Representative FORD. Mr. Chayes, will you take the following oath. Do
you swear the testimony you are about to give is the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. CHAYES. I do.
Mr. COLEMAN. The Honorable Abram Chayes is the Legal Adviser to
the Department of State. Mr. Chayes will be asked to testify with
respect to the files and other information and documents supplied the
Commission by the Department of State dealing with Mr. Oswald.
Mr. Chayes will also be asked about the legal correctness of certain
decisions made by various offices of the State Department with regard
to Oswald, including whether Oswald had lost his American citizenship
by his actions in 1959, whether his passport should have been returned
to him in July 1961, whether his passport should have been renewed
based upon the July 10, 1961, application, whether he should have been
issued his 1963 passport, and whether action should have been taken to
revoke it in October 1963 as a result of information received by the
Passport Office, and whether the Department and the Immigration and
Naturalization Service acted properly in connection with section 243(g)
of the Immigration and Nationality Act with respect to Marina. Mr.
Chayes will also be asked about the lookout card system in the Passport
Office.
Mr. COLEMAN. Mr. Chayes, will you state for the record your full name?
Mr. CHAYES. My name is Abram Chayes. There is a middle name that I
don't use. It is Joseph.
Mr. COLEMAN. Where do you presently reside?
Mr. CHAYES. At 3520 Edmunds Street NW., Washington, D.C.
Mr. COLEMAN. When did you become Legal Adviser to the State Department?
Mr. CHAYES. I think I was sworn in on February 7, 1961.
Mr. COLEMAN. So, therefore, anything that happened with respect to Mr.
Oswald prior to that time you had nothing to do with and knew nothing
about?
Mr. CHAYES. Well, I should say that I never heard the name Lee Harvey
Oswald until November 22, 1963, so that neither before nor after the
time I became Legal Adviser, before the assassination, did I have any
direct knowledge about Oswald, nor do I believe I passed directly on
any matters in the case, although there may have been some matters that
were considered in my office. I am not sure about that, but I took no
personal action in the case.
Mr. COLEMAN. Since the assassination your office has had occasion to
review the various files which were in the State Department dealing
with Lee Harvey Oswald, is that correct?
Mr. CHAYES. Yes; on November 22, Mr. Ball, the Under Secretary of
State, directed me to take in personal charge all the files in the
Department that I could find, and to review those files and be prepared
with a report for the Secretary the following morning on the general
relations of Mr. Oswald and the State Department.
I did take some files, the basic files into my custody at that time,
and retained them in my custody, I think, until we sent them to the
Commission at the Commission's request. And others than who were
working on the matter in the Department had access to the files but had
to work in my office on them.
Mr. COLEMAN. On or about May 28, 1964, you had occasion to reassemble
the files and deliver another set to the Commission, is that correct?
Mr. CHAYES. Yes; from time to time between the first delivery, which
was probably last December sometime, and just last week we have made
other papers available to the Commission as they have come to our own
notice. A file search of this kind in a place like the Department of
State is a pretty elaborate business.
Only last week we got a whole new shipment from the Moscow Embassy in
which they said, "We have sent you before everything that you didn't
have duplicates of, but here is a whole bunch of duplicates."
And it turned out that some of them weren't duplicates as appeared just
this morning. We made those available as soon as they came in.
Mr. COLEMAN. I take it with the covering letter of May 28, 1964, and
the description you made of the file together with the other files that
you delivered to us just yesterday, that they constitute all of the
files that the State Department has?
Mr. CHAYES. As I say, they constitute all that we have been able to
find, all the documents we have been able to find after a most diligent
search.
I myself did not personally conduct the search, but we directed
responsible officers in all the various places where documents might
be to give us all the documents they had, and I think we made a very
intensive search, and to my knowledge there are no other documents in
the Department relating to this matter in any way.
Mr. COLEMAN. Shortly after the Commission was appointed, you had
prepared under your direction, and submitted to the Commission a
document entitled "Report of the Department of State Lee Harvey
Oswald," is that correct?
Mr. CHAYES. That is correct, sir.
Mr. COLEMAN. And this document is an examination of the various actions
taken by people in the State Department, and your judgment as to the
legal correctness of the various actions?
Mr. CHAYES. Well, as you see, the document consists of five subparts.
