EXTENSION OF ESPIONAGE LAWS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP63T00245R000300270003-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 39
• Document Creation Date: December 23, 2016
• Document Release Date: March 31, 2014
• Sequence Number: 3
• Publication Date: February 23, 1959
• Content Type: REPORT

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86TII CONGRESS HOUSE OF R ENTATIVES Rtroirio
1st Session f No. 42
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'EXTENSION OF ESPIOIC1'.AGE-11.1.*
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FEBRUARY 23, 1959.?Referred to the House Calendar and ordered to be printed
Mr. MOORE, fro' 'm 'the Committee on the Judiciary, submitted the
following
:
. REPORT
[To accompany H.R. 1992]
.1
.1 , 1111
4
The Committee on the Judiciary, to whom was .referred the bill
(H.R. 1992) to repeal section 791 of title 18 of the United States Code,
so as to extend the application of chapter 37 of title 18, relating to,
espionage and censorship, having considered the same, report favor-
ably thereon without amendment and recommend ,that the bill do pass.
PURPOSE
The purpose of the proposed legislation is to extend the application
of chapter 37 of title 18, United States Code, relating to espionage ,
and censorship, to acts committed any where in the world by repealing .
section 791 of that title. That section now provides that the provi-i
sions of chapter 37 shall apply only within the admiralty and maritime
jurisdiction of the United States, on the high seas, and within' the.,
United States. ?
HISTORY
, ?
An identical bill (H.R. 13676, 85th Cong.) passed the Hoiiee of
? ,
Representatives on August 18, 1958.
STATEMENT
?i
The limitation upon the. application of existing espionage laws-to
acts committed either in the United States, on the high seas, or
within the admiralty and maritime jurisdiction of the United States
has prevented prosecution of acts of espionage committed against the
United States in foreign countries. The committee has found no
justification for such a limitation. On the other hand it believes
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2
EXTENSION OF ESPIONAGE LAWS
that it is imperative that the laws of this Nation protect it from acts
of espionage committed' abroad as well as at home.
, To give our criminal laws such extraterritorial effect is not novel.
In the case of United States v. Bowman (260 U.S. 94) the Supreme
Court held that citizens of the United States while in a foreign country
were subject to penal laws enacted to protect the United States and its
property. Crimes against the United States committed abroad are
triable, under section 3238 of title 18, United States Code, in the
district where the offender is found, or into which he is first brought.
DEPARTMENT VIEWS
This legislation is sponsored by the Department of Justice and
there follows its communication to the Speaker of the House of
Representatives suggesting this bill.
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., July 29, 1958.
The SPEAKER,
House of Representatives, Washington, D.C.
DEAR MR. SPEAKER: Chapter 37 of title 18, United States Code, is
entitled "Espionage and Censorship." It consists of a number of
sections prohibiting certain acts prejudicial to the national security.
The first section in the chapter, section 791, provides that the chapter
"shall apply within the admiralty and maritime jurisdiction of the
United States and on the high seas as well as within the United States."
This embraces the United States and American vessels on the high seas
or on navigable waters within the territorial jurisdiction of foreign
sovereigns.
Because espionage knows no geographical boundaries, because
U.S. military and civilian personnel are distributed widely about the
globe, and because it is unreasonable to limit the Government's
ability to protect itself against acts of espionage on the basis of the
place where such acts are committed, the Department of Justice
recommends the repeal of section 791. By the repeal of this section
chapter 37 will be given extraterritorial effect within the rule expressed
in United States v. Bowman (260 U.S. 94), that acts which are directly
injurious to the Government and may be perpetrated without regard
to locale are punishable when committed by citizens either at home or
abroad. Espionage is such an offense.
We would appreciate the appropriate reference of this proposed
legislation.
The Bureau of the Budget has advised that there is,no objection to
the submission of this recommendation.
Sincerely,
WILLIAM P. ROGERS,
Attorney General.
The committee recommends that the bill, H.R. 1992, be enacted.
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, ?
EXTENSION OF ESPIONAGE LAWS
CHANGES IN EXISTING LAW
3
In compliance with clause 3 of rule XIII of the House of Repre-
sentatives, there is printed below in roman existing law in which no
change is proposed, with matter proposed to be stricken out enclosed
in black brackets, and new matter proposed to be added shown in
italic:
TITLE 18, UNITED STATES CODE
CHAPTER 37?ESPI0NAGE AND CENSORSHIP
See.
(791. Scope of chapter.]
[? 791. Scope of chapter
[This chapter shall apply within the admiralty and maritime
jurisdiction of the United States and on the high seas, as well as
within the United States.]
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87TH CONGRESS 1 HOUSE OF REPRESENTATIVES j REPORT
1st Session f t No. 452:
EXTENSION OF ESPIONAGE LAWS
JUNE 7, 1961.?Referred to the House Calendar and ordered to be printed.
Mr. FEIGHAN, from the Committee on the Judiciary, submitted the.
following
REPORT
[To accompany H.R. 2730)
The Committee on the Judiciary, to whom was referred the bill
(H.R. 2730) to repeal section 791 of title 18 of the United States
Code so as to extend the application of chapter 37 of title 18, relating
to espionage and censorship, having considered the same, report
favorably thereon without amendment and recommend that the bill.
do pass.
PURPOSE OF THE BILL
The purpose of the proposed legislation is to extend the application
of chapter 37 of title 18, United States Code, relating to espionage
and censorship, to acts committed anywhere in the world by repealing
section 791 of that title. That section now provides that the provi-
sions of chapter 37 shall apply only within the admiralty and maritime
jurisdiction of the United States, on the high seas, and within the.
United States. Identical bills passed the House of Representatives
in the 85th and 86th Congresses.
GENERAL STATEMENT
The limitation upon the application of existing espionage laws to.
acts committed either in the United States, on the high seas, or
within the admiralty and maritime jurisdiction of the United States.
has prevented prosecution of acts of espionage committed against the
United States in foreign countries. The committee has found no.
justification for such a limitation. On the other band it believes.
that it is imperative that the laws of this Nation protect it from acts.
of espionage committed abroad as well as at home.
To give our criminal laws such extraterritorial effect is not novel.
In the case of United States v. Bowman (260 U.S. 94) the Supreme
Court held that citizens of the United States while in a foreign country
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2 EXTENSION OF ESPIONAGE LAWS
were subject to penal laws enacted to protect the United States and its
property. Crimes , against. the. United States. committed .abroad are
.triable; under Section 3238 'of title 18, United States Code, in the
district where the offender is found, or into which he is first brought.
This legislation is proposed by the Attorney General of the United
States who wrote to the Speaker of the House of Representatives as
follows:
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C.., April 26, 1961.
? .
The SPEAKER,
House of Representatives, Washington, D.C.
DEAR MR. SPEAKER: Chapter 37 of title 18, United States Code, is
entitled "Espionage and Censorship." It consists of a number of
sections prohibiting certain acts prejudicial to the national -se6urity.
The first section in the chapterTsection-791-, provides that the chapter
"shall apply within the admiralty and maritime jurisdiction of the
United States and on the high seas as well as within the United States."
This embraces the' Uilited States and American vessels on the high
seas or on navigable waters within the territorial jurisdiction of foreign
sovereigns.
Because espionage knows no geographical boundaries, because U.S.
military and civilian personnel are distributed widely about the
globe, and because it ,is, unreasonable., to: limit the Government's
ability to protect itself against acts of espionage on the basis of the
.place. where such acts are committed, the Department of Justice
recommends the repeal of Section 791.' Chapter 37 will thus be given
extraterritorial effect within the rule' expressed in United States v.
Bowman' (260 U.S. 94); that acts which 'are directly injurious to the
? Goveimment and may be .perpetrated without regard to locale are
punishable when committed by citizens either at home or abroad.
The Bowman principle will likewise make chapter 37 applicable to
other persons who are not citizeji of, but who owe allegiance to, the
United States,. and to aliens. who are, permanent residents of the
United States and who, while traveling outside the territory of the
United States, commit one of the unlawful acts defined in this chapter.
Identical legislation was introduced in the 86th Congress as S. 1646
and H.R.. 1992. The latter passed the House on March 2, 1959?
The Bureau of the Budget has advised that there is no objection to
the submission of this recom nendation.
Sincerely,
(Signed) ROBERT F. KENNEDY,
Attorney General.
Identical legislation was recommended by the former Attorney
General of the United States as per the following letter:
OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., July. 29., 1958.
The SPEAKER,
House of Representatives, Washington, D.C.
DEAR MR. SPEAKER: Chapter 37 of title 18, United States Code, is
entitled "Espionage and Censorship." It consists of a number of
sections prohibiting certain acts prejudicial to the national security.
The first section in the chapter, section 791, provides that the chapter
"shall apply within the admiralty and maritime jurisdiction of the
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EXTENSION OF ESPIONAGE LAWS
3
United States and on the high seas as well as within the United States."
This embraces the United States and American vessels on the high seas
or on navigable waters within the territorial jurisdiction of foreign
sovereigns.
Because espionage knows no geographical boundaries, because
U.S. military and civilian personnel are distributed widely about the
globe, and because it is unreasonable to limit the Government's
ability to protect itself against acts of espionage on the basis of the
place where such acts are committed, the Department of Justice
recommends the repeal of section 791. By the repeal of this section
? chapter 37 will be given extraterritorial effect within the rule expressed
in United States v. Bowman (260 U.S. 94), that acts which are directly
injurious to the Government and may be perpetrated without regard
to locale are punishable when committed by citizens either at home or
abroad. Espionage is such an offense.
We would appreciate the appropriate reference of this proposed
legislation.
The Bureau of the Budget has advised that there is no objection to
the submission of this recommendation.
Sincerely,
WILLIAM P. ROGERS,
Attorney General.
The committee recommends that the bill, H.R. 2730, be enacted.
CHANGES IN EXISTING LAW
In compliance with clause 3 of rule XIII of the House of Repre-
sentatives, there is printed below in roman existing law in which no
change is proposed, with matter proposed to be stricken out enclosed
in black brackets, and new matter proposed to be added shown in
italic:
TITLE 18, UNITED STATES CODE
CHAPTER 37?ESPIONAGE AND CENSORSHIP
Sec.
[791. Scope of chapter.]
[? 791. Scope of chapter
[This chapter shall apply within the admiralty and maritime
jurisdiction of the United States and on the high seas, as well as
within the United States.]
0
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86TH CONGRESS
2d Session
Calendar No. 1881
INTERNAL SECURITY AMENDMENTS
JuNE 30, 1960.?Ordered to be printed
Mr. DODD, from the Committee on the Judiciary, submitted the
following
REPORT
[To accompany S. 2652]
The Committee on the Judiciary, to which was referred the bill
(S. 2652) to strengthen the internal security of the United States,
having considered the same, reports favorably thereon with amend-
ments and recommends that the bill as amended do pass.
AMENDMENTS
(1) On page 4, in line 16, after the numeral
Communist Control Act of 1954".
(2) On page 7, in line 18, after the numeral
Communist Control Act of 1954".
(3) On page 11, after the word "proceeding"
insert the word "in".
