Mr. NICHOLAS. No. Senator O'MAHONEY. And not before the individual concerned. Mr. NICHOLAS. That is right. Senator O'MAHONEY. Is that right? Mr. NICHOLAS. Right. Senator O'MAHONEY. Now do you think that that is a free, open hearing? Mr. NICHOLAS. This is before the hearing stage, Senator. Senator O'MAHONEY. Well, can you set up a free, open hearing with respect to any applicant for a passport without allowing him to be confronted by the witnesses against him? Mr. NICHOLAS. Well, that is a question of judgment. Senator O'MAHONEY. That is precisely what I am pointing out. It is a question of judgment, and the five people that you have mentioned are the ones who use that judgment. Now is there any rule or regulation by which that judgment is controlled? Are you given any instructions how to exercise judgment on secret testimony? Mr. NICHOLAS. We give the person the gist of the information and he is permitted every opportunity to make his answer. Senator O'MAHONEY. But the gist is just your judgment as to whether or not this is really derogatory evidence. You know you couldn't convict anybody in open court on such matters, don't you? Mr. NICHOLAS. This isn't a criminal proceeding, Senator. Senator O'MAHONEY. Well, of course, and that is all the more reason that it should be a perfectly clear and open proceeding. Mr. NICHOLAS. We don't have the people, the facilities, the money, the power of subpena, to conduct trials of this nature. Senator O'MAHONEY. Well if you don't have the facilities to make this judgment, why should you be permitted to make it? Mr. CARTWRIGHT. I don't want to interrupt you, Senator, but Senator O'MAHONEY. Well, I like to be interrupted by good-looking witnesses. Mr. CARTWRIGHT. I have additional parts in my statement which go further into procedure, and will explain, I believe, the statements Mr. Nicholas has been making surrounding this initial tentative denial prior to hearing, prior to final decision, prior to final action by the Department. Senator O'MAHONEY. Will you proceed with that statement. Mr. CARTWRIGHT. I think it might help, Senator, and be of interest to you; I don't know. Senator O'MAHONEY. Well, you were going to make an answer but Mr. Nicholas attempted to respond for you. Mr. CARTWRIGHT. That is what I wanted to say, Senator. I wanted to ask if I could complete the statement bringing out the remainder of the procedure which would provide you with perhaps an additional basis for questioning on that. Senator O'MAHONEY. Proceed. Mr. CARTWRIGHT. Upon request, and before refusal becomes final, the applicant is entitled to present his case and all relevant information to the Passport Office on an informal basis. At this time he is entitled to appear in person before a hearing officer and to be represented by counsel. Upon request he will confirm his oral statements in an affidavit for the record. Thereafter, the Passport Office must review the record and after consultation with other interested offices will advise the applicant of the decision. If the decision is adverse, the applicant must be advised in writing and the letter must contain the reasons on which the decision is based as specifically as the Department of State security limitations permit. Senator O'MAHONEY. Are these regulations in writing? Mr. CARTWRIGHT. The Executive order, the regulations are in writing; yes, sir. Senator O'MAHONEY. Will you file them for the record? [Supplement to Passport Regulations] TITLE 22-FOREIGN RELATIONS CHAPTER I. DEPARTMENT OF STATE PART 51-PASSPORTS Subpart B-Regulations of the Secretary of State Pursuant to the authority vested in me by paragraph 126 of Executive Order No. 7856, issued on March 31, 1938 (3 F. R. 681; 22 CFR 51.77), under authority of section 1 of the Act of Congress approved July 3, 1926 (44 Stat. 887; 22 USC 211 (a)), the regulations issued on March 31, 1938 (Departmental Order 749) as amended (22 CFR 51.101 to 51.134) are hereby further amended by the addition of new sections 51.135 to 51.143 as follows: § 51.135 Limitation on Issuance of Passports to Persons Supporting Communist Movement. In order to promote the national interest by assuring that persons who support the world Communist movement of which the Communist Party is an integral unit may not, through use of United States passports, further the purposes of that movement, no passport, except one limited for direct and immediate return to the United States, shall be issued to: (a) Persons who are members of the Communist Party or who have recently terminated such membership under such circumstances as to warrant the conclusion-not otherwise rebutted by the evidence-that they continue to act in furtherance of the interests and under the discipline of the Communist Party; (b) Persons, regardless of the formal state of their affiliation with the Communist Party, who engage in activities which support the Communist movement under such circumstances as to warrant the conclusion-not otherwise rebutted by the evidence that they have engaged in such activities as a result of direction, domination, or control exercised over them by the Communist movement. (c) Persons, regardless of the formal state of their affiliation with the Communist Party, as to whom there is reason to believe, on the balance of all the evidence, that they are going abroad to engage in activities which will advance the Communist movement for the purpose, knowingly and willfully of advancing that movement. § 51.136 Limitations on Issuance of Passports to Persons Likely to Violate Laws of the United States. In order to promote the national interest by assuring that the conduct of foreign relations shall be free from unlawful interference, no passport, except one limited for direct and immediate return to the United States, shall be issued to persons as to whom there is reason to believe, on the balance of all the evidence, that they are