PASSPORT BILL BUCKS BASIC AMERICAN RIGHTS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP61-00357R000500330001-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 27, 2016
• Document Release Date: January 6, 2014
• Sequence Number: 1
• Publication Date: July 13, 1958
• Content Type: OPEN SOURCE

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Declassified in Part - Sanitized Copy Approved for Release @50-Yr 2014/01/06 :
CIA-RDP61-00357R000500330001-0
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Declassified in Part - Sanitized Copy Approved for Release @ 50-Yr 2014/01/06: CIA-RDP61-00357R000500330001-0
Ort.. Bill
By Joseph Paull'
Assistant to the publisher of The
Washington Post, Paull is a mein:ber of
the District bar and formerly .was admin-
istrative aSsistant to Chief Judge Bolitha
J. Laws of District Court.
WTHEN -PRESIDENT EISENHOWER
VV asked for new passport legisla-
tion last week,. by implication he was
inviting Congress to attempt an ex-
tremely delicate legal operation. , ?
In effect, his request was that Con-,
gress give the State Department au-
thority to limit the traditional liberty
of Americans to travel abroad. To write
such a law that will be declared consti-'
tutional is a ?formidable task. ?.
Involved on the one hand is the Na-
tibn's right to protect its security and
to conduct its foreign affairs without
interference. On the other is the citi- .
zen's right to go as a free man wher-
ever he pleases.
Anglo-Saxon Roots ?
rpHE .STATE DEPARTMENT has
1. long ccintended that it ,possesses
the broadest powers' over the issuance
of passports. Its view 'is supported
by many statements of Presidents, At-
torneys General, Secretaries of State,
judges and legal scholars.
But .of late, in case after case,- the
Department's passport poficy has been
buffeted and criticized severely in the
courts. Only last month the Supreme
Court ended 'all hope that ,without an
authorizing statute the State Depart-
ment could act as sole judge of the.
fitness of an; applicant for a passpo t
The right of an orderly citizen not
involved in crime to travel in peace-
time where he will is basic in 'Anglo-
Saxon law. It was set out fully in the
Magna Carta, which states:
"It shall be lawful to any person,
for the future, to go out of our king-
dom, and to return, safely and securely,
by land or by water, saving his allegi-
ance to us, unless it be in thfie of war,
for some short space, for the common
good of the kingdom; excepting prison-
ers and outlaws, aecording to the laws
of the land, and of the people of the
nation at war against us
. .
Still an Emergency
rr,iflI? WAS, in, substance, our law,
at least until 1941. Since, then,
vel--abroad hat r"equired,officiar
lidission based on the principle that the
citizen may be required to give up
some of his peacetime rights in time
of national emergency.
For pass1Port- purposes, the presiden-
Bucks Basic American
tial proclamation of a national emer-,
ge.ncy is still in force. It is illegal for
Americans to eravel overseas without
a passport. The State Department con-
tends that it must have discretion
whether to issue any passport.
In his recent message on the subject
to Congress, President Eisenhower 'set
out the broad reagons. He said the ,Gov-
eminent needs power to deny passports
where "their possession would serious-
ly impair the conduct of foreign rela-
tions of the United States or1 would be
inimittl to the security of the United
States."
Sweeping Affirmation
THE DIFFICULTY arfses when the
. general principle of national gecti,
yity is pitted against the Bill of Rights
in a specific case.
The most recent and decisive case int
volved Rockwell Kent, the artist, and
Walter Briehl, a ptychiatrist. Both had
,been denied passports after they re-
fused to :tell the State' bepartment
whether they had ever been Conn-
monists. They said the inquiry was an
irrelevant intrusion into their political
beliefs and associations. ?
In a 5-to-4 decision, the Supreme Court
agreed with' Kent and Briehl. Writing.
the majority opinion, Justice William
0. Douglas concluded: ;
'To repeat, we deal here with a con-
stitutional right o,f the citizen, a right
which we must assume Congress will be
faithful to respect. We would be faced
with important constitutional questions
Were we to hold that Congress.. .. had
given the Secretary (of State) authority
to withhold passport g to citizens be-
cause of their beliefs or associatiohs.
Congress 'has made no such provision
in explicit terms; and absent one, the
Secretary may not employ that stand-
ard. to restrict the'citizens' right of free
their activities abroad would impair our
foreign relations or security. .
The bill makes a finding that the
"international Communist movement
seeks everywhere to thwart. United
'States policy" and is a "grave peril."
Eligibility may be denied lo anyone,
Communist or not, 'who "knowingly en-
gages in or has engaged, within 10 -
years prior to filing the passp-ort appli-
cation, in, activities in furtherance of
the internatiOnal Communist move-
ment." .
, .
If- there is evidence warranting the
conclusion of knowing engagement in
these activities, the burden is pn the
applicant to disprove it. _
The applicant must state whether he
has been a Communist Party rnern'ber
in the past 10. years or a supporter of
the international Communist move-
ment. .
