(dissenting):
A
The granted issue in this case is:
WHETHER APPELLANT’S COMMAND CONDUCTED A SUBTERFUGE SEARCH WHEN SEIZING APPELLANT’S URINE WHICH WAS PURPORTEDLY SEIZED PURSUANT TO AN INSPECTION.
An initial question arises from the majority opinion concerning its legal basis (or lack thereof) for deciding this issue. Appellant argues that subterfuge searches are prohibited by Mil.R.Evid. 313, Manual for Courts-Martial, United States, 1984, and our case law, and their fruits are inadmissible at courts-martial. See Mil.R.Evid. 311 and 315; United States v. Johnston, 24 MJ 271 (CMA 1987). In addition, I note that administrative inspections which are mere pretexts to search for criminal evidence are unreasonable searches for purposes of the Fourth *173Amendment. New York v. Burger, 482 U.S. 691, 716 n. 27, 107 S.Ct. 2636, 2651 n. 27, 96 L.Ed.2d 601 (1987). Accordingly, I must disassociate myself from the majority opinion’s resolution of the granted issue without reference to military or civilian case law. 41 MJ at 172.
My next concern is the factual basis of the majority opinion concerning the legitimacy of the challenged inspection. The court below commented on Captain Jackson’s role both before and after the decision to inspect had been made by Capt. Lindsay, as follows:
Obviously, Captain Lindsay’s decision to select the S-l section for urinalysis testing was influenced to some extent by Captain Jackson’s telephone call to him. However, that fact is not dispositive of the issue. At the time of the conversation, Captain Lindsay had already decided to conduct random testing. All the call did was to subtlety suggest to him that he should select the S-1 for testing; it in no way singled out the appellant for testing.
In this case, the commander simply decided that an entire section would be tested. He did so without knowledge that two members of the section, Captain Jackson and Sergeant Ramon, suspected that another member of the section had illegally used drugs. We deem it of no significance that the appellant was ordered to report to his work section from his quarters after receiving a “no duty” chit from a dental officer. In our opinion, Captain Jackson had authority to order the appellant, his subordinate, to report to work for urinalysis testing despite the appellant’s receipt of a “no duty” chit from his dentist. Additionally, we observe that Captain Jackson had investigated the appellant’s situation on 12 Dec 1989 and been advised by someone at the dental clinic that appellant had not been to the dental clinic. Although not pivotal to our decision, this fact manifests to us that Captain Jackson was diligently pursuing his duties as an officer of Marines in an appropriate manner, albeit he received “bad scoop” from someone at the dental clinic.
At the bottom line, this is not a case where a servicemember has been unreasonably singled out for urinalysis testing by a commander who merely suspects drug use. This appellant was required to do only what was required of all Marines in his work section____
Unpub. op. at 4-5 (emphasis added.) I disagree with the decision of the majority to disregard these facts as irrelevant to the granted issue.
The key question to me in this case is whether the knowledge and conduct of Capt. Jackson can be considered on the issue of whether a “subterfuge” search occurred. The majority’s opinion holds that these facts are not relevant since they were not communicated to Capt. Lindsay (41 MJ at 172) and he is “our principal focus” (41 MJ at 172) under Mil.R.Evid. 313(b). Principal, however, does not mean exclusive; accordingly, I cannot join the majority’s ultimate conclusion of irrelevance. Moreover, our case law and civilian case law make clear that it is necessary to consider the conduct of those executing the inspection in determining whether it was a legitimate administrative inspection or a subterfuge for a search for criminal evidence. See United States v. Barnett, 18 MJ 166 (CMA 1984) (mere presence of law enforcement agents who suspect appellant of crime not sufficient to turn regular inventory into subterfuge search); United States v. Thatcher, 28 MJ 20, 25-26 (CMA 1989) (conduct of persons" conducting inspection after searching accused’s spaces relevant on question of whether subterfuge search occurred); Winters v. Board of County Commissioners, 4 F.3d 848, 854-55 (10th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1539, 128 L.Ed.2d 192 (1994); United States v. Johnson, 994 F.2d 740, 743 (10th Cir.1993). Therefore, I join Judge Wiss in concluding that the majority opinion is fatally flawed.
B
I also join Judge Wiss in his recognition and rejection of the majority’s general nursings on the rights of servicemembers under the Constitution, the Code, and the Manual for Courts-Martial. The general thrust of *174this dicta is to raise doubt concerning the protections afforded by the Constitution to members of our armed forces and to disparage the efforts of the President in providing for the re-enforcement of these rights at courts-martial. Contra United States v. Johnston, 41 MJ 13, 17-18 (CMA 1994) (Sullivan, C.J., dissenting). Judicial restraint dictates that this Court refrain from such disruptive conjecture and from legal opinions suggesting that a servicemember is too generously protected under military law.
