penalty by reenacting, reinstating, modifying, or, in some other permissible way, validating the authorization provision in question, these courts have also exercised caution when they have had to determine the applicability of statutes that grant or deny a defendant a procedural right that is dependent upon him facing the possibility of the imposition of the death penalty. In light of this exercise of caution, I believe this Court should also exercise caution in interpreting legislative inaction or implicit ratification of the U.S. Congress when determining whether Article 118’s authorization for the imposition of death remains valid since the decision in Furman. Although appellate courts act on the presumption of constitutionality of statutory provisions, because the case law since Furman has not made it unmistakably clear to me that Article 118’s death penalty authorization provision is constitutional, I cannot find that it is constitutional. See United States v. Watson, 496 F.2d 1125, 1129 (4th Cir.1973). If it is not a constitutionally valid provision because Congress has not affirmatively demonstrated its reinstatement of that penalty provision, let alone given the guidelines required by Furman-Gregg, then the imposition of the death penalty within the military justice system is unconstitutional.
III.
Presidential Effectuation Of An Invalid Statutory Provision
Let us presume, however, that Article 118’s provision authorizing the death penalty is not void but merely ineffectual. How can it be effectuated? In this particular case, can the President pursuant to Article 36, UCMJ, effectuate, i.e., make constitutionally permissible, Article 118’s authorization for imposition of the death penalty, by promulgating R.C.M. 1004?
In United States v. Matthews, 16 M.J. at 354, the Court of Military Appeals held that the sentencing standards then existing under the UCMJ were defective because they failed “to require that the court members make specific findings as to individualized aggravating circumstances — findings which can, in turn, be reviewed factually and legally.” Id., at 380. In dicta the Court then indicated how the defective sentencing standards could be corrected:
Congress can take action to remedy this defect that now exists in the sentencing procedure, employed by courts-martial in capital cases. However, corrective action also can be taken by the President in the exercise of his responsibilities as commander-in-chief under Article II, Section 2, and of powers expressly delegated to him by Congress. See Article 36, UCMJ, 10 U.S.C. § 836.
The Court further expounded on its theory that the President could take the corrective action needed:
The congressional delegation of powers to the President has traditionally been quite broad in the field of military justice. Pursuant to Article 36 of the Uniform Code, the President promulgates rules to govern pretrial, trial, and post-trial procedures of courts-martial. Unlike other Federal criminal statutes, the punitive articles of the Uniform Code for the most part authorize punishment “as a court-martial may direct”; no maximum or minimum sentence is specified. (Footnote omitted.) However, as contemplated by Article 56, of the Uniform Code, 10 U.S.C. § 856, the President prescribes maximum punishments for the various offenses. (Citation omitted.) The great breadth of the delegation of power to the President by Congress with respect to court-martial procedures and sentences grants him the authority to remedy the present defect in the court-martial sentencing procedure for capital cases. Cf. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Indeed, a proposed revision10 of the Manual for Courts-Mar*1103tial, which [is] ... R.C.M. 1004 ... prescribes special procedures for sentencing in capital cases.
Matthews, 16 M.J. at 380-381. (Footnote added).
The President heeded the Matthews dicta and promulgated R.C.M. 1004. Despite our supervisory court’s dicta in Matthews, and its apparent anticipatory sanction of the President’s action, I believe there is a separation of powers issue that the Court of Military Appeals may not have considered at the time. Additionally, I believe significant case law addressing the separation of powers issue has been decided since Matthews, see Mistretta v. United States, — U.S.-, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); United States v. Harper, 729 F.2d 1216 (9th Cir.1984), that impacts upon the continued validity of the dicta such that it may reexamine Matthews. See United States v. Carter, 25 M.J. 471, 473 (C.M.A.1988).
Elementary civics teaches us that:
... the executive department, like the judicial, must yield in most matters to the creative power of the legislature (footnote omitted); the legislature makes laws and the executive enforces them when made, and each department is, in the main, supreme within its own field of action (footnote omitted). The executive cannot discharge the functions of the legislature in any manner by so acting in his official capacity that his conduct is tantamount to a repeal ( ... Henry v. State, 10 Okla.Crim. 369, 136 P. 982), enactment (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 ...;), variance, or enlargement (Whitcomb Hotel, Inc. v. California Employment Com., 24 Cal.2d 753, 151 P.2d 233, 155 A.L.R. 405; Boone v. Kingsbury, 206 Cal. 148, 273 P. 797, cert. den. and app dismd 280 U.S. 517, 50 S.Ct. 66, 74 L.Ed. 587, and cert. den. and app dismd 280 U.S. 517, 50 S.Ct. 66, 74 L.Ed. 588). Thus, the President of the United States has no authority, even under the clause requiring him to see that the laws are faithfully executed, to suspend of his own motion the operation of acts of Congress (Kendal v. United States, 37 U.S. 524, 9 L.Ed. 1181).
16 Am.Jur.2d sec. 305 at 821-822.
Just as the President cannot legislate, neither can the courts by judicial construction. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). As the majority notes in its equal protection discussion: “In Gregg the Supreme Court reasoned that because of the complex issues involved in determining the moral values of society and the social utility of the death penalty, it is particularly within the province of the legislature to establish the degree of punishment for certain classes of crime.” This, for me includes, factors that differentiate capital murder from non-capital murder.
