APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist
MR. JUSTICE POWELL delivered the opinion of the Court.
The District Court for the District of Columbia preliminarily enjoined appellants, the Secretary of the Air Force and five Air Force officers,*fn1 from proceeding with
appellee DeChamplain's court-martial (i) on charges based upon Art. 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934, and (ii) on any charges whatever unless appellants allowed civilian defense counsel and certain other persons unlimited access to documents material to DeChamplain's defense. 367 F. Supp. 1291 (1973). The military authorities appealed directly to this Court, averring jurisdiction under 28 U.S.C. § 1252. We postponed the jurisdictional question to the hearing on the merits. 418 U.S. 904 (1974). We hold the case properly here under § 1252 and, finding its disposition controlled by our intervening decisions in Parker v. Levy, 417 U.S. 733 (1974), and Schlesinger v. Councilman, 420 U.S. 738 (1975), vacate the preliminary injunction and remand with directions to dismiss the action.
Article 134 provides, inter alia, that "crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense...." This clause of the article is an assimilative crimes provision, conferring court-martial jurisdiction over service-connected, non-capital federal offenses not covered by specific provisions of the Code.*fn2 In 1971, court-martial charges were
preferred under this provision against appellee DeChamplain, an Air Force master sergeant. Specifically, DeChamplain was charged with having copied classified documents, in violation of 18 U.S.C. § 793(b), and with having attempted to deliver such copies to an unauthorized person, in violation of 18 U.S.C. § 793(d). DeChamplain was also charged, under Art. 81 of the Uniform Code, 10 U.S.C. § 881, with conspiracy to communicate classified information to an agent of a foreign government, in violation of Art. 134 and 50 U.S.C. § 783(b), and, under Art. 92, 10 U.S.C. § 892, with failure to obey an Air Force regulation requiring that contacts with foreign agents be reported. All of these charges were premised on allegations that, while stationed in Thailand, DeChamplain twice had been in the company of a Soviet embassy official and subsequently was found in possession of 24 official Air Force documents, ranging in classification from "confidential" to "top secret." The general court-martial convicted DeChamplain of all charges. On appeal, the Air Force Court of Military Review held that certain inculpatory statements made by DeChamplain should not have been admitted into evidence; the court therefore reversed the conviction and remanded for a new trial.*fn3 The Court of Military Appeals affirmed.*fn4
The military authorities then prepared to retry DeChamplain before a general court-martial on substantially the same charges. The charges were amended, however, to delete all allegations pertaining to three of the classified documents, the Air Force choosing to forgo prosecution as to these documents rather than compromise their confidentiality. The Air Force also decided not to
introduce at the new trial 12 of the documents, assertedly because of their connection with DeChamplain's inadmissible inculpatory statements. Copies of all of these documents are contained in the record of DeChamplain's first court-martial, to which the Air Force has given DeChamplain's military counsel full access. Civilian defense counsel, however, were allowed access only to unclassified portions of the record and thus were not permitted to inspect those documents that will not be in issue at the retrial. The Air Force authorized DeChamplain, his military counsel, chief civilian counsel, one legal associate, and one secretary to have access to the nine remaining documents that the charges against DeChamplain now concern. It imposed restrictions, however, on the use of the documents: they were to be examined only in the presence of persons with appropriate security clearances; no copies were to be made; written notes pertaining to classified information were to remain in Air Force custody; and the information was not to be discussed with anyone other than those who had been authorized access.
At a pretrial hearing conducted pursuant to 10 U.S.C. § 839, DeChamplain challenged these restrictions. The presiding military judge sustained the restrictions, but granted the civilian defense team access to portions of the original record pertaining to the nine documents still at issue, subject to the restrictions applicable to the documents themselves. DeChamplain also moved to dismiss the charges on various grounds, claiming, inter alia, that Art. 134 was unconstitutional. The presiding judge denied the motion. DeChamplain ...