joined by Senior Judge ORR, dissenting:
I dissent from the majority’s holding that County of Riverside v. McLaughlin, - U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), mandates a change in Rule for Courts-Martial (R.C.M.) 305 on the fundamental ground that McLaughlin is not binding precedent concerning the issue before us. I would hold that the President’s rule contained in R.C.M. 305, promulgated pursuant to congressional authority in Article 36, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 836, does not violate *1092the Fourth Amendment to the U.S. Constitution as that amendment applies to the military services.
Federal civilian precedent regarding the Fourth Amendment to the U.S. Constitution has never been applied so mechanically to military society as the majority does in this case without any extended discussion of the obviously differing balances between societal needs for safety and order and individual liberty interests that divide the two societies. R.C.M. 305 is based on years of military experience with several military magistrate programs. It results from a balance in military society between the government’s interest to ensure tranquility and public safety and the individual’s interest in personal freedom that is radically and demonstrably different from the balance struck by the Supreme Court in McLaughlin. The majority err because they apply McLaughlin to military practice and procedure without considering the essential facts and factors that generated the holding of McLaughlin. The rationales for both the McLaughlin majority’s 48-hour presumption and the dissent’s 24-hour rule simply do not pertain logically to military society in general and the facts of this case in particular.
This Court’s analysis should focus on the pertinent constitutional, statutory, and regulatory provisions that bear on this issue and the marked realities of military necessity and life that vary immensely from those in civilian society. The majority simply ignore these complexities and summarily conclude that because in 1976 the Court of Military Appeals in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976), mechanically applied Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), to military practice, we are bound to do likewise with McLaughlin in 1993. To me, the majority provide no compelling rationale for overturning a rule which reflects military exigencies and the unique aspects of military society and organization and was promulgated by the President, pursuant to unquestionable constitutional authority, based on extensive experience and data.
I. GENERAL APPLICATION OF FOURTH AMENDMENT PRINCIPLES TO MILITARY JUSTICE
The Supreme Court “has long recognized that the military society is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974) ; see also Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953) (“The military constitutes a specialized community governed by a separate discipline from that of the civilian.”). Because of this special status, the Supreme Court has “also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history.” Levy, 417 U.S. at 743, 94 S.Ct. at 2555. This “military law ... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953), quoted in Schlesinger v. Councilman, 420 U.S. 738, 746, 95 S.Ct. 1300, 1307, 43 L.Ed.2d 591 (1975) . The “laws and traditions governing [military] discipline have a long history; but they are founded on unique military exigencies as powerful now as in the past. Their contemporary vitality repeatedly has been recognized by Congress.” Councilman, 420 U.S. at 757, 95 S.Ct. at 1313.
Thus, in general, differences between civilian and military law and procedure are not only constitutionally permissible, they are expected to exist. Although the Supreme Court has remanded cases to the Court of Military Appeals with direction to consider a cited Supreme Court decision, see United States v. Lopez, 35 M.J. 35, 48 (Sullivan, C.J., concurring in the result), the Supreme Court has never presumed the application of civilian law to the military; certainly no precedent even suggests that a majority of that Court presume the application of its Fourth Amendment holdings to military society.
In 1960, after considerable scholarly debate, the Court of Military Appeals nonetheless declared that the “protections in the Bill of Rights, except those which are ex*1093pressly or by necessary implication inapplicable, are available to members of our armed forces.” United States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47, 1960 WL 4489 (1960); see United States v. Ezell, 6 M.J. 307, 313 (C.M.A.1979). By its terms, however, the Fourth Amendment bears only remotely on military society. It begins by recognizing the right of the people to be secure in their persons, houses, papers, and effects, yet clearly in the late 1700’s the “people” referred to did not include soldiers or sailors in active federal service. Soldiers and sailors had no such right, as the drafters of the amendment were well aware. Further, the amendment prohibits the issuance of warrants without probable cause. Military authorities did not then nor do they now issue warrants to search or seize persons or property in the military services. Searches and seizures in general, and confinement of service personnel in particular, were the sole prerogative of the military commander for the first 185 years of our existence as a sovereign nation. That commander authorized searches and seizures and ordered service personnel into, as well as released from, confinement. Not until the UCMJ did military statutory law and practice even require that the order for pretrial confinement be based on probable cause. The very language of the Fourth Amendment seems unrelated to military traditions, practice, and law, and military appellate decisions since Jacoby demonstrate how poorly Fourth Amendment principles taken from civilian life fit military requirements and interests.