Whether an unconstitutional provision of a death penalty statute can be subsequently effectuated with corrective action has been answered affirmatively by Gregg v. Georgia, 428 U.S. at 206, 96 S.Ct. at 2940, and Profitt v. Florida, 428 U.S. at 242, 96 S.Ct. at 2960, when the Supreme Court approved new statutes enacted by the state legislatures subsequent to Furman. The new legislation reaffirmed the legislative policy of the appropriateness of the imposition of the death penalty as to certain categories of crime and channeled the decision-making for imposition of the death penalty by establishing certain specified aggravating factors and several procedural safeguards. Positive action to establish or reaffirm policy and to establish standards for channelling decision-making in an attempt to make law as to crime and punishment in compliance with the Constitution is beyond question the sole province of the legislature. United States v. Wiltberger, 18 U.S. 76, 5 Wheat. 76 (1820). As with many of Chief Justice Marshall’s opinions, the principle he enunciated about the power to legislate being within the sole province of the legislature has remained good law through the years. Whalen v. United *1104States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1954); United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); Howell v. Mississippi, 300 So.2d 774 (1974).
My Brothers give four reasons for their belief that the President can validate the ineffectual provisions of Article 118. First, they rely on the Congressional enactment, unchanged since 1951, of Article 36, UCMJ, which they believe delegates to the President that authority:
(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, ... may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.11
Second, they rely on what they consider the expression of congressional intent with regard to the President’s authority to set punishments, including the death penalty, as explicitly set forth in Article 56, UCMJ: “The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.” 12 The third reason is what they believe is recognition of the authority of the President to do so by the Court of Military Appeals in their decision in Matthews, 16 M.J. at 354; the President’s implementation of that advice; and the Congressional ratification, albeit sub silentio, of the provision in question.13 Finally, the majority believes that the President has been properly delegated broad authority to effectuate Article 118’s death penalty provision because the President’s authority as Commander-in-Chief of the Armed Forces is based upon a long-standing special relationship with the Congress, an historical relationship so unique from any other, that he alone has the expertise to determine what is necessary to maintain morale and discipline within the military. This special relationship, they conclude, enables the President to meet the Furman mandate better than any other mechanism.
I do not accept those reasons because of two long standing principles: (1) Congress cannot delegate its legislative power to the President (the nondelegation principle); Marshall Field and Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892);14 and (2) penal rules must be strictly construed.15
*1105In United States v. United Verde Copper Co., 196 U.S. 207, 25 S.Ct. 222, 49 L.Ed. 449 (1905), the Supreme Court applied the nondelegation principle to the executive branch. In United Verde the Secretary of the Interior had established regulations under the supposed authority of Congress to implement an act of Congress, In doing so, he tried to give “an authoritative and final construction of the statute” and in doing that the Court said:
If rule 7 is valid, the Secretary of the Interior has power to abridge or enlarge the statute at will. If he can define one term, he can another. If he can abridge, he can enlarge. Such power is not regulation: it is legislation. The power of legislation was certainly not intended to be conferred upon the Secretary.
196 U.S. at 212, 25 S.Ct. at 225.16
In Reid v. Covert, 354 U.S. 1, 38-39, 77 S.Ct. 1222, 1241-42, 1 L.Ed.2d 1148, 1172 (1957), the President’s authority to act in his capacity as Commander-in-Chief with regard to the administration of military justice specifically was addressed:
It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law — law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms. It emphasizes the iron hand of discipline more than it does the even scales of justice. Moreover, it has not yet been definitely established to what extent the President, as Commander-in-Chief of the armed forces, or his delegates, can promulgate, supplement or change substantive military law as well as the procedures of military courts in time of peace, or in time of war____ If the President can provide rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one.branch of Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers.
In summary, “it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.” In part this is attributable to the inherent differences in values and attitudes that separate the military establishment from civilian society. In the military, by necessity, emphasis *1106must be placed on the security and order of the group rather than on the value and integrity of the individual. (Footnotes omitted). The President’s authority as head of the executive branch and as Commander-in-Chief is, therefore, not unfettered authority.
See also Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 671, 100 S.Ct. 2844, 2878, 65 L.Ed.2d 1010, 1052 (1980); Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 543, 101 S.Ct. 2478, 2507, 69 L.Ed.2d 185, 222 (1981).
Using these principles to analyze the authority of the President by virtue of Article 36 to promulgate R.C.M. 1004, we must address two issues. First, anticipating that the Supreme Court’s recognition that there are “inherent differences in values and attitudes [which] exist that separate the military establishment from the civilian society” might be considered a means by which the President could be “inferred” to understand “the intent” of Congress and thus allow him, under the rubric of his special relationship with Congress, to effectuate Furman-Gregg criteria for the imposition of the death penalty, let us examine Article 118 to see if there are inherent differences that would separate the former from the latter. In other words, do inherent differences in values and attitudes exist that separate the military from the civilian community such that imposition of the death penalty in the former and not the latter is constitutionally permissible? I have no doubt that they do. But, I do doubt, that the differences, at least during peacetime, are so inherent that Congress need not itself establish Furman-Gregg criteria.17
I am not at all certain that murder, at least the two types of murder that concern us in appellant’s case,18 or even the particular circumstances surrounding the commission of that offense by this particular appellant as alleged, including the aggravating factors plead and found in the charge and specifications, identify any values or attitudes so different as to separate the military establishment from the civilian society. In fact, I believe the Court of Military Appeals has already addressed this issue.
