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FRIDAY, MARCH 29, 1957


Washington, D.C. The subcommittee met, pursuant to call, at 10:15 o'clock a. m., in room 457, Senate Office Building, Senator Joseph C. O'Mahoney presiding.

Present: Senators O'Mahoney and Ervin. Also present: Charles H. Slayman, Jr., chief counsel and staff director, Subcommittee on Constitutional Rights; and Robert Young, professional staff member, Committee on the Judiciary.

Senator O'MAHONEY. Let it be stated for the record that I am presiding at the request of the chairman who is necessarily absent this morning.

Mr. Slayman, will you state for the record what the problem is before us?

Mr. SLAYMAN. Thank you, Senator.

The Constitutional Rights Subcommittee has been concerned for some time about the related subjects of freedom of information, the secrecy in Government, and the right of the people in the Congress to know. Much of this concern centers on charges that certain Government agencies have improperly classified information or have unreasonably withheld nonsecurity data from the public, the press, Members of Congress, and congressional committees.

This subcommittee will examine these complaints in public hearings in the near future and at the same time give the agencies involved full opportunity to explain their practices.

In the course of our studies, our attention has been called to an alleged interference by the State Department with free access to information abroad. It is contended that State Department decisions and regulations in connection with the issuance and validation of American passports have seriously restricted the travel of American newsmen in foreign countries. Thus, the American public has been denied news reported by American journalists from these far-off places.

The only other sources that remain are correspondents from other countries and the recognizably unreliable statements issued by the propaganda bureaus of countries behind the Iron or Bamboo curtain.

Today, we will hear editors, publishers, reporters, and lawyers discuss these complaints.

Next week, Thursday morning, April 4, we will give the State Department a full opportunity to tell us about their passport policies and procedures.


Senator O’MAHONEY. I think that the climate around this chair, which was established by the Senator from North Carolina, is still here because I am reminded by this opening statement of the fact that this issue is not at all a new issue. It has existed in the newspaper business all over the country.

I had my own experience with it when I was city editor of the Cheyenne State-Leader in 1916. There was a Republican sheriff and a Republican deputy sheriff. They both felt that the news which broke under the jurisdiction of the sheriff was their private property to give to the Republican newspaper. I was working for a Democratic newspaper.

I went into the sheriff's office one day. I knew that there was a good story brewing, but the deputy sheriff would give me no information on it. I had to have a story of some kind or another so I changed the subject and made it a story about the forthcoming primary in which I speculated as to the result of the primary.

My speculation was that this deputy who had refused to give me information about a public matter which belonged to the press stood a very poor chance of election. The next day he opened the files to me very, very graciously and I had no further trouble getting all the public news thereafter.

I may say that my prediction with respect to the outcome of the Republican primary for sheriff, in Cheyenne, in 1916 was correct.

The deputy did not win the nomination.

Senator Ervin. May I add at that point that the prophet in that case has honor both in his own country as well as abroad.

Who is the first witness?

Mr. SLAYMAN. Mr. Worthy has asked that Mr. Ennis, a lawyer, testify first.

Mr. Edward J. Ennis is general counsel of the American Civil Liberties Union. He will be the first witness.



Mr. Enns. With your permission, Senator, Mr. Irving Ferman who is our Washington representative of the Civil Liberties Union will sit with me in case there are any questions which I may not be able to answer. We want to give you the fullest information possible.

Senator O’MAHONEY. Thank you very much. You may both be seated. I shall direct my questions to you.

Mr. Ennis. I will be glad to answer them, Senator, if I can.

In view of the fact that I am the first witness and you have many witnesses to hear this morning, I shall not only be brief but shall attempt to sketch in the scope of the problem.

Senator O'MAHONEY. Will you first identify yourself a little more extensively than your statement does?

Mr. Ennis. My name is Edward J. Ennis; I am a private attorney in New York City and also general counsel of the American Civil Liberties Union.

Senator O'MAHONEY. How long have you been practicing law?

Mr. Ennis. I have been in the private practice of law since 1946. From 1932 until 1946 I was an attorney in the United States Department of Justice in many positions, including the Office of the Solicitor General of the United States and General Counsel of the Immigration and Naturalization Service, and during the war I was the Director of the Alien Enemy Control Unit of the Department of Justice, in charge of the internment of alien enemies and in that position I have some acquaintance with the security problems of our Government and its regulations.

Senator O’MAHONEY. From what law school were you graduated ?

