B. REFUSAL OF PASSPORTS-NONCOMMUNISTS. MEMORANDUM OF NOVEMBER 14, 1955, AND SUPPLEMENT

[Memorandum by Ashley J. Nicholas, subject, Discretionary Refusal of Passports in Non-Communist Cases; for use at hearings before the Senate Subcommittee on Constitutional Rights, not submitted to the committee at the time]

DISCRETIONARY REFUSAL OF PASSPORTS IN NON-COMMUNIST CASES

(By Ashley J. Nicholas)

NOVEMBER 14, 1955.

Law

The basic law regarding the issue of passports is section 211 (a) of title 22 of the United States Code which reads as follows:

"211a. Authority to grant, issue, and verify passports.

"The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue or verify such passports. (July 3, 1926, ch. 772 § 1, 44 Stat. 887.)

Executive order

Section 124 and section 126 of Executive Order 7856 dated March 31, 1938, and signed by President Roosevelt, reads as follows:

"124. The Secretary of State is authorized in his discretion to refuse to issue a passport, to restrict a passport for use only in certain countries, to restrict it against use in certain countries, to withdraw or cancel a passport already issued, and to withdraw a passport for the purpose of restricting its validity or use in certain countries."

"126. The Secretary of State is authorized to make regulations on the subject of issuing, renewing, extending, amending, restricting, or withdrawing passports additional to these rules and not inconsistent therewith."

The Secretary of State has delegated to the Director of the Passport Office, the exercise of his discretion in the refusal of passports.

Until the early part of 1955, no one questioned the authority of the Department to refuse passports to Amreican citizens. This is clearly shown by examples cited in Moore's Digest of International Law and Hackworth on International Law. The discretion was never exercised arbitrarily or capriciously and very seldom, considering the large number of passports issued. The discretion has been exercised to avoid embarrassing international incidents, to prevent interference with the foreign policy of the United States, to protect the Government from financial loss, to assist law-enforcement agencies of the Federal and State governments, to assist congressional investigating committees, and to prevent applicants from encountering difficulties abroad. Since both the circumstances and the procedures vary so greatly, I will try in the following paragraphs to list various categories and the procedures usually followed.

I. PERSONS LIKELY TO BECOME PUBLIC CHARGES

Unfortunately most cases of this category are not discovered until the persons concerned are abroad and appeal for financial assistance. Sometimes this is due to sudden illness or other misfortune, but more often to the irresponsibility of the person. Funds for return are advanced as a loan, and passports are made

valid only for return to the United States. Before such person is granted passport facilities for another trip, he must repay the loan and submit evidence that he has sufficient funds for his proposed travel. This is clearly told the applicant. There is no appeal from a refusal on this ground. However, the case can always be reopened by paying off the loan and submitting evidence of financial responsibility.

In a comparatively few cases, we receive indications in advance of the issue of passports, that applicants do not have sufficient funds for the proposed trip. Sometimes the information comes from the passport agent or clerk of court and sometimes from a parent or other relative. In these cases investigations are conducted or the applicants are requested by letter to furnish information regarding their funds. I do not recall a single borderline case; either the report is found to be erroneous (very seldom) or else the applicants are practically destitute. Sometimes it appears that the applicant is also mentally irresponsible. Applicants are told that in the absence of evidence of funds, the Department is unwilling to issue passports. In the same general category are persons who run up bills abroad or give worthless checks for expenses or merchandise. These are also required to submit evidence of financial responsibility before they are again granted passport facilities.

II. MENTALLY UNSOUND PERSONS

This category, while not large, causes considerable trouble. The first case which I recall handling occurred at least 25 years ago. The Department had received information that an applicant was mentally unsound and held up his passport. His father protested the action and sent in a doctor's certificate stating the boy was able to travel alone and that a trip was what he needed to restore him to normal. The passport was then issued and the boy went to Germany. While there he collided with a blind man, got angry and killed the blind man. He was arrested, the German authorities found that he was totally insane and deported him under guard to the United States.