In United States v. Matthews, 16 M.J. at 354, the Court recognized that circumstances might exist which would permit rules governing capital punishment to be different from those applicable to civilians. But, in Matthews’ situation, the murder and rape of a civilian dependent, offenses which the court was unable to relate to military exigencies, the Court found:
[N]o reason why Matthews should be executed for his [crimes] if the sentencing procedures used by the court-martial failed to meet the standards established by the Supreme Court for sentencing in capital cases in civilian courts. There is no military necessity for such a distinction; and we do not believe that applying lower standards in this case would conform to the intent of Article 55 or of the Eighth Amendment.
Matthews, 16 M.J. at 369.19 The only difference between Matthews and appellant is that the President has since promulgated R.C.M. 1004. Otherwise, the offense of murder is the same.20 Thus, I do not be*1107lieve that sufficient differentiating values and attitudes have been adequately identified, let alone identified as inherent, to permit the death penalty to be effectuated by the President rather than by the Congress.
IV.
Is There A Proper Delegation?
Even if, based on the facts of this particular case, those differentiating values and attitudes are identified adequately and are inherent to the military, the process by which that identification is validated must be by a proper delegation.21 There is nothing in the congressional delegation in Article 36, UCMJ, that can be pointed to that would demonstrate that the identification of the differentiating values and attitudes was proper. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); O’Neal v. United States, 140 F.2d 908 (6th Cir.1944).
It may well be true that the standards set forth in R.C.M. 1004 meet the guidelines set forth in Gregg v. Georgia, 428 U.S. at 153, 96 S.Ct. at 2909, e.g., aggravating factors and procedural safeguards are present; and, it would appear that the concerns of the Court of Military Appeals have been eliminated. But, the President’s arbitrary promulgation of such rules without guidance from the legislature that results in the effectuation of an otherwise unconstitutional statutory provision is not a proper application of the delegation process. See The Aurora v. United States, 11 U.S. 382, 7 Cranch 382, 3 L.Ed. 378 (1813). In the numerous cases cited by the Supreme Court since Aurora, those that upheld a
statutory delegation on grounds that the acts complained of were not a result of improper delegation, were based on statutes that had provided specific guidelines upon which the President was to base his action and which prevented the executive from taking what the courts considered arbitrary action; and, most importantly, the President or a member of the executive branch took his action in accordance with those statutory guidelines. See, e.g., Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523 (1907); Marshall Field and Co. v. Clark, 143 U.S. at 649, 12 S.Ct. at 495; United States v. Gordon, 580 F.2d 827 (5th Cir.1978); United States v. Pastor, 557 F.2d 930 (2d Cir. 1977). See also Annotation, “Validity of Statute or Ordinance Vesting Discretion in Public Officials without Prescribing a Rule of Action,” 92 A.L.R. 400; Annotation, “Validity of Delegation to Drug Enforcement Administration of Authority to Schedule or Reschedule Drugs Subject to Controlled Substances Act (21 U.S.C. §§ 801 et seq.),” 47 A.L.R.Fed. 869.
In Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), the Supreme Court established a three-stepped analysis to determine whether the President’s authority, exercised in light of a congressional delegation, was too broad: *1108293 U.S. at 415, 55 S.Ct. at 246, 79 L.Ed. at 456. The Supreme Court recently breathed new life into Panama in the realm of criminal punishments. Mistretta v. United States, — U.S.-, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Using Panama’s three-stepped analysis as recently applied by Mistretta, I find Articles 36, 56, and 118 itself so deficient that reliance on an Article 36 delegation as a proper congressional delegation to the President for effectuating guidelines that would authorize the imposition of the death penalty within the military justice system is misplaced and improper. This is particularly so when such a delegation relates to the imposition of the supreme and ultimate penalty.22
*1107... we look to the statute to see whether the Congress has declared a policy with respect to that subject, whether the Congress has set up a standard for the President’s action, whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.
*1108First, I do not believe that Congress has set a policy with regard to the imposition of the death penalty for Article 118 since Fur-man. In fact, the only offenses for which the Congress has been able to obtain a consensus for imposition of the death penalty in appropriate circumstances have been in connection with air piracy [49 U.S. C.A. §§ 1472(i)(l)(B), 1472(n)(l)(B) ] and espionage by military personnel [Article 106a, UCMJ, 10 U.S.C. § 906a]. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988); see also Thompson v. Oklahoma, —- U.S.-, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (O’Connor, J., concurring in judgment). My failure to presume that Congress has set a general death penalty policy is also based on recognition of the public controversy surrounding capital punishment, at least as to some offenses, and the reluctance of the federal courts and the United States Sentencing Commission to presume the will of Congress in light of possible adverse congressional reaction. See Gubiensio-Ortiz, 857 F.2d at 1256.