going abroad to engage in activities while abroad which would violate the laws of the United States, or which if carried on in the United States would violate such laws designed to protect the security of the United States. § 51.137 Notification to Person Whose Passport Application Is Tentatively Disapproved. A person whose passport application is tentatively disapproved under the provisions of § 51.135 or § 51.136 will be notified in writing of the tentative refusal, and of the reasons on which it is based, as specifically as in the judgment of the Department of State security considerations permit. He shall be entitled, upon request, and before such refusal becomes final, to present his case and all relevant information informally to the Passport Division. He shall be entitled to appear in person before a hearing officer of the Passport Division, and to be represented by counsel. He will, upon request, confirm his oral statements in an affidavit for the record. After the applicant has presented his case, the Passport Division will review the record, and after consultation with other interested offices, advise the applicant of the decision. If the decision is adverse, such advice will be in writing and shall state the reasons on which the decision is based as specifically as within the judgment of the Department of State security limitations permit. Such advice shall also inform the applicant of his right to appeal under § 51.138. § 51.138. Appeal by Passport Applicant. In the event of a decision adverse to the applicant, he shall be entitled to appeal his case to the Board of Passport Appeals provided for in § 51.139. § 51.139. Creation and Functions of Board of Passport Appeals. There is hereby established within the Department of State a Board of Passport Appeals, hereinafter referred to as the Board, composed of not less than three officers of the Department to be designated by the Secretary of State. The Board shalll act on all appeals under § 51.138. The Board shall adopt and make public its own rules of procedures, to be approved by the Secretary, which shall provide that its duties in any case may be performed by a panel of not less than three members acting by majority determination. The rules shall accord applicant the right to a hearing and to be represented by counsel, and shall accord applicant and each witness the right to inspect the transcript of his own testimony. § 51.140 Duty of Board to Advise Secretary of State on Action for Disposition of Appealed Cases. It shall be the duty of the Board, on all the evidence, to advise the Secretary of the action it finds necessary and proper to the disposition of cases appealed to it, and to this end the Board may first call for clarification of the record, further investigation, or other action consistent with its duties. § 51.141 Bascs for Findings of Fact by Board, (a) In making or reviewing findings of fact, the Board, and all others with responsibility for so doing under §§ 51.135-51.143, shall be convinced by a preponderance of the evidence, as would a trial court in a civil case. (b) Consistent and prolonged adherence to the Communist Party line on a variety of issues and through shifts and changes of that line will suffice, prima facie, to support a finding under § 51.135 (b). § 51.142 Oath or Affirmation by Applicant as to Membership in Communist Party. At any stage of the proceedings in the Passport Division or before the Board, if it is deemed necessary, the applicant may be required, as a part of his application, to subscribe, under oath or affirmation, to a statement with respect to present or past mebership in the Communist Party. If applicant states that he is a Communist, refusal of a passport in his case will be without further proceedings. § 51.143 Applicability of Sections 51.135-51.142. When the standards set out in § 51.135 or § 51.136 are made relevant by the facts of a particular case to the exercise of the discretion of the Secretary under § 51.75, the standards in §§ 51.135 and 51.136 shall be applied and the procedural safeguards of §§ 51.13751.142 shall be followed in any case where the person affected takes issue with the action of the Department in granting, refusing, restricting, withdrawing, cancelling, revoking, extending, renewing, or in any other fashion or degree affecting the ability of a person to use a passport through action taken in a particular case. For the Secretary of State W. K. SCOTT, Acting Deputy Under Secretary. [January 12, 1956, Department of State for the press, No. 16] REVISION IN PASSPORT REGULATIONS The Department of State today made public certain revisions in regulations pertaining to the issuance of United States passports. The amendments to the regulations are designed to provide formalized hearing procedures for all persons who may be denied passport facilities. Except for refusals due to lack of citizenship or general area restrictions, anyone whose application for a passport is denied is entitled to receive a statement of reasons and may appeal to the Board of Passport Appeals. 