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Mr. SLAYMAN. Could he go to many, if not all, foreign countries without a passport?

Mr. ENNIS. Yes. A passport requirement is something that has arisen throughout the world at the time of the First World War, when generally restrictions on foreign travel and requirements of passports as documents of identification and as assurance to a government that if it was letting in a foreigner, there was a country to which the foreigner could be expelled and some other country responsible for him. That all began around World War I, around 1917, when restrictions for use of passports began to be placed.

Senator O'MAHONEY. Doesn't the issue boil down to this simple question, of whether or not a passport should be issued to anyone who applies, whether or not any particular condition should be imposed upon the Secretary of State in exercising the authority to issue passports ?

Are those the questions!

Mr. ENNIS. Yes, Senator; it certainly can be said or stated as succinctly as that.

Now, there is a viewpoint that a passport as a document of identity should be issued as a ministerial function without the exercise of any discretion at all. The only limitation which the Civil Liberties Union would place upon that is that if the Department of State would have evidence that a person, a citizen, was going abroad to engage in subversive activities against the United States, that that one exception to the ministerial issuance of a passport would be a reasonable qualification.

Senator O'MAHONEY. Is it your contention that the law should be modified in such manner as to state the limitations which should be imposed upon the issuance of passports and the mode by which the existence of the right to go abroad is modified by these statutory limitations?

Mr. Ennis. Yes, Senator; you have again stated it very succinctly.

Senator O'MAHONEY. The only limitation of substance—and then I will speak of procedure—the only limitation of substance is that every citizen should have a passport unless the Department of State, at a hearing accorded to him establishes that his purpose in going abroad is to engage in activities of a subversive character against the United States.

Mr. SLAYMAN. Suppose the American citizen applying for the passport is under indictment for a criminal offense? Do you favor giving him a passport?

Mr. Ennis. No; I would think that would be an appropriate ground for denial of a passport. I would think, Mr. Slayman, that would be certainly an appropriate ground.

Senator Ervin. What you are really saying, as I understand it, is this: that the issuance of passports should be governed by certain and uniform rules applying alike to all persons in like situations.

Mr. Ennis. Exactly, Senator, rather than left as it is, wholly in the discretion of the Secretary of State or his delegated officials.

Mr. SLAYMAN. You feel that this should be properly stated in a statute rather than left to regulations pursuant to an issuance by the Secretary?

29174-58-pt. 1-2

Mr. ENNIS. I feel, Mr. Slayman, that a statute is necessary because the most cursory examination of the present situation puts that very persuasively.

I will say it as shortly as this: Since the Department of State has insisted that this is a matter of untrammeled discretion as part of the conduct of foreign relations, and I know of no better example than the one we are discussing today, that the Secretary of State or one of his subordinates says that in the conduct of our foreign relations with Communist China, or a lack of foreign relations with Communist China, we are going to use our passport power to deny American newspapermen the right to go there.

Now, that is a naked exercise of executive authority, implementing our foreign relations by denial of passports.

Now, the courts, and the reason it is time for Congress to do something about it is this: That private organizations such as the Civil Liberties Union have wrestled for years with the Department to adopt some substantive standards and some regulations.

Nothing was accomplished.

Finally, actions were commenced, beginning in about 1952, in the United States District Court for the District of Columbia.

Now, the situation that Congress will note today is that the district court and the Court of Appeals of the District of Columbia are gradually trying to hammer out a procedure directing the State Department, sending case after case back to the State Department, saying, “Give this man a hearing; disclose the evidence upon which you are denying him a passport, or certify what part of the evidence is confidential and give its general nature," and I submit to the Senators that it is not correct procedure in our Government to leave this whole matter solely to the courts to hammer out a procedure and substantive standards on a case-by-case basis which is certainly inefficient, certainly very slow, and it is against the persistent resistance of the State Department which, until there is a Supreme Court decision, or until there is legislation, will adhere to the end to its position that this is entirely executive.

Senator O’MAHONEY. Pardon me for interrupting you. You speak of persistent resistance of the State Department.

How has that been shown?
Mr. Ennis. That has been shown, Your Honor, by the series of cases.

The most cursory examination by the Senators of a half a dozen of cases which are now pending, strewn between the district court and the court of appeals, several of them sent back by the court of appeals for additional hearings, makes it perfectly clear, in my judgment, that the State Department will adhere to its view.