AREAS OF IMPACT
"5" insert "of the
"5" insert "of the
in lines 19 and 20,
This bill has impact in four separate areas: (1) with respect to
offenses under the Espionage Act committed outside the territorial
jurisdiction of the United States; (2) with respect to the definition of
a "foreign principal" under the Foreign Agents Registration Act;
(3) with respect to definition of the term "organize" as used in the
Smith Act; (4) with respect to the authority of the Secretary of State
to deny passports to Communists, and passport procedures generally.
VENUE FOR HIGH SEAS OFFENSES
Section 1 of the bill is the same in text as the bill S. 1642 (intro-
duced by Senator Eastland) and the bill H.R. 4154 (passed by the
House of Representatives on March 16, 1959). This section would
provide venue for offenses committed upon the high seas or elsewhere
out of the jurisdiction of any particular State or district, by providing
that the trial of any such offense so committed shall be in the district
in which the offender or any one of two or more joint offenders is
arrested or is first brought; or if such offender or offenders are not
so arrested or brought into any district, then an indictment or informs-
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2 INTERNAL SECURITY AMENDMENTS
tion may be filed in the district of the last known residence of the
offender or of any one of two or more joint offenders, or in the District
of Columbia.
This provision is supported by the Department of Justice and so
far as the committee is aware, is not opposed in any quarter.
The committee specifically endorses the statement of the House
committee, in reporting H.R. 4154 (H. Rept. 199, 86th Cong., 1st.
sess.) that the legislation proposed in section 1 of S. 2652 has as its
purpose?
to (1) permit the indictment and trial of an offender or joint
offenders who commit abroad offenses against the United
States, in the district where any of the offenders is arrested
or first brought; (2) to prevent the statute of limitations from
tolling in cases where an offender or any of the joint offenders
remain beyond the bounds of the United States by permitting
the filing of information or indictment in the last known
residence of any of the offenders. The amendment permits
the filing of indictment or information in the District of
Columbia in the event that the residence of any of the
offenders in the United States is not known.
ATTORNEY GENERAL'S STATEMENT
In recommending enactment of legislation of this nature, the
Attorney General of the United States declared:
Section 3238 (of title 18, United States Code) now provides
that "The trial of all offenses begun or committed upon the
high seas, or elsewhere out of the jurisdiction of any partic-
ular State or district, shall be in the district where the
offender is found, or into which he is first brought." This
quoted language results in a most awkward situation in cer-
tain instances when two or more joint offenders are involved.
If two or more individuals jointly commit acts of treason
abroad and are thereafter located in different districts within
the United States, they must, under the present statute, be
indicted and tried in different jurisdictions. To avoid situa-
tions such as those indicated, it is recommended that section
3238 be amended to provide that the trial of offenses begun
or committed upon the high seas, or elsewhere out of the juris-
diction of a State or district, may be held in any district in
which one of two or more joint offenders is arrested or first
brought.
The proposed bill would also provide that if such offenders
are not arrested or brought into any district an indictment
or information may be filed in the district of the last known
residence of any of them or in the District of Columbia. This
change is desirable because under existing law there is a ques-
tion as to whether an offender who commits an offense beyond
the bounds of the United States and remains beyond those
bounds can be indicted. The appellate decisions indicate
that such a person is not a "person fleeing from justice"
under section 3290 of title 18, United States Code, and that
the statute of limitations continues to run during his absence.
I would appreciate the prompt referral and early intro-
duction of this corrective legislation.
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INTERNAL SECURITY AMENDMENTS
The Bureau of the Budget has advised that there is no
objection to the submission of this recommendation.
Sincerely,
WILLIAM P. ROGERS,
Attorney General.
DEFINITION OF "FOREIGN PRINCIPAL" CLARIFIED
3
Section 2 of the bill is the same in text as S. 2350 (by Senator Dodd)
and H.R. 6817 (approved by the House of Representatives, August 31,
1959).
The purpose of this provision is to amend the Foreign Agents Reg-
istration Act so as to include within the definition of "foreign prin-
cipal" domestic organizations which are substantially "supervised,
directed, controlled, or financed" by a foreign government or foreign
political party.
This section also seeks to clarify the so-called commercial exemptions
of the Foreign Agents Registration Act by providing that a foreign
principal, in order for its agents to be eligible for exemption from
registering under the act, must be engaged in activities which are
either private and nonpolitical and financial or private and nonpolitical
and mercantile.
At the present time, the term "foreign principal" as used in the
Foreign Agents Registration Act is defined to include a domestic
organization which is "subsidized" by a foreign government or a
foreign political party. The Department of Justice has informed the
Congress that experience in the administration of the Foreign Agents
Registration Act shows a need for the inclusion within the term
"foreign principal" of domestic organizations which, while perhaps
not subsidized by a foreign government or political party, are sub-
stantially controlled, directed, or financed by a foreign government
or foreign political party. Proof of such control, direction, or financing
often is available where proof of "subsidy" is difficult or impossible.
The present commercial exemption has proved in experience to be
ambiguous. Argument often has been made that if a foreign principal
can meet any one of the several stated criteria, its agents may be
exempted from registration. It is the view of the committee that all
such ,criteria, as stated in series, must be met; and the amendment
contained in section 2 will make this interpretation uniform.
ENFORCEABILITY RESTORED TO SMITH ACT SECTION
Section 3 of the bill will restore the enforcibility of the "organizing"
section of the Smith Act. This section was rendered unenforcible
against current Communist activity by the Supreme Court decision
in the case of Yates and Schneiderman, et al. v. U.S. (354 U.S. 298),
wherein "organize" was held to be applicable only to the original
organization or complete reorganization of the Communist Party.
ABA RECOMMENDATION
Enactment of section 3 would carry out the recommendation of the
American Bar Association that the Congress?
amend the Smith Act to define the word "organize" to include
the recruitment of new party members, the formation of new
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4 INTERNAL SECURITY AMENDMENTS
party units, and the regrouping, expansion, or other activities
of an organizational nature performed by members of existing
clubs, cells, classes, and other units so as to insure the applica-
bility of this section of the act to Communist actionists,
agents, organizers, colonists, or members currently perform-
ing organizational work.
TESTIMONY ON SECTION 3
Section 3 is a combination of S. 1300, S. 527, and H.R. 2369. It.
follows the wording of S. 1300, except for elimination of the phrase,
"encouraging recruitment of," which Deputy Attorney General Law-
rence E. Walsh said might pose problems because of the broader defi-
nition it gives of the term "organize." Roger Fisher, faculty, Har-
vard Law School, agreed with that viewpoint, and said he believes
"the act of recruiting can be made criminal without interfering with
freedom of speech."
Other witnesses favorable to the strengthened definition of "or-
ganize" in the Smith Act were Ross L. Malone, president of the
American Bar Association; Loyd Wright, former Chairman of the
Commission on Government Security (who favored S. 527 and S.
1300); Senator Keating (who favored S. 527); Attorney General
Louis Wyman of New Hampshire (who favored S. 527); Francis W.
Stover, assistant director, National Legislative Service, Veterans of
Foreign Wars; Matt Triggs, assistant legislative director, American
Farm Bureau Federation; John S. Mears, legislative representative,
the American Legion; Robert Morris, attorney of Point Pleasant, N.J.;
and Roy Cohn, vice president of American Jewish League Against
Communism, Inc.
Witnesses opposed to the enactment of any bill to redefine the term
"organize" in the Smith Act were Irvin Lechliter, executive director,
American Veterans Committee; Clark Foreman, director, Emergency
Civil Liberties Committee (who opposed any amendments to
strengthen the Smith Act and favored repeal of the Smith Act itself);
Joseph L. Rauh, Jr., vice chairman, Americans for Democratic
Action (who also said he opposed the Smith Act as well as any amend-
ments to strengthen it); Edward J. Ennis, general counsel of the
American Civil Liberties Union (who said that if the Smith Act is to
be used to prosecute, then "organize" should be defined, but stated
that his organization is opposed to the Smith Act and any amend-
ments which would strengthen it).
In addition to witnesses who opposed S. 527, the National Lawyers.
Guild submitted a statement through Royal W. France, executive
secretary, which said the bill "abridges first amendment guarantees
of freedom of association and political activities." The guild also
said the Smith Act should be repealed.
PASSPORT FUNCTIONS
Section 4 and the succeeding sections of S. 2652 deal generally with
the passport function of the State Department.
Section 4(a) would strengthen the hand of the Immigration and
Naturalization Service by granting authority to delay the departure
of a vehicle, vessel, or aircraft pending determination of liability for
an immigration violation.
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INTERNAL SECURITY AMENDMENTS
5
Subsection 4(c) and section 5, respectively, would write into the
Immigration and Nationality Act and the existing passport law,
respectively, specific authority for denial, limitation, or revocation of a
passport in the case of any person where there exists adequate grounds
for believing that such person is, or has been since January 1, 1951,
a member, of or affiliated with, the Communisty Party, or knowingly
engages or has knowingly engaged, since January 1, 1951, in activities
intended to further the international Communist movement, and
where it is also determined that the activities or presence of such per-
son abroad would be harmful to the security of the United States.
Section 5 of S. 2652 also authorizes the Secretary of State to require
each passport applicant to submit a verified written statement respect-
ing any Communist Party membership or affiliation since January 1,
1951.
TRAVEL RESTRICTIONS
Section 5 provides further authority for the Secretary of State to
limit travel under passports in countries or areas where the Secretary
has determined that the U.S. Government is unable to provide
adequate protection to persons traveling, due to the lack of diplomatic
relations or due to disturbances within such countries or areas, or
where the Secretary has determined that travel of U.S. nationals to
or in such countries or areas would seriously impair the foreign
relations or foreign policy of the United States.
REVIEW PROCEDURE
Section 6 of S. 2652 provides in detail for passport review procedure.
It authorizes review of the case of any applicant who petitions for
such review within 6 months after his passport has been withdrawn,
canceled, or revoked, or his passport application has been denied.
The review provisions include requirements that the applicant shall
be given reasonable notice of the reasons for the original action; that
the applicant shall have the privilege of being advised, assisted, or
represented by counsel; that the applicant shall have a reasonable
opportunity to present all information relevant and material to the
formulation of a recommendation in his case; that the applicant may
testify in his own behalf; that the applicant may present witnesses
and offer other evidence; and that a complete verbatim stenographic
transcript shall be made of the proceedings on review, which trans-
cript shall be available to the applicant or his counsel.
It is specifically provided that review proceedings shall be conducted
in such a manner as to protect from disclosure information which in
the opinion of the Secretary of State would affect the national security,
safety, and public interest or would tend to compromise investigative
sources or investigative methods; but this provision is modified by a
proviso that no such information shall be the basis for the denial,
withdrawal, cancellation, or revocation of a passport in the case of any
applicant unless such applicant has been furnished a statement sum-
marizing such information in as much detail as possible without
jeopardizing the national security, safety, and public interest, or
compromising investigative sources or methods.