After more than two decades of experience in trying to apply Fourth Amendment principles to military society, the Court of Military Appeals acknowledged that the “Fourth Amendment does not take into account the exigencies of military necessity and unique conditions that may exist in military society.” United States v. Middleton, 10 M.J. 123, 127 (C.M.A.1981). Certainly in the realm of search and seizure, the Court has recognized “four major variances from conventional Fourth Amendment doctrine,” that is, there is no military requirement that a search authorization be made by a judicial officer, the search authorization need not be in writing, the authorization need not be supported by an oath or affirmation, and pervasive military inspections may be ordered without probable cause or a warrant. See Lopez, 35 M.J. at 45 (Cox, J., concurring). Indeed, military exigencies are so pronounced that it is now very doubtful that any presumption that Supreme Court Fourth Amendment precedent applies to military law and practice continues to exist. See Lopez, 35 M.J. at 41 n. 2 (plurality opinion), at 42-43 (Cox, J., concurring).
Those military exigencies and unique conditions in the military to which the Middleton Court referred “result from 'the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’ ” Lopez, 35 M.J. at 41 (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955)). The nature of this business requires a highly trained force comprised of motivated and disciplined persons who generally must be willing to forego their personal interests for those of the force and the unit. A key component in ensuring such a force is labeled the maintenance of good order and discipline. Crime, disorder, or insubordination that civil society may accept as a consequence of personal freedom is intolerable in military society. Criminals, the undisciplined, and the insubordinate must be removed swiftly and effectively from the unit and close proximity to their peers, otherwise their example will adversely affect unit cohesion and infect others who but for their example will generally perform acceptably. Thus, military society “must insist upon a respect for duty and a discipline without counterpart in civilian life.” Councilman, 420 U.S. at 757, 95 S.Ct. at 1313.
No Fourth Amendment balancing between governmental interests and those of the ordinary citizen by a civilian court takes into account this recognized, exceptional interest of the military commander who is responsible for the training, discipline, and military effectiveness of his force and therefore must possess an authority over the freedom of servicemem*1094bers that is virtually without parallel in civilian society. Indeed, one appellate judge, analyzing generally military decisions concerning search and seizure, observed:
The essence of my disagreement with the way search and seizure law applies to military society is that we have tried to adopt rules that superimpose into the military various Fourth Amendment concepts fashioned by the Supreme Court for civilian society. These rules generally have no applicability to the relationship of a commander to members of his command____
United States v. Morris, 28 M.J. 8, 18 (C.M.A.1989) (Cox, J., concurring in part and dissenting in part) (emphasis added).
Certainly, if given a meaningful choice, few servicemembers would choose significant restrictions on their personal liberty. Reasonable, dedicated servicemembers recognize, however, that a necessary result of military exigencies is that their rights “must perforce be conditioned to meet certain overriding demands of discipline and duty.” Levy, 417 U.S. at 744, 94 S.Ct. at at 2556. One right that is severely limited by necessity is the right to privacy. In virtually every military work or living environment, military inspections are routine, expected, and generally thorough. Life in barracks, on ships, in the field, and on controlled military bases is collective, and the actions of individuals are so interdependent that the right to privacy is truncated indeed. Soldiers and sailors regularly live, sleep, bathe, and perform personal bodily functions in close proximity under conditions that most civilians would find embarrassing if not demeaning.
Similarly, the right of freedom of movement in the military, the liberty to go where a person wishes when he or she wishes, is a faint shadow of that enjoyed in civilian life. Servicemembers are not entitled to regular working hours and may be ordered to stand watches or work or train at night or on weekends. Routinely, required duties take them away from their immediate families, often for weeks or months. The servicemember who receives an order affecting his freedom of movement is not free to decline it by quitting his job no matter how dangerous, unpleasant, or inconvenient compliance may be. So long as the order is related to a military duty, in general, servicemembers must be where they are ordered for so long as they are ordered — even a “dress code” is prescribed. These restraints on personal freedom would be intolerable to the ordinary citizen, yet they are accepted as a normal incident of military service to those who understand their necessity.