Like the indigent cases, most of the ones of this category are discovered abroad and the persons are returned to the United States either at Government expense or with funds advanced by relatives. Their passports are likewise made valid only for return to the United States and they are refused further passport facilities unless they can submit very clear and convincing evidence of mental stability.

I a few cases the mental condition is discovered by the passport agent or clerk of court or by letters in the Department's files. An investigation is usually made by our security officers. Formerly the applicants were told merely that because of the circumstances of their cases the Department was unwilling to grant them passport facilities. More recently we have been telling them that because of the state of their health, the Department is unwilling to issue passports. A number of such persons come to Washington and are interviewed. Among those I recall are an elderly woman who thought that she was engaged to the then young Prince of Wales, a boy who brandished a knife in the passport office reception room, a very large man who started shouting in the reception room, and various persons who desired to go abroad to escape unknown enemies who were shooting electric rays at their brains. There are no appeal procedures in these cases.

III. FUGITIVES FROM JUSTICE

The Department withholds and withdraws passport facilities from persons who are known to be fugitives from justice. Upon the receipt of an application from a fugitive in the United States, we withhold issue of the passport and notify the proper authorities. There is usually no formal refusal. If the man is arrested and cleared or if the charge is dropped we will then issue the passport. Otherwise the passport fee is refunded in due course. If the fugitive is abroad and if the crime is a nonextraditable one, we take up the passport, advising the fugitive of the reason therefor and tell him that he may have passport facilities valid only for return to the United States, unless of course, he is able to have the criminal proceedings dismissed. This is sometimes done in income-tax cases if the fugitive satisfies the Bureau of Internal Revenue.

IV. PERSONS UNDER COURT RESTRAINT

This includes persons under subpena, persons for whom writs of ne exeat have been issued, and minor children who are subjects of court decrees as to custody, right of vistation, and residence. The Department has taken the position that it should not grant passports to facilitate the thwarting of orders issued by American courts of competent jurisdiction, whether Federal or State. Passport facilities are withheld and the person concerned is told to take up with the appropriate court the matter of setting aside or modifying the court orders. The appeal in such a case is to the court.

V. LIMITATIONS ON ISSUANCE OF PASSPORTS TO PERSONS LIKELY TO VIOLATE LAWS OF THE UNITED STATES

In order to promote the national interests 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 (sec. 51.136, title 22, Code of Federal Regulations).

There have been no refusals under this section. Appeal rights and procedures are the same as in Communist cases.

VI. DRAFT EVADERS

During World War II all persons of military age were required to submit permits to depart from the United States issued by their local draft boards. This was discontinued after the end of the war. However, we occasionally receive word that a boy intends to go abroad to evade military service. In such a case we request an applicant to submit a permit from his draft board. The only appeal is to the board. Persons who go and remain abroad now for the purpose of evading military service lose their citizenship. Reports of loss may be appealed to the Board of Review.

VII. PERSONS WHOSE ACTIVITIES MIGHT BE DETRIMENTAL TO FOREIGN POLICY OF THE UNITED STATES

During the civil war in Spain passports were refused to many persons who planned to go to that country for military service in defiance of this Government's policy of neutrality. Formerly there were many cases in which Americans residing abroad took part in political activities in foreign countries without losing their American citizenship. They were denied the protection of this Government while carrying on such activities, rather than denied passports to go abroad. However since the passage of the Immigration and Nationality Act of 1952, actual loss of citizenship results in most cases and there is seldom occasion to invoke the discretionary authority. When such cases do arise they are referred to the political offices of the Department for evaluation. Cases of loss of nationality may be appealed to the Board of Review.

VIII. PERSONS OF DUAL NATIONALITY REMAINING ABROAD WHO HAVE ABANDONED TIES WITH THE UNITED STATES

This, in the past years, has resulted in the Department's refusal of protection in many cases. However, many such persons by their activities are expatriated under the provisions of the new Immigration and Nationality Act. Others will lose when section 350 becomes operative. Such cases can be appealed to the Board of Review.

