HEARINGS BEFORE THE COMMITTEE ON FOREIGN AFFAIRS HOUSE OF REPRESENTATIVES EIGHTY SIXTH CONGRESS FIRST SESSION ON H.R. 9069 AND OTHER BILLS RELATING TO THE ISSUANCE OF PASSPORTS

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00965R000500120001-2
• Release Decision: RIFPUB
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• Publication Date: August 19, 1959
• Content Type: OPEN

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PROVIDING STANDARDS FOR THE ISSUANCE OF
PASSPORTS AND FOR OTHER PURPOSES
HEARINGS
pEFORE THE
,
COli/MITTE ON, FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
EIGHTY SIXTHCONGRESS
FIRST SESSION
ON
H.R. 9069
AND OTHER BILLS RELATING TO THE ISSUANCE
OF PASSPORTS
AUGUST 5, 11, 12, 18, AND 19, 1959
Printed for the use of the Committee on Foreign Affairs
ITNITED STATES
GOVERNMENT PRINTING OFFICE
44763 WASHINGTON: 1959
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COMMITTEE ON FOREIGN AFFAIRS
THOMAS E. MORGAN, pennsylvania, Chairman'
A. S. CARNAHAN, Missouri
CLE MENT J. ZABLOCKI, Wisconsin
01Mi R BURLESON, Texas
EDN A F. KELLY, New York
WAS NE L. HAYES, Ohio
ARk 1STEAD I. SELDEN, Is., Alabama
J. L. PILCFIER, Georgia
BAR RATT O'HARA., Illinois
L. H. FOUNTAIN, North Carolina
DANTE B. FASCELL, Florida
;FRA :K M. COFFIN, Maine
LEO sTARD FARBSTEIN, New York
D. S. SAUNA, California
CHARLES C. DIGGS, JR.; Michigan
LIN] )LE Y BE C KW ORTH, Texas
HARRIS B. McDOWELL, JR., Delaware
WIL .JAM T MURPHY, Illinois
WIL JAM IL MEYER, Vermont
COR VELIUS E. GALLAGHER, New Jersey
CHE3TER BOWLES, Connecticut
ROBERT B. CHIPERFIELD, Illinois
FRANCES P. BOLTON? Ohio
CHESTER E. MERROW, New Hampshire
WALTER II. JUDD, Minnesota
JAMES G. FULTON,,Pennsylvania
DONALD L. JACKSON, California
MARGUERITE STITT CHURCH, Illinois
E. ROSS ADAIR, Indiana
ALVIA" M. BENTLEY, Michigan
LAURENCE CURTIS, Massachusetts
STCYVESANT WAINWRIGHT, New York
BOYD CRAWFORD, Staff Administrator
ROY J. BULLOCK, Senior Staff Consultant
'ALBERT C. F. WEsTeuAL, Staff Consultant
DumoNn PECK HILL, Staff Consultant
FRANRIAN J. :3CHUPP, Staff Consultant
JUNE NIGH, Senor Staff Assistant
WINIFRED OSBORNE, Staff Assistant
HELEN C. MATTAS, Staff Assistant
MYRTIE MELVIN, Staff Assistant
HELEN L. HAsnAGEN, Staff Assistant
MARY LOUISE O'BRIEN, Staff A8si8tant
ROBERT I. BOWEN, Clerical Assistant
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_1 4
CONTENTS
WITNESSES
Wednesday, August 5, 1959:
Hanes, Hon. John W., Jr., Administrator of Security and Consular Page
Affairs, Department of State 1
Raymond, John M., Acting Legal Adviser, Department of State 21
Tuesday, August 11, 1959:
Becker Hon. Loftus E. Legal Adviser Department of State 49
Murphy, Hon. Robert, 'Deputy Under 'Secretary of State for Political
Affairs 35
Wednesday, August 122 1959:
Bentley, Hon. Alvin M., a Representative in Congress from the State
of Michigan 59
Selden, Hon. Armistead I., Jr., a Representative in Congress from the
State of Alabama 75
Tuesday, August 18, 1959:
Gubser, Hon. Charles S., a Representative in Congress from the State
of California 113
Lindsay, Hon. John V., a Representative in Congress from the State
of New York 92
Wednesday, August 19, 1959:
Celler, Hon. Emanuel, a Representative in Congress from the State of
New York 131
Coffin, Hon. Frank M 163
Taylor, William L., legislative representative, Americans for Demo-
cratic Action 154
STATEMENTS AND MEMORANDUMS
Legal precedents supporting the thesis that Constitutional rights may be
affected by political or administrative decisions, statement submitted
by the Department of State
Privilege of obtaining and possessing a passport, statement submitted
by the Department of State
Travel by U.S. Communists, statement submitted by the Department of
? State
Jackson, James, American Communist Party, text of address by, submitted
for the record by Hon. Armistead I. Selden
Case citations on the infringement of rights by use of confidential in-
formation
Ro_gers, Hon. Paul G., a Representative in Congress from the State of
Florida, statement submitted by
Horan, Hon. Walt, a Representative in Congress from the State of Wash-
ington, statement submitted by, on H.R. 6537
Curtis, Hon. Thomas B. a Representative in Congress from the State of
Missouri statement submitted by, on H.R. 5455
Hosmer, lion. Craig, a Representative in Congress from the State of
California, statement submitted by, on H.R. 1919
Draft language on a bill to provide standards for the denial of passports,
submitted by Hon. John V. Lindsay
Oath of the President of the United States
Secretary of State's request, language contained in U.S. passport
American Legion, statement submitted by Lee R. Pennington, assistant
directoy, National Americanism Commission of the Legion
Women's International League for Peace and Freedom, U.S. Section,
statement submitted by
American Civil Liberties Union, statement submitted by
22
33
45
50
57
87
88
88
92
103
116
122
125
127
128
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Page
"Your Right to Passport", article by Hon. Emanuel Celler of New York,
pearing in the Bar Bulletin, New York County Lawyers Association,
arch?Aprill 1959 148
Judicial nonreview of political questions, memorandum from the Legislative
Reference Service, Library of Congress to Hon. Frank M. Coffin__ 164
APPENDIX
L Ater submitted by the Department of State, dated April 10, 1959, com-
menting on H.R. 55, H.R. 1919, H.R. 5575, H.R. 5948, H.R. 5951,
ii.t.n. 5954 H.R. 5956 (also including draft language) 169
.1., Ater submitted by Department of State, dated May 8, 1959, commenting
:_., on 11.A.67 , -,-t- , , ,.-, . 1., 173
"L;tter submitted .by the Department of Stat:e, dated June 4, 1959, corn-
entthg on H.R. 7006 174
'1.i.Ater ,pit m4ted 12Y the Department of State, dated August 4, 1959,
_, comnYenting onH.R. 2468 and H.R. 5455 174
LAter submitted b_y the Department of State, dated August 4, 1959,
cornmpnting on H.R, 8329 178
,10Ater submitted by the Department of Justice, dated April 16, 1959,
' OrnAentin-g on H.R. 55, 11.R 1919, H.R. 5575, H.R. 5948, H.R. 5951,
...2, Et.R. 5954, H.R. 5956 181
',Ater submitted by the Department of Justice, dated June 2 1959 corn-
, 1
Menting on H.R. 6537182
,,II.ottter githmitted by the Department of Justice, dated June 1`7,. 1959_,
concerning H.R. 7006_ 183
!!?ti,ssports to Trouble", article by John W. Hanes, Administrator, Bureau
of Security and Consular Affairs, Department of State, appearing in the
American Legion Magazine, September 1959
183
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PASSPORT IXOISLATION
WEDNESDAY, AUGUST 5, 1959
H017SE OF RE,PRESENTATITES,
COMMITTEE ON FOREIGN AFFAIRS'
Washington,D.C.
The committee met, pursuant to call, in room G-3, U.S. Capitol,
at 10 :45 a.m., Hon. Thomas E. Morgan (chairman) presiding.
Chairman MORGAN. The committee will come to order.
We meet in open session this morning on passport legislation. We
'lave before US a number of bills that have been introduced. I think
perhaps the first bill was H.R. 55, introduced by Mr. Selden. There
re several bills similar to the Selden bill, introduced by Messrs.
,urleson, Fascell, Fountain, Pilcher, Adair, Bolton, Chiperfield,
Jackson' Judd, Merrow, Hosmer, G-ubser, and Rogers of Florida.
We also have a bill introduced by Mr. Hays, H.R. 8329; a bill intro-
duced by Mr. Bentley, H.R. 7006, H.R. 7315, introduced by Mr. Col-
lier, and a bill introduced by Mr. Curtis of Missouri, H.R. 5455.
We have before us a staff memorandum prepared by Mr. Hill of
the staff, and we also have provided copies of the Senate bill and a
bill by Mr. Walter which have not been referred to the committee.
Congressman Walter's bill is being considered by his own committee.
Our witness this morning is the Honorable John W. Hanes, Jr.,
Administrator of Security and Consular Affairs, Department of State.
Mr, Hanes, if you have a statement, you may proceed, sir.
STATEMENT OF HON. IOHN W. HANES, JR., ADMINISTRATOR,
SECURITY AND CONSULAR AFFAIRS, DEPARTMENT OF STATE
Mr, HANEs. Mr. Chairman and members of the Foreign Affairs
Committee, we are grateful to have the opportunity to appear this
morning before this committee to testify about passport legislation
and particularly with regard to our belief that there is an urgent
necessity for legislative action to deal with the problems of passports
for dangerous American supporters of the international Communist
movement.
Our recommendations are necessary because of a present lack of
legislative authority in this field as pointed out last year by the Su-
preme Court, primarily in two decisions.
In June 1958, in the Kent, Briehl, and Dayton cases, the Supreme
Cmrt by a majority of 5 to 4 said, in effect, that Congress has never
given the Secretary of State the authority to deny passports to mem-
bers'or supporters of the international Communist movement, or even
to persons whom he has specifically found are going abroad willfully
and knowingly to engage in activities which would advance that move-
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2 PASSPORT LEGISLATION
1
ment. The Court did not hold that it was unconstitutional to deny
passports to such persons, but Only that the Secretary lacked legis-
lative authority to do so. The Court further said that any legislation
gi ving the Secretary such authority must carefully protect the consti-
tutional rights of citizens.
Since that time the administrationhas been consistently seeking the
passage of such legislation by the Congress. The President and. the
Secretary of State have both reiterated the need for such legislation.
Just over a year ago, representatives of the Department of State ap-
peared before your committee to testify about the urgent need for
legislation empowering the Secretary of State to refuse passports to
certain supporters of the international Communist movement. At
that time the administration suggested a comprehensive bill on pass-
pert rriatterS; but we endeavored to make it clear to the committee
that we were not suggesting that particular bill reflected the only
possible approach to the outstanding problems.
? Last year's hearings before this committee and before the Senate
Foreign Relations Committee indicated there was some congressional
' preference for a measure dealing separately with the Communist
problem rather than for comprehensive passport legislation. Indeed,
this committee reported out and the House passed such a bill in the
closing daVs of the last Congress. It was not acted on by the Senate.
- We still believe a comprehensive measure is ultimately desirable.
? We fully agree, however, that the critical problem today is to
remedy the total lack of legislative authority to deny passports to
ie ally dangerous participants in the international Communist con-
spiracy'. In messages to the Congress last year, both President Eisen-
hower and the late Secretary Dulles underlined the danger represented
this legislative gap which makes legislation in this field essential.
Accordingly, the Department has strongly supported such specific
remedial proposals .now before the Congress. These represent what
we believe is the minimum required in the light of the present and
continuing danger to our national security.
5/1 r: Chairman, this committee has the responsibility constantly to
conider and to review all aspects of our foreign policy. There is,
therefore, certainly no group which understands more clearly than
dos committee how pervasive and total is the hostility and the menace
co international communism.
The late Secretary 'of State Dulles, in his characteristic terse man-
no.r,.'said that international communism "seeks to unify and harmonize
the world by ,gaining control of all national governments." That basic
613jective was sought by the Soviet leadership in the days of Lenin,
and it has in no way been altered by any of the changes in Soviet
leadei%stip down to the present day.
One of the greatest dangers posed by international communism is
the full awareness both of its leaders and its followers that they are
eirgaged in a total war with the rest of the world. They wage this
ar with an unswerving single mindedness of purpose. They wage it
in' every Way they dare, politically and diplomatically, and economi-
cally ; and they do not hesitate to wage it secretly and subversively.
International communism maintains in eyery foreign country, and
p trticUlarly in the tufted' States, a vast well-trained, well-financed
subversive organization solely devoted to winning that war. This
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organization is truly international; its worldwide activities are con-
trolled and centrally directed with ruthless efficiency. Some members
of that organization hold American citizenship, but their allegiance is
-not American, and thpir loyalty and service is to international
-communism.
Communication and personal contact are essential to the effective
operation of any such complex organization. When, in addition, it
is directed ,from abroad, this becomes doubly important. It requires
travel?travel by the leaders and travel by those who carry their
messages and their instructions, and by all the others whose activities
are necessary to keep the apparatus operating.
, Some travel and personal contact would undoubtedly be required
even if this whole organization were operating quite openly and legal-
ly. Obviously, however, it becomes even more important because so
many of its activities must be both secret and illegal. Those who
'engage in such activities usually fear and avoid regular communica-
tions for obvious reasons, and instead use personal assignments and
personal discipline. Such a conspiracy can operate successfully only
so long as it can maintain secure and rapid communications. It is a
'basic rule of Communist practice to communicate by word of mouth
rather than in writing and to avoid the usual communications methods.
If their vast personal communication network is impaired, their
operations are rendered less effective and the whole conspiracy is
placed under a serious handicap. We believe it is a handicap which
we should impose on it to the limit of our ability; and we certainly
think that we should not be required to facilitate its communication.
? Our weapons against Communist subversion in this country have
been a closely interlinked set of techniques. They have included
penetration of the conspiracy and constant surveillance. Always,
to the extent we could achieve it by passport and visa and immigra-
tion regulations, they involved denial to the conspirators of free move-
ment in and out of the country and thereby of easy and satisfactory
communications.
The loss of our ability to stop American members of the Communist
apparatus from getting passports has blunted the other weapons we
have against the Communist conspiracy. For example, our success
in preventing the entry of foreign Communist agents and couriers
with their financing and instructions from headquarters becomes
rather hollow if American members of the apparatus can travel
freely out of the country: Similarly, the most successful penetration
of the domestic Communist apparatus by agents of the United States
is rendered much less useful if the persons can evade observation for
'extended periods by traveling abroad, probably behind the Iron Cur-
lain where we can hardly expect to know what they are doing.
, The Communists have invariably stepped up their activities when-
ever we have let the bars down. At one time the dangerous members
of the conspiracy, if they had to travel abroad, had the alternatives
only of doing so illegally without a passport, or of resorting to
fraud and falsification to get passports, and thereby exposing them-
selves to Criminal prosecution. Today an American Communist does
not have to resort to fraud?there is no incentive for it. He may
get a passport, in his own name, on his own birth certificate, with
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PASSPORT LEGISLATION
-his n.,wn picture. Ile can require his Government to legalize and assist
t.his travels. This is the facilitation he wants and needs.
? Tonlel like briefly to try to put the problem of control of Comm-
ini,st travel in proper perspective. For the 2 calendar years preced-
ing the Supreme Court decisions of last summer, over a million pass-
ports were issued or renewed. Out of this group, 51 were initially
And tentatively turned down because of alleged affiliation with the
Compunist movement. These individuals were afforded access to
an elaborate hearing and appeal machinery: Indeed, in the entire
v6:373?1:1' period since that machinery was established in 1952, the See-
retry of State?and it must be the Secretary personally--finally
Men ted passports on Communist grounds to only 15 persons after they
-had exhausted their administrative remedies. Some others were
( granted passports after hearings; and some did not contest the De-
par tment's ruling.
? I think that these figures concerning the number of Americans whose
rPaS sport privileges were actually curtailed by the Department's Coin-
Mu rat regulations are very revealing; but obviously they do not rep-
,resent the scope of the problem posed by the travel of Communists.
lithen, these regulations were in effect, most of the really active
. Coamunists refrained from applying for a passport. The few who
?did apply were usually stopped at the threshold, because they. refused
,3upply the Department with a sworn statement concerning their
f eulT rent and past affiliation with the Communist Party. There were
-lust over a hundred such cases in each of the calendar years 1956 and
IR T. Most .dangerous Communists are equally unwilling either to
expose their party connections or to run the risk of a perjury
rind ictment.
There can be no doubt about the deterring effect of our regulations
-and:the affidavit requirement. For, since the Supreme Court decisions
-of 0,5t year, a number of old-line, dedicated Communists have applied
for p,,ncl,have had to be granted passports.
r.Vhe Objectives of the legislation we need are rather simple. We
necd legislative authorization for the Secretary of State to deny pass-
Torts (as appropriate) to persons who are presently engaging in ac-
tiv ties knowingly intended to further the purposes of the inter [la-
Ai? gi Communist movement. This authority should be based on
Icor gressional findings as to the danger to Our country inherent in
,those purposes.
Qu will notice that I spoke of people who are engaging in activities
:that 1. further said _presently engaging. We think both these
ter s are important.
o not want authori^ ty to restrict the movement of people who
litical social or economic opinions which are not of the "ortho-
merican variety."
?
sgek only the authority to deny passports because of a person's
?pr4 sent knowing engagement in activities for the purpose of advancing
tli( Communist movement. We do not seek authority to deny passports
.to merieari citizens, who are not today a danger to our security, even
/thoirgh at some time in the past they may have supported the Com-
,intirn$,k conspiracy. We do believe, however, that present member-
sh p in the Communist Party, or present activities under party disci-
pline or under the direction or control of the Communist movement,
shmld be considered as important evidence of furtherance of the
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international Communist movement. When a person is knowingly
engaging in such activities, he should carry the burden of demonstrat-
ing clearly that he will not engage in such activities while abroad.
On balance this is fair, since the Department first has to show that the
person is knowingly engaging in such activities.
A. person's past actions alone, of course, should not disqualify him
froni receiving a passport, although naturally they cannot be entirely
ignored in assessing his present and probable future actions.
if a person does come within these carefully defined categories, the
Secretary of State should be able to deny him a passport without
demonstrating the specific harm he would do on a specific future trip.
Indeed, at the time of application, a Communist may have no specific
trip or mission in mind, or he may not receive his orders until long
after he receives his passport. The passport, however, once issued,
remains valid for 2 years, renewable for 2 more.
As a general rule, we cannot show in advance what a dedicated
Communist is going to do on a particular trip abroad. We may not
find out for many years, if ever. Communists do not tell us on their
passport applications that they seek to subvert us. We may have
sbme indication what a particular Communist intends to do abroad,
but this is the exception rather than the rule. The fact is, the more
nefarious his purpose?the more important his mission?the less likely
*e are to know about it; and even if we do know we would, in all
probability, not be in a position to document it for the open record.
We must be able to anticipate harm to our foreign relations and our
national security. The action we take is and should be preventive,
but never punitive.
This brings up one other essential of passport legislation which is
often misunderstood, and that is the necessity for the Government to
be able to utilize confidential information, under carefully controlled
circumstances, as part of the basis of its decision.
I would like to make very clear that in our opinion any legislation
purporting to deny passports to Communist supporters would not
achieve that purpose if it entirely prohibited the Government from
utilizing confidential information. We certainly do not seek legis-
lative authority to rely absolutely on confidential information, or to
utilize it so as to preclude an opportunity for the passport applicant
?
to rebut it. On the other hand, our experience and careful analysis
of past cases has shown that almost without exception dangerous cases
in the Communist area involve some confidential information. The
reason for its being confidential is almost always in order to protect
the investigative source. Indeed, the more recent and meaningful
the information is, the more likely it is that it has come from current
investigative sources within the Communist movement.
The Government has an overriding interest in maintaining the
seetirity of these investigative sources and methods. Of all the
weapons which we have against the Communist conspiracy, our knowl-
edge of its current operations is certainly the most important. If
faced with the unpleasant choice of exposing and thereby destroying
a valuable and continuing source of such knowledge, and issuing a
passport to an individual member of the conspiracy, the Government
wOilld have no alternative but reluctantly to issue the passport as the
lesser evil.
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I do not mean to imply that confidential information comprises a
Major, or even a verflarge part` of any total case. It almost never
does. But the part it does play is often vital in relating the separate
parts of the case.
Legislation designed to prohibit passports to Communist sup-
porters but which would prevent us from utilizing any confidential
information whatsoever by requiring full confrontation would, we
fear, generate the dangerous illusion that the travel of Communists
wa being controlled, when actually it would not be. Such legisla-
tion would, in effect, guarantee the most dedicated and dangerous
Con anunist an absolute right to travel.
Tae situation is similar with regard to highly sensitive in forma-
tion obtained from foreign sources of our own diplomatic and con-
sular representatives abroad. Our foreign intelligence depends to a
greet extent upon close cooperation with other friendly governments
and we cannot afford to prejudice these arrangements.
? owever, we have not operated, nor do we seek to operate, in an
unrogricted manner in this field. Unless the full disclosure of in-
forria- tion and the sources thereof would, in the opinion of the Secre-
tary of State, have a substantial adverse effect upon the national
security or the conduct of foreign relations, then the Department
would either disclose both, or not rely upon the information. Under
existing case law, there must he findings of fact by the Secretary of
Stale and these findings must state the extent to which they are based
upon confidential information, and must set forth specifically the
read ns why such information cannot be fully disclosed. We think
this is wise and should be continued. Under such requirements, the
Seer etary could hardly, even if he were so disposed, render a decision
bas(d on unsubstantiated rumors or gossip.
Moreover, 'we are suggesting a further significant step to safeguard
the interests of the individual applicant. We feel, after careful con-
sid(ration of the details of past cases, that the Department can and
shoAld provide the passport applicant with a fair resume of any con-
fidential evidence which cannot be disclosed fully. In most cases,
this would mean giving him everything except the identity of the
sou -ce. The applicant would then have due notice of the points in
issue And would be given an adequate opportunity to rebut this 'al-
for- nation.
I believe that when the Secretary of State asserts that he cannot
spr Ad certain information on an open record; explains with as much
particularity as possible the reasons of national security why he can-
not do so; furnishes a summary which he certifies to be a fair sum-
mai' Of the information; and makes specific findings of fact, we
should be able to rely on the Secretary's integrity and accept his
stai ernent.
Lastly, we feel there should be legislative approval of a reasonable
oat). requirement as to present or near past Communist Party mem-
ber thip. We think it desirable to have a clear expression of con-
ere isiOna,1 approval on this subject.
The oath requirement under our now defunct regulations was very
hel Ail to us. So long as the requirement is reasonable and pertinent,
We to not believe that such an affidavit infringes unduly on the rights
of anyone seeking a passport. I am not speaking of any so-called
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. test, oath. The, affidavit would not have to be answered in any par-
ticular. way in order for the applicant to receive a passport. Nor
would any particular answer cut short the administrative procedure
i
open to him. His answer would be merely another factor n the con-
sideration of his case on its merits., .
? I mould now like, with the committee's permission, to comment
briefly on some of the bills which are before you.
H.R. 55 (Selden bill) :
H.R. 55 and a number of other identical, bills before the committee
are.in the .same form as the bill which passed the House on August 23
last year.
The Department is in full accord with the objectives of 55.
Representatives of the Department appeared before this committee
? twice last year in connection with the formulation of a narrow bill
directed at the problem of Communist travel. The bill which this
committee reported out, H.R. 13760 was, in the Department's opinion,
adequate to meet the problem. However, the bill was amended on the
floor to provide that the judicial review established by the bill should
be "on the record." The Department had previously advised the
committee, when consideration was being given to such a provision,
that it would seriously reduce the effectiveness of the bill in accom-
plishing the purpose intended, and would place the Government "in
the hopeless dilemma of revealing confidential information and
sources, or, failing to do so, of issuing the passport."
_ H.R. 55 contains this same provision which is the only aspect of the
bill with which the Department disagrees.
The Department, in commenting on H.R. 55 earlier this year pro-
posed certain revisions which we think would strengthen it. We also
suggested the addition of rather complete administrative review pro-
visions to spell out adequate safeguards of the citizen's constitution-
ally protected right to exit the United States.
If the committee decides that only the most minimum provisions
should be enacted, and a bill should be kept to its simplest terms the
Department would endorse H.R. 55 if it were amended?by deleting
three words--to conform to the bill unanimously reported by this
committee last year. We believe that this bill would give the De-
partment the legislative authority found lacking by the Supreme
Court in the Kent-Briehl and Dayton cases.
H.R. 7006 (Bentley bill) :
7006 was introduced after the Department submitted its coin-.
'Dents on H.R. 55. This bill contains all of the suggestions the De-.
partrnent made in those comments.
We believe that H.R. 7006 would also give the Department the legis-
lative authority it needs.
. We believe that this is a good bill. We strongly support it and we
hope the committee will report it favorably to the House.
I understand, the Department of Justice forwarded its technical
comments on H.R. 7006 to the committee. in mid-June. However, I
am sure the committee, would be interested in a current statement of
the osition of the Attorney General on passport legislation.
he Attorney General has advised me that the Department of Jus-
tice shares the, view of the Department of State that the enactment
of legislation along the more comprehensive lines of the administra,
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tio s bill in the last Congress would he preferable. 'However, he
ees tvith us that our most urgent current problem in the passport
*Id is the lack of congressional authority to deny passports to those
rsonk in situations 'Where information establishes that their travel
road would constitute a real danger to the United States.
Accordingly, if the Congress decides to enact legislation dealing
this narrower problem, the Attorney General informed me that
hit,Department joins with the Department of State in supporting the
oilsiOns bf H.R. 7006 and believes it would supply statutory au-
ority found lacking by the Supreme Court in the Kent-Briehl and
Dvton cases. He continues to feel, as he suggested, that certain
or technical revisions of the bill would be helpful.
..8329 (Hays :
.R. 8329 was only recently introduced and the Department re-
nefired a request for comment last Friday. Our comments were for-
warded to the committee this morning.
Basically. the Department feels that this bill would not provide
tiWtively for the denial of passports to Communist supporters, and
ti efore is inadequate to counter the existing danger. We also
feel that inasmuch as it obviously is a comprehensive passport bill,
it would, by the omission of certain important provisions, severely
retied the existing authority of the Secretary of State to act on con-
kierations of foreign policy in the passport field.
Section 103 of H.R. 8329 for example, appears to enumerate cer-
tain sole grounds upon winch passports could be denied. This enum-
er ation would by omission severely restrict the existing authority
of the Secretary of State to act on individual passport cases on the
ixsis of reasonably anticipated harm to the foreign relations of the
'United States.
-( f
ction 103) (3) o a Hi R. 8329 lists three rather extreme grounds
Oil- which passports may be denied on national security grounds.
Naturally, we agree with these three grounds, although we feel that
the Department presently has authority to deny passports in any cases
where there is substantial evidence of such serious activities. We
holieve, however, that the exclusion of all other grounds Would make
it unlikely that even dedicated and known Communists could be re-
ft L,ped passports under the provisions of this section.
An advance showing that a particular person would, when abroad,
engage in one of the narrowly defined extreme activities listed in this
St ion would be impossible in almost every case, for reasons I have
itUicated earlier in this testimony. We rarely have reliable in-
foyrnation even as to where a Communist is going, much less as to what
113 ppecificany intends to do when he gets there. Our experience
tk aches us that such people frequently misrepresent the places they
(tend to go, as well as the true purpose of their travel. Further-
kore,, under section 201 of this bill the Department would not even be
It tfle to inquire of the applicant about the purpose or length of his
tiged travel.
ection 201(c) (2) of H.R. 8329 specifically prohibits the Secretary
of state from asling an applicant for any information with regard
to membershrip in any organization whIch is not finally registered
hAder the provisions of the Subversive Activities Act of 1950. Of
oAttse',' aS-the committee is aware, no organization?including the
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PASSPO LEGISL ATION 9
C9xTuautt1st Party?is yet included in this category because of pro-
tracted litigation. The Department doubts that reliance on this
provision of the 1950 act--which has not yet become effective and
appears unlikely to do so in the near future?is the best way to meet
the cQuimunist passport problem in 1959.
A. difficult problem is posed by section 307 of H.R. 8329,. especially
subsection (d) . This provision would require the judicial branch
of the Government to substitute its judgment for that of the execu-
tive branch in determining whether the disclosure of particular in-
formation would have a substantially adverse effect upon national se-
curity and foreign relations. The courts have long held that in such
areas the executive branch has special competence as well as broad con-
stitutional authority, and the courts should be hesitant to trespass.
The Department fears that this section might effectively nullify those
desirable provisions of H.R. 8329 which recognize the necessity for the
Government to rely on confidential information under some circum-
stances.
There are many provisions of H.R. 8329 with which the Depart-
ment is in agreement, and there are a few other technical objections
which, are set forth in greater details in our letter of comment. The
Department's overall opinion, however, is that the bill would not
be effective in meeting the present danger to the national security,
ct,nd that it would not supply the statutory authority found lacking
by the Supreme Court in the Kent-Brie/21 and Dayton cases.
H.R. 2468 (Collier bill) : H.R. 2468, on which the Department re-
cently submitted views to the committee, appears identical with H.R.
7315.
The Department is in accord with the apparent objectives of this
bill. We feel that H.R. 2468 would probably meet the problems we
face in the Communist area. The Department believes, however, that
.its provisions are more restrictive than is required.
Furthermore, the bill proposes to incorporate into statute provi-
sions of our passport regulations which were not invalidated by the
Supreme Court. The Department finds no objection to this; however,
in the last Congress both this committee and the Senate Foreign Rela-
tions Conarnittee indicate a preference for adopting a narrow ap-
proach to the Communist problem. We would not wish to prejudice
the likelihood of getting remedial legislation in that area by insisting
on legislative recognition of any broader authority at this time, even
though it would be ultimately desirable.
We have often pointed out to the Congress that we do not believe
there is only one magic formula to our legislative needs in this area.
However, we think provisions along the lines of H.R. 7006 are more
adequate both from the standpoint of the individual and the Govern-
ment.
H.R. 5455 (Curtis bill) : There are many features of this bill with
which the Department is in agreement. Again we believe H.R. 5455
Would probably provide adequate authority in the Communist area, but
the bill includes provisions that are much broader than this. In fact,
certain provisions of the bill seem to go beyond the comprehensive
legislative endorsement of authority we requested in the administra-
tion's bill submitted to the last Congress. If this type of comprehensive
bill is to receive consideration, the Department would prefer provisions
alopg the lines of those formerly proposed.
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.10 PASSPORT LEGISLATION'
-..Mditionall H.R. 54552 section 'would create a T.T.S. Passport
Service. The epartment is firmly opposed to this feature of the bill.
The Department feels strongly that the Secretary of State should be
pe initted to organize his Department as he deems necessary. It has
beim longstanding executive 'branch policy, as well as the rec.ommen-
datiOn of the Hoover Commission, that Department heads should not
be deprived of authority to determine the organization of their re-
spoctive departments.
- Section 7. of H.R. 5455 is defective in a number of other ways be-
sides being a violation of sound administrative practice, as the De-
partment has pointed out in our detailed comment upon the bill.
I,have tried to make clear the Department's earnest desire to estab-
lish. A fair administrative process by which we can achieve a balance
be ween a danger to the security of the United States and the citizen's
right not to have his freedom of movement unreasonably restricted.
We seek only the means to protect the United States by denying
pa gsports to those relatively few citizens who are knowingly engaged
an the activities of the Communist conspiracy, and whose travel abroad
would thus be a danger to the security of the United States.
there are any questions, sir, which the committee would like to
fts'r, have with me Colonel Raymond, who is the Acting Legal
Adviser of the Department of State. He and I would be more than
happy to try to supply any answers that you may be interested in.
hairman MORGAN. Thank you, Mr. Hanes, for your statemoit.
- Since this is your first appearance before this committee, in your
pi esent capacity, let me remind you that we operate under the 5-
minute rule. That means each member has 5 minutes within which
to ask questions. I am sure many members of the committee want
? to ask questions.
: Mr. Hanes, last year when Mr. O'Connor was here, he testified that
immediately after the June 6, 1958 decision there were a great number
of new applications from known Communists. I think he mentioned
thi e nuinber 70.
?? That was July 17, his first appearance before the committee. Has
a at number of 70 increased greatly since last July ?
- Mr. IIANEs. I am afraid it has, sir. We have not kept exact records
13( cause we cannot deny a passport on grounds that a person is a
dangerous Communist; and even though there may be some affiliation,
Ni73 don't attempt to evaluate how dangerous this affiliation is, for this
reason:_ The people we do know about are usually the ones who have
? a Fong record or history that we have available to us, or often people
that we knew about because they had previously applied for passports
?and we had at that time made some investigation.
-.However, the 'answer to your question is very definitely "yes," inso-
far as the number of people who under our former regulations we
would 'have'examined very closely, is concerned. This number has
continued to rise at a steady and almost uniform rate since the time
Mi. O'Connor testified, and indeed right up to the present moment.
, Chairman MORGAN. '1 ani reading from Mr. O'Connor's testimony,
page 3, and he say'S, "If we do not get any kind of legislation, we will
have to issue passports to those 70 people." Have we issued ;passports
to some of these people?
Wir. HANES. I would say as far as those 70 people go, I believe we
issued passports to every one of them. Since that time the people
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,to whom I am referring who would formerly have been looked at?
not necessarily denied, but looked at very carefully?and some of
whose passports would have been denied under our former regulations,
all of these people have come in, have applied for, and have been given
passports. There are unquestionably a few who haven't yet gotten
theta because they have just applied in the last few days, but essen-
tially speaking, anybody in this group about whom the only informa-
tion we have relates to Communist affiliation, has received a passport.
Chairman MORGAN. Mr. Hanes, without singling out any individual
case' do you believe any one of these 70 people who were issued pass-
ports who went abroad and used the passport in the past year could
bring a certain amount of danger to this country in their activities?
Mr. HANES. I do believe so, sir, and more than that, I believe that
the cumulative total of those in this category who have received pass-
Ports and have gone abroad could bring danger to this country.
? I feel one must consider not only the individual case. Sometimes
in an individual case we may know a little; but, as I tried to point
out, usually as to what a particular individual does abroad, once he
gets abroad, it is very difficult if not impossible for us to demonstrate.
Sometimes we know some of the public things he does as reflected
in public statements he may make. The often much more dangerous
non public things that he does we have no way of knowing about.
So the thing that worries us is not only the individual who goes
abroad, but also the cumulation of individuals.
At the p resent moment any member or any supporter of the Ameri-
can Communist Party who wants a passport can have one for the
asking, as long as he isn't ineligible on some other grounds such as
being a fugitive from justice. So the number of them who travel
abroad is up to the Communist apparatus to set, not to us. The outside
limits of this volume is for them to decide. We do believe this rep-
resents a danger to our security, sir.
? Chairman MORGAN. Thank you, Mr. Hanes.
Mr. Chiperfield.
Mr. CHIPERFIELD. Thank you, Mr. Chairman.
In my judgment, Mr. Hanes, you have made a very constructive
statement. I have introduced a bill on this subject. I believe it is
6.bsolutely necessary to pass legislation to meet this problem. I hope
that we will adopt a bill that will meet it head on and give you the
necessary legislation to protect our own security.
On page 10 in the third or fourth paragraph you say:
If it were amended by deleting three words, to conform to the bill
?what are those three words?
Mr. HANES. They appear in line n, page 3, RR. 55, "on the record."
In other words, the present sentence reads.
A denial of a passport pursuant to section 6 of this Act shall be subject to
judicial review on the record in the district courts of the United States.
Now that provision is a little obscure in its meaning but we interpret
this as very possibly effective negating those sections of the bill which
permit us to,have some utilization of confidential information.
Mr. CHIPERFIELD. You want to be able to use some confidential in-
formation--you feel that is necessary in order to see that justice is
done in these matters?
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? Mr. ITANEs. Under very carefully controlled circumstances, sir,
yes, We do feel it is essential.
N r. CMPERFIELD. Thank jou very much, Mr. Chairman.
Cllairman MORGAN. Mr. ablocki.
N r. ZABLociir. Thank ymi, Mr. Chairman.
? I want to commend Mr. Hanes for a fine statement. I feel legisla-
tion of this type is necessary and should be given early consideration.
I do not have any questions at this time.
haimal? MORGAN. MTS. Bolton.
rs. BouroN. Thank you, Mr. Chairman.
I have felt right along that the first step that was very important
was the passage of some bill which would prevent the Communist
?intr Lision into our whole way of life.
I believe, however, there is a further bill exceedingly necessary
whi:th we might not up until next year, for a careful go-over
of everything that has to do with the passport end of our State De-
par ,ment.
- I think we should know far more than we do about the whole
matter of passports. There seem to be gaps in various areas of it
that we should be filling in. I_ like your method of procedure on this
Ver r mueli, Mr. Hanes, taking up each bill and giving us your analy-
sis. It will save us a great deal of time and make possible discussions
here in the committee that will be both timesaving and much more
effe :;tive than they could have been without just such an analysis.
lo low Colonel Raymond has been very much involved in that and
:1w: int to thank you both.
bank you very much, Mr. Chairman.
C ha,irmon MORGAN. Mrs. Kelly.
Mrs. KELLY. Mr. Chairman, Ir would like Mr. Hanes to establish the
scope of his responsibility as Administrator of Security and Con-
sult r Affairs.
Mr, HANES. My position, Mrs. Kelly, is actually established by
statute. It was established by the Immigration and Nationality Act.
I h we the rank of Assistant Secretary of State. The act that estab-
lisled it provided that the passport and visa offices should be under
the Bureau of Security and Consular Affairs, and such other activi-
ties as the Secretary may designate. He has since designated the
Oft ce of the,
the Office of Munitions Control, the Office of
Special Consular Services, and the Office of Refugee and Migration
Affairs as also to be under the jurisdiction of the Administrator.
It might be of interest to you, as Mr. O'Connor pointed out last
year, that the term "security" in the title "Security and Consular
Allaire does not, and at the time was not intended, to refer to per-
sonnel security, which now also is under the Bureau; but to the
sec -iTty aspects of visa and passport matters.
TC_ELLy. To your knowledge, has there been any rec,ommenda-
tiq hy the administration to blunt the Communist conspiracy other
tha tithe right to deny control of passports?
HAN-Esi I did not understand the question, Mrs. Kelly.
Mrs. KELLY. ?Has there been any recommendation to any other
cot ftittee fo endeavor to blunt, as you said in your statement, the
Co'nmunist conspiracy, other than the right to control passports?
In other words, I am as interested in our domestic security as in the
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intern' ational activities of the so-called Communists actively engaged
hi the overthrow of our Government.
To your knowledge, is there any other recommendation by the State
Department to endeavor to identify these people here in the United
States prior to the establishment of denial of their right to travel?
In line with the Smith Act, to define treason as an activity in the Com-
munist conspiracy, or anything like that?
Mr. HANES. Not insofar as the State Department is concerned.
Mrs. KELLY. They have recommended no legislation?
Mr. H.A.ivEs. To the best of my knowledge, the State Department has
not. I believe there may be recommendations by the Department of
Justice and the Attorney General that would fall into that general
field, because I know that there is a series of decisions of the Supreme
Court that have pointed out various places where legislation was
lacking; and I think there have been other proposals. I am sorry to
,y I am not competent, however, to know the details of most of those
except? in these areas that relate to our own activity.
Mrs. KELLY. Thank you, Mr. Chairman.
Chairman MORGAN. r. Judd.
Mr. Juno. Thank you, Mr. Chairman.
? Mr. Secretary, you have made a very splendid statement. In my
book, the need for the right kind of legislation to control issuing of
passports is demonstrated beyond any possibility of disagreement.
The interfering
is how to get legislation that will do it adequately with-
out with proper use of passports. This is in a borderline
field where there is a conflict between protecting the rights, the civil
rights, of every citizen, as against the overall security of our country.
May I ask at the outset just what you meant when you said that
word 'security" in the title "security and consular affairs" referred
to security with respect to visa and passport matters? I don't know
quite what that means.
- Mr. HANES. This is really a little history, Dr. Judd.
When this Bureau was set up by the Congress under the Immigra-
tion and Nationality Act, the word "security" was then meant to
? apply to the security of the United States, as it is protected by visa
and passport regulations, visa regulations preventing the ingress of
subversives to this country and, under the provisions of the Internal
Security Act (which have not yet become effective) regulations pre-
venting the oob'Tess of subversives.
Mr. Arum Rather than the question of determining whether a par-
ticular individual is or is not a security risk?
Mr. HANES Personnel security is something that was put in the
Bureau as an afterthought. It really had nothing to do with that par-
ticular term.
Juon. Mr. Hanes, you have seen the suggestion made by some
thqt perhaps we ought to have two types of documents, that American
citizens wanting to travel could be given. One is our regular pass-
port with which we not only certify a person is an American citizen,
kit with,* goes the endorsement, the blessing and the protection of
the United ,States.
Another document could be called a, certificate of citizenship or
-some such name which would certify, "This person is a citizen of the
United States," period, without any of the accompanying protection
41763??59---2
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nd.je_spectability that the possession of a passport gives. There
woard be nothing derogatory to him in the document, but others
WOtild 1g10.1V, thathe,vvas denied a passport; he was given a certificate.
He has a right to travel and the certificate gives him identity as a
cit zen, but any countries that admitted him would be advised ahead
of time that they were doing it at their own risk, so to speak.
is would be a departure from procedures we have used in the
pa t, but we ought to explore every possibility and I wonder if you
haze a comment to make on that?
M. HAwns.:Yes Dr. Judd, I have indeed seen these suggestions
an 1, there fire aspects of them that are very attractive. I think, how-
in considering them, we should remember a couple of things.
Ore of them is that in effect this would be a statement by the U.S.
Gcvernment to its own citizens that they travel abroad on their own
wi lout the 'United States having responsibility for them, for what
Ulf y do; in effect an admission that they could waive their right to
protection and indeed part of their American citizenship by going
ab road.
:gow, we do not believe that either legally or in fact, even if the
individual and the Government agree between themselves that that
call be done, that a person can so waive part of their American citizen-
.
suqh a person went abroad, if he did things that were inimical
to our foreign policy, he would be doing them as an American. If
he got into trouble, if he got incarcerated, he would be an American
citizen; I have little doubt that under such circumstances we?and
the Congress?would both be requested by public opinion and would
wcnt in any event to go ahead and do anything we could about an
American citizen.
his would be in effect a hunting license on some American citizens
and I am afraid by implication could derogate the status of all Amer-
ic i citizens.
IE might also point out that while this solution would solve one of
th i problems that we are facing in this area it would not solve the
ot ier problems to which I have referred. That is, the actual danger
thlt we feel is posed to us by the operations of the Communist appa-
ratus in this country and by providing the communications that are
ne,"essary to its existence. This would provide those communications;
and there are many Communists who I am certain would go ahead
q be perfectly happy to travel under such a circumstance, doing
th3ir jobs, and without regard to the moral stigma attaching to them.
Mr. JUDD. I think you are right and I am for the stronger one, but
if we can't get?as we have been blocked from getting in the past?
the kind of adequate legislation we need, I hope you will pursue the
possibility of something along these lines.
V,or instance, the 70' of Whom the Chairman spoke. If you had
ae9quaie legislation of this sort, you could say, "Well, we deny you
ssports, but you have a right to travel as Americans so we give you
a ( crtificate of citizenship."
I don't think they would like to travel very much under that
certificate because it would be an announcement to the world of lack
oi onQence in these citizens by the United States.
ank you very much.
Mrs'.'130LTON. Will the gentleman yield for a moment?
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- Chairman MORGAN. The gentleman's time has expired.
Mrs. BOLTON. I was just going to ask if at one time that was all we
did have,
a certificate, in the history of passports?please get that in.
Mr. HAYS. I hope that isn't coming out of my time.
Mrs. BOLTON. That is an interlude.
Mr. HAYS. You didn't mention the Fulbright bill. I suppose you
object to it on substantially the same grounds that you object to some
of the others, is that right?
Mr. HANES. Yes, sir, I did not mention it because it is not before
this committee. Mr. Vurphy commented on that to some extent before
the Senate Foreign Relations Committee.
Mr. HAYS. I presume you want a bill, is that right? You are not
up here engaging in an exercise of political demagogy, are you?
Mr. HANES. I assure you we want a bill, sir, very much.
Mr. HAYS. Well, you don't think you are going to get a bill through
the Senate of the kind that you want that mentions?the fact of the
matter is, let me put this question another way. Don't you think you
are on rather dangerous grounds defining the people that you can
deny to as only members, or former members of the Communist 'party?
Do you think that will stand up in court?
r. HANES. Well, I would not agree that that definition is a good
definition, sir. I think that our defininition that we have supported
is members, former members or those acting under the discipline of
the
Mr. HAYS. The definition in my bill is "persons to whom the Sec-
retary of State finds reasonable grounds to believe that their activities
abroad end anger the United States." I am not wedded to the exact
language, but what I would like to do is make it broader than merely
"Communists" or "former Communist."
Mr. HANES. Well, sir, the question of how broad it is, as I said,
really a question for the Congress to decide.
Last year we suggested, and we still feel that at some point compre-
hensive legislation in this whole passport area would be very desirable.
If, however, the Congress wants to confine itself to the Communist
issue, as we got the impression from our hearings last year was
desired, we have tried to suggest certain provisions in that area
alone
Mr. HAYS. Well, this is new Congress and there are a lot of
people who were here last year that aren't here and there are a lot
of people here who weren't here, and I get the feeling from the other
body that there is going to be a comprehensive bill or no bill. So
in that case I think we are just wasting a lot of time if we don't
try to write a comprehensive bill.
I only threw mine in as a basis of a comprehensive bill to work
on. There are plenty of things in it that perhaps the committee
couldn't agree on, but I think if you are going to work on a bill we
might as well take an exercise that is going to have some use.
Mr. HANEs. Well, I certainly don't want to give any impression that
the Department opposes a comprehensive bill, sir. We believe that
such a bill would be a desirable thing. We have a feeling there are
certain things that should be in any such comprehensive bill. The
comprehensive bills that are presently before the Congress, in our
opinion, are lacking in , some of those things.
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One of the problems in a comprehensive bill is that it must be com-
prehensive. In other words, anything that it omits the courts will
the I interpret as a specific congressional intent to omit, and if a bill
say 3, 'these shall be the grounds on which passports may be denied,".
the i any grounds not included
Mr, HAYS. Well, you don't think we shouldn't limit in some way
the grounds? You don't think we should just say, "The Secretary
shall deny a passport if he thinks it is all right," do you?
Mr. HAN-Es. No, sir.
'Mr. Ham. There has to be some limitations of some kind.
M. HANES. I agree and they should be?
Mr, 11A.ZS. The limitations may be debatable and certainly I
wouldn't stack my opinions up against everybody else's, but I do
. .
think there have to be limitations defined and you will agree with it.
ItuvEs. Absolutely, sir, and very carefully defined, because here
we.:kre in an area where there is a constitutional protection and in that.
ease...lire think that both substantively and procedurally there should
.? be ..:egiaplete and adequate guarantees of due process.
.? Mr. HATs, Well, the only reason I mentioned what I did about the
political aspect of it is?and I just make this statement?you don't
need to answer it?it seems to me the administration is squeezing?
and I give them credit for a very adroit operation?about all that can
be queezed out of the Communist issue. You come up with?you
war t to fight communism at home but you are going to entertain the
top Communists down on Pennsylvania Avenue. If that isn't getting
on both. sides of the question, I never saw it. It is a smooth political
ope ration and I just want that in the record.
Chairman MORGAN. Mr. Fulton.
Yr. FriiTow. We are glad to have you here, Mr. Hanes. I believe
you are doing a good job. Your method of setting up the compari-
S011E among Lie bills presented to this committee has been an excellent
start.
The question comes up as to the breadth of the bill. Actually a good
bit of our trouble in the near future probably will be in the Caribbean
aree . Some people will carry a standard for one side or another
in that area, and may want to carry a gun as well when they get
there.
Now, under those circumstances, these people have no history of
any hing wrong in this country but they have a good idea of possible
revclution that they think they want to carry out. They want to go
for 1,0 purpose, with apassport that carries the full faith and credit
of the Unite States behind it.
I am one of those people who last year had recommended that some
difference in type of passport be considered. The question comes up
that it isn't the passport that we should have the major question with,
but it is rather something in the nature of a U.S. exit permit and a
reentry permit. The basis of the proposed passport bills is that the
past history and past actions are projected ahead and abroad to guess
what that particular citizen might do to the United States if he we re
pen iitted outside the continental borders.
T int raises this problem: If a man simply has an intent, can we
then fasten future possible actions on intent? I am afraid under the
Smi--1 Act it has been clearly ruled that there are very strict limits
on iliferring action from intent or just thoughts, or ideas.
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' Suppose that we had a different system, that I wish you would con-
sider and that is, you have a passport and an exit permit from the
United States. Now, I don't see how the Government of the United
.States can control citizens' actions abroad, either practically or by its
authority. They are in a foreign country and they are U.S. citizens
acting under the laws of a foreign country. But there is something
:that would make these people wonder a second time and that is this:
If we, adopted the policy of requiring a U.S. reentry permit which
a U.S. citizen would have to apply for he could apply in advance
before leaving our shores, and see whether he is prima facie going to
et it, and if it wasn't given to him prima facie/ he is on notice that
le is going to have to prove it.
Then we have the U.S. citizen under oath at the point of ree'ntry and
at that particular time we have or can have an examination of him
if he does not have a reentry permit when he applies under oath for
a reentry permit.
. My proposal would not derogate the U.S. passport, which I don't
want to if we can help it. It also permits the U.S. citizen to travel
under the U.S. Constitution, but it certainly protects the United States
against this fellow getting back to do the work which he has learned
abroad and prepared for abroad. If he lies he goes to jail for perjury
and the plans are balked.
There is where the real crux of the matter to me is, that when the
U.S. errant wanderer comes back he is then a dangerous citizen.
. Query: Should we not then separate the question, not into various
kinds of passports, but put our limitation on the permit of U.S. re-
entry when the man must then testify under oath? The U.S. law
can then have a civil or criminal penalty in case he does not correctly
des.cribe his actions abroad and, secondly the U.S. authorities would
get out of that inquiry an ability to find out what these citizens have
been doing abroad. Do you see any merit in the idea?
That is all and thank you very much.
Mr. HANES. Yes, sir, I think it is an interesting suggestion and,
of course, you are perfectly correct when you point out or infer the
real problems we are facing in this field are the relatively recent
developments of changing the historic nature of the passport into
What is also an exit permit; and the Supreme Court actually con-
sidered that aspect of it as being now paramount, even though that
is a relatively recent?
Mr. Fuvrox. My point then is, why don't we separate this policy
from the actnal U.S. passport and formalize it by adding on a U.S.
reentry permit the individual must apply for?
_ Mr. 1I4NIES. I think it is a very interesting suggestion, sir.
'.,
Xr FULION, That is all, sir. Thank you.
` Chairman Moncusav. Mr. Selden.
. MK. SELDEN. Mr. Hanes, let me also commend you for what I think
is it very fine statement.
H.R. 55 V) which you referred, of course, is identical to a bill that
Was thresheci. out by this committee last year after weeks of effort
eXobpt the three words "on the record" were put in on the floor of the
House.
When I introduced it, I introduced it in the form it passed the
House last year, because we had a precedent both of passage in the
--x.- : ? , ? .,.1 ' ., ? - tr:: ?, . , , - ,. ? , , o
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cor,*ttee and passage on the floor of the House. I am anxious to
et out a bill under which you people can operate, that can pass the
Qigress, and which will give the persons involved both administra-
ttve? and judicial review.
, I 'agree with you on the urgency of this legislation and trust the
con unittee will act without further delay.
lave no questions, Mr. Chairman.
I
, C iairman,MomAN, Mr. Adair.
:3 ., ADAIR, Mr, Chairman, thank you.
Mr. Hanes, would it be fair to say that of the bills on which you
ha i e commented this morning, your first choice and by "your" I mean
the departmental first choice would be H.R. 7006, and perhaps a second
clic ice would be an. 55?
Mr. HANES. Yes, sir.
,
]Ir. ADAIR. And if, legislation in pretty much the form of 1I.R. 55
were eventually enacted into law, that you feel you could operate suc-
cesLfully within either that framework or the framework of H. R.
3f.r. HANEs. Yes, sir. If I might put it this way, it perhaps would
be co..ier for the committee to understand our position?and again, if
I u ay, I will eliminate this question of the three words which I have
referred to, "on the record,"--if legislation along the lines of H.R.
55 were passed, we believe most of the other provisions that are in
H.X, 7006 that we think would improve it somewhat, we could put
out 0,s a matter of regulation; so it is a question of whether the Con-
gre is desires itself to give legislative backing to these more detailed
mai ters, including a spelling out of the administrative due process
protection for the citizen, or to leave it up to the Department to put
the D in,
If, we had a bill along this line, we would then by regulations bring
the procedure closely into accord with what we have recommended
in H.R. 7006. .
Mr. ADAIR. And that procedure is actively contemplated now, if a
bill similar to H.R. 55 should be the one?
? Mr. HANES. Yes, sir. Our recommendation has merely. been that, .
qui'.e naturally, we prefer to have the maximum congressional back-
ing for all of the things that we would, however, do to the best of our
abi ity anyway.
Chairman MORGAN. Mr. Pilcher.
Mr. PIL0IER. No questions.
Chairman MORGAN. gr. Bentley.
Mr. BENTLEY. Mr. Hanes, I would like to review just for a moment
the reference on page 12 to the Subversive Activities Act of 1950.
I understand about 4 or 5 days ago that the U.S. Court of Appeals
tolC the Communist Party that it would have to comply with the
Sul versive Activities Control Act, which as I understand, among other
things' would prevent Communist Party members from obtaining
pasTerts.
- pyv, I believe the Subversive Activities Control Board has already
rule a on that basis three "tineS and in both cases?in all film?, .ft,ses,
the appeals court or the Supreme Court has sent cases back to the
I3c4 rd for rehearing.
iI assume that the lawyers or the Communist Party will appeal this
dee sion of the appeals court to the Supreme Court. So from a prac-
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.
tical standpoint, do you see any end to the legislative maneuvering'
that the Communist Party could undertake to evade compliance with
the Subversive 'Activities Act of 1950?
Mr. HANEs. As a practical matter, sir, we certainly see no early
end. I wish there could be.
Mr. Joseph Forer, who is the attorney for the Communist Party in
this case, has already indicated that he does intend to appeal last
Thursday's decision to the Supreme Court. It has been there be-
fore, and perhaps this will be the last time it goes, and perhaps there
will be found another method to get it again through the whole proc-
ess of litigation. It has been going on now for 6 years and, as I say,
while we hope, we don't see any early end to it; and, of course, at the
moment, as you know, the only organization even under petition under
?this act, until the courts have made a final ruling on it, is the Com-
munist Party itself, and if that is finally upheld, then there will have
to be moves of course, which also will probably be contested in the
courts in al i of the other subordinate organizations which the Com-
munist Party has increasingly used since 1948.
Less and less has the party relied on those who are technically mem-
bers of the Communist Party. It has encouraged its people not to
members, to be anything .but, to be in other organizations, and
otherwise support them.
Mr. BENTLEY. Any reliance in any legislation on the provisions of
the Subversive Activities Act of 1950 would not give you very much
su-Dport in view of the possibilities of legislation ad infinitum.
Mr. HANES. At the moment, sir, we don't see that it would help
us any at all.
Mr. HAYS. You mean litigation, not legislation.
Mr. BENTLEY. I said for any legislation to contain a reliance upon
the provisions of the 1950 act would not give the Department much
basis because of the possibility of indefinite litigation?yes, I meant
that word--
Mr. HANES. That is correct, sir.
Mr. BENTLEY. Thank you very much, Mr. Chairman.
Chairman MORGAN. Mr. O'Hara,.
Mr. O'HARA. Mr. Hanes, I regret that I was unavoidably detained,
but I have glanced over your statement. I think it is well prepared
and I compliment you on the time and effort you have put into it.
I notice that you express this point, that it is necessary to use cer-
tain confidential information that cannot be disclosed. Is it your
thought that that information carmot be disclosed in a judicial
hearing?
Mr. HANES. I assume you mean by that, sir, is it my thought that
it couldn't be given in camera to the court?
Mr. O'HARA. Yes.
Mr. HANES. Essentially, sir, yes. This is a subject on which the
courts themselves have made a long series of rulings. They do not
feel it is a proper province for the judiciary. Some decisions have
actually gone so far as to say it is a violation of the separation of
poweWf or the judicial branch to attempt to evaluate confidential in-
formation available to the Executive in his capacity as the conductor
of foreign relations, with intelligence from other agencies; that the
evaluation of such evidence, the bringing of it all together and the
making of a decision involve both the protection of information given
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in confidence which should be respected, and is essentially a. p0-
cal tleeision.
The courts thenaselves in a number of Cases 'have held this. We
tridak it doubtful, actualiy, that the courts, on the basis of these de-
cisions, would wish to receive it in camera.
That is something we cannot speak on conclusively since it is some-
t.14ng for the judicial branch. We would oppose it because we feel
it Is a Yiola2ion of, the separation of powers, and because we believe
edeptially the 'Executive should be able to maintain the integrity of
k s investigative sources intact.
t Now, we do think?and I have tried to state clearly?that the Ex-
titive should not just be allowed to go to the court and say, "I
suri not going to tell you anything because I am not going to tell you
anything."
e feel the Secretary should state with particularity why he can-
not make certain infOrMatiOn available. We think he &load say ex-
tly how much of the case is dependent upon information 'which he
C8 n.',t make availablet and that he can't make it available for rea-
senS that in his opinion are substantial reasons of national security
or foreign policy; and then, beyond that, we still think in any evidence
'Which he has relied on, he should give a fair summary of the evidence
both to the applicant and, of course, to the court; and that the caurt
Should, as I am certain it would as it has in the past, look at the
fair summary to see if the findings were supported by it, and also
lopk at the statement of the Executive as to why he can't disclose cer-
tain portions?and I repeat they are usually small portions of the
case?to see whether they agree that this is a valid exercise of his
pi 6rogative.
AIr. O'HARA. Doesn't it suggest itself to you that that would be giv-
ing to one individual in the State Department the right to deny a
pi ssport to someone without giving an adequate explanation to any-
ore, either to the applicant or later to a court of review?
r. HANES. Actually, sir, under the provisions that we have sug-
gested, I don't think that that would be the case.
Again, we have a considerable experience in this regard as to what
Would satisfy the courts. The Supreme Court has not ruled in the
pg ssport matter about this question of confidential information but
lower courts have, and have upheld the Secretary's right to rely on
co afidential information under some circumstances; but they have also
tinted out there are limits to this, and they have indicated that the
E cretary mut state with considerable particularity the substance of
information on which he is relying.
Now usually, in almost all of the cases that I am referring to,
the only thing that really must remain confidential is the source of
th3 information. In other words, the nature of the information,
wliat is involved, a, fair summary of what it is, is given.
Mr. O'HARA. May I interrupt to ask this question: You say that
so Tier lower courts have held as you have indicated?
' Mr. HAN4S. Yes, sir.
Mr. O'HARA. Has the question crone above the district court?
Mr. HANES. It has gone to the court of appeals in at least four
ca
? AIr? O'HARA, There is a conflict in the decisions of our courts of
ar pdals, is there not? The courts have not agreed?
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HANES. Not on this question in the passport field, sir. There
have been dissenting opinions on this, but the court of appeals in
the Kent case, the Briehl case, the Dayton case, and the Boudin case
have held confidential information is something upon which the Sec-
,
tetary can rely.
Now the Supreme Court has overturned three of those cases, but
not on those grounds. It never reached, those grounds or reviewed
them. So far as there is an expression of judicial opinion on it, there
are four expressions by the court of appeals that have not been.
'overturned, although they have also not been reviewed on that partic-
ular subject by the Supreme Court.
Mr. O'HARA. I want to congratulate you on the hard work you
seem to have put in, and from your standpoint I think you have
made a good statement?not that I agree with you. Convicting a
person, or withholding from him a passport on hidden information,
not revealed even to the Court, seems to me to be going pretty far
from the American concept.
Mr. HANES. Thank you, sir.
Chairman MORGAN. MT. Coffin.
Mr. COFFIN. Thank you, Mr. Chairman.
Mr. Hanes, do you know any other area where a right guaranteed
by the Constitution?and we are talking about a right guaranteed
by the fifth amendment?is finally determined other than by the
Supreme Court?
Mr. O'Hara's question was focused on this point, which is the crux,
or one of them, of the legislation before us; namely, who should
make the final decision whether the secret information is or is not
adequate to uphold the decision of the Secretary of State. I am
not talking about whether this should be disclosed, but only whether
the Court or the Secretary of State should have the final power of
decision.
You say the Secretary of State should because this is a matter
-within. his province and I am just asking whether there is any other
right guaranteed by the Bill of Rights which can be finally deter-
mined by some official other than the Supreme Court of the United
States.
Mr. RAymoNn. Mr. Chairman, if I might deal with that one?
Chairman MORGAN. Go ahead, Mr. Raymond.
;
- STATEMENT OP SOHN X. RAYMOND, ACTING LEGAL ADVISER,
DEPARTMENT OF STATE
MT, RAYMOND. I think the problem is not who makes that decision,
but rather what is the decision.
If the 'question is one of a, political nature, that has always been
left th the political branch of the Government and the Court does
net. decide.
? Mr. ?marl.. My question is: Is there any other case?and I am
asking for information now,
that would be helpful?is there any other
ba,se where you get a conflict between a political decision, which should
ke made by the Executive or by Congress, and an individual right
:guaranteed by the Constitution, which should be adjudicated by the
Court?
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7Mr. RAYMOND. You have frequently, of course, in cases a conflict
between what in effect are two rights and that question is a [ways
1#61glied by the Court when they get into conflict. They try to resolve
it without having a conflict come to the surface, but where there is a
conflict they simply have to weigh the rights. The Supreme Court
lia,s done that in a number of cases.
t'Mr. COFFIN. I am, talking about the particular conflict between a
pblitical decision and the constitutional right of an individual.
Mr. RAYMOND. I can't offhand quote you a case, but I think that
there are such cases. I will be glad to look into that and see if
there are.
Mr. COFFIN. I am ignorant on this, myself.
Mr. RArmoivo. I am reminded by my associate that in the Chicago
end Southern case?that was the question of the right of an American
company to do business abroad, where this question came up, and that
wa's a. Supreme Court case.
Mr. COFFIN. That is not exactly the kind of individual right that
the Bill of Rights guarantees.
Mr. RAYMOND. That is true, and that is what I thought you were
referring to.
- -However, in the Briehl case, that case was used by the court of
s ppeals as one of its authorities.
,Mr. COFFIN. I don't criticize you for not having the answer, but I
would be glad to have you submit for the record a memorandum where
you could show precedents in this field for this type of decision.
- Mr. RAYMOND. I would be very glad to see what we can find on that.
(The information requested is as follows:)
The area of "liberty" guaranteed by the fifth amendment which may be
45escribed as the "right" to engage In business or follow one's profession, has
teeji the subject of several Supreme Court opinions with regard to the effect
en such rights of political or administrative decisions.
Ill United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 (1936), the Court
'editisidered the effect of a joint resolution providing that if the President finds
klaibition of sale of munitions to certain Latin American countries may con-
teibute to peace between them, and if after consultation with other Latin
American governments the President makes a proclamation to the foregoing effect,
such munition sales shall be unlawful. The President issued a proclamation,
and the defendant was indicted for violating the joint resolution and the proc-
-halation. In upholding the joint resolution and the President's proclamation,
the Court said:
"* * * Moreover, he [the President], not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries, and especially
is this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular, and other officials. Secrecy
in. respect of information gathered by them may be highly necessary, and the
premature disclosure of it productive of harmful results. * * *"
In Chicago & 'Southern Air Lines v. Waterman Corp., 333 U.S. 103, 111 (1947),
lie pourt considered the effect of sections 801 and 1006 of the Civil Aeronautics
Act. Section 801 Provided that any CAB order permitting a citizen or foreign
air? carrier to .engago in foreign air transportation "shall be subject to the
approval of the President." Section 1000 provided for judicial revitiw of any
orper" of the CAB, except only an order concerning a foreign air carrier.
Nevertheless, the Court held it could not review a final order approved by the
'President regarding a citizen air carrier in foreign air transportation. The
,Tresident had directed certain changes in the CAB order, and the Court said
In regard thereto:
4119 Do, changes made at direction of the President may he identified, the
reiLsonS therefor' are not disclosed beyond the statement that 'because of cer-
.
thin factors relating to our broad national welfare and other matters for
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which the Chief Executive has special responsibility, he has reached conclu-
sions which require' changes in the Board's opinion.
