OPINION OF THE COURT
ROSENWASSER, Chief Judge:
There has been delivered to this Court 17 plastic boxes containing videocassettes and an assortment of papers for the Court’s appellate review under Article 66(b) UCMJ, 10 U.S.C. § 866(b). The material referred to us purports to be the record of trial in the general court-martial case of Seaman Recruit Mark J. Simpson, who contested the charges against him, was convicted on three counts, and was sentenced to a dishonorable discharge, forfeitures and confinement at hard labor for two years.
In due course an appellate defense brief containing nine assignments of error was submitted. We take note only of the first, which was assigned as follows:
I. THE JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A WRITTEN TRANSCRIPT OF THE COURT-MARTIAL PROCEEDINGS
A. THIS VIDEOTAPE TRANSCRIPT IS NOT IN FACT A VERBATIM TRANSCRIPT AS REQUIRED BY THE MANUAL FOR COURTS-MARTIAL
B. A VIDEOTAPE TRANSCRIPT FAILS AS A MATTER OF LAW TO SATISFY THE REQUIREMENT OF THE MANUAL FOR COURTS-MARTIAL FOR A VERBATIM TRANSCRIPT
C. THE COAST GUARD HAS NOT ADOPTED SUFFICIENT STANDARDS FOR THE USE OF VIDEOTAPE TRANSCRIPTS
D. THE USE OF A VIDEOTAPE TRANSCRIPT DEPRIVES THE DEFENDANT OF SUBSTANTIAL RIGHTS
1. RIGHT TO A COPY OF THE RECORD OF TRIAL
2. RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
3. RIGHT TO A FAIR TRIAL
E. USE OF A VIDEOTAPE TRANSCRIPT DENIES THE DEFENDANT A PROPER APPELLATE REVIEW.
We directed that preliminary argument be heard, limited to these questions:
1) Whether a videotape transcript fails as a matter of law to satisfy the requirements of the Uniform Code of Military Justice and the Manual for Courts-Martial for a verbatim transcript; and
2) Whether the defendant has been deprived of due process or a fair trial as a result of the television videotaping of the trial proceedings.
A brief limited to the issues framed by the Court was submitted by government counsel, and we heard argument on 10 February 1976.
For the reasons stated below we find that a lawful “record” within the meaning of Article 66(c) is not before the Court, and that the videotapes without a transcript in writing do not satisfy the current requirements of law rements of law for producing a record of trial. We find further that Commandant Notice 5810 of 20 February 1975 which purported to authorize “the use of videotape as the transcript in general and special courts-martial” in the Coast [1127]*1127Guard is itself unauthorized and has no legal efficacy.
We deal here with a statutory system making it mandatory for this Court to review Simpson’s trial. Pertinent to the instant case, Congress directed that the trial counsel, under the direction of the court, “prepare the record of the proceedings” (Art. 38, 10 U.S.C. § 838); directed that “the record” be forwarded to the convening authority for initial action (Art. 60, 10 U.S.C. § 860); directed review by a legal officer prior to such action (Art. 61, 10 U.S.C. § 861); directed that “the entire record” be sent to the Judge Advocate General (Art. 65(a), 10 U.S.C. § 865(a)); directed the Judge Advocate General to refer “the record” to the Court of Military Review (Art. 66(b)); and directed the Court of Military Review to determine the findings and sentence which should be approved “on the basis of the entire record” (Art. 66(c)). Further, Congress empowered the Court of Military Review “in considering the record” to weigh the evidence and judge the credibility of witnesses “recognizing that the trial court saw and heard the witnesses.” (Congress did not envision the Courts of Military Review also seeing and hearing the witnesses.) Congress, in enacting the UCMJ did not deem it necessary to prescribe the form, contents or other details as to records of trial. But Congress did enact into positive law the requirement for a record. As to general courts-martial, Article 54, 10 U.S.C. § 854 states:
(a) Each general court-martial shall keep a separate record of the proceedings in each case brought before it.
And, the official commentary on Article 54(a) said:
It is intended that records of a general courts-martial shall contain a verbatim transcript of the proceedings.1
Since Congress did not legislate on what would constitute “the record” mentioned in the cited Articles of the Code, one must look elsewhere. The power to make rules concerning records of trial was given to the President. That power derives from Article 36, 10 U.S.C. § 836, whereby Congress delegated to the President the authority to make procedural rules, with the limitation that they not be contrary to or inconsistent with the Code. By Article 140, 10 U.S.C. § 940, Congress permitted the President to redelegate his rule-making authority. In United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962) the Court of Military Appeals found Article 36 to be a valid delegation of power to the President, stating that
the rule is well established that Congress may delegate to the President . the power to make regulations to fill up details and implement statutory provisions, or to determine the details of the legislative scheme. And, further, when regulations are so adopted, they “have the force of law.” (p. 118)
The Manual for Courts-Martial represents an exercise by the President of his legal authority under Article 36. We see from the Manual that the President extensively exercised his power to make rules with regard to records of trial, while redelegating very little of this authority. He devoted a chapter in the Manual to “Records of Trial” — Chapter XVI, with paragraph 82 and nine subparagraphs covering records in general courts-martial, and paragraph 83 covering inferior courts-martial. He also made rules concerning records of trial in other parts of the Manual. See, for example, Appendix 9, furnishing a guide for “when a verbatim record is prepared”; paragraph 49, directing what the reporter must do and may do; paragraph 15b, demanding “a complete and verbatim record” for BCD special courts-martial; and paragraph 79 e prescribing procedures applicable to summary court records, but with permission to the Secretary of a Department to “otherwise prescribe by regulations.”
