*2 McGOWAN, Before TAMM and ROBIN- SON, Judges. Circuit Opinion for the by Court filed Circuit Judge McGOWAN.
Opinion by filed Judge TAMM, Circuit concurring part dissenting part. McGOWAN, Circuit Judge: an appeal This is from a judgment of the District enjoining Court the enforcement at Corps Marine Air Iwakuni, Station in Japan of certain Marine Corps and Navy require which prior approval for by military personnel of, circulation in- alia, petitions ter Congress. members of F.Supp. The District Court declared violative of both the first amendment and 10 U.S.C. (1970) insofar apply to materials distributed during on-base off-hours and away from restricted or work areas. For herein, reasons appearing refer- ence to statutory, as distinct from the constitutional, ground, we affirm the Dis- judgment trict Court’s insofar as it relates petitions, and vacate it insofar as it ex- tends to other materials unrelated to the petitioning process.
I procedural posture of appeal complicated in respects. two We describe pre- them in some detail in order that Kaplan, Atty., Asst. U. Wash- Neil A. S. issue addressed and cise decided Silbert, C., Earl J. U. ington, D. with whom opinion may be identified and understood. Terry, U. A. Asst. S. Atty., and John S. brief, C., complication were on the first relates to the na- Washington, D. Atty., Meier, ture upon regulations. Asst. U. of the attack Derek I. S. appellants. Hollander, challenge This Kopp, E. was certified Robert District Atty., Morton Justice, Court as a class action on Etra, Wash- behalf of all Attys., Dept, of Donald Corps assigned members of the Marine C., appearances for entered ington, D. also the Iwakuni Air Station. Each of the three appellants. and the class with plaintiffs named largely plaintiffs had named held distribution. The Court on-base circulate, approval denied been challenged regulations constitute off-base, petitions and certain related mate- upon circulation prior restraint an unlawful plaintiffs rials. Two of these nevertheless personnel away service distribution; of materials both were undertook such ar- *3 off-duty during hours. areas from restricted convicted in a court- rested and one was have con- forces officials Appellant armed summary for martial. On cross-motions ceded, Court and on this in the District both upheld District Court the judgment, the for on- specific requests the appeal, to off-base regulations pertain dis- plain- the named made foreign distribution of materials in a base country, tribution the denied under not have been tiffs should plaintiffs’ therefore denied the named and However, appel- regulations.2 request injunctive relating applicable for relief holding that the broad do contest and for lants arrests court-martial unauthorized by the imposed restraint prior of have not Appellees distribution.1 off-base Thus, ques- the Dis- portion of invalid. from this is itself cross-appealed the issue of is whether judgment; appeal and this presented trict Court’s tion facially invalid distribution are challenged regulations for off-base approval prior approval is therefore not generally they require prior materials written insofar in non-work appeal. off-duty, distribution us on on-base before areas.
However, grant complication relates the District Court did The second particular activity injunctive type upon both the which declaratory relief to and really “Right held that because off-base are 1. The District Court Amendment many On”. Yet activity political “superiors” anyone violate the Status of could of our call who Agreement the United States between right Forces tries his to exercise First Amendment Japan, political which restricts activities speech press and freedom and a “communist”. Japan, sys- of our armed forces They put members anyone really also down who be- prior to such restraint with tem Independence in our lieves Declaration of activity was reasonable. upholds any which of the citizens of country change government when it complaint four instances in which states 2. The unresponsive becomes to their needs and permission appellees to distribute were denied people country idea that the of a should be 2, 1974, appellee May On materials on-base. government able to choose their own form of requested permission signatures to solicit Huff government even if the leaders of our disa- Cranston, petition to Senator on a addressed gree with their choice. disputes objecting in labor of mili- to the use request Huffs to distribute the leaflet off-base guard personnel. May tary and national On granted, request but Falatine’s for on-base requested permission appellee Falatine denied, ground distribution was on the petition signatures Congressman for a solicit “[tjhe is, introductory paragraph by transpar- Dellums, supporting universal and uncondition- implication, disrespectful contemptu- ent amnesty who for those resisted draft or al your officers, superiors, ous all non-commis- during the Vietnam war. deserters On 20, 1974, requests sioned officers and civilians