The opinion of the court was delivered by: GESELL
This is a class action brought on behalf of all G.I.'s attached to the United States Army's European Command. Plaintiffs claim that certain features of a drug abuse prevention plan developed by the Army for that command are unconstitutional and they seek a declaratory judgment and injunctive relief.
The issues have been narrowed and clarified during several pretrial proceedings. Plaintiffs have abandoned damage claims. The Army published a revised comprehensive statement of the plan on September 10, 1973, which reflected a reevaluation of the program and coincidentally satisfied some objections previously urged by plaintiffs. The plan as now before the Court is embodied in an elaborate circular designated as USAREUR Circular 600-85 (Sept. 10, 1973),
and the litigation has focused on certain clearly identifiable provisions in that document. The parties have filed affidavits and briefs and the case is before the Court after full oral argument on cross-motions for summary judgment. The pertinent facts are not in dispute, although the legal positions of the parties are in sharp conflict.
The original complaint filed in April, 1973, was somewhat diffuse and raised a variety of issues reflecting the uneven manner in which the drug program had been administered in its early stages and uncertainties caused by some confusion in the implementing directives. Defendants at that stage properly opposed certification of the alleged class. In view of the pretrial development mentioned, however, certification under Rules 23(b) (2) and 23(c) of the Federal Rules of Civil Procedure is now appropriate. The named plaintiffs have ably represented the class, joinder of some 145,000 G.I.'s is impractical, the challenged plan, as clarified, is applicable to the entire class, and common issues of fact and law can be readily identified and can be most efficiently adjudicated in a single action. The class will be certified as representing all soldiers in the European Command with ranks of E-1 through E-5 who are subject to the drug provisions of Cir. 600-85.
The USAREUR drug prevention plan is designed to identify drug pushers and users, to provide users with medical assistance, counselling and other support directed toward rehabilitation, and, where rehabilitation fails, to eliminate confirmed drug users from the service. The program is directed against use of both hard and soft drugs. In broad outline, the authorizing circular in pertinent part contemplates the following procedures.
The Army drug inspection has developed over the past few years and is specifically authorized under the new plan. See Cir. 600-85, Annex I (3, 4). Inspectors are permitted to examine all of the soldiers' property (although they may search personal items such as wallets only cursorily in order to determine the presence of contraband), their clothing and even their entire exterior skin area for drugs or indications of drug use. All inspections are to be conducted without undue harassment, in the presence of those whose property is under examination, and, in the case of skin searches, with as much privacy as is possible. Groin or anal inspections must be conducted by qualified medical personnel in complete privacy. Drug detector dogs may be used throughout the inspection process. Cir. 600-85, Annex C (5).
When a soldier is identified as a possible drug user, whether on the basis of an inspection or otherwise, he is subject to mandatory drug processing. Cir. 600-85, paras. 7-13. He is first confronted by his Commanding Officer, who informs him of the basis for the identification, warns him of his rights, and permits him to provide relevant information to dispel the suspicion. The Commander may then refer the soldier to a Community Drug and Alcohol Assistance Center (CDAAC). If the Center finds credible evidence of drug abuse, it must send the soldier to a Medical Treatment Facility (MTF) for clinical evaluation. Counsel is provided during the MTF interviews, if requested.
Prior to medical confirmation of drug abuse by the MTF, no disciplinary or rehabilitative measures may be taken except for the temporary suspension of access to classified material, the loss of flight status, the suspension of nuclear duty, and, if the soldier has been involved in an automobile accident, the temporary suspension of his driver's license. Cir. 600-85, para. 14d(3).
Once a soldier has been designated a "confirmed drug abuser" by the MTF, however, a variety of restrictive sanctions may be imposed. The MTF will either admit the soldier to a hospital or return him to CDAAC for development of a 60-day rehabilitation program, which may include urine and other testing, treatment, and counselling at a variety of drug facilities. In addition, the Commander may elect to impose one or more administrative sanctions, including temporary withdrawal of pass privileges and/or suspension of a driver's license without hearing. Medically confirmed drug abusers may be required to move onto the base (even if billeted with wife and family off base) and may be segregated into a separate section of the barracks. Cir. 600-85, Annex J.
By the end of the 60-day period, the Commander must determine whether or not the drug abuser is a "rehabilitative success." If not, he must be processed for administrative discharge under circumstances that may adversely affect his military record. If his rehabilitation is deemed satisfactory, he may be returned to normal duties but will be subjected to 300 days of follow-up testing and observation, including unannounced urinalysis testing twice a month. The effects of this processing, including preclusion from promotion and the stigma of having been labeled a confirmed drug abuser, may continue long after even the follow-up period has terminated successfully.
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. ...