It is an analysis and summary of the documents in the files. We went
through the files, looked at all the documents, tried to summarize them
for the Commission so as to give the Commission the fullest possible
appreciation of the contacts between Oswald and the Department. Where
it was necessary to elucidate policies or matters of law in order to
give the Commission that appreciation, we have done so, yes.
Mr. COLEMAN. The Report has been given a number of Commission Document
No. 2. (Commission Exhibit No. 950.) After that you, on May 8, 1964,
sent a letter to the general counsel for the Commission in which you
answered certain questions which had been proposed by the general
counsel?
Mr. CHAYES. Yes; the general counsel sent us a questionnaire with two
attachments, attachment A and attachment B. Attachment A referred to
matters mostly concerning Russia and the Embassy in Moscow. Attachment
B raised questions about matters within the Department, passport and
visa offices within the Department. Each attachment contained a series
of questions.
Again I think it is more accurate to state that the responses were
prepared under my supervision and direction. I, of course, reviewed
every response and and none were sent out without my approval. But I
was not the draftsman or didn't do all of the work.
Mr. COLEMAN. The first question that the Commission would like to know
about and be given some advice on is the question of whether the acts
which Oswald performed in October 1959, and shortly thereafter, would
in your opinion result in his loss of citizenship.
Mr. CHAYES. In my judgment they would not amount to expatriating acts.
The basic analysis is covered in the third part of Commission Document
No. 2, entitled "Lee Harvey Oswald--Expatriation."
Representative FORD. On what page is that, Mr. Chayes?
Mr. CHAYES. Well, I am sorry, each of the parts begin at No. 1, so it
is not very convenient, but it is about halfway through. There is a
memorandum entitled "Memorandum Lee Harvey Oswald--Expatriation."
Now, in that memorandum we analyze three sections of the act under
which it might be argued that an expatriation took place.
Mr. COLEMAN. Yes?
Mr. CHAYES. I say in that memorandum we analyzed the three possible
sections of the act under which it might be argued that an expatriation
took place, and in each case we conclude, and I think properly, that
there was no expatriation. The first section is section----
Mr. DULLES. May I ask one question? This is a formal opinion of your
office as Legal Adviser to the State Department?
Mr. CHAYES. I take responsibility for this as my present opinion, yes,
sir, and it goes out over my signature. We are not quite like the
Attorney General. We don't have opinions that get bound up in volumes.
Mr. DULLES. I realize that it is not a formalized opinion from that
angle. Was this ever submitted to the Department of Justice for
consideration?
Mr. CHAYES. No; it was not.
Mr. EHRLICH. Actually this report did go to the Department of Justice
because it was submitted before the Commission was formed.
Mr. CHAYES. Yes; but it wasn't submitted to the Department of Justice
for consideration.
Mr. DULLES. For concurrence or anything of that kind.
Mr. CHAYES. For concurrence, no.
Mr. COLEMAN. Now, the first section which I assume you address your
attention to was section 349(a) (1).
Mr. CHAYES. We could do it that way.
Mr. COLEMAN. Do you want to start with 349(a) (6)?
Mr. CHAYES. We started with (a) (6) in the memorandum because there was
likely to be a better case under (a) (6) than almost anything else.
The reason why one might argue more about (a) (6) than anything else,
is that there were written statements by Oswald saying, "I renounce my
citizenship" or words to that effect, and they were made in writing,
and in a way that appeared to be intended as a formal, considered
statement.
But (a) (6) says that a U.S. national may lose his nationality by
"making a formal renunciation of nationality before a diplomatic or
consular officer of the United States in a foreign state, in such form
as may be prescribed by the Secretary of State."
Now, even if you resolve every other issue in favor of expatriation,
that is if you say handing a fellow a letter of the kind that Oswald
handed to Mr. Snyder was a formal renunciation of nationality before
a diplomatic or consular officer, it was clearly not on the form
prescribed by the Secretary of State, and the courts have been very
precise on that.
Representative FORD. Do you have those citations, Mr. Chayes?
Mr. CHAYES. The form we have here, it is called "Form of Oath of
Renunciation." It is volume 8 of the Foreign Affairs Manual of the
Department of State, and it is an exhibit to section 225.6, and you can
see here that it is a fully prescribed form.
Mr. COLEMAN. Do you have any case where (a) it was a written statement,
and (b) it was given to a consul and yet because it was not on the form
prescribed by the Secretary of State, a court has held that it was not
a renunciation?