alike.” May both these were denied 30, 1974, July Huff, alia, Finally, appellees ground, they impugned Fa- inter on the latine, requested permission “by and Gabrielson innuendo the motives and conduct ’’ Fulbright, object- a letter to distribute Senator Commander-in-Chief. ing support regime American requests having South been de- Their Huff, Falatine, 24, 1974, nied, Korea. and three other Marines Huff and Falatine on June each July permission had been arrested on uting distrib- circulate a leaflet entitled (But this same letter to be Self-Evident off-base without hold these Truths “We approval, July Brass?).” requests sought The leaflet contained first the three Do the portions concerning up- of the Declaration of distribute a statement amendment (with interpretationjs]” July Independence coming “modem court-martials of those arrested on thereof), introductory paragraph copies Fulbright which and an as well as letter Although requests read: itself. Huffs and Falatine’s country years will our have granted, In two for on-base distribution were Gabriel- birthday. Many principles of the basic permission 200th son was denied to distribute the upon country was founded like Dec- our material the barracks. Independence and the First laration with alleged principles to be an unlawful of the first amendment regulations broadly and the ap- Independence. restraint. Declaration of See “originat[ing], signpng], supra. distrib- note 2 ply utpng], circulatpng] promulgatpng] peti- The causal connection between the initial tions, publications . pamphlets, attempts unsuccessful to circulate petitions, handbills, newspapers, magazines, flyers or hand, on the one subsequent re- material,” printed other similar or written quest to distribute the Declaration of Inde- applies order District Court’s pendence, other, is even more appar- equal any breadth to distribution of ent when one considers that a principal in the on-base context material heretofore grievance stated the Declaration itself However, described. we believe that was that appeal can and should be resolved refer- ence to that which is the focal every stage of Oppressions these We [i]n *4 point regulations of both the and the re- have Petitioned for Redress in the most quests plaintiffs, made the named name- humble repeated terms: Our Petitions ly, petitioning by servicemen of members of have been answered only by repeated in- Congress. jury. Petitions are the first type of material Signers The of the Declaration felt com- mentioned in the regulations, petitions and pelled grievances to state their to the world only type are the of material to which all after those in authority rebuffed peti- proscribed the activities (originating, sign- tions and other efforts to resolve those ing, distributing, circulating promul- grievances. Appellees case, in this blocked
gating) literally can apply. Three of the in their attempts petition the Congress, requests permission four to distribute sought in aid attempts of those to point out on-base described in complaint directly that refusal to allow petitions such ap- petitions involved Congress.4 members of peared to violate the principles stated request The fourth as appears well to have Declaration.5 borne a close clearly derivative rela-
tionship to these frustrated
Thus we
that the
consider
record illumi-
petitioning ef-
forts. That request
nates in concrete factual
terms only
distribute a
leaflet
—to
quoting the first
question
validity
of the
of the
portions
amendment and
of the
they pertain
Declaration of
Independence
directed towards
—was
appellees
made
two
of Congress. Finding,
who
had each
we
short-
ly
do,
permission
before been denied
restraint in such a case is at
to circu-
petitions.
late
with
statutory
The
odds
“modern
command
Con-
interpreta-
gress,
tion” of
grievance
the first
believe the essential
amendment contained in
the leaflet
included the
suffered
this case is met by limiting
statement that “the
government
injunctive
cannot
declaratory
take
relief to the
away
peti-
our right to
petitions,”
circulate
tioning
availability
context. The
of such
title of the
leaflet and introductory paragraph
always
in the
indicate relief
resides
sound discretion
purpose
court,6
was to declare the view
and we see neither
the neces-
officers,
that commanding
who had
sity
denied
nor the desirability
reaching
on this
requests,
were not acting consistently
question
record the
validity
facial
accompanying
3. See text
note 11 infra.
supra.
5. See note 2
Huffman,
See Great
ap-
The
Lakes Co. v.
material
to be distributed
319 U.S.
293, 299-300,
pellee
63 S.Ct.
Gabrielson included
L.Ed.
both a letter
to a
congressman
(1943);
concerning
Declaratory
and a
Judgment Act,
statement
Federal
ar-
(Supp.
previously
1976).
rests of
U.S.C.
VI
other Marines
distribut-
ing
prior approval.
the letter without
See note
supra.
in that consideration would be
step
the next
to materials
guide
which
com
to examine the standards
Congress.
than
deciding
whether to authorize
manders
activities.