Paragraph 82b of the chapter on Records of Trial, in both the 1951 and the 1969 [1128]
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OPINION OF THE COURT
ROSENWASSER, Chief Judge:
There has been delivered to this Court 17 plastic boxes containing videocassettes and an assortment of papers for the Court’s appellate review under Article 66(b) UCMJ, 10 U.S.C. § 866(b). The material referred to us purports to be the record of trial in the general court-martial case of Seaman Recruit Mark J. Simpson, who contested the charges against him, was convicted on three counts, and was sentenced to a dishonorable discharge, forfeitures and confinement at hard labor for two years.
In due course an appellate defense brief containing nine assignments of error was submitted. We take note only of the first, which was assigned as follows:
I. THE JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A WRITTEN TRANSCRIPT OF THE COURT-MARTIAL PROCEEDINGS
A. THIS VIDEOTAPE TRANSCRIPT IS NOT IN FACT A VERBATIM TRANSCRIPT AS REQUIRED BY THE MANUAL FOR COURTS-MARTIAL
B. A VIDEOTAPE TRANSCRIPT FAILS AS A MATTER OF LAW TO SATISFY THE REQUIREMENT OF THE MANUAL FOR COURTS-MARTIAL FOR A VERBATIM TRANSCRIPT
C. THE COAST GUARD HAS NOT ADOPTED SUFFICIENT STANDARDS FOR THE USE OF VIDEOTAPE TRANSCRIPTS
D. THE USE OF A VIDEOTAPE TRANSCRIPT DEPRIVES THE DEFENDANT OF SUBSTANTIAL RIGHTS
1. RIGHT TO A COPY OF THE RECORD OF TRIAL
2. RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
3. RIGHT TO A FAIR TRIAL
E. USE OF A VIDEOTAPE TRANSCRIPT DENIES THE DEFENDANT A PROPER APPELLATE REVIEW.
We directed that preliminary argument be heard, limited to these questions:
1) Whether a videotape transcript fails as a matter of law to satisfy the requirements of the Uniform Code of Military Justice and the Manual for Courts-Martial for a verbatim transcript; and
2) Whether the defendant has been deprived of due process or a fair trial as a result of the television videotaping of the trial proceedings.
A brief limited to the issues framed by the Court was submitted by government counsel, and we heard argument on 10 February 1976.
For the reasons stated below we find that a lawful “record” within the meaning of Article 66(c) is not before the Court, and that the videotapes without a transcript in writing do not satisfy the current requirements of law rements of law for producing a record of trial. We find further that Commandant Notice 5810 of 20 February 1975 which purported to authorize “the use of videotape as the transcript in general and special courts-martial” in the Coast [1127]*1127Guard is itself unauthorized and has no legal efficacy.
We deal here with a statutory system making it mandatory for this Court to review Simpson’s trial. Pertinent to the instant case, Congress directed that the trial counsel, under the direction of the court, “prepare the record of the proceedings” (Art. 38, 10 U.S.C. § 838); directed that “the record” be forwarded to the convening authority for initial action (Art. 60, 10 U.S.C. § 860); directed review by a legal officer prior to such action (Art. 61, 10 U.S.C. § 861); directed that “the entire record” be sent to the Judge Advocate General (Art. 65(a), 10 U.S.C. § 865(a)); directed the Judge Advocate General to refer “the record” to the Court of Military Review (Art. 66(b)); and directed the Court of Military Review to determine the findings and sentence which should be approved “on the basis of the entire record” (Art. 66(c)). Further, Congress empowered the Court of Military Review “in considering the record” to weigh the evidence and judge the credibility of witnesses “recognizing that the trial court saw and heard the witnesses.” (Congress did not envision the Courts of Military Review also seeing and hearing the witnesses.) Congress, in enacting the UCMJ did not deem it necessary to prescribe the form, contents or other details as to records of trial. But Congress did enact into positive law the requirement for a record. As to general courts-martial, Article 54, 10 U.S.C. § 854 states:
(a) Each general court-martial shall keep a separate record of the proceedings in each case brought before it.