II. PROTECTION OF RIGHTS OF PRETRIAL CONFINEES BY CONGRESS AND THE PRESIDENT
Congress, the branch of government primarily charged with balancing the needs of the commander against those of the individual servicemember, has considered the foregoing, see A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice: Hearings on HR. 2498 Before a Subcommittee of the Committee on Armed Forces, House of Representatives, 81st Cong., 1st Sess. 901-23 (1949) [hereinafter House Hearings], and has enacted legislation that as much as is practicable protects the liberty interests of a servicemember who is accused of an offense. As early as 1920, Congress amended the Articles of War so that pretrial confinement was no longer mandatory for enlisted persons awaiting court-martial. By the 1940’s, both the Army and the Navy had in practice adopted a probable cause standard to permit confinement of an accused prior to trial; this standard became law in 1950 with the passage of Article 9(d), UCMJ, 10 U.S.C. § 809(d). Article 10, 10 U.S.C. § 810 embodied previous Army and Navy provisions requiring immediate steps to inform a pretrial confinee of the offense for which he is confined and “to try him or to dismiss the charges and release him.” Congress intended that Article 10 be enforced through Article 98, 10 U.S.C. § 898 which makes it a punishable offense to *1095unnecessarily delay the disposition of any case of a servicemember accused of violating the UCMJ. House Hearings at 903. Article 11, 10 U.S.C. § 811 continued previous provisions requiring that within 24 hours of the imposition of pretrial confinement the commanding officer shall be notified of the name of the prisoner, the offense, and the person ordering confinement. Finally, Article 13, 10 U.S.C. § 813 extended reforms in pretrial confinement contained in the 1948 redraft of Article of War 16 by remedying previous abuses of pretrial confinement. Article 13 prohibited the punishment of any pretrial confinee for the offenses of which he is confined and further mandated that the conditions of confinement be no more rigorous than the circumstances required to ensure his presence for trial.
Even before the present Manual for Courts-Martial, the President, as Commander-in-Chief and acting under his Article 36 rule-making authority, had enacted regulations concerning the imposition of pretrial confinement. The 1951 Manual for Courts-Martial made clear that “[n]o restraint need be imposed in cases involving minor offenses.” Manual for Courts-Martial, United States (MCM), 1951, If 18b. The 1951 MCM also permitted pretrial confinement for two reasons only: (1) to ensure the accused’s presence at trial, and (2) because of the seriousness of the offense. MCM, 1951, ¶ 20c. The 1969 MCM granted pretrial confinees additional protection by prohibiting punitive labor, punitive duty or training, and special uniforms for pretrial confinees that are prescribed for post-trial confinees. MCM, 1969 (Rev.), 1118b(3). Thus, when Courtney was decided, it was clear that both Congress and the President had examined the subject of imposition of pretrial confinement in the military services in great depth.
III. PRETRIAL CONFINEMENT POST-' COURTNEY TO R.C.M. 305
In 1975, the Supreme Court decided Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In 1976, in Courtney v. Williams, 1 M.J. 267 (C.M.A.1976), the Court of Military Appeals summarily applied the Gerstein holding to military practice and procedure. It noted that although the commanding officer must receive a report within 24 hours after confinement, “the Code does not require the commanding officer to take further action. And, the general court-martial convening authority need only review the confinement every 30 days.” Courtney, 1 M.J. at 270. Obviously, that perceived omission in the UCMJ was remedied in R.C.M. 305 by requiring the commanding officer to make a probable cause determination promptly after being informed that another authority had ordered an accused into pretrial confinement. The Court went on to require that a “neutral and detached magistrate” make a probable cause determination and a decision whether pretrial confinement should be continued. This latter requirement of course involves information that generally is unrelated to the existence of probable cause and which may be obtainable only from sources located away from the situs of the alleged offense or the place of confinement.
In response to Courtney, each military service and the Coast Guard initiated a military magistrate program. See generally Jack E. Owen, A Hard Look at the Military Magistrate Pretrial Confinement Hearing: Gerstein and Courtney Revisited, 88 Mil.L.Rev. 3, 40-47 (1980) (listing time requirements for initial review and probable cause hearings under service regulations in effect the first few years after Courtney and arguing for uniformity between the services). It is important to review these programs briefly because the combined experience gained through their operation throughout the world was used by the Working Group of the Joint-Service Committee and the Code Committee in drafting R.C.M. 305.
The Army military magistrate program was contained in Army Regulation (AR) 27-10. The person ordering pretrial confinement was required to forward information forming the basis for the decision to confine, along with a checklist, to the military magistrate, a judge advocate, who was required to review all documents and inter*1096view the confinee within 7 days after initiation of pretrial confinement. After this initial probable cause review and determination that continued pretrial confinement was justified, the magistrate was required to review each case every 2 weeks.