In the civilian con
II
the standards would have to be nar
text
all of
challenged regulations,
four
definite,
row, objective, and
see Shuttles
language,
operative
same
have the
which
147,150-51,
Birmingham,
U.S.
worth
scope
geographic
only in the
differ
(1969),
22 L.Ed.2d
89 S.Ct.
Thus,
regula-
apply.
which
area
heavy presumption
“a
there would be
Fleet
the form of a Pacific
are in
tions
validity” of
against
constitutional
[the]
Instruction,7
Pacific
a Fleet Marine Force
censorship implemented by the
Wing
Aircraft
Or-
Order,8 First Marine
Pro
challenged regulations. Southeastern
Corps
Marine
Air Sta-
der,9
Iwakuni
and a
Conrad,
546, 558,
motions,
Ltd. v.
U.S.
operative language states
tion order.10
(1975).
[n]o tions with communicating Congress. legis- force from members an armed Congress, history a member unless the com- lative § confirms that Con- regula- or violates gress sought legislation munication is unlawful prohibit necessary security tions of the military commanders from interfering with United States. communications members of Congress in sending advance of the actual com- statute, Congress has enacting eased A system munications.14 re- in evaluating task of the courts opposed, instance, straint —as validity right restrictions post penalties hoc imposition petition. only indicates for scurri- statute lous, obscene, mendacious, or improp- that free and unrestricted communication er precisely forces communications—is by members of the armed with the what Con- gress prohibit, thereof is Congress particu- subject or members intended to branch, legislative limited exceptions lar concern but noted the statute. that such communication be also commands contends, however, The Government subject protection beyond to additional quoted that the statute above was intended speech by afforded other kinds of the first protect letters individuals Whatever standards be amendment. members of Congress.15 leg We think the apply generally held to restrictions on islative history indeed leaves no doubt that military, speech within the the standards to to present solitary, individual applied to on petitioning restrictions grievance to is en Congress a member of related cannot be less stringent compassed 1034.16 But there is no provided Thus, those than indication that this is the outer limit represents legislative statute evaluation Congress sought communication which competing interest in free expression *6 protect passing legislation. views in We Congress, of to members of hand, agree with special requirements Secretary one and the the of that of Defense military, protects the also right petition § the other. The the to difficult balancing which would otherwise Congress. have to be members of In a Directive enti accomplishedby judiciary the has tled leg- Handling been “Guidelines for Dissident islatively resolved: restrictions imposed Among Protest Activities Members upon lawful Forces,” communication to Congress Armed he stated: provision originally only 14. The protects was also enacted in 1951 have intimated that § 1034 an Military right amendment the Congress. to Universal the to send individual letters to Training 144, 1(d), and Service Act. C. security” exception § While the “national Stat. 78. The amendment was may offered Con- petitioning statute narrow the nature of gressman Byrnes of Wisconsin in order to protected in activities a combat zone such military regulations required counteract which Carlson, was involved in we do not think and Congress that to communications be sent implying do not dicta in read the Carlson as “through support official channels.” In of his letter-writing only that individual is the amendment, Congress Byrnes stated: protected at a base such as Iwa- § I will admit . . that . there is no restric- kuni. right tion on [the] to send communications channels, through anybody but knows that purpose 16. When whether the of asked the certainly that is a restriction in and of itself. permit any amendment “to man who is Cong.Rec. 3776, 12, p. April 1951. Minor pencil inducted to sit down and take a changes wording made when the stat- paper Congressman and write to his Sena- or was recodified in C. ute 1956. 70A Stat. tor,” sponsor replied, of the amendment right.” Cong.Rec. p. 3776, April “That is opinion Schlesinger, supra, 15. The in Carlson U.S.App.D.C. 325, 1333, may 511 F.2d at right complain ing of members to of our § next task is to determine against request grievances redress ac- system whether the restraint at protected by their commander is tions of issue falls within one of exceptions to Code of Mili- Article Uniform general prohibition of that statute. It addition, In tary Justice. a member seriously is not contended that the materi- petition any grievance present to als in “unlawful,” issue here were within (10 Congress 1034). member U.S.C. § the meaning of that term as used in § 1325.6, III D.O.D. Directive No. G by reason of their particular content. The added). suppose would (emphasis We that states, however, statute also re- often a soldier’sintended communica- quite straint is prohibited not where the commu- effectively not Congress tion with could be nication thus restricted regula- “violates letters, as, accomplished through solitary tions to necessary security of the Unit- instance, objective is when the to com- ed States.” Thus question we face is widespread dissatisfaction con- municate whether the requiring prior ap- cerning particular grievance, rather than proval of petitions Congress on the Iwa- grievance itself. We merely the also note kuni Air Station are necessary to the securi- system prior restraint at issue in ty of the United States. evidently applies peti- this case We note that way not the kin, also their next tions but coordi- courts the two involving other cases mailing campaigns pre- utilizing nated facial containing validity similar printed forms or letters identical restric- messages. tions distribution of such materi- have framed the statutory appear subject to prior ap- question al would before them.17 Rather than deter- proval. mining whether the of prior re- particular straint circumstances be-