And, the official commentary on Article 54(a) said:
It is intended that records of a general courts-martial shall contain a verbatim transcript of the proceedings.1
Since Congress did not legislate on what would constitute “the record” mentioned in the cited Articles of the Code, one must look elsewhere. The power to make rules concerning records of trial was given to the President. That power derives from Article 36, 10 U.S.C. § 836, whereby Congress delegated to the President the authority to make procedural rules, with the limitation that they not be contrary to or inconsistent with the Code. By Article 140, 10 U.S.C. § 940, Congress permitted the President to redelegate his rule-making authority. In United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962) the Court of Military Appeals found Article 36 to be a valid delegation of power to the President, stating that
the rule is well established that Congress may delegate to the President . the power to make regulations to fill up details and implement statutory provisions, or to determine the details of the legislative scheme. And, further, when regulations are so adopted, they “have the force of law.” (p. 118)
The Manual for Courts-Martial represents an exercise by the President of his legal authority under Article 36. We see from the Manual that the President extensively exercised his power to make rules with regard to records of trial, while redelegating very little of this authority. He devoted a chapter in the Manual to “Records of Trial” — Chapter XVI, with paragraph 82 and nine subparagraphs covering records in general courts-martial, and paragraph 83 covering inferior courts-martial. He also made rules concerning records of trial in other parts of the Manual. See, for example, Appendix 9, furnishing a guide for “when a verbatim record is prepared”; paragraph 49, directing what the reporter must do and may do; paragraph 15b, demanding “a complete and verbatim record” for BCD special courts-martial; and paragraph 79 e prescribing procedures applicable to summary court records, but with permission to the Secretary of a Department to “otherwise prescribe by regulations.”
Paragraph 82b of the chapter on Records of Trial, in both the 1951 and the 1969 [1128]*1128Manuals, directed that the general court-martial record “set forth a verbatim transcript.” The demand of paragraph 82b for a “verbatim transcript,” although going beyond the express demand of the Code, was upheld by the Court of Military Appeals in United States v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953). The 1969 Manual additionally provided for exceptions — acquittals, aborted trials, other cases — when the “transcripts needs not be verbatim.” The President gave permission, however, to the Secretary of the Department concerned to require by regulations a verbatim record in these instances.
Both paragraph 49b (1) and paragraph 82 a, NCM 1969, make mention of “electronic” recordings, but in neither place does the Manual suggest that an electronic recording can be the record, or that it is acceptable as a substitute for the transcript which the record is to set forth, 49b (1) directs the reporter to record the proceedings and testimony, and goes on to say that the reporter may do this in the first instance in longhand, shorthand, or by mechanical or electronic means, (emphasis supplied.) 82a directs the trial counsel to retain or cause to be retained
any stenographic or other notes or any mechanical or electronic recordings from which the record of trial was prepared for such a period as may be prescribed in appropriate regulations.
This last quotation is interesting not only for the recognition of electronic recordings but also for the redelegation of authority. It is an example of the type of thing with respect to records of trial that the President will allow the Departments to regulate: they can prescribe the number of days for retention of stenographic notes or tapes after the record has been transcribed. There are other examples. The President will allow “the publications of the Secretary” to prescribe the form for the index to the record of trial (App. 9, p. 1, Note). He will allow the Secretary to regulate the sequence of the papers making up the record of trial (App. 9e). As noted above, the Secretary can require a verbatim record where the President has given permission for a summarized one. More importantly, the Secretary can issue regulations with respect to certain non-BCD special court-martial records (para. 83 b) and summary court records (para. 79e). The silence of the Manual as to the existence of any authority in the Secretary of a Department to prescribe by regulation that an electronic or mechanical recording of the events of trial in the first instance, may take the place of a transcript in writing in the final product, is eloquent.
We think it evident from an inspection of the Manual’s provisions, that the “transcript” referred to in connection with general court-martial records of trial (para. 82b) and special court-martial BCD cases (para. 83a and 15b) means just one thing — a form of record that can be read and studied. From the days when records of trial were produced in court-martial eases by custom and usage2 to the present day when they are required by statute law, the record produced has been a written or printed record. The word “transcript” itself means a writing. When the Supreme Court speaks of the right of an indigent defendant to be furnished a transcript of his entire trial, the word transcript means just that. Thus, Mr. Justice Goldberg in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964):
As any effective appellate advocate will attest, the most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error . (p. 288, 84 S.Ct. p. 431).
Implicit in the President’s rules in the Manual — rules which have the force of law — -is [1129]*1129the requirement for a record that is written or printed.
We think it evident also that the President has for the most part reserved to himself the authority to make the rules for records of trial. The Secretary of a Department can prescribe rules pertaining to the record only when the President has said he may. Authorization for the substitution of videotapes in place of the transcript with which lawyers and judges have been trained to deal would bring about a profound change in the established practice. It is plain that neither the Congress nor the President has authorized such a change. Commandant Notice 5810 3 which purported to authorize “the use of videotape as the transcript” in Coast Guard courts-martial was issued without authority from the President. It is in derogation of the legal authority which belongs to the President and is without effect.
It follows that a lawful record of trial in the case above entitled has not, as yet, been referred to this Court; and consequently, the Court is not empowered to make a determination in the case.
We do not reach the due process question.
The material delivered to the Court of Military Review is returned to the Chief Counsel, U. S. Coast Guard.
Judge BRIDGMAN, Jr., concurs.
Judges MAGUIRE and LYNCH concur in separate opinions.
Judge YOUNG dissents.