The program in the Naval Service was set forth in Secretary of the Navy Notice 5810 and Secretary of the Navy Instruction 1640.10. In the Navy, the magistrate had to be a judge advocate; in the Marine Corps, he did not. Within 72 hours after ordering pretrial confinement, the confining authority was required to forward detailed information to the magistrate to support the probable cause determination and the necessity for continued pretrial confinement. After receipt of this information, the magistrate was to hold an informal hearing “promptly” to review the probable cause determination and to decide whether continued confinement was justified. In cases of pretrial confinement arising at sea, the commanding officer was required to transfer the confinee to a shore confinement facility as soon as practicable. The detailed information described above to constitute probable cause and justify continued confinement had to be forwarded within 24 hours after transfer to the shore facility. Thereafter, procedures remained the same.
In the Air Force, pursuant to Air Force Manual No. 111-1, an informal hearing to determine probable cause and whether confinement should be continued was to be held within 72 hours of initiation of confinement. The hearing officer was either the officer exercising special court-martial jurisdiction (OESPCMJ) or a designated staff judge advocate who was permitted to hold the hearing and then make a recommendation to the OESPCMJ. Portions of this program were overturned in United States v. Lynch, 13 M.J. 394 (C.M.A.1982).
The Coast Guard program set forth in Coast Guard Manual No. CG-488, the Military Justice Manual, mandated a probable cause review and independent decision on continuation of confinement within 72 hours after the order to confine. The magistrate could be a non-lawyer.
In summary, after initiation of pretrial confinement, probable cause and continuation hearings could occur 7 days after confinement in the Army, “promptly” after 72 hours of confinement in the Navy and Marine Corps, and within 72 hours after confinement in the Air Force and Coast Guard. Military requirements for the hearing thus ran from 3 to 7 days.
From 1976-77 until 1984 when R.C.M. 305 was promulgated, thousands of magistrate hearings were held, and program changes were made in light of this extensive experience. Those administering and participating in these programs learned the practical difficulties of conducting such hearings in the real world of frequent unit deployments and movements, location of forces overseas and in remote areas, and limited legal resources. This experience became the background for the provisions of R.C.M. 305.
IV. THE CURRENT RULE AND THE RATIONALE BEHIND IT
I will not reiterate the specific provisions of R.C.M. 305 since Senior Judge Jones does so in his dissent. Two major aspects of the rule must be emphasized, however. First, if the commander is the authority initially ordering pretrial confinement, he has already determined that probable cause exists since Article 9(c) mandates that standard. In this situation, within 72 hours the commander must review his decision and determine anew, based on all facts and circumstances existing at the time of the initial order and developed after that decision, whether probable cause exists and whether under all the facts and circumstances confinement should continue. If he is not the authority that initiated the confinement, within 72 hours of receiving the report of confinement, he must determine de novo whether probable cause exists and confinement should continue. Although I agree fully with dissenting Senior Judge Jones that the commander’s probable cause determination should, in the military setting, satisfy the rule of Gerstein and McLaughlin, I will assume arguendo that it does not and continue my separate *1097explanation of the reasons why McLaughlin ’s holding does not apply to the military.
Second, the commander’s determination is reviewed by a neutral and detached magistrate not more than 7 days after the initiation of confinement. The magistrate reviews the information that had been before the commander and the commander’s basis for his decision to continue confinement as well as any information developed after the commander’s decision.
The Analysis to R.C.M. 305 sets forth the drafter’s basis for the rule as well as the factors that were balanced in coming to its express terms. The Analysis, written by the Working Group of the Joint-Service Committee, begins by providing an explanation of the general balancing of factors and interests that resulted in the specific aspects of the rule. This balancing cannot be overly emphasized.
The Working Group considered various procedural mechanisms for imposition and review of pretrial confinement. Numerous practical, as well as legal, concerns were analyzed and weighed in striking a balance between individual liberty and protection of society. The Working Group proceeded from the premise that no person should be confined unnecessarily. Neither the prisoner nor the government benefits from unnecessary confinement. On the other hand, in determining when confinement may be necessary, the nature of the military and its mission is an important consideration. Moreover, some of the collateral impact associated with pretrial confinement in civilian life (loss of job, income, and access to defense counsel) is normally absent in the military setting and pretrial confinement is seldom lengthy. See R.C.M. 707 [120-day rule for pretrial confinement]. Finally, the procedures for imposition and review of pretrial confinement had to be compatible with existing resources.
