concurring:
I join in Judge Christensen’s opinion for the court. This concurring opinion is more an indication of anguish than of disagreement on fundamentals. It also identifies what I regard as the highlights of the case.
We are here asked to review the general court martial of a captain in the Judge Advocate General Corps of the U.S. Air Force. He claims that his conviction for participating in a demonstration in London and for soliciting other military personnel to participate in that demonstration was in violation of his constitutional rights.
1. The initial question for this court is thus the scope of our review on collateral attack of the judgment of a general court martial. Collateral attack on a court martial’s judgment is possible where the judgment is void for lack of jurisdiction or for some other fundamental defect. Schlesinger v. Councilman, 420 U.S. 738, 747, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). The Supreme Court has suggested that whether such a judgment may be deemed void may turn on “the nature of the alleged defect, and the gravity of the harm from which relief is sought.” 420 U.S. at 753, 95 S.Ct. at 1310. It added that “both factors must be assessed in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress”. Id.
This court has held that a claim of violation of constitutional right will permit the federal courts to make inquiry into court martial convictions. Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969). We have also recognized the special role played by the Court of Military Appeals, a court of civilians which has “indicated its readiness to apply to men in the military service the protection of pertinent Supreme Court decisions based on constitutional grounds.” Levy v. Corcoran, 128 U.S.App.D.C. 388, 390, 389 F.2d 929, 931 (1967), cert. denied, 389 U.S. 960, 88 S.Ct. 337, 19 L.Ed.2d 369 (1967). Thus in Levy v. Corcoran, this court refrained from interfering to prevent a court martial partially on the grounds that the constitutional claims raised by the petitioner could be presented to the general court martial and in due course to the Court of Military Appeals.
In this case, however, the petitioner was not able to obtain review by the Court of Military Appeals. Indeed, his sentence was not sufficiently severe to entitle him to an *631automatic appeal to the Air Force Court of Military Review, and the Judge Advocate General refused to acquiesce in a discretionary appeal. Since appellant’s constitutional claims were thus not reviewed by any appellate court, either military or civilian, I feel free to approach them almost as though I were a member of the Court of Military Appeals undertaking direct review.
2. Appellant contends that AFR 35-15, K 3e(3)(b), which prohibits military personnel from participating in demonstrations in foreign countries, is void for vagueness, overbreadth, and violation of his inalienable rights. I believe, however, that the term “demonstration” gave adequate notice to appellant that his activity was prohibited. The essence of “demonstration” is the overt display to the public of “demonstrative” expression or activity. See United States v. Alexander, 47 C.M.R. 786 (CMA) (1973), quoting United States v. Bradley, 418 F.2d 688, 690 (4th Cir. 1969). This fairly characterized the activities of the group that appellant joined and urged others to join. While their assemblage may have lacked some of the more obtrusive characteristics of some demonstrations — placards, buttons, marches, etc. — the essential purpose of assembling a large group of people was to attract the attention of the public to their manifestation of opposition to the war.
Moreover, to the extent that there was any ambiguity in the regulation, instructions given to the court martial — requiring acquittal in the event that appellant honestly and reasonably believed that the London incident was not a demonstration — insured that appellant was fairly convicted. While the instruction did not dispose of all constitutional issues, it removed any taint of unfairness to appellant as an individual.1
Lastly, insofar as appellant’s challenge to the vagueness of the regulation rests on its potential unfairness to others, his contentions are expressly foreclosed by Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
3. Appellant also attacks the Air Force regulation as overbroad. He claims that it is defective in that it prohibits even those demonstrations which do not endanger U.S. relations with the host country.
In analyzing this contention, I am constrained to begin with the premise that men and women serving in the military have less freedom to engage in political activity than other citizens. It is unfortunate that those who serve their country are required to make this additional sacrifice, but the Supreme Court has recognized that the special mission and structure of the armed forces may require restrictions unacceptable elsewhere in society. Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Indeed, the need for a military which is and appears to be politically neutral has been held to justify restrictions on the political activities of even ordinary citizens when they take place on domestic military bases. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976).
In this case the stationing of American troops on foreign soil creates a special need for political neutrality. The presence of our troops in a foreign land inevitably creates a political issue for the host government — whether its military and political alliance with the United States is advantageous. Political demonstrations by Ameri*632can servicemen may have an impact on this issue. Because American troops are both the symbols and instruments of American foreign policy, their actions are more likely to have a significant impact than those of individual visitors like tourists and businessmen. Thus, as our treaty with Great Britain recognized,2 there is a need for American troops abroad to refrain from political demonstrations.