It is further specifically provided that in connection with the review,
consideration shall be given to the inability of the applicant to chal-
lenge such information, if any, concerning which he has not been ad-
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6
INTERNAL SECURITY AMENDMENTS
vised in full or in detail, or to attack the credibility of information
which has not been disclosed to him.
PASSPORT DENIAL CRITERIA MODIFIED
The passport provisions of S. 2652 (from sec. 4 on) are based on the
provisions of S. 1303, introduced by Senator Eastland, and on which
the committee conducted hearings, modified as recommended by the
Department of State, and further modified so as to substitute, as the
criteria for denial, revocation, or withdrawal of passports, the criteria
contained in the House bill H.R. 9069, as reported favorably from the
House Committee on Foreign Affairs on September 3, 1959. These
criteria are much more favorable to passport applicants than the
criteria contained in the original Senate bill. With the exception of
this change in criteria, all recommendations of the State Department
have been adopted.
STATE DEPARTMENT RECOMMENDATIONS
The full text of the State Department letter recommending specific
changes in S. 1303 is appended as a part of this report.
DEPARTMENT OF STATE,
May 6, 1959.
DEAR SENATOR EASTLAND: I refer to your request of March 26,
1959, for the comments of the Department of State on S. 1303, to
amend the Immigration and Nationality Act with respect to travel in
time of war or national emergency and passport procedures. The
receipt of your letter was acknowledged on March 30, 1959.
For reasons of clarity and ease of reference, the Department's
comments hereunder are grouped by subjects rather than in accordance
with the numerical order of sections of the bill.
I. PROVISIONS RELATING TO THE PASSPORT FUNCTION
A. Authority to deny passports to supporters of the international Com-
munist movement
A principal objective of S. 1303 would appear to be to furnish
statutory authority for a policy which the executive branch followed
over a period of many years. As you will recall, the Supreme Court
ruled in June 1958 that the Secretary's regulations embodying the
executive policy of denying passports to supporters of the world
Communist movement were invalid because of a lack of specific
legislative authority. The Department is convinced that this policy
is both necessary and correct, and therefore wishes to support legisla-
tion which is deemed adequate to achieve this objective.
Promptly after the Supreme Court decision, the administration sub-
mitted a draft bill to the 85th Congress which, if enacted, would have
authorized the denial of passports to certain persons who knowingly
support the Communist movement. The administration bill, intro-
duced in the Senate as S. 4110, did not confine itself solely to this
problem, however, but represented a substantial revision of existing
passport laws and regulations and specified grounds for individual
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7
passport denials in addition to those pertaining to Communist
activities.
As a result of hearings held by the congressional committees to
which the administration bill had been referred, it became apparent
that those committees would not act favorably on the administration
bill. A narrower bill, limited in scope to the denial of passports to
members of the Communist Party and others engaged in activities
in furtherance of the Communist movement (H.R. 13760), was sub-
sequently introduced in the House, reported unanimously by the
Committee on Foreign Affairs and, as amended, passed by the House
on August 23, 1958. On the same day, it was transmitted to the
Senate and referred to the Committee on Foreign Relations, which
had taken no action on the bill when the 85th Congress adjourned the
following day.
The Department still considers that the enactment of legislation
along the broader lines of the administration bill introduced in the
last Congress would be in the public interest. Nevertheless, the
Department agrees that the lack of legislative authority for the denial
of passports to supporters of the Communist movement continues to
be the most urgent current problem in the passport field.
Former Secretary Dulles said in his letter of July 7, 1958, when
transmitting the administration's bill to the 85th Congress: "I think
there can be no doubt in anyone's mind that we are today engaged
for survival in a bitter struggle against the international Communist
movement. Congress itself has so concluded in numerous statutory
findings and congressional reports. The international Communist
movement seeks everywhere to thwart U.S. foreign policy. It seeks
on every front to influence foreign governments and peoples against
the United States and eventually by every means, including violence,
to encircle the United States and subordinate us to its will. The
issuance of U.S. passports to supporters of that movement facilitates
their travel to and in foreign countries. It clothes them when abroad
with all the dignity and protection that our Government affords.
Surely our Government should be in a position to deny passports to
such persons."
These words are just as valid today as when first uttered. Indeed,
the prediction made in July 1958 by officers of the Department that
such persons would hasten to take advantage of the breach in our
defenses by promptly obtaining passports has proved accurate.
The Department is therefore in complete agreement with the ap-
parent objective of S. 1303 to fill the legislative gap found by the
Supreme Court in the executive policy of denying passports to sup-
porters of the Communist movement and supports subsection (e)
of section 1 of the bill (line 9, p. 3, to and including line 16, p. 6).
The Department would make a suggestion, however, with reference to
the language of this part of the bill. The Department believes that
it would not be in the public interest to deny passports to persons who
have in fact ceased supporting the Communist movement, and there-
fore recommends striking the words "or has been engaged" in line 24
on page 5, and substituting "adheres" for the words "has adhered" in
line 4 on page 6.
Section 5 of S. 1303, would prohibit, under criminal penalty, the
issuance, renewal, or extension of any passport to Communist Party
members, other supporters of the Communist movement and certain
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8 INTERNAL SECURITY AMENDMENTS
former supporters of the Communist movement. The apparent
purpose of section 5 is to overcome the fact that section 6 of the
Subversive Activities Control Act of 1950 (64 Stat. 993, 50 U.S.C. 785)
has not yet become effective because no organization has yet registered
with, or been finally ordered to register by, the Subversive Activities
Control Board owing to protracted litigation.
In view of the provisions of section 1(e) of S. 1303, it appears to
the Department that, if section 1(e) is enacted, then section 5 would
be superfluous because both are directed at preventing the travel of
supporters of the international Communist movement, and section
1(e), with the revision suggested earlier in this letter, would appear
to be more adequate from the administrative and legal viewpoints for
accomplishment of the legislative purpose.
Moreover, it would not seem appropriate to provide criminal pen-
alties for any U.S. officer or employee who may issue or renew a pass-
port to a person under Communist discipline. Officials administering
the law would of course be under obligation to carry out the intent
of Congress, and there are disciplinary measures adequate to insure
fulfillment of that obligation. There might also exist the possibility
that an official would be under judicial decree in a civil action to issue
a passport which could cause him to incur criminal prosecution under
the language of proposed section 5.
Simply stated, the Department of State needs legislative authority
which will allow the Secretary of State to deny passports to hard-core
supporters of the international Communist movement. The Depart-
ment believes, moreover, that such denials should take place only in
accordance with due process of law. We do not seek this statutory
authority in order to stifle criticism abroad of this Government or its
policies. The Department seeks only the capacity to protect the
United States by denying passports to those relatively few hard-core,
active supporters of communism whose travel abroad would constitute
an actual danger to our national security.
B. Authority for travel controls in absence of war or national emergency
The Department opposes section 1(a) of S. 1303, which would amend
section 215 of the Immigration and Nationality Act in order to permit
the imposition by the President of controls on the travel of American
citizens outside the United States even though there may be no state
of war or of national emergency. The Department believes that it
would be contrary to the traditional American dedication to the ideal
of free travel to institute such controls in the absence of war or of any
other national emergency which would justify the requirement of a
passport for exit from the United States.
C. Geographic restrictions of general applicability
The Department supports the apparent intent of section 1(b) of
S. 1303 to the extent that it would prohibit, under penal sanction,
travel to any country with respect to which passports have been de-
clared to be invalid. However, there would seem to be no reason to
limit this prohibition only to periods when there is in force a Presiden-
tial proclamation relating to restrictions on the departure from and
entry into the United States of aliens and citizens. Violation of
general area restrictions contained in passports is considered serious
whether or not there is in effect any requirement under American law
for the possession of a passport in order to leave the United States.
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9
This same comment is applicable to the refusal to surrender a passport
which has been revoked (sec. 1 (b) (3) of S. 1303).
The Department suggests that section 1(b) be stricken from the
bill, leaving section 215(b) of the Immigration and Nationality Act
as it now reads. In order to provide adequately both for general geo-
graphic restrictions and for failure to surrender a revoked passport,
the following language is proposed, possibly as an amendment to the
act of July 3, 1926 (44 Stat. 887; 22 U.S.C. 211(a)) :
"(a) In the event that the Secretary of State makes a determina-
tion that the U.S. Government is unable to provide adequate protec-
tion to persons traveling in particular countries or areas, due to the
lack of diplomatic relations or due to disturbances within such coun-
tries or areas, or that travel of U.S. nationals to or in such countries
or areas would seriously impair the foreign relations or foreign policy
of the United States, he may publish such determination and may
cause notice thereof to be stamped on each passport thereafter issued,
renewed, or amended.
"(b) No U.S. citizen or national shall travel to or in any country or
area which has been designated by the Secretary of State in a deter-
mination made and published under section (a), except that in the
national interest the Secretary may make exceptions to geographical
limitations of general applicability for particular categories of persons.
"(c) It shall be unlawful for any holder of a passport to refuse to
surrender it upon proper demand by the Secretary of State or his
authorized agent.
"(d) Any person who violates the provisions of subsection (b) or
(c) of this section shall be guilty of a misdemeanor and upon convic-
tion be punished by imprisonment for a period not exceeding 1 year
or by a fine not exceeding $1,000, or both."
D. Rulemaking authority and general grounds for denial
Section 3 of S. 1303 would amend the Passport Act of 1926 for the
purpose of accomplishing two objectives: first, to authorize the Presi-
dent to delegate rulemaking powers concerning passports to the Secre-
tary of State, and, secondly, to prohibit the Secretary from issuing
passports to persons on a number of broad grounds not necessarily
related to Communist activities.
Although the President has already delegated to the Secretary the
rulemaking authority concerning passports granted to the President
by section 1 of the act of July 3, 1926 (44 Stat. 887; 22 U.S.C. 211a)
(see Executive Order No. 7856, 3 Fed. Reg. 681, 687, 22 CFR 51.75
(1958)), the Department has no objection to statutory confirmation
or establishment of this delegation of power.
With regard to the second objective of section 3 of S. 1303, the
Department believes it desirable that there be statutory confirmation
of the Secretary's traditional authority to deny, limit, or revoke
passports when the person's activities or travel abroad would con-
stitute an evasion of justice or would be inimical to the national
security or seriously impair the conduct of the foreign relations of the
United States. However, the proposed language of section 3(c)
would appear to require the Secretary of State to investigate and
affirmatively determine that each passport applicant or holder is
not going abroad to violate U.S. law or engage in activities prejudicial
to the interests of the United States. Such a prohibition against the
S. Rept. 1.81.1, 86-2-2
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10 INTERNAL SECURITY AMENDMENTS
issuance of passports would create an impossible administrative burden
and it is therefore suggested that the subsection be revised to provide
simply that the Secretary is authorized to deny, limit, or revoke
passports in those cases where adequate grounds exist to show that
an individual would fall within one of the specified categories.
E. Review procedures
Section 4 of S. 1303 would add a new section to the Administrative
Procedure Act establishing detailed procedures for administrative
review of any adverse action taken against an individual passport
applicant or holder. The Department favors the establishment of
such procedures by statute, although the Department questions
whether this can best be accomplished by amending the Administra-
tive Procedure Act. There are certain details of the proposed pro-
visions, however, which the Department believes should be revised
or eliminated.