MCM, 1984, Analysis, R.C.M. 305, Introduction, App. 21, at A21-14.2 (emphasis added).
The Working Group pointed to an obvious distinction between pretrial confinement in the military and in civilian life. The consequences of pretrial confinement to the military member bear no real or meaningful relationship to that of a civilian at all — indeed, they pale by comparison. The military pretrial confinee goes into a local brig generally at or near his duty station. His pay and allowances continue unabated, therefore, his personal and household bills continue to be paid, the house continues to provide shelter, and food continues to arrive on the family table. He wears regular military uniforms. He receives medical care from the same facility as do unconfined service members. Such confinees may have visitors. Conjugal visits are foreclosed, but simple pretrial restriction and normal deployments have the same result. The accused’s defense counsel can easily visit or communicate with his or her client. I have been involved closely with military justice and brigs for about 18 years. Naval brigs are clean and well-managed. Assaults upon prisoners by guards or other inmates are exceedingly rare. In my opinion, whether innocent or not, any thinking pretrial confinee would gladly remain in a military facility for 7 days before a probable cause hearing rather than doing 48 hours in a civilian jail in New York City or Detroit.
Of special note is the emphasized portion of the Analysis which points out an important fact of military command. Unlike the civilian prosecutor, police officer, or booking sergeant in a police station, the commander has a real and substantial interest in not confining an accused, even if probable cause does exist. A confined “body” is lost to the unit. That squad leader, machine gunner, flight deck member, or radar operator is not available for deployment, an exercise in which the commander wants his unit to meet its mission and look good, or even for routine watchstanding where some other unit member must cover the confinee’s duties. The delay in holding the magistrate’s hearing inherent in allowing the commander to make his own decision of probable cause and whether confinement should continue is fully justified, in my *1098opinion, since this stage affords an accused a real opportunity to be released from confinement for reasons unrelated to probable cause or other facts which would normally justify continued confinement.
The Analysis goes on to make clear that notification of the commander within 24 hours of confinement is mandated by Article 11(b). Thus, in such cases, government agents have the equivalent of one day to make the report. The Analysis also points out that Congress enacted Article 11(b) to set in motion the procedures for approving or disapproving that confinement. This portion of the Analysis makes clear that the rule “places the initial decision for pretrial confinement with the prisoner’s commander.”
Although the immediate commander may not be a neutral and detached official for pretrial confinement purposes, it is appropriate to give this officer the initial decision on pretrial confinement, so that the command implications of this determination may be fully considered and developed for later review. This will enable the commander, who is in the best position to assess the predictive elements of the pretrial confinement decision, including not only the prisoner’s likely behavior, but also the impact of release or confinement on mission performance, to make a record of such factors for initial review____
The 72-hour requirement is intended to ensure reasonably prompt action by the commander, while at the same time allowing for situations in which the commander is not immediately available____
MCM, 1984, Analysis, R.C.M. 305(h), App. 21, at A21-15 (citations omitted).
This passage reflects a truism — the commander is responsible for the effects of having the accused return to his unit, not the magistrate who may have no experience at all in the practical realities of command or accomplishing this or any other unit’s mission. In the vast majority of cases, the commander knows the confinee far better than the magistrate does or ever will.
Further, in explaining the reason for adding the prevention of serious misconduct as a ground for continued pretrial confinement, the Analysis states:
The need for confinement to prevent serious misconduct is particularly acute in the military. The business of military units and the interdependence of their members render the likelihood of serious criminal misconduct by a person awaiting trial of even graver concern than in civilian life. Moreover, ... these concerns render a broader range or [sic] misconduct of a potentially serious nature. For example, the “quitter” who disobeys orders and refuses to perform duties, while others are expected to carry out unpleasant or dangerous tasks, has immensely adverse effect on morale and discipline which, while intangible, can be more dangerous to a military unit than physical violence. Thus, although the “pain in the neck” may not be confined before trial solely on that basis, the accused whose behavior is not merely an irritant to the commander, but is rather an infection in the unit may be so confined. Even constant supervision accomplishes little in such cases, and military resources do not permit, nor is it reasonable to require, the establishment of some holding facility other than a confinement facility for such persons.