Particularly long in view of the cher- fore them security is within national country, ished tradition in this embodied exception to these courts have meas- (“. right the first . amendment ured the assemble, security” standard of “national people peaceably and to against petition Congress guidelines for a which griev- redress armed forces ances”), personnel presentation griev- guide collective have set down to command- authority ances those in in the form of ing granting requests officers in or denying unlikely it most that in petitions, think distribute. both this case and the right communicate protecting griev- concerning other two cases restraints on Congress, Congress ances to did not intend activities, guidelines essen- protect sign to solicit others to tially state permission to distribute such communications. petition should be denied if the at issue presents danger “a clear to the loyalty, Having concluded that ac- *7 discipline, or of safety” per- morale service in the tivities restricted this instance sonnel, or are if it advocates unlawful challenged regulations communications behav- Congress members of within the mean- ior.18 to Monger, supra (2) F.Supp. danger loyalty, at a
17. See Allen v. Present clear the to dis- Wade, 8); (U supra F.Supp. cipline, safety personnel Glines v. morale or to of his Court, however, command; or, prop- at 130-31. The District erly question very phrased (3) the whether “the Involve distribution of material or the system prior causes, rendering attempts tion, of restraints ... is uncon- of or counsel that advice stitutionally cause, advocates, of restrictive First Amendment to or insubordina- F.Supp. mutiny, duty, disloyalty, at 868. freedoms.” of refusal solic- material, comprises, pornographic or ad- deny permission are to to Commanders told vocates, of or solicits international violation if distribute such distribution would or, agreements; treaties or (1) Materially safety, oper- planning perpetration with the interfere the Involve or of ation, unit, or or control of his the of the an unlawful act or acts. command Nearly guidelines assigned particular of identical duties members MAWO 5370.1A. are stated in command; or, regulations challenged the other tioning activity, types speech, the two cases as on other of holdings in The always possibili- the be said to decrease the are broader than can guidelines these that ty discipline. We security exception lapses ad of of statutory national view, which, that agree long need with the District Court our question dress a per- guidelines as the on-base is particular The not be reached. away restricted or work areas personnel have set formed from which armed forces hours, no during off-duty there should be commanding officers guide down to these activities prior approval required for requests to distribute denying granting “necessary not to approval if first such is it is deter because relevance assume security.” system prior ap of the national that basic mined is petitioning activity itself proval system prior of invalidation Our security the United to “necessary Congress at on to petitions restraint were affirm If this determination States.” leave Iwakuni Air does not Station ative, we the issue of would face then against ser- commanders without recourse guide set in the the standards out whether petitions which personnel vice who initiate requests are also rejection of com lines for prove be in their content. See improper statutory standard. mensurate with - p. U.S.App.D.C., of 188 p. request distribute is a grant a Refusal supra. F.2d Those who undertake such second, in addition to separate restriction petitioning may punished applica- be universally applicable restriction which provisions Military ble of the Code of Jus- system prior form a re takes the is applicable tice or under criminal law. It that when emphasize again straint. We petitions on system prior restraint on restrictions commu Congress prohibited incompatible is with Congress which it Congress, clearly intended nications system apply to a prohibition Ill prior approval itself. strenuously argued The Government has Supreme showing has that this case is controlled We conclude that no Spock, 424 U.S. that restraint Court’s decision Greer been made Iwakuni Air L.Ed.2d 505 activities respond argument at some necessary security. is to the national We Station think it is on im- findings length the District Court with because we based scope portant misconceptions mission about nature extensive, major por- holdings but it is clear in that case. the base not opinion not actual tion of the related to the station is in an Greer political an absolute ban on holding current combat zone. While affidavit Dix, Jersey at Fort New introduced the Court below states that demonstrations “combat-ready,” permissible, holding constitutionally there are no was base person directly statutory issue performed by combat base not relevant activities during peacetime.19 relating petitioning Congress. nel us We understand before However, first discipline might order and Greer also held more tightly plaintiffs the civilian given rights maintained were commanders amendment the opportunity regulation another to screen violated circulation, prohibited distributing po- but not think that which them from do can literature at base with- *8 security require campaign national be said litical objective discipline approval. that prior of be out command Because the pursued plaintiffs presented had exclusion of all other inter Greer not case, approval, ests. this prior If then 1034 literature for Court did § nullity, peti- regulation would be a for restrictions on not face the issue of whether the Monger, appeal. also v. F.Supp. See Allen su- 19. See at 867-68. Wade, pra (- F.Supp. 10); v. Glines at 1086 supra F.Supp. at 131. rather, based, applied; above-quoted
was constitutional
statement
is con-
challenged regulation
held that
because,
Court
holding
sistent with our
as earlier
invalid,
838-840, 96
facially
id. at
noted, commanders remain
to punish—
free
1211.