First, although the term "applicant" would appear to be defined
so as to exclude anyone not a citizen or national of the United States
(sec. 13(a)), the language of the succeeding subsection (13(b)) might
be interpreted to include the right of administrative review of adverse
passport action based on an applicant's failure to establish his citizen-
ship or nationality. There are already in existence other effective
remedies, administrative and judicial, for testing citizenship, and the
Department would not favor using the passport review procedure
proposed by section 4 of S. 1303 for that purpose. It is therefore
suggested that the words "on any grounds other than those relating
to citizenship or nationality" be inserted after the words "any appli-
cant who" on line 3 of page 9.
Secondly, proposed section 13(f) (2) would give the applicant during
proceedings before the special review officer the privilege of having
"counsel authorized to practice in such proceedings" (lines 17-18, p. 11;
emphasis added). The Department suggests that the italicized words
be striken, because it has never been the practice of the Department
to require special authorization for attorneys at law to represent
private individuals in matters concerning the Department. Pass-
port applicants, it is felt, should enjoy the widest possible choice of
counsel to represent them in the event of any adverse action by
the Department.
Thirdly, while the Department strongly supports the objective of
subsection (g) of proposed section 13 (p. 12 of S. 1303) to protect
confidential information or sources thereof from harmful disclosure, it
is suggested that procedural protection of the individual would be
strengthened by a provision requiring the Secretary of State to furnish
to the passport applicant a fair resume of whatever confidential infor-
mation on which it may be necessary to rely in substantiating the
denial of the passport. Such a summary would give the applicant
the data he would need in order to prepare his rebuttal without,
however, compromising the Government's legitimate interest in
protecting investigative sources and intelligence relations.
Finally, it is noted that subsection (j) would provide that the pro-
cedure prescribed by section 13 would be the sole and exclusive
procedure for review of passport action adverse to an individual
citizen or national. While the intent of this provision may be to
refer only to administrative review procedure, the language would
seem open to the interpretation that review by the judicial system is
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INTERNAL SECURITY AMENDMENTS 11
thereby excluded. The Department believes that the possibility of
any such undesirable interpretation could be avoided easily by
inserting the word "administrative" before the word "procedure" in
line 1 on page 14 of S. 1303.
F. Obligation to report places visited abroad
Section 6 of S. 1303, would require any passport applicant to
promise under oath to report subsequently, upon request, on the
places outside the United States visited during the period of validity
of the passport. The provision appears to be of dubious utility,
because the passport itself normally shows entry and exit stamps
affixed by the authorities of foreign countries and, in cases where a
passport holder succeeds in attempts to avoid the placing of such
stamps on his passport, for his own reasons, he would presumably
not furnish the information voluntarily and would incur no sanction
if he refused.
II. PROVISIONS NOT DIRECTLY RELATED TO THE PASSPORT FUNCTION
A. Mandatory registration of births abroad
Section 2 of S. 1303 would raise a presumption of expatriation of
an American citizen hereafter born abroad whose birth is not reg-
istered at an American consular office within a period of time to be
determined by the Secretary of State.
It seems undesirable to raise a presumption of expatriation against
a child for no fault of his own. Either the parents' negligence or the
inaccessibility of an American consular officer might prevent the
timely registration of the birth.
. While the Department appreciates fully that the apparent purpose
of section 2 is to reduce the number of fraudulent claims to American
citizenship, it is of the opinion that the present permissive registration
of American births abroad should not be made practically mandatory
in connection with the acquisition or loss of U.S. nationality. Every
foreign country has its own laws concerning the recording of births,
deaths, and other vital statistics, as well as the legal effects of those
events within the country. The recording of births is traditionally
an exclusive function of the sovereign exercising jurisdiction over the
place of the birth, and the Department's regulations concerning the
voluntary registration of American birtns abroad take full cognizance
of that fact. To make Foreign Service posts primary recording offices
for vital statistics data would give rise to confusion in the minds of
Americans residing abroad and might ultimately lead to proposals for
making mandatory the registration at Foreign Service posts of deaths,
marriages, divorces, and adoptions affecting American citizens in
foreign countries, whether military or civilian, resident or transient.
The organizational, enforcement, and staffing problems connected
with the collection and custody of such vital statistics data would
require considerable additional study.
B. Detention of carriers for travel control violations
Section 1(c) of S. 1303 would appear to authorize the detention of
any vehicle, vessel, or aircraft purporting to depart from a port of the
United States whenever section 215 of the Immigration and National-
ity Act is being or has been violated by or upon the carrier. The
Department of State expresses no opinion regarding the desirability
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12 INTERNAL SECURITY AMENDMENTS
of this proposal, inasmuch as it would seem that other Federal agen-
cies, including the Department of Commerce, are more concerned
with the matters covered therein. However, the Department of State
does believe that the enactment of this section would strengthen the
enforcibility of travel control provisions.
I hope the foregoing comments will be of assistance in the com-
mittee's consideration of S. 1303. Should your committee desire
further explanation of any of the foregoing matters, either by letter
or orally, the Department would be glad to cooperate to the maximum
extent.
The Bureau of the Budget has advised that it has no objection to the
submission of this report.
Sincerely yours,
WILLIAM B. MACOMBER, Jr.,
Assistant Secretary.
CHANGES IN EXISTING LAW
In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill, as
reported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
SEC. 3238. Offenses not committed in any district.
The trial oi all offenses begun or committed upon the high seas, or
elsewhere out of the jurisdiction of any particular State or district,
shall be in the district [where the offender is found, or into which he
is first brought.] in which the offender, or any one of two or more joint
offenders, is arrested or is first brought; but if such offender or offenders
are not so arrested or brought into any district, an indictment or in-
formation may be filed in the district of the last known residence of
the offender or of any one of two or more joint offenders, or if no such
residence is known the indictment or information may be filed in the
District of Columbia.
FOREIGN AGENTS REGISTRATION ACT (56 STAT. 248)
1 * * * * * *
DEFINITIONS
SECTION 1. As used in and for the purposes of this Act?
* * * * * 4.
(b) The term "foreign principal" includes?
* * * * * *
(6) A domestic partnership, association, corporation, organization,
or other combination of individuals, supervised, directed, controlled, or
financed, in whole or in substantial part, by any foreign government or
foreign political party;
* * * * *
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INTERNAL SECURITY AMENDMENTS 13
EXEMPTIONS
SEC. 3. The requirements of seetion 2(a) hereof shall not apply to
the following agents of foreign principals:
(d) Any person engaging or agreeing to engage only in private(,]
and nonpolitical[,] financial(,] or merchantile[, or other] activities
in furtherance of the bona fide trade or commerce of such foreign
principal or in the soliciting or collecting of funds and contributions
within the United States to be used only for medical aid and assistance,
-or for food and clothing to relieve human suffering, if such solicitation
or collection of funds and contributions is in accordance with and
subject to the provisions of the Act of November 4, 1939, as amended
(54 Stat. 48), and any such rules and regulations as may be prescribed
Thereunder;
TITLE 181, UNITED STATES CODE
,SEC. 2385. Advocating overthrow of Government.
Whoever knowingly or willfully advocates, abets, advises, or teaches
the duty, necessity, desirability, or propriety of overthrowing or
-destroying the government of the United States or the government of
any State, Territory, District of Possession thereof, or the government
-of any political subdivision therein, by force or violence, or by the
assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any
such government, prints, publishes, edits, issues, circulates, sells,
distributes, or publicly displays any written or printed matter advocat-
ing, advising, or teaching the duty, necessity, desirability, or propriety
of overthrowing or destroying any government in the United States
by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society,
group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any such government by force or violence;
or becomes or is a member of, or affiliates with, any such society, group,
or assembly of persons, knowing the purposes thereof?
Shall be fined not more than $20,000 or imprisoned not more than
twenty years, or both, and shall be ineligible for employment by the
United States or any department or agency thereof, for the five years
next following his conviction.
If two or more persons conspire to commit any offense named in this
section, each shall be fined not more than $20,000 or imprisoned not
more than twenty years, or both, and shall be ineligible for employ-
ment by the United States or any department or agency thereof, for
the five years next following his conviction.
As used in this section, the term "organize" with respect to any society,
group, or assembly of persons, includes the recruiting of new or additional
members, and the forming, regrouping, or expansion of new or existing
:cells, clubs, classes, sections, or other units of such society, group, or
assembly of persons.
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TITLE 8. UNITED STATES CODE
SEC. 1185. Travel control of citizens and aliens during war or national
emergency.
(c) If there is in effect any requirement, prescribed or authorized by
law, for the procurement of a passport for any travel, no application
made by any individual for the issuance of such passport may be granted,
and each passport previously issued shall be revoked, unless the issuance
or use of such passport is authorized under subsection (e), whenever
there is reasonable ground to believe that the applicant, or holder of a
previously issued passport, is, or has been since January 1, 1951, a
member of, or affiliated with, the Communist Party, or knowingly en-
gages or has knowingly engaged, since January 1, 1951, in activities
intended to further the international Communist movement, as to whom
it is determined that his or her activities or presence abroad would under
the findings made in section 5 be harmful to the security of the United
States. The Secretary of State may require, as a prerequisite to the
ismance of a passport, that the applicant subscribe to and submit a
written statement duly verified by his oath or affirmation whether he is
presently, or has been since January 1, 1951, a member of the Com-
munist Party or a supporter of the international Communist movement,
and to state the circumstances of any such membership or to state his
activities in support of the international Communist movement. Noth-
ing in this subsection shall alter or limit the authority of the Secretary
of State to deny any application for the issuance of a passport, or to
revoke a previously issued passport, on any ground other than the ground
described in this subsection. The Secretary ma/y withhold a passport
in the national interest on the basis of confidential information where he
shall certify that it is contrary to the interests of this Nat:on that a pass-
port be issued to the applicant. The Secretary of State shall not deny a
passport to any person solely on the basis of membership in any organi-
zation, association with any individual or group, adherence to unpopular
views, or criticisms of the United States or its domestic or foreign policies.
(d) In determining, for the purposes of subsection (c), whether there
is reasonable ground for belief that any individual is within the class
there defined, consideration may be given to activities and associations of
that individual of one or more of the following categories:
(1) Membership in any party, group, or association described in
subsection (c); or
(2) Prior membership in any party, group, or association de-
scribed in subsection (c), if the termination of such membership was
under circumstances warranting the conclusion that the applicant
continues to act in furtherance of the interests of such party, group,
or association; or
(3) Present or vast activities which further the aims and objectives
of any such party, group, or association, under circumstances
warranting the conclusion that he engages in such activities as a
result of direction, domination, or control exercised over him by
such party, group, or association, or otherwise continues to act in
furtherance of the interests of such party, group, or association; or
(4) Activities continued consistently over a prolonged period of
time which indicate that he adheres to the doctrine of any such party,
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INTERNAL SECURITY AMENDMENTS
15,
group, or association, as such doctrine is expressed in the actions
and writings of such party, group, or association on a variety of
issues, including shifts and changes in the doctrinal line of such
party, group, or association; or
(5) Any other conduct which tends to support the belief that the
applicant is going abroad or traveling abroad for such purpose.
