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case and all relevant information informally to the Passport Division. He shall be entitled to appear 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 te 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.

8 31.141 Bases 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 $$ 31.135–51.143, 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 $$ 51.135 and 51.136 shall be applied and the procedural safeguards of $$ 51.1375l.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 fur 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. 2-42

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regulations, we, of course, ignore them. But if there is information in the files, in the reports we receive that the person is a member of the Communist Party, then we give him that information, allow him to make reply to it.

(Discussion off the record.)

Senator O’MAHONEY. On the record. I would like to ask you, Mr. Cartwright, do you think that the regulations which are being followed in passport cases now afford the passport applicant sufficient opportunity to know by whom he is being charged with subversive activity ?

Mr. CARTWRIGHT. Senator, I think that the procedures of the Department of State in this matter go as far as they can consistent with the interests of national security.

Senator O’MAHONEY. Has Congress ever passed a law authorizing a group of five persons in the State Department to pass judgment of this character

Mr. CARTWRIGHT. I do not believe that the Congress has spoken to this particular point in any of its legislation as far as I know, Senator.

Senator O'MAHONEY. All right. What authority then do you have without a law to set up regulations of this character?

Mr. CARTWRIGHT. Oh, I think that it's inherent in the authority of the Secretary of State to provide procedures for the fair

Senator O MAHONEY. Why is it?

Mr. CARTWRIGHT. For the fair and impartial hearing of these questions.

Senator O’MAHONEY. The Secretary of State is appointed by the President and confirmed by the Senate.

Mr. CARTWRIGHT. That is true, sir.

Senator O'MAHONEY. Where do you find the inherent authority ? Is it in the Constitution?

Mr. CARTWRIGHT. I think-
Senator O’MAHONEY. Mr. Nicholas wants to answer now.
Mr. CARTWRIGHT. Would you like to hear from Mr. Nicholas ?

Senator OʻMAHONEY. No; I want to hear from you first and then let him come in.

Mr. CARTWRIGHT. I see nothing inconsistent in the establishment of an appellate procedure here where difficult and complex questions are present in the Secretary taking action to provide an orderly method of hearing those questions and attempting to clarify them.

Senator OʻMAHONEY. Did you ever come to Congress and ask Congress to take a share in framing this orderly procedure?

Mr. CARTWRIGHT. I am not aware of any specific appeal to the Congress on it, Senator, but I think that you have in many departments of the Government various methods and procedures set up which are not specifically arrived at by specific legislation but are within the terms of

Senator O'MAHONEY. That is one of the reasons why you hear so much talk and criticism of the alleged bureaucracy under which we live.

Mr. CARTWRIGHT. Well undoubtedly, Senator, some of these procedures are necessary and justified and others not.

Senator OʻMAHONEY. I have the feeling Congress passed the administrative procedure bill which was designed specifically to set up

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such procedure that boards and commissions should not be a law unto themselves. Now I was a member of the Judiciary Committee when that bill was under consideration, and, I remember very well, it was the first time I ever met John Foster Dulles; he was testifying in favor of this bill to protect the rights of individual citizens from secret decisions and judgments by the employees of Government bureaus.

Mr. CARTWRIGHT. Might I comment, Senator?
Senator O'MAHONEY. Sure.

Mr. CARTWRIGHT. This Board that we're discussing here does not have final decision authority.

Senator O’MAHONEY. Well, who has the final authority?
Mr. CARTWRIGHT. The Secretary of State.

Senator O'MAHONEY. Now what opportunity does the Secretary of State have with all of his multitudinous duties—calls to every portion of the globe—to pass upon cases of this kind? Can he pass individually upon passport cases?

Mr. CARTWRIGHT. I beg your pardon, Senator.
Senator O'MAHONEY. Can he pass individually upon passport cases?

Mr. CARTWRIGHT. I think it's apparent that it would be impossible for him to handle every passport application.

Senator OʻMAHONEY. Then why do you say the Secretary of State has final authority ?

Mr. CARTWRIGHT. On every case of appeals to the Board of Passport Appeals, when the Board has finished its deliberations and its studies and has come to its conclusions and recommendations, they are presented to the Secretary of State at which time he does act.

Senator O’MAHONEY. Do you mean to say that the Secretary of State then goes into the file, looks it all over and comes to a decision ?

Mr. CARTWRIGHT. I presume in some instances that is true.
Senator O'MAHONEY. Oh, in some instances ?

Mr. CARTWRIGHT. I couldn't really say that he did it in every case because it might not be required in every case, but I would say in any that it is indicated he would do it.

Senator O'MAHONEY. Is there any rule or regulation which defines those cases in which it is necessary for the Secretary to pass upon the judgment?

Mr. CARTWRIGHT. That would be in his judgment, Senator.

Senator OʻMAHONEY. How could he form a judgment unless he read all the cases?

Mr. CARTWRIGHT. All the cases that are handled by the Board of Passport Appeals are referred to the Secretary with the recommendations of that Board.

Senator OʻMAHONEY. Well, do you want this committee to understand that in your opinion the Secretary of State passes on them individually in person?

Mr. CARTWRIGHT. He does on all of the cases that go to the Board of Passport Appeals, Senator.

Senator OʻMAHONEY. So there is no reservation now in your answer.

Mr. CARTWRIGHT. No, there is none now and I certainly intended none previously.

Senator O'MAHONEY. How many cases go to him in a year?