S.Ct.
thus
petitioning
activities which
deter —
or
unlawful
otherwise inconsistent with
authorizing
regulation
prior
in Greer
mission. We
have held
as follows:
restraint
read
that at a base such as Iwakuni commanders
any publi-
or
posting
The distribution
are not free to use
prior
cation,
re-
including newspapers, magazines,
activities;
handbills,
circulars,
straints to inhibit such
flyers,
pamphlets or
they re-
issued,
writings,
published or
other
other- main free to do so in
ways.21
person
is
prepared by any
wise
...
that,
We also note
even if we were to
Military
Dix
prohibited
Fort
Res-
decide the issue
us
before
on constitutional
.
prior approval
ervation without
grounds, it is not clear that Greer would be
controlling.
study
Careful
the regula-
831,
guidelines
course, to elect minimally guaran- those extending beyond this case arises from events that in occurred Whatever by the Constitution. teed purely military a Both environment. in base of guarantee may be a reach that Congress Supreme have long and the Court kind, Congress that plainly is evident it is, recognized military that “the necessi by a has been motivated enacting 1034 in § society separate a from civil ty, specialized limit, to strengthen, and not to purpose 733, society.” Levy, ian Parker v. 417 U.S. rights petition in amendment first 743, 2547, 2555, 94 41 L.Ed.2d S.Ct. 439 is, any It in personnel. of service case (1974); see Orloff v. 345 Willoughby, U.S. event, to which statutory standard 83, 534, 94, (1953). 97 L.Ed. 73 S.Ct. 842 of the ser- determining validity look example, Congress made it a For has case; challenged in this regulations vice felony urge attempt to cause or insubor wanting inso- these we find and dination, disloyalty, mutiny, refusal of petitioning activity with as deal far duty by member of the armed forces. Congress. to members directed See 18 U.S.C. 2387-2388 Similar §§ to the District Court case We remand ly, the Court has often indicated its aware judgment in the to revise its with directions military's ness of the need “a herein. indicated manner duty counterpart a without discipline is so ordered. It Councilman, Schlesinger life.” civilian 738, 1330, 757, 1300, 420 95 U.S. S.Ct. 43 part TAMM, Judge, concurring in Circuit (1975); Spock, 591 Greer L.Ed.2d see dissenting part: 1211, U.S. L.Ed.2d well-writ- Judge I concur in McGowan’s J., (1976) (Powell, concurring); Burns v. it as opinion insofar very careful ten Wilson, 73 S.Ct. U.S. court’s portion of the district vacates the (1953) (plurality opinion). L.Ed. 1508 I unre- extends to materials judgment that well-accepted propositions mention these However, process. lated my legislative ju illustrate belief that with the agree unable to because I am that seek to military dicial actions limit a he reaches concern- and result conclusions disciplinary prerogatives commander’s addressed ing multi-signature petitions as necessary should be as intrusive is forces, I Congress by members of the armed part accomplish the effect desired. from that respectfully must dissent opinion. his II
I premise, I foregoing Consistent with exercising appropriate degree By an affecting disci- believe that laws restraint, writ- judicial Judge McGowan has narrowly solely interpreted very opinion pline ten a narrow based should statutory he grounds. reading The result reaches possible, expansive because an first, two conclusions: that a follows from the authori- such statutes circumscribe more one individu- petition, signed by than an extent ty commanders al, representative senator or addressed my opin- Congress. never intended forces, by a is a member of the armed ion, case in this conclusion court’s protected communication under 10 U.S.C. un- communications protected second, (1970); assuming such a clearly beyond goes der 10 U.S.C. § petition protected, re- passed when it what intended Congress quiring prior petition by approval of the statute. appropriate military authority are not nec- legislative objective reading of the An essary to the security of the United States. purpose the sole history demonstrates disagree I conclusions. both these 1034 was ensure enacting U.S.C. them, however, commenting Prior member preliminary are in order. that an individual few remarks