MCM, 1984, Analysis, R.C.M. 305(h)(2)(B), App. 21, at A21-16 (citations omitted). Again, the Analysis points to realities and factors that are indisputable in military society but which are generally absent or substantially less pronounced in civilian life.
Although the Analysis of R.C.M. 305 may not be cited as the President’s intent, MCM, 1984, Analysis, Introduction, App. 21, at A21-3, the conclusions of the Working Group demonstrate that government officials, with the benefit of experience with thousands of magistrate hearings conducted under the various magistrate programs of the services and the Coast Guard, carefully balanced the government’s interests against those of pretrial confinees in determining the procedures for instituting and maintaining pretrial confinement. The *1099more senior officers of the Joint-Service Committee then sent the rule to the Code Committee. The proposed rule was made public and comments were received from the public and the Department of Defense (DOD). After the Working Group considered the comments and made changes, the rules went back to the Joint-Service Committee before submission to the DOD General Counsel and submission to the President after transmittal to the Office of Management and Budget. After Congress passed the Military Justice Act of 1983, the Rules for Courts-Martial were again examined by the Working Group and changes went through a similar procedure. Finally, the 7-day period following the order of confinement for the magistrate’s hearing became a uniform provision for all services. In short, this rule was the product of careful, thorough consideration by executive officials, based on extensive data drawn from years of experience, and the public reviewed the proposed rule with the opportunity to comment on it prior to its consideration and passage by Congress.
V. THE RATIONALE BEHIND THE McLaughlin holding
The majority in McLaughlin emphasize that the Court’s holding is based on a reconciliation of the same competing interests that underlay the holding in Gerstein. Those competing interests are: (1) the States’ “strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity,” and (2) the fact that “prolonged detention based on incorrect or unfounded suspicion may unjustly ‘imperil [a] suspect’s job, interrupt his source of income, and impair his family relationships.’ ” McLaughlin, — U.S. at -, 111 S.Ct. at 1668, (citing Gerstein) The holding of Gerstein was a “ ‘practical compromise’ between the rights of individuals and the realities of law enforcement.” At -, 111 S.Ct. at 1668 (citing Ger-stein). The Court made clear that “Ger-stein struck a balance between competing interests; a proper understanding of the decision is possible only if one takes into account both sides of the equation.” At -, 111 S.Ct. at 1669.
A specific time limit was necessary to the majority in McLaughlin because of the flood of litigation in the federal courts due to the wide variety of practices in cities and counties throughout the United States regarding the delay between detention and the probable cause hearing. The announced 48-hour presumption was “to provide some degree of certainty so that the States and counties may establish procedures with confidence that they fall within constitutional bounds.” At-, 111 S.Ct. at 1670 (emphasis supplied). Thus, jurisdictions that met the 48-hour limit would “be immune from systemic challenges.” Id. The presumption was therefore in large part a judicial device to reduce federal court litigation of claims arising from countless different procedures employed by states and local jurisdictions.
The extended dissent by Justice Scalia focuses on the common law right of a citizen arrested without a warrant to be taken before a magistrate as soon as reasonably can be done, a right embodied in the Fourth Amendment. Justice Scalia concluded that the promptness requirement means that the detained suspect must be taken before a magistrate immediately after completing the administrative steps incident to arrest and arranging for the magistrate. Relying on the available data, he noted that the federal courts, most state courts, commissions, and commentators generally have concluded that in civilian jurisdictions the administrative processing incident to arrest and arranging for a magistrate’s hearing took no more than 24 hours in the great majority of cases.
VI. APPLICATION OF McLAUGHLIN TO THE CASE AT BAR
Given the President’s statutory authority to make rules such as R.C.M. 305, and the substantial evidence that the rule was in fact carefully considered by knowledgeable agents of the executive branch, nothing in McLaughlin suggests, much less mandates, that the President’s rule be overturned. The first factor in the balance *1100described in McLaughlin, the government’s “strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity,” is demonstrably greater in military society. On the other side of the equation, as I have noted previously, the consequences of pretrial confinement to the innocent military accused are nothing like that suffered by the civilian confinee.