Mr. CARTWRIGHT. I believe I can give you those figures, Senator. Mr. Sipes, counsel of the Board, can give you that.

Mr. SIPES. There have been 20 cases since the establishment of the Board in January 1954 considered formally by the Board of Passport Appeals, and the recommendation of the Board in those cases would have gone and did go to the Secretary of State personally or the Acting Secretary of State.

Senator O'MAHONEY. Oh, the Acting Secretary. So there is a delegation of power in there somewhere.

Mr. Sipes. I think in all matters that is true when the Secretary is away, sir.

Senator O’MAHONEY. Well, with respect to those cases which do not go to the Board of Appeals, does the Secretary of State ever see them?

Mr. CARTWRIGHT. He may on occasion, Senator. The point is that the Board of Passport Appeals is available to any applicant who wants to appeal his case to it.

Senator O’MAHoney. Well, of course it is recognized, I suppose, that not every person who wishes to get a passport is wealthy enough to hire a lawyer and pursue a case to the Board of Appeals.

What I am concerned about is to determine here and this I am doing without any hostility to the State Department or the Passport Division, I am doing this in the interests of the applicant. I represent a State in the Rocky Mountain region and there are many, many citizens of that State who like to go abroad and they are constantly writing my office for assistance in getting a passport. As I stated the other day, I have had very little difficulty. Most of my constituents are reputable people who are never charged with any subversive activity, I am happy to say, so their cases usually go sailing through. But I know that in many other States that is not the fact.

I feel that Congress ought to provide a system whereby the honest person in the land who is fortunate enough to get money enough to buy a ticket to go to Europe or go to Asia may do so without having the case passed upon in secret in some cubbyhole in the Department of State if subversive activity charges are brought against such a person. Don't you think that is a reasonable position, sir?

Mr. CartWRIGHT. Senator, I think it might be pertinent to point out that very fortunately citizens of the United States in large numbers get passports with relative freedom.

Senator ('MAHONEY. Yes. I gave you an instance of it, the record of the applicants from Wyoming:

Mr. CarrWRIGHT. That is right, Senator. Last year, calendar year 1956, 550,066 American citizens were either issued original passports or renewals on their passports they held and a relatively small number had difficulty in getting passports. As a matter of fact, the final refusals under the regulations that we were talking about here, 51.135, was one.

Senator O’MAHONEY. In what period?

Mr. CARTWRIGHT. Under Section 51.135, the regulation referring to Communist activity.

Senator O’MAHONEY. Well, that was not the case of Mr. Worthy, was it?

Mr. CARTWRIGHT. No. Mr. Worthy's case was not connected with this regulation.

Senator OʻMAHONEY. Well how many applicants for passports have been denied during the past year!

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Mr. CARTWRIGHT. Certain categories, Senator, which might be interesting, 550 refusals because of geographic restrictions in Hungary and the Middle East. On questions of citizenship, 2,066. Final refusals under section 51.135, the Communist regulation, one. Persons determined to be mentally ill, 10. Persons likely to become public charges, 9. Habitual criminals, 5. Individuals who in the opinion of the Department would be prejudicial to the foreign policy of the United States if traveling in certain areas, 10. Fraudulent applications, 5. Fugitives from justice, 10. Persons under court restraining orders, 15. A total of 8,213 in all categories. Senator O'MAHONEY. How many of those were appealed ? Mr. CARTWRIGHT. What was that, Senator? Senator O'MAHONEY. How many of those were appealed ?

Mr. CARTWRIGHT. I think there was one case, Senator, as far as we can find out offhand that would come in the calendar year period. It is a little difficult

Senator O’MAHONEY. How many of these were newspapermen who wanted to go in obedience to assignments by their employers, newspa permen or newspaperwomen, into different parts of the world to acquaint the readers of their papers of things that were happening abroad?

Mr. CARTWRIGHT. I don't think I can answer that specifically, Senator. I might say this, that the restrictions, geographical restrictions which are applied by the Department in certain instances, generally as to Red China, as you know, temporarily as to the Middle East, presently as to Hungary, et cetera, apply to everyone without exception. There is no category of person to whom they do not apply. However, the Department has made numerous exceptions, I know I can't tell you statistics—in, for example, the Middle East for newspaper people, and I mentioned Red Cross workers, and so forth, where the facts of the matter in the Department's judgment put the case in the national interest that they should

go. Senator O’MAHONEY. Well, now, that is a matter of judgment. Mr. CARTWRIGHT. Yes, sir.

Senator O'MAHONEY. And determination, and it is not a matter of legislative procedure, is it, or procedure laid down by the Congress? The exercise of this judgment giving a special privilege to some newspapermen and denying it to others is carried out by the decision of the State Department itself without any guidance by law of Congress.

Mr. CARTWRIGHT. The Department considers this exercise of authority within the discretion of the Secretary of State. In these instances that I mentioned it makes the judgment not for the benefit of an individual but in the national interest.

Senator OʻMAHONEY. Well now, let me ask you this question. You know that the first amendment of the Constitution is a prohibition on Congress. “Congress shall make no law * * *»—these are the words with which it begins--and then referring to the press, skipping religion, and so forth, “Congress shall make no law *** abridging the freedom of the press.”. Under that amendment it is clear Congress could not pass a law which would deny to some newspapermen passports and give them to others or other individuals. Now do you believe that the Secretary of State has power to do what the Congress has no power to do?

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