Mr. CHAYES. No case has been decided under 349(a) (6), but the general
line of cases under 349 is to resolve every doubt in favor of the
citizen, and there are innumerable citations to that effect. I feel
quite confident when the statute itself prescribes that the form should
be one established by the Secretary, and where the Secretary has in
fact prescribed such a form, that one cannot bring himself under (a)
(6) unless he uses the form.
Mr. COLEMAN. Wouldn't the two letters that Oswald delivered be
considered as making an affirmation or other formal declaration of
allegiance to a foreign state or political subdivision thereof, which
is an act under (a) (2)?
Mr. CHAYES. That would be (a) (2), and we consider that at page 7 of
the memorandum, subsection C.
Mr. DULLES. Are we through with all pages up to 7?
Mr. CHAYES. No; we probably go back to 1. But there we do have cases,
and the cases are clear that the oath or affirmation or formal
declaration under section (a) (2) has to be to an official entitled to
receive it on behalf of the foreign state, and even then the courts
have been very sticky about holding people to that.
For example, there is one case where a dual national, a Philippine and
U.S. national, made an oath of allegiance to the Philippines in the
usual form in order to get a Philippine passport, and it was asserted
that this was an expatriating act, and the court held no, it wasn't. In
re _Bautista's Petition_, 183 F. Supp. 271 (D.C. Guam, 1960). There is
a case where a man took an oath of allegiance to the British Crown, but
the recipient of the oath was his employer, private employer, and it
was held that that was not the kind of oath that is involved. In _The
Matter of L._ 1 I. & N. Dec. 317 (B.I.A. 1942).
The courts have said that this is a reciprocal relationship in which in
order to come under this section, the citizen or the U.S. citizen must
offer his allegiance to the foreign state and the foreign state must
accept it.
Mr. DULLES. There has to be action on both sides. Unilateral action is
not enough if the affirmation is not accepted.
Mr. CHAYES. That is the way I read the cases. Now, of course, if it
comes before, if the oath is taken before an official of the foreign
state that is authorized to take oaths of allegiance, why then nothing
more is needed than that. But making an oath or statement of allegiance
to another American or to a private party, whatever his nationality,
has been held not to fall within 349 (a)(2).
Mr. COLEMAN. Do you know whether Oswald had to make any statement or
take any oath when he got employment in the Soviet Union?
Mr. CHAYES. I don't personally, but it may have been inquired into by
the consul when Oswald came back for a renewal passport.
I think the record shows that it was concluded that there was no
evidence that he became a naturalized Soviet citizen, and so far as I
know, there is no evidence that he in any other way took an oath of
allegiance of the kind that would bring him under 349(a)(2).
Even if he had had to do so, for example, in connection with his
employment, there are cases which may say that that is not a voluntary
oath if it is done out of economic necessity and it will not,
therefore, serve to expatriate. See _Insogna_ v. _Dulles_, 116 F. Supp.
473 (D.D.C. 1953); _Stipa_ v. _Dulles_, 233 F. 2d 551 (3d Cir. 1956);
and _Bruni_ v. _Dulles_, 235 F. 2d 855 (D.C. Cir. 1956). In at least
one other case, _Mendelsohn_ v. _Dulles_, 207 F. 2d 37 (D.D.C. 1953), a
court held that the plaintiff had not expatriated himself by residing
abroad for more than 5 years since he had remained abroad to care for
his sick wife, who was too ill to travel.
Representative FORD. I think it would be helpful wherever you say, Mr.
Chayes, there are cases, that the record show the citation of the cases.
Mr. CHAYES. I think most of the cases that I am relying on are cited in
the memorandum to which I am referring. But there may be others that I
am recollecting. If I could have a chance to review the transcript, I
will submit exact citations in each case.
Representative FORD. I think that would be very helpful. Otherwise I
think the record is----
Mr. CHAYES. Yes; I agree.
Representative FORD. Is not clear or not complete, and as far as I am
concerned, and I think the Commission would agree, that you should
review the transcript to supply those citations for those particular
categories of cases.
Mr. CHAYES. I will be very glad to do so, Mr. Chairman.
Mr. COLEMAN. Now do you want to address yourself to section 349(a) (1)?
Mr. CHAYES. Well (a) (1) is obtaining naturalization, and there just
wasn't any indication, there wasn't any evidence at all that he had
become a naturalized Soviet citizen.
We knew that he applied for naturalization, but even on the basis of
his Soviet documents he had not been given Soviet citizenship.