(e) A passport may be issued to or held by any individual, notwith-
standing the provisions of subsection (c), whenever personally directed by
the Secretary of State for reasons deemed by him to be strictly in the
public interest.
((c)] (f) Penalties.
Any person who shall willfully violate any of the provisions of this
section, or of any order or proclamation of the President promulgated,
or of any permit, rule, or regulation issued thereunder, shall, upon
conviction, be fined not more than $5,000, or, if a natural person,
imprisoned for not more than five years, or both; and the officer,
director, or agent of any corporation who knowingly participates in
such violation shall be punished by like fine or imprisonment, or both;
and any vehicle, vessel, or aircraft together with its appurtenances,
equipment, tackle, apparel, and furniture, concerned in any such
violation, shall be forfeited to the United States. No vehicle, vessel
or aircraft, by or upon which there is reasonable cause to believe that a
breach or violation of this section is being or has been committed, shall be
permitted to depart from any port of the United States pending the deter-
mination of liability to forfeiture fo such vehicle, vessel or aircraft.
[(d)] (g) Definitions.
The term "United States" as used in this section includes the Canal
Zone, and all territory and waters, continental or insular, subject to
the jurisdiction of the United States. The term "person" as used in
this section shall be deemed to mean any individual, partnership,
association, company, or other incorporated body of individuals, or
corporation, or body politic.
[(e)] (h) Nonadmission of certain aliens.
Nothing in this section shall be construed to entitle an alien to
whom a permit to enter the United States has been issued to enter -
the United States, if, upon arrival in the United States, he is found
to be inadmissible under any of the provisions of this chapter, or any
other law, relative to the entry of aliens into the United States.
[(f)] (i) Revocation of proclamation as affecting penalties.
The revocation of any proclamation, rule, regulation, or order
issued in pursuance of this section shall not prevent prosecution for ?
any offense committed, or the imposition of any penalties or forfeitures,
liability for which was incurred under this section prior to the revoca-
tion of such proclamation, rule, regulation, or order.
[(g)] (j) Permits to enter.
Passports, visas, reentry permits, and other documents required
for entry under this chapter may be considered as permits to enter?
for the purposes of this section.
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INTERNAL SECURITY AMENDMENTS
SECTION 22, UNITED STATES CODE
SEC. 211a. (a) Authority to grant, issue, and verify passports.
The Secretary of State may grant and issue passports, and cause
passports to be granted, issued, and verified in foreign countries by
diplomatic representatives of the United States, and by such consul
generals, consuls, or vice consuls when in charge, as the Secretary of
State may designate, and by the chief or other executive officer of the
insular possessions of the United States, under such rules as the Presi-
dent shall designate and prescribe for and on behalf of the United
States, and no other person shall grant, issue, or verify such passports.
(b) In the exercise of his authority under subsection (a) of this section
the President may confer upon and delegate to the Secretary of State the
power and authority to prescribe rules and regulations relating to the
issuance, refusal, extension, renewal, restriction, limitation, revocation,
withdrawal, and cancellation of passports.
(c) The Secretary of State is authorized to deny, limit, or revoke a
passport in the case of any person where there exist adequate grounds for
believing that such person is, or has been since January 1, 1951, a mem-
ber of, or affiliated with, the Communist Party, or knowingly engages or
has knowingly engaged, since January 1, 1951, in activities intended to
_further the 'International Communist movement, as to whom it is deter-
mined that his or her activities or prescence abroad would under the find-
ings made in section 5 be harmful to the security of the United States.
The Secretary of State may require, as a prerequisite to the issuance of
a passport, that the applicant subscribe to and submit a written statement
duly verified by his oath or affirmation whether he is presently, or has
been since January 1, 1951, a member of the Communist Party or a
supporter of the international Communist movement, and to state the
circumstances of any such membership or to state his activities in support
of the international Communist movement.
(d)(1) in the event that the Secretary of State makes a determination
? that the United States Government is unable to provide adequate protection
to persons traveling in particular countries or areas, due to the lack of
diplomatic rtlations or due to disturbances within such countries or
areas, or that travel of United State P nationals to or in such countries
or areas would seriously impair the foreign relations or foreign policy of
the United States, he may publish such determination and may cause
notice thereof to be stamped on each passport thereafter issued, renewed,
or amended.
(2) No United States citizen or national shall travel to or in any
country or area which has been designated by the Secretary of State in a
determination made and published under paragraph (1), except that in
the national interest the Secretary may make exceptions to geographical
? limitations of general applicability for particular categories of persons.
(3) It shall be unlawful for any holder of a passport to refuse to sur-
render it upon proper demand by the Secretary of State or his authorized
agent.
(4) Any person who violates the provisions of this subsection shall be
guilty of a misdemeanor and upon conviction be punished by imprison-
ment for a period not exceeding one year or by a fine not exceeding $1,000
or both.
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INTERNAL SECURITY AMENDMENTS
THE ADMINISTRATIVE PROCEDURE ACT (60 STAT. 237)
PASSPORT REVIEW PROCEDURE
17
SEC. 13. (a) As used in this section?
(1) The term "applicant" means a citizen or national of the United
States who has made application for a passport in accordance with section
1 of title IX of the Act of June 15, 1917 (40 Stat. 227; 22 U.S.C. 213),
section 215 of the Immigration and Nationality Act, as amended (66
Stat. 190; 8 U.S.C. 1185), and such regulations as the Secretary of State
shall prescribe to carry out his authority under this section.
(2) The term "special review officer" means any officer of the Depart-
ment of State or of the United States whom the Secretary of State deems
specifically qualified to conduct proceedings prescribed by this section and
who is selected and designated by the Secretary of State, individually or
by regulation, to conduct such proceedings. Such special review officer
shall be subject to such supervision and shall perform such duties, not
inconsistent with this section, as the Secretary of State shall prescribe.
(b) Any applicant who, on any grounds other than those relating to
citizenship or nationality, has been refused a passport or the renewal or
extension thereof, has a passport withdrawn, canceled or revoked, or has a
passport restricted or limited, except in a manner applicable to all ap-
plicants, and who has complied with all regulations promulgated by the
Secretary of State pursuant to this or any other Act, may within six
months after notification of such action by the Secretary of State submit
to the Secretary of State a timely motion In writing for a review before a
special review officer, and any such applicant shall be advised of his
right to make such motion.
(c) A motion for a review made under subsection (b) of this section
shall be referred to a special review officer. In any case in which the
Secretary of State believes that such procedure would be of aid in making'
a determination, he may direct specifically or by regulation that an addi-
tional officer of the Department of State or of the United States shall be
assigned to present the evidence on behalf of the Government and in such
case such additional officer shall have authority to present evidence, and
to interrogate, examine, and cross-ca amine the applicant or the witnesses.
Nothing in the preceding sentence shall be construed to diminish the au-
thority conferred upon the special review officer conducting proceedings
under this section.
(d) A special review officer shall conduct proceedings under this section
for the purpose of submitting to the Secretary of State a recommendation
as to what action should be taken. In proceedings conducted under this
section all testimony shall be given under oath or affirmation. The
special review officer may administer oaths, present and receive evidence,
interrogate, examine, and cross-examine the applicant or witness. The
special review officer shall communicate his recommendation to the
Secretary of State, who may approve, or reject, in whole or in part, such
recommendation, reopen the proceedings, or make his own determination
in lieu of the recommendation of the special review officer. The decision
of the Secretary of State shall be final. The applicant shall be notified
of such decision by the Secretary of State in writing.
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18 INTERNAL SECURITY AMENDMENTS
(e) No special review officer shall conduct a proceeding in any case
under this section in which he shall have participated in investigative
functions or in which he shall have participated in the original refusal
to issue, review, or extend a passport, or in the original action of with-
drawal, cancellation, revocation, limitation, or restriction of a passport.
(I) Proceedings before a special review officer acting under the pro-
visions of this section shall be in accordance with such regulations, not
inconsistent with this section, as the Secretary of State shall prescribe,
which regulations shall include requirements that?
(1) the applicant shall be given notice, reasonable under all the
circumstances, of the reasons for the original action taken on his ap-
plication and of the time and place at which the review proceedings
will be held;
(2) the applicant shall have the privilege of being advised, assisted,
or represented (at no expense to the Government) by counsel;
(3) the applicant shall have a reasonable opportunity to present
all information relevant and material to the formulation of the special
review officer's recommendation in his case;
(4) the applicant may testify in his own behalf, present witnesses
and offer other evidence. If any witness whom the applicant wishes
to call is unable to appear personally, the special review officer may,
in his discretion, accept an affidavit by him or order that his testi-
mony be taken by deposition. Such deposition may be taken by
any person designated by the special review officer and such designee
shall be authorized to administer oaths for the purpose of the
depositions;
(5) a complete verbatim stenographic transcript shall be made of
proceedings conducted under this section by qualified reporters, and
such transcript shall constitute a permanent part of the record.
bpon request the applicant or his counsel shall have the right to
inspect the transcript, and each witness shall have the right to inspect
the transcript of his own testimony; and
(6) attendance at hearings under this section shall be restricted
to such officers of the Department of State as may be concerned with
the case under consideration, the applicant, his counsel, the wit-
nesses, and the official stenographer. Witnesses shall be present at
the hearing only while actually giving testimony, unless otherwise
directed by the special review officer.
(g) Proceedings under this section shall be conducted in such manner as
to protect from disclosure all 'information which, in the opinion of the
Secretary of State or special review officer, would affect the national
security, safety, and public interest, or would tend to compromise investi-
gative sources or investigative methods: Provided, That no such informa-
tion shall be the basis for the denial, withdrawal, cancellation, or revoca-
tion of a passport in the case of any applicant in proceedings under this
section unless such applicant has been furnished a statement summarizing
such information in as much detail as the Secretary or such special
review officer determines is possible without jeopardizing the national
security, safety, and public interest, or compromising investigative
sources or methods.
(h) The _files maintained by the Department of State and any other
pertinent Government files submitted to the special review officer shall be
considered as part of the evidence in each case without testimony or a
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19
ruling as to admissibility. Such files may not be examined by the appli-
cant.
(i) The special review officer shall insure the applicant of complete
and fair consideration of his case. In making his recommendation the
special review officer shall consider the entire record, including the tran-
script of the proceedings and any files and confidential information as he
may have received. The special review officer shall take into consideration
the inability of the applicant to challenge information of which he has
not been advised in full or in detail, or to attack the creditability of informa-
tion which has not been disclosed to him. Judicial rules of evidence shall
not apply in proceedings under this section except that reasonatle restric-
tions shall be imposed by the special review officer as to the relevancy,
competency, and materiality of evidence introduced in the proceedings.
(j) Notwithstanding the provisions of any other law, the procedure
prescribed in this section shall be the sole and exclusive administrative
procedure for the review of the refusal to issue, renew, or extend a passport,
or of the withdrawal, cancellation, restriction, limitation, or revocation
of a passport.