Second, I do not believe that we can presume, as the majority would have us, that because of a presidential reporting requirement, the Congress has given tacit approval or has ratified the presidential promulgation of R.C.M. 1004. The Supreme Court has clearly stated that when “substantial restraints are being placed on constitutional procedures” and they are “in conflict with our long-accepted notions of fair procedures, such action must be based upon explicit, not implicit, authority. Such decisions cannot be assumed by acquiescence or non-action.” Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377, 1396-97 (1959). The Greene Court further enunciated the significance of explicit action on the part of Congress:
They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized (citation omitted), but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with the authority to decide them.
Id. at 507, 79 S.Ct. at 1419, 3 L.Ed.2d at 1397.
In Greene v. McElroy, the petitioner’s work opportunities were being severely limited by the Department of Defense without affording him a hearing that comported with “our traditional ideas of fair procedures.” In appellant’s case, he is being subjected to the imposition of the death penalty without being afforded the constitutional assurance that imposition of such an extreme penalty is a current policy adopted by the branch of government established to determine such policy.
Thus, I conclude that Congress has not set a policy with regard to imposition of capital punishment in the military justice system since Furman. I further conclude, upon examination of Article 36, that no standards were set by the Congress with regard to what factors the President should apply in determining when the imposition of the death penalty would be autho*1109rized. As to the third step in a Panama analysis, I could conclude that the Presidential finding requirement has been met, since only the President can order the punishment of death executed. R.C.M. 1207; see Article 71(a), UCMJ. Therefore, having failed to meet two of the three steps required by Panama, I find that the President’s authorization of imposition of capital punishment pursuant to findings made in accordance with R.C.M. 1004 is based upon an unconstitutional delegation of authority.
V.
Limitation Of Article 36, UCMJ
Throwing caution to the winds, however, let’s do some further analysis by assuming that Congress did establish a death penalty policy, at least with respect to Article 118, and did intend to delegate to the President under Article 36, UCMJ, the ability to correct provisions of the UCMJ held ineffectual until the Furman mandate was complied with. The congressional delegation must still be examined because it must be capable of proper application by the President. In order to ensure that proper application, the delegation must establish certain standards for the President to follow when he acts pursuant to the delegation.23
I find that the standards enunciated by Congress are either non-existent or very restrictive. When one examines the judicial opinions addressing delegation after Panama, and in particular when one examines the delegation by Congress to the Sentencing Commission, as described at great length in Mistretta, one finds the standards enunciated by the Congress must be specific and detailed.24
Looking at Article 36, however, I fail to find such specific and detailed standards. I do find that the matters which Congress delegated to the President are very general and involve matters of procedure, not matters involving substantive law.25 Ellis v. Jacob, 26 M.J. 90 (C.M.A.1988); United States v. Frederick, 3 M.J. 230 (C.M.A.1977). This fact provides another ground for my conclusion that R.C.M. 1004 is an improper basis upon which to authorize imposition of the death penalty.
The aggravating factors set forth in R.C.M. 1004(c) are matters of substantive law and not procedure. Two Supreme Court opinions serve as the judicial authority for this eonclusionary statement. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) and California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).
In Bullington the Supreme Court referred to the Missouri statute that enacted death penalty legislation after the Furman decision as containing “substantive standards to guide the discretion of the sentenced’ and affording “procedural safeguards to the convicted defendant.” 451 U.S. at 433, 101 S.Ct. at 1853, 68 L.Ed.2d at 275.26 The statute that the Bullington *1110court examined had two separate provisions. One addressed purely procedural issues, such as the requirement for a bifurcated trial, the jury’s requirement to hear additional evidence in extenuation, mitigation, and aggravation. Additionally, this provision provided the judge with guidelines as to what he was to instruct the jury and his role in the proceedings after jury had made its decision. The second provision of the statute dealt with the legislature’s specification of 10 aggravating and 7 mitigating circumstances which the jury had to find in writing and be convinced beyond a reasonable doubt that “any aggravating circumstance or circumstances that it finds to exist are sufficient to warrant imposition of the death penalty.” Bullington, 451 U.S. at 434, 101 S.Ct. at 1853, 68 L.Ed.2d at 276. After careful analysis of Bullington, I believe the Court’s “procedure” label — as interpreted by appellate Government counsel in their argument before this court — was meant to apply to the change in procedure caused by the new legislation, i.e., the new state statute gave the jury rather than the judge the responsibility for determining the presence of the statutorily created aggravating factors. The Court’s “procedure” label had nothing to do with the establishment of the aggravating factors themselves. I base this conclusion on the fact that the Court expounded on its determination that the provisions of the statute almost equated to a trial on the merits, particularly with the use of the beyond a reasonable doubt standard. “By enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, however, Missouri explicitly requires the jury to determine whether the prosecution has ‘proved its case.’” 451 U.S. at 444, 101 S.Ct. at 1858, 68 L.Ed.2d at 282. As a result the Court stated that “it is the State, not the defendant, that should bear ‘almost the entire risk of error.’ ” 451 U.S. at 446, 101 S.Ct. at 1859, 68 L.Ed.2d at 283. It thus held that the State was not entitled, at defendant’s second trial, to attempt to prove the aggravating factors it had failed to prove at his first sentencing hearing since he had, in reality, been found not guilty beyond a reasonable doubt of those aggravating factors. R.C.M. 1004 is almost identical to that Missouri statute, except for the specific aggravating and mitigating factors listed in the Missouri statute. Indeed, the Ninth Circuit Court of Appeals, en banc, recently held that Arizona’s statute requiring the finding of aggravating factors beyond a reasonable doubt was unconstitutional because it placed with the trial judge the duty of finding the aggravating factor when it should have been the duty of the jury. The Court determined it should be the jury’s decision because the aggravating factors were like elements of the offense. As such the defendant was entitled, in light of the Sixth Amendment, to a jury determination of the existence of those aggravating factors. Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988).