917 time, could, at any write to his senators or trates Congress that had no difficulty in representative being required without to employing unequivocal language when it proceed through have the communication did that multi-signature petitions intend be sponsor command channels. The protective included within the ambit of a amendment, Congressman Byrnes of Wis- “Right petition statute. Entitled to Con- consin, introduced the measure because of gress; employees,” 5 U.S.C. § an incident in which an sailor individual (emphasis added): states right “The of [civ- Byrnes desired to communicate with Mr. il employees, individually or collec- service] a personal grievance about and was “told tively, petition to Congress or a Member of by commanding ship his officer aboard that Congress, or to furnish information ei- to Congress- a direct communication with his ther House of Congress, or to a committee prohibited man was and it would him make thereof, or Member may not be interfered subject Cong.Rec. court-martial.” with or denied.” Section on the other notes, As the majority in a hand, makes no mention of key words fashion, somewhat offhand see Majority “petition” or “collectively,” and I hardly opinion, supra at-of-U.S.App.D.C., think that we should read into that statute n.16, Byrnes at 912 575 F.2d when Mr. something Congress clearly did not intend purpose was asked whether “the [of to be included. permit any amendment ‘to man who is was] Congress wisdom of in not extending inducted to sit pencil down and take a the protection afforded petitions by civil paper Congressman and write to his or Sen- service employees petitions by members ator’,” he replied, right.” “That is Cong. is evident. The overt acts added). Later, Rec. (emphasis required generate a petition, while responsible chairman of the committee mildly disruptive performed by tasks the legislation, Mr. Vinson of Georgia, reit- civil service' employees if done during off- erated the amendment was intended hours, duty could very be harmful to mili- every “to let man in the armed services tary discipline case, and morale. writing have the privilege Congress- his appellees desired to canvass virtually every subject man on any or Senator if it does not off-duty area of the bar- including base— violate law or if it does not deal with racks, exchange, the base and the enlisted some secret matter.” (emphasis Id. at 3877 men’s gain club2 —in an effort support added). If one construes the statute strict- petitions. I it find difficult therefore, ly, it as most certainly ought to Congress believe that intended the narrow construed, it is apparent that individual language of 10 U.S.C. 1034 to afford § communications with represent- senators or protection blanket activities, to these since atives indeed intended to be “the out- such protection necessarily strips the local er limit communication which Con- commander of even the very limited gress sought protect passing legis- review Majority opinion, lation.” - See supra at scrutiny here. of 188 U.S.App.D.C., at F.2d; Carlson v. Schlesinger, 167 U.S.App.
D.C. 511 F.2d (1975).1 Ill The soundness of this arguendo conclusion is even Even assuming multi-sig apparent more when one considers a direct- nature are covered 10 U.S.C. statute, ly analogous enacted forty almost disagree I § the conclusion that years before 10 U.S.C. which illus- provide for a present grievance any This construction of 10 U.S.C. § 1034 is en- tition or member tirely Congress consistent with DOD Directive No. 1325.6 “peti- . —indicates (1969), Appendix (J.A.) being III G Joint singular at 65-69. tion” is used in the sense in that petition signed person A can be either one document. by many persons. wording of the di- (emphasis added) may pe- rective 4; member entry 17, 2. J.A. at —“a Record at 5. notice, immediately very react or on short activities on
prior review
*11
previously
“necessary to mission we have
denominated
are
Air Station
Iwakuni
v.
strong
“a
national
interest.” Hess
the United States.”
security of
the
51,
U.S.App.D.C.
fa
159
486 F.2d
argument
Schlesinger,
in
majority’s
the
linchpin of
1311,
Iwakuni
at
from
quote
length
the
1312
I
conclusion is
vor of this
and current
how
in an actual
this
to illustrate
little differ-
is “not
affidavit
Air Station
in Carlson
zone,”3
being
as was the case
at
ence there is between
stationed
combat
the
appears
1971,
It
Schlesinger.
also
Air
in
in
v.