Mr. COLEMAN. I take it your testimony is that after reviewing all of
the files, your office has determined that Oswald committed no act
which would justify the Department stating that he had expatriated
himself.
Mr. CHAYES. I think that is right. I more than think that is right. I
know that is right. We have reached the conclusion, and I personally
have reached the conclusion, that Oswald's actions in the Soviet Union,
although he may very well have wanted to expatriate himself at one time
or another, did not succeed in doing that.
I think for the record I would like to read here a citation from the
case of _Stipa_ v. _Dulles_ decided by the Court of Appeals for the
Third Circuit--the citation is at 233 F. 2d. 551--which gives some idea
of the general attitude with which the courts approach expatriation
cases. In that case it said:
The burden of proving expatriation generally is upon the defendant
who affirmatively alleges it [that is the Secretary of State] and
the burden is a heavy one. Factual doubts are to be resolved in
favor of citizenship. The burden of proof on the Government in an
expatriation case is like that in denaturalization. The evidence
must be clear, unequivocal and convincing. The rule prevailing
in denaturalization cases that the facts and the law should be
construed as far as is reasonably possible in favor of the citizen
equally applies to expatriation cases. American citizenship is not
to be lightly taken away.
This is the dominating attitude of the courts in all of these cases. We
find, for example, that a group of Japanese Americans, who during the
war under the stress of the relocation program, did all of the business
of renouncing their citizenship and did it in the most formal kind of a
way, and it was clear that they had done it and they had meant to do it
and all that sort of thing. When after the war they raised the question
of their citizenship status, the court held well, that the emotional
stress and strain of the relocation and shock under those circumstances
was such that this shouldn't be held against them. _Acheson_ v.
_Murakami_, 176 F. 2d 953 (9th Cir. 1949).
So the courts have gone very, very far to uphold the notion that
American citizenship is not to be lightly taken away, see e.g.,
_Schneiderman_ v. _United States_, 320 U.S. 118 (1943), and that has
affected not only our legal judgment in the particular case, but our
general policy which you have heard explained by Mr. Snyder and Mr.
McVickar.
Mr. COLEMAN. Could you describe for the record what the policy of the
Department is when a person appears at a foreign embassy and attempts
to expatriate himself?
Mr. DULLES. Before you answer that question may I ask a question.
In your memorandum here, relating to the paragraph we have been
discussing, there is a footnote that interests me. It says:
"After the assassination of President Kennedy, an official of the
Soviet Ministry of Foreign Affairs stated to an officer of the American
Embassy in Moscow that Soviet authorities had considered Oswald's
application for Soviet citizenship but had decided not to approve it
because Oswald seemed unstable."
Mr. Coleman, do we have that in our files?
Mr. COLEMAN. Yes.
Mr. CHAYES. Yes; I think also the American Embassy officer was
Ambassador Kohler?
Mr. COLEMAN. It was Stoessel.
Mr. CHAYES. Oh, Stoessel, Deputy Chief of Mission.
Mr. DULLES. The statement was made to him by an official of the Foreign
Office?
Mr. CHAYES. I think he is identified in the telegram; yes.
Mr. COLEMAN. Also when the Secretary appears tomorrow I think he will
impart some information on what the Soviet Ambassador told him as to
the reason why they refused Oswald citizenship.
Mr. DULLES. Yes; I would rather like to put that in the record unless
there is some similar reason to the one we had before.
Mr. CHAYES. Could I go off the record for just a moment?
(Discussion off the record.)
(Mr. Coleman's last question was read back by the reporter.)
Mr. CHAYES. Well, I think the basic policy of the Department is a
recognition that this is a very grave and serious and irrevocable act
that can affect a person's life and does affect a person's life very
fundamentally. And so the policy of the Department is to make sure that
the person making the renunciation does so with full recognition of the
consequences of his action, of the fact that it is a very grave act,
and in such a way as to make sure that it is a completely voluntary act
in every sense of the word, so that it can be shown not only to be free
of any physical duress or coercion, but mental stress and things of
that kind.
This is not only true because of the recognition of what it means
to the individual, but also because in order to support the
denaturalization in court. You have got to be able to show those things
under the standards and the general attitude that I have set forth.
Mr. COLEMAN. I take it your testimony is that you reviewed all of the
files and looked at all of the memorandums or had it done under your
direction, and your judgment is that Oswald had not expatriated himself
in 1959?
