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it; and therefore, in the pursuit of our foreign relations you should exercise that power.
I think that in a government of checks and balances we should relieve this Secretary of State of such absolute authority.
I might add the speculation: I doubt that the Secretary of State would be very embarrassed, indeed he might feel relieved, not to have and to be called upon to exercise an absolute authority to deny passports.
Senator O'MAHONEY. Have you examined all the cases ?
In how many cases has the State Department been upheld by a court?
Mr. ENNIS. There is one case, the last case which I believe is now on appeal, the Dayton case, which went up to the court of appeals and they directed that the Secretary give a man a hearing and make findings. The Secretary of State signed findings denying him a passport and the district court said that on the basis of those findings, and the administrative hearing which resulted in those findings, that the Secretary had fairly exercised his discretion to deny a passport and upheld the Secretary. That case, I believe, is on appeal.
The other cases, the Secretary has lost them because he has brought into count the proposition that he does not have to give any hearing and of course the courts have instructed him in 4 or 5 cases to give hearings.
Senator O’MAHONEY. Did this last case involve any question of subversive activity, the one that is now on appeal!
Mr. Ennis. Now, yes; I believe the Dayton case does involve some affiliation with some Communist organization or some Communist activity.
Senator O’MAHONEY. Mr. Slayman, the staff has reviewed all of the law in these cases, has it not?
Mr. SLAYMAN. Yes, sir.
Senator Ervin. Mr. Ennis, in case of an applicant for a passport who appeals from an adverse ruling by the Secretary of State, he is necessarily at a very bad legal disadvantage since the statute vests the authority in the Secretary. He goes to court and almost has to make out a case of arbitrary and capricious conduct on the part of the Secretary of State.
Mr. ENNIS. It amounts to that, Senator.
Senator Ervin. The courts are very reluctant to interfere in administrative procedures where discretion is vested in the administrative officer.
Mr. ENNIS. But this situation is so extreme that both the district court judges here and the court of appeals have felt it imperative to point out to the Secretary of State that this is not simply the conduct of foreign relations in which he and the President are supreme, but this involves a personal right in the due process clause of the fifth amendment and as Judge Fahey says, they have to be accommodated.
All of these cases have to be brought in the District of Columbia because the Secretary of State may be sued only here. This is a great burden on applicants for passports living elsewhere to retain counsel and proceed in the District of Columbia.
I think any examination of a half dozen of these cases will convince you gentlemen that this is a rather inefficient way to establish the policy of the United States, and that it is time that Congress looked at this complete delegation of authority which the Secretary claims in this matter and determine whether we have not reached a stage in the development of administrative law that all of our experience in administrative law, substantive standards, procedural standards, cannot now be applied by the Congress to the problem of the issuance of passports to American citizens in this international age of travel where so many of us think nothing of going to Europe or elsewhere in the world for a matter of a week or two. And a passport, of course, is essential to exercise that right.
May I ask that my very short formal statement be introduced into the record ?
Senator O'MAHONEY. I was about to say that that would be done. It will be printed in the record as though you had delivered it. We apologize for the interruptions which we made butMr. ENNIS. I always find them very helpful, Senator.
Senator O'MAHONEY. They did not impede your presentation at all, Mr. Ennis. Thank you very much. Off the record. (Discussion off the record.) (Mr. Ennis' prepared statement follows:)
TESTIMONY OF EDWARD J. ENNIS, GENERAL COUNSEL OF THE AMERICAN CIVIL
LIBERTIES UNION ON PASSPORTS AND RIGHT TO TRAVEL
The American Civil Liberties Union, a nationwide private organization devoted to the defense of all the civil liberties of all the people, for many years has been urging upon the Department of State that both its policies and its procedures restricting the issuance of passports improperly and unnecessarily curtail the important right of freedom of international travel which should be considered as the inviolable right of every United States citizen.
In past years the denial of the right to travel abroad by denying a passport has been largely on the political grounds of current or past affiliation with some Communist or Communist-affiliated organization. Usually the denial of a passport affected only the rights and convenience of the applicant. But recently an even more serious denial of passports was presented by the refusal of passports to American newspapermen who desired to go to Communist China to report on conditions there to their readers here. This denial affected not merely the rights of these newspapermen to pursue their calling but involved a serious curtailment upon the freedom of the press and the right of the American public generally to obtain direct eyewitness reports of conditions in Communist China through the press of the United States. The use of passport denials to produce a kind of censorship on news from Communist China, or from any other country for that matter, makes imperative a scrutiny of the practice of the Department of State in denying passports.