Further, military courts constitute a unitary judicial system. R.C.M. 305 is a clearly defined and easily understood rule that until now has produced little appellate litigation. Thus, the practical reason for the presumption of McLaughlin, to preclude repetitive litigation by giving the States and counties a fixed standard, is entirely absent from our court system. Finally, the experience and data relied upon in setting the 48-rule of McLaughlin is irrelevant to military experience. As I have pointed out, our experience and data derive from the several magistrate programs that existed before R.C.M. 305 became law. The majority in this case do not even discuss whether any link exists between the experience and data considered in McLaughlin and that from the military which existed when the President promulgated R.C.M. 305 or exists now.
Nor does the McLaughlin dissent relate in any logical manner to the case before us. Justice Scalia wrote of a common law rule and common law traditions that have never applied to military service. Every source of data or consideration of this issue mentioned by him is unrelated to military tradition or practice. Indeed, the basis of his opinion itself shows how little relevance McLaughlin has to military law.
The Supreme Court never contemplated military rules or interests in McLaughlin, and the majority in this case essentially ignore, among many other things, an essential feature of R.C.M. 305 that protects identifiable, fundamental interests — the commander’s probable cause determination and continuation of confinement decision. In order that the commander can make a reasonably informed decision, he must not only gather information concerning the alleged crime and the accused’s suspected participation in it, but just as importantly, he must be given time to balance the effect of the crime and the accused’s continued freedom against the loss of the accused’s service on the efficiency and capability of his unit and the accused’s liberty interest. Experienced military officers are well aware that even obviously guilty accuseds are often released from pretrial confinement solely on the ground that they are needed in the unit. This stage offers every pretrial confinee a chance for release based on the needs of the unit or simply the personal predilections of the commander, something that is nonexistent in civilian life. The President apparently considered this to be an important stage. The importance of this step in the pretrial confinement process justifies pushing back the time when the magistrate must hold a probable cause hearing. Further, when I factor in the congressionally-mandated requirement that rules of practice and procedure must as much as is practicable be uniform among the services, see Article 36(b), and the world-wide character of military service, R.C.M. 305 easily passes constitutional muster. I have no doubt that if this issue involving military pretrial confinement procedures is presented to the Supreme Court and the Court reexamines the interests involved, the Court will accede to the President’s considered determination that the military pretrial detainee may experience 7 days of confinement before a probable cause hearing takes place.
My dissent is not only from the majority’s specific holding in this case, it is more basic. I believe that as military appellate judges we are expected to integrate the realities and necessities of our separate and distinct military society with those of American society in general in deciding the cases before us that involve constitutional issues. Congress expects us to bring our military experience and knowledge of the requirements and operation of a world-wide military system to our appellate duties. When given the initial appellate opportunity, we are tasked with deciding which decisions of the Supreme Court apply to the *1101military services based on the uniqueness of military society as well as those factors that civilian and military society share. We were not created to be appellate ciphers whose purpose is to copy Supreme Court holdings thoughtlessly and paste them onto our decisions. The majority’s unspoken implication that we may not analyze Supreme Court decisions to determine the rationale and salient facts behind their holdings and decide whether that rationale or those facts are distinguishable from the cases before us suggests that in constitutional interpretation we have no meaningful role at all.
The expressed basis for the majority decision is given in one sentence: “Because we believe the Court of Military Appeals has established the precedent that Gerstein is applicable to the Armed Forces, and Ger-stein involves a constitutional issue, we conclude that we must follow that constitutional precedent.” Of course, the holding of Gerstein is only that a probable cause hearing must take place “promptly” after initiation of pretrial confinement. “Promptness” in this context is as much defined by facts and experience as is “reasonableness” in the search and seizure arena. Yet, as has been shown before, the 48-hour standard of McLaughlin is based on experience and data derived from civilian state and local practice that is totally unrelated to military realities.
The majority assert that under the rule of Jacoby the burden is upon the government to show that McLaughlin is inapplicable to military law and procedure. Previous military decisions applying the Fourth Amendment to military situations have never required specific facts in the record or a DuBay hearing to establish fundamental differences between civilian and military society that justify a different legal rule for courts-martial. “Military exigencies may be present under the facts of a given case; or they may exist with respect to a whole category of intrusions. ” Morris, 28 M.J. at 10 (emphasis added) (citations omitted); Middleton, 10 M.J. at 127. When obviously relevant and substantial differences exist. between civilian and military society that justify deviating from a constitutional principle emanating from civilian society, neither the Supreme Court nor our military courts have hesitated to acknowledge them.