0
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'Talendar No. 1881
?:SEgATE ?", ' " j "REPT: 1811
? i:" ' "' ''' 'PRA 2
86TH CONGRESS }
2d Session." '
.1t ,/,()(1 ?ki!1 t? (), (1,?.1.1 III I I T
- : - T I (.1 , 1l ii1.,
,,11..(1, ? ? ?? (..
' ?
INTERNAL SECURITY,: AMENDMENTS
' ,;(1 ?,; ;II!, ? , ? .? 111
.(41? r ?1 ? r .11, ? . (1 . '? 1 1'14 . t?I
- riJ . !e , , . A)1 I .1 1
, - ri .1,1 ?" 4? ? C.! L ?Jt tr ,
'AUGUST 26 (legislative day, AucusT 24) 19601?Ordered to be priilte'd4.1
r? ? - .? ,"sJ ? r ? ? I e ?'.. ?1?1' ;
? .1.r 1. 41 ? r "..'; -!'? ? . ? 'n ',II.,
.4 0 / 4'. " '7. I
./I
Ur. ic.E-FktViit, from the' bromi irii.tteel -on' the Judiciar'Y;
?,-1?? 1, ? )., . ? ,
the following
!,;--1- : I ? !?'.?(. ? . R? ,
,
.1 I
, ,.,MIIORITY;?AirD.;,Sg)411./M
? .1 ?I ,I.!, ,-.1..)1?,
[TO accompany S. 2652] t ,
? %-iii,?;'1 ;.,,.;1 ,,WNORITY VIEWS ,
1 ;.. ? di.. 1,, (d '? ,,?;.
'1',EipAss,Ppzyr. .(I,-
pur opposition to S. 2652 rests principally upon our firm
bill repreSeritS' a" grave and ' unwarranted :infringement of 'the
,Ahierican citizen's libertY' tii? travel. Sections' 4-43 'of the bill lay
1dOWn the criteria, and procedures' th be Used?by the State Department
revoking, and. limiting 'passports. We belie` that .the,
proposed criteria are 'vague and self-contradictorY'l. and ;that the
proposed procedures clearly Violate the due process of law vouchsafed
every icitizen .by the fifth amendment. Under cover, of complicated
legal language, S. 2652 would grant the State Department a discretion
in the matter of withholding and limiting passports which is virtually
absolute., We cannot approve of such a lack of faith in our historic
belief in the rule of law, nor can we agree to legislation which attempts
to remove important constitutional issues from the jurisdiction of the
Federal courts. The Department of State's primary, function is the
conduct of foreign affairs, not the determination of the legal rights
and responsibilities, of American citizens, and it would be unfair 'to
the Department, as well as unwise, to make it the final arbiter of the
right to travel.
. !The right to travel,") said the Supreme Court in the iecent cage Of
'Kent y. Du4les (357 U.S. 116 (1958))?
, f;'
is a 'part of the -"liberty" of which the citizen cannot.,be be. '
? deprived?without due-process of law under the fifth amend-
ment * * * Freedom of movement across frontiers m,
;) ? ? either 'direction,' and inside frontiers as Well, was a part of r.
, ? ourheritage. Travel abroad; like tiavel within the country, .
? r,,,
57006
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iA11!1UNAijb.ECURITY AMENDMENTS
may be necessary for a livelihood. It may be as close to
the heart of the individual as the choice of what he eats, or
wears, or reads. Freedom of movement is basic in our
scheme of values.
Today the power to grant or to withhold passports is the power to
grant or to withhold the right to travel. This was not always so, for
until 1914 it was possible to travel extensively without a passport.
Although the Secretary of State from 1856 onward had the authority
to "grant and issue passports" (11 Stat. 60), this discretionary power
did not involve the right to travel, since passports were generally
required neither by foreign governments nor by the United States.
From the time of the First World War, however, to the present,
Congress has enacted a series of compulsory passport laws to have
effect during time of war or national emergency. The latest of these
is section 1185(b) of the Immigration and Nationality Act of 1952
(66 Stat. 163 (1952) ; 8 U.S.C. 1101-1503), which provides that in
time of war or national emergency?
* * * it shall, except as otherwise provided by the President,
and subject to such limitations and exceptions as the Presi-
dent may authorize and prescribe, be unlawful for any citizen
of the United States to depart from or enter, or attempt to
depart from or enter, the United States unless he bears a
valid passport.
The compulsory passport is still in effect because the national emer-
gency proclaimed by President Truman on January 17, 1953 (Procla-
mation No. 3004, Jan. 17, 1953; 18 Fed. Reg. 489), has not been
terminated.
Although the citizen's right to travel has become dependent upon
his obtaining a compulsory passport, the Department of State never-
theless insists that its old formal discretion over the granting and
withholding of passports should apply in this new situation. The
source of this discretion in statutory law is the present Passport Act
(22 U.S.C. 211a-222, 44 Stat. 887-1926) which reads in part:
The Secretary of State may grant and issue passports,
and cause passports to be granted, issued, and certified in
foreign countries by diplomatic representatives of the United
States * * * under such rules as the President shall desig-
nate and prescribe for and on behalf of the United States,
and no other person shall grant, issue, or verify such pass-
ports" (sec. 211a).
Basing its claim partly upon this statute and the Presidential regula-
tions made pursuant to it, and partly upon its constitutional function
of conducting the Nation's foreign policy, the State Department has
since 1950 claimed the power to deny passports to anyone whose
travel would, in its opinion, be contrary to the national interest.
Thus, State Department Regulation 51.135 denied passports to
Communists, while regulation 51.136 purported to restrict the move-
ment of others whose activities abroad would "be prejudicial to the
interests of the United States." The opinion of the State Department,
repeatedly stated, has been that the question of who may travel and
who may not must be decided entirely by reference to U.S. foreign
policy?in other words, by the State Department.
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1iNijiruua iuit1TY AMENDMENTS
3
A series of decisions in the Federal courts have challenged this
assumption of unlimited administrative discretion. In Bauer v.
Acheson (106 F. Supp. 445 (D.D.C. 1952)) the court held that passport
administration is not merely a matter of foreign affairs because it
involves important constitutional rights:
This court is not willing to subscribe to the view that the
executive power includes any absolute discretion which may
encroach on the individual's constitutional rights, or that the
Congress has power to confer such absolute discretion. We
hold that, like other curtailments of personal liberty for the
public good, the regulation of passports must be adminis-
tered, not arbitrarily or capriciously, but fairly, applying
the law equally to all citizens without discrimination, and
with due process adapted to the exigencies of the situation.
Less than 2 months after this decision, the State Department created a
Board of Passport Appeals And provided rules of procedure for the
Board (C.F.R. 22: 51.135-51.170) further court decisions made it
clear that the courts would be satisfied with nothing less than genuine
due process of law in the administration of passports. Clark v.
Dulles (D.C.D. 1955, 129-F. Supp. 950) and Nathan v. Dulles (D.C.D.
1955, 129 F. Supp.). denied that private talks with applicants or
informal interrogation constitute adequate hearings, while Boudin.v .
Dulles (D.C.D. 1955, 136 F. Supp. 218) decided that the Secretary
may not deny a passport on the basis of evidence which does not
appear upon the record and which the 'applicant has had no oppor-
tunity to meet. The 'cases of Kent v. Dulles (246 F. 2d 600 (D.C. Cir.
1957)), Briehl v. Dulles (248 F. 2d 561 (D.C. Cir. -1957)) and Dayton
v. Dulles (237 F. 2d 43 (D.C. Cir. 1956)) decided that the Secretary
does not have statutory authority to withhold passports from citizens
on the ground of alleged political affiliations and specifically reserved
opinion on the question of whether such statutory authority would
be constitutional., .However, the Supreme Court suggested that it
would entertain grave doubts about the constitutionality of such a
statute. The Court in the Kent case concluded:
We deal here with a constitutional right of the citizen,
a right which we must assume Congress 1Nill 'be faithful to
respect. We would be faced with important constitUtional
questions were Wd to hold that Congress by seetion 1185 and
section 211a had given the Secretary authority to withhold ???
passports to citizens because of their beliefs or associations.
Congress has Made no such prpvision in explicit terms; and
'absent one, the Secretary may not employ that standard to
restrict the citizens' Tight of free inovenient.
I. PASSPORT DENIAL ,
Sections 4 and 5 of S. 2652 grant the Secretary of State the.right to
deny, limit, or revoke passports in the case of any applicant?
whenever there is reasonable 'ground to -believe that the
applicant oi holder of a previously isSued passport, is, or has
.been since January 1, 1951, a member of, or affiliated. With,
the Communist Party, or knowingly en:gages or ha.s know-
ingly engaged, since January 1, 1951, in activities intended
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'-.1krEtrgAligEcuAlitY?ImrlsrimENTs
`to further the rinternatiOnal Comniunist.MoVeinent,- as to -
? I whOm it is determined , that his or iheriadtivities Or presence
abroad would under the- findingSlthadel in 'section 5 Of the
CommunistiControlWct of 1954 be harmful to the security of
the United States.
Does 'this. can . that the-Secretary of Ste 'may any, paSSports to
applicant's . 'because 'ithey ? .are Cointhimists.,or people whose
activities; the Secretary thinks t might ifurthei- the 'Communist move-
ment?! On the- surface it dOes,not,'because;the'same section states:
? " ;.4 ? .1?
'The Secretal7?, Of, State shall not deny1: 1a' passport to any
,-pei-'sOn solely; on the basis of membership in an organization,
association - With ;any ' ihdivianal, 'Or group': adherence to
unpopular views, Or criticisms of the United States: or its
domestic or foreign policies: .
4
, ?
. The Committee report on this ' bill expresses the, view that this
Section has substance and that PhSsports will only be denied Wheid,
in addition to evidence of ,CoMmunist associations?
' ?
.? it is also .determined -that the, activities or presence of such .
i person abroad would be harmful to the s'ecurity of the United '?
States (S.,Rept. 181486th Cong., 2d sess., p. 5):
? , ?
HoWever, the bill' dOeS jUstify this interpretation. The key Winds
. .k '
iii sktion 4 (c)1 alid section' 5(c) are:
,
?
..1? ? as to , whom it, is determmed that his or?lier activities pr
) :presence. ab_road, would. under the. finding's made in. section 5;
,of ,the Conununist. Control -Act of 1954 be harmful , to. the,
; security of the United States. . , ?,k\ ?
,But, when tire look at the fifth:sectiori of the Conimunist'COntrol 'AU
we'find' a series of 14:tests for determining membership or participation
tin: the CommunistiParty or any other organization defined in the act.