Under these circumstances, application of familiar doctrines of overbreadth does not seem appropriate. Overbreadth doctrine permits one individual to champion the First Amendment rights of others so that a broad social interest in uninhibited expression might be furthered. Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). But in the military community, and especially when American troops are stationed abroad, the interest in political expression must yield to other needs. Cf. Parker v. Levy, 417 U.S. 733, 758-59, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
4. In any event, the breadth of the regulation attacked here is constitutionally justified. Politics are always complex and unpredictable; the nuances of foreign politics may be particularly difficult for Americans to understand or predict. The effect of an incident on our relations with a host country may depend on matters of attitude within a foreign government that simply cannot be adduced in a court martial.3 Individual servicemen cannot demand the right to predict or determine which demonstrations will prove disruptive or embarrassing in our relations with the host country. There is constitutional justification for a broad ban on off-base demonstrations by our troops abroad.
5. I turn last to appellant’s contention that he was engaged in presenting a petition to our Ambassador in London for forwarding to Washington and that his activity therefore deserves special constitutional protection. There is evidence in the record that the demonstration was originally scheduled to take place at the American Embassy, in London, and that the site of assemblage was changed to Speakers’ Corner in Hyde Park at the request of an official of Scotland Yard. But the record also reveals that the event was from the start projected as “a large assembly” and that it was the size of the assembly which, in the interest of public order, required the modification of plans. A petition could have been presented without the eye-catch*633ing assembly. Moreover, it was in aid of the effort to increase the size of the assembly that appellant passed out leaflets during the preceding week. Hence I must find that appellant is not entitled to the same protection as one who simply presented a petition to the Ambassador.
* * * * * *
A judge does not, at least this judge does not, relish limiting the rights of others. But sometimes this has to be done. On previous occasions the Supreme Court has held that the rights of servicemen and women may be curtailed in order to achieve legitimate military objectives. Here the military may have been rigid in some details, but at this remove the domestic courts cannot sensibly second guess the military’s response abroad so long as it was basically responding to considerations rooted in reasoned policy, rather than capriciousness. In the case at hand, military justice may have been taut but it was rational. The Federal courts have been instructed by the Supreme Court to let such judgments stand.
. A misunderstanding pervades Chief Judge Bazelon’s articulation of what he describes as an “unarticulated extension” of reference to the instruction. What my opinion is meant to convey is that the regulation is sufficient, to give adequate notice to appellant by the test of ordinary, common sense understanding. And if by any chance appellant lacks such ordinary understanding, even if his “infirmity” is only the product of steepage in some federal appellate opinions — then he had extra protection in the instruction, giving him a safeguard beyond that required by the Constitution.
In reaching its verdict, the court was not limited to the clarificatory statement issued by appellant’s superior, but could have considered all the facts and circumstances concerning his actions, including the language of the regulation, appellant’s training and background and his course of conduct. There was evidence to support the determination negativing any defense of honest and reasonable belief that the London incident was not a demonstration.
. [1951] 4 U.S.T. 1792, T.I.A.S. No. 2846, art. II, provides in pertinent part:
It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving States and to abstain from any activities inconsistent with the spirit of the present Agreement, and, in particular, from any political activity in the receiving state. It is also the duty of the sending state to take necessary measures to that end. [1951] 4 U.S.T. at 1796.
The Treaty prohibits “any political activity in the receiving state." In my view, actions taken on our bases or within our embassy grounds are not “in the receiving state”. Hence, I do not find the language of the Treaty to be as problematic as the dissent asserts.
To agree that the Treaty was not intended to prohibit American servicemen from voting or engaging in political discussions in the host country is not to concede the construction advanced in the dissent. What the Treaty seems to contemplate is the kind of prophylactic ban on political “demonstration” which the Air Force adopted, a ban that operates on inherently conspicuous and attention-getting activity.
. The dissent says at-of 182 U.S.App.D.C., at 639 of 559 F.2d that “[i]f a foreign government is so displeased by a demonstration that our relations with it are harmed, surely it would be willing to send a spokesman to testify to this effect.” Arrangements with foreign governments are often intended to avoid prickles of embarrassment. It may be embarrassing in the extreme to have to testify concerning embarrassment — to one’s self, to others, to host, to guest.
This goes beyond mere punctilio. The negotiation of such treaties must respect the full interests of foreign governments who are asked to host foreign forces on their soil. Moreover, this is a multi-lateral NATO treaty, signed not only by the United States and Great Britain, but also by Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, Netherlands, Norway and Portugal. This factor supports the general construction of restraint used by the armed services even assuming there may be room for relaxation depending on the country of the residence of armed forces.