"The court below considered, and we think quite rightly, that it could not
review such, provisions of the order as resulted from Presidential direction.
The President, both as Commander in Chief and as the Nation's organ for
foreign affairs, has available intelligence services whose reports are not and
ought not to be published to the world. It would be intolerable that courts,
Without the relevant information, should review and perhaps nullify actions
of the Executive taken on information properly held secret. Nor can courts
sit in camera in order to be taken into Executive confidences. But even if courts
,could require full disclosure, the very nature of Executive decisions as to
foreign policy is political, not judicial. Such decisions are wholly confided
by our Constitution to the political departmentS of the Government, Executive
and Legislative. They are delicate, complex, and involve large amounts of
prophecy. They are and should be undertaken only by those directly responsi-
ble to the people whose welfare they advance or imperil. They are decisions of
a kind for which the judiciary has neither aptitude, facilities, nor responsi-
bility and which has long been held to belong in the domain of political power
hot subject to judicial intrusion or inquiry. * * *"
In Greene v. McElroy (27 Law Week 4528 (1959) ), the plaintiff had been
denied security clearance for employment by a Defense Department contractor
after a hearing which, the court noted, began with a statement by the chairman
which included the following:
"The transcript to be made of this hearing will not include all material in
the file of the case, in that, it will not include reports of investigation con-
ducted by the Federal Bureau of Investigation or other investigative agencies
which are confidential. Neither will it contain information concerning the
Identity of confidential informants or information which will reveal the source
Of confidential evidence. The transcript will contain only the statement of
r6asons, yaw answer thereto, and the testimony actually taken at his hearing."
The court emphasized that it was not deciding whether the hearing given
plaintiff was in accord with due process on the facts; it held only that a hearing
'without confrontation had not been explicitly authorized by either the President
or Congress. But the court very clearly implied that it might be constitutionally
proper for the President or Congress to authorize such a hearing where "neces-
sary and warranted":
"Before we are asked to judge whether, in the context of security clearance
cases', a person may be deprived of the right to follow his chosen profession with-
out full hearings where accusers may be confronted, it must be made clear that the
President or Congress, within their constitutional powers specifically have de-
cided that the imposed procedures are necessary and warranted and have author-
ized their use,"
? -Turning now to the passport field, the administrative procedure involved in
the present bill would permit the use of evidence which, for reasons of national
security or foreign relations, the Secretary of State determines must remain
cOnfidential. The bill would require that a fair summary be given the applicant.
The source or perhaps certain specific details might be withheld. While this
procedure has not yet been passed upon by the Supreme Court, it has been
upheld by the lower Federal courts.
In Boudin v. Dulles (235 F. 2d 532, 535 (195l)), the court of appeals stated:
"We do not reach in the present posture of the case the contention made by
Boudin that the Secretary cannot rely an confidential information in reaching
his decision. But since that question may arise at a subsequent stage, we think
? the Secretary should?if he refuses a passport to Boudin after the further
? Consideration we have ordered?state whether his findings are based on the
evidence openly produced, or (in whole or in material part) on secret information
not disclosed to the applicant. If the latter, the Secretary should explain with
sitch particularity as in his judgment the circumstances permit the nature of
the reason why such information may not be disclosed.' * * * This will facilitate
the task of the courts in dealing with the question of propriety of the Secretary's
use of confidential information?a question which, we repeat, we do not now
reach.
t. s. * If the passport is still refused by the Secretary, and further judicial
review is sought by Boudin, the district court may consider whether the findings
Made are justified by the evidence of record, or, if they are not so justified,
If considerations of internal security rather than of. the conduct of foreign.affairs are
Involved, we think the Secretary should so state.
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PASSPORT LEGISLATION
wl ether1he Secretary has given reasons valid in law for keeping confidential any
in'OrMation-not disclosed to the applicant-upon which he states he has
tel led."
ifoudin case wqs, subspquently, disposed of without passing upon the i!ore-
go ng. '
?, 'In Dayton v. Dulles (287 F. 241 43 (1956) ), the district court's summary dis-
- ini5Sal of the complaint was reversed and remanded, the court of appeals queting
in Oat what is quoted above in the Boudin case. The district court, upon re ixial
-(I 1B F. Supp. 876, 881 (1956) ) , noted that the substance of the confidential
information .reliecl upon by the Department of State was disclosed to the plaintiff,
lau.3,not the sources or_details. The Secretary certified that disclosure of the
latter would have an adverse effect upon the source of security and intelligence
irtroymafion. The Secretary also certified that he relied on other confidential
Information not disclosed at, all on the ground that to do so would prejudice the
,cO)4nctOf foreign relations. The district court then said:
?"In the light of the foregoing, at is my opinion that the denial of a passport to
tin. ?plaintiff did not violate either procedural or substantive due process.
'`To hold otherwise w011id be to say that any citizen of the United States desiring
a ;aaasport for the purpose of going abroad to engage in activities vchich will
aaiitnce the Communist movement could force issuance of the passport airless
,stin,Secretary of State made disclosures detrimental to our national interest,
44fta-cfing our internal security, and prejudicing the conduct of the US for aign
rel
"Such -a holding would be contrary to a body of decisions which recognize
th( -complicated, delicate, and manifold problems relating to our foreign i?ela-
tio as and the fact that such relations are largely immune from judicial inquiry
or Verference. Latvian State Cargo it Passenger S.S. Line v. McGrath (88 U.S.
Ap a. D.C. 226, 188 P. 2a 1000), certiorari denied (342 U.S. 816, 72 S. Ct, 30, 96
L. Pd. 617) ; United States v. Curtiss-Wright Export Corporation i'299
80,1;57 S. Ct. 216, 81 L. Ed. 255) ; Harisiades v. Shaughnessy (342 U.S. 580, 72
S.131. 512,96 L. Ed. 586)." * * *
As was observed by Mr. Justice Holmes in Moyer v. Peabody (212 U.S. 78,
84, 29 S. Ct. 235, 236, 53 L. Ed. 410), 'it is familiar that what is due process of
law depends on circumstances. It varies with the subject matter and the
necessities of the situation.'
'.Ir. Justice Frankfurter pointed out in Joint Anti-Fascist Refugee Committee
It
V. ?Grath (341 U.S. 123, 163, 71 S. Ct. 624, 644) that 'due process is not a
rite ! anical instrument. It is not a yardstick. It is a process. It is a delicate
prt _ess of adjustment inescapably involving the exercise of judgment by those
vat ) the Constitution entrusted with the unfolding of the process.'
"
- Betts v. Brady (316 U.S. 455, 462, 62 S. Ct. 1252, 1256, 86 L. Ed. 151)5),
the Court said:
' - 'That which may, in one setting, constitute a denial of fundamental fair-
hess,Shocking to the universal sense of justice, may, in other circumstances,
had In the light of-other considerations, fall short of such denial.'
"In addition to providing protection to the rights of individual citizens, the
Co ts:titution also recognizes interests of the Government and when conflicts
arIT, they can be resolved only by 'balancing the conflicting individual and
national interests involved.' American Communications Association, C10, v.
Da tits (339 U.S. 382, 410 70 S. Ct. 674, 690, 94 L. Ed. 925).
'
"the essence, of the plaintiff's claim is that he is entitled to confrontation of
all witnesses and that denial of such confrontation constitutes a denial of due
pro.mss.
"this contention asserts for the plaintiff in an administrative proceeding a
id of confrontation conferred only on defendants in criminal actions and is
UpOrted by authority where the question has been raised in administra-
v( roceedings. * * *
....
, seems to me that the Supreme Court disposed of the problem when, in
-Chicly? 4:6 Southern Air Lines, Inc. v. Waterman S. S. Corp. (333 U.S. 103, 111,
-68 il. Ct. 431, 436, 92 L. Ed. 568), it said:
- i 'The President, both as Commander in Chief and as the Nation's organ
or foreign affairs, has available intelligence services whose reports are
hot and ought not to pe published to the world. It would be intolerable that
'courts, without the relevant information, should review and perhaps null-
y actions of .the Executive taken on information properly held secret.
r qua coPkts ,31.,ti..11,Catil,era in ,order to be taken Into Executive confidences.'
f 't my opinion, the Court must accept the reasons advanced by the Secretary
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cif State for not disclosing the source of the confidential information referred
to and, under the clicum'stances of this case, the manner and use of confidential
information accords with both procedural and substantive due process."
.:When the Dayton _case again came before the appeals court (254 F. 2d 71, 74
-(157)), the court specifically approved of the Secretary's use of confidential
information in view of the manner of its use and the nature of the case, em-
phasizing that "regulation which is reasonable in relation to its subject and is
adopted in the interests of the community is due process."
"The second question is whether the Secretary could base his conclusion in
-this matter partly upon confidential information. Even if the ground for de-
nial is valid, is the denial valid if the evidence which establishes the ground
is confidential? The Secretary stated, as we have pointed out, that disclosure
at. this information would be detrimental to the national interest in respect to
Internal security and the conduct of our foreign affairs.' Our view is that upon
that basis he need not disclose the information but he may act upon it.
"The Supreme Court has not passed upon the precise question here before us,
1.e., the permissible reliance upon confidential information in a passport case.
But we find, helpful guideposts in the principles laid down by the Court in dif-
terent fields. The right to engage in business and the right to enter into con-
MIAs are parts of the liberty protected by the 5th and 14th amendments No
perSon can be deprived of those rights except by due process of law. The guid-
ing principle in respect to them is well set out in the West Coast Hotel case,
There the Court had before it a minimum wage act. The attack was that the
statute was a deprivation of freedom of contract, a part of the liberty pro-
tected by due process of law. 'The principle which must control our decision
is net in doubt,' the Court said. 'Liberty under the Constitution is thus neces-
sarily subject to the restraints of due process, and regulation which is reasonable
in relation to its subject and is adopted in the interests of the community is due
process. [Italic supplied.] Quoting from its own opinion in Chicago B. .X Quincy
R, Co.. v. McGuire, and referring to the freedom of contract, the Court said,
'Liberty implies the absence of arbitrary restraint, not immunity from the reason-
able regulations and prohibitions imposed in the interests of the community.' "
The Court then quoted the often-quoted language of the Chicago & Southern
Air Dines case, holding that due process "is not violated if the right to do busi-
ness abroad Is denied upon the basis of confidential information pertaining to
foreign affairs." The principles laid down in cases involving commerce, the
Court said, are of assistance in testing the nature of due process required in
passport cases. The Court then concluded:
"We have before us a determination by the Secretary of State, based upon
confidential information derived from sources available to him in the course
of the performance of his duties, that a certain person intends to go abroad to
advance the Communist movement. The Secretary disclosed to the person
'the substance of this confidential information. upon the reasoning indicated
in, the foregoing paragraphs we conclude that this procedure satisfies the re-
quirements of due process in such a matter. The community interest makes it
necessary that this be so. The right to travel abroad may be denied upon that
basis.
"Americana Always resent and oppose the deprivation of liberty upon the
basis of undisclosed information. We do so in this area. We would not agree
to it except in necessitous circumstances of public concern. Such circumstances
are here." * * *
"There the problem is whether disclosure would adversely affect our internal
security or the conduct of our foreign affairs. The cases and commonsense hold
that: the courts cannot compel the Secretary to disclose information garnered
by him in confidence in this area. If he need not disclose the Information he
has, the only other course is for the courts to accept his assertion that disclo-
sure :Would be detrimental in fields of highest importance entrusted to his ex-
,
elusive care... We. think we must follow that course." ,
The Dayton case was reversed by the Supreme Court on other grounds with-
put discussion of the foregoing.
11. 1Yrie*I4 MIMS. (p4s E. 2d 561, 574'
1 (1957), the appeals court allowed the
Of confidential information saying :
dpr.,priehl complains that the evidence in respect to the allegations asserted
the ecreta,ry's advices to him may be in part confidential, and he argues that
gladb riossibility effectively nullifies the pioeesS of. the Procedure. He seeks
to bring the situation within the doctrine followed by the Ninth Circuit in
Parker v. Lester, that if it be established in advance that a proffered admini-
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EtrAtive remedy will not afford due process, the remedy need not be pursued.
It is true that a passport denial may be based upon confidential information.
But due process of law is a term of variablesontent. The necessity for secrecy
In the conduct of foreign affairs has leen asserted, seemingly without question,
evcr since President Washington refused to submit to the House of Represent-
ati res the documents relating to the Jay Treaty. The Supreme Court said in
thE Curtiss-Wright ease:
"'The marked difference between foreign affairs and domestic affairs in
this respect is recognized by both Houses of Congress in the very form of
:their requisitions for information from the executive departments,. In the
1:01se /I every department except the Department of State, the resolution
- direct,/ the official to furnish the information, In the case of the State De-
partment ; dealing with foreign affairs, the President is requested to furnish
the information, "if not incompatible with public interest" A statement that
to furnish the information is not compatible with the public interest rarely,
If ever, is questioned.'
"And recognition of the necessity for secrecy in foreign affairs, coupled with
a strong admonition to the judiciary against any attempts on its part to peer
into or to unveil such confidential material, is contained in the Court's opinion
in he Chicago & Southern Air Lines case, from which we have quoted. That
cas . concerned the right of an American company to do business abroad. That
wa yt right of the applicant if he could meet the appropriate specifications. But
the Supreme Court specifically and emphatically pointed out that the President
-could deny the application for secret and confidential reasons. We know of' no
reason why an individual's right to travel abroad is to be treated by different
constituional standards than is his right to do business abroad. And we know
of Lo reason Why treatment of alleged Communist affiliation is to be put upon a
preferred basis as compared with ordinary commercial infirmities or adverse
sugg'estions.
"Further justification for secreff in a case of this type is supplied by the f act
that the Nation is in a state of national emergency, caused by the infiltration
pro ;ram of the Communist movement During such an emergency Cabinet officers
ma be forced to act on the basis of information the publication of which is in
con sIstent with national security. When the Secretary of ktate avow :3 that in
the interest of national security he cannot spread certain information on an
op e a record, and explains with as much particularity as possible the reasons why
he cannot do so, courts must rely upon his integrity and accept his statement.
'We held in Roudin v. Dulles that, where a passport has been denied by the
Secretary on the authority of a specific regulation, he (the Secretary) must make
fin( ings in writing responsive to the requirements of that regulation, and in such
a c iso must state whether the findings are based on evidence openly produced
or cli secret information and, if the latt(n-, 'should explain with such particularity
as 'n his judgment the circumstances permit the nature of the reasons Why such
information may not be disclosed.' We adhere to that ruling. We are of the view
that due process in passport proceedings does not prevent the use of confidential
information when foreign affairs or the national security is involved." [Empha-
sis tdded.]
The Rrighl case, like the Dayton case, was reversed by the Supreme Court on
oth n. grounds, without discussion of the foregoing.
maY be noted, moreover, that the Supreme Court has expressly upheld the
use of a "fair resume" of adverse confidential information relied upon by an
apt eal board in considering a claim of conscientious objection to military serv-
ice. In United States v. Nugent (346 U.S. 1 (1958) ), the specific issue was
wh: tlier the registrant should be entitled to see an FBI report and to be informed
of the names of persons giving evidence to the FBI. The Court held, 5 to 3, that
the registrant was entitled 'to no more Than "a fair resume of any adverse evidence
In I 4e invesfigafors report," that the "hearing" required by, the statute did not
req lire "a full-scale trial for each appealing registrant," and that due process
'did riot require such a trial.
Mr. ComN. I join with my colleagues in saying that your statement
wa 3 very fair and logical but I do not think it is long enough on facts.
Yo ave had opportunity during the past year to gather facts of two
kinds and perhaps these could be submitted before the hearings close.
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One is the, question the chairman asked you about the number of
applications?the traffic in this business since a year ago?you could
661/ate these facts, could you not?
Mr. HANES. Actually, sir, as I say, we have attempted to avoid
using these figures simply because I can't give you figures on people
who would have been denied passports. That is something you can
only determine at the time.
In my testimony at the end of April before another committee, I
said that as of that date there had been approximately 1,150 applica-
tions from persons about whom there was some record of affiliation. I
am not able to say that every one of those would have been denied
passports because we have no way of knowing until we go through it;
but the general rate of rise of this kind of application since the time
of Mr. O'Connor's testimony last year to the present has been about
100 a month.
Mr. COFFIN. The second place where I would be interested in more
facts: Could you give us without revealing names or prejudicing any
sources Of information, can you give us cases of people who have gone
abroad and come back and what they have done? Can you give us a
fair sampling without, as I say, hurting your own efforts in the future?
Mr.'HANES. Well, the difficulty, sir, is always in this question of
what they have done. This is why we have felt so strongly in this
field: If legislation requires you to show in advance?and I might go
so far as to say, if you are required to show after they have traveled?
precisely what they have done to damage the national security, we find
this nearly impossible. We have little or no way, for instance, of
knowing what a person does once he gets abroad and, let's say, into
the Soviet Union and Communist China.
Mr. COFFIN. But what he does when he comes back here?
Mr. Hmins. Well, again we may eventually find some evidence of
that when these people get back. As you know, the Government has
methods of finding out some of the things going on inside the Com-
munist Party and some of this may come to light.
We do know, of course that the travel of many of these people is
?at the present time something that is being directed by the party.
We know what they have done in some cases when they traveled in
the past. We do know what some of the people have done abroad in
their public statements. We know some of these things.
For instance, we have an applicant right at the moment who has
lived abroad, out of this country for approximately 10 years. He has
been thrown out of two countries. He has been livino.for some years
now in East Germany. He is a very prominent official of the East
German labor organization and is high in the councils of the Com-
munist Party of East Germany. He has used those positions to be
ver effective in a propaganda way for a number of years.
He has full Communist documentation, including their permission
to come out from under the Iron Curtain and demand?which he
has done in no uncertain terms and with a good' deal of pounding
on the table?his right to an American passport. He isn't quite sure
where he wants to travel, but he feels he would like to go perhaps
to 5'otne. neutral country?he mentioned India?and he wants a
p 6,sg'
Now, that is the kind of case, or some of the kinds of cases we
have.
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5N1r.ciLkys, Would you yield to me?
-'`Why don't you just refuse it and tell him to go to court? ,
.Mr. HANg?s. We have not as yet acted on that case, and this is
pethaps a good suggestion.
"i Chairman MORGAN. The gentleman's time has expired.
Farbstein.
Mr. FARBSTEIN. Mr. Hanes, you are an interested party in all these
prdddedings, aren't you?
(Mr, HA/sIES. Well, to a, certain point?
Mr. FARnsTEIN. When I say "you" I mean the State Department,
o course..I don't mean you personally.
?NES. Yes sir.
gMr. PARBSTEIN. Yes,
you think there should be a review, by the
interested party, of his own act?
Mr. IlArins, Well
PARBSTEIN. Isn't there something in the nature of a conflict of
iaterest there?
Mr. HANES. tet me assure you, sir, that we in no way attempt to
gest that we think there should not be?indeed, I don't think
I hat any legislation could deny the right to a judicial review of these
1A- ocectures.
FARBSTEIN. Well, then, why do you object to that portion of
the review referred to in H.R. 8329 where the Court shall consider
confidential information only in the event that the information that
is on-the record appears to him to be inadequate?
Mr. HANES. Well, as I tried to say to Mr. O'Hara, sir, we do have
came question as to whether the?in the field of political decision,
that this particular kind of information is something that shoulel
be made under the separation of powers as it were, in a confidential
ftaternent to the Court.
Really this is basically a constitutional question and certainly
doesn't imply any indication on our part that we don't think the
courts are trustworthy, of course; but it is a more basic question--
I Mr. FAnnszEilsr. Then the only difference between us is that you
ant a determination somewhere as to whether or not the Court, con-,
k,trtutiotially should be given that right; isn't that so?
IT4Ins. Well, this is certainly a part of the question. Let me
8(ty this?and perhaps this is an answer to your question: With re-
gard to the kind of confidential information about which we are
s b
peakino-, upon which the Secretary should rely, we have no hesita-
i40? certainly, as to the adequacy of this information. We should
have no hesitation on that ground as to anybody reviewing it.
f'The grounds of our hesitation are entirely different. They are
npt becauSe wg don't think it will stand up to a review. It is really
tb'question as to whether this is a proper function for the judiciary;
ether,in thie.feld, of national security and foreign affairs an essen-
iiiilly political decision of the executive based on intelligence sources
nd of confident,ill information that is received from foreign govern-
3nents, is something that he should properly turn over for decision to
another branch of the Government, .
Mr., ARDSTUN, Sp, far as I know, I don't think anybody would
oppose, as Dr. Judd said, the right kind of legislation.
ow, what is the right kind of legislation? It is a moot question.
1
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Are the civil rights of the individual to be given consideration? I
think you will agree they should be given consideration?
MT. HANES. Yes, sir.
Mr. FARBSTEIN. The feelings of another government must also be
taken into consideration. It is very important. So you must strike
a balance.
If you are going to take a position that you want it all your own
way, you are going to continue to have difficulty in getting legislation.
That is the result of what happened last year. And it seems to me
under those circumstances that you should be satisfied to give a little.
Now, I can understand if you have security information from a
foreign government that you don't want to disclose the name of the
government, the foreign government, because it may close that source
of information to you.
_Now, I appreciate that, but supposing you get somebody who doesn't
like somebody else and gives you information?not a government, not
an official body. Why shouldn't that individual who gives informa-
tion in connection with a neighbor, or someone that he doesn't like,
why shouldn't that be subject to cross-examination? Why shouldn't
that be subject to disclosure?
According to your interpretation of the bills that you want, you
want to restrict the disclosure of all information, or the names of peo-
ple. You don't want to disclose the names of anybody, do you?
Mr. HANES. No, sir, that is not so. If I gave that impression, I have
very badly stated our position. The kind of person that you are re-
? ferring to, we believe either should be prepared to come and give
testimony openly or the Department should not rely on this informa-
tion.
Now, we feel that the Secretary of State, when he relies on con-
fidential information?and the courts also feel this and have said it?
should be required to certify to the court that the reason he cannot
disclose this is because of substantial danger to the national security
or to the foreign relations of the United States.
I suppose it is conceivable that
Mr. FARBSTEIN. You may think a certain individual is important
enough and that the disclosure of his name may affect the security
'of the United States, but I may not think so. You are an interested
party and therefore you would take one view where I, being either
interested or disinterested, might disagree with you.
Basically, this is in the nature of a penal statute. Being then in the
nature of a penal statute, there should be particularization of the basis
for failure to disclose, or denial of disclosure, and that is when I say
to you that the question of civil rights should be considered a bit more
liberally than what you attempt to consider it.
There is on page 3 of bill H.R. 8329, certain methods?well, there
is particularization where the U.S. security would be endangered.
Would you please tell me, if you can, what else you would add to those
three items, and I say particularization is necessary because in my
opinion the bill is in the nature of a penal statute.
? 4r. HANES. As far as the penal statute goes, sir, I think we should
be very clear that the denial of a passport should never, in our opinion,
be a punitive action. It is a preventive action.
44763-59-3
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Mr. FARBSTEIN. I dont say that this in and of itself is a penal
stalmte, but it is in the nature of a penal statute and all penal statutes
of necessity must be particularized or detailed.
Mr. HANES. Specifically, sir, we feel that under these findings on
page 3 of the bill?which, as I said, we certainly don't disagree with?
that under those you could not deny even an active and dedicated
Communist a passport. In our opinion, this doesn't meet the require-
ments that we feel are necessary to be met.
Mr. FARBSTEIN. Well now, let's see. Let's take (A).
tra asmitting, without proper authority, security information of the United
States;
Yon don't want to give X a passport, because you are afraid, because
of his Past record and because of information in your possession, he
will transmit security information, isn't that correct?
,Mr. HANES. Well, there might be a particular case; but there are
considerable number of persons who are extremely necessary to the
Cc nnounist apparatus whose job does not require such transmittal:
But again
FARBSTEIN. What would he be doing if he wouldn't be trans-
mitting information?
HANES. The most difficult part of this whole statute is the
advance finding requirement that the Secretary of State must find
reasonable grounds to believe that his activities abroad would specifi-
chly do one of these rather extreme things.
Now, we feel on the basis of what the known objectives and oper-
ati ons of the Communist Party are, and a person's past actions, that
th we is a pretty reasonable presumption as to what he will do abroad;
but we also feel it would be nearly impossible in almost any case to
Make an advance showing of that.
- Chairman MormA.74. The gentleman's time has expired.
Mr. Meyer. ?
Mr. MEYER. Thank you, Mr. Chairman.
Mr. Hanes, I am quite interested in the meaning of words and
diqerent expressions which can be quite truthful, but also there could
be another phase to them.
Per instance on page 3 you say:
Such a conspiracy can operate successfully only so long as It can Maintain
security and rapid communications.
would like to ask you, isn't it also true that freedom can only
or erate successfully if it maintains such communications?
.Mr. HANES. Yes, sir, I feel that the freedom of information across
na tipnal boundaries is one of the greatest guarantees that freedom has
in the world today.
MT. MEYER. Thank you.
Then I would like to ask you, on on page 5 you use an expression that
I lon't like at all and I would like you to define it. You say, "ortho-
dox American variety" referring to political opinions and other
tli ings.
- Could this be Mr, Nixon's Republicanism?
Mr. HANES. I purposely used that phrase really to suggest the un-
dcsirability and impossibility of ever establishing any such criteria.
should have probably put it in quotation marks. I intended to
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suggest there is no such thing and that we have no desire or intention
of establishing any kind of criteria; to say one thing is orthodox and
another isn't, or to attempt to deny anybody's going abroad simply
because the administration, let us say, may not happen to like what
he says or what he believes.
Mr. MEYER. In other words, you meant there was no "orthodox
American variety?"
Mr. HANES. I meant it, sir, and I am grateful to have you point out
that perhaps I didn't make that clear.
Mr. MEYER. Thank you.
And then on page 6 you have a statement here that "he should
carry the burden of demonstrating clearly that he will not engage"
and so forth. Now, I think I understand what you mean, but I also
believe that you probably have a legal background and understand
the American system of law which is founded upon the principle that
a man is innocent until proven guilty, and that this is more or less
turning this around, isn't it?
Mr. HANES. Well, sir, if I could answer that in a couple of ways:
Again I would like to emphasize that these are not and we don't think
they should be, judicial proceedings involving guilt and innocence,
Those are all terms that involve crime and punishment. Denial of a
passport we don't think should be a punishment for anything. This
is a preventive action, and if a person violates his restriction?or if
there is a criminal action, it should be handled by other means. But
I also have pointed out that we believe the Congress should establish
in this law--and incidentally, the Congress has established in many
previous laws?findings concerning the nature, activities and methods
of operation of the Communist Party.
We believe that the Department should then be required, if they
ih to deny somebody a passport under these grounds, to demonstrate
that a person is knowingly, actively, and currently engaging in activi-
ties supporting that conspiracy for these ends which the Congress has
found to be inimical to our security.
Having made this finding, we believe that the Secretary ought to
be able to deny a passport. However, even under those circum-
stances, we can conceive of cases where a person, unlikely though it
may be, might be traveling abroad solely for other reasons, or under
some circumstances might bring the Secretary to agree that he was
probably not going to engage in such activities.
Mr. MEYER. Some people advance the idea that actually what you
are doing here is saying that a man is inlay and that you are de-
manding that he prove himself innocent andin fact the 'denial of a
passport could in many cases be a form of preventive crime, or pro-
tective custody and protective arrest.
This is what is indicated if this is done in this manner.
Mr. HANES. The Department must first establish these things, that
the person is knowingly and actively and currently engaging in such
activities.
This next sentence is intended to be an additional protection to the
individual, that even after the Secretary has made this finding, the
individual should be allowed to show if he can, as to a particular
trip, despite the evidence as to his present activities that he is not
going, in this case, for that purpose.
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PASSPORT LEGISLATION
Mr. iEyiR. I find it difficult to reason Out, Ithat actually under c-on--
aiaons where you use confidential information and don't disclose the
source, that this can be done in a fair and equitable manner.- That
is the general conclusion that, I arrive at.
guess my time has expired.
Chairman MORGAN:. Mr. Gallagher.
. Mr. GA1,LAGIIER. I would like to say that you seem to place great
eriphasis on the passage of information by couriers which forms the
hr sis of your right to deny a passport.
, It is very difficult for me to believe that in this day and age they
-WoUld rely solely on that type of passage of information for the
-ectitinuation .of their apparatus. You say that the power of making
Fe decision should not necessarily rest in another branch of the
wmerninent. If it were solely that, I would agree with you. How-
er, there is the question of civil rights involved here and the last
iisortin the question of civil rights should be in the judiciary.
I believe if there were some way we could reconcile both of these
principles, you would have a better opportunity for this type lecrisla-
ti nu passing: I agree with you that we should have this legislation
but we certainly should not jeopardize any question of civil rights.
1, think your counsel certainly should research the effects of this
an pass that along because this is a novel approach for the executive
t6eopardize civil rights on a strictly administrative basis. I would
Vie to' hear what your results are on your research.
I yield rny time.
r. BRI,TLEY. I want to ask one question. You may answer it or
'supply the answer 'for the record. Do you regard the possession of
a passport as a privilege or a right?
r., HANES. I regard the possession of a passport as a privilege.
Il hsquestion 20 years ago could have been answered much more
simply and I think there would have been no question -about it
rs-hatsoeVer.
The fact is that, as has been brought out in earlier questioning, the
passport today has a dual function, one of which is political and one
f which is as an exit_ permit and complicates it. I think the privi-
lege quite clearly appears from the provision of the passport in -which
the Secretary of State requests, "all whom it may concern to permit
sifely and freely to pass, and in case of need to give all lawful aid
arid protection to the above-named citizen of the United States."
is a privilege which is dependent upon a number of things.
.1t: is dependent upon citizenship. It is ultimately dependent, I sup-
,
pose, As citizenship should be, on the matter of allegiance.
'Mr. BENTLEY. The right to travel, of course, on the other hand, is
8. right and not a privilege. The right to travel abroad.
,HANE,$. The right to travel, if you wish to be technical about it,
is aclOnstitutionally protected right derived from the liberty clause
of the flftli amendment.
. If ;might be a little more accurate, I would say probably the right
a citizen to exit the United States is a constitutionally protected
right,becauSe I think it would be difficult for us to say the -U.S. Con-
. stitution caluprotect what a citizen can do in a foreign country. That
is eXcfasivety under the control of the foreign country.
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Mr. BENTLEY. It would be interesting to have an answer for the
record, Mr. Ha.nes, unless you care to give one now, as to how the ex-
ercise of a :right?that is, the right of travel?can be conditioned by
what is not a right but a privilege, that is, the possession of a pass-
port.
Mr. HANES. We would be very glad to supply a comment on that,
sir. I would rather do that for the record rather than give an offhand
reaction to it. It is a very interesting question.
(The information requested is as follows:)
The obtaining of a passport is a privilege. Section 215(b) of the Immigration
and Nationality Act of 1952 (8 U.S.C. 1185 (b) ), has made it unlawful, during
the existence of a state of war or national emergency proclaimed by the Presi-
dent (and upon Presidential proclamation of the necessity for restrictions upon
exit and entry), for a citizen to depart from or enter, or attempt to depart from
or enter, the United States, unless he holds a valid passport. Thus, the Con-
gress has, in effect, given to the President and the Secretary of State the power
to control the right of the citizen to exit from the United States. (See the limi-
tations upon travel set forth at 22 C.F.R., pt. 53.)
The effect of this act of Congress, when coupled with the Presidential proc-
lamation, has been to alter the traditional character of a U.S. passport.
?A passport is no longer merely an international document of identification.
It is in addition an exit permit, the possession of which is required before
the right to depart may be exercised. Criminal penalties are provided by sec-
tion 1185 to punish violation of these limitations upon the constitutionally pro-
tected right of exit. Under these circumstances, the privileged character of
the document is subordinated. Should the present emergency be terminated,
should restrictions on departure and entry be no longer required, or should the
statute be changed to require a separate exit permit instead of a passport as
the necessary documentation to leave the country, the basic privileged charac-
ter of the passport would again become paramount.
Mr. BENTLEY (presiding). If there are no further questions, the
meeting stands adjourned subject to the call of the chairman.
(Whereupon, at 12:50 p.m., the committee adjourned, to recon-
vene at the call of the chairman.)
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PASSPORT LEGISLATION
TUESDAY, AUGUST 11, 1959
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
TV lashing ton, D.C.
The committee met, pursuant to adjournment, in room G-3, U.S.
Capitol, at 11 a.m., Hon. Thomas E. Morgan (chairman) presiding.
Chairman MORGAN. The committee will come to order.
We meet this morning on the passport control legislation. Our
witness this morning is the Honorable Robert Murphy, Deputy Under
Secretary of State for Political Affairs.
Mr. Secretary, I understand that you do not have a prepared state-
ment. You may proceed as you see fit.
STATE1VIEN1' OF HON. ROBERT MURPHY, DEPUTY 'UNDER SECRE-
TARY OF STATE FOR POLITICAL AFFAIRS
Mr. MURPHY. Mr. Chairman and gentlemen, I am grateful for this
opportunity to come here and talk to you.
Mr. Hanes appeared before you the other day and outlined in a
rather comprehensive statement the basic notions and ideas that we
in the Department have on this particular subject, which is really
yery well known to you. I don't know that I can add a great deal to it.
I would like to say that if there is any notion that out of a spirit
of capriciousness in the Department of State?or just sheer bureauc-
racy?we'are interested in restricting the travel of Americans abroad,
I would like to do what I can to dispel that notion, because our whole
policy is based on a principle of promoting the travel of our citizens
abroad, and in no sense of the word do we want to do anything to
interfere with legitimate travel of our citizens.
We do feel that we are faced with a problem which is very familiar
to all of you and it is really only one aspect of a larger problem. And
I don't wart to at all exaggerate the importance of this particular
aspect of it. That is the travel of?what shall we say ??activists in
the American Communist group who are interested in contacts and
the activities of the international Communist movement, whether it
be travel to the all-Soviet Union Congress in Moscow or to other points
where their activities would be necessary for the purposes of the move-
ment and of the party.
Now that is a problem. Of course, we in our Foreign Service have
been associated with it for many years and have always assumed that
the secretary of State had that discretionary power to deny a pass-
port where he thought that the evidence was indisputable and justi-
fied on his part.
35
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We were rather rudely disillusioned on that subject in 1958 by the
Sur reme Court and were told otherwise, so that it becomes a question
of what type, what design of legislation is necessary to correct that,
if in your opinion you feel, as we do, that the circumstances require it.
And then it becomes a matter of the words, the phraseology which
you will use in defining the authority and the right of the Secretary
of State to take affirmative action in the denial of passports in such
cases.
We have always had the rather loyal feeling that the Secretary of
Sta :e would not wittingly abuse such a discretion. If he did, cer-
tairly in the old days there was always the right on the part of the
citizen of judicial review, a writ of mandamus to air the proceed-
ing ; and to req.uire the Secretary of State to justify his action.
I think that in some of the bills that have come to my attention it
is quite normal and right; it seems to me there should be a heavy
emphasis on the right of the citizen to the ordinary judicial process?
epri frontation, cross-examination--and we heartily sympathize with
tha.;. ,However, we are in a box because of the circumstances relating
to the mariner in which some of this evidence is obtained.
. Tje have had the feeling that the secretary of State, after review-
ing it?and t might say in past practice in these cases the Secretary
of State has made a personal review?there aren't so very many?and
a,summary of the evidence is provided to the applicant for the 13ass-
port?I would have the feeling this is a situation where there should
be a waiver of the requirement of the ordinary processes of judicial
rev'ew.; that is, confrontation and cross-examination.
WhereI sit in the Department, seeing the flow of information from
the several agencies relating to this subject matter, I know perfectly
,we)t,that it is not going to be possible to invoke that kind of proceed-
ing, If it is invoked; the executive branch will simply be put in the
position of being unable to make a case.
that, in effect, is our situation. The statement that has been
ma to outlines in detail our views on the several bills that have been
intrOduced, and f am just here to be of any assistance I Can in any
Way., Mr. Chairman, to answer whatever questions I can and discuss
it with you.
Chairman MouoAiv. Thank you, Mr. Murphy.
-Mr. Murphy, as you know, our usual procedure is to operate under
the 5-minute rule. Each member has 5 minutes in which to ask
que stions.
31r. Murphy, last year when the President sent up his message to.
tongreSS, the message certainly conveyed a sense of urgency., Over
- ,
y mr has passed by without any legislation.
You still think that the sense of urgency in the President's message
is still' present . .
Mr. Munisriy. I think so, Mr. Chairman. It may not involve a
gre at many individual's. After all, there were not very many. Lenins
necessary to the Russian Revolution. Sometimes one would be quite
suficient to provide a danger to the security of this country. It is
that kind of a case that I have in mind.
Obviously travel is only Part of their activities. There are other
waYS and means perhaps of communication, but it is?personal con-
tact is a very essential part of the activities of this particular or-
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anization. I think that we can say with entire honesty and convic-
ion that there is an urgency involved.
Chairman MORGAN. -Mr. Secretary, would the passage of a bill sim-
ilar, to the Bentley or Selden bill prevent an individual like Paul
Robeson from traveling abroad ?
Mr. MuRpnv. I would hope it would. There are certainly fea-
tures iii both those measures that are extremely helpful. As you
know, we would have preferred the more comprehensive language
that was used in the text which was sent down last year.
There certainly is the right of the Secretary of State to act with
discretion under those two measures and that would be very helpful
to us.
Chairman MoRoAN. Mr. Chiperfield.
Mr. CHIPERFIELD. Thank you, Mr. Chairman.
Mr. Secretary, we are always happy to have you come before this
committee. I have introduced a bill on this matter and I am very
hopeful that appropriate legislation will be passed. I think there is
a need for i,t and we should give the discretion to the Secretary of
State which we need for our own security.
I have no questions.
3/1r.,Mu,arity. Thank you, Mr. Chiperfield.
Chairman MORGAN. MT. Zablocki.
ZAupocxI. Thank you, Mr. Chairman.
It is good to see you, Mr. Secretary.
, believed that a passport bill was urgently necessary, but I am
somewhat puzzled since you say the purpose of the bill is to curtail
the flow and exchange of Communist information. You say our policy
is to encourage visits abroad, but that activists in the Communist
Party should be prevented from going abroad to exchange informa-
tion. I say I am puzzled because evidently we have two policies, one
for passports and one for visas. When we invite the chief boss of
the Communist Party to come to the United States, after having been
visited by several of his lieutenants in one year, this legislation doesn't
seem to make sense.
,MtTRInY. Well, we think it does. The tactical reasons relating
to, or the invitation extended to, we will say, Mr. Khrushchev?the
other two were visits of a different charactex?I think should provide
is with some opportunities to break down a relationship within the
Soviet Union which may be of some value to us.
This is a very large question, Congressman Zablocki, as you know,
and I can only say, and I would rather restrict it to this, that this is
a calculated risk of a tactical nature which we think is fully justified
under the circumstances.
We feel that, for example, this particular individual has many dis-
torted notions about perhaps his own power and relatively about our
power. Just looking at that one aspect of it, I think the impact on
him of direct contact with what he might see over here might adjust
some of his notions and perhaps somehow provide some safeguards
that don't xj.st now.
Mr. ZABLOCKI. Isn't that wishful thinking? After all, he sent
Mikoyan and Kozlov here, and they must have reported to him. How
can we make a further impression upon him?he won't believe what
he sees when he gets here anyway.
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38 PASSPORT LEGISLATION
/fr. MURPHY. I think that the, effect of the visits of Mikoyan and
Kozlov on him were rather good. I don't believe that that was a nega-
tivi; effect at all,
Mr. ZABLOCKI. if that were true, we should have withheld his visit
her e so much longer.
Mr. MURPHY. Perhaps nothing is perfect, but the question of timing,
I agree with you, is very important. This is a calculation and history
ma. prove 'vve are wrong, but I think it will prove we are right,
Now,
about the inconsistency, I am not?
fr. ZABLOCKI. Mr. Secretary, this hearing today is not on the
Khrushchev visit, but it doesn't seem proper when we, for example,
because of public opinion, stop the visit of Tito who had left the Corn-
minform, who had defected, and then we invite the chief boss of the
Co: nminform to come here.
Mr. ilkys. Could I just 'say, Tito has no political value in the United
Ste tes at the moment.
Mr. Mummy. I might also add to that that Tito has expressed his
gr( itt satisfaction on the theory that this can promote some of the
things that we are seeking. He feels very strongly that this is a good
move.
Mr. ZABLOCKI. He probably sees a possibility of his visit to the.
United States. ?
lIr. MURPHY. I don't believe it is connected that way. I think he
is nsigned to the fact he won't--
Mr. ZABLodicr. I would rather see Tito than Khrushchev come here.
' Tam sorry. I have no questions, Mr. Chairman.
Chairman MORGAN. Mrs. Bolton.
Mrs. BOLTON. Thank you, Mr. Chairman.
I am interested in Mr. Zablocki's?
: Mr. ZABLOCKI. Will yon yield for a moment?
"
N. Secretary, I didn't mean that as a personal criticism. I have
a 5 RSOCiOTI you had nothing to do with this visit, or exchange of
vis ts.
Mrs. BOLTON. I live in a community that is violently opposed ta
Kb rushchev's coming and has expressed itself very violently in our
press. When Mikoyan was invited by our fellow Clevelander, Mr.
Crus Eaton, some rather blew up over it.
For myself, I am of two minds. I think this visit different from the
giving of visas and the issuance of passports.
Because of the Supreme Court's decision last year passports can no
longer be refused. This means that many unable to get passports in
the past can go out and get their orders, and bring in messages and
then come back here and use them.
Now, Khrushchev is coming. Perhaps he will see something more
than he expects and believe it; perhaps he won't.
Chairman MORGAN. Mrs. Bolton, what is to prevent them reporting
to I iim here and getting their orders during his visit?
Mr. MURPHY. Of course' in our own country we do have ways and
means of controlling and handling some things that we don't have
abroad. There are some means of access, perhaps.
Mrs. BOLTON. Mr. Secretary, we, of course, have been warned by
Mr:Hoover that the Communists are redoubling their efforts in this
country. Those are their orders and we just fitted into their hands
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very beautifully. But to get to the point of our meeting this morning,
do we not need to reestablish what we thought we had, which was the
power of the Secretary of State to deny a passport to someone whom he
felt was an absolute danger to this country?
Mr. MURP HY. That is the problem. That is the problem.
Mrs. BOLTON. In these bills?we have several, Mr. Hays has a bill,
Mr. Selden, and Mr. Bentley; they are all a little different. All are
very thoughtfully done. I know Mr. Curtis from Missouri has given a
great deal of study to this matter for a year?the whole status of pass-
ports, the history of them and everything else.
It was interesting to me to find some time ago that there had never
been a proper definition of what a passport is. In going over these
bills, would you suggest to us any one of them that would more really
cover what you are hoping for without putting up some other
problems?
Mr. MURPHY. We are attracted by a number of the features in several
of the bills. Certainly Mr. Bentley's bill and Mr. Selden's bill contain
a great deal of most useful provisions as do some of the others. They
are, of course, less comprehensive, more restricted in nature than the
measure we suggested last year, especially our section 103 which relates
to the broader ground of the dangers to the conduct of our international
relations and which gives the Secretary of State a little broader
discretion.
? Mrs. BOLTON. Mr. Hanes went into them most carefully the other
day.
Mr. MuRPHy. Mr. Hanes gave you an analysis with which I agree,
and I won't waste your time by repeating it again this morning.
Mrs. BOLTON. I don't want to waste yours either.
Thank you, Mr. Chairman.
Chairman MORGAN. Mr. Burleson.
Mr. BURLESON. Thank you, Mr. Chairman.
Mr. Secretary, if the Department operated as you formerly operated
before the Supreme Court decision, what in your opinion may have
been the action in granting passports to some of the youths who
attended the Vienna Festival recently?
Mr. MURPHY. This last one?
Mr. BURLESON. Yes, sir.
Mr. Mummy. What we would have done if we had the authority
to deny ?
Mr. BURLESON. Yes, sir.
Mr. MURPHY. Well, I think on balance we might have refused some
individuals passports to go to it. On the other hand, the fact that
this was the first festival held outside the Iron Curtain gave us some
opportunities which we didn't have in the other circumstances and we
were inclined this time to encourage a certain number to go to that
meeting, for reasons that I think will be fairly obvious to you.
Mr. B URLESON. But perhaps there would have been some denied.
Mr. MURPHY. I think there would have been some denied, yes, sir.
Mr. BURLESON. Thank you, Mr. Secretary.
Chairman MORGAN. Mr. Fulton.
- Mr. FuuToN. I am glad to have you here, Mr. Secretary, and I am
very pleased about your personal promotion.
Mr, M CrRP11 Y. Thank you, Mr. Fulton.
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40 PASSPORT LEGISLATION
Ar. FULTON. Second I think Mr. Hanes has done a very excellent
and high level job in presenting this matter before this committee
pr3viously in recommending passage of the passport legislation. I
commend him on that presentation.
Next, I think this visit of Khrushchev's should be put in a context
of an exchange, rather than just a separate, isolated visit.
For example, we have had Nixon go to Russia when Koslov came
here to the United States and came to Pittsburgh, a part of which
I represent in Congress. I am sure that Nixon has done a much
be,ter job on the American point of view than Koslov did on the
Th tssian point of view here.
Secondly, we have had the exchange of Senator Humphrey who
ce-tainly had an influence on Khrushchev, even if he just did tire
hi n out after 8 hours of conversation. Khrushchev certainly would
have a greater respect for our powers of persistence and of talking
afkr Senator Humphrey got through.
I think it was very fine that Governor Harriman went to Russia
and the nine U.S. Governors, and had their impact on the various
Russian officials, as well as the people of Russia. I am one of those
people who thinks we will have a tremendous advantage through
Eisenhower going to Russia as against Khrushchev coming here.
When it is put in the context of what Under Secretary Murphy has
said, that we are in a position where we can get through to the Rus-
sian people and break down the Iron Curtain, I don't think we should
be part of maintaining the Soviet Iron Curtain when we have an
ot ortunity to get through to the people.
These exchanges substitute direct contact and likewise direct ob-
servation for propaganda that has been distilled and ready for
co nsumption.
I have always been one who feels that the Russian people are fine
p( ople. While we disagree with their Government, nevertheless, if
in' can, get through to them, as well as to the people of the captive
naions, we are doing much better.
? There has been a disagreement around this committee table as to
w 'iat to do on the Russian-American cultural exchange agreement
d there is complete disagreement on that U.S. policy among the
various members of the House Foreign Affairs Committee.
As to the captive nations, I have strongly favored food for Poland
and I have been for economic aid for other captive nations. I would
help the people raise themselves and I want to be friendly with them
men though they do have a government that is antagonistic to ours.
I want no disagreement with my good friend, Mrs. Bolton, be-
cause I come from the city of Pittsburgh and our city welcomed
Koslov
Mrs. BOLTON. YOU are not disagreeing with me, my dear boy, I was
just saying what my city felt.
Mr. FULTON. Our Mayor Thomas Gallagher, a Democrat, of Pitts-
burgh, has personally invited Khruhchey to come to visit us.
Our Governor of Pennsylvania David Lawrence, a Democrat, has
personally invited Khrushchev Pennsylvania,
come. Our Democratic candidate
for mayor of the city of Pittsburgh, State Senator Joseph Barr,
a Democrat, has personally invited him.
Also Mr. Paul Reinhold, the Republican candidate for mayor,
h is personally invited him, Our city certainly wants him to come
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and see the industrial power of our city. We are very willing to
trade or exchange Eisenhower on a visit to Russia to get Khrushchev
in the Pittsburgh district and let him see what power we really have.
On this passport cuestion, I have a different point of view. Itlnnk
a passport is the inaerent constitutional right of every -U.S. citizen.
But I think the country has the right to protect itself and that should
be done on placing conditions on exit and reentry permits into the
United States. Does not the U.S. citizen who has committed no crime
have the right to a passport; because I feel there is the right to travel
wherever a citizen might want to go in the world? I have real doubts
under these circumstances whether under the Constitution or any act
of Congress., a U.S. passport can be limited as such. But when the
U.S. citizen or permanent resident comes back in, I would then have
a procedure whereby in certain cases the Attorney General could ex-
amine him under oath to find out what he had been doing abroad con-
stituting subversive and illegal activities. The citizen would then
have to apply for a reentry permit upon returning.. At that particu-
lar time of reentry you then have him violating the law or perjuring
himself if he doesn't tell the truth, or pleading the fifth amendment,
which destroys his power to do damage upon reentry.
That automatically would give most citizens their reentry permit
on leaving the country. But in certain cases they would have to apply
.for it on returning and wouldn't get it prima facie on original
application.
The Attorney General can proceed to a reentry hearing with ques-
tions directed toward evidence that is secret, and by the questions
bring out what this person has been doing abroad against the security
of the United States. He cannot then come right into this country
without screening and he will be very careful in asking for a passport
if he is going to be under oath when he comes back and be put in jail
,on a! criminal or a civil penalty in case he doesn't tell the truth.
In addition this hearing would be a source of additional informa-
tion for the U.S. Government. I am one of those people who feel the
Supreme Court was right under the Smith Act when they said, "You
cannot, on a man's mere intention, find him guilty of something," and
here we are guessing at what a person's intention is abroad when he
asks for a passport.
There are no acts involved yet when the person applies for a pass-
port. We are then guessing at what his intention will be rather than
pinning the person down after the fact of his activities against the
security of the United States, when he seeks to come in under a re-
entry permit. And that is the reason I think we should have a new
look at this passport legislation to see if such a reentry hearing provi-
sion should not be added. I hope you will consider it.
Chairman MORGAN. Mrs. Kelly.
Mrs. KELLY. Mr. Chairman, at this point, in view of the question-
ing, I wonder whether it is even wise to continue these hearings for
the rest of ,the session.
My .question is?and I quote from the statement of Mr. "t Murphy, his is a calculated risk of a tactical nature which we think is full;
justified under the circumstances"; "this particular individual has
many, distorted notions"; and "the impact on him of direct contact
with ,what he might see over here might adjust some of his notions"?
. ?
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-tomiii'g to this country, would it be a good risk to permit American
citizens to travel to Russia in hopes that their distorted views might be
changed?
Mr. MURPHY. If you have probably little faith in the convictions
.cf our citizens, that might be true. I don't. I think that the average
American traveling abroad is a pretty good ambassador, Mrs. Kelly.
I have not met very many who have been disturbed in their funda-
mental concept of our system of government by a visit to the Soviet
Union.
Mr. HAYS. I think she meant just the reverse.
Mr. MURPHY. No, I thought she meant Americans going abroad
;being affected by what they saw and heard.
Mrs. KELLY. No. That their distorted views might be corrected by
'this visit to Russia.
- Mr. MURPHY. You are talking about their distorted views?
Mr. HAYS. Certainly if anybody believed communism was much
'good, certainly a trip to Russia would convince them it wasn't so, hot..
.Mr. MURPHY. Of course, that is part of our policy to promote travel
;abroad.
Mrs. KELLY. Then would you permit these people who have lean-
'i:'igs to go to Russia?
r. MURPHY. I am not talking about leanings at all. I am talking
about activitists and there are very few. Sometimes a single one can
be of great danger.
,After all, if the Germans had not given Mr. Lenin a laissez-passer
,t9 return to the Soviet Union, we probably would not have had the
oviet Revolution in 1917. That is the case I am talking about. I
'anti not talking about the man who might have ideas on the subject,
r views. He is entitled to those. .
,We are not restricting his travel at all. I am talkincr. about activists,
and, as you know, the number of activists who have been refused in
he past have been very few. That is the only thing we are striking
t. in this measure.
-Mrs. KELLY. That is all, Mr. Chairman.
Chairman MORGAN. Mr. Adair.
!, Mr. ARAI% Mr. Chairman and Mr. Secretary, in the last Congress,
the Department in my opinion made a very strong case for legislation
-tf this sort. I think you have done so again in this Congress. I
on't have a question, but I do have a statement of position. I think
that the Secretary should have the right to exercise his discretion.. In
my opinion this committee and this Congress have an obligation to
enact such legislation. I think a good many of these other arguments
'against passage of legislation at this time are more or less in the
r ature of shadow boxing and I just want to say for myself, I think
TO should pass such legislation.
].That is all, Mr. Chairman.
" 'Chairman MORGAN. Mr. Hays.
Mr. HAYS. Mr. Chairman and Mr. Secretary, I might say I presume
yell are apolitical but if I were a Republican I would take exactly
the position Mr. Adair has taken because that way you can milk all
the good out of both sides of the question. You can fight communism
tri'the one hand and go home and make speeches about how you get
--s .passport bill to help control communism and then you can permit
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the No. 1 activist in the world to visit the United States and get all
the propaganda value you can out of him to run your favorite candi-
date for President in 1960.
Now, of course, being a realist in politics, I know that the issue in
1960 may not be Khrushchev because the American people have a
happy faculty for not remembering much of anything politically
longer than 3 weeks, and it is a good thing because if they did they
would probably all go crazy.
So this whple business may be premature, but nevertheless, let's face
it: If it is a danger to have an American activist go to Russia, it must
be 10,000 times as much danger to have the No. 1 activist come over
here, and I will tell you why: If lie makes as big a monkey out of
Eisenhower as he did out of Nixon on television?and that is con-
trary to what the press carried, but I saw the film clips myself, and
he was like Wallace Beery in the old movies; nobody wanted to play
in a movie with him because he stole all the scenes, and that is what
this fellow did.
You didn't know Nixon was, there, and I will say to you unless the
President's speech writers do a better job than they did on the Lan-
drum-Griffin bill and some other bills' and unless his attendants keep
both shoes on him instead of one golf shoe and one regular shoe, while
IQuushcliev is here, this country may suffer grievously.
In all fairness, if I were chairman of the committee, I would an-
nounce, in order to avoid embarrassing the President, I wouldn't hold
any more hearings on this bill until after Mr. Khrushchev had gone.
Now, I didn't use my 10 minutes to make a. speech, and I guess we
are given 10 minutes from some of the previous speeches that were
made, but I just thought, in view of the fact that there were some
speeches made, I might as well get mine off my chest.
..That is all, Mr. Chairman.
, chairman MoRaAN. Mr. Bentley.
Mr. BENTLEY. Mr. Secretary, I would like to clarify one of your
remarks about some of the bills before us.
You gave the impresssion a couple of times that you felt that both
my bill, 7006, and Mr. Selden's bill, H.R. 55, lacked the comprehen-
sive wording which the Department would prefer.
Inasmuch as Mr.. Hanes strongly supported my bill in his testimony
the other day, I wondered if you felt that my bill also lacked compre-
hensive legislation, insofar as the Department was concerned?
Mr. MURPHY. I referred to language in our bill last year which
appeals to us a great deal, Congressman Bentley.
,I relates simply to that one section; persons to whom passports
could..be denied. "Persons as to whom it is determined upon substan-
tial grounds that their activities or presence abroad or their possession
of a passport would be in violation of any law of the United States or
of any State or Territory or any orders of any court," and then this
wording, "or seriously impair the conduct of the foreign relations of
the United States."
The third provision: "or be inimicable to the security of the United
States."
, That wording, we think, is valuable.
Mr. BENELPY. I was interested, Mr. Secretary, because when you
testified before the other body you strongly supported a bill which
was identical to mine.
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3.tr. MIMPHY. I thought I said that we did like your bill, we liked
Mr Selden's bill, we liked both of them. It is only on that point
wlure we would feel that that,could be somewhat of an improvement.
If we cant get that language, obviously we would be very happy to
have your measure. This is not intended to be a criticism of your bill,
but it is something which the. Secretary also should have, this broad
discretion.
Mr. BENTLEY. Since everybody is talking about the (Treat 'visit
no t month, I suppose I should say something about it, too.
You spoke of the possibility that Mr. Khrushchev might be strongly
pressed with what. he saw and learned while he was in the United
States.
I assume you have taken into consideration a possibility that his
ie63ption over here in some of our larger cities where there are certain
$ro tips Which are not exactly pro-Communist and pro-Khrushchev
itt their feelings, a reception such as was experienced by Mr. Mikoyan
last winter might, if such a reception actually prevailed, it would go
far ?toward destroying any good impressions or good feelings that
he iaiglit have concerning this country.
MuRrnY. We appreciate there are elements of risk involved.
her 3, Congressman.
I didn't know, Mr. Chairman, whether you wanted me to get into
?,ichaustive discussion of this subject or not I was not sure it Was
oriaaribio this issue. There are a great many aspects to it. We feel
the :13 is a good 'deal of fermentation going on both inside the Soviet
Union and the satellites. How are we going to capitalize on it'? Not?
tertifinly, by just making speeches over here.
One of the aspects of it inside the Soviet Union is the discipline
they are able to maintain, some of which is generated by the notion
that. s conveyed to them every day through their press on the radio,
by party activities of different sorts, that they are under imminent
dar ger of attack from the West.
Now, if that notion on the part of the Soviet people and popula-
tioii?and, after all, regardless of party ideology, there is a great
deal, of sheer patriotism left inside the Soviet Union?sweeping aside.
party politics, the party politics?the average Russian is a very
patriotic individual who will come to the defense of his motherland.
Now, if he is convinced that his motherland is about to be attacked
any_ 'lay by the West, and especially the United States, his suscepti-
bility to discipline at home is enhanced.
If that notion were dispelled, I would think that the Soviet leader:.
ghi7 would have a great deal more difficulty than they would have
tOday maintaining the 'internal order that they do.- That is just one
kspeet of this problem.
13iNTLEx. If I can just interject there, sir, I am speaking of the
p6s3ibilit,y, and I feel it is a possibility, of actually either violence
lateriipted violence during his tour of the United States.
Now, we all recall how indignant we as a people were when things
happened to the *Vice President during his tour of South America.
Now, can you imagine the reaction on the part of the Russian people,
to F. ay nothing of Mr. Khrushchev, himself, if such should take place,
I say has that consideration been given serious thought before
thic invitation was issued?
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Mr. MuRPHY. Very much so, Congressman, it has. We appreciate
that that is an element of risk. I suppose you could put it in a sense
that you can't make omelets without breaking eggs. Occasionally
YOU do have to take a risk. That is a risk involved.
I might say every conceivable precaution will be taken to prevent it
if we can. Every effort will be extended. He is willing to take the.
risks.
Mr. BENTLEY. Does he know the risks?
Ur. MURPHY. I think he is aware of them.
Mr. BENTLEY. Do you think so?
Mr. Moil my. I would think so, yes.
Certain1T Mikoyan was and certainly Koslov was, and I doubt very
much that he is not.
Mr. BENTLEY. I would like to come back to another question, but
I imagine my time has expired.
Chairm.a MORGAN. You have 1 minute.
Mr. BENTLEY. I would like to ask if you can, insofar as this is an
open hearing, tell us quickly what damaging actions, that you could
put on the record, have occurred during the past year by people to
whom you Otherwise would refuse a passport who have been abroad?
Have people been in Vienna who have endangered the foreign policy
of the United States?
What can you put on the record to give us concrete reasons for
haying this legislation?
Mr. Mummy. I would think the attendance of, I believe, four
American Communists at the party congress in Moscow was as good
ah example of what we are driving at as any. We know that these men
Are adtivists ; we know that their conversations would relate to sub-
versive activities in this country and we feel that their personal
presence at the party congress in Moscow was a great boon to them
and to the party effort.
Mr. BENTLEY. Excuse me just a minute, Mr. Secretary.
I think it would be helpful, Mr. Murphy, if you could furnish for
the record some concrete, specific examples of such instances. I say
I realize, much of the subject must be classified, but what you can give
us for the record I think would be helpful.
Mr. MURPHY. I will be very happy to.
(The information requested is as follows:
I Since rune of 1958 a considerable number of old-line, hard-core Communist
Party members have come forward to get their passports. Some of them ap-
Parently have no present intention of traveling but want to be in a position to
do so in the event the party decides they are needed someplace abroad.
Communist Party activities involving travel abroad have taken a noticeable,
upturn during the last year.
The D,partment has received information which shows a rather clear disposi-
tion on the part of Communist passport recipients to disregard the geographical
restrictions in their passports. A number of such persons who, under our
invalidated regulations would not have received passports, have, on receiving
them, gone almost immediately into areas for which their passports are not
valid. ,
It is difficult to estimate the extent to which the Communists have taken
advantage Of the gap in our system of laws designed to safeguard the national
'seciirity since the Supreme Court decisions of June 1958. A large number of
apPlications have been received from persons about whom the Department
has some evidence of Communist affiliations. This number, of course, is increas-
ing daily. 'Under the Department's previous regulations the record of these
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pert one' activities would have been scrutinized very carefully and further
Inquiries would have been made where necessary. There is no doubt that a
subirtantial number of them would not have received passports under the
procedures previously in effect Some undoubtedly would have turned out to
be tligible under the regulations and would have received passports. It is iin-
postible to make an accurate estimate of the number in either category, however,
since the Department does not feel that it can justify the time and the trouble
Involved in endeavoring to determine the extent of a person's connection with
the Communist conspiracy when it can no longer deny passports on such grounds
in any event.
The information the Department happens to have already available, of course,
var. es in each individual case. Some have previously applied for passports and
were turned down; others are notorious or avowed members of the Communist
Party; a great many others are persons about whom the Department has only
fraymentary information. Some of the latter group might, on further inquiry,
twit out to be no longer involved in Communist activities or relatively harmless
Jolt ers or dupes. However, others might well turn out to be extremely dangerous
Communist activists.
It should be emphasized that there is presently no congressional authorization
ena'iling the Department to deny passports to any member of the Communist
Party, U.S.A. Any or all of them, those who have not already done so, could
Come in tomorrow and receive their passports merely by demonstrating their
cithenship, except in the unusual case where they might also be a fugitive from
Justice or a law violator. Thus, a major aspect of the present danger is the
tottl effect on the orderly conduct of our foreign policy and our national security
involved in the completely unrestricted travel of as many proponents of the Com-
munist conspiracy as it determines -lb have travel. The outside bounds of this
loophole in our defenses are entirely up to the Communist apparatus to set.
he Communists have not hesitated, where their purposes could be served., to
tak full advantage of the opportunity open to them.
For example, James Jackson, a member of the Communist Party since lf133,
? and a member of the National Executive Committee of the Communist Party,
recttlitlY went to Moscow. to address the 21st Congress of the Communist Party
a I he Soviet Union as an official representative of the Communist Party of the
United States of America. While there, he excoriated the United States in
stat emnents which, of course, were widely publicized by Radio Moscow. Jackson
tolc ,the Department on his application that he' wished a Passport to visit France.
nitre is no formal hadicatien of what altered Jackson's travel plans; but, in
any event, his mission was made much easier and his travels more convenient
by the valid U.S. passport he had with him.
:be general manager. of The Worker, William Lorenzo Patterson, is at present
a hilder Of a valid U.S. passport Patterson, who runs The Worker and :for years
headed the Civil Rights Congress, has recently admitted under oath before a
'committee of the U.S. Senate that he was presently a member of the Communist
Pax ty. That Department does not know whether Mr. Patterson has yet traveled
or vhere, although his passport application listed various countries in Europe
and the Soviet Union. On previous trips abroad, howeVer, Patterson was in
dome contact with Communist Party functionaries Of Other cOuntries."
witt Louise Strong, a life-long Communist, who had been previously denied
pas Tort facilities, traveled from MOS ow into Communist China in Lite 1958,
Whcre, according to the Department's information, she has for months now
Participated actively in Peiping hat America campaign."
Ube recent efforts of Harry 'Bridges to further his influence among labor move-
ments of the maritime nations could, in the event of Communist-inspired aggres-
sion in the Far East or elsewhere, be a matter of graVest concern to this Govt,rn-
nient: The Department feels that these efforts were facilitated when it was
xeqiired to afford him passport fticilitits. Mr. Bridges, aceording. to our reports,
tra clod to stich places as Tokyo and East Germany which were not included
In the itinerary' he furnished the Department on his passport application.
The Communist-sponsored seventh World Youth Festival, held in Vienna,
Auttria, from July 26 to August 3 of this year, was one of the latest Soviet
effcrts to reap political and propaganda dividends. Intensive preparatory steps
?weip undertaken by the Soviet -Controlled organizations behind this festival
-ark', Within this country, all possible efforts were made to assure control over
the approximately 350 Americans who were expected to attend the festival.