In California v. Ramos, Justice O’Con-nor, writing for a majority Court explained *1111the Court’s present interpretation of Gregg:
In Gregg itself, the joint opinion of Justices STEWART, POWELL and STEVENS concluded that the Georgia sentencing scheme met the concerns of Fur-man by providing a bifurcated proceeding, instruction on the factors to be considered, and meaningful appellate review of each death sentence, (citation omitted.) Satisfied that these procedural (emphasis added) safeguards “suitably directed and limited” the jury’s discretion “so as to minimize the risk of wholly arbitrary and capricious action,” (citation omitted), the joint opinion did not undertake to dictate to the State the particular substantive (emphasis added) factors that should be deemed relevant to the capital sentencing decision. Indeed, the joint opinion observed: “It seems clear that the problem [of channeling jury discretion] will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” (Citation omitted.) (“The deference we owe to the decisions of the state legislatures under our federal system ... is enhanced where the specification of punishments is concerned, for ‘these are peculiarly questions of legislative policy’ ”). (Footnote: Moreover, in approving the sentencing schemes of Georgia, Florida, and Texas, the joint opinions of Justices Stewart, POWELL, and STEVENS did not substitute their views for those of the state legislatures as to the particular substantive (emphasis added) factors chosen to narrow the class of defendants eligible for the death penalty____)
It would be erroneous to suggest, however, that the Court has imposed no substantive (emphasis added) imitations on the particular factors that a capital sentencing jury may consider in determining whether death is appropriate.
463 U.S. at 1000, 103 S.Ct. at 3452-53, 77 L.Ed.2d at 1180.
The majority states that Article 36 “clearly delineates the general policy to prescribe pretrial, trial, and post-trial procedures for cases tried by courts-martial,” and “clearly states that the authority is delegated to the President,” and “does establish specific boundaries to limit the President’s action under this provision” because the President “is bound to apply the principles of law recognized in criminal trials in the United States district courts.” While I agree with that statement as far as it goes, the statement is flawed in that the United States district courts have no capital punishment principles to apply. Congress has not passed any federal legislation establishing Furman-tjpe factors for federal capital offenses in general, but has for the specific crimes of aircraft piracy and espionage by military personnel; but in doing so, specified the aggravating factor(s) that had to be found before death could be imposed.
Although the United States district courts must follow the Furman mandate when interpreting capital punishment statutes, as must we, the district courts — despite the validity or invalidity of any substantive-procedural distinctions — cannot establish the aggravating factors where none have been enacted by the Congress. See United States v. Harper, 729 F.2d 1216 (9th Cir.1984). Likewise, if a federal district court cannot effectuate an unconstitutional death penalty provision, neither can the President, pursuant to Article 36, which requires him to follow, insofar as practicable, the principles of law recognized in trials of criminal cases in United States district courts. Article 36, UCMJ.
Furthermore, Article 36’s delegation is additionally limited by Article 56, UCMJ, for while giving authority to the President to prescribe maximum punishments, it does so in terms of non-capital offenses. That the President’s authority to prescribe maximum punishments is limited to non-capital offenses is supported not only by the legislative history of Article 56 but in fact by the President’s own past actions.27 Since *1112the inception of the UCMJ and the promulgation of the first Manual for Courts-Martial, the provisions relating to the maximum punishments authorized for particular offenses — the Table of Maximum Punishments in MCM 1951 and 1969 — have never addressed the punishments authorized for those offenses described in the various articles that authorize the imposition of the death penalty, even where life imprisonment is a mandatory lesser sentence. Therefore, since offenses carrying the death penalty are capital offenses, the President does not have the authority to prescribe anything which might effect the máximums with regard to Article 118, most particularly the aggravating factors that determine whether one convicted of a capital offense is eligible for consideration of imposition of the death penalty. If the President could prescribe the aggravating factors which make a person eligible for imposition of the death penalty, he would place a maximum on all other situations wherein a death occurs as the result of a criminal act for which Congress has authorized the death penalty. He would thus act contrary to congressional intent and his authority under Article 56. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); United States v. United Verde, 196 U.S. at 207, 25 S.Ct. at 222; United States v. McCormick, 12 U.S.C. M.A. 26, 30 C.M.R.26 (1960). While it is true that such an action accrues to the benefit of some capital offenders, without the proper authority or specific guidance of Congress, the President not only usurps authority but places other capital offenders in jeopardy when Congress may not have intended such unequal classification.28
A further indication that Congress and not the President is the proper authority for prescribing the aggravating factors, and a recognition by Congress of its responsibilities in this arena, is the 1986 enactment of Article 106a, 10 U.S.C. § 906a. Not only did Congress establish espionage as a capital offense, it also set forth within the statute itself, the aggravating factors that had to be found before imposition of the death penalty could be adjudged.29 In that statute the Congress further delegated to the President the authority to prescribe other aggravating factors under Article 36.30
YI.