Tan
Nhut
Base Vietnam
Son
sympathet
more
majority
Carlson,
have been
would
and
stationed
Iwaku-
being
as in
at
applied
been
had
today,
ic
in
either
or in
Japan,
ni Air Station
in
v.
training camp,” Greer
aat
“basic
actions
1974 when
relevant
commenced:
un
these distinctions
be
Spock.4 I find
Wing,
Aircraft
The First Marine
tenable.
personnel
constantly
and
is
equipment,
degree
in
high
maintained
a
of readiness
President,
intimately
who was
Our first
deployment
ex-
possible
for
combat
conflict,
the horrors of armed
familiar with
in
tremely
example,
short
For
notice.
most effective
once remarked
1972, units
First
Air-
early
of the
Marine
prepared
be
securing peace is to
means of
Iwakuni,
Wing
at
de-
craft
stationed
by
theme was echoed
war.
same
for
This
in
and
ployed
in
ex rel.
to combat bases
Vietnam
United States
Supreme Court
11, 17,
within
no-
receiving
Thailand
24 hours
Quarles,
v.
Toth
U.S.
added):
Later,
(1955)
during
spring
5,100
(emphasis
tice.
L.Ed. 8
“[I]t
armies and navies
primary business of
elements of the First Marine Aircraft
is the
ready
fight wars should
in
fight
deployed
were
to assist
Wing
rapidly
or be
too,
Congress,
has
arise.” The
the occasion
the evacuation of Phnom Penh and Sai-
inseparability of the mili-
recognized
gon.
any time, Wing
again
At
wage
both to
and to be
tary’s responsibility
upon
deploy
be
similar
called
wars,
imposing
wage
by
similar
prepared to
circumstances on a moment’s notice.
attempt
to cause
those who
sanctions on
eventuality,
highest
degree
this
by
military
of the
members
insubordination
discipline,
loyalty,
and morale will be nec-
war.
during peacetime
during
whether
essary
completion
for
successful
with id.
Compare
18 U.S.C.
the mission.
2388.
constantly prepared
who
Personnel
deployment
for
into combat or a crisis
submitted in the district
An affidavit
must at all times have the same
situation
commanding general at
court
a former
discipline
high morale as would
strict
and
that the
un-
indicates
Iwakuni5
situations. A
troops in actual combat
promulgated
were
scrutiny
der
in
case
Marine, when
disciplined
and
in
to assist the local
well-trained
goal
with one
mind:
supporting
accomplishing
considering
his
mission
assigned
commander
units,
prepared
prepared
his
be
instantaneous
having
command
must
mission of
-
qualified
U.S.App.
significant
Majority opinion
to set forth matters of
val
at
fact,
yet
D.C.,
F.2d;
it is
Memorandum
ue
trier of
obvious that
see
at 914 of
21, 1976,
May
opinion
little,
any,
J.A. at 83.
weight
was accorded
if
the affidavit
support
judge
The case
below.
cited
-
opinion
U.S.App.
Majority
at
of 188
approach,
Schlesinger,
159 U.S.
Hess
D.C., at
of 575 F.2d n.21.
(1973),
hardly
App.D.C.
486 F.2d 1311
is
Indeed,
apposite.
the affidavits in Hess were
judge’s
The district
character-
5. J.A. at 70-74.
summary
support
“post
found to be insufficient
hoc” ration-
ization
this document as a
lawyers
n.12,
very
precisely
alization,
puzzling
judgment
at 83
because
J.A.
troubling.
making
At the time of
affida-
somewhat
than
rather
commanders
vit,
Corps
efficiency
had been in the Marine
judgments concerning
the affiant
of units
years,
Iwakuni Air Sta-
for 35
had commanded
deployment
That
in certain
scenarios.
Iwakuni
before,
year just
years
tion for
two
over
deficiency
present
case.
is not
in the instant
serving
Marine
as Chief of Staff
anyone
Corps.
imagine
more
is hard to
It
command,
deployment
contingency opera-
for such
see
Laird,
Schneider v.
453 F.2d
tions,
ranging
protection/evacua-
from
(9th
1972)
curiam);
Cir.