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Fortunately, many of the young citizens who attended the festival were loyal
Americans. Others, however, including many who were prominent in the festival
organization and planning, were strongly pro-Communist and devotees of this
'Soviet propaganda show.
Among the Americans at the festival were youths already well indoctrinated
along Communist lines. One festival participant had a background of active
affiliation with the Labor Youth League and was associated with numerous
Communist front organizations. This person has been prominent in the forma-
tion of a Communist Party youth group and was in attendance at a Communist
Party function.
Another festival delegate, and one who was active in forming the American
delegation, received previous organizational experience through the formation
of a Marxist-Leninist organization under the authorization of a State Com-
munist Party committee. This person has been active in Communist Party
youth activities and reportedly is a member of the Communist Party.
A close relative of a prominent Communist was also a festival participant.
This person's background includes close affiliation with Communist youth organi-
zations and association with Communist-front organizations.
? Two other persons, who attended the festival, have been affiliated with organi-
zations created and dominated by the Communist Party for the purpose of
attracting and indoctrinating American youths. One of these persons was a
member of the executive committee of a Labor Youth League club.
These cases illustrate the type of youths selected by the Communists to repre-
se'lit the United States. The impressions they created and the impact of their
action S are not easily gaged but they, and the others so trained and instructed,
had as their purpose the discrediting of the loyal Americans who were present
and, in every way possible, the embarrassment of this country, its policies, and
its leaders.
,
Although concerned regarding the attendance of these and other persons at
the festival, and fully aware of their Communist backgrounds and activities,
the Department of State was nevertheless unable to deny any of them passport
facilities.
There are set out below additional illustrations of the kind of individuals
who have received passports subsequent to the Supreme Court decisions of
June 1958.
CASE NO. 1
This person is a charter member of the Communist Party (CP). He founded
and is president of International Publishers Co., Inc. He has held many top
posts in the Communist Party during the past 30 years. He is believed to have
acted as liaison man between the Communist Party and high ranking Soviets.
He was a delegate to the Fourth Congress of the Communist International and
has attended numerous high-level convention, conference, and committee meet-
ings of the Communist Party in Russia, Germany, Canada, Mexico, France, and
Cuba.
CASE NO. 2
?
This person has been identified with the Communist movement since the mid-
1930's, and has been an elector for the presidential and vice presidential candi-
dates on the Communist Party ticket. This person was reported to be a Com-
munist Party member in Trieste, Italy, during the 1950's. In 1956 this person
allegedly effected the transfer of funds to the Communist Party of Trieste.
CASE NO. 3
This person has been Identified as a charter member of the Communist Party
and is known to have been active in the Communist movement for the past 20-
odd years. He was a delegate to the All-Slav Congress in Belgrade, Yugo-
slavia, in 1946.
CASE NO. 4
?
This person, in 1949, was a witness for the defense in the case of the U.S. V.
William Z. Foster, and testified that he was a member of the Communist Party
and had joined the Communist Party in 1929. He also testified that he had
held numerous posts in the Communist Party, including membership on the
national committee. In 1950 and 1954 he attended Communist Party meetings
and conventions outside the United States. He has been recently characterized
as one of the most important functionaries of the Communist Party.
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CASE NO. 5
This person, a member of the Communist Party for many years and once a
ft 11-time paid functionary of the Communist Party, has also been active in the
affairs of the Communist Party i England. in recent years.
CASE NO. 6
This person, who has been identified as having held Communist Party mem-
bership under another name, has recently served as the private secretary of a
pr nninent member of the American Communist group in another country;
CASE N0. 7
'04is person, who previously served as executive secretary of a Communist
Parry unit in New York, has reportedly toured the world as an internatimal
Lo umunist courier.
CASE NO. 8
T,11.iS person, allegedly a Communist Party member, was active in Communist-
InsPired front organizations and while enjoying the benefits of a U.S. passport,
Is reported to have attended; an espionage training school abroad. She violated
th? travel restrictious in her passport during 1955 when she traveled in Poland,
Czqhoslgvalia, and the U.S.S.R. While residing abroad, subject married a
C9_34111/11114 .vJgcial of a foreign country and reportedly will seek to bring this
person to the United States.
' CASE 40, 9
This person reportedly held a previous assignment which involved furnishing
inforntation to officials of a Communist country as to the names of persons in
thil country who were active anti-Communists and who had relatives behind the
'roil' Curtain.
CAM NO. 10
This person has a long history of Communist Party activities, having served
OS IC Communist Party functionary. She is reported to have visited Guatemala
In ] 954 and obtained information for the use of the Communist Party, U.S.A.
CASE NO. 11
Tals person previously traveled to Communist China, the Soviet Union,
Polind, and Czechoslovakia in violation of the restrictions in his passport. [le
Nett" d as a delegate to the so-called Peiping Peace Conference, after which he
COM. (fined the United States for engaging in germ warfare.
CASE NO. 12
'Buis person has been active in the Communist Party over an extended period
of t me, serving as a Communist Party functionary. She previously has at-
tend 3d a number of Communist-sponsored international conferences on both
side a of the Iron Curtain.
' PASS No. 13
TI is person joined the Communist Party as early as 1924, and was, at one
time, involved in a scheme of counterfeiting for the purpose of financing Soviet
esph nage. Using the birth certificate of a dead Communist, he obtained a pass-
port under the name of the deceased and used this passport in furtherance a
the counterfeiting scheme. Fortunately, he was apprehended, tried and con-
Tietel, but throughout his trial Communist Party financial assistance was pro-
-Vide( . The Communist Party reportedly considered this person extremely
loyal and following his conviction continued efforts were made to effect his
release. He has now received a 'U.S. passport and is free to travel abroad
whet .3ver he may bp ordered by the leaders of the Communist conspiracy.
oASX No. 14
Th ..s person, with a long record of Communist affiliations, has resided abroad
for a extensive period and has traveled throughout Western Europe, behind the
Iron Curtain and in Communist China repeatedly ignoring travel restactiotts
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imposed on his passport. He has continually criticized the United States as en-
dorsing "slave labor" camps in the South. While visiting Communist China, he
falsely charged that Chinese students were being forcibly detained in the United
States. In speeches and writings he loudly praised Communist Chinese "ad-
vancements" and castigated high U.S. officials for what he termed discriminat-
ing actions against the Negro population. Much use was made in the Com-
munist press of this person's attacks on the United States.
CASE NO. 15
This person, a longtime member of the Communist Party, is a specialist in
the organization and recruiting fields. He has been extremely useful to the
? Communist Party over the years. Because of his organizational ability, he
was transferred, apparently under Communist Party orders, to various sections
-of this country where he was able to supervise and direct Communist Party
activities and members. He now has passport facilities and is free to extend
his activities abroad.
Chairman MORGAN. Mr. Selden.
Mr. SELDEN. Thank you, Mr. Chairman.
Mr. Secretary, you know of my interest in this legislation. Also,
you are aware that we were able to get through a bill last year that
we felt was about the strongest we could get out of this committee un-
der. which the Department could operate.
My bill, H.R. 55, is identical to the one that passed the House.
Had that legislation been enacted into law, would it have been pos-
sible to deny a passport to a person such as James Jackson, the sec-
retary of the American Communist Party National Committee, who
spoke in Moscow last March?
Mr. MURPHY. Mr. Congressman, could I ask?I am not as well ac-
quainted with the details of these bills as perhaps I should be?the
words "on the record," did they appear?
- Mr. SELDEN. They did appear.
Mr. MURPHY. I think that would make it rather difficult for us to
perhaps sustain it in the courts. We would have refused, had we had
This legislation?the denial would have been made. Whether it
would have been sustainable in the courts in the light of that lang-
-uage, I am. not sure. That is a question we would have had to test
.out in the courts. I think the addition of those three words "on the
record" would have made it much more difficult. ?
Mr. SELDEN. However, am I correct in assuming that you could
have denied him a passport?
Mr. MURPHY. Yes, sir, and we certainly would have denied it.
Mr. HAYS. And it would still be in the courts, no doubt, since last
March if you had denied it. He wouldn't have been there, in other
words.
Mr. MURPHY. That is right. He would not have gotten a passport.
Chairman MORGAN. Mr. Secretary, would you permit me to call on
.Mr. Becker for his opinion?
STATEMENT OF HON. LOTUS BECKER, LEGAL ADVIStR,
DEPARTMENT OF STATE
Mr. BE(3KER. I think those words "on the record" might be inter-
preted by the court as requiring us to furnish the confidential infor-
mation that we had. I think our attitude as a matter of policy, nev-
ertheless, would have been to refuse to furnish it.
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Mr. SEt,nEN. Would it have taken a great deal of confidential infor-
mation as far as this particular person was concerned?
Mr.. BECIiER. I kiiow he made a very inflammatory speech while he-
was. in Moscow, I,r?the speech myself. You always have a little.
concern when you rely solely upon statements because a citizen here.
has a rather when,
leeway as to what he can say in the United States
and fundamentally there would be some question as to whether you
would rely solely upon the type of thing he could say in the United
States. It is certainly bad taste and he is not a good citizen to say it,.
but that is why we continually refer to these people as being activists,
an4:the,b.illS, as I understand them, require us to have some evidence
:Mr. SELDEN. I might say that I have a copy of this speech, and T
wctild like, Mr. Chairman, with your permission, to insert it in the
record.
Chairman MORGAN. Without objection, it is so ordered.
'(The statement is as follows :)
EXT. pp ADDRESS BY JAMES JACKSON, NATIONAL EXECUTIVE COMMITTEE,
AMERICAN COMMUNIST PARTY, IN MOSCOW, MARCH 1959
.Ler cQuarades, on the authority of our national executive committee and on
beialf of? our delegation, I bring you the heartfelt greetings of the Communist
Party of the United States. [Applause.] Comrades, if President Eisenhower
cou'd say in truth what Premier Khrushchev stated as a simple matter of fact?
tha there is not one, political prisoner in the country?several of our comrades
might be here to greet you on this extraordinary occasion; our national secre-
tar3,. Comrade Eugene Dennis, our honorary chairman, Comrade William Z.
Fos.,er, Comrades Hobson, Flynn, Davis [three names indistinct], and others;
alsc our dear Comrades Henry Winston and Joe Green, who still languish in
Fed 3ral prisons in our country.
BAti in its conception and scope, valiantly practical and attainable in ecell
of P.s parts, Nikita Khrushchev's thesis for the 7-year plan has already attained
the stature of a historic document. This distinction is assured it by the entliu-
Stas',ic rally of the whole Soviet people pledged to carry to fulfillment without
pause? its inspired proje(Aions for the comprehensive development of their coun-
try nid the possible further enrichment of their own material and cultural life.
The, parallel [several words indistinct] the successful fulfillment of the con-
trol figures of this great program of construction, production, and cultural
advance will carry the Soviet people and the U.S.S.R. past all [records] ever
attained by capitalism, and onward into communism. [Applause.] Commu-
nistF. the world over will welcome the ideological contributions and profound
insight in Comrade Khrushchev's report for the solution of a number of problems
of tie struggle for peace, democracy, national freedom, and socialism.
Speaking for the central committee of the CPSTJ, and in the name of all peoples
of tip U.S.S.R. Comrade Kbrushchev has vowed before the whole world: "For
our we shall do everything in our power to insure peace throughout the
world." The challenge of the CPSU to the fraternal Communist parties every-
where is to work harder for the preservation and strengthening of peace.
The Communist Party of the United States of America will find great inspira-
tion and .powerful moral support in this challenge. Rest assured, comrades,
that we shall not spare ourselves in the struggle to prevent imperialist adven-
turers and a handful of monopolists?the merchants of death?from pushing
our cauntry into a war whose outcome could only result in our national oblivion.
[App'ause.]
Ce] tam n imperialist circles within our country have brought great shame upon
our c3untry in Latin America, the Middle East, Hungary, and elsewhere. The
leade of our , people, ILAvever, are increasingly s: ruggl i lig to remove these
stainu from our national honor, to establish a new course in foreign affairs, to
repla,* brinkmanship with peace, economic blackmail with fair trade practices,
enmity against the countries of socialism with new relations of friendship and
coexilitence.
I know, comrades, that there is much sympathetic curiosity among the fraternal
parth s concerning the situation of the Communist Party of the United States cf
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America. Suffice it for me to say, comrades, our party lives. [Applause.] It
is among the masses and associated with their daily struggles for jobs, liberties,
and peace, and its prospects for growth and influence and numbers are real
prospects.
Our party has withstood severe persecution at the hands of the Government;
It has cut out the ulcers of revisionism from its leadership and stopped the
internal bleeding. Now, having extricated our party from the slimy grasp of
the revisionists, our leading committee is firmly determined not to yield it into
the hands of sectarians and dogmatists. We are building our party in the firm
principles of Marxism and Leninism. [Applause?Ed.]
Comrades, I wish now to read the letter of greetings sent to the 21st Congress
on behalf of the national committee of our party:
"The 21st Congress of the CPSU is a momentous event of great significance
to the peoples throughout the world. It is a fitting prelude to the congress that
its opening is preceded by new Socialist achievements in every sphere [as
evidenced], by the great new advance in the conquest of space with the launching
o Aleehta. This epochal accomplishment has led to the greatest of admiration
and respect among the American people, no less than among others. The new
7-year plan which the congresses will act upon is of historic significance. Not
only is It a huge step forward in the building of communism in the U.S.S.R., but
It will also have a tremendous impact on all peoples as a further demonstration
of the enormous potential contained in the Socialist organization of society.
"To American workers, faced as they are by the chronic problems of mass
unemployment and economic insecurity, it holds forth the living example of
how a socialist society can provide full employment, rising living standards,
and a securing of a richer life for all. For the Negro people?striving to
throw off the shackles of discrimination and oppression and to achieve a stan-
dard of full equality, the equality and freedom of all nations and nationalities
of the Soviet Union, participating side by side with the builders of commu-
nism?the new plan has a very special meaning.
"To millions of Americans, the widening prospects of trade with the U.S.S.R.
and other Socialist countries which the new plan will greatly enhance, is a
growing [instance] of the prospective source of increased production and em-
ployment. Among the American people there is a growing awareness of the
signal importance of the projected 7-year plan in relation to the securing of
peace and peaceful coexistence.
"The peace sentiments of the American people were demonstrated anew in
the elections of last November, in which the voters expressed the demand for
an end to brinkmanship and their desire for peace and friendship among
nations. The sentiment for American-Soviet friendship and peaceful negotia-
tions has received a great impetus from the [several words indistinct] and from
the aid and support for the people in their struggle to end colonialism; and in
that sense [word indistinct] also by the growing number of exchanges in busi-
ness, cultural, scientific, political, and other figures between our countries, not
the least of them the noteworthy visit to this country of Deputy Premier
Anastas Mikoyan.
"On the occasion of the 21st congress, the Communist Party of the United
States extends its warmest fraternal greetings to the great CPSU which,
boldly applying and developing the principles of Marxism-Leninism [applause],
is leading the Soviet people to ever new socialist accomplishments and onward
to communism. May friendship between the Soviet and the American peoples
continue to grow. [Applause.] May our two countries go forward in ever
closer amity and peaceful competition to the solidarity of the working peoples of
all countries and the fraternal relationship of the Communist and Workers
Parties for ever stronger [word indistinct] in the cause of peace, democ-
racy, and socialism.
"For the National Committee of the Communist Party of the United States,
signed: Eugene Dennis, national secretary; Robert G. Thompson, executive
secretary."
Mr. HAYS. What you are after, in other words, is a bill that will
let you have the sole power down at State, without any judicial
review to deny a passport. That is what you really want, isn't it?
Mr. BEcicErt. Well, Congressman, I don't think it is quite that
broad. As you study the bill, I think you will see that in there there
are some pretty substantial safeguards
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- Mr. HAY. This came out tas,t year and your man then?I think his
in me was O'Connor?flatly admitted that it was true. What you
wanted last year and what I understand you want this year, you
want the power, if someone_ goes to court, to go into the court and
.say, "Well,. we denied this, Your Honor' and we can't tell you why
-we denied it. It is against the interests of the United States and
night wreck our security system, so you have no recourse, Your
:n)4or, but to take our word for it and go ahead and deny it."
144 other words, you object, according to Mr. Hanes, to the passage
in my bill that lets the judge make this decision. I happen to have
confidence inthe judiciary, and I might say a good deal more than I
4ve ? ,U.rjanes and his Office, because, after all, the judiciary goes
igh a great deal more of a screening?and this is nothing personal
nst Mr. Hanes. I am fitlking of the Office as such and him and
hi3 predecessors and successors, whoever they may be, and whatever
the administration may be.
Mr. Muiwiry. We appreciate your point very much and basically
sympathize with it,. but we are in the situation where, except to give
a 3ammarY of the information, we can't go any further because the
agencies that obtain this information simply won't let us. I mean
it is just a fact of life.
Mr We simply won't be able to make a case under those circumstances.
Lpft just as simple as that.
r. HAYS. Well, if the judge decided that your summary Shouldn't
be given, then I think you would be safe; and I think if the. judge
thought that it would violate your contacts with your agencies, he
would, but I would rather have the judge make that decision than for
_yea to make it That is all I am interested in.
Mr. MURPHY. We would provide the 'summary, Of course, in each
? ca
SELDEN. Mr. Secretary, under the bill H.R. 55?if a passport
,oenieo underthe provisions of Ha 55, don't you think that
it wonld have the effect of .disconraging applications of many of the
people who are now getting passports?
.Mr. MURPHY. I am sure of that and many would Probably not
..at ply at all.
Mr. SELDEN. SO it would have the effect of denying many of these
pe3p1e passports who are now getting them and whose presence abroad
-co lid be harmful as far is the security of this country is concerned?
IL.. MURPHY. Certainly that is true, Mr. Congressman.
SEWEN. Thank you. .
. Chairman MORGAN. Mr. Wainwright.
Mr. WAINWRIGHT. Mr. Chairman, as usual, I am sorely, tempted to
rebut my distinguished colleague, Mr. Hays' who managed to bring in
thoelection of 1960 and the President's golf shoes.
Mr. HAYS. I will take it up with you if you can get some time on the
-lie:Works, which you people seem to control. I would be happy to.
:gr. WAINWRIGHT. I knew I would get a rise.
Mr. HAYS. You can take Rockefeller, Nixon, and the whole crowd.
Mrs. BOLTON. Regular order, Mr. Chairman.
Chairman MORGAN. The regular order is requested.
'Mr. WAINWRIGHT. Because of my belief in , regular order, I will
-pa 3S, Mr. Chairman.
Chairman MORGAN. Mr.. Fountain.
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Mr. FOUNTAIN. No wstions, Mr. Chairman.
Chairman MORGAN. Mr. Coffin.
Mr. COFFIN. I just came in, Mr. Chairman, and I will pass.
Chairman MORGAN. Mr. Farbstein.
- Mr. FARBSTEIN. Mr. Murphy, sticking to the issues, I would like to
inquire of you whether or not you wouldn't equate denial of a pass-
port with the approbrium that is attendant to the commission a crime
or perhaps even worse?
' Mr, Muartry. Well, that is a question of opinion. I am surethat
a respectable American citizen would consider it at least a great
indignity, but I have a feeling that this does not apply to that type
of citizen. The type citizen we are referring to is not in our opinion
a loyal, dedicated citizen of the United States of America.
Now, if that is true, I would question whether his sentimental
reaction is a matter of a great deal of interest to us.
Mr. FARBSTEIN. Aren't our criminal laws passed just as much to.
protect the innocent as to convict the guilty?
Mr. MURPHY. They certainly are. I do not regard this in the
same nature as a criminal penalty, however. There is a distinction.
Mr. FARBSTEIN. I regard it as worse than a criminal penalty. Un-
less a man or woman is a traitor to his country, you will give him a
passport; when you deny him a passport in my opinion it is the
equivalent to calling him a traitor.
Mr. MURPHY. I should think that would be reflected in our statutes
then, Congressman. As I see it, it is not.
Mr. FARBSTEIN. From a technical standpoint, is
are correct, be-
catis6 the penalty for treason is greater than it s for larceny. But
nevertheless, in my opinion the approbrium attached to the denial
of a passport?except to the individual to whom it doesn't mean any-
thing?would be the equivalent to being called a traitor, and that is
the man I am seeking to protect if he is an honest and decent citizen
and also a patriotic one.
Now you talk of activists. Your file, therefore would contain
facts which would disclose a situation of activity?Communist activ-
ity. I doubt that there would be a judge in this country to whom
a file of that nature was presented that would permit the issuance
of a passport. Do you deny that fact?
Mr. MURPHY. Well, it is a question of the willingness of the agen-
cies involved who are obtaining this information. That is the practi-
cal point of our difficulty.
Take, for example, in breaking a code. It would be extremely
difficult to get any agency involved in that procedure to be willing
to divulge to anybody outside the executive branch how that informa-
tion was obtained and we wouldn't ask them to do so. We would
rather let the case go. We just can't make a case on that basis, Con-
gresSrnan.
Mr. FARRSTEIN. Against that you are getting no passport legisla-
tion at all.
Now if you weigh these things in the balance I would imagine
you would be of a mind to trust the judge to determine any ques-
tion in the event that a man takes an appeal from the denial of a
passport. If there were an appeal taken by an individual who was
denied a passport, in that situation it appears to me it would not be
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deleterious to the interests of our Government if that file were opened
to a judge to determine whether or not a passport should be issued.
Now basically and fundamentally, I don't think that you will have
any disagreement here at all. Everybody wants a bill, but we want
the right type of bill, and it is a question of what is right and what
I am inclined to believe for myself that it wouldn't be harmful to
oar intergs if we allowed a judge to look at a file in the event that
-a man appealed from a denial of the issuance of a passport. By the
same token I don't think that the State Department itself should be
tLip only one to determine whether or not a passport should be issued
Should not be issued. There should be a higher forum. That is
my reaction to it.
ADAIR. Would the gentleman yield?
Mr. FARBSTEIN. Yes, of course.
Mr. ADAIR. How would the gentleman limit inspection of this file to
the. judge? Would he deny the rights of inspection to counsel then?
Mr. FARBSTEIN. Of course, he would deny it.
. If you will read the Hays bill? the Hays bill says only in the event
an appeal is taken from the denial of a passport, if the judge, on the
face of it, feels that there is sufficient basis for the denial, he will
deny the application.
If, on the other hand, he feels that on the face of it there isn't suffi-
cient evidence to deny the passport, he then would take upon himself
the right of examining the file to determine whether or not there is
basis for the denial of that passport. I don't think thereby any in-
terest could possibly be harmed?a lot of good could be done? and the
determination would be Q. fair one,
Mr. ADAIR. If the gentleman will yield again, my point is specifi-
cally that in your contemplation no other individual, no matter what
his papacity, would have the right to inspect that file?
Mr. FARBSTEIN. That is absolutely correct.
:. Mr. ADAIR. That it is turned over to the court?
-? Mr. FAusrnix. That is comet.
Mr. ADAIR. No one except the judge?
Mr. FARBSTEIN. That is right.
Mr. ADAIR. No clerk?
. Mr. FARBSTEIN. That is correct.
r. ADAIR. No counsel?
Mr. FARBSTEIN. That is correct. I think that is what the Hays
says.
Mr..ADAnt. I don't think it spells it out in that detail.
?FARBSTEIN., III effect that is what it means.
Mr. Hrs. , It doesn't spell it out in detail, but? I have no pride of
atthorship in this bill. I only put it in to try to give the Depart-
ment what they wanted; a comprehensive bill. I personally would
be willing to settle for what you have outlined, that the judge himself
would have the right to the ale and would not have the right to tarn
it 3ver to anyone.
Mr. FARBSTEIN. I think it is in your bill.
Mr. HAYS. It says "the court." We didn't tie it down to the judge.
Mr. FARBSTEIN. If you could go along with the word "judge" in-
stead of "court," I would be satisfied to have the word "judge" sub-
stituted for "court."
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Mr. ADAIR. It would be more explicit.
Mr. FARBSTEIN. That would be satisfactory to me. I think we all
want a bill but we want a fair bill that would not discriminate against
the innocent man.
Chairman MORGAN. Mr. Murphy.
Mr. MURPHY. No questions.
Chairman MORGAN. Any further questions?
Mr. BURLESON. Mr. Chairman, may I make a comment?
Chairman MORGAN. MT. BUPleS011.
Mr. BURLESON. There have been quite a few observations made and
preoccupations expressed by reason of the Soviet Premier coming to
the United States. It seems to me we are warranted in feeling that a
mistake has been made in permitting people to come into the United
States who misunderstand liberty. In the name of humanitarianism
we have let enter this country people who only understand revolu-
tion. Under recommendations from numerous sources including the
administration, we propose to let others come in who mistake freedom
for license to cause such disturbances as we fear may occur during
the visit of the Soviet Premier. I think we are warranted in taking
note of that fact and to be guided somewhat less in our great ambi-
tions to remove all people from areas where they don't want to be
and bring them into the United States.
Thank you.
Mr. FARBSTEIN. Mr. Chairman.
Chairman MORGAN. Mr. Farbstein.
Mr. FARBSTEIN. MT. Murphy, would you care to comment upon Some
,of the things that I have stated?
MT. MURPHY. If I may.
Chairman MORGAN. Surely.
Mr. MURPHY. First of all, I am so happy that you take this interest
in this problem because we feel sure that out of this something is going
to come, out of it is going to come some legislation that will be helpful
to us.
On that particular point you make, I think we understand the im-
plications of it and rather sympathize with your point of view, Con-
gressman.
Our feeling also is that the average judge, I would imagine, would
have a certain amount of respect for the integrity and the honesty
and the competence of the Secretary of State in reviewing evidence
that comes to him through the different channels that I mention.
Mr. FARBSTEIN. This would go before a U.S. district court judge
and not a local municipal court judge.
Mr. MURPHY. And in providing that judge with the summary of it,
the distillation of it, upon which the Secretary of State bases his
decision, I would imagine a good many judges would be very happy
to have it presented that way because they would have the assurance
that it comes from a highly reputable, reliable source.
Now if you feel that in every case the judge would have to take
the entire dossier and go through it minutely and spend hours and
hours and days perhaps on it, which have been spent in the investiga-
tion of the case, well, that is another matter, but we come back again
always to that same problem that faces us as a practical matter. We
would be delighted to be able to send down to the court everything
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we have. It wouldn't cost us anything at all, but we simply aren't
able to do It. .
Mr. FARBSTEIN. Well, Mr. Murphy, let's assume all those around
this table are reasonable people, and I don't think there is anybody
around this table who would seek to throw roadblocks in the path of the
State Department. And I think something could be worked out insofar
as I see it, at least, if the Department would give some consideration
to f .ome of the views that I have expressed.
Mr. MURPHY. Thank you, sir.
! May I ask Mr. Becker to speak?
' 'Chairman MORGAN. Surely.
. BECKER. , I would like to add what Mr. Hanes pointed out the
6t1 er day, and that is that this precise issue was considered on at
least four separate occasions by the court of appeals and in each in-
stance there was evidence in the open record and there was confi-
dential information relied upon by the Secretary which was not dis-
closed to the court or to anybody else and in each of those four cases
thk court held that the rights of the defendant were not infringed
by that use of confidential information. That indicates that the courts
t i mselves do not feel the need of going into it. As a matter of fact,
tlicre are a number of decisions in which they have expressed reluc-
tarce and really felt it was not proper for them to go into intelligence
and State information.
MY. FARBSTEIN. If that is so, why are you afraid to submit to the
mit those facts and let the court decide whether it is necessary to go
int 3 them or not? _
Mr. BECKER. As I have pointed out, we have already submitted it
to the court four times and every time?we have been sustained all
four times. ,
Mr. FARBSTEIN. You don't answer my question. What is the hesi-
tar cy about the Hays bill?
2
it
i' r. BEcrcEn. Because it requires that information to be submitted
to i; he court and we do not wish to do that.
Mr. HAYS. Would you yield to me?
Mr. FARBSTEIN. Yes. .
Mr. HAYS. Would you have any objection to working out some lan-
guage that required it only to be submitted then in case the court was
dissatisfied with your summary? The alternative would be, of
toLrse, that the court would go ahead and order you to grant a pass-
port unless you want to come up with further evidence.
Mr. MURPHY. That may be a very useful suggestion. We would
liko to study that a little bit.
. Mr. HAYS. I would be willing to accept that. I mean I am not try-
ing. to throw any roadblocks; I am merely trying to make sure as it is
huinanly possible that this provides a true American review.
Chairman MORGAN. Mr. Bentley.
Mr. BENTLEY. Mr. Chairman, not being a lawyer myself, I would
like to ask Mr. Becker to comment on this question fora moment from
the standpoint of a conflict between the executive and the judicial
branches of Government.
';ow would you not get such a conflict if you gave judicial review
or the , power of judicial review over Executive actions in this par-
tici tlar case?
Mr. BECKER. That is the position that some of the courts have taken.
Th 337 have refused to deal with that type material because they say it
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is not -approriate. They don't have all the sources of information
that the President has and many times you have to know other things
in order to judge the impact of this particular information.
Mr. BENTLEY. Then let me ask this question in an effort to be help-
ful: Is it felt that the Board, which is the highest executive body
passing on the application?that is correct, is it?
Mr. BECKER. Except for the Secretary.
Mr. BENTLEY. Is it felt that the Board and the Secretary have to
have information other than this fair resume of the evidence?
In other words, would this be possible?I am advancing a hypo-
thetical theory now: Would -it be possible for, let's say, the informa-
tion transmitted to the Department by another agency of Government
to be placed in resume form and certified by that particular depart-
ment as being a fair resume of the evidence and then transmitted to
the Board so the Board would have before it just the resume, but with
the certification? Do you follow me?
Mr, BECKER. I follow you, yes, sir.
Mr. BENTLEY. What do you think about it?
? Mr. BECKER. It might be possible to do that. I think it would be
preferable, however, for those who are in the executive and are passing
on it, to have all the information before them. I think in part that
is a protection to the individual because they exercise judgment on it.
Mr. BENTLEY. But the evaluating agency?but in the final analysis
who evaluate* the source or the credibility of information? Is it the
Department or is it the transmitting agency!
Mr. BECKER. The usual transmitting agency invariably refuses to
? evaluate. It is done in the Department!
Mr. MURPHY. And frequently there is a good deal of questioning
back and forth. I mean we don't always accept the flat statement.
Mr. BENTLEY. I was trying to advance the possibility that the
Board and the district court might have, the same information upon
which to base their judgment which, of course, in that case would rule
out the question of submitting anything other than the res-ume to the
district court if the Board had nothing but the resume.
Mr. BECKER. I think there would be more protection for the in-
? dividual if the entire record were considered by the Board. It is a
matter of judgment.
Mr. BENTLEY. A judgment that you wish to confine to the admin-
istration?
Mr. BECKER. Yes, sir.
Chairman MORGAN. Mr. Coffin.
MT. COFFIN. I would just like to have the references to the cases
-that you mentioned. Those four cases.
Chairman MORGAN. Will you put those in the record?
Mr. MURPHY. Yes, sir.
(The information requested is as follows:)
Boudin v. DulleS, 235 F. 2d 532 (1956) ; Dayton v. Dulles, 254 F. 26 71 (1957) ;
Brielbl v. Dallas, 248 F. 2d 561 (1957) ; Kent v. Dulles, 248 F. 2d 600 (1957).
Mr. WAINWRIGHT Dr :Morgan.
Chairman MORGAN.. Mr. Wainwright.
, Mr. WAINWRIGHT. Just out of curiosity., what would be the chances
of this legislation reaching the floor and being debated this year, in
the 21/2 or 3 weeks remaining.
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PA LG
Chairman MORGAN. We have scheduled witnesses to appear to-
morrow. We are not going to have a meeting on Thursday because
there are two subcommittee meetings. Next week we hope to finish
the hearings and start marking up a bill.
Mr. WAINWRIGHT. "Well, do you think there is a chance for this
subject, which is relatively controversial, being debated this year?
Chairman MORGAN. Last year we passed the passport bill without
nnich debate during the last day of the session.
Mr. WAINWRIGHT. Do we have the same thing in mind this year?
ChOrIllaIl MORGAN. It depends on how soon the bill is prepared by
this committee. As soon as the bill is ready, the Chair will be glad
to go to the leadership and see what can be worked out as to sched-
uliaj,,c, the bill.
Mr. WAINWRIGHT. Thank you.
Mr. HAYS. Mr. Chairman.
Chairman MORGAN. Mr. Hays.
Mr. HAYS. I just wanted to say unless the Senate passes a bill be-
fore the end a the session that I will object to any unanimous con-
ser .t to bring the bill up like we did last year and pass it in 10 seconds,
inasmuch as there is another session, next year.
-Mr, WAINWRIGHT. I just wanted that clarified.
Mr. HAYS. Well, that is the reason.
Mr. WAINWRIGHT. That was the reason for my question.
Mr. HAYS. I don't think we should pass it in 10 seconds when it
isn't going to become law anyway.
We hope to have this building construction bill ready for the com-
mittee to consider and there is some urgency about it because they
ha, re no money left after this fiscal year.
Chairman Mowin.N., Is the Senate, also going to pass it?
Mr. HAYS. I understand they are waiting for us to send them over-
a hill. I don't know, and I don't care.
Mr. ZAnnociii. Mr. Chairman, may I ask a question out of order'
so 4ome.of us may make proper plans and arrangements. Since we
have the Secretary here, he probably could advise us: If the Congress
'is in session is it the intention of the 'Department to request a .joint
sesien of Congress during the visit of Khrushchev ?
, Mr. MURPHY. No.
Mr. HAYS. What if he asks for one? What are you going to do?
Mr. MURPHY. He hasn't asked for one. If he asks for one perhaps
we might inform you of his request.
T.fr. ZABLOCKI. Isn't it customary for a chief of state to address the-
joh it session of Congress?
Mr. MURPHY. This man is head of government. Mr. Voroshilov
is the head of state.
3Ir. FARBSTEIN. I read that he stated he would like to address the
Congress and that it was customary.
Mr. ZABLOCKI. Do you think we could maintain a quorum?
Mrs. BOLTON. The fact that he is not chief of state settles it
Chairman MORGAN. Are there any further questions?
If not, the committee stands adjourned until 10: 30'. tomorrow-
.( Whereupon at 12:05 p.m., the committee recessed, to reconvene at
10 : 30 a. m., Wednesday, August 12, 1959.)
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4
PASSPORT LEGISLATION
WEDNESDAY, AUGUST 12, 1959
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS
Washington,D.C.
The committee met, pursuant to adjournment, at 11 a.m., in room
0-31 U.S. Capitol, Hon. Thomas E. Morgan (chairman) presiding.
Chairman MORGAN. The committee will Come to order.
This meeting is being held for further continuation of hearings
on passport legislation. Several members of the committee have in-
troduced bills which are before us.
.,Our witness this morning is a member of this committee from the
Minority side the Honorable Alvin M. Bentley, who is testifyng on
H.R. 7006. Mr. Bentley, you may proceed.
STATEMENT OF HON. ALVIN M. BENTLEY, A REPRESENTATIVE IN.
CONGRESS FROM THE STATE OF MICHIGAN
Mr. BENTLEY. Thank you, Mr. Chairman, it is a pleasure to appear-
before the committee this morning in support of H.R. 7006. I have
9, ? prepared statement here and with your permission I will insert
it in the record at this point and proceed informally.
Chairman MORGAN. You may proceed.
(The statement follows:)
Mr. Chairman and members of the Foreign Affairs Committee, I
appreciate the opportunity to appear before you on behalf of a piece
of legislation Which is of great importance to the security of the
United States. I refer to my bill, II.R. 7006, providing for the denial
of passports to supporters of the international Communist movement,
for review of passport denials: and for other purposes.
As members of the congressional committee concerned with the in-
ternational relations of the United States, you well know the nature
of the international Communist movement which is dedicated to
subordinating the Government and people of the United States to
its will through subversive means of all types. That this movement
constitutes a threat to the security of the United States cannot be
denied.
It commands a frightening portion of the world resources, including
the assets of 16 once independent countries and 900 million people. It
possesses the ability to establish vast networks of espionage appa-
ratuses in countries not under its control and to? claim absolute al-
legiance of misguided persons who, while holding citizenship in one
country, in fact serve the ends of another country; namely, Russia.
Furthermore, the movement engages in its activities in a way which.
59
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makes the expression "cold war" a contradiction in terms; it has done
mid day and night will continue to do all in its power, however devious,
deceitful or subversive these means may be, to fulfill its avowed and
ichanging goal, that of world domination.
In recognizing this threat, Congress in 1954 declared that the role
of the Communist Party in America, as an "instrumentality of a con-
spiracy to overthrow the Government of the United States," renders
the party's existence a "clear, present and continuing danger to the
security of the United States."
When a person is faced with a threat to his existence, he must meet
it and try to erase it. Similarly, the United States must attempt to
rid the world of the scourge of international communism. And since
01 me, of the ways in which international communism operates is through
travel back and, forth between various countries some of which it con-
tr ols and others which it does not, one of the ways in which the
-United States can and must meet the Communist threat is through
the prohibition of travel by the members Of that movement to and
'from A,merica.
One does not has;-e to be a student of Communist organization to
realize that travel, and the face to face contact that travel makes
posgble, is a vital cog, in the operation of the international Corn-
mm movement. Only recently the Director of the Federal Bureau
of Investigation reported to the Attorney General that?
At the present time the Soviets are intensifying their espionage activities in
the 'United States. They are interested in all types of intelligence, especially
mlitary, atomic, 'missile, and related data. Also a revitalization of the party's
internal structure is now underway. Leaders completely loyal to the Kremlin
ale in control. The result is a renewed party activity alined at strengthening
tb e? Communist apparatus. At present a recruiting program is in progress.
lstiw officers are being selected in the Communist Party units across the cOun-
try. The youth organization is being vitalized, schools are being held to 'train
pm rty leaders, and efforts are underway to increase overall Party work.
How are the tough and new officers of the Communist organization
jr America to be recruited and trained if leaders of the international
m dvenient are to be prohibited from coming here and if the youth
'AA a:leaders are prohibited from traveling abroad? And ,how is the
'cc fnitunieation necessary to the operation of the Communist organ-
ization to take place if international Communist leaders cannot meet
ef,Ch other face to face? .
Communication through second-hand sources, such as through mail
or through third parties, is not a good substitute for personal contact.
'The hampering of this contact by the United States places a severe
'handicap upon the effective operations of the Communist apparatus,
especially since the Communists, being members of a secret, subver-
si vu, illegal organization, prefer to communicate by word of
'mouth rather than by written word.
,The Department of State has recognized that international travel
'13:,/ Communists enhances the aims of the international Communist
movenient and hence has in the past refused to allow 'foreign Com-
munists to come to America, or to allow Communists in the Un ited
Sates to travel abroad. The first matter Was taken care of in the
'114 cCarran-Walter Act which prohibited the immigration of undesir-
al des into this country. The second matter became official policy in
when Secretary Acheson issued regulations establishing the crite-
ria for refusing passports to Communists and Communist supporters.
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it is this second matter with which we are concerned today. Upon
the publication of the regulations concerning passport issuance, the
Communists began to attempt to circumvent the regulations. Fi-
nally, in 1958, the Supreme Court decided by a 5-4 majority in the
Kent and Briehl cases that Congress had not expressly given the Sec-
retary of State the right to refuse to issue passports to undesirables
and that therefore the Secretary was required to issue passports to
any and all Americans who might request them. It should be noted
that the Court did not rule on the constitutionality of the Secretary's
refusal to issue passports to Communists; it merely declared that Con-
gress had not yet given the Secretary the right to do this.
Immediately after the Court's decision the Department of State
experienced, a great increase in the number of passport applications
from persons with records of Communist affiliations and activities.
The issuance of passports to these persons has impaired, and if not
Stopped will continue to impair, American foreign policy by making
possible to the international Communist movement the advantage of
.personal communication and discipline.
Therefore, the problem which Congress has before it today is to
pass legislation enabling the Secretary of State to prevent the threat
and harm done to the security of the United States by the travel of
Communist sympathizers outside the United States for purposes of
espionage to eventually overthrow our Government. And this is what
my bill proposes to do; to give the Secretary of State the right and
the power to refuse to issue passports to supporters of the interna-
tional communist movement.
This bill, a new act which adds to existing passport legislation,
after explaining that?
the possession of a passport by (Communists) is inimical to the security and to
the conduct of the foreign relations of the United States,
then authorizes the Secretary of State?
to refuse ,to. issue a passport or to revoke a passport already issued to any person
aS to whom it is determined on substantial grounds that he knowingly engages in
activities for the purpose of furthering the international Communist move-
ment* *.
Evidence of such activities is membership in the Communist Party
or any "other facts which reasonably warrant the conclusion that the
person is going or staying abroad" to abet the Communist cause.
The person who is refused 0, passport may request a hearing before
a passport hearing board, established within the Department of State
for this purpose. During the hearing proceedings the Board may
take into consideration information which shall not be made a part of
the open record; but the Board shall furnish to the individual request-
ing the passport a fair r6sume of all confidential information. If the
recommendation of the Board and the decision of the Secretary is
adverse to the individual, he may then appeal to the U.S. District
Court for the District of Columbia to determine whether there has
been compliance with the provisions of this bill.
This, in summary form, is what the bill purports to do. Several
objections against this bill have been raised and it is these with which
I propose to deal. First, however, I should like to employ the support
,of the ,executive branch of the Government, which stands solidly
behind this bill.
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The late Secretary of State Dulles described the need for passport
legislation last year before Congress. He said:
I think there can be no doubt. in anyone's mind that we are today engaged
fo:? survival in a bitter struggle against the international Communist move-
im?nt * * * (this) movement seeks everywhere to thwart U.S. foreign policy. It
seeks on every front to influence foreign governments and peoples against the
Iht%ted States and eventually by every means, including violence, to encircle the
VD ted 'States and subordinate us to its will. The issuance of U.S. passports to
su orters of that movement facilitates their travel to and in foreign countries.
It clothes them when aborad with all the dignity and protection that our Govern-
ril*t affords. Surely our Government should be in a position to deny passports
to such persons.
'. President Eisenhower added:
It is essential that the Government today have power to deny passports where
th Ar possession would seriously impair the conduct of the foreign relations of
th?. United States or would be inimical to the security of the United States d * *.
I. wish to emphasize the urgency of the legislation I have recommended. Each
de Y.and week that passes without it exposes us to great danger. I hope the
Congress will move promptly toward its enactment.
Atid just 1 week ago John W. Hanes, Jr., Administrator of Security
and Consular Affairs of the Department of State came before this
ccthmittee. He testified with reference to this bill, RR. 7006 :
. We believe this is a good bill. We strongly support it and we hope the
co tptnittee will report it favorably to the House.
.. Thus, my bill is the administration bill.
One objection to this bill concerns questions of its constitutionality.
It must be reiterated that in its decision in the Kent and Bnehl eases
the Supreme Court did not rule on the constitutionality of the Secre-
tc ry's restricting the right of persons to travel freely.
Furthermore, in a recent decision concerning the right to travel,
the U.S. Circuit Court of Appeals in the District of Columbia ruled
that?
the right to travel is a part of the right to liberty * * * but these valid gen-
el anzations do not support unrestrained conclusions. For the maintenance and
pl'egervation of liberty, individual rights must be restricted for various reasons
ft om time to time; in case of a reasonably anticipated threat to security or to
is w and order, many acts by individuals can be restricted.
It is the contention of the administration and of myself, as well as
many other persons, that the free travel of Communists out of and back
into this country constitutes enough of a threat to the security of this
country to warrant a slight restriction on the right of any person to be
it..:sued. a passport.
Some persons would quarrel with this second _ point, too, however.
'I 'hey say that denying passports to American Communists will not
r.411y prevent them from leaving the country; the Communists can
t'70,vel legally without a passport to Latin America and from there
Ciey can usually obtain illegal passage to wherever they -vaish to go
behind the Iron Curtain.
' While this is true, it is also true, on the authority of Mr. Hanes,
that while the State Department was denying passports to Coramu-
Lists, "very few important members of the apparatus took advantage
of this roundabout route."
The reason for this probably lies in the fact that this fairly cumber-
some method would lay a greater part of the Communist organization
open to the risk of being discovered; the more people involved in an
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operation, especially a devious and illegal one attempting to maintain
secrecy, the more chance of that secrecy breaking down at some point
and then the whole operation becoming uncovered.
A third complaint voiced against this passport bill concerns the
utilization by the Secretary of confidential material as part of the
basis for his decision. Some persons feel that the use of this sort of
information means using vague and unsubstantial gossip or allegations
which could not stand up in the light of truth. This feeling is, of
course, completely without foundation.
First., if a person is prepared to believe that a Secretary of State?
and it, is he who must always make the final decision in appeals on
passport cases?would actually base a considered decision upon less
than substantial and corroborated evidence, then that person must
believe that our country's security is in far greater danger than that
resulting from a capricious denial of passports. The reason why
information cannot always be divulged is that to do so would cut
the Government off from a similar supply of such information in
the future.
If faced with the unhappy choice between exposing and thereby
destroying a valuable and continuing source of information about
the activities of the Communist conspiracy, and the issuing of a pass-
port to a member of that conspiracy, the Government would reluc-
tantly have to issue the passport as the lesser of two evils. This
does not mean that such information comprises a very large part of
any total case. Mr. Hanes stated last week:
, It almost never does. But the part it does play is often vital in relating
the various parts of the case.
Furthermore, as required in this bill, the Secretary would have
to make "fair resume or any such information available to the indi-
vidual denied a passport, who would then have the right to attempt
to rebut this information. Under this procedure the Secretary could
hardly, even if he were so disposed, render a decision based on
'malicious whisperings.
The fourth objection to the passport bill revolves around the fact
that the Secretary will make unbridled and arbitrary use of his power
in restricting the issuance of passports. This fear also has no founda-
tion in fact. In discussing the necessity of passport legislation in
July 1958, the President stated:
In exercising these necessary limitations on the issuance of passports, the
executive branch is greatly concerned with seeing to it that the inherent rights
of American citizens are preserved. Any limitations on the right to travel can
only be tolerated in terms of overriding requirements of our national security,
and must be subject to substantive and procedural guaranties.
This message sets the tone of the limits of the restriction of passport
issuance. As Mr. Hanes added, in an address before the Chicago
Council on Foreign Relations on March 21, 1959:
We do not seek statutory passport authority to stifle criticism of this Gov-
ernment or its policies. We do not believe that the passport should or can be
used to restrict the movement of people who hold political, social, or economic
opinions which are not of the orthodox American variety.
We do not seek or want authority to deny passports to any whose travel or
activity abroad is merely an embarrassment to our country. I believe that the
United States is strong enough to survive embarrassment if we must.
Neither do we wish to penalize loyal Americans who at one time, before the
nature of the Communist conspiracy became as crystal clear as it is today,
a
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Iiittrhave sYMpkthized with Communist theories or even 'belong to Communist
organizations in this country.
lk.II we seek, and what I feel we must have, is the capacity to protect ourselves
by denying passports to those relatively few hard-core, active Communist sup-
po who are het Ordinary American citizens and whose travel abroad con-
Stb a danger to the United States.
' The ".due process"' claitse of the -Constitution further guarantees
:that -the Secretary will not arbitrarily or capriciously restrict the in-
di right of exit. Provision is made in this bill for extensive
hearings before a passport. board where the burden of the proof
-th it an individual was or is a member of the Communist Party is
t utiOn the Secretary Of State; further provision is made. for ap-
peal to the U.S. District Court for the District of Columbia. In
this connection it is interesting to note that even such citadels of
'..-dettiocraey and individual rights as the United Kingdom, France,
r Canada do not provide for any judicial review of passport
denials.
nials.
Evidence that the Secretary has in the past been extremely careful
in restricting passports lies in the fact that for the 2 calendar pars
rine'60ding the Supreme Court's decision, only 51 out of over a million
tfpplications for passports were initially and tentatively turned down.
Further, in the 6 years from 1952 to 1958, only 15 persons were flatly
? cl.(Ried _passports On: Communist grounds after they had exhausted
.tE.eir administrative remedies.
This then is the case for my bill, H.R. 7006. As President Eisen-
hower stated, "I wish to emphasize the urgency of the legislation
.1. have recommended." The, international travel of Communists does
reatly abet the effectiveness of the Communist cause and does im-
par the successful carrying out of U.S. foreign policy.
I have, in fact, had personal experience with the vast amount of
kwa.cre that can be done by American Communists traveling abroad
jiitlAer for purposes of anti-American propaganda, espionage, ,or a
v trpty of other reasons. The objections that passport restriction
is unconstitutional, ?that it will not stop international travel any-
Nrc ay, that the use of confidential information is not right, and that
the, Secretary will make arbitrary and capricious use of his power
to .restrict the issuance of passports, all have no foundation in fact.
'Therefore, I sincerely hope that this committee will speedily rec-
ommend passage of this bill to the House of Representatives. Also,
of course, I will be happy to elaborate on any of the points made in
ka, her summary form in this statement.
. BENTLEY. In summary, Mr. Chairman, this bill, H.R. 7006, has
;Gen well summaried in the staff memorandum dated July 30, 1959,
which all members Of the committee have before them. It is a new act
Wing to existing legislation. It contains in section 1 the congres-
siOhal findings with regard to members of the Communist Party and
riovements thereof.
In section 2 it would authorize the Secretary of State to refuse to
.13,sue a passport or to revoke a passport already issued on certain
4;rounds which would include pre-sent membership in the Communist
Party or former membership which would be terminated only for
:purposes of subterfuge, activities which would indicate that the person-
o
iias acting under the discipline or control of the Communist Paity or
other facts indicating that the potential traveler was enabled to
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further, while abroad, the intentions of the international Communist
Movement.
Section 3 would require as a part of the passport application a.
Statement under oath or affirmation to the effect that the ,individual
has not been or was not at the present time for the past 10 years a
member of the Communist Party.
Now we get into title II, Mr. Chairman, regarding procedure for
denial and review. My bill would provide that after the application
the passport would either have to be issued or the applicant would have
to be informed in writing that his application was denied within a
period of 90 days. If the passport was to be denied, revoked, or re--
stricted other than for general reasons, the applicant should be notified
in 'writing and notified of his right to a hearing before the passport
hearing board.
, The, passport hearing board, under section 6 of my bill, would be
conyposed of three officers of the Department of State which would
be designated by the Secretary and would have jurisdiction in all
eases where a hearing was required by the applicant within 30 days
after his application had been denied, or after his passport had either
been revoked or restricted.
Within 90 days after such a request would be received by the board,
the board would have to hold a hearing and the people who would
present the case of the Department of State through the board could
not otherwise participate in the deliberations and recommendations
of the board.
? In proceedings before the passport hearing board, Mr. Chairman,
the applicant would have the right, according to section 7, to appear
in person and to be represented by counsel, to testify in his own behalf,
preSent witnesses and other evidence, to cross-examine witnesses ap-
pearing, and to examine all evidence which is made a part of the open
record and to examine a copy of the transcript of the open proceedings
and to be furnished a copy upon request.
The same section does provide for the board to consider oral or
documentary evidence which is not part of the 'open record, but it
requires that before the board completes its proceedings that the appli-
cant or the individual should be furnished with a resume of any evi-
d.ence which is not part of the open record by the board and the board
would have to certify that it is a fair i.sum.e.
Further, the board, in making final findings, would have to take into
consideration the individual's inability, of course, to challenge infor-
mation or to attack the credibility of sources of which lie would, not
have been advised in full or which would not have been revealed to
him.
.1 After the proceedings, the board has to make its findings within
60 days and transmit the entire record to the Secretary of State for
the final administrative determination, and I underline the word "ad-
ministrative."
If the recommendation is adverse, the individual is to receive a
copy; of the recommendation by the board and its findings and con-
clusions and within 20 days following its receipt he can thereby sub-
Mit written objections to the Secretary.
The Secretary is supposed to base his determination upon the en-
tire record, the findings of the board and any objections that may be
submitted by the individual.
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The Secretary can either remand the case to the board and send
it Lack for further proceedings or if he opposes the board he shall
male appropriate written findings and conclusions.
Section 9 provides for judicial review by the U.S. District Court
for the District of Columbia and-
1u a .17 such proceedings--
to r3ad from the exact language of my bill?
* * * the court shall have power to determine whether any findings which are
stat id to be based upon the open record are supported by substantial evidence
contained in that record? or, in the case of a r?m?f evidence which was not
made, part of the open record in c'Onformity with section 7(b) of this act, are
supj)ofted by the r?m? * *
? e , . , ,
which, as I said earlier, has to be certified by the board to be a fair
resume of all information used in determining the particular case.
:NOw, Mr. Chairman', I have here copies of letters from two of the
ex.elltive departments which have been received by you as chairman
of the committee; one from the Department of State, dated June 4,
stat uig:
The Department strongly supports H.R. 7008 and favors its early enactment
into ItaW.
rl other words, the State Department endorses my bill without
re,s? rvation.
The other, which is dated June 1, is from the Department of justice.
The Department of Justice supports my bill with some suggestions
which I would be perfectly happy to see adopted by the committee.
s I think the committee will recall from Mr. Hanes' testimony
of last week, he has been authorized by the Department of Justice
to say that they do support my legislation with, as I say, one or two
suglested changes of a technical nature.
I have here this report of June 17 from the Department of Jus-
tice The Department does suggest that the bill not be confined
to Communist activities and suggests that the bill might possibly be
broadened to include subversives who are not affiliated with the Com-
munist movement and also suggests that, among other reasons for
denying the bill would be a finding that the travel abroad by the in-
div dual would seriously impair the conduct of the foreign relations
of i he United States, and would be harmful to the security of the
Uni ted States.
The other suggestion is that in place of limiting the duration of
the proposed legislation to the proclamation of national emergency,
the Department of Justice suggests that the provisions would con-
e in force until such time as either the Congress or the Presi-
dent should determine and declare that the activities of the inferno-
tion al Communist movement no longer requires their application.
hat amendment would be acceptable to me and I understand it
would also be acceptable to the Department of State.
With respect to the suggestion that the bill be broadened to include
ind viduals other than followers, members, or supporters of the Com-
munist movement, it is my feeling?and I think that feeling is some-
what shared by the State Department, that although perhaps broader
pas ;port legislation is certainly a good thing, the urgency with which
the administration and the Department regards this problem is due
primarily, if not solely, to the danger arising to our country from
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travel abroad by Communists and therefore the State Department
prefers that the question be limited at this time, as I say, to members,
et cetera, of the Communist Party and I believe that the Department
generally goes along with that.
I think the Department of Justice perhaps may be a little concerned
about the fact that we are trying to single out Communists and not
deal with people other than Communists whose travel abroad would
also be prejudicial to our national interest but as Mr. Hanes said last
week, that Department does support H.R. 7006 and the State Depart-
ment supports it strongly.
One more thing that I would like to put into the record though, Mr.
Chairman, if I may and that is?I think this would be pertinent and
helpful to the committee, and I am referring to a committee docu-
ment entitled "Passports and the Right To Travel: a Study of Admin-
istrative Control of the Citizen," which was prepared by the Legisla-
tive Reference Service of the Library of Congress dated July 10, 1958,
and, of course, printed for the use of this committee. I don't believe
this was made a part of the hearings last year, was it?
Chairman MORGAN. No, sir.
Mr. BENTLEY. I would like to read the conclusions in this without
going through the whole document, though I would refer this docu-
ment to any member of the committee particularly interested.
On page 35 of this document, Mr. Chairman, the following conclu-
sions are reached by the study, respecting the Federal control of a
citizen's right to a passport:
A. The citizen has a constitutional right of personal liberty which includes the
right of locomotion, i.e., to travel.
B. The Secretary of State has a right to exercise official discretion in the
Issuance of passports.
C. Neither of these rights is absolute nor can they be exercised arbitrarily by
the citizen or the Secretary.
D. Prior to 1914 these rights did not come into conflict, hence the lack of liti-
gation.
E. With the growth of foreign passport restrictions, a passport has become
a necessity to the exercise of the citizen's right to travel in peacetime.
E. In a war or emergency situation [such as we are in now] the Federal Gov-
ernment may, through the use of its war powers, restrict the citizen's right to a
passport.
G. Such war restrictions on the citizen's right to a passport must be exercised
with due regard to the due process provisions of the fifth amendment, preserving
a balance between the exigencies of the war and the citizen's constitutional right.
H. Peacetime regulation of the citizen's "liberty" or right to travel, i.e., to a
passport, must be in pursuance of the "lawmaking functions of Congress with
standards established adequate to pass scrutiny by the accepted tests" and with
due regard to the citizen's constitutional rights.
I thought it would be helpful to have that in the record and I rec-
ommend this study to those members of the committee who are either
not familiar with it or who have forgotten it. I have found it very
valuable indeed in studying this entire problem.
Thank you, Mr. Chairman. That is all I have to offer.
Chairman MORGAN. Thank you, Mr. Bentley.
Mr. Bentley, I understand from your testimony that the State De-
partment and the Department of Justice strongly recommend the
adoption of your bill.
Mr. BENTLEY. The State Department, sir, recommends it strongly.
The Department of Justice, with these minor reservations which I
have tried to outline further, recommends it.
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r. Chairman MORGAN. They also recommend the Selden bill?
Mr. BENTL,EY. I think the Department of Justice?and I have here
copies. Of the State Department's and the Department of justice's
reports on Mr. Selden's bill. Here is one on the Selden bill from the
Department of justice dated April 16, 1959. Here is one from the
Department of State on the Selden bill dated April 10, 1959. They
catiMent on many other bills besides H.R. 55, the Selden bill.
think their conclusion is that they would accept the Selden bill,
but, at least as far as the State Department is concerned, they would
then find it .necessary to augment the provisions in Mr. Selden's bill,
55, with various administrative regulations, which would be
st-aled out by the adoption of my bill. In other words Mr. Chair-
it js a question as to whether the committee would want to let
the Department of State pass or promulgate these various adminis-
trative regulations necessary for the control of passports or whether
the cougnittee and the Congress would prefer to write into legisla-
tio:.i the instructions to the executive branch of Government which
they would have to follow both for the purposes of administrative
and judicial review.
Chain:WI MORN. But is my understanding correct that Mr. Hanes
did. testify that if the Selden bill was adopted by both branches of
Coligress the State Department thought it would do the job?
Mr. Bmsrmny. They will accept the Selden bill, Mr. Chairman. Of
that I have no fear. It is just as I say, whether the Congress prefers
to :leave the matter up to the State Department to issue these regula-
tions or whether the Congress would prefer to spell out in legislative
form the regulations which it feels the State Department should. follow.
Chairman MORGAN. Mr. Bentley, you have a time limitation in your
NL, do you not, the period between the application and denial?
21111% BENTLEY. The passport application has to be acted on within
a() ilays.
1,4,11Vaan Moncixii, That is not in the Selden bill, is it?
. BENTLP.'? I don't believe so. I am not too familiar with every-
thi i in H.R. 55. I don't recall that that is in the Selden bill. I
air be mistaken.
24r. SZI4PAN. That is.not in the Selden bill, Mr. Chairman.
13r.c.Fr1zT. No, I don't think there is any time limit in the Sehlen
bill actually, Mr. Chairman. That would have to be left up to the
De )artment,
114.4XuAri MoItcalc., Under your bill, a passport hearing board is
est: t lislied.?
Mr. BuNTT,,,vx,
eltairtuan MORGAN, Who would be members?
.3t. 1344ajorY. Three officers of the Department of State designated
bY.; e Secretary.
Chairman Mommx. You don't spell out the names or titles of any
of i he officers.
? r. BravriegY, No.
airman MORGAN'. 'What would be connected with the Passport
Oce?
Mi.BENT'LEY. I imagine that would be left up to the Secretary as
to ',v,ho be would appoint. Presumably I imagine one would be con-
nected with the Bureau of Security and Consular Affairs. Probably
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one would be from the Legal Adviser's Office and one conceivably
might be from the geographic desk representing the political section
or geographical area where the man intended to travel.
Mrs, BOLTON. It would not be a static board, then, changing from
case to case?
Mr. BENTLEY. My bill does not specifically cover the situation, Mrs.
Bolton, but I feel the Secretary could set up a board for an individual
ease or eonld have a permanent board. Personally I would like to see
a _particular board set up because I think that the problems, for exam-
le, with respect to an individual, say, traveling to Soviet-controlled
Europe, or with. respect to an individual traveling in south Asia, might
be very different and I think there should be different personnel on the
Board. ?
? That is again left to the discretion of the Secretary.
Chairman MORGAN. Mr. Bentley, I have just one more question:
Both your bill and the Selden bill are aimed primarily at individuals
affiliated with the Communist movement. Neither one of your bills
is an overall passport bill?
Mr. BENTLEY. No, sir.
Mr. Selden's bill covers in section 6 certain members or former
members of the Communist Party or persons who have been supporting
the Communist movement since. 1948, as I understand. it. The per-
SoAI provisions of my bill pretty much cover the same things. I
think perhaps they spell it out in a little more detail on page 3 of my
bill than Mr. Selden does but the objectives, of course, are the same.
We do not try to go beyond members, supporters, agents of the Com-
munist movement.
Chairman MORGAN. Mr. Bentley, in the letter from the Department
of Justice signed by Paul A. Sweeney, Acting Assistant Attorney Gen-
eral, Office of the Legal Counsel, he states:
In my opinion the revised draft would be strengthened considerably if sec-
tion 2(a) were not restricted to Communist activities.
Would you comment ?
Mr. BENTLEY. He makes the same comment about the Selden bill,
too, I believe, but as I say, on the testimony of Mr. Hanes last week,
, the Department of Justice concurs in the bill?both bills?but would
like to see it perhaps broadened at some future date by more 'com-
prehensive legislation. But I think the Department of Justice con-
, car? that the urgency of the situation, Mr. Chairman, is now, because
of the movement of Communists or Communist sympathizers and
supporters, and therefore they do support this type of restrictive
legislation.
Chairman MORGAN. Thank you, Mr. Bentley.
Mrs. Bolton?
Mrs. 130LToN. I don't think I have anything on Mr. Bentley's bill.
I like it very much.
. The language is clear enough for me to understand it, not being
a lawyer.
Mr. BENTLEY. Nor am I a lawyer, Mrs. Bolton, but I can under-
stand. most of it, anyway.
Chairman MORGAN. MTS. Kelly?
Mrs. KELLY. Mr. Chairman?Mr. Bentley, I welcome you here this
morning. It seems unusual having you as a witness before your own
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co Onittee. I think there is one weakness in your bill. Under section
6 you are having a person hear the responsibility of proving himself
innocent right after hiving him actually declared guilty by the State
Thpartment, before. being associated with the Communist movement.
Is that right ?
- Mr. BENTLEY. I don't know that the person would come before the
Diard with a presumption of innocence or guilt I think the question
is that the passport has been denied, revoked, or restricted in its use
by the'Department. The Board is then established for the purpose of
a lowing the person to present his own evidence, his own support, his
owi witnesses, whatever else he wants to present.
The _Board makes up its mind. The Board then furnishes?
amming the passport is not granted?furnishes a report of its find-
ins to the individual as well as to the Secretary of State. The
individual does haves chance to reply in writing, to state his written
01 jections to the Secretary. The Secretary makes a final determina-
ion.?that is administratively speaking. If the applicant wants
to pursue it is,
then, of course, it goes to the U.S. district court
fc r judicial review.
I think, and I am not sure whether it was Mr. Hanes or Mr. Murphy
'w:!-io testified on this subject, but they said it was their belief that
ni any people who had received passports over the past several months,
because of the ruling of the Supreme Court, they felt it was their
belief that such individuals, if they had been refused by the Depart=
iv*, would never have pursued the matter further.
Mrs. KELLY. If that is the case, this would be sort of public knowl-
ed ge at this point.
Mr. BENTLEY. It certainly would.
krs. KELLY. Then why couldn't you combine the section in your
bill with that in Mr. Selden's?do not deny a passport until after the
hearings, and so forth.
Mr. BENTLEY. The status of the application would be in somewhat
of a suspended status as long as the applicant was pursuing the
.vi,rioup courses of appeal opened to him. The denial or the revocation
or the restriction is only necessary for the board to come into existence
and for the _hearing to take place. There would be no final action as
kr as ,the application was concerned until it had been pursued as far
.
as the applicant wished to pursue it.
Mrs. KELLY. In other words, you contend that in section 8 of Mr.
, $,?Adera's bill that there would have to be a denial possibly, too? in order
tc . . .
ring a review up.
Mr. -BENTLEY. Well, yes; because there would be no purpose in
having the review unless the passport had been denied and the ap-
.plcant, as I say, wished to pursue it into the courts.