Mr. CHAYES. Yes; on the basis of the record that I have in the file.
Mr. COLEMAN. And with that determination made, then I take it that when
Oswald appeared at the Embassy in July 1961, and requested that his
passport be returned to him, that Mr. Snyder had no other alternative
but to return his passport to him, is that correct?
Mr. CHAYES. In the absence of any other disqualifying ground, and there
wasn't any other disqualifying ground either known to the Embassy in
Moscow or available in our own files back home. If Mr. Oswald was a
citizen, and was not disqualified in some other way, he was entitled to
the passport.
Mr. DULLES. Do you know from studying the records, or otherwise,
whether when that request was made by Lee Harvey Oswald, it was
referred back to the State Department and reconsidered again?
Mr. CHAYES. Oh, yes; it was. In the first place, the expatriation issue
wasn't decided until that time. That is the expatriation issue was open
until he came back in and applied for the passport.
The expatriation issue was decided in the first instance by the officer
in the field, and then the tentative decision was reported by him back
to the Passport Office and the expatriation decision was reviewed in
the Passport Office at that time. The file was reviewed for other
possible disqualifications, and an instruction went out with respect to
the return of the passport.
The field was instructed that when the passport was returned, it should
be marked for travel to the United States only, and then when the
passport was finally renewed some weeks later, that was also pursuant
to a departmental instruction.
Mr. DULLES. Was that reviewed in your office at that time?
Mr. CHAYES. No; it wasn't.
Mr. DULLES. Shouldn't it have been?
Mr. CHAYES. I don't think so, Mr. Dulles. The Passport Office has to
make nationality determinations on thousands and thousands of people.
Mr. DULLES. But this is a legal question, isn't it?
Mr. CHAYES. But they have adjudicators in the Passport Office.
Mr. DULLES. They have legal officers.
Mr. CHAYES. Thirty lawyers or something.
Mr. DULLES. They have?
Mr. CHAYES. And two lawyers reviewed this case. There are just
thousands of nationality or loss of nationality determinations.
Mr. DULLES. And those are generally all settled in the Passport Office?
Mr. CHAYES. In almost every case.
Mr. DULLES. Some of them may be presented to your office.
Mr. CHAYES. Where they present especially difficult questions of law or
general policy of administration; yes, sir.
Mr. DULLES. And this wasn't considered as a case involving particularly
difficult questions of law?
Mr. CHAYES. No; I don't think it did then or does now.
Representative FORD. Did the people in Washington who made this review
know that on this one particular form, I don't recall the Commission
Exhibit, that Oswald said, "I have done this, that," one or the other?
Mr. CHAYES. They would have had that before them. I think that is the
form that was sent back to the Department, the one that had "have
not" crossed out and "have" was left standing. So they made the
determination on the basis of a form----
Mr. COLEMAN. Commission Exhibit No. 938, for the record.
Mr. CHAYES. Commission Exhibit No. 938, in which Oswald indicated
that he had done one of these acts, and then supplied a supplementary
questionnaire explaining in fuller detail what he meant.
Mr. DULLES. Do you happen to know who the lawyers were who did this in
the Passport Office, and whether they would be available if we should
want to see them?
Mr. CHAYES. I think they are on the list to testify.
Mr. COLEMAN. Mr. Chayes, those lawyers didn't review the file in 1961.
They are the two lawyers that reviewed it in October 1963.
Mr. CHAYES. I see. Well, I can find out if we haven't supplied the
names already.
Mr. COLEMAN. I don't think any lawyer reviewed the file in 1961.
Mr. CHAYES. Well, an adjudicator did.
Mr. COLEMAN. It was Miss Waterman. She is not a lawyer.
Mr. CHAYES. I see.
Mr. DULLES. She is coming before us?
Mr. COLEMAN. Yes.
Mr. CHAYES. She is a passport adjudicator.
Mr. COLEMAN. Now, were have marked as Commission Exhibit No. 929 an
Operations Memorandum from the Department of State to the Embassy in
Moscow, dated March 28, 1960, which stated that:
"An appropriate notice had been placed in the Lookout Card Section
of the Passport Office in the event that Mr. Oswald should apply for
documentation at a point outside the Soviet Union."
I would like to show you this Commission exhibit and ask you are you
familiar with that memorandum?
Mr. CHAYES. I have seen this, but only since the assassination in my
general review of the files.