Further, placing such a burden on the government in this case is tantamount to presuming the unconstitutionality of a Rule for Courts-Martial. Such a presumption cannot be reconciled with the traditional, long-standing deference with which the Supreme Court has reviewed congressional legislation regarding the military services or Presidential regulations governing military service. The President’s rule is much more than an interesting opinion or strong advice, it is a regulation promulgated by the statutory authority of Article 36, UCMJ, 10 U.S.C. § 836. Article 36 derives directly from a constitutional provision that is an inherent element of our constitutional scheme and a recognition of the necessary authority of the Commander-in-Chief. U.S. Const., Art. I, § 8. The majority give virtually no deference to the President’s determination that in our world-wide military structure, based on experience and available resources, 7 days is a reasonable period to complete the commander’s confinement review and collect the required parties at one location for a magistrate’s hearing. Rather than granting this decision the substantial weight that it deserves, without pointing to any facts in the record, they conclude that the 48-hour rule of McLaughlin has been in effect without difficulty in the Army since 24 May 1991. Even if this assertion is true, and it is unclear on what data or information the assertion is based, it is irrelevant since the mission, organization, and operations of the Army are quite different from those in the Navy or the Marine Corps.
VII. THE PRACTICAL RESULT OF A 48-HOUR PRESUMPTION IN THE MILITARY
I am unsure how the majority’s adoption of McLaughlin applies to military practice. If Seaman Deuce is an unauthorized absentee (AWOL in other services) for several months and is picked up in a traffic stop in Bucksnort, Tennessee, does the 48-hour clock start when civilian authorities appre*1102hend him for the military, when the military is notified, when the chasers finally get to Bucksnort, when the chasers get him to the nearest military confinement facility, or when he returns to the confinement facility near his unit? During oral argument, appellate defense counsel contended that the clock does not begin ticking until the accused is ordered into pretrial confinement by a military authority. United States v. Ballesteros, 29 M.J. 14 (C.M.A. 1989), holds that when civilian authorities apprehend a military absentee solely for the military, even far from the servicemember’s unit or any military base, the R.C.M. 305 clock begins once the civilians notify military authorities of his detention and availability for pick-up. In hundreds of cases, however, the accused is apprehended far from any military magistrate, military lawyer, or any other military authority. If Ballesteros continues to be the law, in a whole class of cases involving unauthorized absence, the 48-hour presumption routinely will be exceeded, resulting in a flood of litigation to determine if the presumption is rebutted — the sort of flood that McLaughlin was intended to preclude.
Nothing before us indicates that a significant number of accuseds are now being confined without probable cause. We have no statistics showing how many accuseds who are confined pursuant to probable cause are released by the magistrate because continued confinement is unwarranted. No evidence before this Court suggests, much less establishes, that military authorities are not now trying to hold the magistrate hearing as soon as is practicable. If they are now doing their best with the resources that are reasonably available, the 48-hour presumption probably will not hasten magistrate hearings. If military authorities are now lackadaisical in meeting UCMJ requirements to prevent any unnecessary delay in the disposition of a case, the threat of a few days of additional sentence credit will not scare those authorities into action. In the cases of the unauthorized absentees mentioned above, it is fatuous to contend that in fact probable cause to confine is lacking. What will be lacking before 48 hours is the presence of a magistrate to hold a hearing or available proof of probable cause or sufficient presentable evidence to justify continued confinement. Thus, the result will be that in numerous cases the guilty accused, for whom probable cause to confine always existed, will receive a confinement credit in addition to that mandated by United States v. Allen, 17 M.J. 126 (C.M.A.1984).
The dissent in McLaughlin emphasizes that its rule is intended to be a protection for the innocent accused confined before trial. Certainly, a 48-hour presumption may hasten some hearings. In fact, however, even with a 48-hour presumption, if governmental authorities are indifferent to their duty to hold a hearing promptly, and an innocent military accused is released from confinement after a tardy hearing, no remedy is available at all since innocence generally means no sentence against which a credit can apply. This accused is left with the same remedies that now apply, such as Article 138 complaints, when a commander locks up a servicemember on nonexistent or flimsy evidence.
For these reasons, I would hold that the 48-hour rule of McLaughlin is inapplicable to the military and that R.C.M. 305 accords fully with constitutional requirements. I would affirm the findings and sentence as approved on review below.
Note: Judge Tuthill reported for two weeks’ annual training on 1 March 1993 and did not participate in the case.