FORMER PASSPORT PRACTICES
Until after World War II the Passport Office took the position that any denial of a passport, except on the ground that the applicant was not a citizen, was a purely executive function not requiring any administrative hearing procedure and not subject to any judicial review. There were no published standards of grounds upon which passports would be denied. The attitude was more or less that the Passport Office knew best and if a passport was denied that was the end of the matter. This rather autocratic attitude was not challenged in the courts and consequently no regulations were adopted providing any hearing procedures for persons denied passports, although administrative law had developed to the point of providing hearing procedures for the denial of less important documents than passports whether they be liquor licenses or dog licenses. The situation changed somewhat when passports began to be denied a few years ago on the basis of past or present affiliation with Communist or Communistaffiliated organizations.
The Internal Security Act of 1950 provides that members of organizations against whom there is a final order of the Subversive Activities Control Board shall be denied passports. The Passport Office anticipated by several years such final orders (by the statute final only after judicial review) by regulations denying passports to present Communists. A final order has not yet been obtained against the Communist Party, and the Communist Control Act of 1954 did not change the requirement of a final order to make this prohibition on Communists more clear. The validity of the regulations in the absence of a final order of the Control Board is now before the Court of Appeals for the District of Columbia Circuit. The contentious Communists have forced the State Department to adopt regulations (22 C. F. R. 51.135) granting them hearings. Curiously enough these hearing procedures are restricted to Communist cases and persons denied passports on other grounds have no prescribed hearing procedure.
Last year the State Department adopted the most extreme step of denial of passports in refusing passports to newspapermen not alleged to be Communists but solely because they were going to Communist China as reporters. This arbitrary and novel censorship, with a strong impact on freedom of the press, rightly aroused all of the newspaper associations and the press uniformly condemned the action as not merely unlawful but actually stupid. The State Department in answer to the barrage of criticism has stated a number of reasons, some of them inconsistent with each other, for its action but to date has not receded from its position of the right of the Secretary of State to deny passports in such a situation. The issue is still sharply presented to both the State Department and to the public because one of the newspapermen concerned, William Worthy, correspondent for the Baltimore Afro-American, went to Communist China without using his American passport and has now applied for its renewal. The passport has not been renewed within the few weeks normally required for renewal and the question presented is whether Mr. Worthy is to be denied a renewal of his passport as some kind of executive punishment for his past trip to China.
The American Civil Liberties Union for many years has steadfastly adhered to the position that freedom of international travel, for which as a practical matter a passport is required, is an important right which should not be denied except possibly in a case where the State Department has substantial evidence that the applicant is going abroad to engage in subversive activity against the United States. The ACLU has repeatedly communicated with the Department of State both in writing and in conferences in an effort to obtain a publication of clear standards for denial of passports and in an effort to restrict those standards to denial of passports only where the most pressing security guards require it.
In a memorandum to the Secretary of State released May 25, 1955, the union stated :
"The ACLU has taken the position that criticism which constitutional guaranties permit within the United States should be permitted abroad, but no such assurance of freedom of speech is given by these regulations. The ACLU recognizes that if the State Department has sufficient evidence to insure belief that the passport will not be used merely for exercising free speech, but, instead or in addition, for the purpose of engaging in conspiratorial activities against the peace and security of the United States, a passport may properly be denied. But these regulations make no provision whatsoever for the exercise of the right of free speech abroad.”
The recent example of denial of passports to representatives of the press should at last focus public attention on a situation which demands correction. It is an anachronism that in this age of increasing international travel a Secretary of State should claim almost autocratic power to deny a passport to anyone whom he believes to be going abroad for a purpose not considered in the best interests of the United States. Many people honestly disagree with the Secretary on what is best for the United States in a troubled world. It has not been possible by private effort to get the Department of State to adopt and publish clear standards for denial of passports or clear procedures for determining compliance with such standards. Congress, and Congress alone, has the power, and consequently the responsibility, to study and solve the question. The denial of passports to newspapermen makes it clear that a solution is long overdue.
Senator O’MAHONEY. Mr. Wiggins, you may take the stand. We are going to try to hurry this through if you gentlemen will be agreeable to it so that we may save your
time and make it possible for the committee members to attend the Senate session.