Mr. COLEMAN. Now, has your office made a check to determine whether a
lookout card was prepared?
Mr. CHAYES. Yes; Mr. Coleman. In connection with the preparation of
this memorandum, and the responses to the supplemental questions for
the Commission, we did examine the question of whether a lookout card
was prepared. I should say again that the matter of preparation of
lookout cards is not under my jurisdiction, and my knowledge of this is
only from a subsequent investigation.
Mr. COLEMAN. Your examination revealed that a lookout card actually was
never prepared, is that correct?
Mr. CHAYES. I think we have to say that our examination does not reveal
that a lookout card was prepared, and that on balance examining all
the relevant considerations, it appears more likely than not that no
lookout card was prepared.
Representative FORD. But there was none in the file.
Mr. CHAYES. There was none in the file, but there wouldn't have been
anyway, because this lookout card was ordered prepared because there
was a doubt as to whether Oswald had expatriated himself. Once that
doubt had been removed by an adjudication as it was in July of 1961,
the lookout card based on the possibility of expatriation would have
been removed.
It might be worth a moment if I could give you some general picture of
the lookout card system. Miss Knight will be able to testify in much
greater detail than I as to the actual operating----
Mr. DULLES. So that when 1963 came around and there was a further
application for a passport, there was no lookout card then found in
1963?
Mr. CHAYES. Nor should there have been.
Mr. DULLES. That is the issue under your procedure.
Mr. COLEMAN. Let me refer back to 1961 when you determined or the
Department determined to renew the passport. Now, as I understand it,
there was a search made of the Lookout Card Section, and the records
that we have reveal that no lookout card was found.
Mr. DULLES. Even in 1961?
Mr. COLEMAN. In 1961.
Mr. CHAYES. I don't think that that can be said that categorically. I
think it appears probable that there was no lookout card in 1961 at
that time, yes; that is correct.
Mr. DULLES. But in 1961 all of these facts with regard to Oswald were
before you, were they not?
Mr. CHAYES. If I could just give some notion of what this system is
like.
Mr. DULLES. Yes.
Mr. CHAYES. The lookout card is an IBM card, an ordinary IBM card,
and it should be prepared on anyone as to whom some evidence of
disqualification for a passport exists in our files. If the system
worked perfectly, anytime there was an unresolved question about the
eligibility of a person for a passport----
Representative FORD. Does a defector or an attempted defector fall in
that category?
Mr. CHAYES. No; the problem here was that this man had attempted to
expatriate himself, and said he was going to naturalize himself as a
Soviet citizen, and if he had done either of those things effectively,
he would have disqualified himself for a passport.
So there was an unresolved question on the facts known in 1959, or
January 1960, whenever it was. And at that point a lookout card should
have been prepared for him.
Then in July of 1961, when he came back in in Moscow, and asked for
the renewal of his passport, that question of expatriation was then
determined, both in Moscow and at home, and it was determined in favor
of the applicant. So that the outstanding question was then removed,
and if the procedures had gone right, the lookout card also, if it had
been prepared, would have been taken out of the lookout file and torn
up and thrown away.
Representative FORD. Don't you keep records of what you put in and what
you take out?
Mr. CHAYES. Yes, the refusal slip which formed the basis on which this
memorandum that we are talking about was made. There was a refusal slip
which was a direction to the person in the lookout card office to make
a lookout card, and also probably whoever made the refusal slip also
sent this memorandum to Moscow saying that a lookout card had been
prepared.
If you look at the refusal slip, which is retained in the main passport
file of Oswald, it doesn't have the notations that it would have had or
should have had if a card had been made. So that on the general basis
of the evidence, we conclude that it is probable that no card was made.
But you can't say that for sure because even if one had been made, it
would have been removed when the issue was resolved.
Representative FORD. If it is probable one wasn't made, but there is
a possibility, remote as it might be, don't you have some means of
recording when a lookout card is removed?
Mr. CHAYES. That notation also does not appear.
Representative FORD. So the probability is increased.
Mr. CHAYES. That is correct.
Representative FORD. That there was no lookout card ever made and put
into the file.
Mr. CHAYES. That is correct, sir. All of this is covered in some detail
in our response, our written response to the questionnaire, and comes
to the same conclusion, and all of these points are enumerated.
Mr. COLEMAN. There is a Commission Exhibit No. 948 where Mr. Chayes
under date of May 8, 1964, addressed himself to these problems.