IX. REQUESTS FROM OTHER GOVERNMENT AGENCIES

Other agencies of the Federal Government sometimes request the refusal of passports to certain persons or request that passports issued to such persons be limited against travel in certain areas. Examples of this are persons who have been engaged on highly classified projects. In such cases the persons are told to obtain clearance from the agency concerned. Over a period of years we

have had considerable difficulty with one law enforcement agency (not a security one) which wants us to refuse certain persons who are merely suspected of illegal activities, without disclosing the reason for the refusal and without stating that it was at the request of such agency. This we have refused to do. We have, however, refused passports to the Americans who were close associates in Italy of "Lucky" Luciano. We told them of the reason for the refusal and considered their explanations were not satisfactory.

Precedents for the refusal or withdrawal of passports to prospective witnesses who seek to defy congressional investigating committees go back at least to the Teapot Dome investigation. The only appeal of such persons is to the committee.

[Refusal of passports in non-Communist case-supplemental to memorandum of November 14, 1955

JUNE 17, 1957.

On January 10, 1956, the Department of State promulgated regulations modifying sections 51.136 and 51.143 of the passport regulations. The text is set forth in the attached circular. In effect the regulations permit practically all persons refused passports under the discretionary authority the same appeal procedures as had been accorded to Communists. However, only one such case has developed to the informal hearing stage. That was the case of William Worthy who had traveled to Communist China. The mental and indigent cases are usually dropped after our tentative refusal. One person interviewed recently left with the threat to take away the sun from the earth.

C. REFUSAL OF PASSPORTS TO COMMUNISTS. MEMORANDUM OF

MAY 29, 1956

[Memorandum by Ashley J. Nicholas Subject: Refusal of Passports to Communists-Submitted to SCA for use in discussions with House Committee on Un-American Activities]

REFUSAL OF PASSPORTS TO COMMUNISTS

(By Ashley J. Nicholas)

MAY 29, 1956.

I. The present attack on the passport policy is a part of a general Communist offensive against the security policies of the United States Government, policies painfully worked out after the Government's bitter experience with Communist espionage and propaganda activities in the United States and abroad. Paralleling the attack on our passport policies are current attacks on the port security program, the Government employees loyalty program, the industrial security program, and the visa program.

Several years ago a similar attack was made on the passport policies and procedures which were vigorously defended by Secretary Acheson in press releases of May 24, 1952, and June 18, 1952 (tab ▲).

II. Early policy regarding issue of passports to Communists: Shortly after the Bolshevik revolution of 1917 this Government became aware of the scope and danger of the worldwide revolutionary movement and the attendant purpose to overthrow all existing governments, including our own. As a countermeasure passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 when Secretary Stimson reversed the previous rulings. Thereafter until World War II no persons were refused passports because they were Communists.

III. Postwar passport policy regarding Communists: After the termination of hostilties and the return of travel to more normal conditions, the question came up as to whether the Department would issue regular passports to individuals if they were Communists. At first passports were refused, but the matter was reconsidered at the highest level of the Department in early 1948 and the decision was made that passports would be issued to Communists and supporters of communism who satisfied the Department that they did not intend, while abroad, to engage in the promotion of Communist activities. At the same time the decision was made that passports should be refused to persons whose purpose in traveling abroad was believed to be to subvert the interest of the United States. Later in the same year the policy was modified to permit the issue of passports to Communist journalists even though they were actively promoting the Communist cause. In September 1950 the Passport Division raised the question, in connection with pending passport applications by communistic journalists, whether this policy should be modified. It was pointed out that 10 members of the national committee of the Communist Party had been convicted of violating the Smith Act; that the Communists were actively supporting the enemy position in the Korean war, and that the Internal Security Act of 1950 clearly showed the desire of Congress that no Communists should be issued passports of this Government.

The Department also took into consideration its own experience that ever since the end of World War I, American Communists and alien Communists illegally in possession of American passports had effectively carried on abroad espionage, propaganda, and revolutionary activities on behalf of the Soviet Government and the international Communist movement and contrary to the foreign policy of the United States Government. The matter was referred to the legal adviser who agreed that it was the duty of the State Department to refuse passports to all Communists, including journalists (tab B). The carrying out of this policy led to considerable criticism of the Department's practice and pro