Senator O'MAHONEY. You are speaking of a conclusion. What are the facts showing resistance on the part of the Department?

Mr. Ennis. The facts are upon anyone who has been willing to take the case to court, and there are now half a dozen cases pending. The State Department, through its attorneys in the Department of Justice, have moved to dismiss the complaint on the grounds

Senator O’MAHONEY. That is an important fact. Will you name those cases, put them in the record? You probably don't have them on the tip of your tongue. But if you do

Mr. ENNIS. I have most of them. The Schachtman case

Senator OʻMAHONEY. In each of these cases you say that the Department of State intervened to resist the action of the applicant ?

Mr. ENNIS. Not intervened, Your Honor. The Secretary of State is the defendant, and the applicant is an applicant for a passport who goes to the courts to say, “I have been denied a passport and not told why. I want a hearing.'

The Secretary of State moves to dismiss and says, “This is a matter solely within the discretion of the Secretary of State, not subject to any judicial scrutiny; we move to dismiss the complaint.”

Some of the district judges have dismissed the complaints and it has been necessary to go to the court of appeals to have them reinstated.

For example, Judge Fahey, who is not unfamiliar with the problems of administration of government, as a former Solicitor General, in the Schachtman case, writing a long opinion and pointing out that you cannot deny a man a passport solely because he was an officer of an organization on the Attorney General's list you have got to give him a hearing; you have got to go into the facts—said this, and this sets out the whole problem. I am quoting from Judge Fahey's opinion in the Schachtman case of 1955. The last paragraph is most revealing:

We must not confuse the problem of appellant's application for a passport with the conduct of foreign affairs in the political sense which is entirely removed from judicial competence, for even though, his application might be said to come within the scope of foreign affairs in a broad sense it is also within the scope of the due process clause which is concerned with the liberty of the individual, free of arbitrary administrative restraint. There must be some reconciliation of these interests where only the right of a particular individual to travel is. involved and not a question of foreign affairs on a political level.

Now, I submit, Senators, that we should not, in our Government, composed of the executive, and the legislative, as well as the judicial, we should not leave to the courts and to private individuals the task of hammering out substantive standards and the procedural standards for the issuance of passports.

If anything could bring this sharply to the attention of the Congress, I think it is the present group of cases. We are not dealing here with persons accused of some kind of Communist affiliation. That is a different problem and a difficult one in its own right. We are dealing here with a rather sweeping decision of somebody in the Department of State that American newsmen picked by their own papers, not accused of any subversive connection in the conduct of foreign relations, shall not go abroad and report on Communist China.

Senator O’MAHONEY. If I understand the testimony on this point, it is simply that there is no due process of law in the handling of passport cases.

Mr. ENNIS. Until the decisions of the courts have now forced the State Department to issue some regulations.

Mr. SLAYMAN. In your examination of the judicial decisions relating to passport cases, have you reached any conclusion why it has been fairly recently that the Federal courts have looked at this?

Mr. ENNIS. I think the Bauer case was in 1952. Yes; I can tell you why.

Until 1950, when the Internal Security Act was passed, people denied passports just did not bother about it, didn't litigate.

But in 1950, the Internal Security Act said that no person who is a member of any Communist, of any communistic organization, which was finally adjudicated by the Subversive Activity Control Board and the courts to be a Communist organization, that no such person should have a passport, and it forbade the State Department to give any such person a passport.

Mr. SLAYMAN. That would be a member of an organization against which there is a final order for registration?

Mr. ENNIS. Yes; section 6 of the Internal Security Act, 1950, makes final the order after judicial review.

Mr. SLAYMAN. Is there any such final order in existence today against any organization ?

Mr. Ennis. There is no such final order. The case that is furthest along, the Communist Party case, was sent back by the Supreme Court to the Subversive Activities Control Board for evidence.

Now, to answer your question as to why we have gotten this spate of cases in the courts in the last few years

Senator Ervin. The result of that event was to establish some proposed due process of law for the benefit of persons affiliated with Communist organizations but not to be concerned about the rest of the American citizens, wasn't it?

