as a result of the identifying and rehabilitative process as evidence in court martial trials. Thus, the program combines rehabilitation with the prospect of strict disciplinary action when deemed appropriate by the Army.
An analysis of this drug program reveals serious constitutional infirmities when measured against established civilian standards. The special drug inspections authorized without probable cause are made in a most intrusive manner solely to ferret out drugs and are not analogous to the Army's traditional preparedness inspections. Compare with United States v. Lange, 15 U.S.C.M.A. 486 (1965); United States v. Grace, 19 U.S.C.M.A. 409 (1970). Such distinguishing features as the use of dogs, strip skin examinations and detailed intrusion into a soldier's personal effects take this procedure out of the narrow exemption from traditional Fourth Amendment restrictions that has been carved out for legitimate inspections. Compare United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972), with Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973). The drug inspection described above constitutes a mass search, and would be illegal in a civilian context if conducted in the absence of particularized probable cause. See Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). Moreover, the subsequent use for disciplinary purposes of facts developed during such a search or during participation in a rehabilitative program ordered by reason of an illegal search would be equally improper. The fruits of an initial illegality cannot be used to punish. Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In fact, since the rehabilitative program contemplated by the circular itself entails intrusive searches and interrogation, information obtained during drug processing could not be used for disciplinary purposes unless the Army had probable cause, obtained independently of that processing, to believe that a particular soldier was guilty of drug abuse.
The circular also provides for the imposition of numerous administrative sanctions without hearing. These sanctions may restrict the immediate liberty of the soldier, reduce his eligibility for promotion, taint his military record, and lead to forms of discharge carrying a serious stigma affecting his future civilian status. Such sanctions are serious and often are not dictated by emergency health or safety concerns, so the complete absence of a hearing in any form
offends due process. See Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971).
There is no need to elaborate on these constitutional infirmities in detail, for the law has been well defined in these areas and, indeed, defendants have not seriously quarrelled with this analysis. They assert, however, that because of military necessity they need not comply with constitutional safeguards otherwise applicable.
At the very outset of these proceedings, and continuously thereafter, the Army has interposed its claim of military necessity. It urges that the USAREUR drug abuse program is required to prevent serious impairment of morale and discipline and that, accordingly, under the well-established doctrine enunciated in such cases as Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953), and United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), the constitutional rights of soldiers affected by the program must be judicially determined to be inapplicable under these circumstances. The Army has the burden of establishing military necessity, however, and it has failed to do so.
The doctrine of military necessity does not embrace everything the military may consider desirable. One does not automatically forfeit the protections of the Constitution when he enters military service. The constitutional rights of a G.I., including his privacy, may not be infringed except to the extent that the military can demonstrate by concrete proof an urgent necessity to act unconstitutionally in order to preserve a significant aspect of discipline or morale. The present drug program, which also applies to alcoholics, arose not solely from some military situation encountered in the field but rather represents the Army's effort to implement a congressional statute. In 1971, Congress directed the Secretary of Defense to "prescribe and implement procedures, utilizing all practical available methods . . . [to] identify, treat, and rehabilitate members of the Armed Forces who are drug or alcohol dependent persons. . . ." Pub. L. No. 92-129, Title V (Sept. 28, 1971). This statute provided the primary legal basis for the Army's action in establishing the program here under review. An examination of the language and legislative history of this and related statutes demonstrates that Congress at no time intended to authorize the military to proceed with a drug/alcohol program in disregard of fundamental constitutional safeguards. Indeed, its focus has been entirely upon treatment, not punishment. See Pub. L. No. 92-129 (Sept. 28, 1971); 21 U.S.C. §§ 1101-1191; H.R. Rep. No. 775, 92d Cong., 2d Sess. (1972). See also note 3 supra.
The Army sought to support its claim of military necessity by referring to information indicating the extent of the drug problem in the European Command. Surveys of drug abuse since 1970 reveal a fairly stable level of daily drug use: ten to fifteen percent for cannabis and one to two and one-half percent for other drugs. There are no reliable statistics with respect to addiction, and the Army's claim of increasing drug use is subject to serious question because of changes in testing procedures. It is certainly clear that drug use in the Command has not reached anything comparable to the epidemic proportions detected in Vietnam and is not particularly different from drug use encountered among civilians in major United States cities. See generally Defs.' Ex. 2.