I might point out, incidentally, Mrs. Kelly, if I may, the distinction
between. my bill flild Mr. Selden's bill in that respect He permits
judicial review in any of the district courts. My bill limits it to the
d 'strict court for the District of Columbia. That is merely for the
purpose of convenience for the Department of Justice. I feel it
would be a mistake to pursue this matter, judicially speaking, through-
out the entire country.
Mr. SEenEN. Would the gentlewoman yield?
MTS. KELLY. 'Yes.
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Mr. SETA:ex. Wouldn't it also be inconvenient for a man in San
Francisco to apply for a passport and have to come all the way to
Washington to have his case reviewed when he could have done so
in the district court of San Francisco?
Mr. BENTLEY. I suppose there would be some inconvenience. It
would be a question of how much trouble he wanted to go through to
pursue his application.
The fact that there is a certain amount of evidence to be collected
and presented in this case would seem to me that it would be from the
administrative standpoint more convenient to have it centralized and
it is my impression that the Department of Justice has some hesita-
tion about throwing this open to any district court in the United
States, although I don't know that they make that statement.
Mr. SELDEN. It would seem to me that since the burden of proof is
on the Department of State the person involved certainly shouldn't be
made to come to Washington to support his case when the Government
has the necessary facilities in San Francisco or Seattle or New Orleans.
Mrs. BOLTON. Will the gentleman yield?
Mrs. KELLY. No; it is my time.
Mr. BENTLEY. I am reading from page 3, Mr. Selden, of the Depart-
ment of Justice's letter with regard to your bill:
Section 8 also provides that judicial review shall be In the district courts of
the United States.
This probably means the district in which the applicant resides.
Section 8 does not state against whom the action should be brought or the time
within which action may be brought; the standards to guide the court in its
review; or the relief which the court may grant. It would be desirable for review
to be limited to the United States District Court for the District of Columbia so
that the work of the Department of State and its officials who might be involved
? as witnesses be disrupted as little as possible.
Mrs. KELLY. Would you then have the way paid to Washington for
this person to appear at this hearing?
Mr. BENTLEY. Well, that is a good point.
Mrs. KELLY. The question of expense would be greater on the United
States possibly if witnesses from here had to go out to San Francisco.
because there would possibly be more fares.
I would like to have you comment on that.
Mr. BENTLEY. That is an interesting point, Mrs. Kelly. I frankly
haven't considered it. I suppose we might say that the costs of the
individual's travel to Washington could be borne by the Government.
Possibly you might leave it up to the decision of the court. If the
applicant is successful in pursuing his case before the court maybe the
overnmerit should stand his expenses. If the applicant is turned
clown by the court maybe he should be expected to bear the costs. I
really haven't considered that but it is an interesting point.
Mr. SELDEN. Will the gentlewoman yield?
Mrs. KELLY. Yes, Mr. Selden.
Mr. SELDEN. As you may remember, we went into this subject very
thoroughly last year and had extended hearings. Also, we worked
closely with the Justice Department and the State Department. It
was determined by the committee that it would be better to have the
cases heard in any of the district courts rather than in the District
Court of the District of Columbia alone.
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7'2 PASSPORT LEGISLATION
BOLTON. That would mean that any confidential information
Vottl I be here in Washington, it wouldn't be out in that district court.
Sorn4 body -Would have to get it together and run the risk of losing it
and -Ake it across. There would not be too much saving of expense
because whoever 'would take it from Washington to the district court
in question would be involved. If there is nothing of that type re-
quired that is different.
Mrs. KELLY. I am not sure that is correct because I know there was
.eertt in inforination maintained in the New York area, particularly
If it is FBI, and not in Washington, though the ultimate decision is
,mad in Washington. So the material is probably in the district
the person resides.
I -aield back my time unless Mr. Bentley wants to answer.
'Mr. BENTLEY. I have no further comment on that other than the
Department Of Justice's comment which is dated last April, of course.
.aairman MORGAN. DE. Judd?
r. Jim). No questions.
Chairman MORGAN. Mr. Selden?
Mr. SELDEN. No questions.
Chairman MORGAN. Mr. Pilcher?
r. PILGHER. No quesions.
Chairman MORGAN. Mr. Meyer?
MEYER. Mr. Chairman' thank you.
I would like to pursue that matter a little further: In my own case,
for instance; if r had wanted to travel, with the job that I held I
'Would
have had a limited amount of time to travel and I would have
-Thad a' Minlinnin of funds with which to travel. Therefore, the pro-
, Visions of this bill could conceivably have been used to prevent me
=fro 11 traveling and to rob me of my rights as a citizen because I could
not afford to come to Washington. Furthermore, without having the
-eVidence 'so-called, against me, (if false charges had been made) I
ildn't have been able to get a case together, to get an attorney to
represent me or anything else, and the net effect is that this kind of
ilegislation in my opinion would prevent anyone other than a rela-
, tiv317 wealthy person or a person with a lot of leisure time, from de-
fer ding his own rights. Is this not true, Mr. Bentley?
Mr. BENTLEY. Mr. Meyer, I will certainly grant your contention
-,tho t the applicant would be involved in considerable personal expense
'if ie wished to pursue the case all the way up to the District Court,
? or district courts' hs the case may be, but I balance against that, and
-Off 3r against that, the national interests of this country which I think
,frankly override any personal inconvenience or expense on the part
..s:of a passport applicant.
After all, if the applicant intends to travel abroad, he is presumably
man Of some means and I think, as I say, the national interests of
th s country which we have heard from testimony from the executive
br inch, are in jeopardy because of the unrestricted travel of Com-
. ?inunists kt the present time, have to be balanced against personal in-
- !colvenience or expense although I will admit your contention that
:4 it ettain amouht of personal expense would be involved if the person
-desires to pursue it to its ultimate conclusion.
Mr. MEYER: I meant to point out that the cost would be prohibitive
in my own case and I would also like to mention another thing. I be-
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lievez due to some recent decisions, the State Department was told that
relative to some questions they were asking people who applied for
passports, they could no longer demand that they answer, and yet the
State .Department continued to use the same forms. The average
person thought that he would have to fill in these answers and the
State Department in reply to an inquiry said that the continuance
of the use of these forms was a measure Of economy.
Well, if the State Department is interested in saving a few dollars
.on the printing of a form, I should think the individual citizen might
also be interested in saving his money, too.
Another thing I would like to bring out is that it appears to me that
the. arbitrary denial of the right to travel to a certain extent is con-
trary to the American ideal regardless of the motivation and desires
of the State Department. Isn't this true, in a way?
Mr. BENTLEY. I think, Mr. Chairman, that Mr. Hanes has sub-
:witted oy was asked to submit for the record the Department's posi-
tion with respect to the constitutional right of travel and their belief
that on the other hand-the possession of a passport and the privileges
that a bearer of a passport possesses are regarded not as a right but a
privilege.
I know he was asked to submit that for the record. I don't know
,whether he has done that or not.
I can merely refer you, Mr. Meyer, to this committee print which I
.quoted from, where the conclusion is reached that during a time of
emergency, which situation we are now living in, that the Secretary
of gate has a right to exercise certain discretion as to who should
and should not receive a passport without thereby infringing on the -
constitutional right of travel.
Chairman MORGAN.. That, request was made but the material hasn't
.been submitted. (Seep. 33.)
? Mr. MEYER. I happen to believe that it is wrong to permit the State
1Department to make the issuance of passports an instrument of for-
eign policy and I also happen to think that in actuality travel control
is to a .certain extent thought control. I think that the Secretary of
State hasn't in the past had the right to prohibit people from travel-
, either to friendly or unfriendly countries in peacetime.
Now, we could say that this is wartime but officially it is peacetime,
?isn't it?
Mr, BENTL, Officially, it is a period of national emergency. I
take it, Mr. Meyer,e that you are not directing your remarks solely
against my bill, but you are opposed to any legislation of this type
Whether advanced by me, Mr. Selden, or any other Member of the
Congress; is that correct, sir?
? MT-. MEYER. I am opposing anything without adequate safeguards
.for the conOtutional rights of the American people. If those safe-
? guards are in it and: if. it is. done in a way that makes it practical for
the ordinary citizen _who. isn't wealthy to defend himself, that is a
different matter,
Mrs. Bourox-.. .chairman, may I ask our colleague what he
would consider adequate .
Chairman MORGAN': Will you yield to Mrs. Bolton, Mr. Meyer?
Mr. MEYER. Surely.
Mrs. BOLTON. What would you consider adequate safeguards?
you tell us what you mean by that?
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74 PASSPORT LEGISLATION
'11/E MEYER. I would think if it was the case of a board, and this
bill :nentioned only "a" board,, there would have to be provisions in
the bill to take care of travel expenses and the expenses of the imE-
vidual. In a way he is declared guilty rather than proven guilty. I
thin there should be definite provision for travel funds, at least.
.And I think that furthermore the burden of proof should be upon the
Stat 3 Department or Upon the Government, and that they should have
to ftsclose all of their information and the source of it as well.
? Mr. BENTLEY. Well, Mr. Meyer, if I can comment on that, the D3-
part ment witnesses who have been up here have made very clear that
in s_ich cases if they were required to disclose all evidence and its
sources that in many cases they would be unable to pursue the case
because of the inability to secure from other agencies and depart-
ments of the Government the right to make suclf revelations, or they
.would be unable to secure from those departments any information if
they had to disclose the sources and I am sure that you and all of us
are well aware of just what that would entail if the information, v11
Ines of information, all sources from which the information was
derived, had to be revealed in open hearings.
Mr. MEYER. Lam aware of that, but I think that is a decision that
they must make since they by their actions are depriving American
citnens of their constitutional rights if they don't do it. And, fur-
the i more, they have already, in a way, installed control of the press
by k tetiOnS of this type.
Mr. BENTLEY. Mr. Meyer, it seems to be a question of fundamental
definitions. I admit the constitutional right to travel, but I don't
adn lit that a person has a constitutional right to possess a passport.
PILCHER. Will the gentleman yield?
Mr. MEYER. Surely.
Mr. PILCHER. Do you know of any specific case of any individual
tha; the State Department has ever turned down a passport for, that
yot would have (riven one to?
Mr. MEYER. No, I do not because I haven't gone into any detailed
cas,s. Just the subject in general.
Mr. Junu. Will the gentleman yield to me for just a comment ?
MT. MEYER. Surely.
Mr. Rion. I think the record should show that we are not dealing
there with a constitutional question. The Supreme Court in the deci-
eiai which led to the need for this legislation said it was not making
its decision on a constitutional basis, it was overthrowing the existing
.prtetice of denying passports only because Congress had never pro-
Tided legislation authorizing the State Department to do so, but; it
di C IA say it would be unconstitutional for us to pass such legislation.
M. MEYER. They weren't asked to rule on that matter, were they,
Mi. Judd?
MT. junto. No, but they went out of their way to point out they were
not ruling on the constitutionality. They were just saying that State
dien't have the authority in law to take the action which, as far as
tiu y were concerned, was constitutional if authorized by Congress.
Chairman MORGAN. Mr. Wainwright, any questions?
Mr. WAINWRIGHT. No, thank you, Dr. Morgan.
Chairman MORGAN. Mr. Bowles?
'Mr. Bow LES. I have no questions.
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Chairman MORGAN. Are there any further questions to be directed
to the witness?
Thank you, Mr. Bentley.
Mr. Junn. I think Mr. Bentley ought to be complimented for the
work he has done on this, and his bringing out additional important
points.
Mr. BENTLEY. Thank you.
Chairman MORGAN. Our next witness, is Mr. Selden, who, as you
know, was the author of the bill which passed the House last year and
is the author of H.R. 55 which is identical to 17 other bills that have
been introduced by other members.
STATEMENT OF HON. ARMISTEAD I. SELDEN, IR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF ALABAMA
Mr. SELDEN. As you know, Mr. Chairman, last year I introduced a
bill, H.R. 13760, that provided for the denial of passports to persons
knowingly engaged in activities intended to further the international
Communist movement. Although this measure was approved by the
House on August 23, 1958, without a dissenting vote, there was not
sufficient time before adjournment for the Senate to consider it.
On January 7 of this year, I introduced an identical bill, H.R.
55, which is now before this committee. On several occasions since,
I have called to the attention of the House the vital need for enact-
ment of this legislation at an early date.
Many persons with known records of Communist affiliations have
received passports since last June when the Supreme Court of the
United States held that the Secretary of State, under existing law,
has no authority to deny passports to members of the Communist
Party. In addition, a deluge of people with records of Communist
affiliations have applied for passports since the Supreme Court's de-
cisions of last June, and applications are still flowing in to the Pass-
port Office.
It is a well-known fact that international travel is one of the prin-
cipal means whereby the .Communist conspiracy is promoted. Its
couriers travel from foreign capital to foreign capital, carrying with
them in their minds the orders and directives of the Politburo and
of Peiping. In this manner, detection is avoided and personal con-
tacts between members of the conspiracy can be furthered. Also,
there have been repeated instances where affiliates of the Communist
movement travel abroad to engage in activities harmful to the se-
curity of the United States, such as inciting revolt against friendly
governments, engaging in untruthful propaganda against the United
States, and giving aid and comfort to our enemies even while we are
engaged in active hostilities with those enemies.
A case in point concerns James Jackson, secretary of the Commu-
nist Party of the United States. On February 2 of this year, he
told the Soviet Congress that if President Eisenhower could say, as
Nikita Khrushchev did in his report, that in the United States here
is not a single political prisoner, then many leaders of the Com-
munist and workers movement of the United States would be able
to be present there and to greet the delegates of the Congress.
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! 76. PASSPORT LEGISLATION
;
Iii 13the Soviet Government was recognized on the basis of
formal agreement by its Foreign Minister that there would be no
,
Mo:;cow- ir,ected., or ass m
isted, Comunist activity in the United
Stvcs. et an American Communist, James Jackson, has the inso-
lent e publicly to report in Moscow that the American Communist
Pai ty "takes part in the daily fight to improve workers."
This American, speaker traveled, to Moscow on a valid U.S. 1-)ass-
Oi';.: 'Ire was therefore entitled- to the aid of American officials
0 f?eag""Arid t9 good treatment by foreign governments. Our Secre-
tar' of State was unable, as the result of two Supreme Co -art de-
cisi ms, to deny a passport to Jackson and consequently to keep him
frian?wr9,pping himself in the protection of the American flag.
" A lthough no one believes more firmly in free speech than I, I do
not feel that we can condone the practice of giving a passport to a
mit so that he can attack the United States before a foreign policy-
. - - , . , - . ..
riia 4rig body. Nor do I believe that we can condone . the practice
Of letting American Communists travel abroad who serve the Soviet
Ti!riii tin- as espionage agents, couriers, and saboteurs.
'? 1 he President of the United States made it clear in a special IlleS-
Slagii) 16 Congress last July that quick action is necessary to protect
us, : rem this, dangerous practice. The following month the House
passied the bill that would give the Secretary of State, subject to ad-
Mit iStrativc and judicial review, the necessary authority to deny pass-
por'::S to Members of the Communist Party.
, As I pointed out earlier, the measure I have introduced this year
(41,11. 55) is identical to the one passed overwhelmingly by the House
last year. This bill provides that passports may be denied by the
Sec ttary of State to three categories 431 persons: (1) a member or
former member of the Communist Party, (2 an individual who is
i -
affiliated with the Communist Party, and 3) an individual who
. .,. . . .
knovngly engages or has engaged since 1948 in activities intended to
furl tier the internationalCommunist movement.
In all three categories, howTev er, the Secretary of State is required
to make an affirmative showing that the activities or presence of the
per:on abroad would be harmful to the security of the United States.
- It spite of what may he said to the contrary, this legislation pro-
vicks firm safeguards for the rights of the individual. -- Section 8 of
the bill contains a positive provision for an administrative hearing.
In addition, there is a provision for judicial review in the district courts
of the United States. These provisions are intended to insure that
no 'Secretary of State arbitrarily infringes on the rights of citizens
and to insure that the requirements of due process of law shall be
Met,
? This legislation was carefully and thoroughly considered by the
meribers of the Committee on Foreign Affairs last year. At least 10
diffe,rent bills were on the committee calendar, and the measure which
we reported underwent a detailed and searching analysis. I might
also .add that the bill was reported by the committee without a dis-
sent ino? vote. .
- A ltriough this legislation is more restricted than the bill originally
requested by the administration, it grants the necessary authority to
the Secretary of State and, at the same time, provides adequate safe-
gua ds for the rights of the individual. Since it was approved with-
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out a dissenting vote by the committee last year and was subsequently
given unaninionS approval by the House, I do not believe there can be
any 4ues6on as to the soundness of the legislation. The need for it.
cannot ba , Qveremphasized. Each day that the Secretary of State
goes' Without the authority provided for in the legislation increases our
vulnerability to the dangers of international communism.
Chairman MORGAN. Thank you,Mr. Selden.
, Mr. Selden, will you go into detail concerning section 8, particu-
larly as to how the three 'words "on the record" become a part of this
bill? .
Mr. SELDEN. That is the only thing in the bill which was not there
when we considered it on the floor of the House. The only way we
could get the bill scheduled last year was to put in those three words.
After consulting with the chairman, Mr. Vorys, and Dr. Judd, we de-
termined that this would be much better than no bill at all. The
State Department indicated that they could operate under this legis-
lation, although possibly not as well as without the words "on the
record." The amendment was offered on the floor of the House and was
accepted.
- Chairman MORGAN. Mr. Selden, do I understand last week when
Mr. Hanes testified he testified that the words were. objectionable to
him but if the bill did pass in the final form- with the words in, they-.
felt they could still live with the bill?
Mr. SELDEN. That is my understanding.
Also, I might point out that Under Secretary Murphy in answer to
my inquiry yesterday, indicated that if this legislation were in being
there probably would be many to whom they are now granting pass-
ports who would never request a. passport. If it reached a point
where the person involved carried his case to the district court and all
evidence had to be put on the record, perhaps they would have, to issue
the passport. But.many, many applicants with a record of activities in
communism would be eliminated as a result of the passage of legislation
of this type.
Chairman MORGAN. Thank you, Mr. Selden.
Mrs. Bolton ?
Mrs. BOLTON. I think I have no questions. - You have settled my
"on the record" question.
Chairman MORGAN. Mr. Pilcher?
Mr. PILCTIER. No questions.
Chairman MORGAN. Dr. Judd?
'Mr. Jubo. Thank you, Mr. Chairman. I want to underline what
Mr. Selden has said as a very concise and accurate review of all the
things that went on last year. I think a good many of us would rather
not ha-,-e had, the words "on the record." It is the old problem, as
Abraham Lincoln stated it, how can a government be strong enough to
defend and preserve itself without being so strong as todeny the
individual rights of its citizens. And as usual, we wind up with a
compromise. Under this language the tough Communist who has the
full resources of the party behind him and knowing that, the only
evidence they had on him was obtained secretly in a way they couldn't-
reveal without wrecking their channels of gathering further infor-
mation, would know that the State Department, wouldhave to give
him a passport. The hard-boiled ones?some of them--would get by.
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78 PASSPORT LEGISLATION
There is no question about it. It is not a perfect or complete protec-
tion. But this bill would take care of most of them, perhaps 75 or 80
percent of them and that is worth doing. We shouldn't refuse to do all
that We can do just because it isn't a perfect operation.
I am in favor of all the things that are in the Bentley bill and the
things that the State Department would like to have, but I recognize
the p:.actical fact that we probably did about the best we could last
year and. I would rather hope, Mr. Chairman, the committee would
vote cut the Selden bill, I myself having introduced an identical bill.
We can pass that bill this session. Otherwise, we will have 5 more
months in which the couriers continue to run abroad, assuming the
Senate would act even in January, which we can't assume.
I h lye no further comment and I have no questions.
Chiirman MORGAN. Mr. Meyer?
Mr, MEYER. I am very grateful for the explanation Mr. Selden gave
and ]: certainly see the logic and reason in his position but I would
like to point out one thing that has happened to me personally. One
of my constituents wrote a letter to the newspaper in which he stated
that, whereas he didn't say that Bill Meyer?because he knew me
perscnally?that Bill Meyer was a Communist, he said because of a
certain position I took on a certain foreign policy issue, more or less
his v ords went on to say that I supported the Communist movement
or Ciimmunist objective and these words to a. certain extent are some-
what similar to the words in this bill and I would be concerned that
I myself under this bill could be denied a passport.
M. SELDEN. DO you want me to comment on that?
M. MEYER. Yes.
M:% SELDEN. Well, I think if you will read section 6 carefully you
Will see there are a good many things in that section that have to
be considered before anyone can deny a passport to an individual.
First, he has to be either a member or a former member, or affili-
ated with the Communist Party, or who knowingly engages or has
engaged in activities intended to further the international Com-
munist movement. Second, it must be determined that his or her
activities or presence abroad would under the findings made in sec-
tion 5?which you would want to read carefully?be harmful to the
security of the United States.
So I hardly think under the case that you gave that a passport
could be denied, or there would be any effort made to deny it,
Mr. MEYER. Normally I don't think it would if the lauguage is
reae -clearly and understood--a lot depends upon the interpretation
of ti lose to whom the authority is turned over.
SELDEN. Well, of course, the only i way you can protect the in-
dividual under conditions of this type s to grant them review, both
administrative and judicial, and this bill takes care of that.
Ti., is a pretty hard thing to protect this country against them when
you are cloakingthem with the American flag and letting them travel
wherever they want to go under those circumstances.
I think under the terms of this bill that there will be a, minimum
of harm and it will be extremely helpful, and probably no one will
eve get hurt under it.
Mr. MEYER. I realize the problem and I realize it is complicated
an I know the further comment I am going to make doesn't apply
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directly to this issue, but it does indirectly. Even a man with the
stature of Justice Douglas, for instance, was denied, shall we say,
what was his privilege or right in going to Red China because for
certain reasons the State Department didn't really want him to go
there.
Mr. SELDON. Has the State Department issued passports for any-
body to go to Red China?
Mr. MEYER. Very few, I imagine. I don't know.
ME. SELDON. Have they?
Mr. JUDD. Oh, yes, they offered passports to a whole group of news-
papermen and the Chinese Communists wouldn't give them visas.
Mr. SELDON. I didn't say offered, I said issued.
Mr. JUDD. No.
Mr. &mow. There have been none issued as far as I know. Am I
right?
r. Junn. There have been some issued.
Chairman MORGAN. Very few.
Mr. BENTLEY. I think the finding of the State Department was
that Justice Douglas was not a newspaper correspondent.
Mr. JUDD. Will the gentleman yield?
Mr. MEYER. Yes.
Mr. JUDD. On this language, "engaged since 1948 in activities in-
tended to further the international Communist movement," are you
suggesting that because you have done some things for other reasons
that somebody could claim assisted the international Communist
movement, you might be denied a passport on that basis? I think
most of us could be denied one if that were the basis. I have done
some things for reasons I thought were valid which it has been claimed
by others were furthering the Communist movement. I have been
accused of being an agent of Chiang Kai-shek, as if I were getting
some money around the corner or disloyal to the United States.
This is one of the hazards of being in public life.
There are a lot of people in this country today who believe that the
activities or even presence of our President in Moscow in November or
December will "further the international Communist movement." But
I don't think any court would ever hold he was engaged in activities
"intended to further the international Communist movement." That
is the point.
He is going there to try to help to check that movement. It could
turn out to be otherwise. He realizes that. His activities could
further rather than hinder the movement. But his intention is not to
further it; it is the opposite.
That language, I think, protects anybody from any possibility of
being held by a court to have intended to further the international
Communist movement unless it had a lot of substantial evidence that
he was trying to further it rather than trying, as you were in your
case to protect the rights of American citizens.
Air. MEYER. I didn't mean to be arguing for myself, but I was
arguing for the possible interpretation of the language that could
hurt people who didn't have either the funds or the ability to really
defend their rights.
Mr. SELDEN. I might point out again, in section 8, it says, "No ap-
plication for passport may be denied under section 6 of this act except
after opportunity for hearing." That is administrative hearing.
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Section 8 also provides:
Denial,of a passport pursuant to section 6 of this act shall be subject to Judicial
review on the, record, i the 'district Court of the United States.
Th is takes care of the travel situation you discussed earlier, Mr. Meyer,
... -Mr. BENTLEY, Mr.
Chairman MORGAN. Mr. t e n tl ey.
Mr, BENTLEY. I dqu't wantniy remarks to be construed as criticism
of H.R. 55 because we have the same objectives, but I would like to
ash .you about certain things which H.R. 55 doesn't contain.
:En the first place, there are no--I will use that wonderful word?
?evidentiary" provisions in this. There is nothing indicated as to
what the Secretary has to consider in making his findings, is there?
Mr. SELpEN. Let me say this: You .and I know that after this bill
was introduced the State Department sent up their comments on it
and gave recommendations which they felt would improve the bill,
wh ich they should have done.
Your,inli was introduced in accordance with the recommendations
tin t were made, in conneetion ,with this bill by the State Department.
Mr. Hanes testified in open session the other day that while your
bill went into more detail, that under the terms of Mt 55 the State
Department could set up the necessary administrative procedure. We
epuld write this procedure into the law if we so desired. But if we
dicl not write it into the ,law, then of course, the State Department
would t, up administrative procedure along lines provided in your
legislation. .
l4et me say again, the precedent is here; the bill has been passed, and
if the Department of State Can operate under it?which they have
indicated they can?then let's not confuse the issue. Let's report the
bill?approved unanimously last year, both by this committee and the
Hc use of Representatives.
Mr. BENTLEY. Let me make three observations, if I may. In the
fin t place, H.R. 55 has no overall time limitation.
Secondly, H.R. 55 has no limitation of time with respect to the find-
inc. or the action of the Department after the passport is applied for.
Thirdly, H.R. 55 only pertains to denial of passports and does not
pei tam n to either revocation or restriction of passports.
Would those three statements be correct, Mr. Selden?
M. SELP.EN. I think probably on their face those statements axe
correct. .
, Mr, BENTL,EY. You and I certainly have the same objectives, and
it -'s merely, in my way of thinking, Mr. Chairman, a question of
whether or, not the Congress wishes to pass legislation which would
then, in.gfCeetput the responsibility on the State Department and he
i
Secretary to ssue administrative rulings for the purpose of adminis-
trative review?I don't think you could issue regulations as to the
qm Stion of judicial review?or whether the Congress wishes to spell
opt Carefully and specifically the provisions which should be fol-
boy .0, both 1,P. the CaSeS of administrative and judicial review, in the -
Ca? of adverse action_on a passport application.
I think, sir, that is the whole decision before us. I mean other than
that. the Seidel). bill , and the Bentley bill seem to me to be nearly
ideriticat It is merely a matter of choice as to whether the Congress
wiEhe,s to leave the responsibility in the hands of the State Depart-
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ment?as I say, I don't know who would be required to spell out the
'conditions pertaining to judicial review contained in section 8 of Mr.
Selden's bill or whether the Congress wishes to write careful and
specific legislation such as they have told me the language of H.R.
7006 contains.
I think that is the question the committee and the Congress would
have before it in considering these pieces of legislation. Otherwise,
they are nearly identical. Certainly, they are identical in their
objectives.
Chairman MORGAN. Mr. Bentley, that is exactly what I wanted
in the record?a description of the difference between the two bills.
Mr. BENTLEY. May I ask though, Mr. Chairman, in that connec-
tion, the Secretary, if the Selden bill were passed, could, of course,
promulgate and issue administrative regulations to provide for ad-
ministrative review, but where would the conditions, Mr. Selden, of
judicial review, as contained in section 8 of your bill?how would the
specific procedure be determined?
Mr. SELDEN. That would be determined by the court.
Mr. BENTLEY. In other words, you would place the responsibility
on the Federal district courts to individually determine the procedure
which they would follow in applying judicial review?
Mr. SELDEN. Yes.
Mr. BENTLEY. Wouldn't it be conceivable one district court might
follow one procedure and one another?
Mr. SELDEN. I don't think so.
Mr. BENTLEY. Very frankly, I have confidence in the Secretary
and the Department of State issuing regulations with respect to
administrative review, but when you leave the responsibility of deter-
mining procedure for judicial review in the hands of the court, or
the courts all over the country, without even limiting it to this
district court here in the District of Columbia, I just wonder if that
isn't a gap.
Mr. ISELDEN, Have you set out in your bill provisions for judicial
review
AIr. BENTLEY. yes, sir; section 9, page 7.
?sir. SELDEN. However, you don't set out the procedure the court
must follow.
Mr. BENTLEY. The court shall have power to determine, as to the
findings by the Passport Control Board, the Passport Hearing Board,
and the Secretary of State., and it says what the court is to consider.
Mr. SELDEN. They certainly would have the same authority under
this section 8 in my bill.
Mr. BENTLEY. I raise the question, Mr. Selden, and I raise it seri-
ously as to whether or not you would want the District Courts through-
out the country, each of them to follow their own procedure.
Mr. SELDEN. You will find the district courts throughout the coun-
try follow generally the Federal Rules of Procedure. Their review
passport denials would be similar in all district courts.
? You ha ven't set up in section 9 of your bill how the court will be
operated.
Mr. BENTLEY. I think it has been spelled out a little more carefully
as to just what they ought to consider, but let me ask you just one
more question: Did you intend to limit this to passport denials?
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:In other words, if a person's passport is revoked or a person's pass-
port is restricted, then your bill would not apply?
Mr. SELDEN. H.R. 55 deals with denial of passports.
Mr. BENTLEY. Only denial?
Mr. SELDEN. That is correct.
Mr. BENTLEY. In other words, if . a person has a passport and you
tale it away from him, he has no recourse?
? Mr. SELDEN. H.R.. 55 would apply to the denial of passports in
tlu future. ,
lt,fr. BENTLEY. If he has a passport and it is removed or taken away
frc m him, or canceled--.---
Mi. SELDEN. They would have to proceed under the present law.
Mr. BENTLEY. Under the present law the person would have no.
appeal.
Mr. SELDEN. I think you will find the decision of the Supreme Court
wa 3 made in connection with the denial of passports.
T,fr. BENTLEY. Thank you, Mr. Chairman.
Chairman MORGAN. Mr. Fulton, Mr. Selden is the witness. Have
you 'any questions?
FuLTox. Was there any idea before the committee of possibly
putting on an added provision giving the Department power in cer-
tain eases to require the returning U.S. citizen to apply for a re-
entry permit where they could examine him as to what his actions
are abroad?
1.'hat is, in addition to the question of the passport legislation. I
am 'Simply asking that as a possibility of an added remedy or an
adeed field of investigation.
Mr. SELDEN. Mr. _Fulton I have simply made a statement on the
'bill that I introduced and 14r. Bentley has done the same. We haven't
reaiied the point of adopting a bill. We were just pointing out what
the different bills covered.
.gr, FULTON. Could I ask either of you two people who have
s odsbred the bills, do you feel that, even though there is the pos-
sibility of the fifth amendment being taken that it might be wise
to have some sort of an additional reentry permit upon coming back
into the United States that they would have to apply for, which
would make some people feel, "We are not going abroad. We might
not get back unless we go through a hard examination of our activi-
ties, or would have to plead the fifth amendment."
Mr. BENTLEY. Now, Mr. Chairman, may I speak to that a moment?
Chairman MORGAN. Mr. Bentley is recognized.
Mr. BENTLEY. There, I think we run into the question of the con-
stiti itional right of travel, Mr. Fulton.
Assuming a person applied for reentry to the United States after
? having been abroad, but refused?either to submit to this questioning
or relused to make application for reentry permit or gave unsatisfac-
tory or evasive answers, let's say--do you think constitutionally you
coU'd deny an American citizen the right to reenter his own country?
MI-. FULTON. I don't think you would deny him entrance, but you
would certainly put him in jail or fine him for what he has done that
is in violation of the law, upon reentry.
You see, it gives you an act upon which to act, while with the pass-
poll provision alone you are simply saying that because of the man's
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PASSPORT LEGISLATION 83
previous actions in this country?of which he hasn't been convicted
in many cases?and his intent to go abroad to be an activist, that you
are then going to put a limitation on his right to travel abroad.
Mine is a suggestion possibly to add on an application for a reentry
permit under which he can then be examined under oath and then
if he lies, you might very well pick him up and put him in jail for
6 months.
Mr. SELDEN. Suppose you don't give him the reentry permit'? Then
where does he go? Who takes him? Who can we force to keep
him?
Mr. FULTON. Well, if he applies for a reentry permit he must
then justify the actions that he has taken abroad. He can be exam-
ined at the time of a reentry permit.
Mr. SELDEN. But suppose we determine as a result of those activities
we won't give him a reentry permit. Then where does he go?
Mr. FULTON. Well, that is the obverse of the same coin. Because
under your bill, you are saying if he might do wrong as a, future
intention' we will not let him travel; we will hold him right here.
My point is if the individual has gone abroad and actually has carried
out his intent and you can pin him down as having taken these ac-
tions, then when he comes in, have him apply for a reentry permit and
you have actions to base the legal procedure.
I think under the Smith Act you may be weak because you are act-
ing only on intention.
Mrs. BOLTON. Will the gentleman yield?
Chairman MORGAN. Regular order, please.
Mr. Fulton has the time.
Mr. FuLToN. I yield to Mr. Bentley.
Mr. BENTLEY. Suppose the individual, for example has returned
from a youth congress behind the Iron Curtain, and he immediately
applies?he comes back to the States and applies for his reentry per-
mit presumably at the point of entry, is that correct?
Mr. FcriiroN. That is correct. Under your bill suppose they made
a mistake and let him go out.
Mr. BENTLEY. Suppose that the information which would have to
be reviewed for the purposes of determining whether or not he should
get the reentry permit were?well, suppose it took several weeks to
collect it, to amass it, to bring it back. Are you going to keep the
man in a state of suspense as to reentry until all the information is
correlated from maybe several foreign countries?
Mr. FULTON. We have that on every visa we issue. We check to
see whether the person is morally competent to come into this coun-
try on every visa.
I am not going to hold him up a long time, but I am sure our people
know who were agents abroad and we can tell the ones right away
Who have been in touch that we suspect of ill-advised action against
U.S. security.
Then we say to them just as we do in the Un-American Activities
Committee: "What have you been doing?"
And my position then is, there is then an offense if they tell a lie
under oath on such examination.
Mr. SELDEN. Suppose they can't qualify for reentry permits?
What happens to them? Do you keep them out of this country?
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?Mr, FILLToN. At the time of getting their reentry permit they are
put under oath. You see, even though they might force their way
tack in by a court decision, they still will have to go through the
Trocess of explaining their actions abroad under oath.
Mr. SELDEN. I understand that but let us suppose it is determined
f tat a reentry permit should be denied. Then where does he go?
Mr. FULTON. Permit me to open your concepts on that. There are
t To, possibilities. You put; a condition on his reentry rather than
.13:ockin,g his reentry. It is a conditional reentry. That when he
comes in he must explain under oath what his activities are abroad.
Mrs, BonToN-. Mr.. Chairman, will the gentleman yield?
chairman MonoAN. Ms. Bentley, will you yield?
Mr. BENTLEY. Yes.
Mrs. BOLTON. Who gets these reentry permits, all of us when we
go over?
r. JUDD. Certainly.
rs.,BoLTow. You .say "when he gets a reentry permit." I might
just as suspiciously considered. If I am not under surveillance,
over and come back without a reentry permit, but are we going
to msist 011, ,the additional reentry permit as they do in some coun-
.tr7. ? Eyerybody who goes out has to have one to get back in?
. PuLToN. You see, when a person applies for a U.S. passport,
you would have a reentry permit that you would apply for, and in
your case, Mrs. Bolton, prima facie, you would get it automatically
with no trouble.
Mrs. BOLTON. I am not talking about me at all. I am talking about
the general public. We are sending them over by the millions. Are
w? going to issue millions of reentry permits?
? Ms. FuLToN., The, general public will automatically in most cases
,get its reentry permit, but where there is suspicion, then that person
fig abroad is already on notice that he is going to have to be
subjected to an inquiry under oath as to what he has been doing
,abrpad? think you may put quite a limit on what some of them
May be going abroad for. Many will think they are not going to go
:through that procedure when they come back in.
,11r. J.-up)). Will the gentleman yield?
F LToN I will be glad to.
"
_4, or such an arrangement we would certainly get into
?unsOnstitutional snooping and invasion of the privacy of individuals.
We would be violating the Constitution in its guarantee that a man
tis s3pure.4in his 0,pers. We could engage in a "fishing expedition"
? 911.;.*Tery- returning citizen. It would be like entering a man's house
iviLiout a search warrant?entering his mind without a search war-
. ran1;7-issued by a justice of the peace or a court to the effect that
e is enough evidence to entitle invasion of the man's privacy.
EvigoN, .Are .you against the Un-American Activities Com.
mit,ee investigating citizens?
34.r, Juni). No, ,
FuLToN. Why do you object to such an examination in selected
case when hp returns to this country?
r. JUDD. That committee doesn't call him up and ask him general
cqueEqons in a. flsh.iig expedition; they call him up on the basis of
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some evidence they have that the man has been engaged in improper
or un-American activities and they ask him about those activities.
It is quite different from asking a citizen "What did you do and
whom did you see and where did you go and much did you drink
and where did you sleep ?"
Mr. FULTON. I am surprised. I thought you would be my strong-
est supporter.
Chairman MORGAN. The committee stands adjourned until 10:30
Tuesday morning.
(Whereupon, at 12:10 p.m., the committee was adjourned, to re-
convene at 10:30 a.m., Tuesday, August 18, 1959.)
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PASSPORT LEGISLATION
TUESDAY, AUGUST 18, 1959
HOUS.E OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
Washington, D.C.
The committee met, pursuant to adjournment, at 10:50 a.m., in
room G-3, U.S. Capitol, Hon. Thomas E. Morgan (chairman) pre-
siding.
Chairman MORGAN. The committee will come to order.
This is an open session in continuation of our hearing on passport
control legislation.
Before we hear our witness, there are four Members of Congress who
have submitted statements; Hon. Paul G. Rogers of Florida, Hon.
Walt Horan from Washington, Hon. Thomas P. Curtis of Missouri,
:and Hon. Craig Hosm.er of California.
Without objection, these statements will be incorporated in the
record.
(The statements referred to follow:)
STATEMENT Of HON. PAUL G. ROGERS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF FLORIDA
..Mr. Chairman and members of this distinguished committee, I appreciate the
,opportunity to offer a statement today on my proposal, H.R. 6537, and others
under consideration which would grant authority to the Secretary of State to
deny passports to Communists and known sympathizers.
- If ever there was a time in our history when we should take positive steps to
close the loopholes in our national security network, that time is now. Should
we "doubt the wisdom of this statement, we have only to look to the impasse
reached around the conference table at Geneva. The Communists have time
.and time again displayed an unwillingness to honorably negotiate the momentous
issues facing the world today. Their leader has publicly promised to "bury" us.
This signal warning should serve to stir even the most complacent and apathetic of
las into concerted action aimed at self-protection and preservation.
Since the passage of the Subversive Activities Control Act of 1950, the effec-
tiveness of the efforts of agencies entrusted with our national security has been
lessened in many instances by adverse decisions of our highest Court. This has
been due in part to the absence of a clear legislative mandate in some of the fields
in which the Government has sought to operate. For the most part, however,
these decisions seem to reflect a reluctance on the part of the Court to strike a
balance between the rights of the individual on one hand and the dictates of our
national well being on the other. While this balance is admittedly very delicate, ?
It does not require a stretch of the imganination to envision a political system in
which all individual rights are subverted to those of the state.
Realizing that these decisions have had the effect of seriously hampering our
efforts toward self-protection, the American lar Association recommended certain
proposals designed to offset their effect. The measures under discussion today
are intended to implement one of these recommendations.
Historically speaking, the Secretary of State has always been empowered to
refuse passports to persons whose presence abroad might adversely affect our
foreign policy or endanger our national security. These determinations, however,
have not been based on statutory provisions. Thus, the. Supreme Court decided
87
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PASSPORT LEGISLATION
recently that the Secretary of State could not legally deny passports to Coro-
munisi s or Communist sympathizers. This decision resulted in passport applica-
tions f Inn almost 400 people believed to come under the category denied passport:3
under the proposed legislation. World domination, the ultimate aim of coin-
munis.n, is dependent on free and unrestricted travel of its advocates, whether
they Le American or otherwise. To permit these people such an opportunity is
to permit theiix to broadcast their distortions and untruths about our way of life
while t the same time affording them the protection of the Government they
are at empting to undermine.
There is nothing arbitrary or capricious involved here. Provision is made for
a full administrative hearing which requires that the Secretary of State show
cause why a passport shOuld be denied. Nor is it a question of denying the right
of an 'ndividual to entertain unorthodox political, economic, or social views so
long s these views do not endanger our security. What is involved, howeve-,.
is whether our democratic ideals and institutions will be able to withstand the
assau)ts leveled against them from within and without if we do not take steps
to sui stantially strengthen and protect them.
Tlu,nk you again, Mr. Chairman, and I hope that the committee will look
fayov,bly on these proposals.
STATIMENT OF HON. WALT HORAN, A REPRESENTATIVE IN CONGRESS FROM THE
STATE OF WASHINGTON (FIFTH DISTRICT)
I 'Want to thank you for allowing me to appear before you today on behalf of this.
legish.tion which.' provides for the denial of passports for persons knowingly
engaied in Communist activities. I believe this measure is as important to the
W`elfaT..of our .country as any to come bt3fore the Congress in recent years, and
I sin i erely hope 'that you take favorable action on it soon.
Sin ce the Supreme Court handed down its decision that the Secretary of State
emi.ld not refuse an American passport to a citizen of the United States even though
the individual be a known Communist, there has been literally a flood of applica-
tions for passports by individuals that the State Department has reason to sus-
pect are Communists in their affiliations and activities.
It is reported that many of those who rushed to get passports have shown no
incliiation to use them immediately. This may be because they fear that Con-
gress will enact remedial legislation that will vest specific statutory authority
in thqSecretary of State to deprive American passports in such cases.
,.1,:ivitevp' President Eisenhower expressed the urgent need for this ineasurc
*her he said,-2rEach day and week that passes without it exposes us ,z.o great
danger!' I certainly agree with him.
, Mr, 4olin W. Hanes, Jr., Administrator of the Bureau of Security and Consular'
Affairs, also pointed up the need for action when he said: "All we seek, and what
I (e?1 we Must have, is the capacity to protect ourselves by denying passports
to tioSe relatively few hardcore, active Communist supporters who are not
Ordinary ArneriCan citizens and whose travel abroad constitutes a danger to the
United States."
innly believe that such dangers do exist, and the majority of Americans are
depending upon the Congress to enact the necessary protective legislation.
Jr closing I want to say that I agree with the principle of freedom of travel
excepl when that freedom is detrimental to the security of our country. In such
case >2 / do feel that some restrictions on that freedoin must be imposed.
_ Taank you.
OTA MENT OF HON. THOMAS E. CERTIS A REPRESENTATIVE IN UONGRESS
r nom THE STATE OF MISSOITRI, RE H.R. 5455
Mr. Chairna'an, there has been considerable 'amount of discussion relating
to the need for adequate passport legislation. In my opinion, the present laws
Eire inadequate to Provide for the travel needs of our citizens. In response to
this need, I have introduced H.R. 5455, to establish a national policy relating
tb the U.S. citizen's travel abroad; to establish a service within the Department
of State which shall be responsible for the direction, administration, and execution
of passports arid travel -documentation for American citizens and nationals in the
United States and abroad; to prescribe procedures relating to the issuance of
pa ? ;torts; to eStablish terms of validity of passports; to establish fees for passports,
and for other purposes.
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Following the recent Supreme Court cases?Briehl, Dayton, and Kent?a
plethora of legislation has been introduced in both chambers of the Congress
relating particularly to various types of limitation on the individual citizen's
Tight to travel. In view of this I think it incumbent upon us to give serious
consideration to the nature of the individual's right to travel. In my opinion,
the right to travel is of equal dignity with our basic freedoms set forth in the first
amendment. The constitutional basis for this conclusion is the provision contained
in the fifth amendment wherein it is provided that no person shall be deprived of
life, liberty, or property without due process of law. Certainly "liberty" means
that the individual citizen has the right to do what he wants, go where he wants,
say what he wants as long as in so doing he stays within the respected mandate of
"the general welfare of the people." It is only when a clash arises between the
individual rights of a citizen on one hand and the collective rights of the citizen
on the other, that the former must yield to the latter, but only to the extent that
the former will, by so doing, more fully realize his rights as a member of the
latter. This yardstick that is applied to measure the length and breadth of the
tndividual rights of our citizens finds application in the area of this right to travel.
We erect stop signs and street lights and promulgate rules of procedure for conduct
in and on our highways. We do this not with the e? press purpose in mind of
encroaching on the individual's freedom to travel but we do so with the purpose
?of facilitating travel to enable the individual to more fully enjoy and make use
of his individual right to travel.
Stop signs and street lights facilitate travel and passports facilitate travel.
The real reason we require passports is because foreign countries require passports.
-These countries want to know just who the person is that seeks entry into their
country. The passport, then, is really nothing more than an identification card
indicating to the particular country that the bearer is a citizen of the United
States. It is also a request from the traveler's country that the foreign country
extend to its citizen the protection of its laws during the citizen's travel and
I3ojourn in their country. So the passport, then, is an aid to travel. The issuance
of a passport to a citizen permits the citizen to more fully enjoy his right to travel.
The Government's refusal to issue a passport to an individual restricts and limits
the citizen's right to travel, the effect of which is to deny to the citizen his con-
stitutional and natural right of locomotion. It becomes apparent, then, that the
Federal Government's right to limit or deny the full enjoyment of a constitutional
and natural right is governed by the aforementioned general welfare of the people
yardstick.
In my opinion, the promotion of international travel of U.S. citizens and the
.encourarement of our citizens to know and to understand all peoples throughout
the world is in the individual and the public interest and conduces to a more
amicable and understanding relationship between all peoples and their respective
.countries. This, of course, is a policy decision to be made by the Congress. It
is certainly consonant with the prior congressional pronouncements relating to
-our country's international programs:
Travel by citizens abroad should be as free of governmental restraint as possible
iconsistent with requirements of national security. The Government should
facilitate such travel and should provide for the protection of citizens abroad by
providing passports, by negotiating with other countries to minimize travel
formalities, and by other appropriate means to implement this salutary principle.
In section 3 of my bill, H.A. 5455, there are certain findings and declarations
made by the Congress. You will note that the Communist Party in the United
States is characterized as not bleing a political party or a political philosophy as
such, but it is defined as "an instrumentality of the world Communist conspiracy
whose purpose is to overthrow the Government of the United States." It is
further characterized as being under the direction, domination, and control of a
?foreign power whose aims are the overthrow of any legally constituted governments
not Communist dominated.
A further finding is made by the Congress that all U.S. citizens who "knowingly
and willfully participate in the world Communist conspiracy in effect repudiate
-their allegiance to the United States and transfer their allegiance to the foreign
-power in which is vested the direction and control of the world Communist
-conspiracy and the Communist Parties of the world." A final finding is also made
:by the Congress that the issuance of passports to U.S. citizens who support the
world Communist conspiracy presents a "clear and present danger to the security
of the United States."
In view of these findings, the provision is made that during any period when the
'United States is at war or during the existence of any national emergency pro-
-claimed by the President, a passport shall not be issued to any U.S. citizen if such
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Citizen is a member of the Communist Party or is a member of any organization
which is registered or as to which there is, in effect, a final order of the Subversive
Activities Control Board requiring registration with the Attorney General of the
United States as a Communist action, Communist front, or Communist-infiltrated
organization, or has terminated such membership under such circumstances as to
warrant the conclusion that such citizen continues to act in furtherance of the
interest of the Communist conspiracy. Prohibition is extended to those who-
knowingly engage in activities which support the world Communist conspiracy
Under such circumstances as to warrant the conclusion that such citizen continues
to act in furtherance of the interest of the world Communist conspiracy. These
findings are consistent and in accord with the Internal Security Act of 1950.
This act makes it unlawful for any member of the Communist conspiracy to make
application for a passport or the renewal of a passport to be issued or renewed by
or under the authority of the United States or to use or attempt to use any such
passport.
? It is the opinion shared by many that before the Congress can lawfully limit a
citizen's right to travel because of his affiliation with the Communist movement,
it is necessary that the aforementioned findings of fact be made as conditions
precedent to any such restrictions. You will note further that these prohibitions-
will only be effective under the Passport Act of 1959, during a time when the-
United States is at war or during a period of national emergency proclaimed by
the President. It is my opinion that if further restrictions are found to be neces-
sary by the Congress that it is more appropriate that these restrictions be con-
tained in the Internal Security Act of 1950 as is presently provided rather than
encumber the Passport Act of 1959 which is designed to facilitate the travel of
U.S. citizens abroad.
In my bill, H.R. 5455, the Passport Act of 1959, is proposed the stated policy
of the Congress of the United States that the promotion of international travel
of U.S. citizens and the encouragement of its citizens to know and understand all
people throughout the world is in the individual and public interest and conduces-
to a more amicable and .understanding relationship between all peoples in their-
respective countries. This policy dictates that travel by citizens abroad should
be as free of governmental restraint as possible, consistent with the requirements
of national security. In accordance with this overriding principle, in my opinion,.
passport facilities should only be denied in the following instances, to wit:
First. Where such travel ould--
(a) Further the world Communist conspiracy as provided in the bill;
(b) Violate the laws of the United States or of any State or territory
thereof;
(c) Aid in the evasion of any order issued by any court of record of the-
United States or of any State or territory thereof;
(d) Aid in the evasion of any information or indictment for a felony duly
found by the United States or any State or territory thereof;
(e) Be prejudicial to the national welfare, safety, or security; or
(f) Permit such citizen to use a valid passport while there is outstanding
any sum of money owed by such citizen to the Government of the United
States for previous transportation back to the United States.
Section 5 defines the passport and section 5(b) contains a new concept in our
.passport laws. This provision provides that a passport issued under this act is
.iontransferable and becomes the sole property of the citizen to whom issued,
but is valid only for the period for which issued. This provision is sigr ificant
in that it is a break from the philosophy presently contained in the regulations
expressing the Federal Government personal property concept. The present
concept in any opinion is misleading. The right to travel belongs to the in-
dividual citizens subject, of course, to certain limitations as hereinbefore recited,
but basically this right belongs to the citizen. A passport is an essential aid to
travel abroad. In my opinion, the emphasis must be placed on the indiv..dual's
light to exercise this freedom of locomotion. It is therefore a matter of emphasis.
This new emphasis is based on what can we do at the Federal level to facilitate
the individual's right to travel, rather than vesting a personal property interest
iq the individual citizen's passport in the Federal Government. This is important
f .om the point of view of policy. The emphasis changes from the concept of a
privilege granted by our Government to the free exercise of a constitutional
r:ght by the citizen.
My bill makes further provision for the issuance of regulation by the Secretary
of State and significantly it provides for the establishment of the U.S. Passport
Service. Our present Passport Office, in my opinion, is doing an outstanding
job. The U.S. Passport Service is established under this act as a service to the
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American citizen to facilitate the citizen's travel abroad and in aiding him to
communicate with all people throughout the world.
There has been a great deal of discussion in the recent past relating to certain
area restrictions imposed by the Secretary of State. Section 16 of my bill provides
for restrictions of travel to, first, places where armed hostilities are in progress;
second, countries with which the United States is at war; and third, countries
to which the President finds that travel should be restricted in the national interest.
It is important, however, that certain exceptions be provided for and subsection
(b) of section 16 provides that the Secretary of State may make exceptions to
general travel restrictions for individuals and for classes of persons including the
classes of professional newsgatherers, missionaries, and doctors on medical
missions.
Before general travel restrictions can be imposed, however, section 17 of my
bill provides that travel abroad of any citizen shall not be restrained and passports
shall not be limited in validity with respect to any place unless the President has
made an appropriate declaration under subsection (a) of section 16. In each such
case, the President shall report the reasons for such declaration to the Committee
on Foreign Affairs of the House of Representatives and to the Committee on
Foreign Relations of the Senate and such declaration shall be effective for a period
of not more than 1 year unless such time is extended by law.
In accordance with the provisions of my bill, certain serious limitations are
placed on the citizen's constitutional right to travel. When a determination has
been made that a passport should not be issued to a citizen, it is absolutely essential
that the Congress make certain that the review procedures provided will accord
procedural due process to the passport applicant. In accordance with this belief,
section 18(a) of my bill provides for the establishment of a Passport Review Board
within the State Department consisting of five officers of the Department to be
designated by the Secretary of State. Further provision is made that no person
shall be eligible to serve on such Passport Review Board 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, renew, or extend such
passport or in the original action of withdrawal, cancellation, revocation, limita-
tion, or restriction of such passport.
The Passport Review Board shall establish its own rules of procedure which must
be approved by the Secretary of State. Subsection (b) of section 18 requires that
the rules accord the applicant or passportholder the right to appear personally, to
be represented by counsel, and to offer oral or documentary evidence. Applicant
or passport holder must receive a copy of the transcript proceedings and be
permitted to cross-examine all of the witnesses against him and examine all other
evidence which is made a part of the open record in the case. In accordance with
the overall policy, the Board must insure, consistent with national security, that
all evidence and witnesses relied upon are produced and made a part of the open
record.
In the event of an adverse ruling by the Review Board, provision is made that
the U.S. District Court for the District of Columbia, shall have jurisdiction to
hear and determine any appeal from a final decision of the Passport Review Board.
These are the primary provisions contained in my bill, H.R. 5455, nominally
called the Passport Act of 1959. In our society truth can be found in the full ex-
pression and enjoyment of the freedom of the individual. Free and unfettered
travel will help the individual in his quest for truth. It should be the Govern-
ment's position to encourage all of its citizens who are able to leave its borders
and communicate with their world citizens abroad. It is this dynamic peoples to
peoples approach that cuts through the restrictions of protocol and brings about
an understanding that cannot be achieved from the executive directives of both
sides of the waters. The Passport Department can be a real boon to this great
peoples to peoples movement. Its fundamental purpose is service to the American
citizen. The Department was not established to restrict this right to travel.
On the contrary, it was established to facilitate the right to travel. When we think
in these terms, many of the artificial rules and regulations and limitations proffered
by some of our colleagues fall away and lose their alleged significance. It is with
this great hope in mind of facilitating this worldwide movement of peoples that I
have introduced H.R. 5455.
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STATEMENT REGARDING H.R. 1919 WHICH PROVIDES DENIAL OF,PAESPORTS TO
MEMBERS AND FORAIER MEMBERS OF TRE _COMMUNIST PARTY BY BON. CRAIG
? HOMER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
? Mr. Chairman, ?,inc,e the Supreme Court ruled about a year ago that the Sec-
Jetary of State could not refuse a passport to a Communist, because Congress
had never specifically given him the right to refuse, well over 1,100 persons, whom
,the State Department has reason to suspect, have, applied for passports. The
passports have been granted.
Tiniesa Congress takes action, the State Department must continue issuing
, passports to known Communists traveling abroad in the service of the interna-
tional Communist conspiracy. These people could take a course in Moscow on
.overthrowing the U.S. Government and go back there again the next year under
the protection of their U.S. passports for a postgraduate course.
?Activities of the international Communist movement are a clear, present, and
oRthauing danger to the security of the United States, and travel by couriers and
,..agents is a major and essential means by which the movement is promoted and
.directed.
It is an absurdity that the McCarran Act prevents foreign Communists from
-entering the United States, while the State Department is forced to ask foreign
.co tries to facilitate the travel abroad of known .A.Inerica,n Communists,
Ja,e majority opinion of the Supreme Court made it clear that it was not settling
the issue OA constitutional grounds. It simply found that the Secretary of State
!Aid not have the statutory authority to withhold the passports. Soon after the
Supreme Court's decision, the late Secretary of State John Poster Dulles stated
in part:
The international Communist movement, seeks everywhere to thwart U.S.
foreign policy. It seeks on every front to influence foreign governments and peo-
ples against the -United States and eventually by every means, including violence,
-to enctrcle the 'United States and subordinate us to its will. The issuan9e 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."
Rut the Secretary's plea was--and still is ?unanswered. The result?
The State Department reports a flood of applications from persons with records
.of Communist affiliation or activities, Some of them had previously been denied
passports, and many had never previously applied. Many the State Department
j.knows a great deal about, and none of it is good. Others the Department wants
.40 know more about, but it can no longer inquire, much less investigate, whether
?art applicant is a Communist Party member or how dangerous he may be.
The rights of the individual are not violated under my bill, H.R. 191D, because
a person denied a passport can have a hearing plus a review of the turndown by
a U.S. district court. It permits the Secretary of State to require passport appli-
.cants to make a non-Communist affidavit as a condition of being issued the pass-
port.
I respectfully urge the committee to take action on this measure.
?Chairman M9RG.A.,N. Our witness this morning is Hon. John V.
Lindsay, a Member of Congress from the State of New York.
Mr. Lindsay, I see you have a statement. V4 ill you please proceed,
tit'?
ATEMENT OV HON. JOHN V. LiN:DSAV, A REPRESENTATIVE
iXNCOGRESS FROM THE STATE OF NEW YORK
r, LI,NDSA.Y. , r. C a ringn I am grateful for the opportunity of
:appearing before this distinguished committee. I share your concern,
and that of the Department of State whose representatives have al-
ready testified, over the absence of legislation, consistent with the
decisions of the Supreme Court in the Kent, Briehl, and Dayton cases,
authorizing the Secretary of State to exercise some measure of dis-
cretion in the issuance of passports. I am aware, as we all are, that
..the matter of passports and their issuance is necessarily an aspect of
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the conduct of foreign affairs, and in that sense, bears upon national
and international security.
But in approaching the problem of devising legislation I start with
the premise that we are dealing here with a constitutional right. I am
in firm agreement with the opinion of the Supreme Court in the Kent,
Briehl, and Dayton cases. While not deciding those cases on con-
stitutional grounds, the Court nevertheless stated that the right to
travel is part of the "liberty" of which a citizen cannot be deprived
without due process of law of the fifth amendment. I agree whole-
heartedly with that statement.
I believe also that the right to travel is conjoint with and part of
the first amendment?freedom of speech and assembly. I believe it
to be the duty of this committee to study the substance of the right
to travel with great care, realizing that any measures restricting this
right are certain to be tested in the courts sooner or later?probably
sooner. And I am particularly disturbed by what I feel are constitu-
tional inadequacies in the legislation indorsed by the Department
of State to you.
? What is the right to travel? In my book it is one of the most
fundamental liberties that we have. The Supreme Court tells us
that it is "part of the 'liberty' protected by the due process clause
of the fifth amendment." The Solicitor General of the United
States conceded as much in his argument before the Court in Kent
and Dayton. But, as I stated at the outset, I would suggest also
that it is a part of the first amendment. Of all the freedoms that
we have, the one I should most hate to lose is freedom of speech.
Speech is communication, and communication in this modern day is
impossible without locomotion. Speech is meaningless unless thought
of in the context of the physical and social aspects of human existence.
Constitutional sources strongly suggest that early Americans
recognized a freedom to move beyond national frontiers. However
uncertain its basis may have been, however unclear its limitations, the
English recognized that freedom long before they crossed the Atlantic.
The people of the Colonies, moreover, evidently took the freedom for
granted; witness the constant movement between Colonies and to
the west. That may explain why the freedom was not more clearly
recognized in writing. The Declaration of Independence goes no
further than to list as a grievance the restrictions which George the
Third placed upon emigration.
The Articles of Confederation merely guaranteed free movement
between different Colonies, though the Colonies, not yet joined in a
"more perfect union," were more like foreign countries to each other
than the United States are today. Perhaps the most direct docu-
mentary evidence is to be found in the Pennsylvania constitution of
1790 which declared "that emigration from the State shall not be
prohibited."
? These sources, taken together, and viewed in the light of the ninth
amendment, warrant the assumption that omission of the words
"right to travel" was not intended to eliminate the right. Nor is
the omission inconsistent with a specific intention to include the right
in free speech. The Constitution was designed to guide the United
States for an indefinite period of time. It would have been impossible
to enurnerate the variety of ways in which free speech might be
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iggidged---wl the framers recognized this in the generality of the
first amendment's language.
it ;The specific problem your committee must wrestle with, Mr. Chair-
, is that of finding a constitutional way of preventing hard core,
ctea09mmunist?. from abusing the travel right by actively
ring against our most supreme national interests.
(;IN.o,w, let me make it, absolutely clear that we are not here talking
41Qi anyone who is under indictment for the commission of any
erinio,` or is_ under restraining order of any kind by any court, or has
been, stripped of any right or liberty by due process of law. As to
these+ 1AT ,f411 agree that the right to travel ought to be, and can
Onf.lAutionally7be, curtailed.
1).Oniuclicted, non-court-restrained Communist presents a
gior,-)_,difftep,lt ease; There, may well be risks inherent in allowing a
p,epiber ,of the, ,Communist Party, or one identified as such by our
_e.ligence units, _free exit from our shores to travel abroad. But it
,n).p?p,,ssar3r to point out that this is true when Communists travel
rom Chicago to New York or from New York to the Bahamas, or
troni?,D,allap,,to,Mexicol, or from San Francisco to Buenos Aires or to
a4iy Ober South American country, none of which places requires a
passport for exit or entry. It should be pointed out also that under
,QC4rga4--Walter Act we are required to deport alien members of
e, egninunist l'arty and we go to elaborate efforts to secure their
oval after Akey have been traveling freely in this country for years.
and?.good enough. Yet under our passport procedures, until
he. Sprem.e C9U-rt decided otherwise, we have insisted that it is
esseRtjal, thle national seenrity to keep citizen members of the party
on p,ed to ,,o,mr shoKos,, The point is that there could possibly be.
sonothing wrong with our reasoning; and when we are dealing with
Ung glouson constitution41 rights it is important that our reasoning
bp econpelling and logical. You must consider whether the bills.
14eforg you will. in fact accomplish their purpose of confining trained
snb):erswes,,W.the5e ,P/19reS. YQ11 must remember, also, that the
tresident,has. n the past stressed the importance of taking every
reasonable step that will facilitate international travel and exchanger
g., the abolition of the requirement of fingerprinting for transients.
o tall and temporary visitors to this country.
, 1
to not, differ too widely in substance from the position taken by
die 4muustration as presented by the State Department through its
.a oiesmap., Mr. Hanes, in his testimony here. I shall come to the
grences,shortly arid_ although they are seemingly small, they are
portant ones. I do differ widely in emphasis. I would emphasize
e ))21igation of the Department of State?for that matter, of every
exectaAve,,departrnent?to scrupulously avoid to the greatest extent
possible any intrusion on the precious rights of American citizens.
The Kkht to travel, although it has been around a long while, is just
begi ming to be articulated. We must be careful not to let a cavalier
approach lead us to legislative decisions which the courts may undo,
and quite properly so.
, agree with the State Department that it is indeed fundamental
that the , liberty guaranteed by the Constitution is not absolute.
liberties,' says the Supreme Court, "imply the existence of an
organized society maintaining public order without which liberty
itsell would be lost in the excesses of unrestrained abuses."
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LEGI$1,0,10Y
Freedom to travel, like other liberties, is subject to reasonable reg-
ulation and control in the interests of the public welfare. I am not
'sure that it is possible to draw up absolutely fixed rules which will in
advance strike a proper balance which will meet the exigencies of
every case, protect the public interest, and yet stay within constitu-
tional limitations.
Circumstances and the times vary, and "due process of law has
never been a term of fixed and invariable content." But let's make
sure we don't "throw out the baby with the bath." I should like
therefore to restate what I believe to be the guideposts which should
guide the Congress in its consideration of this subject:
First, the right to travel?to communicate is a constitutionally
protected right which may not be abrogated by the State except under
the general war power which normally may be invoked only in time of
extreme emergency, usually involving armed conflict between nations.
The right is a concomitant of, and conjoint with, the first amendment
of the Constitution. A denial of a passport, therefore, may result
in violations of both the fifth and first amendments.
Second, neither the right of the citizen to have issued, nor the right
of the Secretary of State to deny issuance of, a passport is an absolute
a general standard under which the Secretary of State is
authorized.. to deny the issuance of a passport whenever he finds that
its issuance would be contrary to the national welfare, safety, or
security, or otherwise be prejudicial to the interests of the United i
States, s too indefinite a standard when applied to a right as firmly
grounded among our basic liberties as is freedom of speech and
assembly. In the past we have too often seen examples of executive
arbitrariness under the. umbrella of "the national security" and "the
conduct of foreign relations."
