The opinion of the court was delivered by: PARKER
The plaintiff, a noncommissioned officer in the United States Air Force seeks injunctive relief against the Secretary of the Air Force, the Chief of Staff, Department of the Air Force, the Judge Advocate General of the Air Force and certain officers of the Richards-Gebaur Air Force Base, Missouri. His complaint alleges that he is scheduled for trial on November 15, 1973 by a general court martial convened by the Commanding Officer, 1840th Air Base Wing, on various charges and specifications in violation of the Uniform Code of Military Justice (UCMJ), specifically, Article 81 -- conspiracy, Article 92 -- failure to obey a lawful general regulation, Article 134 -- the so-called "general article," 10 U.S.C. §§ 881, 892 and 934. Those charges relate to alleged espionage activities by the plaintiff in the summer of 1971 while stationed in Thailand. A prior conviction and sentence on the charges were set aside and rehearing authorized by the Air Force Court of Military Review, United States v. DeChamplain, ACM 21034, 46 CMR (Oct. 5, 1972). That tribunal found that plaintiff's involuntary confession was wrongfully introduced at the trial. The decision of the Court of Military Review was affirmed on appeal, United States v. DeChamplain, 22 U.S. CMA 150, 44 CMR 150 (Feb. 16, 1973).
During the subsequent pretrial proceedings conducted pursuant to Article 39(a) UCMJ, 10 U.S.C. § 839(a), the presiding military judge rejected various objections made by defense counsel which are central to this litigation:
1. That the Article 134 specifications be dismissed based upon the recent decisions invalidating that provision as unconstitutional. Avrech v. Secretary of Navy, 155 U.S. App. D.C. 352, 477 F.2d 1237 (D.C. Cir. 1973); Levy v. Parker, 478 F.2d 772 (3rd Cir. 1973); Hooper v. Laird, 157 U.S. App. D.C. 195, 482 F.2d 784 (D.C. Cir. 1973).
2. That retained civilian defense counsel, Leonard B. Boudin, Esquire, be permitted complete access to certain classified documents for the purposes of copying and discussion with partners, associates as well as outside consulting experts. These documents which comprise the heart of the court martial charges, were allegedly transmitted by DeChamplain to foreign agents.
Substantial restrictions have been imposed upon Mr. Boudin's use of these documents. Copies would not be provided; examination could only take place in the presence of military authorities; no notes could be taken from the "secured" area; all notes taken would be reviewed by military officials to determine whether or not they must remain in the "secured" area; the classified information could not be viewed by or discussed with anyone except for one associate attorney and one secretary.
3. That the Court martial proceeding be open fully to the public and the press during all phases, including the time when the classified documents are discussed.
The plaintiff then raised these issues in a petition for Extraordinary Relief before the United States Court of Military Appeals. The petition was summarily denied, United States Court of Military Appeals, Misc. Docket 73-46, September 5, 1973. Complaining that these rulings by the military constitute serious deprivations of his constitutional rights to due process and fair trial, plaintiff now requests this Court to intervene in the military judicial process by enjoining the forthcoming court martial unless and until the alleged deficiencies are rectified.
On November 9, 1973 the matter came before the Court on plaintiff's motion for a preliminary injunction and the government's motion to dismiss. As to both motions, the government adopted a central position: that the posture in which the case is presented compels the Court to abstain from interfering with the court martial proceedings since the plaintiff has not exhausted the military remedies available to him through appellate review.
After full briefing and argument the Court concludes that the circumstances here presented are sufficiently compelling to warrant intervention and, in accordance with the Findings of Fact and Conclusions of Law set forth below, hereby preliminarily enjoins prosecution of the pending court martial of the plaintiff.
It is well established, and plaintiff must concede, that generally a serviceman must first exhaust his military remedies before a federal court will interfere with court martial proceedings. Noyd v. Bond, 395 U.S. 683, 89 S. Ct. 1876, 23 L. Ed. 2d 631 (1969); Sedivy v. Richardson, 3rd Cir., 485 F.2d 1115, decided September 26, 1973; Levy v. Corcoran, 128 U.S. App. D.C. 388, 389 F.2d 929 (1967). Accordingly, the government contends that plaintiff must first stand trial, which might result in acquittal, and then, if convicted, utilize the military appellate procedure before applying to this Court for relief. This rule is by no means inflexible and exceptions have been acknowledged. In Noyd upon which the government heavily relies, Mr. Justice Harlan noted that there may well exist situations which justify a claimant to seek vindication of his rights through the civilian courts without first utilizing the military appellate machinery, particularly when "the complainants raised substantial arguments denying the right of the military to try them at all." 395 U.S. 683, 696 n. 8, 89 S. Ct. 1876, 1884, 23 L. Ed. 2d 631. See also Hemphill v. Moseley, 443 F.2d 322, 323 (10th Cir. 1971). Although Noyd held that the doctrine of exhaustion would control, that decision was at least partially based upon the reluctance to pass upon questions of military law for which the Court felt no expertise.
This concern was also evidenced in the most recent case, Sedivy v. Richardson, supra. There, Sedivy had prevailed upon the district court to enjoin his pending court martial, claiming that the charges against him were not service-related and therefore the military lacked jurisdiction to try him. O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969). In setting aside the order on grounds of failure to exhaust remedies the Third Circuit observed that the claims raised necessarily involved factual determinations and factors which could have and should have been acted upon in the first instance by the military.
However, the court significantly acknowledged that under compelling circumstances the exhaustion requirement could be dispensed with:
"We perceive the presence of no countervailing circumstances to necessitate a departure from the normal requirement of exhaustion of military remedies before recourse to federal civilian courts." 485 F.2d at 1120.
The circumstances surrounding this case are such that unless this Court takes affirmative action Sergeant DeChamplain will be denied fundamental constitutional guarantees.
The matters raised in this litigation do not necessitate determinations which the military forum is best equipped to make. The issues are purely legal: whether the military has jurisdiction to try plaintiff for violations of a statute which stands unconstitutional under circumstances and conditions which may unduly impede his preparation and presentation of a sound defense. No compelling justifications ...