(per
Yahr
operations.
highest
tion to combat
Resor,
(4th
431 F.2d
1970)
Cir.
mental, physical,
standards of
disci-
moral
curiam),
(per
thus a limited
of all
pline,
morale
members
prior review should be
to him.
left
I stress
Command are central
combat readiness
“limited,” for,
the word
as noted
.
.
and effectiveness.
These traits majority,
the Government has conceded
must
inherent
each Marine before
improp-
authorities acted
goes
he
learning
into combat and not a
erly
denying
requests
in issue here.
process reserved
the actual battle-
*12
Thus,
cases,
future
those
very few
or
field.
Individual
collective efforts
petitioning
beyond
activities that are
this
attempt, consciously
those who would
or
high
rather
subject
threshold would be
otherwise,
order,
good
disci-
undermine
circumscription.7
Rather
than
totally
morale,
pline, loyalty, and
cannot be tol-
usurping the local commander’s authority in
Therefore,
erated.
regard,
this
as the majority opinion has
lawsuit,
challenge in
a
which afford
done,8
prefer
I would
repose
confidence
ability
Commander the
and authorization
in the
petitions
commander to review
in a
printed
to screen such
material
manner;
reasonable and fair
proposi-
distribution,
keeping
are
simply
tion is
corollary
a
to that which
requirement
safety
and well-be-
expresses confidence in him to do his part in
ing
troops.6
of his
our Nation.
securing
comments,
previously
These
and those
support
cited sentiments of
from all three
IV
government,
branches
convince me that
In summary, I
that multi-sig-
would hold
regulations establishing
those
a
nature
are
protected
communi-
review
petitioning
activities at Iwa-
1034, and,
cations under 10 U.S.C.
alterna-
certainly
“necessary
kuni most
are
to the
tively,
security
Only
of the
issue here are
United States.”
proper
the ability
exper-
necessary
local commander has
because
are
necessary
tise
to assess the effect
such
of the
security
United
In so
States.
hold-
activities on the combat
of his
ing,
readiness
we would properly honor “the sound
require
J.A. at
prohibits
73-74.
a commander who
such activ-
report
immediately
supe-
ities to
this fact
to his
1325.6,
I believe that
su-
DOD Directive No.
60,
rior officers. See J.A. at
63. See also id: at
1,
pra
regulations promulgated
note
there-
superiors
64. Since
of these
has the au-
54,
under,
51,
61-62,
J.A. at
58 &
furnish the
thority
prohibition
to reverse the commander’s
proper
employed by
standard to be
local
decision,
safeguard
there thus
further
exists a
commander:
against arbitrary application
regulations.
of the
Department
It is the mission
of De-
Spock,
828,
n.2,
See
Greer
424 U.S.
831-32
safeguard
security
fense to
United
of the
840,
1211,
business Stetson, U.S.App.D.C.
Vander-Molen (Robb, F.2d respectfully dissent.
J., I dissenting). ILLINOIS GAS
NORTHERN Petitioner,
COMPANY, REGULATORY
FEDERAL ENERGY
COMMISSION, Respondent, Pipeline Company of
Natural Gas Illinois Power
America and
Company, Intervenor. ILLINOIS GAS
NORTHERN
COMPANY, Petitioner, Jr., Adair, Ill., with Chicago, H. Wendell Stroud, Ill., was Stanley Chicago whom J. REGULATORY FEDERAL ENERGY brief, petitioners. on the for COMMISSION, Respondent, Weller, Atty., Energy J. Federal Barbara Commission, Regulatory Journey, Drexel D. Compa Public Indiana Service Northern Counsel, Perdue, Deputy Robert W. Gen. Company ny, Pipeline Natural Gas Tuttle, Counsel, Abbot Gen. Allan Sol. and Gas Transmis America and Columbia Walsh, Atty., Energy M. Thomas Federal Corporation, Intervenors. sion Commission, C., Regulatory Washington, D. and 76-2095. Nos. 76-2094 Walsh, brief, Atty., were on Thomas M. Commission, Energy Regulatory Federal Appeals, Court of United States C., respondent. Washington, D. for of Columbia Circuit. District Ill., Mallory, Chicago, Paul W. with whom Feb. 1978. Argued Goldstein, Ill., Chicago, E. was on the Paul intervenor, brief, Pipeline Natural Gas March Decided No. 76-2094 76-2095. Co. of America in Snyder Daley John D. and Giles D. H. Va., Small, Charleston, Stephen W. J. intervenor, brief, Columbia 76- Corporation in No. Gas Transmission