Mr. COLEMAN. Without any consultation of the files on Oswald----

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.

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