Summary
In summary, I find that the Article 118 provision authorizing the imposition of the death penalty is unconstitutional and therefore invalid because of Furman and its progeny. I further find that the President’s attempt in 1984 to effectuate that invalid authorization by promulgation of the aggravating factors set forth in R.C.M. 1004(c) pursuant to the authority vested in *1113him by Articles 36 and 56, as they presently exist, was ineffectual because such delegation was constitutionally impermissible in the first place, or was an improper delegation by the Congress in the second.
Accordingly, while I approve the findings, I would disapprove the death penalty as approved on review below as a matter of law and approve only so much of the sentence as provides for dishonorable discharge, life imprisonment, forfeitures of all pay and allowances and reduction to pay grade E-l.
. As quoted in the recent Supreme Court decision of Mistretta v. United States, — U.S.-, -, 109 S.Ct. 647, 652-54, 102 L.Ed.2d 714 (1989): “‘The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its functions.’ Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446 (1935). Accordingly, this Court has deemed it 'constitutionally sufficient' if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” American Power and Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946).
. The legislative history to Article 56, UCMJ, wherein the Congress gave the President broad authority to set the maximum punishment for offenses which a court-martial may direct and which a court-martial could not thereafter exceed when directing punishment, clearly reveals that Congress never intended the President to deal in any way with the death penalty. In fact, the hearings relating to Article 56, in particular, reveal concern that the wording of the provisions be carefully articulated so that assurance could be had that the President could never *1098make an offense a capital offense that the Congress itself had not declared capital. Index and Legislative History of the Uniform Code of Military Justice, HH at 1187.
. By analogy then, Article 118 — and any other death penalty offenses within the UCMJ, with the exception of Article 106a — should be in the same status as those state statutes which Fur-man v. Georgia declared unconstitutional. Since Furman, at least 35 of those states having Furman -invalidated statutes, have, through the positive action of their legislatures, taken action to reinstate the death penalty for some offenses and provide the guidelines required by Furman. E.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, reh’g den. 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).
. We do recognize, as the Court of Military Appeals did in Matthews, that many of the procedures within the military justice system, such as a bifurcated trial and the opportunity to present aggravating, extenuating and mitigating evidence on sentencing, probably meet some of the Supreme Court's concerns. The court-martial process did not, however, address the concept of finding and weighing aggravating and mitigating factors by some identified standard such that unfettered, and possibly discriminatory, discretion was not controlled.
. We must look at the various concurring and dissenting opinions to attempt to elicit the intended impact of Furman because no unified majority opinion explaining the result was arrived at by the Court. Accordingly, what other way can we determine the exact intent of the Court other than to glean from the concurring and dissenting opinions what the Court as individuals believed was the impact of the decision. See Gregg v. Georgia, 428 U.S. at 169, n. 15, 96 S.Ct. at 2909 n. 15, 49 L.Ed.2d at 859, n. 15 (1976); Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Annotation, “Supreme Court’s Views on Constitutionality of Death Penalty and Procedures Under Which It Is Imposed." 51 L.Ed. 886; Annotation, "Binding Effect Upon State Courts of Opinion of United States Supreme Court Supported by Less Than Majority of All Its Members." 65 ALR3d 504.
. Even though three of the justices who participated in Furman are no longer members of the Court, six of the Furman Court do remain and might continue to represent a majority should the constitutionality of Article 118's death penalty be presented. In playing the numbers game then, we know that of those six remaining justices, two justices would declare the death penalty unconstitutional per se; one justice would not declare the death penalty unconstitutional per se but would declare discretionary statutes unconstitutional; and four justices believe the Furman decision declares the death penalty statutes in existence at the time of the opinion null and void.
. Annotation, “Effect of the Abolition of Capital Punishment on Procedural Rules Governing Crimes Punishable by Death — Post-Furman Decisions.” 71 A.L.R.3d 454, 457-460.
. The Watson court was concerned with the impact of Furman on a federal statute that gave the defendant a procedural right to two attorneys if he faced the possibility of the imposition of the death penalty. Since it was unable to
*1101determine that the sole reason Congress gave the accused the procedural right in question was because of the possibility of the imposition of the death penalty, a possibility that no longer existed, it refused to hold the procedural right inapplicable to a defendant convicted under the statute which Congress had done nothing about since Furman. Thus, Watson looked at the death penalty provision as a not only a penalty provision that may or may not be capable of imposition but as a means for classifying an offense as one of the most severe types of offenses.