'Thus, the two tests for' the denial or revocation of a passport in. this
'bill,are membership it the Communist Party, and 'activities intended
to further the international Communist movement"
In other words, the bill does not make a denial of a citizen's pass-
port application dependent upon the production of 'substantive evi-
dence. that he, has acted contrary ,to, national security. The vague
criteria of membership in an organization and of personal beliefs pose
a clear danger to the rights of American citizens .to think and associate
as they please. What,, then, should the criteria.be? One example
of constructive thinking on this subject is the report of the Special
Committee To Study ,P.assport Procedures of, the Association, of the
Bar of the City of New York, entitled "Freedom to Travel." It
contains the following recommendation:
Travel abroad by individual U.S. 'citizens may be re-
strained and passports may be denied to citizens as to
whom the Secretary finds reasonable grounds to believe that
their activities' abroad Would endanger the national security
of the United States by (1) transmitting without proper
authority, security information of the United States; (2)
, Meiling hostilities or conflicts which might involve the United
.States; or (3) inciting attacks by force upon the United
IP r'?i I ),,1 P ? " I
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AMENDMENTS
5
States or attempts to overthrow its Government by force
and violence.
Travel should not be restrained and passports should not
be denied solely on the basis of membership in any organiza-
tion, even the Communist Party, association with any indi-
vidual or group, adherence to unpopular views, or criticism
of the United States or its domestic or foreign policies.
Thus, action hostile to the national security of the United
States must be reasonably anticipated, as opposed to mere
speech or the holding of opinions; and, there must be an
evidentiary showing that travel of a particular individual
will constitute a definable danger to the national security of
the United States (p. XXII).
Sections 4(c) and 5(c) of S. 2652, however, are so worded that they
do not protect the rights of law-abiding citizens. The end result of
the vague wording and confusing cross-references of these sections is
that the Secretary of State is empowered to deny, limit, or revoke the
passport of non-Communists as well as Communists where "there is
reasonable ground to believe" that they are dangerous. Since the
Secretary alone may decide when reasonable ground for such belief
exists, the Secretary may deny passports to anyone whom he con-
siders suspicious. The ultimate effect of the bill is made clear by
subsection (d) of section (4), which states the considerations which
may be used as evidence that the applicant falls in to the class defined
in subsection (c). These considerations are membership in any group
described in subsection (c), prior membership in such a group if the
applicant continues to act as a member, activities which warrant the
conclusion that the applicant is controlled by such a group, and ac-
tivities which indicate that he adheres to the doctrine of such a group.
Once again the bill refuses to lay down substantive criteria which
define activities contrary to the national security, thus giving the
State Department a free hand to decide what constitutes such a
threat. This is exactly the kind of unfettered discretion which our
system of government was created to limit and control.
II. DUE PROCESS OF LAW
Wide discretionary power may be granted to administrators only
when the standards of due process of law are carefully maintained.
It might be possible to allow the Secretary of State wide discretionary
powers if the individual denied a passport were granted a hearing in
which he was permitted the traditional rights of confrontation of
witnesses, cross-examination, presentation with the complete evidence
against him, appeal to an impartial body, and the review of his case
by the courts of the land. However, all of these safeguards are
denied to the applicant for a passport under the hearing procedures'
established by S. 2652. On the contrary, the bill authorizes the
Department of State to withhold evidence, to keep witnesses hidden,
and to refuse to let the applicant know the full nature of the charge
against him, if it .considers such action in the interests of national
security. A ruling to this effect by the Secretary of State is final,
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according to the bill, and hence is not subject to judicial review.
Section 4, subsection (c) states:
The Secretary may withhold a passport in the national
interest on the basis of confidential information where he
shall certify that it is contrary to the interests of this Nation
that a passport be issued to the applicant.
The requirement of certification is significant, because it is a subtle
method of avoiding judicial review. As long as the bill merely said
that the Secretary could withhold information "where it is contrary
to the interests of this Nation," the courts might have had jurisdiction
to decide that a specific denial of a passport was not justified by the
statute. But, according to this section, mere certification is to be
taken as conclusive; the Secretary certifies, the case is closed. More-
over, it will be noted that this phrase enables the Secretary to deny
passports for any reason whatsoever, whether or not that reason is
relevant to the issue of subversion and the national security. If the
Secretary decides that John Jones should not have a passport, he may
deny the passport without stating his reasons for so doing, if such
statement, in his opinion, ought not to be released.
Section 6 of the bill amends the Administrative Procedure Act
(60 Stat. 237; 5 U.S.C. 1001) in order to provide for a process of review
of passport decisions. Step by step, as we follow the subsections of
this important section of the bill, we see the principles of due process
being whittled away. "The applicant shall be given notice, reasonable
under all the circumstances, of the reasons for the original action taken
on his application * * *" (sec. 6(f) (1)). Why this addition of the
words italicized? The reasons are not far to seek; just as the Secretary
may deny a passport on the basis of confidential information, so he
may decide that it is not "reasonable" to give the applicant full notice
of the reasons for such denial. Paragraph (2) continues, "the appli-
cant shall have the privilege of being advised, assisted, or represented
(at no expense to the Government) by counsel." We are convinced,
on the contrary, that representation by counsel is a right, not a
privilege.
Reading further, we find (3): "the applicant shall have a reasonable
opportunity to present all information relevant and material to the
formulation of the special review officer's recommendation in his case."
The special review officer is thus to decide what information is "rele-
vant and material," to the formulation of his own recommendation.
When we add the effect of this paragraph to that of paragraph (1), it
becomes evident that the special review officer may first inform the
applicant of only a small part of the genuine reasons for the denial
of his application, and may then rule out any evidence which the
applicant offers to refute the hidden reasons as immaterial to the stated
charge. A hypothetical case in which these restrictions on the appli-
cant's rights would operate to his great injustice is not difficult to
imagine. Thus, John Jones is denied a passport because the State
Department suspects that he intends to make a speech in West
Berlin, attacking our West German allies. However, since this
charge cannot be proved, and would not look good in print if it could,
the Secretary's special review officer denies the passport on the basis
of "confidential information." Jones testifies at his hearing that he
is now a great friend of West Germany, but since the Department still
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considers him a suspicious character, his testimony is declared imma-
terial by the special review officer, and Mr. Jones is left without a
remedy.
It may be argued that State Department administration is honorable
and conscientious and would not resort to such devious and objec-
tionable devices to limit an American citizen's right to travel. But
we should not write into law procedures which could so easily be
abused by administrators, and which tempt the most well-meaning
review officer to excesses of power.
Paragraphs (5) and (6) of this subsection give the applicant thy
right to testify in his own behalf, present witnesses, and offer evidence,
as well as the right to inspect the transcript of his proceedings. These
"rights," however, are seen for what they are?a weak excuse for
due process of law, when we read subsection (g) of section 6.
(g) Proceedings under this section shall be conducted
in such manner as to protect from disclosure all informa-
tion which, in the opinion of the Secretary of State or special
review officer, would affect the national security, safety, and
public interest, or would tend to compromise investigative
sources or investigative methods: Provided, That no such.
information shall be the basis for the denial, withdrawal,
cancellation, or revocation of a passport in the case of any
applicant in proceedings under this section unless such appli-
cant has been furnished a statement summarizing such in-
formation in as much detail as the Secretary or such special
review officer determines is possible without jeopardizing
the national security, safety, and public interest, or com-
promising investigative sources or methods.
Subsection (h) then provides that files used by the special review
officer in arriving at his decision may not be inspected by the appli-
cant. The purpose of these sections is clear. The Secretary of State
is here given the unqualified right of withholding such evidence and
suppressing such information as he considers in the national interest.
There is no provision for judicial review of his decision, no wily of
checking .up on whether he is abusing his power, or using it in the
national interest, and in the interest of the rights of the applicant as
well. In addition, not only the Secretary of State, who is ultimately
responsible for all State Department decisions, but the special review
officer, who might be almost any official in the Department, is given
the power to keep evidence, witnesses, and the reasons for action
against the applicant secret.
This bill would give legislative sanction to the practice of secret
accusations made by men who have nothing to fear should their
accusations prove false. It would deny one whose passport has been
denied on grounds dangerous to his standing in the community the
right to confront his accusers, to know the evidence against him, and
to have a chance to refute it. The proviso to section 6(g), which
purports to let the applicant know the grounds for the Secretary's
decision in summary form, is of no effect whatsoever in protecting the
aforementioned rights of passport applicants and passport holders,
since once again the Secretary, on his own judgment, is permitted to
withhold some or all of the evidence against the applicant. The
District Court of the District of Columbia summed up our feelings on
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this subject (Boudin v. Dulles, 136 F. Supp. 218 (D.D.C. 1955)) when
it said:
How can an applicant refute charges which arise from
sources, or are based upon evidence, which is closed to him?
What good does it do him to be apprised that a passport is
denied him due to associations or activities disclosed or in-
ferred from State Department files even if he is told of the
associations and activities in a general way? * * * The
right to a quasi-judicial hearing must mean more than the
right to permit an applicant to testify and present evidence.
It must include the right to know that the decision will be
reached upon evidence of which he is aware and can refute
directly.
The Court of Appeals (235 F. 2d 532 (D.C. Cir. 1956)) held in this
case that if the Secretary should again refuse a passport to the plain-
tiff, he must state his grounds for withholding witnesses and evidence.
The district court would then have jurisdiction to decide?
whether the Secretary has given reasons valid in law for
keeping confidential any information?not disclosed to the
applicant?upon which he states he has relied.
In direct contrast to these decisions of the Federal courts, S. 2652 not
only denies the applicant the right to know the evidence against him,
but attempts to oust the jurisdiction of the courts, which the court of
appeals in Boudin v. Dulles expressly provided for.
III. TRAVELERS REPORT
Section 7 is such an extreme interference in the liberty of American
citizens that the State Department, as quoted in the report on the
bill, rejected it. Section 7 provides that each applicant for a pass-
port must declare under oath to provide upon request of the Depart-
ment of State?
a full and accurate report concerning the places outside the
United States which were visited by such applicant subse-
quent to the issuance of any such passport and prior to its
final expiration.
This section was taken from another proposed bill, S. 1303; the State
Department had this to say about it:
Section 6 of S. 1303 would require any passport applicant
to promise under oath to report subsequently, upon request,
on the places outside the United States visited during the
period of validity of the passport. The provision appears to
be of dubious utility, because the passport itself normally
shows entry and exit stamps affixed by the authorities of for-
eign countries and, in cases where a passport holder succeeds
in attempts to avoid the placing of such stamps on his pass-
port, for his own reasons, he would presumably not furnish
the information voluntarily and would incur no sanction if
he refused (p. 11 of S. Rept. 1811, 86th Cong., 2d sess.).
Even after the State Department condemned this section as un-
necessary and unworkable, it nevertheless remains in S. 2652. Section
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9
7 is not only unworkable?it is an affront in its demand that American
citizens hand in reports on their travels abroad.
IV. JURISDICTION
A further ground on which we may urge the rejection of this bill is
the fundamental procedural ground of the primary jurisdiction over
passport legislation of the Foreign Relations Committee. Senator
Fulbright, chairman of the Senate Committee on Foreign Relations,
made this point most strongly in a recent speech on the floor of the
Senate (Congressional Record, July 1, 1960, vol. 106, No. 123, daily
edition, p. 14416). [Copy attached.]
It is clear that the Foreign Relations Committee, and not the
Judiciary Committee, has primary jurisdiction over passport legisla-
tion. We vigorously support the 'Senator in his belief that the Senate
should not act on any bill concerning passports without first referring
such bill to the Foreign Relations Committee for its consideration and
recommendations. Only three short sections of S. 2652 deal with
other matters. The five sections which make up the bulk of the bill
concern passports, and should be referred to the Committee on Foreign
Relations.