Representative FORD. Is this that which I have here?
Mr. COLEMAN. Yes.
Representative FORD. And that is to be in the record?
Mr. CHAYES. Yes.
Mr. COLEMAN. We will give it an exhibit number.
(Discussion off the record.)
Mr. COLEMAN. Back on the record.
I would like to mark as Commission Exhibit No. 948 a letter from the
Legal Adviser to the Department of State to Mr. Rankin dated May 8,
1964.
(The document referred to was marked Commission Exhibit No. 948 for
identification.)
Mr. COLEMAN. I would like to ask the witness whether this letter was
prepared under his direction together with the attachments.
Mr. CHAYES. Yes; the letter and attachments are those which were
prepared--I haven't had a chance to examine each right now, but appear
to be those which were prepared in my office and under my personal
supervision in response to the request of the Commission.
Mr. COLEMAN. In Commission Exhibit No. 948 you explain the lookout card
situation.
Mr. CHAYES. Yes.
Mr. COLEMAN. You treat with the question of whether a lookout card was
in the State Department file on Oswald in 1961.
Mr. CHAYES. Yes, sir; I think it is covered in the answers to questions
12 and 13. In particular the answer to question 13 shows the
evaluation on which we reached the conclusion that it is probable that
a lookout card was not prepared.
Mr. COLEMAN. Was there any other occasion as a result of acts by Oswald
that you felt that a lookout card should have been prepared?
Mr. CHAYES. Yes.
Mr. COLEMAN. What were those?
Mr. CHAYES. Under the procedures of the Department, once Oswald was
given a repatriation loan, as he was on his return to this country in,
what was it, May of 1962, a lookout card should have been prepared and
should have been maintained in the lookout file during the period when
there was an unpaid balance on his repatriation loan, and in that case
it appears pretty certainly that no card was prepared. We don't even
have in that case a refusal slip indicating a direction to prepare a
card.
Mr. DULLES. Can you refuse issuance of a passport when there is an
unpaid balance due?
Mr. CHAYES. I don't know what the courts would say, but a person who
accepts a repatriation loan now signs an agreement that he will not
apply for a passport until he has paid the loan.
At the time that Oswald got his loan, the form was a little different,
but even then he signed a statement saying that he understood that
passport facilities would not be furnished to him while an outstanding
balance was----
Representative FORD. Could we have in the record the form that was in
existence before and that which is now the form?
Mr. CHAYES. I think you do have it in the report. Again it is in the
answer to question 13, page 3 of that answer, if you see there it says,
"In the promissory note"--it is about the middle of the page--"which
he signed for the loan he stated, section 423.6-5 that 'I further
understand and agree that after my repatriation I will not be furnished
a passport for travel abroad until my obligation to reimburse the
Treasurer of the United States is liquidated.'"
Mr. COLEMAN. You testified that you made a search of the records or you
had a search made of the records of the Department, and you conclude
that no lookout card was ever prepared.
Mr. CHAYES. Yes; we can't find any evidence that a lookout card might
have been prepared.
Mr. COLEMAN. Do you know why one was not prepared?
Mr. CHAYES. There could have been more than one reason. It could have
been simply a bureaucratic oversight. It could have been that they
didn't have date and place of birth information on Oswald.
Because of the possibility of identical names, the practice of the
Passport Office is not to prepare a lookout card on any individual on
the basis of his name alone. They need both name and date and place of
birth.
Now, it may have been either that the Finance Office failed to notify
the Passport Office because it did not have date and place of birth
information, or that it did notify the Passport Office, and because
there was no date and place of birth information, the Passport Office
did not make a card.
Mr. DULLES. But the Passport Office had that information.
Mr. CHAYES. The Passport Office had the date and place of birth
information on Lee Harvey Oswald; yes.
Mr. DULLES. But not on Marina?
Mr. CHAYES. Marina wouldn't have gotten into the Passport Office at
all. She is an alien. But they didn't know whether the Lee Harvey
Oswald, or they might not have known that the Lee Harvey Oswald that
came down from the Finance Office, if indeed it did come down, was the
same Lee Harvey Oswald as to whom they had date and place of birth
information.
That is the problem. The problem is avoiding the difficulties that
would arise if duplicated names put you into the lookout card system.
Mr. COLEMAN. Once the loan had been repaid, would the card have been
taken out?
