Mr. CHAYES. Exactly.
Mr. COLEMAN. That were in the Department.
Mr. CHAYES. I am confident that that was the case.
Mr. DULLES. May I ask whether there are any lookout cards to your
knowledge that are filed under that third section there?
Mr. CHAYES. "Violate the laws or be prejudical"?
Mr. DULLES. That is it; yes.
Mr. CHAYES. Well, I don't know for a fact that there are, but if we
would make such a determination with respect to some person or group, I
suppose lookout cards would be prepared for such a group.
And I would go further and say that probably the authority, you
don't need authority to do it, but the theory of preparing cards
for defectors which we are now doing under the Schwartz to Knight
memorandum, that we referred to a moment ago, is that it is possible
that a defector, upon examination of his file, will be shown to fall
within one of these categories.
Mr. DULLES. Would Oswald now be considered a defector, or should he
have been at that time if the regulations that you now have in effect
were then in effect?
Mr. CHAYES. If we had the instruction in the Schwartz to Knight
memorandum, yes; there would have been a lookout card on Oswald.
Mr. COLEMAN. Mr. Chayes, assuming on June 25, 1963, a person in the
Passport Office had examined all of the files that the State Department
had on Oswald from 1959 through June 25, 1963, in your opinion could
the Department have refused Oswald a passport based upon section 51.136
of the regulation?
Mr. CHAYES. In my opinion, they could not. They could not have refused
a passport based on the information in the Oswald file.
Representative FORD. If that is true, how could you have a lookout card
now that would have resulted, that would result in a passport being
refused?
Mr. CHAYES. I don't think we could. What the lookout card would do
would be to refer you to the file. You would look into the file. You
might then want some further investigation as to this fellow.
You might, having seen that you were dealing with this kind of a
person, want to examine him more fully on his travel plans and so on
and so on. That further investigation might turn up some information
which would warrant a determination under one of these subsections. But
if it turned up nothing but what was in the file, you would have to
issue the passport, in my judgment.
Mr. DULLES. That is, lookout cards might well be put in in borderline
cases, but when you came to consider the case on all the facts, you
would decide in favor of issuance of the passport rather than refusal?
Mr. CHAYES. Yes; that is the same thing with the expatriation card
which should have been made out for Oswald in 1960. It should have
been made out because there was a possibility that he had expatriated
himself. But then when he came to apply for the passport, all the
lookout card would do is say, "Investigate this carefully and determine
this issue."
And as you say, when you got all the facts as in the expatriation
situation, you might determine that he had not expatriated himself.
Representative FORD. At least in this case if there had been a lookout
card, there would have been a delay.
Mr. CHAYES. Yes.
Representative FORD. That is the very least that would have happened.
Mr. CHAYES. There would have been a delay of a couple of days probably.
Representative FORD. And in this case time might have been important.
Mr. CHAYES. No; if you are talking about this case as it actually
happened, time wasn't important at all. He applied for the passport in
June of 1963. He got it in June of 1963, and he made no effort to use
the passport, nor did he have any occasion to use it, until he died.
Mr. DULLES. It would have been a blessing for us if he had used it,
say, in the sense that the assassination might not have taken place, if
he had taken the passport and gone to China as he may have contemplated.
Mr. COLEMAN. Mr. Chayes, is it your testimony that when the Department
knows a person went abroad in 1959, attempted to defect to the Soviet
Union, stated that he had information on radar which he was going
to turn over to the Soviet, and the difficulty that we had to get
him back, it is your opinion that it would not be prejudicial to the
interests of the United States for him to be given a passport to go
abroad the second time?
Mr. CHAYES. Well, I think that is correct without knowing any more
about what he intended to do this time on his travels abroad.
You have got to remember that the discretion that the Secretary can
exercise under 51.136, is as the Supreme Court said in the Kent case, a
limited discretion, although it is phrased in very broad terms.
For example, we have people who are going abroad all the time and
making the nastiest kinds of speeches about the United States, or who
go abroad for political activity that is completely at odds with the
policy of the United States, and may be even directed against our
policy. But we could not deny a passport on the grounds of political
activities, political associations, speech, things of that kind. So
the Kent case says, as I read it and as most others do. I think you
have to, in order to apply this section, there are some fairly regular
categories, fugitives from justice.
Mr. DULLES. Just one question. If there had been a lookout card in, and
then you would reconsider the case in June 1963, when he applied, would
you not then normally have notified the FBI and the CIA that here was a
returned defector?
Mr. CHAYES. No.
Mr. DULLES. Who was going abroad again?
Mr. CHAYES. No; not unless the FBI and the CIA had asked us to notify
them. However, what we might have done would be to use FBI facilities
to make a further investigation of the situation. That is possible.
Mr. COLEMAN. Mr. Chayes informed us prior to the commencement of his
testimony that he would have to leave at 4 p.m., but would return
tomorrow morning to complete it. He will now be excused. Thank you, sir.
Mr. DULLES. Thank you very much.