29174-58-pt. 2- -2 The Department noted that these revisions are of an interim nature pending an overall study of the Department's policy and procedures in this field, and the outcome of certain cases in the courts. Texts of the amendments follow: [Code of Federal Regulations] "TITLE 22-FOREIGN RELATIONS "CHAPTER I. DEPARTMENT OF STATE "PART 51. PASSPORTS "Subpart B-Regulations of the Secretary of State "Pursuant to the authority vested in me by paragraph 126 of Executive Order No. 7856, issued on March 31, 1938 (3 F. R. 687, 22 C. F. R. 51.77), under authority of section 1 of the act of Congress approved July 3, 1926 (44 Stat. 887, 22 U. S. C. 211a), the regulations issued on August 28, 1952 (Departmental Regulation 108.162, 17 F. R. 8013, 22 C. F. R. 51.135 through 51.143), are hereby amended by revision of sections 51.136 and 51.143, as follows: "§ 51.136 Limitations on issuance of passports to certain other persons. In order to promote and safeguard the interests of the United States, passport facilities, except for direct and immediate return to the United States, will be refused to a person when it appears to the satisfaction of the Secretary of State that the person's activities abroad would: (1) Violate the laws of the United States; (2) be prejudicial to the orderly conduct of foreign relations; or (3) otherwise be prejudicial to the interests of the United States. "§ 51.143 Applicability of sections 51.137-51.142. Except for action taken by reason of noncitizenship, of geographical limitations, of general applicability necessitated by foreign policy considerations, the provisions of §§ 51.137-51.142 shall apply in any case where the person affected takes issue with the action of the Secretary in granting, refusing, restricting, withdrawing, canceling, revoking, extending, renewing or in any other fashion or degree affecting the ability of such person to receive or use a passport." For the Secretary of State: Date: JANUARY 10, 1956. LOY W. HENDERSON, Deputy Under Secretary for Administration. Mr. CARTWRIGHT. The letter shall also advise the applicant of his right to appeal the decision to the administrative body in the Department of State handling appeals of this type. Senator O'MAHONEY. Well, now, are you not referring to the Executive order which dealt with subversive activities, alleged subversive activities, by employees of the Government? Mr. CARTWRIGHT. I don't believe so, sir; no. Senator O'MAHONEY. Is this a special Executive order dealing with Mr. CARTWRIGHT. When I said Executive order I was using wrong phraseology, Senator. It is regulations of the Department of State which are printed and published, and they are in the Code of Federal Regulations, the official document. Senator O'MAHONEY. Will you give me the title, please? Mr. CARTWRIGHT. The title is title 22, Foreign Relations, Chapter I, Department of State, Part 51, Passports, Subpart (b), Regulations of the Secretary of State. Senator O'MAHONEY. Have they ever been published in the Federal Register? Mr. CARTWRIGHT. Yes. Senator O'MAHONEY. What is the citation? Mr. CARTWRIGHT. I don't have the citation at hand. We'll try to identify it and give it to you, Senator. Senator O'MAHONEY. Very well. Mr. CARTWRIGHT. The administrative body handling appeals of this type is composed of not less than three officers of the Department of State designated by the Secretary of State. The Board is required to adopt, and has adopted, and published its rules of procedure, which include recognition of the applicant's right to a hearing, right to representation by counsel, and providing for the applicant opportunity to inspect the transcript of his testimony. Likewise, other witnesses must have the right to inspect their testimony if they wish. The Board has the duty of advising the Secretary of State of the action it finds necesary and proper to the disposition of the case, and to this end the Board may call for further clarification of the record, additional investigation, or other action consistent with its duties. That is the end of my statement, Mr. Chairman. Senator WATKINS. Any questions? Senator HRUSKA. Mr. Chairman, I would like to make further inquiry about this area of judgment and the basis of judgment about which Mr. Nicholas was talking a little bit ago. In evaluating these reports and forming the decision with reference to any application, do those five persons whom you mentioned, or any one or any combination of them, just pick things out of the air, or do they pretty much depend upon the regulations of the Department pertaining to the policy of issuing passports as of that time? Mr. NICHOLAS. We go, of course, by the regulations in determining whether or not the information we have shows apparent violation of it, that the persons would be forbidden a passport under the regulations. Now we have the reports or we obtain the reports chiefly from other governmental agencies. The amount of the information we can give the applicant depends on the nature of the report we receive. If it is something that has been published in a paper, the Daily Worker, for instance, why we can give him specifically that. If some confidential informant has furnished the information, we have to be careful not to disclose the source of the information. But we can give the person the gist. In 999 cases out of 1,000 we can tell them what the charge is, what the information is that they are alleged to have done, and they are given the opportunity of answering that, first in informal hearing and then, as Mr. Cartwright said, if that doesn't turn in favor of the applicant they have the hearing before the Board of Passport Appeals. Senator HRUSKA. Well, that is fine. But in the exercise of this judgment, is that judgment exercised by whim and caprice and fancy or does it have a more substantial basis, for example, like that part of the regulation which was read a little bit ago by Mr. Cartwright, in which it is set out that passports will be refused to a person when it appears to the satisfaction of the Secretary of State, for whom you are acting, that the person's activities abroad would either violate the laws of the United States or they would be prejudicial to the orderly conduct of the foreign relations or would otherwise be prejudicial to the interests of the United States? Aren't those items as well as similar items set forth in the regulations and elsewhere in the declared policy of the State Department which serve as guideposts and standards for decisions which are made? Mr. NICHOLAS. Certainly. Those are the standards which we apply, to which we apply the reports that we have. If we have reports that don't indicate that the person's travel would be precluded by the |