Fourth, a refusal to issue a passport may not rest upon confidential
undisclosed information, under a blanket, unlimited authority to use
the,same. Stfch a refusal would, in all probability, be a denial of due
prOcess of law under the fifth amendment. The authority to use
confidential information in the administrative process, under imprecise
standards, coupled with the power to delegate the authority to sub-
ordinates, and without full judicial review, can result in a breeding
ground of arbitrariness in the course of which innocent people may,
ct undoubtedly will, suffer.
, You will note that I have spoken here of blanket, unlimited
authority to use confidential information. There may be room for
an exception to cover the hard core Communist case, under which
the Secretary of State or the Under Secretary personally will certify,?
first, that disclosure will expose a "double" or "buried" agent of
testied and. known reliability; second, that such exposure will be
pprejudicial to the national interests; and, third, that the case may not
be decided without resort to such evidence. But even then, full
access to the evidence in question should be given upon judicial
review to the court, under seal, for examination by the court in camera.
Thus the two important points of difference between the Depart-
ment of State's views and mine are:
- (1) I would permit confidential information to be used only upon
certification at the highest level of its special necessity, and
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06 PASSPORT LEGISLATION
- (2) 1 would require that the whole of the confidential information
be laid under seal before the reviewing judge in chambers. In my
judgment, anything less Might violate the due process requirement of
the fifth amendment.
? Turiing 'then to the bills before this committee, to the extent that
time has permitted me to review them, I believe that H.R. 7006,
which the State Department has endorsed, is lacking in the necessary
proctenital safeguards of a constitutional right. Since H.R. 2468
contains no review provision at all, it seems deficient in this respect
as well as in the others enumerated by the Department. Nor does
H.R, 455 provide such safeguards in my judgment.
?. I fiLd. that H.R. 55 in its present form contains the words "on the
reeord? at line 11, page 3, which are ambiguous. I understand from
Mr. Fames' statement that there is legislative history behind these
words and if they can fairly be deemed to mean "on the record, open
And closed," that the bill contains, at least in part, the standards I
shouk like to see applied.
The best approach to the procedural problem of the bills presently
'before you, in my opinion, is contained in title III of H.R. 8329. In
its rec,uirement in section 306(b) that the Secretary of State himself
make the final administrative determination upholding a refusal to
or a revocation of, a passport, it goes far toward providing for
-clue caution in the evaluation of confidential information. And its
'section 307 provides what no other House bill I have examined does:
the kind of judicial review necessary, in my judgment, to meet the
eonsti mtional test of due process.
I have not in this discussion tried to spell out an entire code to govern
the isAnance of passports or to draft legislation. My purpose here
has been only to state my views on some of the fundamentals, s,nd I
would hope that consideration of this matter in the Congress would be
guided by those fundamentals. Neither have I touched upon the
whole subject of area restrictions, except indirectly. Here I would
recomthend the "Report of the Special Committee To Study Passport
Procedures of the Association of the Bar of the City of New York,"
an eV dllent report, prepared by a distinguished committee of lawyers,
and I am sure that every member of this committee has read it. Its
cOnch,sion on the subject of area restraints is as follows:
,
Trai el abroad by all U.S. citizens may be prohibited in areas where the Secre-
tary of State determines that such prohibitions should be imposed in the national
interest; but only in situations of exceptional gravity. The imposition of area
restric'Ions should be accompanied by a statement by the Secretary of State
setting forth the reasons therefor. Exceptions to general area prohibitions, per-
taittinl; travel by particular individuals or groups, may be made by the Sec-retary
of State in his discretion: * * *
In ..losing, I shoull like to make' reference to a document of great
impoTtance, which is too seldom invoked. It is the Universal Declara-
ti9n of,,Ilurnan Rights which this year celebrated its 10th anniversary.
Arti?,13 of the declaration reads as follows:
ART CLE 13. (1) Everyone has the right to freedom of movement and residence
Within the borders of each State. (2) Everyone has the right to leave any country,
including his own, and to return to hi Country.
United States, along with the other member nations, has
pledged. itself to achieve, in cooperation with the United Nations, the
promotion of universal respect and observance of the human rights
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and fundamental freedoms set forth in the declaration. Let us in the
United. States be faithful to our pledge.
, Chairman MORGAN. Thank you, Mr. Lindsay, for a very fine
statement.
Mr. Lindsay, the usual procedure here in this committee is to oper-
ate under the 5-minute rule and with your permission each member
will have 5 minutes for questions.
Mr. Lindsay, did I understand you to say that you did favor H.R. 55
in substance, with the words "on the record" included?
Mr. LINDSAY. The procedural aspects of H.R. 55 to me make sense.
If "on the record" means a review?judicial review by the court, I
would certainly view with favor an amendment to that which would
at least give the Government the right to ask that confidential infor-
mation, if it had been used in accordance with the procedures that I
outlined, which are restrictive, be examined by the court in camera.
In other words, "on the record" is ambiguous. It can either mean
on the record of the trial itself, or not. Now, as to the rest of H.R. 55,
I am sure, Mr. Chairman, you realize, or gathered the impression from
my statement, that I would prefer a new opening to H.R. 55 which
would outline what is to me the most important approach to this
thing, namely, a reemphasis of the importance of safeguarding the
right to travel. We should not begin right in with what I regard to
be the less important aspects of the matter. To me, if we are going to
have legislation and if it is to be tested in the courts, why not do what
we can to get it sustained in the courts? One thing we can do is to
reaffirm the importance of the right to travel.
For example, in H.R. 55 you have some very broad stuff here.
Apparently the Secretary of State may deny passport to any member
who has been a member of the Communist Party at any time in the
past. Now, I question whether that is desirable.
Chairman MORGAN. Thank you, Mr. Lindsay.
Mr. Fulton.
Mr. FuLroN. I want to compliment Mr. Lindsay and because I am
a personal friend I don't want to seem too enthusiastic, but I think
you hit a very basic problem of rights and that we should be very
careful about the kind of legislation that we are enacting, that we do
not trespass upon our basic American liberties. The call for strong
and quick action sometimes may be a call to trample some of the things
that we have had as basic constitutional rights.
I do want to compliment Congressman Lindsay on an excellent
statement and one of the best I have seen submitted to this committee.
The question comes up under the Smith Act, whether we can go
further than that act and have an administrative action by the Secre-
tary of State barring a passport based upon mere future intention, as
distinguished from actions. We must remember that when the Secre-
tary of State is acting on the issuance of a passport, the person applying
to go abroad is a citizen of the United States in good standing and,
secondly, has committed no act and, thirdly, has only an intention of
future actions abroad that the Department or other Government
agencies are guessing at, that he is going abroad to be an activist
against the security interests of the United States.
As a matter of fact, we have no evidence of it because if the U.S.
Government did, we would then already have an act and be able to
take the individual into the criminal courts of the United States for
action.
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' 'rho; questiOnathen conies up., do you' think if is better to have the
actio a of a denial of the right to travel by the U.S. Government re-
fusin,Y the U.S: citizen his basic right of passport authorization,
initially, or would you think that it is best that we examine that
citimn upon his return to this country and find what his activities
have been abroad? This examination could be under oath and it
N_V, 0111/ not be in. the nature of denying him reentry, but it would be a
eAditforial reentry. The returning U.S. citizen then is examined SO
that he must either state his activities abroad under oath or plead
the ffth amendment, which discloses him
Now, my great concern has been that I too believe that the U.S.
Supreme Court Will bar action of an administrative nature based upon
pure undisclosed intention or thought sunaccompanied by an act and,
secOndly, that it is in the future that we in Government are trying
to jv dge, before a passport is authorized for the U.S. citizen's future
trip_ ibroad.
.'Would you comment on that, please?
.'Mr. LINDSAY. Well, if your question is an "either/or" proposition,
which would I prefer, the first hypothesis you presented or the second,
I would clearly prefer the second.
- Mr. FULTON. That is my own feeling.
' Mr. LINDSAY. I say that for the simple reason that you are getting
into such extremely dangerous ground when you authorize the Secre-
tary of State to issue what amounts to blanket denials of the passport
without more than the simple allegation that applicant is a Communist.
I think that was perhaps one of the reasons that led this distia-
guis!ied committee, the authors of "Freedom To Travel" published
by the Association of the Bar of the City of New York, to come to
the conclusion that the standards must necessarily be quite narrow.
You will all see that their proposed standards have to be quite
nariowly drawn. In sum, they are:
(1) Transmitting without proper authority security information of
the United States;
() Inciting hostilities or conflicts which might involve the -United
Stat es ,? or
eN Inciting attacks by force upon the United States or attempts
to overthrow its Government by force and violence.
1.-..
The report goes on to say: -
,
T:.a.vel should not be retrained and passports should not be denied Solely on
the ) ails of membership in any or anization, even the Communist Party.
'i91'1'r, tins i's' y'outr 'question '?o acts, no nothing u-st m'em'be'rship.
'
IN:ow, this committee, gentlin-nen, is composed of a group of careful,
cpwervative lawyers who would not have made a suggestion like this
un ,,;.S,s in, the months and months they labored over this report, they
thought it through very carefully.
tr.`F-tivroi,i: We must distinguish, I believe, somebody who has a
rao 4 inieriiiOn- 'and who is a risk abroad because of his previous
iii-st?elidit. ble ideas nnd thoughts. And that group would include, a
young person who is recruited for one of these youth festivals, so-
Called, behind the Iron Curtain. That is a different type of person
froin the one, that I believe has committed an act; for example, in
;tin r on 'good city of New York 'Where they have been recruiting
y61 bk men to go to the Caribbean area for a revolutionary purpose,
'
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PASSPORT LEGISLATION 99
iii Ata,t case these _people are activists within thiS country, committing
acts, and a conspiracy so there are both acts and intent upon the
-eitizen going abroad, which is a different kind of a case to me.
,The case that we are,trying? to cover in this passport legislation is the
preventive case. So that the question comes, would you agree with
Me that we can certainly, by our own criminal prosecutions, which I
believe the Attorney General should be proceeding on now, prevent
the recruitment and such type actions within this country in prepara-
tion for antagonistic actions abroad that would endanger either our
U.S. security or the security of a friendly country? We must dis-
tinguish that case from the ones where there is simply the intent of an
undependable person, undisclosed and unaccounted upon at the time
of the proposed denial of the passport application.
? Mr. LINDSAY. You clearly do have to make a distinction, Mr.
Fulton, I think.
Mr. FULTON. That is all.
May I compliment you again. I have been very stimulated by your
statement.
Chairman MORGAN. Mr. Burleson.
Mr. BLRLESON. No questions.
ChairIllall MORGAN. Mr. Bentley.
- 'Mr. BENTLEY. I want to compliment you on the time you have put
upon your very excellent speech.
The committee, as you know, has accepted an amendment to my
bill, H.R. 7006, has actually suggested an amendment, which would
provide that all evidence to be used in the administrative finding with
respect to a passport be laid before the judicial review body in camera
for the determination of that reviewing body to decide whether the
refusal or other action of the Department was based upon sufficient
information.
I would assume with the inclusion of that amendment that would
make H.R. 7006 more acceptable to you.
Mr. LINDSAY. It would definitely, Mr. Bentley.
Mr. BENTLEY. I would refer to your statement on page 3 in which
yon say the denial of a passport may result in violations of both the
-fifth and first amendments. Do I understand the tenor of your re-
-Marks to indicate your belief that the possession of a passport is a
right, or conversely, is a priyilege?
Mr. LINDSAY. It is a right as long as it remains an exit permit,
which in this present day and age it is.
Mr. BENTLEY. Well, I wonder about that. I know you have
traveled abroad recently as many of us have, and it is my recollection
that a person can depart from the United States without the possession
of a passport. Is that correct?
Mr. LWDSAY. I would put it this way: If the exectitive branch of
the Government came to the conclusion that it did not want to permit
a citizen of the United States to leave the country and it could bring
a Case in tlp courts on the grounds that the citizen did not possess
it passport, and if he claimed the passport was an exit permit, I don't
know how, the case would come out. It would probably be won by
ihe citizen, but I don't think it is clear as a matter of law.
tirMr. BENTLEY. Let me read a statement for yOur information, fur-
nished us by the Department- of State following our hearings of last
'Wednesday in which I asked Mr. Hanes to discuss the State Depart-
ment's belief that the possession of a passport is a privilege.
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He uubmitted this information for the record, two short paragraphs
which I will read, and ask you to comment on:
The obtaining of a passpOrt is a privilege. Section 215(b) of the Immik,ration
and Naturalization Act of 1952 has made it unlawful, during the existence of a
state cf war, or national emergency proclaimed by the President, and upon
Presidential proclamation of the necessity for restrictions upon exit and entry,
for a citizen to depart from or enter, or attempt to depart from or enter, the
United States unless he holds a valid passport. Thus, the Congress has in effect
given lo the President and the Secretary of State the power to control the right
of the Ditizen to exit from the United States.
The effect of this act of Conaress, when coupled with the Presidential proclama-
tion, has been to alter the traditional character of the U.S. passport. A passpor
Is no longer merely an international document of identification. It is in addition
an exit permit, the possession of which is required before the ri -ht to depart
may t e exercised. Criminal penalties are provided by section 1185 to punish
violation of these limitations upon the constitutionally protected right of exit.
Under these circumstances, the privileged character of the document is sub-
ordinated. Should the present emergency be terminated, should restrictions oi
depart ure and entry be no longer required, or should the statute be changed to
requir3 a separate exit permit instead of a passport as the necessary documer-
tation to leave the country, the basic privileged character of the passport would
again become paramount.
M. LINDSAY. I have utmost respect for Mr. Hanes, as I did for his
predecessor.
Apparently I agree with him and he agrees with me on the present-
day nature of the passport. It is considered an exit permit. But his
opening statement there preceding this statement that the passport is
an etit permit, to this effect that it is also a privilege, that is a
complete and total non sequitur. One doesn't follow the other at all.
I would refer the Department of State to the U.S. Constitution.
Mr. BENTLEY. You regard the possession of the passport then as a
constitutional right.
Mr. LINDSAY. I certainly do. As long as it is an exit permit.
Nqw, if the passport means nothing more than just a piece of paper
which might in some undefined way assist you in your travels abroad,
mal c e life a little easier for you, you have a slightly different problem.
It a problem because you have got all sorts of questions there
of qual treatment under the law in connection with its issuance.
But as long as it is an exit permit, in my judgment it is unquestionably
a constitutionally protected right and not a privilege to be granted
or rot granted at the will of the Executive.
Mr. BENTLEY. Mr. Chairman, I imagiae my time has expired. I
will come back.
Thank you, Mr. Lindsay.
Chairman MORGAN. Mrs. Kelly.
Mrs. KELLY. Thank you, Mr. Chairman.
Mr. Lindsay, it is always nice to welcome a colleague from New
Yo:it before our committee and to hear you praised for the work you
do. ,After all, we are not all members of a Tuesday to Thursday
? club.
? May I request you look at H.R. 55, section 8. You are in agree-
ment with this, if 'on the record" means the examination by a Federal
court judge.
Mr. LINDSAY. If "on the record" means whatever has been exam-
inc d by the hearing officer is equally available to the court on review,
:then that to me means "on the record."
.grS, KELLY. That could possibly be straightened out in the repart.
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?
Mr. LINDSAY. If "on the record" also means it shall be made part
of the court's public record, then it may require some clarification.
Mrs. KELLY. Mr. Farbstein of New York is the one who wrote
that particular section and that was his thinking, so I was very
happy to know that you supported that particular section.
Now, I am a little bit confused over your determination of "right
to travel." You say it is an exit permit. What about reentry?
Mr. LINDSAY. Well, I would not consider it a reentry permit to
the United States although it is hard to be flat about that, one way
or the other.
It used to be?in England it used to be that the passport was an
exit permit and then through a period of time the passport no longer
was an exit permit; it was a travel document and it was not tied in
with the right of exit from a country. It has really been only in
modern times in this country that it has reverted back to what it
was originally in England, an exit permit.
Whether it is a reentry permit is a tough question. In law, I
would not so regard it, but reasonable men could differ on that.
Mrs. KELLY. If you consider this the right of an American citizen
and want to protect his right to travel, you just can't send him out
with an exit permit without his right to return.
Mr. LINDSAY. He of course has a right of reentry, but the question
? whether this little thing called a passport is the thing that establishes
that in law is another question. It may be evidentiary, I don't know.
Mrs. KELLY. How would we establish it?
Mr. LINDSAY. He is an American citizen and he has the right to
return to the country, whether he has nothing or whether he has
something. I don't care what he has.
Mrs. KELLY. Do I understand further that you object to the
denial of a passport to anyone who has been proven a member of the
Communist Party from way back? You don't want a date set on the
time he was a member of the party? You do not believe it should be
denied to him on that account, is that right?
Mr. LINDSAY. No. What I said was, in raising queries about
H.R. 55, be on guard against a broad authorization to withold a
passport to a person because 50 years ago he was a member of the
Communist Party. Look out for language like that because it may
not and probably will not stand up in the courts, and there goes your
whole statute.
Mrs. KELLY. You go back 50 years. What about the thirties or
forties? In recent law they are more or less considering 1948 on.
Would you only review those?
? Mr. LINDSAY. Now, you are getting closer to a reasonable position.
The point that I am attempting to make here is, if you want legis-
lation, let's make it good legislation and don't court disaster.
Mr. SELDEN. If you will note, Mr. Lindsay, that is in H.R. 55.
Mrs. KELLY. That is what I was going to bring out.
, Mr. LINDSAY. Yes, I see it in section 7. It is in section 7, H.R. 55.
Mr. SELDEN. It is in section 6 also.
Mr. LINDSAY. No, it is in the disjunctive, not the conjunctive.
The Secretary of State is authorized to deny a passport to any person who is a
member or former member of * * * the Communist Party or * * *.
That puts it back to the man who was a member of the Communist
Party up to 80 years ago.
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Mrs ,KELLY. You think that it should be determined as of 1948 on.
Mr. LINDSA.Y. It would be preferable.
I again think that because of the very sensitive nature of this whole
subjec, insofar as its future is concerned, traveling through the courts
as it w dl, that the committee might be smarter to adopt the standards
fpr the refusal of the issuance of passports which have been suggested
by the committee of the Association of the Bar of the City of New
-York. .
Mrs IKmA.,:y. You are not in agreement with those standards?
Mr. LINDSAY. No, I didn't say that, Mrs. Kelly.
KE..nr.,Y. Well, you said, 'They are very narrow."
M. LINDSAY. Yes, they are narrow. They make certain that you
don't have such a broad standard that it will be struck down by the
ourts Their standards are, insofar as individual restraints are
concer Red :
(1) transmitting without proper authority, security informa-
tion of the United States;
,(2) inciting hostilities or conflicts which might involve the
1,1, nit ed States ; or
(3) inciting attacks by force upon the United States or at-
tempts to overthrow its Government by force or violence.
Thin, in substance, is in the Hays bill and this was attacked by the
State :)epartment, but my point is that you might well consider using
those:;tandards and then see what kind of difficulty the Government
of the United States has in protectingits security.
_ .
If the future, shows that we are still in trouble, then tighten it up
eiorne more.
Mrs. KELLY, Could I ask one more question?
Mr. BurinEsoN (presiding). Your time is up, but I am sure the others
Will 04:me for you to ask one other question.
I.E.. KELLY, What the American citizen does after he has gone
ithrociA will be a determining factor as far as you are concerned, is
that right? At that point we can prove that he is attempting to
overtl.row the Government and at that point something should be
done. Is that correct?
Mr. LINDSAY. Yes. That is always determining. It is always
evidertiary., but bear in mind you must draft language in which you
At oviIence. Your basic standards in your language have to survive
the courts. The courts will apply constitutional tests.
Mr. ILLY. Your exit permit is a privilege and a right, but if he
tries to do something abroad, how and on what grounds can we deny
reentry into the United States?
Mi. LINDSAY. I think if you find and the evidence shows that Mr.
X ha conducted himself abroad in a manner hostile to the best
intere its of the tinted States, which is pointedly directed at subversion
of the :United Stats, or any other allied field, that your standards in
H.R. 55, if that standard should survive, would be broad enough to
cover
By the same token, the standards suggested by the New York
corm ittee would he broad enough to cover such a case. But why
KIM tile risk of trying to fit that evidence under such a broad umbrella,
that u strike down the Whole thing again?
I d?n't know if you understand my answer.
Mi. 4. 'KELLY. -6. -
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Mr. BURLESON (presiding). Mrs. Church.
Mrs. CHURCH. Thank you, Mr. Chairman.
Mr, Lindsay, I find your statement very stimulating and thought
provocative. I think that it would take a skilled lawyer to argue with
you.
Have you tried, yourself, to write a bill? I know that your state-
ment suggests certain provisions as to what you would or would not
include, but have you attempted at all to write a bill?
Mr. LINDSAY. I have not attempted to draft specific language. If
you give me 2 days, I would be happy to try.
Mrs. CEIURCH. It would be valuable to me and to the committee if
Mr. Lindsay would draft language which he thinks would stand a
constitutional test.
Mr. LINDSAY. I will be happy to try.
Mrs. CHURCH. Thank you for coming.
(The language submitted by Mr. Lindsay is as follows; see also
FI.R. 8930:)
[II.R.?, 86th Cong., let sees.]
A BILL To provide standards for the denial of passports, and for other purposes
Be it e7,ac,ed by the Senate and House of Representatives of the United States of
America in Congress assembled,
RECOGNITION OF RIGHT TO TRAVEL
SECTION 1. The Congress recognizes that the right to travel abroad is a funda-
mental right of every United States citizen, based upon and protected by the
United States Constitution; and that it is a duty of the United States Government
scrupulously to avoid placing on the exercise of such right restrictions not war-
ranted by the highest considerations of public policy and national interest.
AUTHORITY OF SRCRETARY OF STATE
SEC. 2. The Congress finds that the national security of the United States
may be endangered as the result of certain activities which may be and have been
engaged in by United States citizens while abroad, and hereby authorizes the
Secretary of State to deny a passport, or to revoke a passport previously issued,
upon certain grounds, and pursuant to certain procedures, set forth herein. The
Secretary of State is authorized to prescribe regulations consistent with this Act
- pertaining to the denial or revocation of passports.
PERSONS NOT ENTITLED TO PASSPORTS
SEC. 3. (a) The Secretary of State may deny a passport, or revoke any passport
previously issued, to any person as to whom he finds reasonable grounds to believe
that his activities abroad would endanger the national security by?
(1) transmitting, without proper authority, security information of the
United States;
(2) inciting hostilities or conflicts which might involve the United States;
Or
(3) inciting attacks by force upon the United States or attempts to over-
throw its Government by force and violence.
(b) The Secretary of State shall not deny a passport to any person pursuant to
subsection (a) solely on the basis of membership. in any organization, association
iidth.any individual or group, adherence to unpopular views, or criticisms of the
United States or its domestic or foreign policies.
(c) Notwithstanding the provisions of subsection (a) of -ads section, the Secre-
tary of State may direct the issuance Of a passport in any case if he deems such
action advisable in thc national. interest. A passport issued pursuant to this
subsection which would not otherwise be issued under subsection (a) of this section
may. be limited with respect to duration and the areas for which it is valid,
_ .
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CREATION AND JURISDICTION OF BOARD OF PASSPORT APPEALS
SEC 4. (a) There shall be established within the Department of St te the
Board of Passport Appeals (hereafter referred to as the 'Board"), which shall
consisi. of the Legal Adviser of the Secretary of State, or his designee, and two
other ?)fficers of the Department of State designated by the Secretary of State.
Tone. )f such officers shall have participated in any manner in the initial adverse
'determinations concerning the passport in question.
(b) The Board shall have jurisdiction in all cases wherein a hearing is requested
in wriAng within sixty days after notification of the denial or revocation of a
passpert pursuant to Sec. 3 of this Act. The Board shall hold a hearing within
thirty days after the receipt of the request unless such time limit is extended at
the request of the party requesting the hearing. Upon request, the Board shall
grant a priority to a hearing requested in any case involving revocation of a
passpc rt.
COUNSEL FOR THE DEPARTMENT
SEC, 5. The Secretary of State shall designate from time to time in the Depart-
ment of State an officer who shall serve as Counsel for the Department in connec-
tion with hearings held before the Board. The Counsel shall be responsible to
the Se :,,.retary of State, and shall have the following dirties in addition to those
otherwise, delegated to him.
(1) To present the Government's case before the Board;
(2) To examine Government witnesses and cross-examine witnesses
pi esented by the applicant in proceedin,s before the Board;
? (3) To take all other necessary actions in connection with the presentation
of the Government's case in hearings before the Board.
The-function of the Counsel with respect to the Board and its functions shall be
limited strictly to matters covered by paragraphs (1) through (3) of this section,
and sl all in no case include the furnishing of ex parte advice or instructions to
the Bt ard or in any other way participating in the Board's decision in any case.
RIGHTS OF THE APPLICANT
SEC 6. In all hearings before the Board, the applicant shall have the following
rights:
(1) To appear in person and to be represented by counsel;
(2) To testify in his own behalf, present witnesses, and offer documentary
and other evidence;
(3) To cross-examine witnesses appearing against him at any hearing at
which he or his couns(A is present and to examine all other evidence which is
made apart of the open record;
(4) Within ten days after completion of the hearing, examine a copy of the
anscript of the proceedings, which shall include all documentary and testi-
mony evidence which is a part of the open record, and, upon request, to be
furnished a copy of the transcript at the expense of the United States.
EVIDENCE WITHHELD FROM APPLICANT
SEC 7. The Board may consider oral or documentary evidence relevant to the
ISMS lo be determined in any hearing without making such evidence part of the
open i ecord only if the Secretary of State or the Under Secretary of State, per-
sonall..r, certifies to the Board that:
(1) Admission of such evidence into the open record would expose a source
of information of tested and known reliability, or investigative techniques;
(2) Exposure of such source or techniques would have a substantially
? adverse effect upon the national security; and
, (3) In his judgment such evidence constitutes the only evidence on the
.t b Isis of which a passport may be denied or revoked.
Beard shall 'furnish the applicant a r?m?f such evidence, and shall certify
that ills a fair r?m?The Board shall take into consideration the individuaPs
inability to challenge information of which he has not been advised in full or in de-
tail aid to attack the credibility of evidence which has not been disclosed.
MATERIALITY OF COMMUNIST ACTIVITIES
SEC 8. In determining whether a person is within the categories described in
&die a 3(a) the Board shall consider as material, among other matters, whether
the arplicant is a person who, whether or not a member or former member of, or
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affiliated with, the Communist Party, knowingly engages or has engaged, within
ten years, prior to filing the passport application, in activities in furtherance of the
international Communist movement.
HEARINGS HELD IN PRIVATE
? SEC. 9. All hearings before the Board shall be closed to the public, unless the
applicant requests a public hearing, in which case the hearing shall be public.
PROCEDURE OF BOARD AFTER HEARING
SEC. 10. (a) If, after hearing, the Board determines that a passport which has
been denied should have been granted, or that a passport which has been revoked
should not have been revoked, the Board shall issue an order granting the passport,
or cancelling the revocation, as the case may be.
(b) If, after hearing, the Board determines that a passport which has been
denied was properly denied, or that a passport which has been revoked was prop-
erly revoked, the Board shall make written findings, conclusions, and recommenda-
tions, which shall be transmitted with the entire record to the Secretary of State
who shall make the final administrative determination. A copy of the recom-
rnendationF., and of such findings and conclusions as are based upon the open rec-
ord shall be furnished the individual, who may within twenty days following the
receipt thereof submit to the Secretary written objections thereto. The Secretary
shall base his determination upon the entire record submitted to him by the Board,
including all findings and conclusions and any cbjections submitted by the in-
dividual. In appropriate cases, the Secretary may remand a case to the Board
for further proceedings. In the event he takes action adverse to the individual,
the Secretary shell make appropriate written findings, certifications, and conclu-
sions, and furnish a copy thereof to the applicant.
JUDICIAL REVIEW
Suc. 11. (a) A denial of a passport pursuant to this Act by the Secretary of
State, and the approval of the Secretary of State of a revocation of a passport
pursuant to this Act, shall be subject to judicial review in the district courts of the
United States.
(b) In proceedings for review in the district courts pursuant to this..section, the
Secretary of State shall transmit to the court the entire record, both open and
closed, upon which his final determination was made; provided, that the closed
record if any, shall be delivered to the court under seal.
(c) The court shall determine whether or not the decision of the Secretary of
State denying the passport, or approving the revocation thereof, is supported by
substantial evidence in the open and closed record as a whole, and shall then enter
such order as may be just. The court shall not disclose any part of the closed rec-
ord to the applicant or his attorney.
Mr. BURLESON (presiding). Mr. Selden.
Mr. SELDEN. We are happy to have had you here, Mr. Lindsay.
Your comments have been most interesting and stimulating.
You referred to H.R. 55 and the words "on the record." The State
Department only recently suggested in the amendment that I showed
you earlier that those three words be stricken and in lieu of them that
this sentence be added:
In any such proceedings the court shall have the power to determine whether the
decision of the Secretary of State under section 6 is supported by substantial
evidence in the record presented. The court, if dissatisfied with the summary
of any evidence not disclosed to the applicant, may in its discretion inspect such
evidence in camera.
That proposed amendment seems to tie in somewhat with your
suggestion in paragraph 3, page 4 of your statement. Do you think
such language would strengthen H.R. 55 or make it more acceptable
in line with your suggestion, or do you think that the words "on the
record" left in the bill would be more satisfactory?
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PASSPORT LEGISLATION
UT. LINDSAY. I think the suggested language would clarify it.
Then -would be ambiguity otherwise. I think it would be helpful
to do it.
Of 3ourse, I would put in my drafted legislation a requirement that
the
use of confidential information be authorized, before it is used,
only v. either the Secretary or the -Under Secretary, in writing.
Now, the reason for that is to make it tougher to resort to it. With
your permission, Mr. Chairman I would just like to describe what
I ;mean by the importance of this particular aspect of it and I hope
the onnmittee will examine it.
'Some time ago when I was with the Department of Justice the
question was raised as to the constitutionality of the use of confidential
undisclosed information in deciding whether or not an alien who was
other wise deportable and found to be deportable was entitled to
sVension o deportation.
110 cw you all know what suspension of deportation is. It is a device
? uged for a deportable alien who has been a good person for a specified
po'r1ol of time and has met certain standards of hardship. The
Atte.] ney General may, in his discretion say, "Because of this hardship,
and because his conduct has been exemplary, we will grant him
sus EnSion."
cw, in order to determine whether such relief will be granted you.
go through a regular hearing. The difficulty was that the regulations
auth4)rized the use of confidential information in deciding whether or
not en alien should be entitled to suspension and, lo and behold, an
alien who had an exemplary record, even though the event which
wad( 'him "deportable happened a long period of time ago, was denied
suspE nsion on the grounds of confidential information. It was the
hearing officer who decided it this way.
'Tile case traveled through the courts and it went up to the Supreme
Court of the United States. The question was whether or not con-
fidential information--the use of it in this case?was constitutional.
Pile case was won in a 5 to 4 decision. That is to say, the
Gov t rnment Won the case 5 to 4 with 4 separate dissents. The
only reason the Government won the case was because the Govern-
ment was able to argue the case was comparable to a criminal case
where the defendant had been found guilty and he then comes to the
judge and says, 'Your Honor, please give me a suspended sentence.
gut ne on probation."
ATiLder those circumstances, the court is always entitled to look el
'ale confidential report of the probation officer. .And the defendant is
ii8t(rititled to look at it.
So the judge may decide whether or not to put the man in prison or
it him back on probation with his family on the basis of undisclosed
ortption.
o 4 was argued to the Supreme Court of the United States, what
is th 3 difference, this man is deportable and he is asking for mercy--
discretionary relief, and under those circumstances, 5 to 4 only, the
ie d confidential information was sustained.
At that point the Department of Justice, through the courageous
?wtelligcnt approach of its Commissioner, General Swing, said
Ly do we have to do this in so many cases? I am not so sure it
is nEcessary to decide so many cases on this type of evidence. If a
comparable case comes up again, we may lose it."
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And be is quite right; they might.
So the regulations were redrafted to require that the use of con-
fidential information in any suspension case could be resorted to only
On the personal certification of the Commissioner or the Assistant
Commissioner, because the Commissioner well knew that the boys
down the line, dealing with FBI memos and that kind of thing, would
take often the lazy way out in coming to a decision on a case and say,
"Well, this is confidential; we will refuse suspension. We won't tell
?him why. We won't show him this stuff."
Since then?and this was 1956 that this occurred, or 1957?since
then it has not been found necessary to decide one single case on the
basis of confidential information.
Mr. FAscEnn. Just deny them all.
Mr. LINDSAY. No, because you have to deny them after a hearing
on the record which is reviewable in the courts.
You see, if you let it go down the line too far and give people broad
authority to use it without review by responsible administrators at
the very top, and responsible judges,, it can get out of hand.
Mr. SE,LDEN. I am sure my time has expired.
Chairman MORGAN. Mr. O'Hara.
Mr. O'HARA. Mr. Lindsay, I have enjoyed your presentment. I
think perhaps on basic outlines you and I agree. I do find, however,
sonic inconsistency in your statement and if you will bear with me
just briefly?you conclude your statement by quoting article 13 of
the "Universal Declaration of Human Rights."
Part of it says, "Everyone has the right to leave any country,
including his own, and to return to his country."
You say everyone. Then you are willing to concede on page 2
that while you believe that no one should be denied a passport because
of rumor or because of hidden information, or information not made
public, and not reviewed by the court, but you are willing to con-
cede?and the gentleman from Michigan, I believe, asked you if that
'would make the administration bill unpalatable to you and you said
it would--that such secret information can be used, but a court?and
that means one judge in chambers, in camera, he can look at this.
Nobody else knows what is in there, no other member of the court
knows what is there, just the one judge in chambers.
" Mr. LINDSAY. And the court of appeals.
Mr. O'HARA. What gets to the court of appeals?
Mr. LINDSAY. The confidential record under seal in those cases.
Mr. O'HARA. And you think that would be some check?
Mr. LINDSAY. May I say this procedure is the so-called Second
Circuit rule that was adopted by the U.S. Court of Appeals for the
Second Circuit in Jencks-type cases. If some of the other district
courts had insisted upon the application of the second circuit rule
in the Jencks-type cases they were dealing with (which was inspection
of confidential information in order to use it as the basis of cross-
examination), the Jencks case might have been decided the other way.
Mr. O'HARA. Now, Mr. Lindsay, you and I and all of us who have
? practiced in the courts know that the judges are all honorable men
and are just men but they all have their own slants.
For instance, if I were representing a labor union, I would prefer a
judge whose background is not too closely allied with management or
vie 6 versa. ,As defense counsel, .I would prefer a judge who had beep.
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108 PASSPORT LEGISLATION
a defense counsel instead of a prosecutor. Both are honest and sin-
cere, but their backgrounds are apt to be reflected in their judicial.
attitudes.
Wt en. you propose the right of an American citizen be taken from
;him oa evidence not disclosed to one judge in chambers, in camera, not
_given to the public, aren't you opening the door for abuses? It seems
,to nu dangerous to put too much power in the hands of any individual
Whether; he is Secretary of State or a judge on the bench.
. LINDSAY. Yes, you may be, and that is why I say let's surround
the use of this information with every possible safeguard. This is
.one of them. Personal certification by the Secretary or the Under
Secretary is another one; tightly drawn standards is a third one.
Undoubtedly the use of this is an invasion of personal rights but as
- attempted to point out, times and circumstances dictate that invasions
of personal liberties or restrictions on personal liberties are sometimes
.necessary in an organized society.
Mr, O'HARA. Now, you have pointed out there is no disagreement,
that when one is adjudged guilty of an offense by a court he is not
allowed to have a passport. Here is a man engaged in a conspiracy
against our Government. Have we not now criminal law under which
we cm proceed?
? Mr, LINDSAY. We do.
Mr. O'HARA. ADA., of course, we cannot convict a man of a crime on
rum r, or on some evidence not disclosed.
MT. LINDSAY. That is right.
Mr. O'HARA. And if some evidence is presented against him in an
-open court, he has a right to show perhaps the prejudice and the in-
: teret.t behind that evidence.
Mr. LINDSAY. That is correct.
..Mr: O'HARA. All right. Now, when do we go further than that? i
.When someone suspects a man has been active n conspiracy against
our Government he is justified in taking to the proper Federal officials
Vhat evidence he has, and if the evidence suffices the suspect can be
,indicted and his conviction would bar him at a later date from the right
. to a passport. Yet that is not done. Can you then try the suspect in
.a hearing for a passport and convict him on suspicion or on a report
tha-, comes from an undisclosed source and is not open to scrutiny?
Mr. LINDSAY. Yes. The proposition you are posing is age-old.
Thu answer, of course, that has been laid down, and there are many,
many well-written opinions on the subject, is that you must not
equ ate criminal trials with the administrative process.
?Mr. O'HARA. My time is running out. I will ask just this:
:Would you not 'prefer a bill which would give full judicial review of
all the facts and all the evidence? You think the language here is
, confusing and ambiguous, but if that language were made stronger so
.wh.m a passport is denied to a person he can then go into the courts
- and have full judicial review in open court, wouldn't you prefer that?
. Mr. LINDSAY. If you are going to do that, then you must come out
with a bill which does not authorize the use of the administrative
information at the administrative level; confidential, undisclosed in-
for nation at the administrative level. There is no point in it other-
wise.
The purpose of the authorization is to protect your sources and
yo- 1r techniques, but there are very limited occasions, we are told,
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when this is necessary. That is why I say if you make it tight enough
and surround it enough with safeguards, you will find it is only the
rare case when you have to resort to it.
Mr. SELDEN. Will the gentleman yield there?
Mr. O'HARA. Surely.
Mr. SELDEN. I don't follow you on why you would eliminate it at
the administrative level.
Mr. LINDSAY. If confidential information used at the administrative
? level is to be made fully public in the courts, naturally your applicant
will appeal and put it all on the record.
Mr. SELDEN. Not necessarily. I think this legislation would have
the effect of denying many passports to persons who would not appeal
their case to the courts because they would not want the information
.011 the record. I might add that Under Secretary Murphy so testified
several days ago.
Mr. LINDSAY. I disagree with that.
Chairman MORGAN. Mr. Fountain.
Mr, FOUNTAIN. Mr. Lindsay, I believe you feel that the basic
problem of this committee is to find a constitutional way of preventing
hard core dedicated Communists from abusing the right of travel.
I am inclined to agree with that. However, I know there doubt-
lessly are many individuals who may not be dedicated Communists,
but who have so little concern for our country (or maybe so much more
concern for the money they can get for rendering a service to the
Communist Party) that they are just as dangerous as dedicated Com-
munists., Yet I don't know how we can write a law that would take
care of all such situations. And then, assuming that to be true
Mr. FulfroN. What do you agree with? I didn't understand.
Mr. FOUNTAIN. I agree with his statement that the basic problem
we face is that of deciding how to take care of hard-core dedicated
Communists, and to take care of the others if we can. I am fearful
that we can't.
I am more or less repeating what you said simply for purposes of
emphasis.
? Then, assuming that there are certain individuals who should not
be permitted to travel abroad, you feel that the task is that of devel-
oping reasonable rules and regulations and controls which will be held
constitutional.
Mr. LINDSAY. That is correct.
Mr. FOUNTAIN. That is all, Mr. Chairman.
,Mr. BENTLEY. Mr. Chairman, a parliamentary inquiry.
`I see we have two other congressional witnesses here this morning.
?Are we going to try to get them in this morning, too?
Chairman MORGAN. Yes, if they are willing to wait.
Mr. Pascell.
Mr. FAscELL. Thank you, Mr. Chairman.
Mr. Lindsay, I think you made .a very fine presentation and I will
ask a couple of questions as briefly as I can.
Are the standards of the New York bar which you say are precise,
are they the basis of criminal acts?
Mr, LINDSAY. I'm not sure I understand you.
Mr. FAscELL. Isn't each standard a criminal act?
Mr. LINDSAY. I am not quite sure what you mean here.
44763-59-8
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- No. 1 definitely is. Transmitting, without proper authority, seen-
Tity information.
No. 2. Inciting hostilities which might involve the United States,
I can't answer that. I would have to look at the code.
3. Inciting attacks by force upon the United States?
Mr. FASCELL. They all sound like they are criminal acts, don't
they?
LINDSAY. Yes. ?
Mr. FASCELL. Therefore, the standard of the New York bar regard-
ing the issuance of passports is based upon the fact that the individual
s committed a criminal act which is duly proven or provable ,pur-
.Suant to due process of law.
'Mr. LINDSAY. That is correct.
. Mr. FASCELL. Now, do you feel?and I have listened to your dis-
cussion quite carefully?that the Federal Government ought to go
beyond the standards fixed by the New York bar?
Mr. LINDSAY. As I said a moment ago, I like these standards. I
*KM be very happy with a bill reported out that (a) defined the right
to travel as a constitutionally protected right; (b) gave recognition to
current-day dangers presented by the Communist conspiracy; and
-(e; had tightly drawn procedural safeguards.
'Mr. FASCELL. Even though the act of the individual involved who
'has made application for passport might not be a criminal violation?
Mr. LINDSAY. That is correct, and therefore, if you adopt these
-standards here that are set forth by the association of the bar in its
'report and then surround your procedural element here with every
po3sible safeguard to limit the use, of confidential authority, although
preserve it, then I think you probably have a bill that will stand up.
FASCELL. Will the procedural methods involve any constitu-
tional question if the basic right which is denied is a violation of a con-
glti.,titional privilege?
Mr. LINDSAY. I don't understand your question.
Mr. FASCELL. In other words, what difference does the procedure
make if you are denying a constitutional privilege to start with?
Mr. LINDSAY. Correct. You have got two problems; substantative
-duo process and procedural due process. That is why you've got a
totghjol.
Mr. FASCELL. Are you saying there can be no statutory limitation
on a constitutional right?
Mr. LINDSAY. NO.
Mr. FASCELL. Are you saying there can be no substantive change
in 'he constitutional right?
Mr. LINDSAY.. I am not sure what you mean. I am saying that any
cor stitutionally protected right is subject to reasonable limitations.
Th3 classic case of limitation on freedom of speech is this one: you
can 'Lt get up in a crowded theater and yell "fire." If you do you will
be 3ubject to criminal prosecution.
Mr. FASCELL. And you think there is an analogy between this and
.that situation? That is the right in the Federal Government to deny
the issuance of a passport to any individual?
Mr. LINDSAY. Yes. For purposes of safety, you are required not
to cross the street except when the sign says walk" and you can get
a summons-Otherwise. That is a restraint.
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Mr,FASCELL. Therefore, what you see as the job is to specifically
identify the grounds other than criminal acts upon which shall be
delegated the authority to an executive individual to deny that
passport.
Mr. LINDSAY. Yes. I think you put it a little too simply though,
Mr. Fascell, because it may be that areas of criminal conduct still
should be part of the standard here' nonetheless.
Mr. FASCELL. You mean whether the individual has ever been
tried and found guilty or not?
Mr., LINDSAY. Yes, and I think that is part of the thinking that
goes into the three areas of individual restraints that are set forth in
this volume.
Mr. FASCELL. I have read very carefully your idea of an exception
to this question. That is that the Secretary personally would certify
that you wouldn't disclose an agent and so forth. I don't see how you
can qualify this authority, in other words. This is the problem I see.
If you admit that there is a necessity to do this and that what you
are trying to do is to write a straitjacket around discretion, good judg-
ment, and authority
Mr. LINDSAY. Now, I am not sure that any authorization for the
ixsag6 of confidential information will survive the courts. I am not
sure It will. It may well not. You run that risk.
All I do s- y is that the question is close enough so that if it is deemed
essential in the interests of national and international security to
preserve the device, then make it as tough as possible for the State
Department to use it.
'Mr. FASCELL. I got that point very clearly. I think you made
your point. The only thing I was trying to get your thinking on is:
What are the criteria? Who is the person to whom you would deny
the passport?
Mr. LINDSAY. That is right. That is your problem.
Mr. FASCELL. I am asking you, in your judgment, whom it would
be.
Mr. LINDSAY. I again refer to this volume, "The Right to Travel."
? I think that these three areas here are stated pretty well.
When you are talking about standards, this is part of the Hays bill,
as I understand it. I think Congressman Hays has taken the stand-
ards from this volume and put them in his bill.
? Mr. FASCELL. You had one exception and that was the case of the
hard-core Communist. Is that right?
Mr. LINDSAY. That is in the procedural part.
Mr. FASO ELL. And then you had a reservation on that and that is
that you would not go back to, for example, membership in the party
at any time, You say that is an unreasonable approach.
Mr. LINDSAY. You are talking about two different things. On the
one hand, you have got your substantive standards that you set up
in the bill which will govern the Secretary of State. Then over here
you have got your procedural elements. What kind of a hearing are
you going to have? What kind of structure are you going to set up
in order to determine whether or not Mr. X should be denied a pass-
port under these standards? Here is where you get into your confi-
dential information problem.
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PASSPORT LEGISLATION
?
Mr. FASCHLL. I was just trying to get back to the basic thing that
starts, the movement within the Department and that is, why do you
deny? I wasn't concerned about procedure.
Mr. LINDSAY. You deny the passport when you have the case of a
person who falls within specific categories. It may be that it is
because he has been brought back to the United States and doesn't
p.ty his debts; it may be that he is out on bail; or it may be that there
is an allegation that his objective is to subvert the U.S. Government.
In each of those cases you have got to prove your case.
Mr, FunToN. Would you yield?
. MT. FASCELL. Certainly. .
Mr. FULTON. This has been a very stimulating discussion. You
_pebple have given two citations of examples that are worthy of com-
ment. The question here is not whether you limit the man's chances
tc shout "fire" when he is in the theater, but whether you prevent the
w.ong man from going into the theater where he might shout "fire,"
eN en whether he has not openly said he has that intention.
On the example of crossing the street, it is not that the person
is given permissionto cross with everybody else when it says walk"
but can. the Government prevent the man from going beyond the curb
in ,any event because he has by previous conduct shown a tendency
that he might cross the wrong way, and he hasn't stated his definite
intention to do so.
But. here he is, a perfectly good U.S. citizen with nothing against
him. and you say, "You can't go beyond the curb." There is a corn-
p13te negative. That is an entirely different administrative procedure
ur.der .constitutional rights than the permissive use which is granted
to every U.S, citizen right here.
Mr. FASCELL. Well, the gentleman is absolutely correct and it gets
ba ck to the basic problem as to whether or not you can have any
limitation for particular categories.
I- Chairman, MORGAN. The gentleman's time has expired.
Mr. Murphy.
Mr. MURPHY. No questions, Mr. Chairman.
Chairman MORGAN. Mr. Meyer.
Mr. MEYER. Thank you, Mr. Chairman.
1 appreciate what you have said, Mr. Lindsay. I think I agree
in general with most of what you have said. The only place where
aught differ has been brought out possibly by Mr. O'Hara, Mr.
Fa scell and others. I don't believe the constitutional rights of Ameri-
ca 1. citizens can or should be denied them without a full and open
re'riew of their case.
- . Chairman MORGAN, Thank you, Mr. Lindsay.
Mr. FULTON. Mr. Chairman, might I make a suggestion, that we
have accepted Mr. Lindsay here as a Congressman but because of
.4 background as an attorney, I would like a statement qualifying
him at the beginning of this testimony as an expert witness.
First, he is a graduate of Yale Law School. Then he was Execu-
fly e Assistant to the Attorney General of the United States from
195 to 1957. He is a member of the bar of the City of New York,
of the State of New York and the bar of the Supreme Court of the
Urited States, as well as a member of the New York City Bar Associa-
tion, the State of New York Bar Association, as well as the American
Bar Association. Mr. Lindsay is a practicing attorney as well as a
Congressman.
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Mr. O'HARA. Will the gentleman yield?
Mr. FULTON. I yield.
Mr. O'HARA. I subscribe to most of that, but I would like to put
in that he is not a graduate of the Law School of the University of
Chicago.
Chairman MORGAN. Our next witness is Hon. Charles S. Gubser, a
Member of Congress from the great State of California. Mr. Gubser.
Mr. GUBSER. Thank you very much, Mr. Chairman.
STATEMENT OF HON. CHARLES S. GUBSER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. GUBSER. Mr. Chairman and members of the committee, I
appreciate the opportunity of testifying in behalf of my own bill,
H.R. 5575, and other bills to provide for the denial of passports to
persons knowingly engaged in activities intended to further the
international Communist movement.
Mr. Chairman, I consider the enactment of such legislation to be a
matter of urgency. Since the Supreme Court decision of June 16,
1958, it is well known that applications for passports by persons
engaged in Communist activity have increased greatly. The late
Secretary of State John Foster Dulles and President Eisenhower have
stated many times that such travel is not in the best interest of the
U.S. Government.
It is well known that a favorite device of persons dedicated to
overthrowing our system of government is to send agents abroad
who can bring back instructions from international communism
through the courier system. These agents also carry American funds
abroad to be used in the financing of the international Communist
movement. Certainly it is in the best interest of our way of life and
our system of government that such travel be restricted.
Technically, freedom to leave the continental limits of the United
States is a right of every citizen. But, leaving with a passport and
the endorsement of the U.S. Government is a privilege.
I realize from the discussion that has taken place here this morning
this is probably the crux of the entire matter.
? I don't agree with the statement which has been made here this
morning that a passport is nothing more than an exit permit. Prac-
tically, I think we will all agree, it is used primarily as a travel
document.
We all know that it is necessary at any point of entry to present
your passport and without such a travel document it is not possible
to gain entry to that particular country.
Now, I'd like to raise this point: If the receipt of a passport is a
right?if the right to travel is a constitutional right?why then do we
issue passports at all? It obviously is something more than a right
of exit. We know that its practical use is for other purposes. If it
was solely for a right of exit, why then should we bother to issue them
at all and set up any regulations concerning them?
Now, I contend that this right to receive this travel document
which carries with it certain privileges is a privilege which is bestowed
at the discretion of the executive branch of the Government.
? Now, this committee, I know, has had numerous hearings with
respect to the status of forces treaties. Now, I, for one, have always
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defended those treaties, but in them we have a situation wher&
knerican citizens are denied their constitutional rights as U.S. citizens
bc cause they are in a foreign country. They are denied the rights of
he beas corpus, trial by jury and numerous others.
I bring this up merely to make the point that I believe the existence
of ,the status of forces treaty, having been ratified by the Senate,
ekarly shows that all of your constitutional rights do not go with
ycu when you are in a foreign country. I think the same point can
be made with respect to the right to travel. That if you have the light
to leave this .country which no one denies?certainly I do not?you_
do not carry with_ you. into a foreign country all of the rights that
you might have in this country.
7 One other point I would like to make in this respect: It has been
sad here, in this hearing this morning that reentry into this country
is i;right. Yet I think it is pretty generally accepted that if a person
loves this country and returns .he must prove upon his return that
he has been inoculated against certain diseases. If he has not been
inopulated, then it is my understanding that we can require that he
he ploc,tgated before he has the complete and absolute right of reentry.
raise that point to make another. If the reentry right?and I
as mc you call it a constitutional right?can be restricted with con-
dil ipus which ArQ in. the general public interest?namely, inoculation
against communicable disease?then, why can't the exit right be
reF. tricted in the same public interest?
. FAsCLL.. If,the individual has, a, mental disease?
. Gunsqi. .That LS right. And to conclude my statement, it is
tre aitional that ,priyileges are only granted to those citizens who con-
du4 themsclyes in a maniacr which is in the best interests, of the
catest number of people. It is not offensive to our basic beliefs in.
b Arty and freedom when the privilege of freedom is denied a murderer
or ether persons. guilty of committing a crime against society. Since
the,activity Of communists is net in the best. interests of society in
think it only proper that the privilege of receiving a passport
should be denied, thpats
L4berty and personal freedom are things which I am very jealous
about. However, I believe my liberty and freedom is the direct result
of our system of free democratic government. If Communists have
thin, way,. that system of government will be abolished and with it
willgo my freedoms and personal liberty. It is only proper that those
who would seek to restrict our constitutional liberties by overthrowing
q-ovpriuilent which guarantees them should be restricted in the
acc opplishment .of then avowed purpose.
.7 strongly urge your committee to take favorable action on some
leg slation restricting the passport privilege.
(' iairman, goE,94.N., Thank you, Mr. Gubser.
.
Quer, your bill, H.R. 5575, is somewhat similar to H.R. 55?
That is correct. As, a. matter oi fact, I think it ia
airman IVtonoA.N,?,A.nd. you _feel if we passed a bill similar to the
9ric ,you introduced, the same bill introduced by 16 or 17 other Mem-
ber; pf ,cq4gress, this would be a start in the right direction?
GunsFf4. I certainly do feel so, Mr. Chairman. I think that
we've,..got to be very, very careful that we do not go overboard in a
legal tangle and concern ourselves with the personal liberties of a
limited few at the expense of the many.
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, It wo,s some famous Supreme Court Justice who said?and I will
paraphrase it--"that justice is due the accuser, as well as the ac-
cused.." To me the general public interest is what counts, and if that
has to be at the expense of a very few we should consider the general
public interest.
Chairman MORGAN. Thank you, Mr. Gubser.
Mr. Fulton.
Mr. Fu',rum. I am glad to have you here and, of course, your state-
ment is a good one. It is a case of what the degree of control should
be and whether we are running into the U.S. Constitution and the
basic constitutional rights.
You have used in your statement the word "privilege" and the
"right,"
wordas roughly synonymous because you can at one time see
the word "privilege" being used and the next time the word "right,"
in the same context.
Now, which is it? Is a passport a privilege or a right?
G
, Mr. UBSER. Which are you speaking of, the right to leave or the
right to leave with U.S. sanction? To me it is a right to leave this
country but it is a privilege to leave with U.S. sanction.
FuvroN, I was going to ask you that next because in your
fourth paragraph in the second line you said, "But leaving with a
passport" and then you add "and the endorsement of the U.S. Gov-
ernment is a privilege."
Does that mean leaving with a passport is the endorsement of the
U.S. Government?
Mr. GUBSER. "Leaving with a passport, comma, and the endorse-
ment of the U.S. Government is a privilege."
Or if you wish, strike "and" and insert 'with" in my statement.
Mr. FULTON. You mean the passport itself has inherently in it a
sort of endorsement of the U.S. Government?
Mr. GUBSER. That is correct.
Mr. FULTON. And based on the certification that this man is a
citizen hi good standing, that is really what I think you mean from
that point of NrieW.
Mr. GUBSER. Yes.
Mr. FuLTorr. But I would disagree with you thoroughly when you
say a travel abroad?paraphrasing?is a privilege bestowed at the
discretion of the executive branch of the U.S. Government.
don't Oink Harry Truman ever had a right to restrict me from
going anywhere I wanted, with no U.S. security elements involved.
Mr. Gunsmi. That certainly was not my meaning. I say travel
abroad "with" the implied endorsement which goes with a U.S.
passport is a privilege.
Mr. FuvroN. Now, you see, I disagree on that. I think that the
passport is a )asic constitutional right and that the passport, if I am
a U.S. citizen in good standing, is a certification that I am just that
at the time of the issuance of the passport. But when you put on the
intent that I might do something abroad once I got that passport
that mi ht be inimical to the interests of the security of the United
States, then you are guessing what I am going to do abroad and say
OA
am, to to be a bad guy.
Ow, w_lat is it? Is it going to be the certification of my future
i
actiops abroad when I rcceive tl i
ieU.S. passport or s t only a certifica-
tion as of August 14, 1959, When I left the country, that I was a citizen
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Of good standing then? What is it? Is it, to you, the fact that they
say, from here on we think this citizen is .going to be good and you
Countries and peoples who receive him on his travels abroad, give him
full faith and credit?
And then the question is, on what points? On my credit rating?
On the fact I won't commit a traffic violation? On the fact I won't
break up the furniture in some restaurant or meeting place abroad?
No, I don't think it is, to Inc.
)14r. GUBsER. Well, from the strict technical point of view, I think
your argument has merit, Mr. Fulton, but it seems to me that your
argument and all others in the same vein go on the presumption that
this power to restrict the issuance of passport is going to be used in a
dictatorial fashion. I think whenever you have a government cif law
administered by men you must place your confidence in the adminis-
tration of that law by men. I have never known a President or a
Secretary of State that I thought would use this arbitrarily and
capriciously. I feel they would do it in the best interests of the
country.
I wish I had here a copy of the oath of office that the President of
the United States takes. He swears to defend the Constitution of the
United States against all enemies, foreign and domestic. Well, to me
it- is a?
Mr. FULTON. If you will let me give you two more comments on
your statement; I ask unanimous consent that the oath of the Presi-
dent of the United States be inserted in the record at this point.
Chairman MORGAN. Without objection, it is so ordered.
(The oath referred to is as follows:)
I do solemnly swear (or affirm) that I will faithfully ex,cute the Office of
President of the United States, and will to the best of rry Ability, preserve,
protect and defend the Constitution of the United States. (Sec. 1 of the Constan-
t:on of the United States.)
Mr. FuiaoN. You say:
It is well known that a favorite device of persors dedicated to overthrowing
our system of government is to send agents abroad who can bring back
instructions. * * *
That means to me, first, that it is somebody in a conspiracy who
takes an act_, but when you say "bring back instructions,' that is a
message. That is really a limitation on the freedom of speech and
I wonder whether the U.S. Government can stop that under the
Constitution.
'Arou say "also carry American funds abroad." Under your state-
ment you seem to say you are not going to let them use the funds.
It is only for the security or protection that the U.S. Government
can deny or limit a basic constitutional right. I would disagree with
eila part of the statement.
hank you. Your comment is fine and it has been stimulating.
Chairman MORGAN. Mr. Burleson.
Mr. ,BURLESON. I think you touched on a fundamental point in
CO discussion. -You said that you have to assume that capricious-
n and prejudice will not be exercised against an individual in the
114-Tinistration. of ,inany statutes. Probably this may even at times
Inc ude the Bill of,Itights and the Constitution.
- 'Wouldn't you agree also that we have many domestic laws on the
b)Oks today which are in the same category of which policies and
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philosophies must be applied in their administration? We may not
agree with that administration, but nevertheless the executive branch
is for that purpose in the division of the powers of Government.
Mr. GunsEu. As I was saying to Mr. Fulton, in the very oath which
the President of the United States takes, he assumes the obligation
to defend the Constitution of the United States.
Certainly as a man he is entitled to some discretion as to what he
thinks is necessary to properly defend it. We make no complaint
about restraining a person from carrying security information and
I don't think we should make any complaint about restraining a person
who is going abroad for the purpose of overthrowing this system of
government.
Mr. BURLESON. I must say I agree with the gentleman and that is
all, Mr. Chairman. Thank you.
Chairman MORGAN. Mr. Bentley.
Mr. BENTLEY. Mr. Gubser, thank you for your statement.
In the next to the last line, section 8, the famous words "on the
record" appear.
What do you construe those as meaning?
Mr. GUBSER. Well, I construe them to disallow the use of confi-
dential information unless it were openly placed before the person
denied the passport.
Mr. BENTLEY. Let me make sure that I understand that.
In other words, that confidential information could not be used in
determining by the judicial review body?could not be used to make
the decision on whether the passport should be denied or granted
unless the person accused, shall we say, had access to it.
You would not permit the judge to make that decision in camera?
Mr. GunsEn. Well, Mr. Bentley, this bill was introduced March 11,
and all of this controversy, if you want to call it that, regarding judi-
cial review has come up since that time. In introducing this bill I
recognized the fact that I am not a member of this committee. The
principal purpose my introduction of this bill was intended to serve
was to indicate that another Member of Congress favors some form
of limitation. I assumed naturally the committee would write its
own bill.
It is my personal belief that the passport should be denied on in-
formation which is confidential in nature, but if the person desires
judicial review, then the information should be on the record and
should be exposed.
Mr. BENTLEY. All confidential information to be exposed to the
individual concerned?
Mr. GUBSER. That is right, if he requires judicial review of the
administrative decision.
Mr. BENTLEY. And that is your construction of the language in
section 8?
Mr. GUBSER. Yes.
Mr. FOUNTAIN. Will the gentleman yield?
'Mr. BENTLEY. Yes.
Mr. FOUNTAIN. I understand the State Department would object
to that because it would have to disclose some of the sources of their
information. They wouldn't mind giving away the information,
but they hate to disclose the sources.
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,Maos'Eu. As practical matter, I think the type of people who
would be, denied' a passport would probably not want it on the record
and aiey wouldn't ever appeal the thing.
Mr. FTILToN. Wouldn't that open the FBI files?
r. Mr. BENTLEY.,2Wait a minute. You boys are working on my time
here.
,,F3V1r, Cbairman, I have another minute.
C airman MOTtGAN. MI:. Bentley has the time.
Mr.. BENTLEY. I would like to ask one more question.
As I recall the language in the passport itself, it requests the foreign
411tholitins of any government of any country to which the person
may be traveling, to render to him all rights and privileges accorded
e citizens of that particular country traveling in the United States.
Is that generally correct?
Mr. GUBSER. I think so.
Mr. B.ENTLEY._Wo:Odn't that assume that the contention, then, is
*hat, the bearer will so conduct himself while abroad that he would
be entitled to those rights and privileges that a foreign government
would normally extend to aliens passing through their territory?
. Gu.usErt. I would assume so.
BLNTLEY. Doesn't that assume, then, that the passport-issuing
authority believes that the bearer will conduct himself in accordance
with normal standards of good conduct and that sort of thing?
Mr. OunsEa. ;Yes; I would think it would assume that, but in the
light of this present Supreme Court decision, the issuing official is
required to issue the passport whether or not be believes the person
will so conduct himself.
Mr. BENTLEY,. And isn't the Supreme Court decision inconsistent
with the language of the document itself?
Mr. GuEsER? I had never thought of that point before, but it
certaiuIy sounds reasonable.
r.ci,EY. Thank you, Mr. Chairman.
airman McT.GAN. Mr. Selden?
r. SELDEN. Thank you, Mr. Chairman.
. 'Let me .commend You, Mr. Gubser, for an excellent statement and
one that certainly goes right to the point.
,Mr. FULTQN. Wleuld you yield for a question on that point?
r. SELnEN..:Yes, yield.
L- Mr., FVLTON. Mr. Chairman, could we have put in at the point in
the record where the gentleman from Michigan was speaking, the
language commented on in the passport document itself, so that we
can compare?
Ctair1140. MorioAx. Without objection, it is so ordered.
Mr. FULTON. 'Thank you.
(The information appears on p. 122.)
Mr. 8ELDEN. With regard to your exchange with Mr. Fulton, Mr.
Fulton referred to "any citizen in good standing". I would like to
point out that your bill and the bill that I and others have introduced
doesn't apply to "any citizen in good standing," it applies only to a
N.V.)09 is a member or former member of or affiliated with the
olltmunisi Party, or who knowingly engages or has engaged since
.048 in activities intended to further the international Communist
movement.
Also, the Secretary of State is authorized to deny a passport to that
person only after it is determined that his or her activities or presence
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PASSPORT LEGISLATION 119
abroad under the findings made in section 5 of this legislation would
be harmful to the security of the United States.
So, I don't think it applies to any citizen in good standing, and I
think that should be clear in the record.
Mr. FOUNTAIN. Will the gentleman yield at that point?
Mr. SELDEN., Y08.
Mr. FOUNTAIN. Then, is it true that a former Communist might
not be denied a passport unless a decision is made to the effect that
this travel would be injurious to this country?
Mr. SELDEN. That is right.
Mr. FULTON. But you certainly don't put the criterion of your basis
of decision that it is the U.S. citizen in good standing before or after
the year 1948?
Mr. SELDEN. I said he could be a citizen in good standing. This
legislation does not apply to any citizen in goo standing. That is
the point I am attempting to make, and I think you will concur with
me on that.
Mr. FULTON. As long as you say that the cutoff point of the year
1948 is not the cutoff point also for a citizen in good standing.
I don't know that I agree with your general definition of a citizen
in good standinc, and not a citizen in good standing.
Mr. SELDEN. I am not attempting: to define a citizen in good stand-
ing. I am only saying this legislation doesn't apply to any citizen.
It applies only to those citizens, some of whom you may consider in
good standing, who fall into the categories outlined in the legislation.
Mr. FULTON. This is a good comment. That clears it up.
Chairman MORGAN. Mr. O'Hara?
Mr. O'HARA. Mr. Gubser, everyone, I think, and certainly I,
agree with your statement here that it is only proper that those who
would seek to restrict our constitutional liberties by overthrowing
the Government should be restricted in the accomplishment of their
avowed purposes.