A disappointed applicant has the
right of review before the Passport
Hearing Board. But he cannot require
the State Department to 'produce any
information which is deemed likely to
have a "substantially" adverse . effect
upon security or foreign affairs. He gets
what the. Board certifies is a "fair res-
ume" of the evidence.' The Sec-rotary
of State makes the ,final departmental
determination. .
There' is provision for a review by
the United States District Court for
the District of Columbia, but the re-
viewing judge there will not be given
any secret information and must rely
on the "fair resume" of the Board.
Safeguards Are Scant
DERHAPS .THIS LA.W. can work
'without injustice, but, there is no
assurance that it will. There are scant
safeguards against actions of State
Department officials who someday
might think their perSonal., ambitions
movement."_1 called for an eXcessive zee/ for se- '
cUrity, and a disregard . citizens'.
Not Qnly Communists rights.,
THE DECISION'S SCOPE was so ' There is little in the way of a stand-
sweeping that the' State Depart- arc' of conduct Which will deprive
ment.decided to try to do with legis- ' an applicant of a passport. No guides
lation what the court had said surely, ',indicate what is or is not "inimical
could not be done without it. to the security" 'or what .might "sen.
The bill which the . Administration ously impair" the foreign relations of
drafted and sent to the House and the Nation.
Senate is designed, to validate the prin. ? Supposing the, appointment of
ciples behind the regulations and pro- venal Secretary, there is nothing to
cp..dures which the State Department _prsyclit fsolp finding on the basis .
-has- ,rtitee'iafeety in the 'absence of- .of secret, evidence that an it-m(5cent
statute. After_ setting forth the power action in accord, with similar '.attion -
to deny passports to those involved in by the Communists constituted the
criminal cases, the bill declares inch- basis for denial of a passport. Sub-
gible those "as to ?whom it is deter- sequent history often changes the judg-
Frances G.\Knight, director of t1) Passport Office,?:ie
shown at her desk in the grouP 's relatively new guar-
The Senate ?For`eigri Relations Com-
mittee, has, scheduled hearings on the
bill Wednesday. Any legislation per-
mitting undisclosed inforrnents and.
synopsized evidence is due to get close
scrutiny:
Frances G: Knight, the present di-
rector of the Passport Offide, 'inherited
many of the 'problems -involved. Al-
though not nearly as frequently as' in
the past five years, the' protocol-sen-
sitive State Department has .periodical-
ly found sticky situations when it came
to passports.- ?
For example, Prof. Louis Jaffe notes'
in the quarterly Foreign Affairs' that
near the end of the 19th century the
consul at Chef* refused paisports to
two "doubtful ladies" who described
their-,purpose ais? "tourists, stay in. Port
Arthur indefinite." The State Depart-
ment reversed him, stating without
gallantry that the ladies were regulat-
able by the laws of Port Arthur. A hit
earlier there was a problem whether
ters. ,5he inherited many of the present passport diffi-
cultiee from as far back. as the 19th century.
pofygamy should be 'permitted to
. spread the good word abroad.
In recent 'year's, Anthur Miller
ended his,Passport difficulties when
In recent years, ,Arthur Miller
to London was his quite-American
' desire to spend his honeymoon, with
Marilyn Monroe. The State Depart-
'ment gave him six months to do, it.
Linus Pauling, the scientist, was
twice denied a passport, but when he
won tA Nobel Prize the State Depart-
ment` let him go overseas to accept it.
Otto Nathan, Einstein's executor, got
his passport, but only after a Federal
judge severely. rebuked the State be-
partment for its, conduct in having
denied it to him.
These have been embarrassing les-
- sons .for, the .Nation. ?
Conceding the necessity of some
passport legislation during ;emergency
periods, the question remains as to
what the proposed' law would accom-
-plish. Communist couriers need no
mined upon substantial grounds" that. ment we make nylon the artinne nf men Mnrmnne rsrAnnhiner +ha hancaife nocennrte if thou hue dinlomatic' properly before the court.
Declassified in Part - Sanitized Copy Approved for Release @ 50-Yr 2014/01/06: CIA-RDP61-00357R000500330001-0
pduches. Scientists privy to national
secrets are screened intensively in,
security' checks and thus would ? hardly
be. denied, passports. Noisy trouble-
makers can attract as, mueh, inter-
national attention 'with a speech in
? Chicago as they can, in Warsaw. -
? Nonetheless, disloyal Americans, with
passports could harm the Nation, The
? Secretary' of State. has an obvious duty
i to try to prevent' this. But can he, with-
out trampling on constitutional rights?
The courts cannot accept anything less.
r From its wording, Justice 'Douglas'
opinion was surely not a ,cordial
vitation to the Administration to seek
legislation to maintain the State ..De
pertinent's position. It may .well haye,
been a waining not to try it. j
?The department lawy,ers? inighti get
encouragement', however, from the
fact that four justices voted to uphold
the Kent and Briehl passport denials.
. Only one more justice need be per-
suaded once the constitutional issue is,