Mr. Ennis. Yes; it is very curious, Senator, that when regulations were finally adopted, they were adopted only for Communist

cases. I myself spoke to the officials of the State Department. I said, this is a little anomalous. The answer I was given was the Communists are the only ones who are raising a fuss about regulations, so we give them regulations. Senator ERVIN. And you also make the point, as I understand it, that

you leave this problem to be worked out on a case by case basis by the courts that you go through a long period of uncertainty in which the rights of citizens applying for passports are not defined and then you finally wind up with a series of decisions which necessarily only grant the very minimum of due process of law.

Mr. ENNIS. Yes, Senator; and from the private citizen's point of view, to hammer out a policy in the Federal courts, against the determined opposition of the Secretary of State, represented by the Attorney General, is an arduous task indeed. It is for that reason that we feel that the judiciary is doing its part.

If you would read a half a dozen cases in the last 2 years that would be very clear to you; and it is insisting that there shall be a due process hearing and that evidence shall be produced and a person shall be given a decent kind of a hearing which in our time, administrative law has developed-you won't be denied a dog license or a liquor license without a decent hearing. Certainly, you should not be denied a passport without a decent hearing.

I will end my statement by merely making the point that efforts of private organizations, such as the union, not having been successful in producing a change in the situation, the courts under the cases moving very slowly to hammer out some kind of policy, the time has come for the Congress to give real attention to this.

This is nothing new in Congress. In 1952, Senator Morse made an excellent statement on the floor of the Senate and introduced a bill, and from time to time bills have been introduced. But frankly, the Con

if

gress is faced with so many problems that the issue has never been presented to them or the facts of the cases have never seemed strong enough to warrant congressional action.

(The bill referred to follows :)

[S. 3369, 82d Cong., 2d sess.)

A BILL To authorize an appeal to the Subversive Activities Control Board by any person

who has been denied a passport

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That subsection (e) of section 12 of the Subversive Activities Control Act of 1950 is amended (1) by striking out "and" at the end of paragraph (1) thereof, (2) by striking out the period at the end of paragraph (2) thereof and inserting in lieu thereof "; and", and (3) by inserting at the end of such subsection a new paragraph as follows:

"(3) upon application made by any person under section 13A of this title to determine whether such person has been wrongfully denied a passport."

SEC. 2. The Subversive Activities Control Act of 1950 is further amended by inserting immediately following section 13 a new section as follows:

"DENIALS OF PASSPORTS

"SEC. 13A. (a) Whenever any officer charged with functions relating to the granting and issuing of passports shall deny a passport to any person who has made application therefor in the manner prescribed by law, such person may, within sixty days after he has been notified of the denial of a passport, file with the Board, and serve upon the Secretary of State and any such officer, a petition for an order requiring the issuance of a passport.

"(b) The Board shall, after a petition has been filed with it pursuant to subsection (a) of this section, determine whether the petitioner is eligible for a passport. Such determination shall be made on the record after opportunity for a hearing in accordance with the Administrative Procedure Act.

"(c) For the purpose of any hearing or inquiry conducted by the Board under this section, the provisions of subsection (c) of section 13 of this Act (relating to the attendance of witnesses and the production of books, papers, and documents) are hereby made applicable to proceedings of the Board under this section.

"(d) The decision of the Board shall be based upon all the evidence before it and shall be final. If, after hearing upon a petition filed under this section, the Board determines that the denial of a passport to the petitioner was based upon substantial evidence and in accordance with law, it shall dismiss the petition. If, after hearing upon any such petition, the Board shall find that the denial of a passport to the petitioner was arbitrary or capricious, not based upon substantial evidence, or contrary to law, it shall issue and cause to be served upon the Secretary of State an order directing the Secretary to issue a passport to the petitioner, and upon receipt of any such order the Secretary shall forthwith cause to be issued a passport in accordance with such order.

“(e) All hearings conducted under this section shall be public, but nothing contained in this section shall require the Board to make public disclosure, at any such hearing, of any confidential information, the disclosure of which, in the opinion of the Board, would be prejudicial to the public interest, safety, or security."

Mr. Ennis. But now you have a case where a man is not denied a passport on his own lack of merit, but where a whole group of individuals are denied passports presumably in the Secretary's exercise of the power of foreign relations.

I would end my statement with this thought, perhaps it is not fair to the Secretary of State, burdened as he is with the great problems of war and peace, to leave him the untrammeled discretion to deny passports because he hears or it is brought to his attention by subordinates that a group of persons are going abroad, have applied for passports and they are going to Red China to report here. And he is told, this may embarrass our Government; you have absolute power to prevent

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