'Now, may I ask you, Mr. Gubser, if one has avowed that his purpose
is to overthrow the Government of the United Stves, have we not
now statutes under which he can be proceeded against?
t Mr. GUBSER. I think we have. I think it is also an accepted fact,
however, that that criminal prosecution has not been carried out
against all people who have such an avowed purpose.
Mr. O'HARA. Now, what do you mean by 'avowed purpose"? If
one stands on the corner and said, "Now, I want you all to rise up
and overthrow this Government," he is avowing a purpose and could
be proceeded against; couldn't he?
GUBSER. Let me first tell you this statement was not written
With the intention that it should be couched in legal terms. I am a
farmer. But even though I am not trained in the law, I do not believe
that restrains me from applying the law of commonsense. So I would
request of you, and since I know you are a well-qualified lawyer, not
to interpret my statement in strict legal technical terms.
Perhaps if I were arguing this in a court of law, which I naturally
wonlcIn't be because I am not a lawyer, the word "avowed" would
not be there. ' - ?
1:Mr. 0'11mA. I think the gentleman misunderstands me, but un-
fortunately I have a limited vocabulary. The word "avowed" is a
pretty big word. Does that mean a man suspected of being a traitor
to his country?
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120 PASSPORT LEGISLATION
Mr. GUBSER. I mean a man who, in the opinion of the person issuing
the passport, is going abroad for the purpose of subverting the U.S.
Government.
Mr. O'HARA. Then would you hold that one under suspicion by the
Department of State is one who is an avowed conspirator?
Mr. GUBSER. That is right. And I believe we should have con-
fidence in our elected officials to apply this in the best interests of the
country and for the benefit of the greatest number of people.
, Mr. O'HARA. But you do think?and I have gotten this impres-
sion?that if one is denied a passport on information of a secret nature,
then all of the evidence, including that secret information, should be
reviewed by a court, publicly reviewed? You believe that?
Mr. GUBSER. If the person who has been denied the passport re-
0-Jests it; yes.
MT. O'HARA. Thank you.
Chairman MORGAN. Mr. Fountain.
Mr. FOUNTAIN. Mr. Chairman, what I am going to say is simply
repetition, but I am doing it for emphasis.
We all recognize certain constitutional rights. Whether you call
them rights or privileges, as far as I am concerned it doesn"t matter.
Because I think we also must admit that any right is subject to
rmsonable rules and regulations. The problem is, what is a reasonable
rile and regulation?
For instance, we talk about confidential information repeatedly in
the courts. Maybe not before an individual is convicted, but when
the question of punishment conies up, which is about as important,
confidential information is quite often revealed to the judge and it
ray oftentimes determine whether one gets a 10-, 20-, or 30-year
ntence.
It seems to me that as long as we admit that our rights are subject
tc reasonable rules and regulations, we are bound to place some dis-
cretionary authority in the hands of somebody.
_ We should be cautious to adopt rules and regulations which will
not be abused to the detriment of good, loyal Americans.
Chairman MORGAN. Mr. Fascell.
. Mr. FASCELL. Mr. Gubser, I think you have a very practical ap-
proach to this problem in nonlegal terms. I think you have stated the
ISE ue, pure and simple, and that is whether we are going to allow the
Secretary of State to deny passports to Communists or anyone affili-
aod with the Communist Party, or to other people who meet the
criteria of this proposed legislation.
And that gets back to the question as to whether you want. to
reEtrict them for any reason, or for the reasons stated in the act, be-
canse you believe what they have done or what they are about to do
is against the best interests of the country.
Once you cross that bridge the rest of it, as far as I am concerned,
is mere technical detail. And I assume that is the way you feel
about it. ?
Mr. GUBSER. That is right.
Mr. FASCELL. In other words, you are getting at the basic point,
wh:.ch is, you think it is absolutely essential, it is right and it is neces-
sary for the Federal Government to deny a passport to an individual
wh.) meets the criteria under this act?
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Mr. GUBSER. I certainly do. And may I ask the gentleman a
question.?
Mr. FASCELL. Yes.
? Mr. GUBSER. IS it true, that in criminal law an arresting officer has
the right to arrest on suspicion that a felony is about to be committed?
Mr. FASCELL. Sure. Whether he can hold him or not, is something
else again, but he can arrest him.
Mr. GUBSER. Isn't that a little bit analogous to this, that the
passport issuing officer would have the right to deny the passport on
suspicion that the person getting it is going to engage in an activity
which would subvert the United States?
Mr. FASCELL. I don't know, Mr. Gubser, but I know this, that
the right of an individual to a passport has been proscribed, circum-
scribed, limited and otherwise refined. As long as that has been done
in the public interest, it would seem to me that another restriction,
legitimate in the public interest, would not violate any great constitu-
tional principles.
It is not the restriction in itself on which there is argument. You
will understand there is argument on whether or not you should even
restrict.
Then you get into the next question, which is whether or not the
? evidence presented is in itself sufficient to allow a denial under the
restriction fixed by law.
Then you get into another field, the question of the discretion of the
individual who must administer the law.
Chairman MORGAN. Mr. Meyer
Mr. MEYER. Thank you, Mr. Chairman.
Mr. Gubser, I think you have come to the point in quite practical
terms, and I guess most of those who have questioned you are lawyers
but you are a farmer and I am a forester, and I will try to speak your
language.
For instance, I think of the following words, "pursuit of life, liberty
and happiness."
Now, if we have the right to live, we couldn't actually have the right
to live if we were denied water. And in a certain sense, if we have the
right to travel, we don't have the actual right to travel if we are
denied a passport because of procedures.
I think I read once about a famous scientist who went to study in
Germany and they demanded his birth certificate. He said, "I don't
have a birth certificate. But the very fact I am here proves I have
been born."
But generally there is a regulation that you need a birth certificate.
Also, it happens to be a regulation that to travel (unless you want to
swim around in the ocean), you need a passport. So that is the way
I look at this thing.
What we are going to do about it, I don't know. I know we have a
problem, but the point was brought out, I believe by Mr. Selden, that
a Communist possibly wouldn't be a citizen in good standing.
Now, is this necessarily true that a Communist couldn't be a citizen
in good standing? It brings up this question of what his avowed pur-
pose is. The fact that he is or is not something doesn't necessarily
answer the question?Mr. O'Hara brought out this point about avowed
purposes and what they are.
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Do you agree that we have to prove that the man definitely plans
to do something that is really against the interests of the United States
to deny him a passport?
Mr. GunsER. In the first instance, speaking at the level of admin-
istrative decisiori, I believe_ that the officer should. deny the issuance
pf the passport if he has reasonable cause to believe or suspect that
the person is going to engage in a subversive activity.
Insofar as proof is concerned, if a hearing is demanded--and I
repeat, I don't think there usually will be for practical reasons?then
think we've just got to get down to a legal situation and I would
guess you would have to prove it; which would be difficult to do, I
grant you.
- Mr. MEYER. And you also feel, and I think I can fully agree with
you here. if you take this position that a man would be entitled to a
review of his case and, to see the accusations against him?
- Mr, G-unsErt. Yes, I would say he would be entitled to it.
Mr. MEYER. I think I could go along with that.
Thank you very much.
Mr, SELDEN. Would you yield there?
And don't you think, Mr. Gubser, that the bill, H.R. 55, your bill
and the other bills, would comply with that standard?
Mr, GUBSER. I do.
Chairman MORGAN. Mr. Bentley
Mr. 13.4NTLE-5,-,,Mr. Chairman, let me read at this point into the
record the request Mr. Fulton, the gentleman from Pennsylvania;
made about the wording of the passport. It says:
, I, the undersi2,neci, Secretary Of State of the United states of America, hereby
kequest all whom it may concern to permit the above named citizen of the United
States safely and freely to pass and in case of need to give such aid and protec-
tion as would be eNtended to like citizens of foreign states in the United States;
To me, Mr. Gubser, that is definitely an assumption that the indi-
vidual is going to conduct himself while abroad certainly in accordance
with what the State Department would deem our best interests, our
security and standards expected of an American citizen.
Mr. FASCELL, The presumption is that every citizen will obey the
law, Mr. Bentley, anywhere.
Mr. BENTLEY. You mean their law Or OUT law?
Mr. FASCELL. Any law. The presumption is that the citizen will
obey the law.
Mr, BENTLEY, Wait a minute, Mr. Fascell.
Mr. FASCELL. "Only Democrats," Mr. O'Hara says.
. Now, will the gentleman yield further? B
Mr. ENTLEY? Is the presumption that he is going to obey the law
of the land or also the I.T.S. law?
Mr. FASCELL. Any law.
4 Mr. BENTLEY. What may be a crime against our law may not be
a crime in the conntry he is traveling in.
Mr. FASCELL. That doesn't give the individual a right presump-
tively in law or otherwise to disobey a law in the forum in which he
happens to find himself at the time.
? Mr, BENTLEY. I understand that, but does it give him the right to
disobey American law if he is not in the United States?
Mr. FASCELL. He would find it very difficult to disobey American
law while in Africa.
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Mr. BENTLEY. Well, possibly. Possibly not, but why do you make
that statement?
Mr. FASCELL. I say he would find it very difficult because the field
is extremely narrow.
For example, if he advocated treason against the United States in
Africa, it would be a violation of U.S. law.
Mr. BENTLEY. Not of African law.
Mr. FASCELL. If he advocates murder, it might be against the law
in Africa.
Talking about the free right of travel, the fact is that you have to
have a passport to leave.
Law to the contrary notwithstanding, as Mr. Meyer points out,
unless you want to swim around the Cape of Good Hope you are still
going to have to have one of these documents.
Mr. BENTLEY. You don't need this document to leave if you are
going to certain parts of the Western Hemisphere now, do you?
rI\. FASCELL. Is that fixed by law?
Mr. BENTLEY. It depends upon whether or not the country to which
you are going requires a passport as a condition of entry. Mexico
will let you conic in without a passport.
Mr. FASCELL. So our right as American citizens to travel can be
proscribed by another country, and is.
Mr. BENTLEY. That is a known fact.
Mr. O'HARA. Mr. Chairman, may I compliment the witness. I
think he is one of the best witnesses we have had before our committee.
Chairman MORGAN. Thank you, Mr. Gubser.
The committee stands adjourned until 10:30 tomorrow morning.
(Whereupon at 12:35 p.m., the committee adjourned, to reconvene
at 10:30 a.m., ednesday, August 19, 1959.)
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PASSPORT LEGISLATION
WZDNESD4A,Y, AUGUST 19, 1959
HOUSE OF REFRESENTATIVZS,
COMMITTEE ON FOREIGN AFFAIRS,
Washington, D.O.
The committee met, pursuant to adjournment, at 10:40 a.m., in
room G-3, U.S. Capitol, Hon. A. S. J. Carnahan presiding.
Mr. CARNAHAN (presiding). The committee will come to order.
This morning we have a continuation of hearings on various pass-
port bills.
I have here a copy of a statement of Lee R. Pennington, assistant
director, National Americanism Commission of the American Legion;
a statement of the U.S. section of the Women's International League
for Peace and Freedom; and a statement by the American Civil Lib-
erties Union. These are submitted for the record and, without objec-
tion, will appear as a part of the record.
`(The statements are as follows:)
STATEMENT OF LEE R. PENNINGTON, ASSISTANT DIRECTOR, NATIONAL AMERI.?
CANISM COMMISSION OF THE AMERICAN LEGION, AUGUST 6, 1959
Mr. Chairman and members of the committee, since its birth some 40 years
ago, the American Legion has vigorously fought the international Communist
conspiracy which seeks ultimately to enslave the world. We are, therefore,
very much interested in H.R. 55 and similar bills which have for their purpose
the denial of passports to persons knowingly engaged in activities intended to
further the international Communist movement.
The American Legion supports this legislation and we would like to briefly
point out what we feel are compelling reasons for its enactment.
1. The President's statement before a joint session of the Congress on January
9, 1958, warns, "what makes the Soviet threat unique in history is its all-inclusive-
ness. Every human activity is pressed into service as a weapon of expansion.
Trade, economic development, military power, arts science, education, the whole
world of ideas?all harnessed to this same Charia of expansion. The Soviets
are, in short, waging total cold war."
2. With that warning from a source fully acquainted with both the internal
and international pictures, it is difficult to envision the U.S. Supreme Court
just 5 months later ruling in effect that the executive branch of the Federal
? Government had no legislative authority to deny passports to Soviet agents and
other subversives residing in the United States. Consequently, since the High
Court's decision in the Rockwell Kent and Walter Briehl case on June 16, 1958,
our Government has had no alternative but to reluctantly issue passports to
hundreds of known Communists and supporters of the international Soviet
conspiracy.
3. The Secretary of State turned down passport applications of Kent and
Erich' on the grounds that they were Communists and that they had constant
and zprolonged adherence to the Communist Party line. The Supreme Court
ieversed two lower Federal courts and held that since statutes provided that it
is unlawful for a citizen to enter or leave the United States without a valid passport,
the Secretary of State did not have authority to promulgate regulations denying
passports to Communists or to persons whom evidence showed were going abroad
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to further Communist causes or regulations demanding non-Communist affidavits
from citizens applying for passports. Three Supreme Court Justices dissented in
all regards stating that the Secretary of State's passport permitted the regulations
in question.
4. Roderic L. O'Connor, Administrator of the Bureau of Security and Consular
Affa rs of the Department of State, in a speech befoie the Veterans of Foreign
War3 in Washington, D.C., on November 8, 1958, declared: "In our view, control
over the issuance of pasipor1S-has been an important part of our defenses against
Judi] ect Communist aggression. Under the law today, that part of our defense
agai ist Communist subversion no longer exists. Your Government As today
poW qiess to deny passports to known Communists who are going aborad for the
un r ose of assisting and supporting the international Communist conspiracy * " *
s s result of * * * (the Kent) decision, the State Department has received as
of early this week 596 (702 as of December 15, 1958) applications for passports
Iron persons who have records of activity in support of the international Com-
munist movernen't. Before the Suoreme Court's decision many of those persons
had been refused ?passports or had abandoned their applications when asked to
identify th4nselVes as Communists."
: Ta.e Government official said, "since the Kent decision, these persons have
mot, ed promptly to take advantage of the breach in our defenses. They are
getyng their passports while the getting is good." O'Connor stated the Depart-
MP; ti, of ,tate believes "that this is a dangerous situation and one which needs
To be cured promptly. If can be cured by legislation giving to the State Depart-
ment authority to deny passports to Communist supporters. The Department
1.014,ht to obtain such legislation in the last session of Congress. Although the
.401- sn, passed a bill, the Senate failed to act * * * we hope to obtain such
Jegi:.tation in the next (86th) Congress." In his concluding remark, O'Connor
reit' :rated the seriousness of the situation by emphasizing that "until such legis-
lation" is passed, your Government remains helpless to prevent American Com-
-min las from traveling abroad to conspire against our national interest, and in
some cases even against Our national security."
5 The aforementioned Roderic O'Connor appeared at the December hearing
of the Senate subcommittee and testified in detail regarding certain statements
con..,ained in his November 1958 speech. During the course of his testimony
and on a subsequent occasion, O'Connor furnished the subcommittee a total of
702 names of individuals who applied for passports subsequent to the Kent
,ruli ig. The State Department official identified these persons as having sup-
por',ed the "international Communist movement." He also declared these indi-
Vidu ls "are soldiers in the cold war?but they are soldiers of the enemy. They
'axe fust as' clearly the enemy as were the troops abroad that shot at you and me
-,fri ' orld -War II. They., are going abroad under instructions to render service
to , _e Communist conspiracy." At the time of O'Connor's testimony, 642 of
the 792 applicants had been furnished passports by the Department of State.
Of lege 702 persons, the names of 30 were made public.
6. FBI. Dir ' Jedtor . Edgar Hoover, in a statement appearing in the Detroit Free
Pre is of March g, 1,959, said: ''In recent months many leading Communists have
been 4blq to travel to the Soviet Union because of the easing of restrictions in
the jaauance of American passports." The 21st Congress of the Communist
al ty of the Soviet iinhin`was held in Moscow on January 27 to February 5, 1359,
and Vr. Hoover said that the attendance of two leading American Communists at
thif Conzress in an official capacity is indicative of the close affiliation which
pre .'-'6fitly exists between Moscow and tne Communist Party, U.S.A. Their
:preAtice in Russia, along with the other Communists (previously mentioned)
' 41' ? * is a harbinger of things to come ?namely, an increasing number of Amen-
car Communists Communists who will be visiting Russia and other Communist countries.
Viewing the passport situation as a matter of extreme urgency, the American
el;ion recently went on record in support of remedial legislation to curb this
. LgerouS and unrestricted use of passports by subversive elements. At its L958
a tional Convention and again at the meeting of its National Executive Com-
mi. tee, last spring, the American Legion approved of "corrective legislation by
oui Xrational Congress which will permit the executive branch of the Government
to ontroi and regulate the issuance of passports."
3n closing we would like to express the appreciation of the American Legion to
y8u.1 '1\,Ir. Chairman, and all the members of the committee for your courtesy in
' affoglina us an opportunity to present our views on this most important legisla-
, . .
ti01., gain, we urge you to give it favorable consideration.
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BTATEgENT Q WC-PANN' INTERNATIONAL LEAGUE FOR PEACE AND FREEDOM, U.S.
? ; i ? 1. SECTI,ON FGA PA:401'9-8KP PAssPoar IovozsmATrox
The Women's International League for Peace and Freedom, which has members
many countries, knows from 44 years' experience how vitally important is
freedoro? Of travel, along with freedom of international communication. The
league has so testified both to this committee and to others in the past and is
glad to reaffirm its support for the principle at this time.
Tough freedom of travel is an integral part of our American democratic tradi-
,
tion a mood of fearfulness for national security has sometimes cast doubt on this
fUnliamental right. The league is firmly convinced that a policy of timidity,
leac ing to the multiplication of restrictions, does not promote security but, on
the contrary, endangers our own liberties and democratic order. We believe
that the right to travel is a basic liberty written into the Bill of Rights and to
deprive any citizen of such right is a denial of due process. Though such a right
might be suspended in times of great danger to national security, there is no
justincatien for such denial at this time. We would welcome, therefore, such
proposals as positively support the principle of freedom of travel and liberalize
the existing regulations by extending the term of the passport to 3 years as pro-
posed in a bill before the Senate Committee on Foreign Relations.
The Women's International League for Peace and Freedom has for its main
purpose the promotion of peace among all peoples and nations. To secure peace
in freedom, which is our motto, there must be understanding of the problems of
all nations. Emowledge of these problems depends in turn upon the greatest
freedom of movement from one to the other. There must be more and not less
woportunity for international contacts without reference to political opinions and
ic.eological convictions. As our highest court has stated, it is just as important
for an American citizen to have the right to travel as it is for him to choose the
food he eats, the clothing he wears, or what he desires to read. To deny one is to
deny the other.
By this reasoning, the league strongly opposes the type of legislation proposed
in a number of bills before this committee. These purport to protect the United
States from external danger by denying passports to certain persons who are held
to be agents of the international Communist movement. The league believes
that there are more appropriate means for protecting this Nation against com-
munism and subversion than by subjecting the political beliefs and associations
of Americans who wish to travel to scrutiny by an administrative agency.
We submit that it is against the spirit as well as the specific guarantees of the
Constitution to grant any executive agency the power to act on the determination
that anyone's travel abroad is contrary to national security. For this reason
the league also cannot support H.R. 5455. Although this bill states "Travel
by citizens should be as free of Government restraint as possible consistent with
the requirements of national security," it nevertheless includes provisions for
denial of passports on grounds which leave to the administrative agency tre-
mendous scope for definition and application. Even though a review of decisions
is provided for, this measure could in practice permit serious administrative
interference with the freedom of movement for all citizens which the bill endorses.
Moreover, it contains statements of findings contrary to the emerging policy of
?friendship with the Soviet Union.
In signing the Universal Declaration of Human Rights, the United States
pledged itself "to promote respect for these rights." Article 13 of the declaration
provided that "Everyone has the right to leave any country, including his own,
and to return to that country." Since conflicting views have been raised in
proposals currently before this committee, we earnestly urge that the committee
not report any bill purporting to give the Department of State the right to deny
passports for political reasons. But we urge you rather to uphold the right of
citizens to leave freely and to return to the United States.
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?11 ?
STATE: rIEN TH
T OF E MERIGAN CIVIL LIBERTIES' UNION ON H.R. 7006, Tut: 246?4,
AND H.R. 5455 GOVERNING THE AUTHORIZATION AND USE Or PASSPORTS,
,Aucusm 19 1959
" -The ArnericE6i tiberties 'Union is a tiOnPartisan organization of private
iizer S' founded 39 years ago to promote and defend the rights guaranteed by
the 13f11 of Rights and the Constitution. Among these rights is the freedom to
travel, both within and without the United States. This freedom, as defined by
the Supreme Court in Kent & Briehl v. Dulles, is one element of that "liberty."
Secured by the fifth amendment, of which no person may be deprived without
due 'p-.13' Cess of law. This freedom, we believe, is also an integral element of the
right guaranteed by the first amendment, for without it beliefs can be stifled,
.aSd,Ociations thwarted, and the press obstructed; and by the ninth and tenth
amen iments.
? Th s view of the right to travel underlies the following fornial statement of the
'Unto] s .position:
"An American citizen has the right to travel within this country and also the
right to travel to and within any other country with which this country is not at
War.
"Be is entitled to a passport identifying him in such foreign travel provided
he is under no legal obligation, by reason of criminal or civil process, to remain
with n the United States.
"LA Case of refusal or delay in the issuance of a passport, full disclosure of the
re( tiS shall be given with the right to a prompt and full due process hearing
4nel :i6urt reView. "
GurpoSition, based firmly on the belief that freedom of travel is a constitutional
righ?: rejects the assertion that there may be any restrictions placed upon the
issumce of passports on either a personal or a geographic basis, except in the case
? Of an individual under criminal or civil process (i.e., when he is compelled to
appear in a court or to comply with its demands), or in the case of a country with
'Whom we Are at war.
? The right to travel is not, of course, absolute. But here, as with other consti-
tutiMally protected liberties, the right may be inhibited only upon a showing that
the inhibition is justified by the presence of extraordinary circumstances?air-
' curektanoeS which clearly and presently threaten the continued life of our Nation.
We clO not believe that such extraordinary circumstances now exist. The curbing
of E constitutional right is even more grievous when the limitation IIONVI from. an
ind.vidual's political status. Prior to the decision of the Supreme Court in Kent
v. Dulles in June 1958, passports were withheld from individuals not only
for failing to reply to the questions pertaining to past and present Communist
Pai ty 'membership, but even in cases where Communist Party membership was
not in issue, passports were withheld from individuals because of unpopular be-
lief 3 and associations. But we maintain that, absent a clear and present dar, ger,
a rerSon's beliefs and associations, no less his intention to speak critically of any
Atsieet of American life---freedoms, which are constitutionally protected at home?
cannot be grounds upon which to deny him the necessary documents to ttavel
ab ead. As Justice Stewart well said in Kingsley Pictures Corp. v. I?egenh (27
Law Week 4492, 4493), "* * * the first amendment's basic guarantee is of free-
dom to advocate ideas * * * . Its guarantee is not confined to the expression
of ideas that are conventional or shared by a majority."
With respect to acts abroad which it is believed would threaten the security of
ot f 'Nation, it is our belief that there are ample methods for dealing with this
:problem other than by refusing to issue a passport to the individual concerned.
It seems to us that if the Federal law enforcement authorities have sufficient infor-
m gtion to warrant the belief that an individual intends to commit abroad a erime
avaifist the United States, there are two courses open to them. If the plans to
commit the crime have been formulated in this country, a properly drawn indict-
m ent for conspiracy would seem to be the correct remedy. On the other hand if
there is not sufficient evidence to warrant such an indictment, it would appear to
be beyond the reach of the Government to attempt to interfere with travel of a
citizen merely because it is suspected that he intends to commit a crime against
the United States abroad. Such a suspicion is necessarily problema,tical. It
should and could be further substantiated by counterintelligence surveillance. If
it IS then established that a crime has in fact been committed which violates the
Livirs of the United States, the evidence should be marshaled to await the return of
the individual or, if possible, international extradition proceedings should be
Instituted.
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p4sspoxa IrtVGIRATRIY 129
?
In brief, a criminal prosecution should be instituted if a crime has been com-
mitted in this country. If no crime has been committed, there is no civil liberty
principle which prohibits continued surveillance, but there is a civil liberty
principle which prohibits the abrogation of the constitutional right to travel
on the basis of a surmisal that an individual harbors the intent to commit a crime.
Bare intent will not sustain a prosecution; no more should it sustain the restriction
of a basic liberty.
A further question we wish to discuss is the continuing claim made by the
Government that discretion in the issuance of passports is intimately associated
with the conduct of our foreign affairs and that passports may, therefore, be
invalidated for travel to specified geographical areas. In a very real sense it is
true that passports and foreign relations are closely related, for when Americans
travel abroad they are the representatives of our country. As such their activities
and behavior very likely have as great an impact upon our foreign relations as do
official acts and pronouncements. Yet we imagine no one would justify the
revocation of a passport?a constitutional right recognized by the Supreme Court
in Kent dc Briehl v. Dulles?because a -U.S. citizen conducted himself abroad with
something less than dignity or maturity.
But this, of course, is not what the State Department means when it claims that
passports and foreign relations go hand in hand. Its meaning rather is that
the execution of foreign policy?e.g., with regard to Communist China?defines
and may restrict the exercise of constitutional rights otherwise available.
It is not within the organizational competency of the ACLU to argue for or
against any purpose of foreign policy. However, we maintain that whatever may
be such purpose, it must not be implemented by methods which violate a consti-
tutional freedom. To admit the contrary would be to admit as well that any
legitimate function of government may be carried on by any means whatsoever,
whether or not it violates fundamental liberties. The exercise of the power over
foreign affairs stands in no favored position in comparison with any other power
of the Federal Government. Although foreign affairs are a grave matter, par-
ticularly in today's world, their constitutional bounds must be observed, as are
those of the power to tax or the police power. The essence of our form of govern-
ment is the recognition of the fact that goals must invariably be approached by
means which are consonant with constitutional guarantees of individual freedom.
It is for these reasons that the American Civil Liberties Union has been support-
ing the case of William Worthy, who has been denied a passport because he refused
to agree not to travel to those countries for which the Department of State has
refused to validate passports. Our support of that case is based simply on our
belief that the Government has no right to deny American citizens the right to
travel by closing specified geographical areas to them.
Having stated our views generally on the constitutional questions which we
believe are raised in this area, we would like briefly to comment upon the several
bills now before this committee.
. H.R. 7006--we are opposed to this bill, because we believe it presents substan-
tial dangers to civil liberties. The principal danger lies in the vague language of
section 2 which refers to "any person * " [who] knowingly engages in activities
for the purpose of furthering the international Communist movement * * *"
U.S. v. Lattimore, 215 F 2d. 847 (C.A.D.C. 1954) is an excellent case to demon-
strate the deficiencies of this bill. There the language under scrutiny was an
indictment charging that the defendant had testified falsely when he said "that he
had never been a sympathizer or any kind of promoter of communism or Commu-
nist interests." The court of appeals affirmed the dismissal of this count on the
ground that it was void for vagueness. It was pointed out that "not only is it a
basic rule that 'criminal statutes must have an ascertainable standard of guilt or
they fall for vagueness,' but it is equally well established that an indictment must
charge an offense with such reasonable certainty that the accused can make his
own defense." (At p. 849.)
There are indeed activities which assist the cause of communism, but there
are also activities of which no one can say with certainty that they are for the
purpose of "furthering the international Communist movement." Statements of
belief that do not agree with the official U.S. policy might conceivably be so
characterized. Statements or acts which do not contravene official policy but
which bring discredit upon the United States might also be so characterized.
In addition, all the legal problems of proving subjective intent are here magnified
in the absence of customary judicial procedure. And the problems are further
augmented by shifting to the applicant the burden of disproving that he "know-
ingly engages in activities for the purpose of furthering the international Com-
munist movement." This is a remarkable inversion of duo process which offends
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tuuaamental presumption of innocence that is an esseritial---an Asolute---
. ?
tient of Our criminal law. If it be claimed that all these objections fall because
this is not a criminal statute, we would reply that its sanctions so far deprive the
difecte I individual of his freedom of movement, that it should properly be so
treated; if the authority to restrict the issuance of passports is to be legislated,
full ate process safeguards crust be provided, a point which a host of court deci-
signs i i the past decade have made abundantly dean H.R. 7006 does not provide
ese WegUards. In addition to the vague language and the disregard of dile
ahlrechitained in this bill, it suffers from the vice of authorizing the use of
ebbfidential information and sources in violation of the sixth amendment. Sec-
tion 'I C'f?) pen-nits nondisclosure of information "which would have a substantially
Eidver ;C: -effect upon the national security or the conduct of foreign relations.
As :.afently as June 30 last, Mr. Chief Justice Warren had this to say (in dictum)
On th!):Pication Of confrontation:
"Certain principles have remained immutable in our jurisprudence. One of
these is that where government action seriously injures an individual, and the
reasifiableneas of the action depends on fact findings, the evidence used to prove
the g yvernment's case must be disclosed to the individual so that he has an op-
rtu ray to show that it is untrue. While this is important in the case of docu-
ment try evidence, it is even more important where the evidence consists of the
teetiriony of individuals whose memory might be faulty or who, in fact, might
be, perjurious or persons motivated by malice, prejudice or jealousy. We have
fprin tlized these protections in the revirement of confrontation and cross-
etairiraien. They have ancient roots. ' Green v. McElroy. 27 Law Week
4528, '4534. -
:Ttis is a statement to which the ACLU enthusiastically subscribes. We com-
mend it to "Mr. John W. Hanes, Jr., Administrator of Security and Consular
Aga' is, Department of State, who appeared before this committee on Aur-ust 5,
1050: Discussing provisions for furnishing an applicant with a resume of any con-
fider tial testimony considered by the hearing board, Mr. Hanes said "this would
Mea i giving him everything except the identity of the source. The applicant
Wou'd 'then have due notice of the points in issue and would be given adequate
opPortimity to rebut this information." But the opportunity would not be
adequate at all in the absence of knowledge of its source, as Mr. Chief Justice
Waireii so Well points out above.
In an area *here competing values adduce serious conflicting arguments, we
rtiwf make a judgment one way or another. We have chosen in favor of the
individual and the historic tradition of confrontation and cross-examination.
We reason that liberty abridged in the name of security is an insupportable
anomaly in the absence of a clear and present danger to that security. It is
Painful enough to sacrifice freedom to accommodate the exercise of the powe-:. to
*age war effectively (See Ifirabayashi V. U.S., 320 U.S. 81?a decision to which
the ACLU was opposed). It is more painful?and infinitely more perilous--to
Sac-ffi-ce Constitutional ri-41its where the countervailing value is asserted in the
absence of a clear and present danger.
2468 and H.R. 5455?we find H.R. 2468 completely unacceptable.
Alth,ouh it purports to grant statutory authority to the Secretary of State to
r?flate reasonably the issuance of passports, it in fact grants him unlimited and
al{itrary authority to deny passports on the grounds, among others, that he
aloe believes to be "prejudicial to the interests of the United States." The
ttbf enee Of any- statutory standard to limit the discretion of the Secretary, enables
hiri to arbitrarily prevent the travel of any U.S. citizen abroad for reasons that
he deem 's inimical to the goals of the Government's foreign policy at any given
time. Manipulation of the constitutional ri7,ht to travel could be subordinated
to What is merely a judgment by the executive branch as to what is a desirable
thc aha to implement a policy decision. Constitutional rights may not he so
ligAtly treated.
part Train the discretion which this bill grants to the Secretary?about whose
eo ctitutionality we have serious doubts--the bill also allows the Secretary of
Sti,,te' to .refuse to issue a passport "whenever there is reasonable grounds to be-
lieve that the applicant * * * is going abroad * * * for the purpose of engaging
in hethifties Which will further the aims and objectives of any party" which, in
effect, Seeks to aid the Communist movement. The vague and uncertain lan-
guge' tif this seetion likewise grants to the Secretary almost limitless discretion
to 'Withhold a passport from any individual who is associated with an unpopular
OO but -Which is in no way unlawful.
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The provisions of H.R. 5455 largely follow those that appear in H.R. 2468. It
too attempts to protect our Nation's security by sacrificing large areas of freedom
to the arbitrary control of the Secretary of State.
The power of our Government to prosecute swiftly any individual who has
committed a crime affords ample protection for our Nation's security without
invading areas of freedom protected by our Constitution.
We would like to express our wholehearted agreement with the view of Mr.
Hanes that these bills are far too broad and far too restrictive. Our objections,
df course, go beyond that but we are pleased that the administration recognizes
the serious imperfection of H.R. 2468 and H.R. 5455.
Mr. CARNAHAN. We are honored to have as our first witness our
distinguished colleague the Honorable Emanuel Celler, a Repre-
sell-Calve from the great State of New York.
Congressman Celler, we are delighted to have you before the com-
mittee and you may proceed as you wish.
STATEMENT OF HON. EMANUEL CELLER, A REPRESENTATIVE IN
? CONGRESS FROM THE STATE OF NEU" YORK
Mr. CELLER. Thank you very much, Mr. Chairman.
? I am indebted to you and the members of your committee for the
opportunity to appear here this morning and express my views on
passport legislation.
Last year about this time I had the privilege of appearing before
this committee on the , very question which confronts you today:
Should we have passport legislation and, if so, what form should it
take?
Last year I spoke in favor of a bill which I had introduced and
which took the positive approach to this problem. Rather than re-
strict the travel of Americans, my position was that we should con-
cern ourselves with assuring to our people the right to travel.
? As was clearly stated in the case of Kent v. Dulles, October Term,
Supreme Court, 1957, the right to travel is a constitutional right.
Events of this past year have, I think, further justified my position.
At a time when three top Communists of the Soviet Union, Khru-
shchev, Mikoyan, and Koslov have and will be given a red carpet tour
of our country, is it not incongruous to restrict the travel of American
citizens on the ground that they have leftist organizations?
Bow can one with straight face say to a full-blooded Communist
murderer like Khrushchev that he can come here, whereas a fellow
traveler can't go there?
At a time when Andrei Tupelov, the leading Russian designer of jet
aircraft, is shown the assembly line of our Thor intermediate range
ballistic missile, is it not anomalous to be so obsessed with security
that we insist on legislation which will allow the Secretary of State
to deny passports to an Arthur Miller, or even a Paul Robeson?
whose views I detest?
Vice President Nixon was shown a nuclear powerplant because
Mikoyan and Koslov had seen one of ours, and we have offered
K,hrusheliev the privilege of seeing our military bases. There may
riot -be too much more for the Russians to know concerning our
,
weapons, conventional or nuclear.
Although I had profoundly hoped this committee would act favor-
ably on my "Right to Travel" bill in the 85th Congress, the over-
whelming vote in the House of Representatives approving the restric-
tive legislation endorsed by this committee convinced me that it
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would be unrealistic to expect favorable action on nonrestrictive
le islation at this time.
However, I believe there is a middle ground on which the security
conscious and the freedom conscious can meet.
The Hays bill 11.12,'. 8329, contains the formula which, with some
mbdifications, I would accept. If what the security conscious are
COrid, 4i.tied with are certain activities against the United States abroad,
then let us write legislation denying passports where there is a reason-
able anticipation of certain defined activities rather than beliefs,
associations, or the holding of opinions.
thitortunately, however, most of the proposals before this committee
woull deny an American his right to travel, not because of evidence
that the applicant was about to commit an act?I emphasize "act"--
with serious consequences to the national security, but rather on the
basis of who, are his friends what he said in the past, and what some
miner functionary concludes his beliefs were or are.
Thus a disposition to engage in any activity unfavorable to the
Unit3c1 States would be sufficient cause for denial.
I I hink yesterday the distinguished Senator from Minnesota made
SOME r+ery caustic and abrasive remarks about the attitude of our
Nati m at the Geneva Conference on their nuclear tests. They were
inde4d almost horrendous, I am sure, in the opinion of the Secretary
Of State.
Now, had he not been or were he not a Member of the Senate, in
view of what he said I am sure some functionary in the State Depart-
merit, if that same gentleman made an application for a passport,
would have had his passport denied because that would be deemed
actiNity unfavorable to the United States and some of the bills before
yon contain just such phraseology.
However, there may be vital differences among those who were
being denied passports as to their activities abroad. Some would
critiicze the U.S. policy, or praise Soviet policy, or attend a peace
conference. Others would transmit secrets, others would in fact do
nothing disadvantageous to the United States There obviously are
significant qualitative differences among these activities
nder our system of constitutional guarantees, some activities may
be made the subject of criminal law and prohibited. Others clearly
may not. Yet the standards which were followed by the State De-
part tient and are now proposed to be enacted, seem to have com-
pletcly disregarded this essential factor.
I:rlieve that a policy consistent with our convictions must predi-
cate any denial of a passport upon evidence of the particular activity
which the denial is intended to prevent. While the impending aa-
tivit es of an individual cannot be predicted with mathematical cer-
tainly, it is entirely feasible to establish reasonable grounds on which
to believe that a person is going abroad to commit a certain act.
L( t us assume that an individual is shown to have had access to
important Classified material, that he had during recent years been
anti e in the Communist Party; that he has recently been in contact
with -Red agents in this country; that he has booked passage for
Europe?proof beyond reasonable doubt adequate for criminal con-
viction?
No. tut reasonable grounds to believe that he is going abroad to
tran 3rnit secrets, Yes.
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PASSPORT LEGISLATION 133
Still it is argued that our national security would be jeopardized in
those cases which are difficult to prove. I submit that the danger
to our national security which would result from travel of most fellow
travelers and even most Communists has been vastly exaggerated.
It certainly has no relevancy to those who have been unjustifiably
denied passports under the broad and unreliable factfinding pro-
cedures which have characterized the passport program.
The professional and really effective spies like Colonel Abel ob-
viously do not have to rely upon Miss Frances Knight's good graces
to enter or leave the United States. A nation which in the estimation
of Adm. Arleigh Burke already has ballistic missile firing submarines;
whereas this Nation is working on its first one, certainly has pretty
much controlled the nuclear situation; a nation that can launch sput-
nik and a lunik is capable indeed of providing false papers to its agents.
Further, it is patently ridiculous to believe that vital secrets thus
obtained can be retainea within the borders of the United States even
by denying passports to everyone who wears or has worn a red car-
nation.
Iron Curtain diplomats come and go freely. Diplomatic pouches
are sent back and forth from Washington to Moscow without inter-
fereire or search. Americans?and this is well to recall?wile are
denied passports may still travel to a number of countries in the
Western Hemisphere without passports and there readily meet Red
couriers or officials or spies of the Red government.
What then do we accomplish by restrictive legislation of the kind
that is generally being proposed? In the main we deny exit to people
who because of current attitudes or past associations may provide
favorable propaganda abroad for the Soviet Union. Again, I say this
is patently unrealistic. Communist sympathizers need not leave the
United States to accomplish a propaganda purpose. Tape recordings
and films made here and transported abroad; statements made here
which are reported abroad; releases to the foreign Communist press
are all available and effective means of communication.
How much greater is the propaganda value when there is appended
a brief editorial comment that the writer has been confined within
the United States because of his disagreement with the official atti-
tude of the U.S. Government? For then we have an indictment of
the United States, not by the misrepresentations of some fellow trav-
eler, but more damningly by the repressive action of the U.S. Govern-
ment itself.
Considered in the context of our commitment, our commitment to
a program of free travel as announced by the President, and our
condemnation of the Russians for prohibiting travel by those who
disagree with the Marxist line, the effect on our international stature
of restrictions of this kind can only be injurious. Our "security
slip" is showing.
A graphic illustration of what I am talking about is the Paul Robeson
case. As long as he could not get a passport, Robeson's restrictions
made good propaganda. Since he has gotten his passport, the Reds
have lost an effective argument which appealed to millions around the
world. Robeson has been abroad since last summer. During that
time he made a concert appearance in Moscow, in which lie exhibited
warm friendship for the Soviet Union and called upon the Russian
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people to fight for freedom. What freedom, or whose, he did not
sped fy.
Hits the strength of this Nation so deteriorated that we feel threat-
ened 1ay a performance of this sort?
A.r other example of how foolish we have made ourselves appear to
ctf the world, and for no good reason, is the Arthur Miller
case. In 1954, this -Ptilitzer Prize winner, author of "Death of a
5 lexan," was not allowed to go to Brussels to sec a performance
lijs own play, "The Crucible." Finally, in June 1955, the U.S.
pouit, of Apr i
als for the District of Columbia upset the State De-
partment s denial of a passport because t was based on insufficient
reasc4S. Mr. Miller Rolosegueatly went to Europe, and the founda-
tions of tie. Republic have not crumbled. Actions like this have
brouht us uncomfortably close to what the free world found so out-
.
ra eons in the Russian treatment of Boris Pasternak.
dp not say that the right to travel is absolute, that no limitatiops
can ),e justified. Clearly, in time of war, the President should and
must be free to issue almost any travel regulation he considers neces-
sary. But what about periods when the President or Congress has
detei mined that, although we are not at war, the Nation is neverthe-
less beset by great dangers--a period of national emergency?
If this cornmi,ttee deems that legislation is necessary, then I think
that file interests of national security and individual freedom can be
best accommodated by legislation which would permit the denial of
a paisport in periods of national emergency when the Secretary of
Statefinds reasonable grounds to believe that the applicant will corn-
pit of the following acts.
1 have emphasized "acts" in contradistinction to "beliefs."
I. Transmit secrets affecting the national security.
2. Incite attacks by force upon the United States or attempt to
over ,ti,row its Government by force and violence.
nese acts are punishable as crimes if committed within the juris-
dictim of the -United States. Ztt would seem that society should have
the right to protect itself from acts against it abroad, if it has the right
to pi otect itself from he same acts committed within its jurisdiction.
I would therefore support legislation authorizing these acts as
grou ads for denial of passport, provided the proper procedural safe-
guards are incorporated in the legislation. As I said a moment ago, I
believe the bill offered by the distinguished member from Ohio,
Mr. Hays, comes closer to accomplishing this than any of the other
bills before this committee. However, even it does not provide for
coPfj .on tation and cross-examination.
Because of the significance of the right at stake, a passport should
not '),e denied without ft full trial-type adninistrative hearing. The
appfcant should be given prompt notice of any tentative denial of his
appl cation, the notice should inform him of the reasons for denial in
8-uffieitent detail that he can explain or refute them. He must have a
hear pg before an impartial tribunal with the right to appear and to be
repretented by counsel. The Government should be required to
present its evidence on the record and to confront the applicant with
? the ivitnesses against him.
The, administrative board should be required to make a reasonable
cleciE ion OR the record and subject to judicial review.
While the State Department is willing to provide all the other
elements of a trial-type hearing, it insists that considerations of
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national security often preclude it from (1) explaining the reasons for
denial in detail; (2) disclosing certain evidence to the applicant; and
(3) confronting the applicant with the witnesses against him.
To do SO, argues the Department, would be. to reveal vital informa-
tion about our counterintelligence and espionage systems which
wbnld inevitably destroy our sources of information. That there is
soirte merit in this argument cannot be denied. However, balanced
against it are the risks of unjustifiably depriving a citizen of his
constitittional right to travel. And I repeat, the Supreme Court in
xcnt v. Milks acknowledged that the right to travel was a constitu-
tional right, and significantly the Solicitor G-eneral in that case
admitted that that was the case--the Solicitor General, who repre-,-
sented the United States in that appeal.
As any trial lawyer will tell you, the disclosure of evidence and the
opportunity to cross-examine witnesses are indispensable to arriving
at the truth. Informers make mistakes in identification. They are
sometimes maliciously motivated. Investigators have been known
to be slipshod in their methods and conclusions. Lies, half-truths,
unjustifiable conclusions, which would go unchallenged in secret
proceedings, usually break down under the test of effective questioning.
And, furthermore, we have a traditional abhorrence of faceless
acchsers.
For these reasons, the courts have held that in criminal cases -the
Government must reveal its evidence and confront a defendant with
the witnesses against him, or it must let him go free. While the
deprivation of liberty consequent upon a criminal prosecution may
be more erroneous, still the deprivation of a particular individual's
right to travel may result in serious hardships and indignities. It is
right of sufficient importance so that the risk of its unjust depriva-
tion is far more serious to our way of life than the risk that an occa-
sional enemy may receive official approval to leave the United States.
Up to now I have been discussing restraints upon individuals.
There is, however, another facet to the problem, the question of
eogrtiphical or area restrictions affecting all American travelers.
nlike the issue of individual restraints, the question of the extent
of the Secretary's power to impose area restrictions has not been ruled
on by the Supreme Court, although this issue was involved in current
litigation. It would appear, however, that since the Executive has
exclusive power in the field of international relations, the Secretary
would have broad discretion in applying area restrictions as an instru-
nient of foreign policy.
This is not to say- that what the Secretary can do he has done well
or will do wisely. During the past few years, the State Department
has seemingly forgotten that in addition to foreign policy, other vital
interests are affected when Americans are barred from foreign lands.
Among them is the need to know what is going on. Curiosity is not
the only thing
at stake, although the value of that disappearing virtue
is too frequently underestimated. What is ultimately at stake is the
vitality of the democratic process in reacting to the issues that con-
front it. Intelligent decisions by the electorate require facts, not
solely as presented in official statements, but as observed by indi-
Victuals and by trained reporters. The public itches for information
concerning places and countries whose rulers may be friendly or
unfriendly, and that itch must be satisfied.
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136 PASSPORT LEGISLATION
do not say there can be no reason for the imposition of some
:restrictions. Situations have and will arise where the presence of
-large :lumbers of American nationals may substantially increase the
iikelihood of our involvement in hostilities. In that case a convinc-
ing orpiment Can be made for putting the area off limits. But how
then do, we justify the prohibitions on travel which the State Depart-
ment imposed on Egypt, Israel, Jordan, and Syria in 1956, 2 days
after all parties to the hostilities had formally agreed to a cease-fire?
A prohibition which continued until April 1, 1957, a period during
which no other country found that the safety of its nationals required
such o restriction and I include Great Britain and France, two of the
belligc rents.
Were the decision mine, I would have imposed area restrictions only
where the presence of American nationals is likely to result either in
abuse:, to them, which would severely embarrass American prestige,
or where the presence of our nationals is likely to bring us into armed
conflict.
Th( suggestion of the Association of the Bar of the City of New
York that the Secretary of State accompany the imposition of area
restrictions with a full statement setting forth the reasons therefor is
des:rable advance. The prospect of exposure to critics, whose
name do not appear on the routing slips in Foggy Bottom, may pro-
duce a less mechanistic application of standards which of necessity
leaves much to the judgment of the Secretary of State.
It i only with sadness that I find that the idea of complete freedom
of tra'rel cannot now be realized. But just as we must recognize that
reality, we must also recognize that we have during the past decade
gone t oo far in abridging that right.
Th( Supreme Court's decision in the Rockwell Kent case has had
the ell ect of generating a widespread reevaluation of our past policies.
The challenge and the opportunity for a statesmanlike solution lies
with the 86th Congress, and in the initial stages lie with you distin-
guish( d gentlemen.
Mr. CARNAHAN. Congressman Celler, we sincerely appreciate your
giving us your time. I am sure that your wide experience will ad us
In any legislation that we may attempt on this vital issue.
You did have a bill, H.R. 13652, which you introduced in the last
sessica of Congress?
Mr, CELLER. I didn't introduce it this time.
Mr. CARNAHAN. It still represents your thinking of what legislation
ought to include?
Mr. ?ELLER. Not quite. As I indicated in the inception, I am
realistic enough to know that the House passed overwhelmingly Mr.
Selden's bill, and I am sufficiently schooled in congressional politics
to know that sometimes you must bend rather than break. I don't
think we mild, get as much as my bill, and I therefore am willing to
yield Ind to compromise.
Mr SELDEN. Will the, gentleman yield there?
Mr CARNAHAN. Do you care, Congressman, if the members have,
a cha ice to question you briefly?
Mr 'Onni.,Eu. No,
not at all.
Mr SELDEN, Let, me welcom.e the distinguished chairman of the,
Judic'ary Committee also, and say to him that the bill I introduced.
this year is identical to the one we passed, after consultation with you
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last year, Mr. Celler. It does have in it the words "on the record,"
which you felt were very necessary before any bill should be passed,
and I hope that you will give this measure careful consideration in the
event it is reported again by this committee.
Mr. CELLER. I will give it most careful consideration, but this is a
new inning and we have to take a fresh look at the problem. I don't
think I could go as far as your bill, but I think I might go as far as the
Hays bill. I like the Hays bill much better.
Mr. CARNAHAN. Congressman Celler, I have one question: Do you
feel legislation dealing with this subject is imperative at this time?
Mr. CELLER. I think so. I think there should be some legislation.
This matter of issuance of passports is fraught with so many uncer-
tainties, with so much misrepresentations, that it would be well for
us to assume our real responsibility to do something about it.
Do you mean this session?
? Mr. CARNAHAN. Do you think that action should be 'taken as soon
as possible?
Mr. CELLER. I think so.
Mr. CARNAHAN. That passport legislation is an important matter
that should be dealt with?
Mr. CELLER. It must be settled in the public mind, at least.
Mr. CARNAHAN. Dr. Judd.
Mr. JUDD. Thank you, Mr. Celler. I don't know how you get the
time, with all your other activities, to compose these statements that
are almost classical in their expressiveness. If you had been an end
man or interlocutor in a show you could have kept them entertained
with the dialogue not by slapstick, but by skill and brilliance.
Mr. CELLER. I can say that you surely know how to handle your-
self, and you are certainly skillful in the use of words, yourself. You
do mighty well.
Mr. JUDD. I get the impression from your statement that you feel
that the Supreme Court decision knocking down the practice of the
State Department in withholding passports, where it had reasons
which satisfied it that there was real danger in allowing the individual
to go abroad, didn't give the Communists any particular gain, because
they can send so Many of their Communists who are aliens in and out
that the bans on certain American Communists traveling didn't
handicap them greatly.
Now, if that is the case, and if it isn't really important to the Com-
munists to have their present freedom in this field, why would the
Daily Worker have called that Supreme Court decision the greatest
victory they had achieved?or some other words like that?their
greatest victory in many, many years?
Mr. CELLER. I can't account for what the Daily Worker may think
about this, much less write about this. In their own strange and mys-
terious, occult, and bizarre way, they will take advantage of every-
thing they can, or exaggerate matters, misrepresent matters, deal with
it in the most Machiavellian fashion ?I can't follow them, and I
wouldn't believe anybody connected with the Daily Worker, if they
put their hands on stacks of Bibles. I wouldn't want to quote them,
nor would I want to use them for a propositon or against a proposition.
Mr. June. They exulted repeatedly over the decision, and immedi-
ately hundreds, literally, of such persons who hadn't even applied for
passports previously ?apparently due to knowledge of guilt or afraid
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Agl helia4e-SW-tiething on them?came out of the crams, and
began to apply for passports, and hundreds have been given passports.
Why vouldn't they have tried to go abroad before?
Mr I think the avalanche of applications?I don't know
014 was an aValanclie-hecause I didn't check on the number, but
tho applications pr-ObabTy rose after the Rockwell-Kent v. Dulles Cleci-
'got,? ,.,`-jt is interesting to reread that decision where the Court said
that tip key to the problem, as we shall see, is in the manner in which
ffi:e e.ccr,etary's? discretion was exercised, not in the bare fact that he
had 'aiscreti on.
4,101.e, right to travel is part of the liberty of which the citizen cannot be deprived
Withoqpiue 'process of law and the fifth amendment. So much is conceded by
the So miter General. In Anglo-Saxon law that right was emerging at least as,
early is the Magna Carta. [It] shows how deeply engaged in our history this
freedoin of movement is.
As a matter of fact, if there wasn't that freedom of movement, I
doubt whether our own colonies would have been settled by the,
Cathclics and the Puritans and the Quakers, who insisted upon free:
itioventlent, Efforts were made in England all during that period to
stop them but they asserted their right to travel, the right to leave a
count 7. 'And we profited by that, way back in those early days.
But to continue the decision:
?',recctom of movement across 'frontiers in either direction, and inside frontiers
as *el], was a part of our heritage. Travel abroad, like travel within a country,
.
rnaY b necessary for 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 moven.ent is basic
in our scheme of values.
Those are rather bold words of the Supreme Court, and would
Override the theory that has been announced so frequently and
embodied in some of these bills before you, that a man's beliefs,
- affiliations, and his opinions would be sufficient to bar him.
'make the distinction that speech opinions, and associations,
shoul..,l not bar a man from traveling except where, as Justice Holmes
sttid--."There is a clear and present danger" to our security.
Mr. JUDD. The language of the Selden bill doesn't deal with views
and opinion. It says
A persOn whO'is a member or fornidr member of or affiliated with the Communist
Party, or who knowingly engages or has engaged since 1948 in activities intended
to furl her the international Communist movement.
-
Mr:CELLI:IL Let's take that a moment. You say a "member" or
even i "former member." Now, how long back? Suppose a man was
a finifiber Of the Communist Party way back in 1930. He has re-
formod. He has done everything, all and sundry, to indicate that he
is limy: a good citizen; he has disavowed all Communist connections.
there is no cutoff date here. It goes back indefinitely. What
is m4xit. by "siffiliation,"? Let's toy around with "affiliation"
. SELDEN. Will the gentleman yield?
Mi ,UELLER. Ur0 aheat .
Mr,. SELDEN. I was just going to say it goes further. It is limited--
as to Thom 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
State:. '
a ?ruler Communist would not necessarily fall into that
ca' e?ry.
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Mr. CELLER. I read your bill somewhat differently. It seems to
me that the "as to whom" qualification applies only to the second
category--those who have engaged in certain activities since 1948.
Now about the word "affiliate". Does that mean that if I sell
newsprint to the Daily Worker, I am affiliated with the Daily Worker?
Mr. Juin). I don't think anybody would determine on the basis of
that "affiliation" that your activities or presence abroad would be
harmful to the security of the United States. Without such a deter-
mination the person could go. A person who was formerly affiliated
with or a member of, or who even served it, and became disillusioned
and turned against it, his presence abroad may be very helpful to the
United States and not harmful. Therefore, he would have no difficulty
in getting a passport.
Mr. CELLER. What about the word in Mr. Selden's?the dis-
tinguished gentleman's?bill, "intended"?
Mr. SELDEN. Someone might aid the Communist cause but with
no intention of doing so.
Mr. CELLER. That gives the Secretary of State a very, very broad
discretion.
Mr. SETA:1EN. But subject to judicial review, on the record.
Mr. CELLER. On the record, but you don't go into the details or
the type of due process.
Mr. SELDEN. The words "on the record" were approved by the
gentleman from New York [Mr. Celler].
Mr. CELLER. I remember that.
Mr. JUDD. "Judicial review on the record" is much broader than
the language in the Bentley bill, which spells it out in detail, and in
Spelling it out may have omitted something. "Judicial review on the
record' is the whole works. Anything that the fellow's lawyer can
think up, and they have good lawyers, is eligible for use under judicial
review on the record.
Mr. CARNAHAN, Is it the wish of the committee to proceed under
the 5-minute rule?
Mr. Jup D. That is probably the better thing to do.
Mr. CARNAHAN. The time of the gentleman from Minnesota has
expired.
If you care to continue your reply, Mr. Celler, you may do so.
'Mr. CELLER. With regard to judicial process, I don't know whether
under this the Secretary of State, as I used the term before, uses
faceless accusers or not. I don't know what he could do here.
Mr. JUDD. The judge would say "I have to have the record."
Mr. CELLER. I am opposed to faceless accusers. His record may
not indicate the names of those who are testifying against the appli-
cant. I think there is danger there. In Mr. Hay's bill at least there
is some protection to the applicant. I think the Hays bill goes
further toward safeguarding our security and at the same time safe-
guarding the individual's liberty, than do the others. And I fear,
Brother Selden, that your bill may not come within the permissible
limits of due process.
Mr. CARNAHAN. Mr. Fascell.
Mr. CELLER. Before you came in, brother Judd, I said it seemed
rather anomalous that we would allow Khrushchey here, the blood-
thirsty leader of the Communist Party, and allow him to see our mis-
sile bases. We have allowed Koslov to see a good deal of our nuclear
secrets. We allowed Mikoyan to visit a good deal of our installations.
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Ni )),V, here we have these topnotch Communists who have been or
will e reeeiyed most hospitably--they are Communists, God knows;
if thore ever were Communists, they are?and yet we don't allow any
fellow travelers, or near fellow travelers, whose activities might "tend
toward" the furthering of an international Communist movement, to
go irto Russia.
I .kink our security slip is showing a little bit there.
Mr, J(Tnn. I can't disagree with you on the Khrushchey business
and if I May impose upon the chairman-
- .. Mr.,C4j*AFTAN. Mr. Fascell has the time.
Mr, FA..' (wpm.. Go' ahead.
'Junn._Thank you. Mr. Celler, you are chairman of the
Judiruary- Committee. There is something on which I wish you
won' d .enlighten me. I took an oath down in the Chamber, and so di.d
you, to "uphold arid defend the Constitution of the United States
against all enemies, foreign and domestic." Now we haven't de
-
eland this man Khrushchev an enemy, but we don't need it. He
declared himself an enemy of our Constitution.
II says all our grandchildren will live under communism. That
can', come about without first destroying the Constitution of the
Unit ed States. To receive him as almost a friend seems to me to aid
and abet a declared enemy of the Constitution of the United States,
an (nemy against which I took an oath to uphold and defend the
Con3titution of the United States. I am very unhappy about this.
r. CELLER. I am very unhappy, too.
Mr. JUDD. I haven't the responsibility for Khrushchev's visit but I
do I axe responsibility for legislation regarding such enemies.
FASCELL. This has been a very lucid discussion, and it also
presents some very challenging thoughts, which is always healthy.
But as I understand it, you are resigned to the fact, whether you like
it oi not, that the right to travel is a constitutional right and is subject
to r3striction by the Government. Is that correct?
Mr. CELLER. There is a right to travel and it is a constitutional
right.
Sometimes the right to travel clashes with the duty of the Executive
to protect our security. When those two rights clash we must try
to E,ccommodate them.
Mr. FASCELL. Therefore, you see reasonable restrictions on the right
to travel in time of war?
MT. CELLER. Yes.
Mr. FASCELL. And during an emergency, declaration of an
em(rgency?
. 1\4% CELLER. Yes.
I\ Ir. FASCELL. And during time of peace?
Mr. CELLER. Some restrictions, yes. I would set them forth
somewhat as Mr. Hays sets them forth except that in peace I would
not apply the standards in section 103(a) unless there was a declared
national emergency and even then only A and C.
Mr. FASCELL. Now, one of your concerns, and a legitimate area of
concern is the question of proper and adequate administrative pro-
cedure, as distinguished from judicial review; is that correct?
. CELLER. Yes. The Administrative Procedure Act came out
of the Judiciary Committee and we spent years of study on that.
Mr. FASCELL. The gentleman has anticipated my next question.
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Mr. CELLER. Excuse me.
Mr. FASCELL. No, that is all right. That is very good. Because
I would make this observation without attaching any particular
emphasis or motive to it. I would much rather see the gentleman's
committee attack administrative procedure under the Administrative
Procedure Act, which certainly, after 13 years of operation, needs a
wholesale review. Then he can put in it whatever the gentleman's
committee thinks is necessary in the way of adequate safeguards and
procedures, rather than have us, the Congress, piecemeal, by legis-
lative process, whenever we run into an administrative procedure
problem, seek to write in each separate bill the administrative pro-
cedures by which that particular legislation shall be operable.
I think that is absolutely fantastic. It will only compound the
existing problem. So I would much rather say nothing about ad-
ministrative procedure in this legislation, and deal only with the basic
fundamental question as to whether or not you shall have judificial
review on the record.
Mr. CELLER. If I remember correctly, a number of your bills exempt
all operations regarding passports from the Administrative Procedure
Act.
Is that right, Mr. Bentley?
EENTL4EY. That is right.
Mr. CELLER. The Administrative Procedure Act has been chipped
off here and chipped off there by special interests, and it is going to
be a herculean task to refashion that act. It may take a long time.
Meanwhile, we will have inordinate delays before we can have some-
thing which is of immediate necessity, as far as passports are con-
cerned.
Mr. FASCELL, Will the gentleman agree with me that if you don't
write into this act here, or any act dealing with this legislation, that
the administrative procedure which is used would be subject to present
Court interpretation, and they require constitutionality of the act, de-
terminations within the four corners of the statute, and whether or not
the procedures which have been provided have been properly followed?
Mr. CELLER. Wouldn't we in that case, if we touch upon passports,
be poaching on your preserves here?
Mr. FASCELL. Administrative procedure is administrative procedure.
Mr. CELLER. I know, but we always like to see to it that we do not
invade the precincts of another committee. I am very careful about
that.
Mr. FASCELL. I appreciate the gentleman's concern, and I would
only say this: that I offer myself now as a volunteer to assist you and
your committee in the herculean task of revising the Administrative
Procedures Act, and if the gentleman would assure me that he would
start hearings tomorrow morning and drag these agencies down here,
I think we could get a few more volunteers.
Mr. CELLER. You don't know what you are in for when you make
that suggestion.
Mr. FASCELL. Mr. Chairman, I have one other question, and that
is the question of thought policing. I am opposed to thought policing
and I am opposed to setting up any kind of thought police anywhere,
as far as our country is concerned, and I also concur with the gentle-
man that we have to have an affirmative and a firm belief in the
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pcmitive aspect of our democratic system of Government. We should
noi be fearful of it if we believe in it.
Nevertheless, I do recognize the fact that there are actions?and
we 'Won't define that for the moment?which are detrimental to our
be.t interests' and our national security, and the gentleman agrees
With that, I know.
Then we get down to the question of what is an overt act, and I
Wilt ask, a hypothetical question. You may comment on it if you
al,. Is a speech made by an individual to one or more people, in
'vitt ich the individual making the speech states affirmatively without
reervation or equivocation that he believes in the overthrow of the
Government by the force of arms and asks all those who believe
like `him to state likewise?now, you will notice I said "state like-
vd.3e"?an overt act 'detrimental to the interests of the U.S. Govern-
mi qi.t?
Mr. CELLER. T am just giving a sort of horseback opinion, since
tha,t is a very difficult question to answer. If the statement stood
alone, I don't think that it would be an overt act. It depends upon
the context. If he were haranguing a crowd of hungry workers who
were armed with guns and he urged them to march on the Capitol
w'iich happened to be a block away, I would say that was an overt act.
4. classical illustration, of course, is what Holmes gave us. Yelling
"'fire" in a crowded theater when there was no fire. That is not free-
dom 0,t, speech. That is an overt act, doing that. That develops a
clAr and present danger. Now, that is the test, and it is of course
always difficult to apply a test involving basic values to a factual
siAiation.
Mr. FABCELL. I agree with the gentleman. It calls for great dis-
mission, discretion, and understanding. I would not presume that I
b Lye greater discretion or judgment than the gentleman has, nor
w 'aid I presume the converse, you see.
r. CELLER. That is a fair statement. It is rather ambivalent,
though, isn't it?
Mr. CARNAHAN. The time of the gentleman has expired. If you
etre to comMent further, you may do so. Otherwise, I will call on
Mr. Bentley.
Mr. BENTLEY. Mr. Celler, we are glad to see you here and we all
lJaye great' respect for your judgment and wisdom in these and many
other judicial and legal matters. I am sorry we didn't have the
ynefit of, having copies of your statement, because it is a little diffi-
en t
CELLER. I want to apologize. I dashed it off quickly yesterday
d was on the floor and didn't have a chance.
r, BENTLEY. I will enjoy reading it in the record.
Since `I have noted for the first time that you claim coauthorship
tor the_words "on the record" in H.R. 55 and companion bills, I wonder
if you would mind telling the committee, Mr. Celler?
r. CELLER. I don't claim authorship, but I agreed that it would
lte an improvement.
r. BENTLEY. Since you are familiar with the expression, would
0u tell the committee just what you construe "on the record" to
)n.ean in this respect?
, Mr. CELLER. It Would mean that the Secretary of State could make
record showing--whatever he wants to show. Whatever he didn't
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want to show, he could leave out. I take it if there was some infor-
thation received from a foreign government he would deem it in the
best interests of the Nation not to disclose what that information was,
and there would be probably some generalized statement in the record
based upon what was disclosed to the Secretary of State by repre-
seiitatives of the foreign government. That is one illustration.