Mr. ENNIS. I am a graduate of the Columbia University Law School in New York City, Senator O'Mahoney.

Senator O'MAHONEY. A very good school.

Mr. ENNIS. The American Civil Liberties Union is a nationwide private organization devoted to the defense of all of the civil liberties of all of the people, and for many years we have been in contact, and I may say entirely cordial contact, with the officials of the Department of State, including a succession of Secretaries of State, and the two heads of the Passport Office on these problems of having sufficiently definite substantive standards upon which passports should be denied. Senator O'MAHONEY. May I interrupt you, Mr. Ennis? (Discussion off the record.) Mr. Ennis. The second problem, in addition to satisfactory substantive standards upon which passports should be denied, which the Union has for many years discussed with the Passport Office and the Secretary of State in conferences and written communications, is the problem of a sufficient procedure, a sufficient hearing procedure, at which the facts should be determined upon which passports should be denied.

Now, the attitude of the Department of State historically has been that the issuance of passports is an entirely executive function, to some extent involved in the pursuit of the foreign relations of the United States, and as such the Passport Office knows best, and anyone who is denied a passport, that is the end of the matter.

Now, that kind of a situation rocked along until recent years for the simple reason that in the hundreds of thousands of passport applications that are made every year, I personally can attest, and certainly anyone who has traveled abroad can attest, that the Passport Office most efficient and unfailingly courteous in quickly granting passports to 95 or perhaps 99 percent of us.

Senator OʻMAHONEY. You say the situation rocked along. Did it roll along?

Mr. ENNIS. No; just rocked along. Senator O'MAHONEY. What about the statute ? Mr. Ennis. The statute merely gave the Secretary of State the power to issue passports.

Senator O’MAHONEY. When was the first statute enacted ?

Mr. Ennis. One of the early statutes—I have it here, Your HonorSenator

Senator O’MAHONEY. I haven't attained that dignity yet.

Mr. Ennis. As a lawyer, I am inclined to call anyone who is presiding Your Honor.

Senator O'MAHONEY. Wasn't the first statute enacted in 1856 ? Mr. ENNIS. In 1856, and reformulated in 1926.



Senator O’MAHONEY. What were the regulations, if any, or the requirements, if any, imposed by statute, which the Secretary of State had to follow ?

Mr. ENNIS. None whatever, Senator. It merely gave him the broadest delegation of power.

The statute simply gave the Secretary of State authority to issue passports and it was handled by his Passport Office as a purely executive matter without any published regulations at all.

Senator O’MAHONEY. Do you wish the committee to understand that from the beginning the power to issue passports granted by law to the Secretary of State was delegated to a subordinate officer?

Mr. ENNIS. Certainly in our century when there became any question of any substantial amount of international travel it was delegated to subordinate officers which in modern times has been the Passport Office of the Department of State; and it is understandable that a Secretary of State burdened with the great problems of war and peace hopes that these questions of passports shall never reach his personal attention.

However, where passports have been denied in the past, usually it has been the right of the individual or the convenience of the individual.

We want to address ourselves this morning to a recent denial of passports which affect not merely the individuals, in this case newspapermen who wish to pursue their calling by going to Communist China and give eyewitness reports to the American people, this denial of passports by the Secretary of State, not on the basis of any inadequacies in the individual, but on a policy ground that we did not want American newspapermen to go to Communist China, and the Secretary of State used his power to deny passports to achieve that political decision.

Now, this affects not merely these newspapermen-indeed, not merely the newspapers. It affects the right of the American people to have private newspapermen report to them directly on conditions, whether it be in Communist China or any place in the world.

Senator O'MAHONEY. What was the purpose of the first Passport Act?

Mr. ENNIS. I think nothing more than to provide that the Secretary of State shall have the authority to issue passports.

Senator O’MAHONEY. Well, does that mean that the statute was designed by Congress for the purpose of allowing the Secretary of State or his Department to exercise discretion over whether or not a passport should be issued, or do you contend that American citizens, whoever they are, have the right to go wherever they desire to go throughout the United States, throughout the world?

Mr. ENNIS. We contend, Mr. Chairman, that the right of an American citizen to international travel, of which a passport is a practical necessity, is a very important right which Congress has never intended, and one could not point to any provision of the Congress where there has been, even by implication, an intention to circumscribe that right.

Mr. SLAYMAN. In 1856 could an American leave and reenter the United States without a passport?

Mr. ENNIS. Yes.

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