Even this limited extent of drug involvement within the Command creates a situation which obviously requires attention and perhaps even limitation of the constitutional rights of particular troops in highly sensitive duty assignments, but it does not reflect the type of urgent and generalized threat to military morale or discipline which would warrant ignoring constitutional safeguards as to everyone in this large Command.
The difficulty with the circular, as plaintiffs repeatedly point out, is that it attempts to deal with the drug abuse problem not only as a health problem, as Congress intended, but also as a disciplinary problem. The Army has, since 1970, moved gradually in the direction of rehabilitation rather than discipline in dealing with medical problems such as drugs, alcohol, personality disorders, and the like, but it has not foreclosed its punitive options. While the Court can see nothing unreasonable in conducting intrusive searches without probable cause for the sole purpose of placing individuals into a medically oriented drug rehabilitation program, or with placing soldiers merely suspected of drug abuse into such a program, the USAREUR drug plan is not so limited. Far more than reasonable health monitoring precautions are involved. Cf. Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. Ed. 2d 408 (1971). Information developed for medical purposes can be used in court martial proceedings, to impose strict administrative sanctions, and to justify an unfavorable discharge which will follow the G.I. for the rest of his life.
In the absence of a showing of military necessity, illegal searches and the imposition of penalties and other discipline without fair hearing cannot be permitted. Inspections without probable cause undertaken for the specific purpose of identifying drug users which involve the use of dogs, strip searches, examinations of body cavities and the most intimate inspection of a G.I.'s most private belongings cannot be justified under any circumstances unless the results of such inspections are confined to medical treatment of the drug abusers so identified. Soldiers forced into the rehabilitation program on mere suspicion must be protected against discipline or unfavorable discharge based on information developed during medical processing. Moreover, failure to provide a hearing prior to the imposition of non-medically oriented administrative sanctions which significantly affect a G.I.'s liberty or property is constitutionally unsupportable.
Two other aspects of the USAREUR drug plan can be dealt with summarily. First, the provisions permitting dissemination of drug information to non-military government agencies and even, under more limited circumstances, to civilian applicants are in direct conflict with 21 U.S.C. § 1175, through which Congress sought to protect from stigma those who entered federal drug programs. See H.R. Rep. No. 775, 92d Cong., 2d Sess. (1972). Defendants argue that this statute was not intended to apply to the Army, but the Special Action Office for Drug Abuse Prevention, an agency set up to administer the statute, has ruled otherwise, see 37 F.R. 24636-37 (Nov. 17, 1972), and its reasoning is persuasive. See Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965).
Second, the circular's poster regulation is impermissible. Paragraph 14d(4) authorizes Commanders to prohibit the display on barracks walls of posters and other items which, in their estimation, constitute "a clear danger to military loyalty, discipline, or morale." Cir. 600-85, para. 14d(4). This is obviously too vague a standard by which to regulate First Amendment liberties. See Avrech v. Sec. of Navy, 155 U.S. App. D.C. 352, 477 F.2d 1237 (1973); Stolte v. Laird, 353 F. Supp. 1392 (D.D.C. 1972); Keyishian v. Bd. of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); NAACP v. Button, 371 U.S. 415, 432-433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1967); Cox v. Louisiana, 379 U.S. 536, 555-558, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965).
In light of this analysis, the Court concludes that the existing USAREUR drug plan is so interlaced with constitutional difficulties that Cir. 600-85 must be withdrawn and cancelled, along with all earlier related orders and instructions. The Army is, of course, free not only to reestablish its drug rehabilitation program but also to punish drug offenders. The Court requires only that any directives with regard to disciplinary proceedings, courts martial, administrative discharges, the regulation of posters or the dissemination of drug information conform to the limitations set forth in this Opinion and in the relevant legislation.