Or he might receive some information from certain, individuals
atitl he May gee fit not to name those individuals, and the record
would not disclose the names of those individuals. And then, of
course, there could be no confrontation.
Mr. BENTLEY. Mr. Celler, this, of course, refers to judicial review
on the record in the district courts. Now, according to your interpre-
tation, sir, who would have the determination as to whether or not
this information be spread upon the record? Would you leave it to
the discretion of the Secretary of State or the reviewing judge, or
whom?
Mr. CELLER. What the record contains would under H.R. 55 be
within the discretion of the Secretary of State. It wouldn't be in
the discretion of the judge. He would have to review what the
Secretary- of State gives him although I suppose the judge could find
the record inadequate to sustain denial.
Mr. BENTLEY. You don't believe that the Secretary of State, as
some have suggested, should furnish all of the testimony to the judicial
reviewing body and then let the judge decide for himself as to what
should and should not be made open evidence?
Mr. CELLER. I think that is what the Hays bill intends.
I like thati much better but it still does not afford adequate protec-
tion to the individual.
Mr. SELDEN. Will the gentleman yield there?
Mr. BENTLEY. Surely.
Mr. SELDEN. But the decision would be based on the record.
Mr. CELLER. Yes; but the Hays bill lays down certain prescribed
rules of conduct for the Secretary of State which he must follow in
the making of the record. In addition the judge is shown whatever
is not disclosed. But as it is now, and with your bill, the Secretary
could make the record as he sees fit.
Mr. SELDEN. Under your interpretation of it, the record goes before
the court, the open record, and the decision is made on that basis. If
there is not enough information, then the passport can be granted
under that procedure.
Mr. CELLER. Yes, that is right, but it may be a very- erroneous
record. The court would have to accept what the record contains.
What may appear credible or reasonable on the cold record might be
easily refuted by an applicant on confrontation or cross-examination.
Mr. SELEEN. But it could issue the passport on that basis.
Mr. CELLER. It might. The court might say the record is insuffi-
cient but it might also accept the record as sufficient when crucial
facts are in error.
Mr. BENTLEY. I wondered, Mr. Chairman, if I could ask the witness
to comment on this: Mr. Celler, in my bill, which was originally intro-
duced as 7006, and has now been reintroduced as H.R. 8707, there is
included an amendment which has been inserted with the concurrence
and at the suggestion of the executive branch, regarding the r?m?f
evidence that is to be furnished the court, and the amendment which
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is.0.1 the top of page 8 of 8707 says if the court is dissatisfied with the
r49t,m6 of evidence which is presented to it by the executive branch,
tha-, the, court may, in its discretion, inspect, in camera, all evidence
Upon which the Asurne of evidence has been based.
. 1?,1,r,.. CELLER. That is ?4e the Hays provision. That is in decided
improvement but as I' said before, it still leaves some due process
4000 in my mind.
_.;,M,Fr BENTLEY. I just wanted to point out that was inserted at the
. ,
Ertl Irstion of the State Department.
tr. CELLER. That is a very decided improvement.
.2V(F. Iip.NTLEY. Thank you.
Mr. SELPEN. The same suggestion, I might add, has been made
by he State Department to H.R. 55.
, Nit.. CELLER. Do you approve of that? _
. Mr. SELDEN. I would not oppose such an amendment but I believe
it to be more restrictive than on the record."
..
;Mr. JT:TDD. I agree with you.
. CARNAHAN. Mr. O'Hara. ,
- Mr. O'llAu.. I was unavoidably detained. .
. Mr.? cN141,U, Will you pardon me, a moment? Let, me again point
out the infirmity of even this procedure. The r?m?ubmitted to
the judge leaves it to the judge to protect the interests of the indi-
ti.d.iictl. The individual ,wouldn't necessarily- know who the accusers
are arid he wouldn't know whether the people are telling lies or mis-
repi esenting or telling half-truths. He couldn't explain because he
co&dn't know. The judge could not disclose the r?m?o the
applicant, and a great injustice could be done.
I just wanted to point that out but this still is a great advance.
HoN.7:ever, the only way that the individual can fully protect his interest
is tlirough confrontation and cross-examination.
Mr. RELDEN. It is my feeling that that language would be more
rest ictive than "on the record' because the words "on the record?
would have the effect of compelling the State Department to disclose
sufEcient information, or granting the passport.
'Nfr. CELLER. Are you willing to state that, that the State Depart-
mer t must disclose all the information?
Mr. SELDEN. They would have the choice.
Mr. CELLEA. You are not willing to state that, are you?
Mr. S'ELDEN. If they didn't disclose enough information they would
hay 3 to give him the passport.
Mr. CELLER. That isn't a choice, that is only an extremity---
Mr. Juni). I think it is a complete choice. The State Department
trieti,to prevent a passport. On review, it discloses as much as it can.
If t ,at evidence is enough for the judge, he withholds the passport.
If il, is not enough, he orders the passport granted. You can't re-
quire the State Department or any other person to reveal everything.
If the Secretary is willing to lose a decision rather than have the judge
revi3w everything, then he loses his decision.
Ii is judged on the record submitted; that is all.
? Mr. CELLER. That is not enough. The individual should be given
the ?.pportunity to challenge the evidence against him and if the State
Department doesn't want to reveal the evidence, it should grant the
pass port.
Yr. CARNAHAN, Mr. O'llara
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PASSPORT LEGISLATION 145
Mr. O'HARA. I very much regret I was detained this morning. I
looked forward to Chairman Celler's testimony, and I shall read it in
the record with interest. Do I understand the chairman endorses any
one of these bills?
Mr. CELLER. I am inclined to endorse the Hays bill with a number
of modifications. I think the standards in section 103(a) (3) of that
bill should be limited to periods of national emergency. As to pro-
cedures, I think there should be a trial-type hearing rather than rely-
ing on the judge alone.
Mr. O'HARA. Does the gentleman believe that legislation in this
field is necessary now?
Mr. CELLER. As I indicated before, there is so much confusion con-
cerning the issuance of passports, that the people of the Nation want
the matter resolved, and I think this Congress might be deemed
derelict unless it did resolve it.
Mr. O'HARA. I have a very strong feeling on this, stemming from
an experience I had a few years ago. One of our most distinguished
scientists, a man whose loyalty to this Nation has never been ques-
tioned, was in Europe and ho had lunch several times, I think, with
scientists, and some of them probably were Communists, just as the
Vice President met Communists when he went to Poland and to Russia.
And the State Department was not going to issue a passport the follow-
ing year. We had to wait 2 or 3 months before we got a passport for
this great scientist. Merely because going over there as a scientist
and having met?as the Vice President met in Russia and Poland?
Some scientists who were Communists, our State Department arbi-
trarily said he had forfeited his right to have a passport.
I would be very reluctant to endorse any legislation that would
give the Secretary of State the right to deny a passport to any Ameri-
can on evidence that he didn't disclose. I think that is placing too
much power in the hands of the individual.
Now, did I understand the chairman to say that there was some
information the State Department could not make public or could
not inform the applicant for the passport about?
Mr. CELLER. My opinion is that even if the State Department
receives secret information, say from a foreign government, that
would militate against the granting of the application. I would
insist upon that information being disclosed. The information
may be erroneous and the applicant should have an opportunity
to refute 4. If the State Department feels that it cannot disclose,
it should grant the passport. I doubt whether much harm can result
if the passport is granted.
As I indicated in my statement generally, if it is a question of
carrying secrets, he doesn't need to go to South America, he doesn't
need to go to Europe; he can go to South America and meet a courier
there and give the secrets to him and his mission is accomplished.
Whether he goes over there or he stays here, or goes to South
America?the same thing could be clone if he wants to aid the foreign
government.
I also feel, and I want to indicate this, if a man is a Communist
I would say give him a passport. If you want to punish Communists,
then make membership in the Communist Party a criminal act. We
have never done anything about the Communist Party, as such.
Legally we look upon the Communist Party as any other party in
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146 PASSPORT LEGISLATiON
this country. We have never made the Communist Party an outlaw
in t1 is country.
Now, if membership in that party is perfectly legal in this country,
why should a man be denied a passport because he is a member of the
Con_munist Party? He is in It legal organization.
Mr, O'HARA. Then What the Chairman is saying is that we are
putting the buggy before the horse. If we want to deny a man a
passport because he belongs to the Communist Party, first we must
pass a law outlawing the Communist Party.
Mr. ?ELLER. I believe so.
- I say, in the interests of getting something acceptable done, I would
yield to Mr. Hays' bill provided certain important amendments, which
hive discussed, are made to it.
Mr, 0'11ARA. Under the Hays bill everything must be made known
to the public. The applicant has a chance to answer any charge?
M. CELLER. There are some restrictions in the Hays bill. I ex-
amioed these very hastily last night. There are some restrictions.
:1. the Hays bill the secret evidence could be explained to the judge
in cresume. He wouldn't have to disclose in detail what that e-vi-
denee, is. The Secretary Of State would have some sort of a r?m?
made and submitted to the judge and the judge would pass on that
r?m?
"qr. BENTLEY. Would the gentleman yield right there?
oTIARA...Yes.
Mi. BENTLEY. In section 307(b) of the Hays bill it says the court
receives he entire record. 307(b), page 12. I think that provides
for not the r?m? but the entire record to be transmitted to ihe
court.
Mr. CELLER (reading:)
Shall submit to the couit, the entire record, both open and closed.
Yes, I beg your pardon. That is correct.
- Mr. O'HARA. Now,
suppose some secret information were given
the State Department and suppose that information had come from
a government that discriminates against some of our Americans?and
we have some etVernments, as the chairman well knows.
? Would that information be held secret by the State Department, or
would it be disclosed to the applicant and later to the court on review?
?Mr. CELLER. I feel it should be disclosed. It may have the effect
of discoinaging receiving that kind of information in the future, so I
say; what of it? If the Government feels that the information is
important enough, then grant the passport. What harm can he do?
How many would there be?
Mr. SELDEN. Wouldn't that be the effect of H.R. 55 also? Either
they would disclose sufficient information on the record or they would
have to _grant the passport.
Mr. CEL-LR. In a certain sense, yes. However, in H.R. 55 the
co irt cOuld accept a record Which on its face justified denied but in
which there were many mistakes or misrepresentations of fact about
tin applicant.
Mr. O'HARA. Has the chairman read Mr. Selden's bill?
Mr. CELLER. Yes. I don't like to say it, but I am not in accord
with Mr. Selden.
Mr. SELDEN. Have you changed your views since last year in con-
nection with this measure?
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Mr. C,Rugli. yes. I indieated,I wanted to get something done last
year, but I am not necessarily inconsistent. As you know, Emerson
said, "Foolish consistency is the hobgoblin of little minds, adored
by little statesmen and philosophers and divines."
I don't think I am inconsistent because conditions change.
Mr. CARNAHAN. Thank you so much, Congressman.
Mr. CELLER. Thank you. I am sorry I have taken up so much
time.,
Mr. JUDD. I would like to ask one question if I may.
I judge you don't think we are in a national emergency now?
Mr, CELLER, May I be political? I don't think our President
thinks there, is a national emergency. We are brimming with pros-
perity., our productivity has reached inordinate heights and we have
very little unemployment now. I wouldn't call that an emergency,
would you?
Mr. JupD. I am not talking about emergency from our domestic
standpoint.
You said that if there was a threat of war and a national emergency
was declared, then we would have to take action to restrict the activi-
ties.Rnd travel of our citizens. But you don't think that in the inter-
national field we are already in an emergency?
Mr. CELLER. I don't think there is an emergency although legally
the national emergency declared in the Korean war is still in effect.
When a situation becomes a permanent part of our lives it ceases
to be an emergency. It is a very real problem which we must meet
but I don't think we can properly label a long-term affair like the
cold was as a continuons emergency.
Mr, JuDD. I think we are in the most serious emergency in our
national history.
Mr. CELLER. It all depends upon your viewpoint.
Mr. jUDD. It is a point of view. But if you thought we are in a
grave national emergency, you would feel we ought to pass legislation
to authorize our State Department to do this, wouldn't you?
Mr. CEnnER. if we are in that type of emergency, we have to be
very vigilant and careful but we must still protect an individual's
liberties,
.Mr. JUDD. YOU say this is part of our heritage, the right to travel.
But sometimes you have to restrict that right in order to preserve the
heritage.
Your right to travel on the highway is restricted every time you
come to a red light. It interferes with your freedom to travel, but
you accept it gladly because it is necessary to preserve the heritage
that gives you the right to travel with safety.
Mr. CELLER. That is right, but we formulate reasonable standards
for highway safety and we act with procedural due process when
Someone is accused of violating those standards. I ask no more in
the field of travel.
Mr. O'HARA. Would the gentleman yield?
Mr. CARNAHAN. Again, we thank the gentleman for his appearance.
Mr. O'HARA. I don't ask the gentleman to answer if he doesn't
wish to answer.
Does the gentleman see any danger to your security in the visit
here of the Premier of Russia?
JuDD. I certainly do.
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148 PASSPORT LEGISLATION
. ,
Mr. CLLER. Mr. Chairman, could I put this in the record?
Mr. CARNAHAN. This is an article Congressman Celler has written
On ):Etssports which he would like to have put in the record at this time.
If there is no objection, the article will be inserted as a part of the
record.
(The document referred to follows:)
[Bar Bulletin, New York County Lawyers Association, vol. 16, No. 5, March?April DM
YOUR RIGHT TO PASSPORT
Li the warm idealism which permeated our post-war efforts to create a better
world order, the United States subscribed to the Universal Declaration of Human
Rig 'its of 1946. Article 13(2) of that poignantly hopeful statement of man's
political aspirations declared simply and forthrightly, "Everyone has the right to
lea) e any country, including his own." For some of the signatory powers, the
end prsement of this principle was and is an act of blatant hypocrisy. But for
the United States, in the days prior to the strains of the cold war, there was in
this commitment nothing that was remarkable or even controversial. As early
as the year 1215 our political progenitors had enacted from King John the promise
fou in chapter 42 of the original Magna Carta that it is to be lawful in peacetime
for any person "to leave our kingdom and to return, safe and secure by land and
watert * * *fl
though this principle was frequently abridged during the medieval struggle
bet Amen English nationalism and the authority of the Papacy, by the early 17th
cen":Ury those restraints had been repealed. The prerogative of the crown to
rest riot travel, embodied in the writ of ne exeat regno, fell into disuse, and the right
to leave England in peacetime to satisfy any whim or fancy came to be taken as
mu ii for granted as November fog in London.
Without this heritage of unrestricted exit the settlement of the American colonies
would have been substantially impaired if not entirely prevented, for, to a large
ext int, the American colonists?the Quakers, the Puritans, the Catholics?held
vie. vs antithetical to the established and the accepted of those days.
For 175 years, the right of Americans to go forth from the United States, in
time of peace, was generally unimpaired. Passports were not required to leave
the United States, nor did most of the countries of the world require them for
entry. It was only when the United States was at war that there was any sig-
nifi'mnt interference with travel. Thus, during the war of 1812, passports were
req aired by statute for travel to enemy lands. During the Civil War, the Depart-
me it of State, by regulation, required passports of American citizens to enter or
lea ie the United States. During Worki. War I, Congress made it unlawful during
tiff e of war or upon a Presidential finding of necessity "for any citizen of the
United States to depart from or enter the United States unless he bears a valid
pat sport." This act was revived during World War II and remained in elect
until repealed by the Immigration and Nationality Act of 1952 which established
a s imilar restriction upon travel during war or any presidentially proclaimed
nal ional emergency.
Although the fighting in World War II ceased over 13 years ago, and although
thE Korean fighting stopped over 5 years ago, the national emergency of 1950 is
still in elect today. Nor does there appear to be any likelihood that the inter-
nal tonal situation upon which the national emergency is predicated will materially
chimge within the foreseeable future. The result has been and will continue to be
tlu t for the first time during any protracted peacetime period American citizens
car not leave the United States (except for travel to some Western Hemisphere
countries) without the official permission of their Government as expressed in the
issr lance of a passport.
:3ut even if we had no such statute, the realities of international travel today
demands a passport of every traveler. As a practical matter, international travel
ippossible without a valid passport. Of 37 countries canvassed by the Yale
Law Journal in 1952, only 5 permitted the entry of foreigners without a passport.
Tb e exercise of the right to travel has thus become dependent upon the policies
aril procedures governing the issuance of passports.
What , then, are those policies and procedures? Until recently the stattr:e of
18.i which gave the Secretary of State authority to issue passports, was
generally interpreted by the State Department to vest in the Secretary absolute
discretion in the granting of passports. However, over the course of American
his tory the exercise of that power has been rather narrow.
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Furthermore, until the First World War, how the Secretary exercised his dis-
cretion made very little practical difference since a passport was not required to
leave the United States nor did most countries demand one for entry. If, in fact,
the Secretary ever had complete discretion over the issuance of passports prior
to 1956, the U.S. Court of Appeals for the District of Columbia Circuit, in that
year, made it clear that since a passport had become essential to travel it could
no longer be subject to the absolute discretion of the Secretary of State. (Schaet-
man v. Dulles, 225 F. 2d 938 (D.C. Cir. 1956).)
However, in 1952 the Department issued passport regulations which remained
in effect until 1958. Those regulations prohibited the issuance of passports to:
Members of the Communist Party;
Persons who engage in, or will probably engage in, activities directed at further-
ing the Communist movement;
Those whose activities abroad would violate the laws of the United States or
would be prejudicial to the orderly conduct of foreign relations, or would be
otherwise prejudicial to the interests of the United States.
It was those regulations, insofar as the Secretary had interpreted them to author-
ize passport denials on the grounds of beliefs and associations, which the Supreme
Court invalidated in the recent case of Kent v. Dulles.
In that case, Rockwell Kent applied for a passport to visit England and then to
attend a meeting of the World Council of Peace in Helsinki, Finland. The pass-
port was denied on the grounds that (1) Kent was a Communist, and (2) he had a
consistent and prolonged adherence to the Communist Party line.
? In a momentous decision, Justice Douglas speaking for the Court, held that it
was not the purpose of Congress in the statute authorizing the Secretary of State
to issue passports, to give the Secretary authority to withhold passports because
of the beliefs and associations of the applicant. The Court reached this decision
after first concluding, clearly and firmly, that "the right to travel is a part of the
'liberty' of which the citizen cannot be deprived without due process of law of the
fifth amendment."
The decision in Kent v. Dulles has thus put the Congress and the Executive on
notice that an American's right to travel cannot be touched cavalierly without
raising constitutional questions. The immediate reaction in some quarters was
"how far does this let us go, constitutionally?". However, as Professor Jaffe has
pointed out, "The constitutional approach begs the paramount question for a
self-respecting, intelligent government. The question should be not how far we
can go without reaching the bounds of outrage, but precisely what our policy
should be." (The Right to Travel: The Passport Problem, Louis L. Jaffe Foreign
Affairs, pp. 17, 22, vol. 35, No. 1 (October 1956).)
Appropriately, the next act in the passport drama will unfold in Congress
which, unlike the courts, may consider what should he done as well as what may
be done. A preview of what is to come was presented last July when shortly
after the decision in the Kent case, the President, in somewhat extravagant terms,
asked Congress for the immediate passage of legislation which would have per-
mitted the State Department to restrict travel for vague and undefined reasons
and without the due process which the President's message said was essential to
any abridgment of such a fundamental right. In addition to the administration's
proposal, legislation was introduced in the 85th Congress which would have enacted
substantially the same criteria for denial of passports as those invalidated by the
Supreme Court.
Aside from the grave constitutional questions which would be raised by such
legislation, it is totally undesirable especially in view of our experience with the
passport program over the past decade. It is undesirable because of the violence
it does to our traditions at home and because of the embarrassment it causes
abroad.
-Most of the proposals which were presented to Congress would continue the
practice of denying a passport act not because of evidence that the applicant
was about to commit an act with serious consequences to the national security,
but rather on the basis of who are his friends, what he said in the past, and what
some minor functionary concludes his beliefs were or are. A disposition to engage
in any activity unforeseeable to the United States would be sufficient cause for
denial.
However, even among people who are so disposed there may be vital differences
in their activities abroad. Some will criticize U.S. policy or praise Soviet policy
or attend a "peace conference," others will transmit secrets, and others will in
fact do nothing disadvantageous to the United States.
There, obviously, are significant qualitative differences among these activities.
Under our system of constitutional guarantees, some activities may be made the
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au lect of criminal law and prohibited, others clearly may not. Yet the standards
wi ich were followed by the State Department and are now proposed to be enacted
seep to have completely disregarded this essential factor.
eheyehat 4 policy consistent with our traditions must predicate any denial
Of a passport upon evidence of the particular activity which the denial is inteaded
to prevent.
owever, the security-obsessed ar,tie that the exact nature of future conduct
is !AN) speculative, too difficult to establish. We must therefore protect ourselves
,by denying a passport to any one whose record indicates a lit-elihood that he may
co nnilt some act contrary to the interests of the United States.
While the impending activities of an individual cannot be predicted with mathe-
rat tical certainty, it is entirely feasible to establish reasonable grounds o a which to
be ieve that a person is going abroad to commit a certain act. Let us assume that
an Individual is shown to have had access to important classified material, that
he had during recent years been active in the Communist Party, that he has
re( ently been in contact with Red wrents in this country, that he has booved pas-
sai.e for Europe. Proof beyond reasonable doubt adequate for a criminal con-
vi( tion, no. But reasonable grounds to believe that he is going abroad to transmit
Se( rets, yes.
still, it is argued that our national security will be jeopardized in those cases
ic,1 are difficult to prove. I submit that the danger to our national security
wl let would result from the travel of most fellow travelers and even most Com-
munists has been vastly exaggerated. It certainly has no relevance to those who
have been unjustifiably denied passports under the broad standards and un-
reliable fact-finding procedures which have characterized the passport program.
The professional and really effective spies like Colonel Abel obviously do not
ha ve'to rely on Miss Frances Knight's (Miss Frances G. Knight, Director, I'ass-
po 't Office, Department of State) good graces to enter or leave the United States.
A iation that can launch a sputnik and a lunik is capable of providing false papers
to its agents.
furthermore, it is patently ridiculous to believe that vital secrets once ob-
tained can be retained within the borders of the United States even by denying
pmsports to everyone who wears or has worn a red carnation. Iron Curtain
diplomats come and go freely. Diplomatic pouches are sent back and forth from
W ishington to Moscow without interference or search. Americans who are
de lied passports may still travel to a number of countries in the Western Hemi-
sphere without passports and there meet Red couriers or officials.
What then do we accomplish by restrictive legislation of the kind that is gen-
ere Uy being proposed? In the main, we deny exit to people who, because of
cu Tent attitudes or past associations, may provide favorable propaganda abroad
om the Soviet Union. Again, I say this is patently unrealistic. Communist
sy ripathizers need not leave the United States to accomplish a propaganda pur-
1 po3e. Tape recordings and films made here and transported abroad, staterr ents
mt,de here which are reported abroad, releases to the foreign Communist press
are all available and effective means of communication. And how much greater
is he propaganda value when there is appended a brief editorial comment that
the writer has been confined within the United States because of his disagree-
frn nt with the official attitude of the U.S. Government, For them we have an
indictment of the United States, met by the misrepresentations of some fellow
tn veler, but more damningly by the repressive action of the U.S. Government
Its elf. Considered in the context of our commitment to a program of free travel
an 3, our condemnation Of the Russians for prohibiting travel by those who dis-
ag ?ce with the Marxist line, the effect on our int, rnational stature of restrictions
of this kind can only be most injurious. Our security slip is showing.
A 'graphic illustration of what I am talking about is the Paul Robeson case.
As long as he could not get a passport, Robeson's restriction made good propa-
ga ida. Since he has gotten a passport, the "Reds" have lost an effective argu-
me tit which appealed to millions around the world. Robeson has been abroad
since last summer. During that time he made a concert appearance in Moscow
in Which he exhibited warm friendship for the Soviet Union and called upor the
Hessian people to fight for freedom. What freedom, or whose, he did not specify.
Exas the strength of this Nation so deteriorated that we feel threatened by a
pe ?formance of this sort?
Another example of how foolish we have made ourselves appear to the rest of
the.world, and for no good reasor, is the Arthur Miller case. In 1954, the Pulitzer
Pr ze winning author of "Death of a Salesman" was not allowed to go to Brussels
to see a performance of his own play, "The Crucible." Finally, in Junc 1955, the
U. Court of Appeals for the District of Columbia Circuit upset the Sta.:,e Depart-
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rtientf's denial of the passport because it was based on insufficient reasons. Mr.
Miller 'subsequently went to Europe and the foundations of the Republic have not
drtitbIed, Actions like this have brought us uncomfortably close to what the
free "world found so outrageous in the Russian treatment of Boris Pasternak.
However, let us assume that an American goes abroad and does things which
rriair be of propaganda value to the Russians. Why is this great Nation so para-
lyzed with mortal terror over the possibility that a handful of malcontents may
sgy the same unpleasant and untrue things about us that the Kremlin already
saYS'In 50 languages to all parts of the world every day of the week? Perhaps
ConamuniA charges of germ warfare in Korea may sound a trifle more convincing
in sOMO Gil:falters when uttered by renegade Americans. I suspect, however, that
the Communist propaganda mill can achieve about the same degree of effective-
ness Without them. In any event, I am convinced that the risks we incur by letting
the speechmakers and the propagandists go are far less than the danger to our
Systeni of government inherent in the kind of program that would be necessary to
keep every Communist and fellow traveler at home.
I do not say that the right to travel is absolute, that no limitations can be
justified. Clearly, in time of war, the President should and must be free to
issue almost any travel regulation he considers necessary. In peacetime, how-
ever, individual IF erties must prevail to the greatest possible degree. Yet,
even then, a few restrictions are justifiable. The State Department should be
authorized to deny passports to persons seeking to escape their lawful obligations.
This would include fugitives from justice, draft dodgers, persons under court-
reS aining orders, and those attempting to evade legal process.
put, what about periods when the President or Congress has determined that
although we are not at war the Nation is nevertheless 1 eset by great dangers--
&Hod of national emergency? Is the Nation powerless to protect itself from
eyen a "clear and present' danger to its security'?
The Special Committee To Study Passport Procedure of the Association of
the Bar of the City of New York, under the chairmanship of Fifield Workurn,
has made an outstanding and constructive contrihution in presenting some
thoughtful answers to those complex problems. The committee rejected as
"defective and inadvisable" the standards for passport denial followed by the
State Department. It concluded that "travel ought not to be restricted solely
on the 'basis of membership in any organization, adherence to any unpopular
views, or a belief that the applicant will criticize the United States or its foreign
policy during his sojourn abroad. Some action hostile to the national security.
Of the United States must be reasonably anticipated in contrast to speech or the
holding of opinions" (Special Committee To Study Passport Procedures of the
Association of the Bar of the City of New York, "Freedom To Travel," p. 61).
Under the standards proposed by the committee, a passport could be denied
Only when the Secretary of State finds reasonable grounds to believe that the
applicant will commit any of the following acts while abroad:
1 Transmit secrets affecting the national security;
(2 Incite hostilities or conflicts which might involve the United States;
(3 Incite attacks by force upon the United States or attempt to overthrow its
Government by force and violence.
The first and third of these acts are punishable as crimes if committed within the
jurisdiction of the United States. It would seem that society should have the
right to protect itself from acts against it abroad if it has the right to protect itself
from the same acts committed within its jurisdiction.
I have certain reservations about the second act. , It is significant only in areas
of the world which are in turmoil?areas like the Middle East or southeast Asia.
?Its purpose is to prevent the John Kaspers of international relations from provok-
ing wars in those areas in which we might become involved. In view of the num-
ber of homegrown agitators who appear in all of the potential trouble spots of the
world, it is difficult to see' what could be added by a few American provocateurs.
Furthermore, in those strife-torn lands, the hostile troublemaker will probably be
dealt with expeditiously and effectively through local law or expulsion.
" I would, therefore, support legislation authorizing the first and third acts as
grounds for the denial of passports, provided that proper procedural safeguards
are Corporated in the legislation.
,While difficulties may arise in categorizing what is advocacy and what is action,
this is a distinction with which the courts have long been familiar and which can
be, administered, .
believe these standards provide a fair resolution of on the one hand, our
interest in preserving a cherished right and, on the other, of facing the realities
Of the cold war.
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,As acceptable as these standards may be, they are no more than standards.
They ,are .not self-enforcing. They are dependent for their appropriate applica-
tion won these procedures which our experience has shown minimize the corn-
rnii;ton. of error. "The history of liberty," said Mr. Justice Frankfurter, "has
larg ely been the history of observance of procedural safeguards."
E eeause of the significance of the right at stake, a passport should not be denied
ivit i,opt It full trial-tYpe-administiative hearing. The applicant should be given
pro npt notice of any tentative denial of his application. The notice should
infe rrn him of the reasons for denial in sufficient detail that he can explain or
ref i O. them. He must have a hearing before an impartial tribunal with a right
to i ppear and to be represented by counsel. The Government should be required
to. present its evidence on the record and to confront the applicant with the wit-
IleS 3e$ against him. The administrative board should be required to make a
rea ibned decision on the record and subject to judicial review.
. IVhile the State Department is willing to provide all the other demands of a
trif 1-type hearing, it insists that considerations of national security often preclude
is, from (1) explaining the reasons for denial in detail, (2) disclosing certain evi-
dei ce to the applicant and (3) confronting the applicant with the witnesses against
him. To do so, argues the Department, would be to reveal vital information
about our counterintelligence and espionage systems which would inevitably
clek troy our sources of information.
' at there is some merit to this argument cannot be denied. However, bal-
aw 4 against it are the risks of unjustifiedly depriving a citizen of his constitu-
,L
fao nal right to travel. As any trial lawyer will tell you, the disclosure or evidence
an 1 the opportunity to cross-examine witnesses are indispensable to arriving at
the truth. Informers make mistakes in identification. They are sometimes
mi,lieionsly motivated. Investigators have beeri known to be slipshod in their
mi thods and conclusions. Lies, half-truths, unjustifiable conclusions which would
go unchallenged in secret proceedings, usually break down under the test of
elf .3,ctive questioning. For these reasons, the courts have held that in criminal
0, ;es the Government must reveal its evidence and confront a defendant with
th3 witnesses against him or it must let him go free.
, In civil cases, secret testimony has been permitted in the so-called privilege
caaes, i.e., where a person is not being deprived of something to which he has a
rif,ht; e.g. a Government job. However, the Supreme Court has already declared
that travel is not a privilege but a right. In other words, it is something which
is and has been of very great value to the individual and to our society. While
the deprivation of liberty consequent upon a criminal prosecution may be made
or erous, still the deprivation of a particular individual's right to travel may
remit in serious hardships and indignities. It is a right of sufficient importance
Sc ,that the risk of its unjust deprivation is far more serious to our way of life
th an the risk that an occasional effective enemy may receive official approval to
leave the tTnited States.
Certainly, there are risks involved but that is in the nature of a democracy.
There are risks in allowing people to speak freely, in a free press, and in the entire
p anoply of rights guaranteed to the accused in a criminal proceeding, I do not
b 3lieve that we are yet ready to pay in unfairness and injustice for what is after
a 1 what Dean Acheson called the illusion of complete security.
-Up to now I have been discussing restraints upon individuals. There is,
Im,wever, another facet to the problem. The question of geographical or area
restrictions affecting all American travelers.
By making passports invalid for travel in certain countries, the Secretary of
State has, during the past decade, frequently prevented Americans from v siting
h.rge areas of the world. Red China, Bulgaria, Hungary, Albania, North Korea,
North Vietnam Egypt, Israel, Jordan, and Syria have all at one time or another
t een placed ofelimits. Unlike the issue of individual restraints, the question of
the extent of the Secretary's power to impose area restrictions has not been judi-
eially determined although this issue is involved in current litigation. It would
8 ppoar, however, that since the Executive has exclusive power in the field of
I. lternational relations, the Secretary would have broad discretion in applying
aro
restrictions as an instrument of foreign policy.
This is not to say that what the Secretary can do he has done well or will do
wiSely. During the past few years, Secretary Dulles has seemingly forgotten
that in addition to foreign policy, other vital interests are affected when Americans
are barred from foreign lands; among them is the need to know what is going on.
_ Curiosity is not the only thing at stake, although the value of that disappearing
virtue is too frequently underestimated. What is ultimately at stake is the vitality
of the democratic process in reacting to she issues which confront it. Intelligent
i
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decisions by the electorate require facts, not solely as presented in official state-
ments, but as observed 1:?y individuals and by trained reporters.
I do not say that there can be no reason for the imposition of some restrictions.
Sitqations? have arisen and will arise where the presence of large numbers of Ameri-
can nationals may substantially increase the likelihood of our involvement in
hostilities. In that case a convincing argument can be made for putting the
area off limits. But how, then, do we justify the prohibitions ori travel which
the State Department imposed on Egypt, Israel, Jordan, and Syria in 1956, 2 days
After all parties to the hostilities had formally agreed to a cease-fire; a prohibition
which continued until April 1, 1957, a period during which no other country found
that the safety of its nationals required such a restriction, and I include Great
Britain and Frame, two of the belligerents.
Similarly, the right of Americans to see for themselves has been denied as to
those countries with which we have no diplomatic relations. The theory is that
this incapacitates us from protecting our nationals in those countries.
As was pointed out in the Worktun report, we have frequently also been unable
to protect Americans where we do maintain diplomatic relations. William Oatis'
stay in a Prague prison was made no more comfortable by the presence of an Amer-
ican ambassador in the same city. Conversely, American citizens visited Franco
Spain prior to our recognition of that regime and suffered no ill treatment.
- What we have experienced in the past decade has been a far too extravagant use
of the power to impose area restrictions by the Secretary of State. However, I
do not believe that that power can be limited by statute. Congress can express
its concern, its views, and its hopes as to the policy to be adopted, but the ulti-
mate responsibility rests with the Executive. In this area the Nation must look
not to the courts or to the Congress, but to the President for the formulation of
wise and realistic standards.
Were tite decision mine, I would impose area restrictions only where the pres-
ence of American nationals is likely to result either in abuses to them which would
severely embarra'ss American prestige or where the presence of our nationals is
likely to bring us into armed conflict.
The suggestion of the Workum report that the Secretary of State "accompany
the imposition of area restrictions with a full statement setting forth the reasons
therefor" is a desirable advance. The prospect of exposure to critics whose names
do not appear on the rerouting slips in Foggy Bottom may produce a less mecha-
nistic application of standards which of necessity leave much to the judgment of
the Secretary of State.
When an area has been placed off limits the need to know does not cease. It
becomes even greater because of the significant events transpiring there. While
the presence of large numbers of Americans may be more likely to involve the
United States, the risk is frequently minimized by limiting access to selected
groups. Since the granting of exemptions can frequently ameliorate the hardness
of area re,strictions, each situation should be carefully scrutinized with this in view.
Among those exceptions, the highest priority should be given to newsmen, repre-
sentative of the broadest spectrum of political opinion.
It is only with sadness that I find that the ideal of complete freedom of travel
cannot be realized in the present state of international relationships. But just
as we must recognize that reality, we must also recognize that we have, during
the past decade, gone too far in abridging that right. The Supreme Court's
'decision in the Rockwell Kent case has had the happy effect of generating a
widespread reevaluation of our past policies. The challenge and the opportunity
for a statesmanlike solution lies with the 86th Congress and the Eisenhower
administratio n.
Mr. CARNAHAN. OUT next witness is Mr. William L. Taylor, legis-
lative representative, Americans for Democratic Action. Mr. Taylor.
Mr. TAYLOR. Thank you, Mr. Chairman.
Mr. CARNAHAN. You may proceed as you wish. Do you have a
prepared statement?
Mr. TAYLOR. Yes, I do, sir.
With me this morning is Mr. Edward Hollander who is national
director of Americans for Democratic Action. I would like to have
him accompany me.
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$Tj./EMENT OP WILLIAM L. TAYLOR, LEGISLATIVE REPRESENTA-
AMERICANS POR DEMOCRATIC ACTION
^ ' "
kr,i Anil_ members of the committee, the piiSsport bilTs
.pen sing herore your committee have long been a source of concern
to .i he ADA and we would like to express our appreciation for this
&WI-AV to give our views on them.
little more than a year ago, the Supreme Court in the Kent case
av e judicial expression to a view that many people had long held?
t at, freedom to travel is embodied in the concept of liberty funda-
'Mpiqal to our constitutional system. In doing so, the Court wrote
at :'east a terhporark'finish to a decade of unlawful activity by the
,State Department in curtailing the right to travel. It also put an
'end to ufiwarranted Government interference with freedoms of speech
-ane":ass-Ociation. We think it not unfair to conclude also that the
Ooiirt struck 'a blow for the intelligent conduct of our foreign relations
Anci,...for national security. For the era in which a world-renowned
Mist like Linus Pauling and a great playwright like Arthur Miller
--cp.Od be. refused the right to travel brought only shame and ridicule
image of this country abroad.
'Me administration claims, however, that the interests of national
sec _why urgently require the enactment of legislation restricting the
-right to travel. On August 5, 1959, and in subsequent hearings, this
cor#ittee afforded to representatives of the State Department and
the administration another opportunity to substantiate these claims.
Qur view, the administration witnesses failed completely in their
att3iiipt to make a case for the passage of H.R. 7006 or any other
leg aation which would provide the State Department with additional
.gruunds upon which to base the denial of a passport.
.Che administration has claimed that passport controls are neces-
-sa4 'in the interest of national security to prevent communication
:bet weer!. .members of the Communist conspiracy. But it has never
;cit a single instance to show that our security has been enhanced by
thc exercise of passport controls. Nor has it been able to point to a
? sine case indicating that the removal of passport controls after the
-Kent and 13riehl cases has resulted in damage to national security.
Administration witnesses argitied that the activities and identity of
merlibers of the Communist conspiracy are so secret that it cannot
ap,1 should not be required to make a showing of specific harm in order
(e.cure the passage Of legislation. Since it is so difficult to identify
,agents and missions, it is reasoned that blanket controls are necessary
to Prohibit travel to anyone whose past activities, associations, or
expressions of belief might indicate that they would be likely to engage
- in illegal acts.
argument proves too much. If secrecy is at a premium, it is
clearly unlikely that an agent will be employed who would be identifi-
lible.even by his past affiliations and activities. If the Government's
coPtention were valid, the only way to achieve security would be to
prohibit everyone from traveling.
Moreover,
by its own admission, the State Department could not
,p
.,riVent the transmittal of information abroad, even if it imposed the
most stringent controls. The Department acknowledges that travel
in the Western Hemisphere does not require a passport and that in-
formation could be sent out through Canada and Mexico. Here, it
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'says, our interest in maintaining good Latin American relations out-
weighs considerations of national security. Why different con-
siderations apply to our European allies is not indicated. The
administration might also have acknowledged that information can
be smuggled out through the diplomatic pouch in the Russian Embassy
or the various diplomatic pouches of the satellite countries. It might
have admitted too that Communist couriers might not take the
trouble to obtain a bona fide passport before departing.
The fact of the matter is that illegal transmittal of information
abroad is a matter to be handled by our intelligence and counter-
espionage agencies. If the Government believed that a person was
engaged in carrying illegally obtained information, it would hardly
tip him off by denying him a passport; he would either be arrested
and prosecuted or watched for purposes of counter-espionage. Fur-
thermore, if denial of a passport is ever thought desirable, existing law
authorizes its refusal where the applicant is engaging in illegal conduct.
There is an air of unreality about administration testimony which
seeks passport control upon evidence too secret even to specify to a
congressional committee. It becomes fantasy when the State De-
partment reveals that it considers its passport office a pivotal point
for the prevention of espionage. We believe that the only fair con-
clusion which can be drawn from the record developed by Congress in
the 13 months since the Supreme Court decided the Kent case is that
there is no need for legislation imposing new passport controls.
- ? The administration also has been less than frank in dealing with
the effect of the legislation it seeks upon the rights of American citizens.
Seeking to minimize the impact of its application of passport restric-
tions, the Administration says that only 15 persons were finally denied
passports in the 6 years before the Supreme Court decided the Kent
case. In doing this, the administration chooses to ignore the hundreds
and perhaps thousands of cases in which applicants were effectively
denied passports because delay inherent in the administrative obstacle-
race made it impossible for them to carry out their missions abroad or
because they refused to comply with illegal affidavit requirements.
The administration asserts that it seeks under H.R. 7006 only to
prevent the travel of persons "presently engaged in activities know-
ingly intended to further the purposes of the Communist movement."
But it admits that under section 2(b) of H.R. 7006 past activities and
associations would constitute evidence upon which such a determina-
tion could be based. The authorization to deny passports upon the
basis of such vague criteria as "* * * facts which reasonably warrant
the conclusion that the person is going * * * abroad to conduct
activities for the purpose of furthering the interests of the international
Communist movement," when coupled with provisions placing the
burden upon the applicant to disproye such a purpose, clearly sanc-
tions a return to a system where travel was denied on loose and ill-
defined charges.
Apparently untroubled by any thoughts of consistency, the ad-
ministration admits that Communist agents would not hesitate to lie
about their identities and missions, and then urges the use of a non-
Communist affidavit, not as a test oath, but as a means for testing
potential espionage agents. Such an oath is prescribed in section 3
of 11,R. 7006.
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administration seeks authority not simply to refuse to reveal
-the identify of regularly established agents, but even the names of
0014 informants, neighborhood gossips and talebearers. It admits
tha-, this use of secret information to deny passports deprive the
..-applicant of any opportunity to know what the charges against him
,are er to rebut them, but says that the personal attention of the Secre-
tary of State to each individual case affords sufficient protection.
Ass ming the desirability of having the Secretary of State devote his
ya,13 table time to review of individual passport cases, case by case, this
pers6ita1 review has not presented injustice and hardship in the past.
? .He again the administration has failed to document a need. which
wradd justify the abandonment of traditional safeguards of due proc-
ess. - .Even if a need were ever to arise to deny a passport on the basis
of statements furnished by a secret informer, there is no reason why
the statements could not be used to develop independent evidence or,
if this was not possible and the denial' was important enough, the
informer could be identified as he is in criminal cases. Here I would
lik? :to say a word about the discussion of this morning: Provisions
for reviewing evidence supplied by secret informants. I don't think
it mots the problem to say that when you get into court, information
-Can be disclosed in camera to the judges because what we are seeking
'her 3, is a, fair determination of passport cases before they ever get to
:the judiciary. It sometimes takes years before they reach the judi-
ciary. And even when you are in the courts I don't think that these
pro Visions are adequate to protect the individual's rights to confron-
tat Q11 and cross-examination. He never sees the specific information;
.he clever knows the name of his informer and he can never cross-ox-
arnne him. It is perfectly conceivable when you talk about disclosing
information which may form the basis for a determination, that the
information will be given to the judge without the name of the in-
forner. Now, that may be the record that the Secretary of State
cer!-,ifies to the court.
Where that kind of a record is certified, unless you have provisions
for disclosure of the name of the informant, there may be in the
-judgment of the court adequate evidence for a determination but
there still will not be a right to cross-examination or confrontation.
It was bad enough for the administration to use secret informants to
deny the valuable right to travel before the Supreme Court had
spc ken on this subject. But only a few weeks ago, in the Greene case,
five justices made crystal clear their belief that a valuable :right or
privilege may not be denied without confrontation. The continued
adhprenee of the State Department to its adamant position on secret
informants in the teeth of this clearly expressed opinion of the Supreme
Co -Art can only be described as reckless unconcern for the Bill of
Rights. We cannot believe that the Attorney General would support
arcr such disregard of the Court and of the Bill of Rights.
ADA believes that no passport should be withheld, revoked or
ref Ased without affording the applicant full notice and a fair hearing
-including the right to confrontation and cross-examination. The
grc ands for denial of a passport should be limited to those now
sar.Otioned by law?that the applicant is not a citizen or is engaged in
conduct which would violate the laws of the United States. Attempts
to gO beyond this, we believe, would be unnecessary, unwise, and in
sonie cases unconstitutional. For these reasons, we oppose provisions
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ia mu. 55, 2468, 5455, 8329 and other bills, which would enlarge the
grounds ler withholding passports, authorize inquiries into beliefs
and associations, require the execution of non-Communist affidavits,
and deny the right to confront and cross-examine one's accusers. We
recognize that the provisions of different bills differ and that some,
like H.R. 8329, attempt to offer some protection to constitutional
rights, but all are objectionable to us in one or more of the ways
specified,
it might have been expected that if the administration showed no
regard for the basic rights of individuals, it would at least have been
concerned with the image of the United States created abroad by the
imposition of passport controls. Unhappily, it exhibits no reluctance
to recreate the picture of an America frightened by the travel of its
Communists or fellow travelers.
The members of this committee have demonstrated greater sensitiv-
ity in both areas. We feel sure that no action to curtail the right
to travel will be taken without some proof of need. None has been
forthcoming.
Mr. CARN&HAN. If there are those who have questions to ask, I
will recognize anybody who has a question.
,.Mr. SELDEN, I gather from your statement that you are opposed
to any passport legislation. Is that correct?
? Mr. TAYLOR. We are opposed to all of the legislation which is
before this committee at this time. We don't feel there is a necessity
for it.
Mr. SELDEN. You indicated in your statement that you felt that
the ,ground for denial of a passport should be limited to those now
sanctioned by law. Therefore, in effect you are opposed to any
further legislation in this connection?
Mr. TAYLOR. That is correct, Mr. Selden. I am not saying by
that that Congress could not usefully pass legislation which would
declare the right to travel and codify the existing grounds for denial
of passports in a manner which we think would not invade the liberties
of individuals, but I don't think that any of the bills before this
committee at this time meet that standard.
st- Mr. SELDEN, Well, certainly I respect your views, although I dis-
agree with you. I believe that some of these bills do protect the
rights of the individual, although they do deny the passports under
certain conditions.
That is all.
Mr, CARNAHAN. Mr. Fulton. ?
Mr. FULTON. I agree with parts of your statement and disagree
with others. I agree with you where you base your concept on the
fact that the freedom to travel is part of our basic liberties contained
in our U.S. Constitution and our basic constitutional system. It is
no privilege of the Executive, but is inherent in the individual.
Mr. TAYLOR. Yes, sir; we think that is clear.
Mr, FULTON. I agree with you on that basis. However, in all
humility and with certain patience, I would disagree strongly with
this statement: "For the era in which a world-renowned scientist like
Lhaus Pauling and a great playwright like Arthur Miller could be re-
fused the right to travel brought only shame and ridicule to the image
of this country abroad."
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Now, my- eoniment on that is this: I don't know whether there is a
right to travel, to go abroad to make a fool of yourself. If that is in-
horeaVin the right to travel, Linus Pauling is taking full advantage of
the right and there is no room -left in the right for anybody else.
; Secondly, if he is acting abroad as a world-renowned scientist, I am
sUte that other people who call themselves simply scientists are going
to 1 e a little dismayed about the appellation. As a matter of fact,
Linis Pauling, to me, abroad, sounds as much like the voice of the
rum'that I have ever heard speechifying in far parts. His insta-
bility aS to political statements that are extreme, and secondly, not
very sensible, are his own rights abroad. But I am. sure I would riot
want it to be felt by anybody in this country or abroad, even behind
the Iron Curtain, that Linus Pauling in his travels is in any respect
the image of this country abroad, because he is in no respect as a
private citizen abroad reflecting the image of the United States of
America.
Th your statement I think you have gone just a little far. On this
playwright, Arthur Miller, he. is no more a great playwright than any-
boly sitting at this committee table. He is a successful operator.
Ho is a play carpenter who makes money at it, but I might say as far
is thought is concerned, where the other one is operating as the voice
of a vacuum, this man Arthur Miller is completely vacuous. Let me
again say he is no more the image of America abroad than you think
Shakespeare is.
That is all.
Mr. TAYLOR. Mr. Fulton, if I might comment on that
? Mr. FULTON. Why would you come in here and say those two men
make the image of the United States abroad?
Mr. TAYLOR. I don't think I said that.
Mr. FULTON. That our U.S. Government administrative people
have brought shame and ridicule on the image of this country abroad.
Neither of those people are the image of this country abroad. I just
think a little less of your otherwise thoughtful statement because you
said it.
Mr. TAYLOR. I didn't intend to suggest that they reflect the image
of America abroad
Mr. FULTON. Then we are in agreement. They certainly don't to
me.
Mr. TAYLOR. What I intended to suggest by this statement was
that the denial of their right to travel was a reflection upon our image
abroad, regardless of what their views might have been or what one
might think about their abilities as scientists or playwrights. I
don't think it would be useful
i-Mr. FuvroN. Lanus Pauling, as a special emissary of the committee
for a sane- nuclear policy, is no more having any effect abroad than he
has at home.
Mr. TAYLOR. I would say this: I would take issue with what I
thought you implied and that was that there is no right to make a fool
of oneself either here or abroad. I think that the right of free speech
and the right of travel very definitely implies the right to make a fool of
oneself.
? Mr. FULTON. I thoroughly agree and I said Linus Pauling has used
that right to the full.
Mr. 'TAYLOR. I don't think it would be useful for us to---
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. Mr. ,FU,LTON. I just wanted to make sure that this whole committee
table doesn't expect the statement that Linus Pauling is acting a
world-renowned scientist abroad to be anything but extreme.
Mr. JUDD. I had a note on that same subject but wasn't going to
bring it up. It isn't a question of the competence of a man in a given
field. It is whether or not he is on our side in this world struggle.
I, got a 'letter from somebody the other day about our art exhibit in
Moscow. He said we should send art that is determined by artists.
I said no, it depends upon the artists. We have no business using
the taxpayers' money to put an exhibit in Moscow except as part of
our effort to make some headway in a world struggle and therefore I
want artists who are on our side and use art to reflect the spirit of
freedom, not to destroy that spirit, as Communist artists must.
He said, "You wouldn't want your appendix taken out by a fellow
who isn't a good surgeon."
I wrote back and said, "That is right, but I also want him to be a
surgeon who is interested in getting me well and not one interested in
killing me."
Benedict Arnold was a first-rate general but that didn't qualify him
to direct our armies after he went over to the enemy.
Just saying that they are great artists, scientists, or musicians
doesn't prove that therefore they ought to be in a position to help
create the image abroad of America.
May I ask this question: Do you think that the imposition of pass-
port controls would injure the American image abroad?
Mr. TAYLOR. Do I think the imposition of passport controls
Mr. JUDD. Yes.
Mr. TAYLOR. I think it has and I think the reimposition of passport
controls would injure the image of America abroad.
Mr. Juni). With whom?
Mr. TAYLOR. Both with our allies and with nations we do not con-
sider our military allies necessarily, but with whom we maintain
friendly relationships.
Mr. JUDD. Maybe a lot of them would begin to think that at last
the United States is beginning to grow up and pay attention to the
menace within itself.
A lot of them would think more of us for imposing such passport
controls.
Mr. TAYLOR. I don't know that there is such a substantial view
abroad. I do feel that we lost a great deal and the Communists were
able to make great propaganda out of our denying the right to travel
to citizens of the United States.
Mr. JUDD. I would like to see the evidence upon which that is based.
You can find both positions?there is no question about that. You
can find both positions on every subject, but the net result among
those who are standing up to the Communist threat would, I believe,
be great encouragement if we show them that we are also being more
firm and alert to the threat.
My last question: I judge from your statement, that since we could
write no legislation that would prevent all Communists or agents, or
dangerous couriers from traveling, therefore we shouldn't try to do
anything because we can't do everything.
Mr. TA mon. If I may make one comment on the question you
asked before, I would say that one measure of how countries abroad
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tehbt Co tlA imposition of fiassport controls might be found in their
0*nletictices with respect to passport controls and I think you will
find ni most cases that they conform to what we do right now and
'noCtC What we did selieral years ago.
-Not on this question, 'T would not say that you don't need legis-
la,tion because you can't accomplish everything that you want to do,
h,nt,n y feeling about this legislation is that you accomplish no thing
bylnviision of freedoms. Passport control is not at all an effective
_ruillgrIt for trapping persons who might be engaged in the trans-.
,of &gaily obtained information. And I don't think that you
advance, imposing this legislation, that you enable
, .
yo1n- lfto land some of the people who were transmitting information
What you do is to cast a big net and prevent a great many
perSon from traveling.
Mr juin:). This is designed to put some restraint on people we
know, or have reason to, believe are engaged in activities hostile to
oUr c itntrY and furthering the Communist conspiracy against our
co ry.
' r TAYLOR. My suggestion is that there are other means to deal.
h opie who we believe are engaged in illegal activities. It is a,
arr:lor our intelligence agencies and-
3unnAt is on the basis of what our intelligence agencies have
Unmet up that we want to restrain 'their travel. That is the whole
point J. Edgar Hoover insists it is the Federal Bureau of Investi-
gation only, and not a Federal bureau of action. Somebody has to
take ? ome action and make some decisions. We are the ones to take
some action on the intelligence those agencies are able to develop.
rdon't Want tO"fiir, over tO the investigative agencies the power
to aci. Then we have a" secret police.
I want the investigative agencies to investigate and then our
kgginix agencies be given authority to act on the intelligence furnished
Cheth which seems to us to have been very reliable.
Tlu4 you, Mr. Chairman.
FunToN. Would you yield for one further comment?
. ,Tunn. I am through.
Mr. FITLTON. The question comes up on the last page, page 3 of
$15 sttatement, you say?
Tbe ..enlbers of this committee have demonstrated greater sensitivity in both
treas. ne reef sure that no action to curtail the right to travel will be taken
viithout some proof Of need'. None has been forthcoming.
o you mean to say by that statement that there is no proof
0,y,pr,that there are agents going abroad from this country as
aarv- sts N,,Ien you have said in your last sentence, "None has been
fOT 0,9rninZ.
' P.V.,OR. No, sir, I did not mean to say that at all. What
V)sa.y- was t at there is no proof that passport controls can.
e us Sa as an effective instrument for preventing agents from coming
itt E;oing abroad, or from information going and coming.
,hvoi p.p proof that passport controls in the past have enhanced
ow.p.vprity in any way of that the Supreme Court's decision has
- changed matters at all and allowed people to go abroad who were
not oiig abroad before with secret information.
viirorr. We.,must distinguish then in our use of words.
Such as ?Tcontrol of passports," and "curtailing the right to travel''
from the words which mean blocking or preventing.
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PASSORT, I4EqW,47,19.1-
Ap
in your last paragraph you used the word "curtail" the right to
travel. Now, that means cut down on the limits of the right. It
does not mean "block."
Are you making a distinction in your philosophy on this question of
passports between the actual right to prevent a person from traveling,
completely, or curtailing his travel in certain areas that are vital to the
ggcmity of the United States?or are you speaking only of opposing
the, right to control the flow, that is, put certain conditions on the
right to travel?
What is your concept? I don't quite get it from your statement.
Mr. TAYLOR. I was not speaking of geographical limitations. We
UJ n.cA c9ver that aspect of it in our statement and I think with the
Worth? case now pending in the Supreme Court it might be wise to
flp_cr pr a, while judgment on what should be done in this area.
Nor cli4kipeap. to suggest limitations on what one can do when one
:rtraycls,? 111 a;t I was suggesting was that no proof has been forthcom-
pig to show a need for denying the right to travel to certain persons
based upon their beliefs, their associations, or upon vague standards
like "furthering the purposes of the international Communist move-
ment" which we think are capable of very broad interpretation.
EULTON. 170,1,1 doWt. think then that a limit of a cutoff point
sueli a1948 on the sitizeWa associations and activities would be pro-
cluctiv in, distinguishing who should have the right to a U.S. passport
nd W149 ?h,ould 4ot?
TAxboR, No, sir, I don't think that that is a meaningful
LiwoN, ft,has been suggested here that that be one method,
that we go back to, say a period which is relatively recent and set the
cutout point, for example, at 1948. But you would disagree with that?
Mr. TAYLOR. I would say the standards should be much stricter.
Whether there is evid,enee of persons engaged in the course of conduct
which is illegal?that is the present standard and I think that is the
standard that should be maintained.
'Mr. VT,iltroic. Would you disagree with the position that possibly on
the return of these U.S. citizens from abroad they should be subject to
the right of interrogation by the Attorney General or his assigned
agency, or Congress, to determine what their activities have been
abroad?
,,That brings up this question: We are therefore acting after the
event when certain actions and activities have occurred, rather than
before the event when we are preventing the U.S. citizen in good status
and without any criminal record from going abroad, when we just
suspect his intentions?
Mr. TAYLOR. I would be very wary of that, sir, for this reason:
You can impose a restraint by punishment afterward, or by interro-
gation afterward almost as well as you can by making it a prior re-
straint.
In other words, if certain speech is punishable, you restrain it even
though you don't prevent its publication beforehand.
Mr. FULTON. But this is not an examination for the purpose of a
penalty nor for the denial of reentry, nor because it is after the fact
of his going abroad, in relation to his being given the passport. But
it certainly subjects the returning U.S. citizen to a requirement that
he tell the truth of what his activities might be and might have been
abroad, or plead the fifth amendment which, of course, shows him up.
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162 PASSI+0"111 LEdISLATION
^ Mr 'CARNAHAN. May I at this time recognize the gentleman from
IllinoiS?
? Mr FULTON. Could I just have him answer that?
Mr CARNAHAN. We have another witness.
- Mr FuLToic. Could- you just answer that?
Mr.'TAYLOR. We would be very wary of setting up the State De--
&fa &it Or the Passport Office as an agency for investigation to
eteri nine what the activities of persons were abroad. Here, again, l
think the usual procedure should be followed.
? ?Mr. PuviON".. I said the Attorney General.
' "Mr."TAYLOH. I am gorry.
Aga, if the Attorney General had reason to believe a crime had
been committed, I think lie would follow his ordinary investigative
proce lures, or if you simply wanted to develop information I think
there might be a way for him to develop that information, but
'Wdulen't recommend this as a blanket procedure for interrogating
perso is as they come back to this country. I think it should be used
`only :or specific purposes.
FunToN. Thank you.
:CAuNnAN. Mr. O'Hara.
. b'llARA.. Mr. Taylor, I am glad you are here and I think you
have Made a fine Contribution to our deliberations. You have pre-
Bente I some food for thought here and you have very well pointed out
the need for caution in what we do, and I think every member of the
cthiirlittee is mindful of that. If it is possible to write a passport bill
that will not infringe upon the constitutional rights of our citizens and
will rot put them in a place where they cannot confront their accusers
,and 41 the rest of it, I think the committee would like to have it if it
can be done.
think you have made a contribution.
I might say that last year I went to some length to assure there
w6tfid be -a hearing here before we passed out a bill and I think every
member of the committee is glad we did that. This year I think
ever rhody who has wished to testify has had the opportunity. We
tall 6e1 good about that.
? Now, the fact that my good friend from Pennsylvania?and I do
not 1:now of any more courageous Congressman than Jim Fulton, and
I don't know of any abler Member of the Congress?the fact that he
has such a strong personal feeling about two people- I know nothing
at ft'l about?whether they are good people or bad people, I don't
kDONI. I don't know whether this playwright is the greatest play-
wright who ever lived or just a phony. I don't know. But the fact
that my good friend, Jim Fulton, has such a strong feeling would
'indic ate certainly that we must have caution.
St?ppose we had a Secretary of State who had that intense feeling
? tovh,rd me. I would find it awfully hard to get a passport, if it were
left ip his discrimination, and I think, Jim, it might be pretty hard--
Well you are fair no matter how you feel, but you are unusual in
that respect. You even had the courage to stand up for your con-
science last week on the floor of the House.
JUDD. Do you suggest the rest of us in our voting didn't stand
by cur consciences?
Mr. O'HARA . I wouldn't say that, but sometimes it is hard for as
to Understand the other fellow's conscience. Seriously, I might say
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that Members of Congress do follow the dictates of their consciences
And accord to their colleagues who disagree with them credit for the
.samc sincerity they ask for themselves.
Mr. JUDD. Come over and join us.
r.,Furircw. You know I would give these people passports but
not because they are the image of America abroad. That is the
point.
Mr. O'HARA. And on that I might remark that I have in mind it
is not the best policy to put any names in because you don't know
-whether, ,soniebody might not like them. It is better to say, "Tom,
Dick, and Harry.
Mr. TAYLOR. Thank you, Mr. O'Hara. I am sorry if that par-
ticular statement , was misinterpreted. I just don't think it would
be useful to determine the abilities of Arthur Miller or the validity
of his views or whether he is the image of America abroad. I wouldn't
contend that any one person or one set of ideas would be the image
-of America abroad and I think, Mr. Fulton, we are in agreement
that we don't deny passports on that basis anyway.
Mr. FULTON. If you had simply mentioned the individuals without
.such a buildup, I wouldn't have had to do a slight deflating job.
That is my position.
Mr. CARNAHAN. Mr. Taylor, we are grateful for your appearance.
Wow go to our last witness this morning, one of our own corn-
mittee members. It will be our privilege to hear you, Congressman
Coffin.
STATEMENT OF HON. FRA,NE M. COFFIN, A REPRESENTATIVE IN
- CONGRESS FROM THE STATE OF MAINE
Mr. COFFIN. Thank you, MT. Chairman.
You will remember that when Mr. Raymond testified with Mr.
Banes, I asked him to submit for the record cases that presented a
,conflict between a political decision which should be made by the
Executive or by Congress and over which the court follows a policy of
judicial nonreversal, and cases which involved at the same time an
individual right guaranteed by the Constitution which would be adju-
dicated by the court.
yesterday I got the galley proof of Mr. Raymond's insert in response
to that question and I had a chance to go over it just briefly and I am
.afraid not with the greatest of legal analysis that I think it deserves.
Now, before I make comments on that, I would like to enter into
the record a brief memo that the Library of Congress prepared at my
request, on the judicial nonreview of political questions.
I asked the Library to give me substantially the same sort of run-
down on cases that involved the policy of judicial nonreview of political
-questions and the judicial review of constitutional rights.
This memo, I think, is interesting because the cases that the re-
-searcher was able to dig up in admittedly a very short period of time
did not involve citizens whose individual rights were in question.
We have cases involving the libel of a schooner where a political
question was held to be paramount and questions involving aliens,
Chinese laborers, a fishing vessel which was seized off Alaska and held
forfeit, but nothing that came within the category of individual rights
mod free speech, freedom of petition, religion or travel.
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iildicates to me 'that we are in an ared, where there is not to
precedent, where political questions come into conflict with
c,onf titutional rights of individuals. This field has not been plowed
or harrowed very much.
"Now, the rnemoU5?Mr. Raymond submitted for the record is
tite;..esting because" he does cite several lower court cases that are
cics 4. to the point and they raise a problem. I would say that ray
reelicig, based on the memo? from the Library of Congress, is that this
AtArett'Where we should move with caution. The lesson I draw is
?thai, we should not abandon the judicial review of passport cases
withput a strong showing that it should not take place.
0-ARNiCHAN. -Without objection, the memo you have had p re-
&Al will'be 1:n6-1ided:as a Part of the record at this point.
-
('rhe document referred to follows:)
??? 'Lt)" 144;-; . ? r/ 4 '
.y.1131V,RY OF k_LONCEESS,
LECiStAC'7p SERvic-E,
Wtislington, D.C. August 14, 195P.
To: Hon. Frank M. Coffin.
onv, American Law Division.
: naigfai nOnreView Of political questions.
THE poCTRINE OF POLITICAL QUESTIONS
4. '4
L. I ?1
e doc:frine.; of political questions is a ccineefit onimitations whereb3', tle courts,
31. -our conaltutional system, feel that it is not within their province to inquire
*fee Vie dion 'fak-enir by the 'political departments"?Congress and the Presi-
den ,--in the exercise of their conceded powers. This commonplace maxim is,
ho ever,
sometimes given an enlarged application so as to embrace questions as to
eXistcnce of facts and even questions of law which the court would normally
iegE fri as Wing' within' its jurisdiction. (The Constitution, annotated, S. Doc.
170 82d Cong., pp: 471-472.) A classification of the major fact categories under
whith cases involving political questions arise include: (1) Negotiation, violation,
and termination of treaties; (2) beginning and end of war; (3) admission a,nd
dep)rtation of aliens; (4) jurisdiction over territory; (5) recognition of states,
'gdattMlehtS, War, and measures short of war; (6) status of Indian tribes; (7)
tiarthle-rof republican government.