Mr. CHAYES. Yes.
Mr. COLEMAN. So, therefore, by the time he applied for the passport in
June 1963, the loan had been paid so there wouldn't have been a lookout
card in any event.
Mr. CHAYES. That is correct. The lookout card would have been removed,
had it been made, on January 29, 1963, 6 months before the passport
application, when Oswald finally paid the last of his outstanding loan
balance.
Mr. DULLES. Can I ask a question there? Is the lookout card then only
prepared in those cases where a passport should be refused irrespective
of the moral turpitude or idiosyncracies or whatever else may be the
case with regard to the individual?
Mr. CHAYES. There are three cases in which a lookout card is prepared.
One is the case you have just mentioned, where a passport should be
refused or there is evidence that might warrant refusal that you have
to look into further.
The second is if you are a very important person and your passport is
supposed to be given specially expeditious treatment.
And the third, if another agency, for example, your old agency or the
FBI or any other agency has asked the Department to inform them in case
of the passport application by a particular individual, a lookout card
will be made. So those are the three categories.
Now, the first category is by far the biggest. There are 250,000
lookout cards, and by far the overwhelming majority of those is in the
first category, that is people as to whom there is evidence which would
warrant a determination that they should not be issued a passport.
Mr. COLEMAN. Does the State Department have any regulations which
set forth the circumstances under which they will refuse a person a
passport?
Mr. CHAYES. Yes; we have regulations which are set forth, a copy of
which is attached to question 17. They appear in volume 22 of the
Federal Register.
Mr. COLEMAN. Volume 22, title 22?
Mr. CHAYES. Yes; title 22, part 51 of the Code of Federal Regulations.
Mr. COLEMAN. I take it then that in 51.135 you have the regulation
which says that you can deny a passport to a member of a Communist
organization, is that correct?
Mr. CHAYES. Well, I think you have to be careful how you read that. It
is a member of a Communist organization registered or required to be
registered under section 7 of the Subversive Activities Control Act of
1950, as amended.
This 51.135 is a regulation which implements section 6 of the
Subversive Activities Control Act, which denies passports to members of
organizations required to register.
The only such organization so far against which a final order of
registration is outstanding, is the Communist Party of the United
States. So, not only technically but actually, membership in the
Communist Party of the Soviet Union would not bring you within this
paragraph of the regulation.
Mr. DULLES. Or the Communist Party of any other country.
Mr. CHAYES. Of any other country.
Mr. COLEMAN. Is there any other regulation, which the State Department
has, dealing with the circumstances under which they can refuse to
issue a passport?
Mr. CHAYES. The other regulation covering substantive grounds of
refusal is 51.136.
Mr. COLEMAN. Could you read into the record the regulation?
Mr. CHAYES. Yes; the regulation says:
"In order to promote"----
Well, it is entitled "Limitations on Issuance of Passports to Certain
Other Persons."
It reads:
"In order to promote and safeguard the interests of the United States,
passport facilities except for direct and immediate return to the
United States shall be refused to a person when it appears to the
satisfaction of the Secretary of State that the person's activities
abroad would (a) violate the laws of the United States, and (b) be
prejudicial to the orderly conduct of foreign relations, or (c)
otherwise be prejudicial to the interests of the United States."
Mr. COLEMAN. In 1963, on June 24 when Oswald applied for a passport, he
was issued the passport within 24 hours after the application; is that
correct?
Mr. CHAYES. Yes, sir.
Mr. COLEMAN. Is there any record in the Department that anyone ever
examined Oswald's file to make a determination of whether he should
have been issued a passport?
Mr. CHAYES. In 1963?
Mr. COLEMAN. 1963.
Mr. CHAYES. In 1963 the passport was issued on the basis of a simple
check of the lookout file under the normal procedures of the Department.
What happens is that when a field office, in this case it was the New
Orleans field office, get a series of passport applications, they
Telex the names of the applicants and their place and date of birth
to the Department, and the Department makes a name check through the
lookout card file. That is all. And if there isn't a lookout card in
the lookout card file, they authorize the issuance of the passport
by the field agency. The field agency has to make a determination of
citizenship, of course. But no further action is taken in Washington
unless for some reason or other the field agency would wish to send a
particular case forward.
Mr. COLEMAN. Since there was no lookout card, I take it we can assume
that the June 25, 1963, passport was issued without any----
Mr. CHAYES. Without any examination.