V. CONCLUSION
The passport provisions of S. 2652 do not give proper consideration
to the American citizen's right to travel. The vague criteria for revo-
cation or refusal of passports enable administrators to deny the right
to travel on the basis of beliefs and associations. The review proce-
dures which follow revocation or refusal do not protect the citizen's
birthright: the guarantee that he shall not be deprived of his consti-
tutional rights without due process of law. In each case, the Secretary
of State is granted a discretion which is virtually absolute: in the case
of the criteria, a discretion to determine what activities are not in the
national interest; in the case of procedure, a discretion to suppress
information which in his opinion ought to be suppressed. As the Wall
Street Journal said in its editorial of July 6, 1960, on the passport
provisions of S. 2652:
It's probably old-fashioned of us, or even reactionary, but
we have always clung to the idea that one of the liberties of
a free people is the right to go from one place to another.
* * * This bill not only gives the Government the author-
ity to deny a passport; it rests that authority entirely in the
hands of an appointed official, the Secretary of State, and
says that he may exercise it on the basis of "confidential
information" which he does not have to explain to anybody.
So let's suppose the Secretary of State doesn't like some-
body's political opinions?today a Communist's opinion,
tomorrow yours perhaps. He denies a passport, and the
matter is appealed to the courts. Under this proposed law
he can refuse to say why he denied the passport; he merely
explains to the court that explaining why he acted would
"affect the national security, safety, and public interest,"
as he alone defines them. And there you are.
Nowhere, moreover, do we find substantial evidence of any instance
in which the granting of a passport has had a significant detrimental
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1-1,1 J. 1-1.1.4.12,r1,1 A,1-1 CURITY AMENDMENTS
effect on the national security. We are fully aware that the issuance
of a passport to a "suspicious person" might conceivably result in the
misuse of that passport to the detriment of U.S. foreign policy, but in
balancing that possibility against the wholesale deprivation of the
right to travel which S. 2652 would allow, we conclude that even were
there evidence of past abuses of the passport, we would not be justified
in denying Americans the right to travel otherwise than by due process
of law. Considering that no such evidence has been adduced, and,
further, that most of the court cases on the subject have dealt with the
denial of passports to dissenters, or at most suspected Communist
sympathizers, we reject the assumption that the danger of permitting
a general right to travel is so great as to warrant a vast restriction of
liberty. S. 2652 is a vast restriction of liberty. Its true effects are
hidden behind confusing and vague language, and involved references
to other statutes. For these reasons we cannot concur in the majority
report and strongly urge rejection of this bill.
S. 2652: OTHER SECTIONS
The purpose of section 1 of S. 2652, as summarized in the report of
the Judiciary Committee (S. Rept. 1811, p. 2) is?
to (1) permit the indictment and trial of an offender or joint
offenders who commit abroad offenses against the United
States, in the district where any of the offenders is arrested
or first brought; (2) to prevent the statute of limitations
from tolling in cases where an offender or any of the joint
offenders remain beyond the bounds of the United States by
permitting the filing of information or indictment in the
last known residence of any or the offenders * * *
While we do not doubt that the Government of the United States has
the power to legislate against offenses committed outside its territorial
jurisdiction, we wish to point out that this power has been exercised
with the greatest hesitation in the past. Because of the prima facie
jurisdiction of all nations over citizens and aliens within their terri-
torial limits, the habit of legislating to exercise authority over people
abroad could lead to grave conflicts of jurisdiction between friendly
nations. Had hearings been held on this legislation, had reports on
its necessity been produced, had evidence on its behalf been submitted
by the Department of Justice, we would be in a position to determine
the need for such legislation. We find no such hearings, no specific
evidence, no details from the Justice Department. We cannot sup-
port legislation which affects the acts of persons inside other countries
without being shown specific evidence of its necessity and worth.
Therefore, we ask for more information and study before we pass
judgment on this section.
Section 2 expands the definition of "foreign principal" in the
Foreign Agents Registration Act to include domestic organizations
which are not only subsidized, but substantially "supervised, directed,
controlled, or financed" by a foreign government or foreign political
party. Subsection (2) of this section limits the commercial exemp-
tions to the act by providing that a foreign principal, in order for its
agents to be eligible for exemption from registering under the act,
must be engaged in activities which are private, nonpolitical, and
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MI11 /%1J Or-JL, u niTY AMENDMENTS 11
financial or mercantile, instead of either private, nonpolitical, or
financial-mercantile.
Mr. Rogers of Colorado, speaking of an identical bill in the House,
summed up the practical purpose of this legislation:
This bill is proposed to broaden and clarify present law.
There is a question as to whether or not an individual work-
ing for an organization engaged in legitimate business financed
or partly financed by a foreign country, should come under
this act. This bill makes it certain that they do (Con-
gressional Record, Aug. 29, 1959, vol. 105, No. 150, p. 15985).
The parties at whom this bill is aimed are thus not the spreaders
of foreign propaganda, not conspirators seeking to overthrow the
Government of the United States, but businessmen with connections
abroad. We must, therefore, inquire further why the Justice Depart-
ment is so concerned about businesses with foreign connections.
The answer to this inquiry may be found in the unpublished testi-
mony of Mr. Nathan Lenvin, Chief of the Registration Section of the
Internal Security Section of the Department of Justice, in hearings
held before the House Committee on the Judiciary on August 13, 1959.
Mr. Lenvin there revealed that the purpose of this legislation was to
obtain information about certain domestic corporations which, while
not "subsidized," or continually supported by foreign governments
under the Foreign Agents Registration Act, were substantially con-
trolled from abroad. He cited the Amtorg-Trading Corp. (New York)
as an organization which, although not subsidized by the Soviet Union,
was "staffed and directed and controlled by the Soviet Government."
Thus, in order to obtain information about a few business corpora-
tions, we are presented with a bill whose wording is so sweeping that
almost any businessman engaged in international trade could be re-
quired to file a detailed registration statement. Moreover, the words
"supervised, directed, controlled, or financed" are capable of being
interpreted to give the Department of Justice the power to demand
information from a vast number of citizens whose dealings abroad are
personal, rather than commercial. Mr. Lenvin admitted this in an
exchange with Representative Libonati at the hearings before the
House Judiciary Committee. Having expressed some doubts as to
the undue scope of the language of H.R. 6817, the Representative was
assured by Mr. Lenvin that the Justice Department would apply the
statute wisely:
Libonati: "You would apply it practically, in other words; is that
it?"
Lenvin: "Yes, we have to. This statute, unless applied practically,
could lead you into all sorts of difficulty."
Libonati: "Yes."
Lenvin: "Any person who within the United States collects infor-
mation and/or reports information to a foreign principal. Suppose
you were a foreigner living here and were writing to your mother in
England on the conditions here in this country, you would be an
agent unless you took a commonsense approach to the thing."
Libonati: "Thank you very much."
The hearing closed quickly after this statement.
The representative of the Department of Justice, which asked for
this legislation, has so well condemned it that we have little to add to
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iz INTERNAL 6ECURITY AMENDMENTS
his observation that it could "lead you into all sorts of difficulty."
We believe that any bill which puts the entire responsibility for pro-
tecting the rights of individuals in the hands of an administrative
department is a bad bill. Like any other interference in the private
affairs of individuals, the requirement of registration and the filing of
reports with the Department of Justice must be limited to those cases
in which it is shown to be necessary. We are not convinced that
legislation which gives the Justice Department the power to demand
a registration statement from a businessman or a lawyer representing,
let us say, the British Overseas Airways Corp., is either desirable or
necessary. Since no proof of danger to our internal security has been
adduced in support of this section of the bill, we firmly oppose this
unwarranted intrusion into the privacy of the American citizen.
CONCLUSION
Other sections of S. 2652 are thus marred by many of the same
difficulties which have aroused our disapproval of the passport sections.
They make important changes in delicate areas of the law without
demonstrating that such changes are in any way necessary to the na-
tional security. We therefore urge the rejection of S. 2652.
THOMAS C. HENNINGS, Jr.
ESTES KEFAUVER.
PHILIP A. HART.
JOHN A. CARROLL.
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ADDITIONAL VIEWS OF SENATOR CARROLL
? In view of the thoughtful and compelling minority report filed
herein?to most of which 1 heartily subscribe?I am opposed to the
consideration of this bill during the closing days of this session for
the important reason that grave and serious constitutional questions
are raised in this type of legislation which require careful study and
thorough debate.
In brief, this legislation should not be rushed through in the short
time remaining to this session of the Congress.
JOHN A. CARROLL.
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ADDITIONAL VIEWS OF SENATOR HART
S. 2652 does many things, and the full dissenting report signed by
Senators Kefauver, Hennings, Carroll, and myself sets forth in detail
the defects of the bill as it emerges from committee. I wish to add
a comment only on the passport legislation provisions.
Men differ in their understanding of the essentials of liberty, but
most agree with our judges that freedom includes the right to go from
one place to another without the permission of the State, just as it
includes the right to speak, the right to print, and the right to assemble
peaceably. None of these rights is unqualified, to be sure, and from
the beginnings of this Nation there have always been well-meaning
men anxious to engraft qualifications on the rights guaranteed so
simply and starkly in our Constitution.
Liberty is a fragile flower. It blossoms hardly anywhere in the
world. We have it in the United States, but only because we have
defended it with our lives in the past, and only because we nurture it
in the present through extraordinary devotion. An expression of that
devotion is to require those among us who would limit our liberties to
carry?conclusively?the burden of showing that all liberty is im-
periled if some one of the rights of freemen is not qualified.
In my judgment that burden has not been carried by the authors of
S. 2652. The wording used is muddy and, for me, difficult to grasp,
but the thrust of the bill is to deny passports to Communist Party
members and to those who engage "in activities intended to further
the international Communist movement," if the Secretary of State
thinks the presence of such persons abroad would be harmful to the
security of the United States.
The Secretary of State is relieved of any requirement, in the final
analysis, of disclosing to the unsuccessful passport applicant the reason
why he cannot leave the country.
Furthermore, the Secretary of State is by this bill given no, and
required to observe no, particular standards in arriving at his con-
clusion that the passport applicant's presence abroad would be harm-
ful to this country's security. There is a cross-reference to the Com-
munist Control Act of 1954, but the standards contained in that act
are for determining membership in the Communist Party, and by this
bill such membership is not in itself sufficient to justify denial of a
passport. What is sufficient, then? It's whatever the Secretary of
State thinks is sufficient.
Granted that there are citizens who would use their right to travel
abroad in a manner deadly to our national security, and that these we
must contain within our shores where they can be observed, neverthe-
less the strictures to be applied should accord with due process of law.
As I understand S. 2652, within its sweep would be not only the
deadly but the harmless, the hapless, the foolish, the eccentric, and
the innocent?and as to none of these would we extend the full measure
of due process. I doubt very much if this bill is constitutional, and
I am sure it is not wise.
PHILIP A. HART.
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