We have no doubt that Furman raises pointed legislative questions of whether section 3005 should not be repealed or whether the various provisions of Title 18 which purport to authorize the imposition of the death penalty should be amended in an effort to harmonize them or to validate them under Furman____ But we conceive these to be legislative questions and not judicial ones, especially when a holding by us that Furman has effected a repeal of section 3005, of necessity, would probably create serious doubt as to whether the various other provisions of Title 18 and the Federal Rules of Criminal Procedure, to which we have referred, have also been repealed. The question of whether these statutes and the rule should now be repealed merits the prompt consideration of Congress and the Rules Committee, but we regard our role as one of proceeding with caution unless and until it unmistakably and clearly appears that Furman has had this effect. This, we fail to find.
Watson, 496 F.2d at 1129-1129. The Court then held that the defendant had the statutory right to have two attorneys because he was facing conviction for a crime that authorized the death penalty even though the imposition of the death penalty under federal law as it existed at that time was ineffectual.
McNally, on the other hand, determined that when the death penalty has been determined by a court or the prosecution not to be appropriate because of Furman, "the case lost its capital nature" and the defendant was not entitled to the advantage of any procedure which was otherwise required in the prosecution of a capital offense. McNally, 485 F.2d at 407. Thus, McNally looked at the death penalty provision as solely a penalty provision.
. The key word here is “imposition". Furman, at the very least, declared imposition of the death penalty outside its guidelines unconstitutional. The death penalty was still authorized but its imposition, the ability to effectuate it, was possible only after the development of specific and controlled discretionary guidelines and procedures and the application of those guidelines and procedure by the authorized fact-finder.
. The proposed revision of the Manual for Courts-Martial mentioned by the Court of Military Appeals in Matthews referred to what ultimately became Rule for Courts-Martial *1103(R.C.M.) 1004, Manual for Courts-Martial (MCM), 1984.
. Some of my Brother judges believe that the President has merely "applied the principles ... recognized in the trial of criminal cases in the United States district courts, ...” and that those principles are the guidelines established by the Supreme Court in Furman and Gregg. My counter-argument is that the courts, including the United States Supreme Court, have recognized that they cannot legislate. United States v. Harper, 729 F.2d 1216 (9th Cir.1984); see, e.g., Furman, 408 U.S. at 398, 92 S.Ct. at 2808 (Burger, C.J., dissenting).
. The Table of Maximum Punishments, paragraph 127(c), Manual for Courts-Martial, 1951, and 1969, show the President referring to Article 118 for a definition of the maximum punishment permitted for murder rather than him stating it in his own terms as the maximum sentence permissible.
. Provisions of the Manual for Courts-Martial made pursuant to Article 36, UCMJ, must be reported to Congress. Article 36(b), UCMJ.
. Two important facts to remember in this regard are the constitutional provisions speaking about the legislative and executive branch responsibilities toward the armed forces. Article I, section 8, clause 14 states that "The Congress shall have the Power ... To make Rules for the Government and Regulation of the land and naval Forces.” Article II, section 2 states: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States____”
. “The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment." United States v. Wiltberger, 18 U.S. 76, 5 Wheat. (U.S.) 76, 95, 5 L.Ed. 37, 42 *1105(1820); Furman v. Georgia, 408 U.S. at 452-453, 92 S.Ct. at 2835-36 (Powell, J., dissenting). Additionally, “[t]he Supreme Court is most likely to reject broad delegations of congressional power, typically on statutory grounds, when action of the government agency claiming delegated power touches constitutionally sensitive areas of substantive liberty.” Tribe, AMERICAN CONSTITUTIONAL LAW, (2d Edition, 1988) at p. 365. What more constitutionally sensitive area of substantive liberty can there be than an individual’s life? See California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) and cases cited in n. 9, e.g., Eddings v. Oklahoma, 455 U.S. 104, 117-8, 102 S.Ct. 869, 877-8, 71 L.Ed.2d 1 (1982).
. In United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911), the Supreme Court upheld the action of the Secretary of Agriculture’s use of his legislatively delegated powers in making criminal the violation of rules and regulations made and promulgated by him under the authority of a statute covering forest reservations. The Court reiterated that only Congress can legislate and quoting its previous opinion in Marshall Field and Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892) stated:
The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation.
Grimaud, 220 U.S. at 519, 31 S.Ct. at 484, 55 L.Ed. at 569. The Court then explained that while the act of Congress in question did not expressly declare the particular activity in question unlawful, the statutes involved did have encompassing terms and expressly stated that failure to comply with the rules and regulations of the Secretary would subject the offender to the penalty imposed by Congress.
. On the other hand, if we could identify a difference in values and attitudes, then, maybe, Presidential action in establishing the aggravating factors in R.C.M. 1004(c) would be justified.
. Premeditated murder (Article 118(1)) and murder during the commission of a felony (Article 118(4)).
. Recognizing that the Court of Military Appeals made this statement in applying the principle to the issue of cruel and unusual punishment rather than a delegation of power issue, it would seem to me that the same type of justification would have to be used under an equal protection argument if proper authority did establish procedures for imposition of the death penalty for service members that differed from that of their civilian counterparts. I do not address, therefore, the issue of whether military status alone is sufficient to overcome any equal protection arguments to permit the imposition of the death penalty on service members and not civilians for offenses committed under the same nine similar circumstances.