Judge Crawford has at times signaled her intent to drive a wedge between the American servicemember and his Constitutional rights. See, e.g., United States v. Weiss, 36 MJ 224, 234 (CMA 1992) (Crawford, J., concurring in the result) (the Appointments Clause in Article II of the Constitution does not apply to the selection of a military judiciary); United States v. Lopez, 35 MJ 35, 41 (CMA 1992) (There “is an implicit recognition that the Supreme Court has never expressly applied the Bill of Rights to the military, but has assumed they applied.”). Contra Nunn, The Fundamental Principles of The Supreme Court’s Jurisprudence in Military Cases (hereafter Nunn), 29 Wake Forest L.Rev. 557, 564 (1994), where it was stated: “Although the constitutional guarantees of the Bill of Rights are generally available to servicemembers, the application of those guarantees in the military setting differs considerably from the manner in which they apply in civilian society.” Today, she, joined by a majority of this Court, signals her further dissatisfaction with Presidential rulemaking designed to protect the privacy of servicemembers.
In Weiss v. United States, — U.S.-, -, 114 S.Ct. 752, 757, 127 L.Ed.2d 1 (1994), however, the Supreme Court squarely rejected Judge Crawford’s position that military trial and appellate judges need not be appointed pursuant to the Appointments Clause of the Constitution. Moreover, in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Supreme Court expressly held that military accused “are entitled to the due process of law guaranteed by the Fifth Amendment.” Then-Justice Rehnquist further commented that the extent to which a particular Constitutional right is available to an accused is based on an “analysis of the interests of the individual and those of the regime to which he is subject.” 425 U.S. at 43, 96 S.Ct. at 1291. I see nothing in Davis v. United States, — U.S. -, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), to the contrary, particularly with respect to the Fourth Amendment (“Because the Court of Military Appeals has held that our cases construing the Fifth Amendment right to counsel apply to military interrogations and control the admissibility of evidence at trials by court-martial, ... we proceed on the assumption that our precedents apply to courts-martial[.]” (Citations omitted.)). Id. at-n. *, 114 S.Ct. at 2354 n.*.
The Supreme Court “gives particular deference to the determination of Congress” when analyzing the availability of specific Constitutional safeguards in military prosecutions and investigations. Moreover, it also provides some deference to the President in these matters. See United States v. Mitchell, 39 MJ 131, 136 (CMA 1994), citing Weiss v. United States, — U.S. at---, 114 S.Ct. at 760-61; Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S.Ct. 1310, 1313-14, 89 L.Ed.2d 478 (1986), cert. denied in Mitchell v. United States, — U.S. -, 115 S.Ct. 200, — L.Ed.2d-(1994). Of course, this deference is not absolute. See Schlesinger v. Councilman, 420 U.S. 738, 758-61, 95 S.Ct. 1300, 1313-15, 43 L.Ed.2d 591 (1975). But see Rostker v. Goldberg, 453 U.S. 57, 68, 101 S.Ct. 2646, 2653-54, 69 L.Ed.2d 478 (1981) (“In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.”). I for one do not join the majority’s woeful lament concerning the President’s authorized rule-making in this area of the law. United States v. McCarthy, 38 MJ 398, 404 (CMA 1992) (Sullivan, C.J., concurring in result). See United States v. Lopez, 35 MJ at 46, 48-19 (Sullivan, C. J., concurring in the result). See generally 29 Wake Forest L.Rev. at 564 and n. 27.
*175I only add this final thought. In America’s eyes, the urinalysis program of the United States Armed Forces and its success rests on application of basic fairness for all service-members. Viewing this case with the heart of a soldier, I see basic fairness lacking. Capt. Lindsay had decided to conduct random testing. Through the manipulations of Capt. Jackson and Sergeant Ramon (members of this unit’s command structure), appellant was purposefully selected to be tested. This situation is no different from one where Capt. Jackson and Sergeant Ramon preordained appellant as the one to be tested by preparing a helmet full of names for Capt. Lindsay to pick from — and the helmet was full of slips of paper all bearing appellant’s name.
This was not a random or a fair inspection. Such deception and underhandedness should not be allowed in the American Armed Forces. We expect fairness for ourselves and should require no less for the American servicemember. Since Sun Tsu Wu in the fourth century B.C., leaders of successful armed forces have recognized that the right to be treated fairly has been the hallmark of a superior fighting force. Let’s not give up that tradition and undermine unit cohesiveness by condoning manipulation of our system, especially when a Marine’s liberty is at stake. Perhaps this Marine is guilty, but we cannot sacrifice fairness to convict him. If we do, then all innocent servicemembers are at risk in the future as a result of similar machinations of the system by those aiding a commander in conducting an inspection.