STATEMENT OF J. R. WIGGINS, EXECUTIVE EDITOR, THE WASH
INGTON POST AND TIMES HERALD, REPRESENTING THE AMERICAN SOCIETY OF NEWSPAPER EDITORS
Mr. WIGGINS. My name is J. R. Wiggins. I am executive editor of the Washington Post and Times Herald and the secretary of the American Society of Newspaper Editors. Mr. Jenkin Lloyd Jones, president of the American Society of Newspaper Editors, asked me to appear before you in response to the request of this committee.
Perhaps the most helpful thing I could say to the committee about the views of many newspaper people about the refusal of the State Department to permit newspaper people to travel in Red China would be to repeat here at the outset a statement on these issues to which the officers and members of the board of the American Society of Newspaper Editors subscribed on February 11. This statement was communicated to Secretary Dulles at that time.
On October 8, 1949, Red China ordered non-Communist newsmen out of that country. The United States Government denounced this ban as an effort to blot out objective reporting of developments in the Communist-occupied territory of China.
On May 1, 1952, the State Department announced steps to warn citizens of the danger of travel in Iron Curtain countries, including Red China, and said it would stamp passports “not valid for travel” in those countries "unless spe cifically endorsed by the Department of State for such travel."
So travel of American reporters was under a double ban.
On August 6, 1956, Red China invited some American correspondents to visit China and on August 7, the Department of State stated it would not change its policies to permit such travel.
Since then three newsmen have gone to China but most have conformed to the State Department's wishes. Rightly or wrongly many believed that the continuation of the travel ban might help persuade the Red Chinese to release American prisoners wrongfully held.
At your press conference on February 5, you stated that there was "no necessary connection whatsoever" between these two matters. This we think in accord with sound principle. We believe there should be no such connection.
We urge that you now proceed to take steps in conformity with your stated belief that the problem of the imprisoned Americans and that of free-press travel are indeed separate problems.
We hope that American reporters once again will be allowed to have passports free from the limitations on their travel in Red China that have been in effect since 1952. We think this can be done whether or not the ban on travel by civilians generally remains in effect. We believe the order of 1952 under which you have been proceeding, allows this exception. We think it consistent with precedent and in conformity with the statutes. Reporters have, in the past, been allowed to travel into areas from which civilians generally have been excluded. They have been permitted in combat zones, in war theaters, in countries that we have not officially recognized.
The people of the United States have a right to know, through their own reporters, about conditions in Red China. This right should not be given or
withheld as an instrument of diplomatic negotiation or made contingent upon policies of other countries with reference to separate and different issues.
We urge you to restore the right of a free people to have a free press that can freely travel wherever there is information that citizens must have if they are to enjoy the right to knowledge and the free use thereof.
I append here in the statement the names of the directors and the officers of the society.
Senator O’MAHONEY. It will be accepted and made a part of the record.
Mr. WIGGINS. They are:
George W. Healy, Jr., New Orleans Times-Picayune, second vice president.
J. R. Wiggins, Washington Post and Times Herald, secretary.
Since this statement was made, Secretary Dulles has conferred with the President of the American Society of Newspaper Editors and again made known the views of the Department on February 18. On March 5, at his press conference, the Secretary was asked:
Is the administration's position now the same as it was a month ago; namely, a flat opposition to letting these people go to Red China ?
The Secretary answered: Well, we have not altered the position which we then took. We are continuing to study and explore the matter to see whether any ways could be found to satisfy better the demand for news coverage without seeming to drop the barriers down generally, and to permit of what the Chinese Communists call cultural exchange. So far, we have not found any solution, but, undoubtedly, we will keep on studying the matter.
So far as I know, this study has not yet produced any change in policy.
I would like to expand the statement made to the Secretary in a few particulars that might be helpful. I think it worth adverting for a moment to the response which this Government made when Red China, on October 8, 1949, forbade the entry of non-Communist newsmen. Our State Department then said:
The effect of this order is to blot out completely objective reporting of developments in the Communist-occupied territory of China. The order is not based on military security or censorship, but solely on the ground of nonrecognition of the newly announced Communist regime.
It seems to us that this statement made in 1949 still states a general view of the objections to restricting reporters' movements in other countries which we think still sound.
Senator O'MAHONEY. Who issued that statement ?