#..ddition, allied to the doctrine of political questions yet distinct from L., is
-tbe 1Dctrinp which underlies those cases which concern the difference betvveen
'riatvrial and discretionary acts, though problems arising under the latter are
fl? inchiaerin the :general discussions of political questions. (Field, The
Tootrerine of PoliticalQuestions in the Federal Courts, 8 Minn. Law Rev. 485.)
These acts generally arise in conjunction within the orbit of administrative .aw,
,npt,3/413:ly that concerned with aliens. A recent law review article states, critically,
plght be added, that aside from the naturalization power in the Constitution,
low sures `of an implied power over aliens have been suggested: the war poxer,
-the oreign commerce poWer, the treaty power, and sovereignty itself. (Hesse,
Constitutional Status of the Lawfully Admitted Permanent Resident
-Altm.. Pt. I The Pre-19I7 Cases, 68 Yale Law Journal 1578, July 1959.)
'013fVe1tiAti co:4smittrtiorlAti itYdirts
e fallowing, material covers cases where the issues involved would ordinarily
e been considered to be justiciable, except for the fact that a relevant factor
inv eption (b) would then specify the evidentiary matters which must be con-
de -ecl in reaching the conclusion that adverse passport action is justified. , It
, 11 in recalled that the opinion of the Supreme Court in Kent and ,9riehi v.
Dul, es referred to the necessity of adequate standards in any legislation which
mfg it be enacted to delegate this type of authority to the Secretary of State.
.4 Scotion 7 of H.R. 55 would authorize the Department to require a passport
app Irani not only to affirm or deny under oath his membership in the Communist
7'arl x but also to explain the circumstances of any such membership and to
describe any other activities in support of the Communist movement. The
Department considers that the scope of the inquiry thus authorized is so sweeping
,that the provision might not withstand a claim of invalidity for reasons of vague-
neSS ' The Department Would, therefore, suggest limiting the purpose of the
affidavit to membership in the Communist Party.
' S( etion 8 of II.Tt. 55 raises the whole matter of administrative and judicial
ievii rvi of adverse passport action to determine whether there has been any
nc(c Stitutional infringement of the right to leave the United States. It also
..4,
is( g the related question of disclosure of confidential information and of investi-
,
ati,e methods and sources.
Ir the interests of complete protection of the individual's rights to the pro-
cedt ral due process required by the fifth amendment to the Constitution, the
Dep utment deems it advisable to have both the administrative and the judicial
revier proceedings established by statute in as much detail as is feasible. It will
be ro9alled that the administration bill submitted to the last Congress contained
'Cart: in procedural provisions which had been approved by the Attorney General.
he Department suggests that those provisions, with a few technical changes, be
HR.
co ?porated into R. 55 in place of present section 8. The attachment to this
letter contains as title II the text of provisions which the Department believes
Woll4Trovide the best protection of the individual citizen against any possibility
of uiicpnstitptional infringement of his right to leave the United States.
IN ih reference to the complex problem of the use of confidential information,
the Qepartment must oppose any provision, such as the present wording of
Sectiqp, 8 of H.R. 05, which might require the Secretary to make his determination
Ott a particular passport application only on the basis of information and sources
then cf which could be disclosed in open court. If such a requirement were to be
inch cjl in a law authorizing denial of passports to supporters of the Communist
paoy ?, ent, passports Walla have to be issued to most if not all of the persons
gai ist whom the law would be directed, and the entire legislative policy would
us be frustrated? Almost without exception, cases in the Communist area
invo'e confidential information and investigative sources. The Government has
a lei itinaate interest in maintaining investigative sources and methods, as well
its srity and intelligence relations. There are no practical alternatives, in the
operition of a travel control program directed at the proponents of the inter-
bath ,tial Gommunist movement, to the authority to use confidential information
If ne-.: ?asary, when confrontation of all witnesses and full disclosure would impair
cf
and met
cot& cntial sources hods and thereby adversely affect the national
ken ..ty i
_ or the conduct of foreign relations.
.
' The provisions regarding use of confidential information which are contained
In a e ilaachment to this letter, like the other procedural matters, have been taken
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in large measure from the administration bill introduced in the 85th Congress.
They represent the considered judgment of the executive branch as to the desirable
balaRce b,etweep the procedural protection of the individual citizen's rights and
the protection of the national security. It will be noted that the language sug-
gested by the Department goes beyond the present state of the law on the issue
of confrontation and full disclosure in passport matters and would require the
Department to furnish the passport applicant a fair resume of whatever confi-
dential information on which it may be necessary to rely in substantiating the
denial of the passport. Such a summary would give the 'passport applicant the
data h.e would need in order to prepare his rebuttal of the evidence tending to
bring him within the provisions of the statute without compromising the Govern-
xci.ent's confidential sources and methods.
I hope the foregoing comments will be of assistance in the committee's con-
sideration of the pending bills. Simply stated, the Department needs legislative
authority which will allow the Secretary of State to deny passports to hard core
supporters of the international Communist movement. The Department believes
that such denials should take place only in accordance with due process of law,
and that the authority should be used only against those who knowingly engage
in activities in furtherance of the international Communist movement or who
are going abroad for the purpose of engaging in such activities and whose travel
abroad would constitute an actual danger to the United States. The Department
does not seek this statutofy 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
Communist supporters whose travel abroad actually constitutes a danger to the
United States.
Should your committee desire further explanation of any of the foregoing mat-
ters, either by letter or orally, the Department will 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.
A BILL To provide for denial of passports to supporters of the international Communist movement, for
review of passport denials, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That
TITLE I?DENIAL OF PASSPORTS TO SUPPORTERS OF THE INTERNATIONAL
COMMUNIST M9VEMENT
SECTION 1. The Congress finds that the international Communist movement of
which the Communist Party of the United States of America is an integral part,
seek g everywhere to thwart United States policy, to influence foreign governments
and peoples against the United States, and by every means, including force and
violence, to weaken the United States and ultimately to bring it under Communist
domination; that the activities of the international Communist movement consti-
tute a clear, present and continuing danger to the security of the United States, and
Seriously impair the conduct of the foreign relations of the United States; that
travel by couriers and agents is a ma or and essential means by which theinter-
national Communist movement is promoted and directed; that a United States
passport requests other countries not only to permit the holder to pass freely and
safely but also to give all lawful aid and protection to the holder and thereby facili-
tates the travel of such holder to and in foreign countries; and that in view of the
history of the use of United States passports by supporters of the international
Communist movement to further the purposes of that movement, the issuance of a
passport to, or the possession of a passport by, persons described in Section 2 is
Inimical to the security and to the conduct of the foreign relations of the United
States and therefore passports should not be issued to or held by such persons.
2. (a) In accordance with the findings in section 1, the Secretary of State
is authorized to refuse to issue a passport, or to revoke a passport already issued,
to any person as to whom it is determined on substantial grounds that he know-
ingly engages in activities for the purpose of furthering the international Com-
munist movement, unless such person demonstrates to the Secretary, by clear
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,g: idence, that his activities abroad would not lnrther -the purposes
.oficb moyerneiat.
' '(b) The Secretary shall consider as evidence of activities in furtherance of the
-international CominniitsLiRoyeirient,,within the meaning of subsection (a):
(1)'., present membership in the Communist Party or former membership
'terminated under Sir,P.11!,10.t.Al9C?, Which...reasonably warrant the conclusion
-'that the person continues to act knowingly in furtherance Of the interests
;f=4,nd tinder the disciPline Of the Communist Party;
activities under circumstances which reasonably warrant the conclu-
on, that a person, regardless of the formal state of his affiliationwith the
, Communist Party, is knowingly acting under the discipline of the Communist
'Party, or as A result of the direction, domination or control exercised over
im by the international Communist movement;
(JD) other facts which reasonablywarrant the conclusion that the person
plug ,tcr'staYing aEroad to conduct activities for the purpose of furthe;ing
e iniesekt.s.pt,th,e, international CoMnAll.hi?t.,MOvoinePt. -
c. $.r '4,et8eeretary ef state may require, as a prerequisite to the issuance,
)1V;a1 91 extensioR?ota,passport, that the applicant subscribe to and submit a
en ,staternent ?einly verified by his oath or affirmation as to whether he is or
pen, within fen years prior in filing his application a member of the Cam-
61arty.
.4., The :Drovipipng of this Title shall continue in effect until the termina:ion
100DA, emergency established by Presidential- Proclamation No. 2914,
qr,i& 1950, 64 Stat. A 454.
u.P
; ,R9P4DftL r9Y, .4W9117 r4NTAL, .4ND I4V)LVW
SEC. 5. Upon application therefor. duly completed, and upon comPliance
wit t.any requirement under the provisions of Section 3 of Title I of this Act, a
PasiD"ort `Shall be issued to any person qualified under Section 212 of Title 22 of
the 'United States Code (32 Stat. 386), or the applicant shall be informed in
wrLing of a denial thereof, within ninety days after the receipt of such application.
If a, pasSport is denied, revoked or restricted for any reason other than non-
citi :enship or geographic restrictions of general applicability, the pssport applicant
,or bolder shq11 bp, inforinecl ip?writing of the reason, as specifically as is consistent
wit i considerations. of national security and _foreign relations, and Of the rIght
to E hearing before the passport' nearing Board in accordance with the provisions
V this Title. Notice.of the denial or revocation of a passport under the terms of
Title _I of this Act shall specify the paragraph or paragraphs of Section 2(b)
of Title I on the basis of Which the passport is denied or revoked.
Sc. 6. There Shall be established within. the Department of State a Passport
He ring Board consisting of three officers of the Department to be designated by
the Secretary of State. This Board shall have jurisdiction in all cases whereiSn a
headng is requested in writing within thirty days after notification of the denial,
vation, or restriction of a passport, for any reason other than nonCitizenship
brtengraphical restrictions of general applicability. The Board shall hold a hear-
'iag Within ninety days after the receipt of the request unless such time limit is
tXti iided. at the request of the party. The officers who present the case of the De-
cir State to the Board shall not otherwise participate in the delibera-
' S-r reeOrninendatiOnLof the Board.
Re. 7(a). The Secretary shall establish and make public rules which shall
"AO )hl to the individual inproceedings before the Board the following rights.
to appear in person and to be represented by counsel;
To testify. in 'his own behalf, present witnesses and offer other evidence;
To cross-examine Witnesses appearing against him at any hearing at
i he or his Nuns& is present and to examine all other evidence Which is made a
d tie open record; _
To examine a copy of the transcript of the open proceedings or to be, fun:.
01 aeopy upon request.
In order to protect information, sources of information, - and investigative
me?ds, -diSeI*4re Of Which would have a substantially adverse effect upon the
,I.Ettignalficctufity o:t the .eppdtjet of foreign relations`, the Board may at any time
04:4 er oral or To_clinienlvy.evidence without making such evidence part of the
tp completion of its Proceedings, the 'Board shall -furnish to
Ihdividuar fburn.6 of any such evidence, and s' certify?thaf it is a fair
'16:s1M16. The Board 'shall take into consideration the individual's inability to
challenge information of 'Which he has not been advised in full or in detail or to
att4k the credibility of sources which im,ve not been disclosed to him.
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4c,. 8. 'Within sixty days after completion of its proceedings, the Board shall
make written findings, conclusions, and recommendations, which shall be trans-
mitted with the entire record to the Secretary of State who shall make the final
administrative determination. If the recommendation of the Board is adverse
to the individual, a copy of the recommendation and of the findings and conclu-
*ston8 which are based upon the open record or upon the r?m?f any evidence
hot made part of the open record, shall be furnished the individual, who may
'within twenty days following the receipt thereof submit to the Secretary written
objections thereto. The Secretary shall base his determination upon the entire
record submitted to him by the Board, including all findings and conclusions, and
upon any Objections submitted by the individual. In appropriate cases, the
secretary may remand a case to the Board for further proceedings. In the event
he takes action adverse to the individual, the Secretary shall make appropriate
written findings and conclusions.
SEC. 9. The United States District Court for the District of Columbia shall have
jurisdiction to review any final determination of the Secretary of State under sec-
tion 8 of this Act to determine whether there has been compliance with the
provisions of this Act and of any regulations issued thereunder. In any such
proceedings the court shall have power to determine whether any findings which
are stated to be based upon the open record are supported by substantial evidence
Contained hi that record, or, in the case of a r?m?f evidence which was not
made part of the open record in conformity with section 7(b) of this Act are
supported by the r?m?f such evidence, duly certified by the Board under said
section 7 (h) ?
Sze. 10. The provisions of the Administrative Procedure Act, as amended
(5 U.S.C. ch. 19), shall not apply to proceedings under this title.
TITLE III?REGULATIONS
SEC. ,11. The Secretary of State is authorized to prescribe regulations to carry
out the provisions of this Act.
TITLE IV?SEPARABILITY
SW, 12. If any provision of this Act is held invalid, the remaining provisions
shall not be affected.
TITLE V?EFFECTIVE PATE
SEC. 13. This Act shall take effect immediately upon its enactment.
?
4, TuogAs B. MORGAN,
Chairman, Committee on Foreign Affairs,
ifause of Rcyresentatives.
PEAR MR. CHAIRMAN : I refer to your letter of April 27, 1959, with which you
forwarded for the Department's comments copies of H.R. 6537, a bill to provide
for the denial of passports to persons knowingly engaged in activities intended
to further the international Communist movement.
Examination of H.R. 6537 indicates that it is identical with H.R. 55 and with
several other bills which have been referred to your committee.
? On March 25, 1959, you requested the comments of this Department on a
number of passport bills, including H.R. 55 and bills identical with it. The
Department replied on April 10, 1959, furnishing a report on H.R. 55 and identical
bills. The comments and suggestions contained in that letter and its enclosure
therefore represent the Department's views with regard to H.R. 6537.
Thank you for forwarding copies of H.R. 6537. If there are any further
questions, please do not hesitate to communicate with me.
' Sincerely yours,
?
DEPARTMEN,.T OF STATE,
Washington, May 8,1959.
WILLIAM B. MACOMBER, Jr.,
,l E4581stant Secretary
(For the Secretary of State
14,763.-59-12
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D RARTMENT QF STATE,
ashington, June 4, .199.
HOD. tHOMAS E. MORGAN,
Chair rcan, Committee on Foreign Affairs,
Hous( of Representatives.
. .
DE 3R, MR. CHAIRMAN: Reference is made to your request of May 12, 1959, for
the cc mments of the Department of State on H.R. 7006, a bill to provide for denial
of pat sports to supporters of the international Communist movement, for review
of pa sport denials, and for other purposes.
I.Jm ler date of April 10, 1959, the Department furnished your committee with
its views on H.R. 55 pointing out that it still considers the enactment of legislation
Along the broader lines of the administration bill introduced in the last Congress
to be _ preferable. However, the Department endorsed the general principles
reflect eel in H.R. 55 and supported the bill. In this connection certain revisions
and dclitions were proposed to H.R. 55 which, the Department felt, would
more $dequately insure that the legislation accomplish the desired purpose.
H.H, 7006 incorporates the suggested revisions and additions proposed by the
Depa; tment in its comments of April 10 on H.R. 55. Accordingly, the Depart-
ment strongly supports H.R. 7006 and favors its early enactment into law.
The jeopardy to the national security which is manifest in the unrestricted travel
of Co nmunist Party leaders, officials, and avowed members is a matter of deep
come rl to the Department. It is the Department's strong belief that prompt
and a lequate legislation in this area is essential to our national interests.
The Department hopes that your committee will see fit to hold hearings on
passp4t, legislation at an early date, and would be most anxious to have appro-
priate representatives testify in support of H.R. 7006 or similar legislation.
The Bureau of the Budget has advised that it has no objection to the submission
of thi report.
Sincerely yours,
WILLIAM B. MACOMBER, Jr.,
Assistant Secretary.
Hon. THOMAS E. MORGAN,
Chairnan, Committee on Foreign Affairs,
'Jou& of Representatives.
DB1.11 Mn. CHAIRMAN: I refer to my letter of April 10, 1959, and its enclosure,
in rer ly to your request of March 25, 1959, for the Department's views on nine
passp )rt bills which have been referred to your committee. You will recall that
the E cpartment's comments and suggested revisions of April 10 were addressed
only to H.R. 55 and to six other identical bills, because the subject matter of those
bills was limited to the denial of passports to supporters of the international
Comr iunist movement.
The Department has now completed its study of H.R. 2468 and H.R. 5455, the
two r maming bills of those listed in your letter of March 25, 1959, and appre-
ciates this opportunity to furnish its comments regarding them.
Cei fain observations of a general nature, applicable to both bills, may be made
first, I ollowed by comments on other important provisions of each of the two bills.
Both H.R. 2468 and H.R. 5455 are apparently intended to authorize the Secre-
tary of State to deny, revoke, or restrict passports applied for or held by certain
nationals of the United States. The grounds upon which such action could be
taken by the Secretary include, on the one hand, knowing support of the inter-
natio] [al Communist movement and, on the other hand, other reasons not neces-
Sarily related to Communist activities, such as attempts to evade justice and
activities prejudicial to the national security.
? As stated in my letter to you of April 10, 1959, the Department believes that
the le ck of legislative authority for the denial of passports to hard-core, active
suppc titers of the Communist movement is the most urgent current problem in the
passport field. The Department is therefore in complete agreement with this
objec lye of both H.R. 2468 and H.R. 5455 and firmly supports congressional
actiot directed toward granting such authority to the Secretary.
As In the case of H.R. 55 and the bills similar to it, however, the Department's
past experience in the operation of a passport security program and familiarity
with , udicia.1 decisions in this area have prompted close examination of the provi-
sions of various passport bills relating to the denial to supporters at the interna-
DEPARTMENT OF STATE,
rashington August :4, 1959.
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tional Communist movement with special regard for the adequacy of the provi-
sions to accomplish the objective and for their constitutional validity when chal-
lenged in court, if enacted.
in commenting on H.R. 55 and companion bills, the Department forwarded to
ycitt with its letter of April 10, 1959, the text of a suggested revision of those bills
Which contains all of the points deemed imperative by the Department to achieve
Workable and valid legislation authorizing the denial of passports to persons who
knowingly engage in activities in support of the Communist movement. Rather
than to attempt here to analyze the pertinent provisions of H.R. 2468 and of
H.R. 5455 and to rephrase those provisions to meet the requirements mentioned
above, I believe- it will be more helpful to refer to the attachment to the Depart-
ment's letter cited above. While there is much in the provisions relating to pass-
port controls on the travel of supporters of the Communist movement in the two
bilis now under discussion with which the Department is in accord, the detailed
language and format of the proposed revision of H.R. 55, previously submitted,
represents the Department's position on this aspect of all passport bills pending
in your committee.
' In my letter to you of June 4, 1959, commenting on II. R. 7006, it was observed
that this bill incorporates the suggested revisions and additions proposed by the
Department in its comments of .April 10 on H.R. 55. The Department strongly
supported H.R. 7006 and favored its early enactment into law.
The second principal area of concern common to both H.R. 2468 and H.R. 5455
is that of providing legislative authority for the denial of passports on grounds not
necessarily related to activities in support of the Communist conspiracy. Thus,
subsection (c) of H.R. 2468 would authorize the Secretary of State to deny, revoke
Or restrict the passport of any person whose activities abroad would violate the
laws of the United States, be prejudicial to the orderly conduct of foreign relations,
or otherwise be prejudicial to the interests of the United States. Section 4, sub-
section (2) to subsection (5) inclusive, of H.R. 5455, taken in conjunction with
seCtion 6(b) and section 15(a), would authorize the Secretary of State to deny,
revoke or restrict the passport of any citizen whose travel would violate State or
Federal laws, aid in evading civil and criminal judicial process or be prejudicial to
the national welfare, safety or security.
? In this connection, it will be recalled that the Department submitted a draft
passport bill to the 85th Congress, introduced in the House of Representatives
on July 7, 1958, as H.R. 13318, and referred to your committee. That bill, if
enacted, would have specified a number of grounds upon which passports could
be denied to individuals, the most comprehensive of which were that an individ-
ual's activities or presence abroad or possession of a passport would " (i) be in
violation of any law of the United States or of any State or Territory, or any
order issued by any court in the United States; (ii) seriously impair the conduct
Of the foreign relations of the United States; or (iii) be inimical to the security of
the United States." These grounds are similar in objective to those contained in
the above cited provisions of H.R. 2468 and H.R. 5455 and the Department con-
tinues to believe that legislation along these lines is desirable.
It will be recalled, however, that your committee, in unanimously reporting
H.R. 13760 favorably to the House, commented in the report thereon (Rept. No.
2684, 85th Cong., 2d sess.) that the administration's bill (H.R. 13318) had not
received favorable action because of its broad implications and because of dissatis-
faction with certain of its provisions. it is understood, on the basis of the hear-
ings in which the Department's representatives participated, that the unsatis-
factory implications and provisions of the administration bill were considered by
some members of your committee to be precisely the broad provisions cited above.
Both H.R. 2468 and H.R. 5455 contain language (prejudicial to the orderly
conduct of foreign relations or to the interests of the United States, or to the
national welfare or security) which would appear to be even somewhat broader in
terminology than the similar provisions of the administration bill in the last Con-
gress. The Department would not wish to risk failure of enactment of effective
passport legislation applicable to supporters of the international Communist
movement because of the presence in the bills of broader language which deals
with less urgent legislative problems.
'It should be made clear, however, that the Department considers broad legisla-
tion such as H.R. 13318 submitted by the administration to the last Congress to
be still desirable.
In the event your committee wishes to give further consideration to provisions
which would authorize the Secretary by statute to deny passports on certain broad
grounds not necessarily related to Communist activity, then the Department
suggests the use of the language quoted above as contained in the administration
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bill siibniitted to the 85th Congress which was drafted-jointly by the Department
fit St i.te and the-
Department of Justice and has the approval of the Attorney
Gene Ti.
, 1 A 11),Ird Objective Which is common to both 11.R. 2468 and H.R. 5455 is that of
prohibiting the travel of 'U.S. nationals to certain countries or areas when deter-
0 LIS) I-P necReasary in the national interest by the President or by the Secretary
t ito (H.R. 2468, subsee: (e) (2) . H.R. 5455, secs. 16 and 17). The Depart-
14 pf State supports this objective because it may be necessary from time to
tine, in the interest of the conduct of our foreign affairs, to prohibit the travel
cat ns,generally to certain specified areas. Although the Department believes
ns at_present both inherent and statutory authority for this purpose, it
55 e desirable to have it spelled out specifically by statute.
epartMent -Ands:however, that the provisions of both H.R. 2468 and
pertinent to thissubject would create serious difficulties of administra-
a enfescernent if enacted. For example, although subsection (e)(2) of-
. i68 eontempfales that the passport shall be the means of controlling travel
to pr rticular areas and declares unlawful travel in violation of any restriction
Contf ined in the,passporti no penalty is provided for wilful violation of area travel
gontiols where no passport is used. Sections 16 and 17 of H.R. 5455 pro vide for
enei al limitations on travel to particular countries whenever the President makes
an atoropriate finding that such travel restriction is in the national interest.
How iyer, the restriction with reference to any particular area or areas would
term Tote automatically in 1 year unless renewed by an act of Congress. Condi-
ions pa particular areas may well require the continuation of such travel restri c-
ions longer than 1 year and the executive may have information, not readily
ayaili1-?i3e to the legislative branch, which especially qualifies him to make such
toleci.
a ons without the possibility of incurring the delays inherent in the legislative
procm
t! lo :View Sif the difficulties which would arise if the general travel restriction
rov sions of either ItIt. 2468 or H.R. 5455 were to be enacted, the Department
lle ,r,v that the following language would be more adequate to achieve the
objective and suggests that it be substituted for the pertinent provisions of the
two '411.s under discussion:
i"Sg. (A). In the event that the Secretary of State makes a determination
that the 'United ,States Government is unable to provide adequate protection to
persc,ni troWliig in particular countries or areas, due to the lack of diplomatic
elat ops or, due to disturbances within such countries or areas, or that travel of
3?0, States nationals 'CO or in such countries or areas would seriously impair
_ e iogign relations or foreign policy of the United States, he may publish such
detei 'lunation: and may cause notice thereof to be stamped on each passport
. then ifterIssued, renewed or amended.
(13). llo United States national shall travel to or in any country or area
ih,,lias been designated by the Secretary of State in a determination made and
publ shed under section (A), except that in the national interest the Secretary
may Make exceptions to geographical limitations of general applicability for
part cular categories of persons.
.oPEq.c. (C). Any person who violates the provisions of section (B) shall be guilty
of a rntsdemeanor and upon conviction be punished by imprisonment for a period
nOt e4geecling one year or by a fine not exceeding $1,000, or both."
--:-The,foregoing comments and suggestions apply, as already indicated, to the
Atak,r objectives conamon to both H.R. 2468 and H.R. 5455. Certain other pro-
viSien.s of H.R. 2468 could possibly be improved by careful revision in order to
eXpr4SA`the intention more clearly and to meet objections of a legal nature, but
the Department has suggested above the language deemed most suitable to
ad:Li:ye the three most important objectives of H.R. 2468, namely, control of the
tray ij.of supporter's of the Communist movement, denial of passports on foreIgn
relat los and national security grounds, and statutory authority for restrictions
ODA: Srbral travel by Americans to or in particular areas of the world.
505,-howeyer, advances a proposal to which the Department is firmly
oppaged. 'Ihis proposal is contained in section 7 of the bill, entitled "Establish-
merit-N:3f 'The, United States Passport Service'," which would elevate the Passport
Offi( q,i0 Vile status of a setnia,utonomous "service" reporting directly to an Under
Seer It,ry Of State, thereby circumventing the authority of the Deputy Under
Seer 3 ary for Administration and the Administrator of the Bureau of Security
And Cgnsular Affairs..
3-.1''.19,,,Departrnent opposes this proposal because, if enacted, it would prescribe
by statute the organization, status and functions of the "Passport Service" and
us -,4eprive the Secretary of State of his discretion to organize his Department
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P/WPORT LEGISLATION 177
tts he deems necessary. Such action is not only contrary to general Govern-
mental practice but would represent a major retreat from sound administrative
policy. It is also contrary to the principles laid down by the first Hoover Com-
ion in the following words: "Each Department head should receive from the
Congress administrative authority to organize his department and to place him in
etintrol of its administration. * * * [T]he Department head should be given
.aiithority to determine the organization within his department. * * *" (Recom-
niendations Nos. 18 and 20 of the Report on General Management of the Executive
Branch). Several reorganization plans based upon these recommendations have
been approved by the Congress.
The Department also opposes section 7 of RR. 5455 because its enactment
would place an additional heavy burden on the Under Secretary and would deprive
him of time and energy which should be available for important foreign policy
problems. Policy guidance and direction on matters relating to the operation
of the passport program is being given to the Passport Office by the Administrator
of the Bureau of Security and Consular Affairs in the first instance and by the
Deputy Under Secretary for Administration whenever appropriate. The De-
partment believes that this sound organizational pattern should not be changed.
Subsections (b), (c) and (d) of section 7, which would prescribe by legislation the
status and functions of the "Passport Service" and its Director, raise serious
questions as to the degree of authority which the Secretary or Under Secretary
of State would actually have over the Passport Service. For example, passport
agents are now appointed under the authority of the Secretary, but subsection (d)
would authorize the "Director of the Passport Service" to appoint such agents.
It should be borne in mind that, although the Passport Office has done a splendid
and effective job in its chief business of servicing the traveling American public,
Its degree of authority is similar to that of other operating offices within the
Department which also provide services to the public and which are not responsible
for policy decisions.
Moreover, the Department objects to the provision contained in subsection (e)
of section 7, according to which the proposed "United States Passport Service'
wotild be "responsible for the administration of laws and regulations relating to
the nationality, protection, documentation, and supervision of international travel
of United States citizens and nationals * * *"
First of all, the Department of State has no interest in "supervising" the inter-
national travel of Americans and finds the concept both repugnant and impossible
to administer if it is intended to mean surveillance of individual American citizens
visiting foreign countries. If it is intended to refer to promotional activities
relating to American travel abroad, there already exists an Office of International
Travel within the Department of Commerce which is charged with precisely
that responsibility. The work of the Office of International Travel is of interest
and concern to many areas of the Department of State' not merely to thePa,ssport
Office, and effective coordination exists between the Department of Commerce
and this Department on matters relating to the facilitation of international travel.
The Department believes that the monetary and business aspects of international
travel are and should remain the sole responsibility of the Department of Com-
merce. The Department further believes that the present allocation of responsi-
bilities in the field of foreign travel between the Departments of State, Justice,
and Commerce is in accordance with their respective areas of jurisdiction and
should not be transferred or merged.
Secondly, the diplomatic protection of American citizens abroad is an integral
part of the conduct of our foreign relations, for which not merely the Passport
Office but the entire Department of State and its Foreign Service establishments
are responsible.
Finally the laws and regulations pertaining to the nationality and documentation
of American citizens are in very great part the responsibility of the Attorney
General and the Commissioner of Immigration and Naturalization. The Depart-
ment of State would not favor assuming those responsibilities which are properly
lodged elsewhere.
In connection with section 7 of H.R. 5455 it should be pointed out that, as a
matter of administrative policy, the Department favors vesting in the Secretary
' of State all authorities and responsibilities now vested by statute in subordinate
officers or offices of the Department.
H.R. 5455 (sec. 10, first sentence) also proposes to raise the total of fees for
executing a passport application and issuing the passport to $12, $2 more than the
present fee. Such an increase is not required by the present cost of issuance and
would not be in line with the President's policy of facilitating travel or with the
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178 PASSPORT LEGISLATION
reco nmendation of Hon. Clarence 13. Randall in his "Report on the Facilitation of
Tate 'national Travel."
T re Department favors the proposed amendment of 22 U.S. Code, section 217,
to e ctend the maximum period of validity of a passport from 4 years to 5 years
(H.R. 5455, sec. 9). H.R. 54.55 (sec. 11) would continue the present provision of
law requiring the issuance of free passports to seamen. The Department has
proposed recently the repeal of the statutory exemption for seamen from the pay-
Mer t of governmental fees (sec. 12 of the act of June 26, 1884.) Accordingly, it
ri3t't wnrnended that this provision be omitted from section 11.
r , is hoped that the foregoing comments will be of assistance to you and your
corrrriittee in the consideration you will give to passport bills which have been
referred to your committee. If additional comments are desired on any aspect of
the: p. or other passport bills, the Department will be glad to comply with your
ora; or written request.
Sp Bureau of the Budget has advised that it has no objection to the submission
Of this report.
? Sincerely yours,
4 WILLIAM B. MACOMBER, Jr.,
Assistant Secretary.
JaatC14._ THOMAS E. MORGAN,
C4 zirman,Committee on Foreign Affairs,
use of Representatives.
DEAR Ma. CHAIRMAN! I refer to your letter of July 30, 1959, requesting the
cOn1rnents of the Department of State on H.R. 8329, a bill to provide standards
foi the issuance of passports, and for other purposes.
The Department forwarded to your committee on April 10, 1959, its comments
co ftrning H.R. 55 and six other identical bills, expressing general agreement
Witir! the principles reflected therein and suggesting certain revisions and addi-
th as in the interest of obtaining the most adequate legislation to accomplish the
pt rpose intended. Subsequently, H.R. 7006 was introduced which incorporated
th revisions and additions proposed by the Department, and on June 4, 1959,
y( ur cornmittee was advised that the Department supported H.R. 7006 and
favored its early enactment into law.
? The Department has endeavored to make its position clear in the matter of
pi,Atort legislation. A comprehensive measure along the lines of the adminis-
tration bill submitted to the 85th Congress (H.R. 13318) is still believed desirable.
The, most pressing problem, however, is the need for legislation authorizing the
goeretary of State, under appropriate procedural guarantees, to deny passports
to persons knowingly engaged in activities in furtherance of the international
Communist movement. It is statutory authority of this nature which the
Supreme Court found lacking in the Kent-Briehl and Dayton cases. Such author-
ity represents the minimum which the Department feels is essential to counteract
the danger to which we are exposed at present as a result of the ability of persons
urider Communist discipline to travel abroad in furtherance of the international
Communist conspiracy. The President emphasized this fact in his c ommunica-
ton to the Congress of July 7, 1958. The Department consistently has urged the
Congress to take action to fill this statutory gap.
?in the opinion of the Department, H.R. 8329 is inadequate in certain essential
r ect'S and is also unduly restrictive on the authority of the Secretary of State.
asicalli, the Department feels that the grounds of national security enum-
( Wed in t us bill which would constitute reason for passport denial are inadsquate
10 counter the existing danger.
- -SectiOn 103 of HR. 8329 appears to represent an enumeration of the sole
igdunds for the exerctse of authority by the Secretary of State in the issuance of
?)a..$Sports to individual U.S. citizens. Such an exclusive enumeration would by
:snalssion, in the opinion of the Department, severely restrict the existing authority
of the Secretary Of State to act on the basis of foreign policy considerations in the
Oitssport field. It is significant to note that two recent cases (Worthy v. Herter
d Prank v. Herter), decided by the U.S. Court of Appeals for the Disurict of
olumbia, upheld the Secretary of State's power to restrict the geographical
ifttlidity of a paSsport cm foreign policy grounds. The Department is firmly con-
yincecl that any comprehensive passport legislation must preserve the Secretary of
State's authority to act, in the consideration of individual passport cases, on the
basis of reasonably anticipated harm to the foreign relations of the United States.
DEPARTMENT OP STATE,
Washington, August 4, 1969.
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Section 103(a) (3) of H.R. 8329 enumerates three grounds on which travel may
be restrained and passports denied as being dangerous to the national security.
The Department subscribes to the validity of these grounds, but believes that the
exeluSion of all other grounds would leave the national security inadequately
protected. The Department seriously doubts that even dedicated, hard-core
Communists could be refused passports under the provisions of section 103(a) (3).
An advance showing that a particular Communist would, when abroad, engage in
one of the narrowly defined activities endangering the national security, would be
impossible in almost every case. The conspiratorial nature of the Communist
movement, its clandestine operations, and its resources and apparatus (both legal
and illegal) are facts which make an evidentiary showing of its members' future
actions highly improbable. In fact, a Communist might well get a passport long
before he decides (or is ordered) to travel abroad; or he may not receive his
instru.cti..ons until he arrives abroad, Additionally, we rarely have reliable infor-
mation as to where a Communist is going, much less as to what he may do in
furtherance of the Communist conspiracy when he gets there. Our experience
teaches us that Communists frequently misrepresent the places they intend to go,
as well as the true purpose of their travel. In this connection, under section
201(c) (1) of HR. 8329, the Department would not even be able to inquire of the
applicant as to the purpose or length of his contemplated travel.
The Department believes that it presently possesses authority which section
103(a) (3) of H.R. 8329 purports to confer. Accordingly, the Department feels
that the national security provisions of H.R. 8329 would have to be broadened
to deal effectively with the Communist problem. It seems clear to the Depart-
ment that H.R. 8329 would not supply the legislative authority found lacking by
the Supreme Court in the Kent-Briehl and Dayton cases.
In this regard, it is noted that the bill passed by the House on August 23, 1958
(H.R. 13760) was, and H.R. 55 and H.R. 7006 introduced in this Congress are
designed, in the Department's opinion, to supply the authority found lacking by
the Supreme Court in the Communist area. H.R. 8329, however, contains no
congressional findings as to the adverse effect which the issuance of passports to
persons actively engaged in the furtherance of the international Communist move-
ment would have on the national security or the conduct of foreign relations, a
Matter which the Department considers an important element in any passport
le islation.
Moreover, section 201(0(2) of H.R. 8329 specifically provides that the Secre-
tary of State may not require the applicant to furnish any information with re-
gard to membership in any organization which is not registered with the Sub-
versive Activities Control Board, or with respect to which there is no final order
in effect requiring such registration, in accordance with the provisions of the Sub-
versive Activities COntrol Act of 1950. The fact is that no organization is regis-
tered and no final order is in effect requiring registration of any organization
within the meaning of that act. The only organization which has been the subject
of a petition by the Attorney General to require registration as a Communist-
action organization is the Communist Party of the United States of America.
However, the proceedings against the Communist Party have been in litigation
for more than 6 years and a final determination appears unlikely in the near future.
Consequently, section 201(c) (2) of H.R. 8329 would preclude the Department
from requesting a passport applicant to furnish a statement even with regard to
present membership in the Communist Party. The Department does not be-
lieve that reliance upon this as yet inapplicable provision of the 1950 act is the
best way to meet the Communist problem in 1959.
In any event (despite the language of sec. 201(c) (2)) the provisions of section
103(b) would appear to repeal by inconsistency section 6(b) of the Subversive
Activities Control Act of 1950 (50 U.S.C. 785) which makes it unlawful to issue
a passport to a member of an organization registered or finally ordered to register
as a Communist-action organization.
The Department feels that it would be desirable to have specific statutory
authorization for the requirement of a sworn statement with regard to present
or recent Communist Party membership. There can be no doubt about the
deterring effect of such a requirement. The Department's experience under its
previous regulations and the situation which has developed since the Supreme
Oourt decisions of June 1958 show clearly that few of the hard-core, dangerous
Communists actually applied for a passport when such a requirement was in effect.
The Department has maintained the position that any legislation directed at
the Communist problem which requires full disclosure of information and con-
frontation of witnesses would be ineffective in operation and would likely create
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an i usiqn that the travel of Communists would be controlled when such would
not in .fact he the case. H.R. 8329 recognizes this fact by the provisions made
sntion 104. However, the Department believes that the provisions of section
304 ?4ould. also ,specificialy provide for the situation where full disclosure would
have a substantial adverse effect upon the corduct of foreign relations as well
-ss op', the national Security even though foreign relations is a basic elemenii of
riat uval security. Our -foreign intelligence depends in large measure upon close
ecioOration with other friendly governments, and we should not be placed in the
dilgi mjiria of either, having to prejudice our arrangements in this area, or to disre-
gaf frefialle information received through other governments.
?41,,,4ifFicAlt problem is posed by section 307 of H.B. 8329, especially subsection
(d) This section would place the district courts of the United States in the
POisition of determining whether the disclosure of particular information would
jp, sl,lbstarntial)y adverse effect upon the national security. Additionally, if
? the pepartment's suggestion as to section 304 is accepted, the court would also
be, in A position of determining whether the disclosure of particular information
would have a substantially adverse effect on the conduct of foreign relati-ms.
Su c h a provision would require the judicial branch of the Government -to substi-
tut;,fts judgment for the judgment of the executive branch in an area where the
.. i.
executive has long been held to have broad constitutional authority subject to
-yell: limited jtidiciali-review.
r,iL.he Supreme Court's holding in the Waterman case that the Judiciary could
noj view determinations by the Chief Executive in an area where he has special
stated the situation cogently (333 U.S. at 111).
re, 8: ' repit,degt, both as Commander in Chief and as the Nation's organ for
for iign a airsAas available intelligence services whose reports are not and ought
1101 to be published to the world. It would be intolerable that courts, without
the relevant information should review and perhaps nullify actions of the EX3CU-
tiy ?, taken on information properly held secret. Nor can courts sit in camera in
dirir. to be taker! into
Such decisions are wholly confided by our Constitution to the into executive confidences. But even if courts could require full
u 'ru'rei the very nature of executive decisions as to foreign policy is political,
neki
Oiltical departments of the Government, executive and legislative. They are
d.1i? and involve large elements of prophecy. They are and should
be undertaken only by those directly responsible to the people whose welfare ,hey
aOuce or imperil. They are decisions of a kind for which the judiciary has
ne)tlaer aptitude, facilities nor responsibility and which has long been held to
loc) Itng in the domain of political power not subject to judicial intrusion or inquiry."
? '1%e co:lifit 9if, appeals in Dayton v. Dulles (102 U.S. App. D.C. 372) stated with
Te-ipeet -Co this issue (a matter not reached by the Supreme C.mrt in reversing on
.., .
Otpg gr.ounds) that:
" ,bvj?ously a determination that a certain person wants to go abroad for the
pa. dse Of advancing the Communist movement may depend upon information
gleaned from diplomatic or consular sources or from other sources abroad impor-
taiCto 'Our well-being. Determinations made by executive officials upon such
inicgr,natipn? have traditionally, and by virtue of constitutional provisions relating
tii( gto, been lodged in the Executive, and the confidence in which he has received
? th mfgrmation has never been violated or even questioned by the legislative
'diciail brandies of the Government."
ore:, recently the court of appeals in Worthy v. Herter (D.C., June 9, 1959)
eted that: -
_ udgroonf on what course of action will best promote our foreign relations
hps. been entrusted to the President, not to the courts * * *. The courts are
thOeast, `able, of all organs of government to make such evaluations, and they are
wl - y without authority to make them."
Ti.e Dpartment feels that there should be full disclosure of information and the
es' thereof, except where such disclosure would adversely affect national
IV or brew) affairs to a substantial degree. In such instances, if a passport
enied, the applicant should be furnished a fair r?m?f the information in
r tt he may have adequate notice of the matters involved and an oppor-
y Li rObidthern. The extent of and reasons for the nondisclosure should be
ded_iiiii the findings of the Secretary of State. The court should have authority
otertdile? litetler 'the findings based on the open record are supported by
tpintial eiviiKenee in that recdrd, and whether the findings based on a r?m?
pciQrce are supiported by the resume. However, the Department feels that
.P. the_ Secrery of State asserts that he cannot spread certain information on
sipen recoil; explains with as much particularity as possible the reasons he
Ot-do so; furnishes a fair summary of the information; and makes specific
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finelings of fact; the courts should rely on the Secretary's integrity and accept
his statement. - ? -
'wT4 Department fully agrees that any comprehensive passport bill should
coltain a provision similar to title IV of H.R. 8329. It is desirable, in the Depart-
ment's_opinion, to have specific statutory authority for the imposition of area
reetrictioAS, on the validity of passports generally; and to clarify by express
Statutor7 provision the Executive's power to restrain the travel of citizens to
appropriately designated areas.
The Department believes that title IV should provide expressly either that the
aecretary of State exercise the authority therein, or that the President may
delegate such authority to the Secretary of State. However, it would pose no
saiOus problem if the Congress decided to vest this authority in the President.
Div Department would have no objection to a requirement that the reasons
for area restrictions be published. However, it would not, in the Department's
opinion, be consonant with the orderly conduct of foreign relations to require
legislative authorization to maintain an area restriction in force for more than
1 year.
I hope that these comments will be of assistance to your committee in its
COnSideration of passport legislation. If your committee or the staff desire
information, the Department would be glad to comply with the request.
The Bureau of the Budget has advised that it has no objection to the submission
of this report.
Sincerely yours,
Mt. ilWii414,mq D. MAco.mPE41,Jr.,
ir? ? 4860:41:2403.q.cretflrY-
;-ii,Jt
1. .1. ? f..
CI)!L.i,(.',DgrATUMENT OF ,THSTICE,
,Washington, April 16, 1959.
Hon. THOMAS E. MORGAN,
Chairman, Committee on Poreign Affairs,
House of Representatives, Washington, D.C.
? ?, ?
DEAR CONGRESSMAN MORGAN: This will refer to your letter of March Z _L
O, V?OV,
to the Attorney aeneral -together with copies of various bills relating to passport
control as to ,which you invited his comments.
'Qf the bills you enclosed, H.R. 55, H.R. 1010, H.R. 5575, H.R. 5948, H.R. 5951,
5954, and H.R. 5956 are substantially the same. For purposes of convenience,
IIyCofilinebt made respecting H.R. 55 should be treated as applying as well to
the pimilar bills mentioned above.
Eirat, in our opinion, n.R. 55 is too narrowly restricted to Communist activities.
fIt would be less vulnerable to attack if its base were broadened to include reference
to the security and the conduct of the foreign relations of the United States. This
inly be accomplished by making minor word changes as follows:
'Section 5, page 2, line 4: Add after "United States" the words: "and to the
-COVdu,ct of the foreign relations of the United States."
' Section 5, page 2, line 15: Add after "United States" the words: "and seriously
lin airs the conduct of the foreign relations of the United States."
ection 6, page 2, line 24: Add after "United States" the words: "or seriously
pair the conduct of the foreign relations of the United States."
Section 7 authorizes the Secretary of State to require an applicant not merely to
affirm or deny under oath his membership in the Communist Party but also `to
State the circumstances of any such membership or to state his activities in sup-
port of the international Communist movement."
It appears to us that the words in quotes above contemplate an inquiry too
sweeping in scope and that adequate protection would be afforded to limit the
affidavit to membership in the Communist Party. Moreover, the meaning of the
words "supporter of the international Communist Party" may be open to the
challenge of vagueness.
Accordingly, it is suggested that in place of section 7 in H.R. 55, there be sub-
stituted the following language:
"Each applicant for a passport, its renewal or extension, shall be required to
subscribe to and submit a written statement duly verified by his oath or affirma-
tion whether he is or has been within 111 years prior thereto, a member of the
_
Communist Party."
Although section 8 of H.R. 55 requires a hearing before denial of a passport, no
Specific requirements are spelled out. It would be preferable to establish in greater
detail the notice and hearing procedures, as was done in the administration proposal
. ' ?
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oh ItaSsports submitted to the Congress last year and introduced as S. 4110 and
Bysublecting passport denials to judicial review on the record in the district
-cbu] tS of the United ?14ttes, without any provision for maintaining certain infor-
WACO confidential, section 8 ,of H.R. 55 easily lends itself to the interpretation
Vaal Congress is requiring a trial-type hearing in which there is full disclosure and
full right of confrontation. In other words, unless the State Department were
will us to disclose its derogatory information, a passport could not be denied.
By virtue of this requirement, the grant of authority to deny passports on the
gt.di titls provided in H.R. 55 would be of little practical effect in the present
?eirei rp'iStances.
Seetiton?8 aim provides that judicial review shall be in the district courts of the
ViaLed States. This probably means the district in which the applicant resic es.
Sect ion 8 does not state against whom the action should be brought or the time
ba which actimmay be brought; the standards to guide the court in its review;
or ie relief which the court may grant. It would be desirable for review to be
limi ed to the U.S. District Court for the District of Columbia so that the work
Of e Department of State and its officials who might be involved as witnesses be
disrupted as little as possible. In this connection, we think section 304 of HR.
13318 should be followed,
'Itis suggested that section 0 be added as follows: "The Secretary of State is
autt orized to prescribe regulations to carry out the purposes of the act."
If it is ntended that the Adrninietrative Procedure Act shall be inapplicablc, a
statitment?to that effect should be included as follows:
provisions of the Administrative Procedures Act as amended (5 U.S.C.
ch. 9), shall not apply to proceedings under this title."
Copsideratiou should be given to including a separability clause and effective
date la the bill. Also consideration should be given to including a provision that
the ,Ct shall continue in foree until such time as the Congress or the President shall
dete 'mine and declare that the activities of the international Communist move-
men are no longer such as to require the application of the act, or until the ter-
minbtion of the national emergency established by Presidential Proclamation
o. 2,914, December 16, 1950 (64 Stat.)
:There rernairitSfQcoIlaiaeration H,R. 2468 and 54 which are more
elabt irate than H.R. 55 and related bills.
In general, in the case of these bills also, the administration bill of last year,
.H.R 13318, would appear to represent a preferable approach to the problem.
'More,specifically, H.R. 2468 has broader standards than H.R. 55 to the extent
that reference is made to the conduct of foreign relations. It could be further
strei gthened by including as an additional basis for denial of a passport that the
ersod's activities abroad would be harmful to the security of the United States.
iYLoro.yer, H.R.2468 contains no provisions for a hearing and other procedural
reqtfrernents, which in our opinion should be included in a passport control bill.
H R. 5455 is subject to the objection that it is substantially limited to Corn-
mun'sts and persons affiliated with communism. Under it, like H.R. 55 and re-
!stet bills, denial of passports would not be based upon the conduct of foreign
relations. While the passport procedures set up in the bill would appear to per-
Tait he use of information received from intelligence sources, it is not explicit on
that score. In our opinion, the hearing procedure set forth in the administration
bill, H.R. 13318, 85th Congress, 2d session, in all respects provides a better basis
for c)urt test.
'One Bureau of the Budget has advised that it has no objection to the sub-
miss:on of this report.
Sincerely,
, l'AUL A, SWEENEY ,
Acting Assistant Attorney General, Office of Legal Counsel.
Hon. :TtiontAs B. MoiteA,7_,
Chafringn, Committee on Foreign Affairs,
How e of Representatives, Washington, D.C.
DE 11.13, Ma. CHAIRMAN: This is in response to your request for the views of the
Deprrtment of Justice concerning the bill (11.R. 6537) a bill to provide for the
denh 1 of passports to persons knowingly engaged in activities intended to fur-
ther ,he international Communist movement.
DEPARTMENT 01` JUSTICE,
;Washington, June 2, 1959.
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VISSPOliT LEGISLATION 183
Since H.R. 6537 is identical to H.R. 55 as to which detailed comments were
subpitted to you on April 16, 1959, it would be appreciated if you would please
Cong.14.er the comments respecting H.R. 55 as equally applicable to H.R. 6537.
The Bureau of the Budget has advised that it has no objection to the submis-
sion of this report.
Sincerely,
PAUL A. SWEENEY,
Acting Assistant .4ttorney General (Vice of Legal Counsel
Pp. ;
Hon. TnomAs E. MORGAN,
Chairman, Committee on Foreign Affairs,
Huse of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: This is in response to your request for the views of the
Department of Justiee Concerning the bill (H.R. 7006) "to provide for denial of
passportS to supporters of the international Communist movement, for review of
passport denials, and for other purposes."
In xny opinion, the revised draft would be strengthened considerably if section
2(a) were not restricted to Communist activities, and if its base were broadened to
include language expressly tying the authority to deny a passport where harmful
to khe secnrity of the United States and where it would seriously impair the conduct
Og?the foreign relations of the United States. While section 2(a) refers to the
findings of section 1 which contains the broad base, the core of the bill remains
the denial of passports to those engaged in activities for the purpose of furthering
the international Communist movement.
Consideration should be given to having the provisions of the proposed act
continue in force "until such time as the Congress or the President shall determine
and declare that the activities of the international Communist movement are no
longer such as to require their application," rather than to have the act depend,
as it 40eS u section 4, upon continuing in force the proclamation of national emer-
g9ncY issued upon the initiation of the Korean conflict. It is possible that the
liRrean conflict may be resolved in the future and the Presidential proclamation
of Decemher 16, 1950, may be revoked, but the peril created to the Nation's
C
security by the ommunist comspiracy may not be lessened in any way.
It may be noted that the bill is aimed solely at individuals affiliated with the
Communist movement. Consideration should be given to the question as to
Wllether travel by subversives who are not affiliated with the Communist move-
Ment should not be restricted, too.
The Bureau of the Budget has advised that it has no objection to the sub-
mission of this ,report.
Sincerely,
? I'DEPARTMENT OF JUSTICE
Washington, D.C., June 17, 1959.
PAUL A. SWEENEY,
Acting Assistant Attorney General, Office of Legal Counsel.
[From the American Legion Magazine, September 1959]
PASSPORTS TO TROUBLE
(By John W. Hanes, Jr., Administrator, Bureau of Security and Consular Affairs,
U.S. Department of State)
I don't know exactly how many members the Communist Party of the United
States now has. The estimates run from 10,000 to 20,000. But whatever the
number, each and every party member as of today can obtain a passport from the
Department of State. The exceptions are those rare instances in which the ap-
-plicant happens to be ineligible for some other reason, such as being a fugitive from
justice.
Since this dangerous loophole in our laws was shown to be open last year, many
notorious American supporters of the Communist movement have traveled abroad
to campaign against us on the world battlefield. Their names and their activities
are matters of public record.
What do they do when they get abroad, these "Americans" now happily travel-
ing on their U.S. passports? Let James Jackson, secretary of the national corn-
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14 PASSPORT LEGISLATION
njttce of 'Eh Corrnnunisi Party, U.S.A., give part of the answer in his own words.
p nrapt7 OScOW this past February at d there addressed the Communist Party
Sciiet Union." "According to Radio Moscow, Jackson said; "Communists
'the vM over will Welcorne the ideological contributions and profound insight in
ontriiele-Khrtishch-eY's report for the solution of a number of problems of the
struggle for peace, 'democracy, national freedom, and socialism * * *. We are
buil ling?our party in the firm principles of Marxism and Leninism * * *. On the
pew sipn :61 the 21st Congress, the Communist Party of the United States extends
It lairndseTittiteinal greetings to the great CPSU which, boldly applying and
day rTo:ping the principles of Marxism-Lerinism, is leading the Soviet people to
eye ?iteyrsocialist accomplishments and onward to communism.?
A t present we are forced to issue passports to people such as these?passports
whic,h ,n-ot only perrint, but greatly aid, their travel to and in foreign countries.
Th( ir_paS.gpO'rt clothes them abroad with all the dignity and protection that our
Go?Trntnent affords U.S. citizens. And yet the dedicated purpose in life of every
Coi nmunist is to destroy our Government and our freedom.
Eurely,this situation is a perversion of the liberty which our Constitution and
.!trin laws are Meant to guarantee us.
Oui-oWn Government has long recognized how important American passports
M-otethe Coninitirat ccifispiracy. The Communist underground has for years
maintained workshops devoted to the wholesale forgery and falsification of pass-
1661 fs- arid other documents. However, genuine American passports were par-
t?rized at intelligence headquarters in Moscow, according to a former chief
'of Yid intelligence in Europe.
i ?tlfe-Spanish Civil War Communist leaders assiduously collected the pass-
eTheNidral thousand Americans in the international brigade, and the bulk
chose pssports eventually found their way to Moscow for alteration and pos-
gine use by Soviet agents. In fact, so many American passports were collected
frc in this source that, as a countermeasure, the U.S. had to replace every outstand-.
lnpasspOrt in the world with a new document.
11 members of the national board of the Communist Party, U.S.A.,
befictend of conspiring to advocate the overthrow of the 'U.S. Government
,f6iCe 'iiiolence. In 1950 American Communists were actively supporting
-eneihy pOsition in the Korean war. Congress, recognizing these dangers,
-pEssid the Internal Security Act and found that: "* * * travel of Communist
itarribers, representatives, and agents from country to country facilitates coin-
Inillication and is a prerequisite for the carrying on of activities to further the
puiposes Of the Communist movement."
pngres? also said that Americans who participate knowingly in the world
CImmunist movement "* * * in effect transfer their allegiance to the foreign
ectIntrin which is vested the direction and control of the world Communist
in Vernent."
Yet allegiance is the touchstone of the right to a passport.
The Secretary of State, charged by law with the issuing of passports, could
h trdly have ignored these congressional findings. In 1952, Secretary Acheson
issued regulations establishing the criteria for refusing passports to Communists
a tti Cornmffitist supporters.
The publication of these regulations triggered a violent attack by the Com-
munists through their press and through the courts, utilizing every device of law
and procedure. Their clever campaign gained respectability because many
s:ncere persons who have no sympathy whatever with communism became
disturbed by the argument that the regulations permitted the Secretary of State
arbitrarily to restrict a citizen's rights. These were the regulations which in 1958
thh Supreme Court struck down by finding that they had not been sepcifically
a ighorned by Congress.
-I think it might be well to put into perspective exactly how these regulations
drated'and'W"-hat their practical effects were. To do so, I should like to present
enatrsties on the numbers of Communist supporters who were refused pass-
its 'finder them and the number of Americans who received passports. For
lhe 2 calendar years preceding the Supreme Court's decision (1956 and 1957)
1;41:15;600 Tiaa?f.bits were issued or renewed. During that same period the Pass-
port Office limited the passport privilege of 51 persons because of Communist
- lOotinds. Every one of those persons had access to an elaborate and impartial
eal mechanism, and many of them utilized it. From the time this mechanism
sh up in 1952 until the Supreme Court's decision in June 1958, the Secretary
o State--and it must be the Secretary personally?refused passports to only
persOns'iin Conaminist grounds after full hearings. A number were granted
sptlits after hearings; some others, of course, did not contest the Passport
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Qffice'? denial, add undbubtedly many active Communists nevei ere o ap-
ply at all; knowing they would be Scrutinized and required to make a sworn state-
m rit about, Communist Party membership.
' Vitye it is important to rethm
eber these figures when statements are made
abon .t 1q, arbitrary" action of the Department, in passport matters.
' "Much of the Meaning of even the very few but very important refusals became
academic, of course, in June 1058, when the Supreme Court's ruling was handed
down., Since then, as we anticipated, there has been a flood of applications from
p-ergens with records of Communist affiliations or activities. Some of them had
previously been denied passports, but many had never previously applied. Many
knOw a great deal about, but the Department of State is no longer in a posi-
tion even to inquire, much less investigate, whether any such applicant is a Com-
muNst Party member or how dangerous he may be. There is quite a difference,
for exaMple, between a known courier and a relatively harmless fellow traveler.
This:flood of applications continues today. The Communists are getting pass-
ports while they can. Naturally, in all these cases the Department's previous
policy has had to give way and passports have been issued to all these people.
Immediately following the Supreme Court decision, Secretary Dulles sent
Congress a draft bill to provide the specific legislative authority which the Court
hel4, was lacking. He wrote to the 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 * * *
[This] 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 siibkdinate us to its will. The issuance of U.S. passports to supporters of
that rnovemen1 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."
"reisdent Eisenhower urgently endorsed the legislation, saying: "Each day
and week that passes without it exposes us to great danger."
What must such legislation do?
.Azain, the President has expressed it well. He said:
,Aprcising these necessary limitations on the issuance of passports, the
executive branch is greatly concerned with seeing to it that the inherent rights of
Ameriqan citizens are preserved. Any limitations on the right to travel can only
be tolerated in terms of overriding requirements of our national security, and must
be ubject to substantive and procedural guaranties."
imrly stated, what we need is legislative authority which will allow the
S,ecretary. of State to deny passports to hard-core supporters of the international
Comupmst movement. We believe such denial should occur under due process
(f4 I w, including judicial review.
We do not seek statutory passport authority to stifle criticism of this Govern-
ment or its policies. We do not believe that the passport should or can be used
to restrict the movement of people who hold political, social, or economic opinions
which are not or the orthodox American variety.
We do not seek or want authority to deny passports to any whose travel or
i.yetivity abroad is merely an embarrassment to our country. I believe that the
T.Tpited States is strong enough to survive embarrassment if we must.
Neither do we wish to penalize loyal Americans who at one time, before the
nature of the Communist conspiracy became as crystal clear as it is today, may
have sympathized with Communist theories or even belonged to Communist
i
organizations n this country.
All we seek, and what I feel we must have, is the capacity to protect ourselves
by denying passports to those relatively few hard-core, active Communist sup-
porters who are not ordinary American citizens and whose travel abroad consti-
tutes,a danger to the United States.
In the case of passports "due process" means that the Secretary of State cannot
be arbitrary or capricious but must have sound reasons for restricting an indi-
vidual's right to exit. It means that he must tell the individual the reasons for
his action in sufficient detail and under such circumstances that the individual
may have an opportunity to show the reasons untrue'. Such circumstances
should include a, full hearing and review within the Department of State and ulti-
mately, of course, the right which now exists to appeal to the courts.
There is one other essential of passport legislation which is much misunderstood,
and that is the necessity for the Government to be able to utilize confidential
information as part of the basis of its decision.
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caq saLbluntly that any legislation concerning denial of passports to Com-
munist suppirters would be meaningless and would not achieve any purpose if it
prohibited the Government from utilizing confidential information. Almost
'?d,thoute.xception, dangerous cases involving communism also involve confidential
information and, investigative sources. Indeed, the more recent and meaningful
otkr information lie, the more likely it is that it has come from current confidential
tmestigative sclurces within the Communist movement.
The Government ha a legitimate and overriding interest in maintaining the
igity of these investigative sources and methods. If faced with the unpalat-
p choice ,of exposing and thereby destroying a valuable and continuing source
ofinformation about the 'activities of the Communist conspiracy or issuing a
paSepdrt to an individual member of that conspiracy, the Government las no
alernati.ve but ,reluetantly to issue the passport as the lesser evil.
'Some, people feel that the use of confidential information in such cases means
Usjijg vague and unsubstantial gossip or allegation that will not stand the light of
day. This is _nonsense. In the first place, if one is prepared to believe tint the
Secretary of State who must personally decide passport appeals cases, would actu-
aly base a considered decision upon anything less than substantial and corrobo-
rated evidence, then one must believe that our country's security is in far greater
ch,nger than from the capricious denial of passports. In the second place, confi-
d3atial information is almost always a small part of any total case, although
usUally essential because of the clear proof it provides. Most of every case can
b?, fully and publicly disclosed.
eyond this, however, we believe, based on a careful review of the Communist,
cases Nq haye had in the past, that in every case the Government can provide a
fci.r.summary of even the confidential information, both to the applicant and to
tlte, courts. , Such a ,fair summary would include all the pertinent reasons for
'Which the passport is denied and would exclude only those details required to
p -otect confidential sources of information.
I would have no objection to any legislation requiring the Government in all
entes to'provide such a fair summary of the content of any confidential information
relied upon.
One other thing should be clear. What we are talking about is not a criminal
p ?oceeding in which someone is being tried or punished for past actions. Instead,
it is an administratiye process which attempts to predict someone's future course
of action, if he travels abroad, and to balance its potential danger to the United
Sates against the desirability of facilitating the travel and giving him protection
while he is performing it. 'These are services which the Government should
ql tend to .it? pitizens, but they are not inviolable rights which the individual can
de and,. 114 platter what th.e menace to society may be.
Ven having said this, however, much about this subject remains repugnant to
, Americans. The use of "confidential information" in any kind of proceeding,
jt clicial or not, and indeed any sort of governmental restriction, whether on
travel or passports or any other activity of the individual?these are things which
Will never like and which, I hope, we never accept apathetically.
Here, however, I believe we must face squarely one fact which is inherent in
ci cry aspect of the subject of passports and travel restrictions: That is, that our
Nation Although not technically at war, assuredly is not at peace. We face,
almost on a daily basis, actual threats to our national security and to our very
tstence which very clearly are the equal of any threats we have ever faced in
peace or war. One need only think of the implications of Berlin today cr the
Cc tintless crises of the past decade to realize how perilous our situation is.
This uneasy condition of "not peace, not war" is something entirely new to our
operience. It places a tremendous strain upon our governmental and constitu-
tional inetitutions, for it blurs lines which had previously been considered sharp
kr.a-elear.
If used to be that when our Nation was not at war it was truly at peace. Certain
rules o'itainpd and governed our lives in peacetime. These rules were eVOlved
a Century and a half by and for a free people who since the earliest days of
tli p!.r history had been faced by no serious external threat to their freedom or
th p.n. national, eAstenee. Occasionajly war came, and there was a clear line of
tiEraareation.. War was declared and waged with certain formalities. During
Wartime certain special rules obtained because the Nation temporarily required
the subordination of indiyidual desires to the overall national effort. These
special rules, while repugnant, were considered tolerable for the limited duration
of the war. When the war was over, other prescribed formalities occurred; the
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Nation was at peace again, and the special wartime rules, which were usually
incompatible with complete constitutional freedom, were dropped.
This sharp demarcation between peace and war does not exist today. Inter-
national communism has thrown away the rule book. It does not consider itself
ever at peace. It is always totally mobilized to advance its aim of world domina-
tion. It does not recognize any of the accepted rules of international or legal or
human conduct except when, and only for as long as, those rules may suit its
purpose.
This situation creates an unprecedented threat both to our liberty and to our
very existence. Our response must include a recognition of these changed circum-
stances, or we risk the loss of existence and liberty together.
The threat, moreover, will continue to exist, perhaps for many years in the
future. This makes it imperative that whatever response we do adopt must be
one that we can indefinitely sustain and without endangering the strength or the
integrity of our basic and cherished institutions which we are seeking to protect.
I believe that such a response is possible to a free people. I believe that our
institutions?our Constitution, our laws and our form of government?are strong
enough and flexible enough to adjust to these changed circumstances, just as they
have adjusted to changes in the past.
I have tried to illustrate what I mean by suggesting, in the limited but important
field of passport policy, a procedure which meets these criteria. It meets, I
believe, the most pressing reauirements of national security. It does so by law
and under the Constitution. I think, for the reasons I have given, that adequate
passport legislation is essential to our security. But let me be very clear. I do
not believe that such legislation will eliminate all the dangers which we face from
the Communist conspiracy or even all those which it is intended to counter.
I do believe that adequate passport legislation is a necessary and integral part
of the screen of weapons we have raised against the conspiracy and that it will
seriously cripple the effectiveness of that conspiracy.
I do believe, finally, that all our weapons together, wisely and effectively used,
will contain the internal menace of the Communist conspiracy within tolerable
limits while our military strength deters its worldwide menace and our foreign
policy seeks to replace its threat with a just and durable peace,
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