. One could argue that the primary victim in appellant’s case is his officer-in-charge and his dependent civilian wife while Matthews murdered a civilian dependent of an Army officer. *1107The status of appellant’s victim as officer-in-charge could have been one of the aggravating factors under the President’s scheme but was not plead. Thus, the victim’s officer status, which might have created that military significance, was not used by the Government at trial and cannot now be used as a means to differentiate appellant’s case from Matthews’ situation on the basis of a special need of the military.
. As we have previously noted, the military justice system is dependent upon both the legislative and executive branch for its creation and effectuation. See Footnote 14. Therefore, since Congress was endowed with the authority "to make rules and regulations for the governing” of the armed services, the Congress legislates and the President, as head of the executive branch and as commander in chief of the armed forces, enforces that legislation. Where Congress has failed to express an intent to require certain action, e.g., require the taking of an oath to demonstrate bona fides at the time of submission of an application to an executive agency, the executive could not then prescribe that violation of the requirement would result in criminal penalty. Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278 (1907).
. And, it is only to the imposition of the death penalty that my dissent applies. I offer no comment on the validity of the delegation with regards to other matters that may arise within the military justice system at a later time.
. For example, compare Article 36, UCMJ (quoted infra) with the Federal Sentencing Commission Act wherein the Congress set forth categories for determining offenses, categories for determining categories of defendants, four purposes, three goals, and a specific tool, etc. See Gubiensio-Ortiz v. Kanahele, 857 F.2d at 1245, see also Annotation, "Validity of Delegation to Drug Enforcement Administration of Authority to Schedule or Reschedule Drugs Subject to Controlled Substances Act (21 USC §§ 801 et seq.)," 47 ALR Fed 869.
. Sentencing Reform Act of 1984, as amended 18 U.S.C. § 3551 et seq. (1982 ed„ Supp. IV), and 28 U.S.C. §§ 991-998 (1982 ed„ Supp. IV).
. While we believe rules of evidence involve substantive law, the congressional delegation is a little more specific in that it directs the President to adopt rules that apply to trials in federal district courts — which we recognize as the Federal Rules of Evidence, rules enacted by the Congress, and upon which the Military Rules of Evidence were based, with some modification, due to the needs of the military law practice. Appendix 22, Analysis, MCM, 1984.
. I disagree with the Government’s contention and the majority's interpretation that the Supreme Court considered the aggravating factors procedural matters in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The Dobbert Supreme Court was addressing the factual situation involving a change in the role of the judge and jury in the imposition of the death penalty. I agree that the change in the roles made by the Florida legislature involved procedural matters; but, a determination that a change in role is procedural is far different from determining that the identification of cer*1110tain factors are sufficiently aggravating as to make an individual eligible for the judge or jury to impose the death penalty is also a procedural matter. Additionally, the Florida statute had previously passed constitutional muster, both as to the aggravating factors to be considered and the procedural application of determining the presence of aggravating factors before imposition of the death penalty was authorized Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, reh’g den., 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).
Additionally, the Florida statute, which not only changed the role of judge and jury, but also identified aggravating factors which had to be found before the death penalty could be imposed, was enacted by the legislature and not by someone in the executive acting under a delegation of authority. Thus, no separation of powers — improper delegation or usurpation of authority — issue was or could be raised by the defendant in Dobbert. The only issue of concern for the Court was whether the change in the Florida statute violated ex post facto principles. The statutory changes served to ameliorate the appellant's potential for imposition of the death penalty because it provided "significantly more safeguards to the defendant than did the old____ Hence, viewing the totality of the procedural changes wrought by the new statute, we conclude that the new statute did not work an onerous application of an ex post facto change in the law.” 432 U.S. at 295-6, 97 S.Ct. at 2301, 53 L.Ed.2d at 358.
. I recognize that the Court of Military Appeals in United States v. Flucas, 23 U.S.C.M.A. 274, *1112275, 49 C.M.R. 449, 450 (1975), held that the President acted with proper authority when, pursuant to Article 36, UCMJ, he established the "element” of knowledge for the offense of assault, he provided "an aggravating factor increasing the maximum permissible punishment 'when the victim has a particular status or is performing a special function.’ Paragraph 207b, MCM 1969.” I can, however, distinguish Piucas on one simple ground — the death penalty is so unique that it requires different treatment. As Justice Stewart stated in his concurring opinion in Furman, 408 U.S. at 306, 92 S.Ct. at 2760, 33 L.Ed.2d at 388:
The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.
See Dix, “Appellate Review of the Decision to Impose Death," 68 Geo.L.J. 97, 109 (1979).
Additionally, the punishment statute — Article 56 — is clear on its face and it does not pertain to the death penalty. Thus, the principles of strict statutory construction apply. United States v. Jenkins, 7 U.S.C.M.A. 261, 262, 22 C.M.R. 51, 52 (1956).
. I also make no judgment on equal protection of the law questions such as that posed by appellant. I find it unnecessary to my resolution of this case.
. If Congress had tacitly approved or ratified R.C.M. 1004, as offered by the majority, why was it necessary for the Congress to set forth specific aggravating factors for Article 106a, UCMJ, a post-Furman statute?
. The propriety of that additional delegation is a matter for future resolution, if necessary.