The CHAIRMAN. The Commission will come to order. Mr. Chayes is on the
stand. Mr. Coleman, you may continue the examination.
Mr. COLEMAN. Mr. Chayes, at the adjournment of your testimony
yesterday, we were talking about section 51.136, State Department
regulations dealing with the issuance of passports.
Mr. CHAYES. Yes; Mr. Coleman.
Mr. COLEMAN. Could you tell us the circumstances in which the State
Department feels it can refuse a passport based upon the regulations?
Mr. CHAYES. Yes; there are some fairly regular categories of refusals
under that section. The first is a violation of a travel restriction.
As you know, the section has from time to time placed certain areas out
of bounds for travel by U.S. citizens without a specially validated
passport.
I think, yesterday, Mr. Dulles read into the record, from the Oswald
passport, the then applicable area restrictions. And if a person having
a passport violates these restrictions, let's say travels to Communist
China without a specifically validated passport, we regard that as
warranting the withdrawal of the passport under section 51.136.
Now I have to say that I think in one case, the case of William Worthy,
a withdrawal of a passport under those circumstances was sustained.
However, when he later traveled without a passport, and then reentered
the country without a passport, which is a violation of the passport
laws as they read on the books, he was indicted and prosecuted in the
district court, convicted, and on appeal the conviction was reversed
on the ground that it was unconstitutional to make reentry, without a
passport, an offense. That case has not been appealed to the Supreme
Court.
Mr. COLEMAN. Is that the case that was in the Fifth Circuit?
Mr. CHAYES. I think so.
Mr. COLEMAN. It came up from the Federal District Court in Florida?
Mr. CHAYES. New Orleans, it came up from New Orleans.
Mr. DULLES. This applies to American citizens of course?
Mr. CHAYES. American citizens. Only American citizens can get
passports. When we are dealing with aliens, we are in the visa area.
Mr. DULLES. Yes.
Mr. CHAYES. Now the travel restrictions, the area restrictions are
under attack in a number of other cases, that come up in different
procedural ways. But we have in the past, and will continue to do so
until we are told otherwise, withdrawn passports under 51.136 from
people who have violated travel restrictions.
The next category is fugitives from justice. There if a person is under
indictment or even if there is a warrant for his arrest, certainly if
he has been convicted, we will not issue a passport to him to permit
him to depart. In the Kent case, the Supreme Court recognized this as
one of the well-defined categories in which the Secretary's discretion
to withhold a passport was confirmed by practice and experience.
As I say, the fugitive from justice category is one that operates on
the whole within the United States. If a man is abroad and is indicted,
we will not ordinarily withdraw his passport abroad or mark his
passport good only for direct return to the United States. We never
articulated the rationale for that, but essentially it doesn't really
fall within our notion of (a), (b), or (c) of 51.136, and our motion
is that the remedy against persons abroad who are charged with crime
is extradition rather than the use of the passport power to get them
returned.
Now, a third category is passport fraud, where someone has in fact
acted in one way or another to make fraudulent use of the passport
itself. We have withdrawn passports under those circumstances.
Then there is a miscellaneous category, which doesn't include too many.
For instance, in one case a man was convicted in the Federal Republic
of Germany for attempting to acquire knowledge of state secrets.
Another man had been involved in a number of fraudulent schemes in
various countries, issued worthless checks. He was arrested in
Australia for fraud and subsequently convicted and sentenced to jail
there.
Another one paid for his passport renewal with a worthless check. That
in itself is perhaps in the passport fraud category. Left the United
States paying for his passage with a worthless check. He represented
himself to be an employee of the U.S. Government on leave and continued
to put out worthless checks, using his passport for identification. We
have summarized these actions under these categories in a letter which
I sent to Mr. Rankin, on June 6. It contains a list of the actions in
these categories in the years 1962-64--through March of 1964.
Mr. COLEMAN. Can the record note that the original of that letter has
been given Commission Exhibit No. 949?
Mr. CHAYES. Very good. Now it should be said that there is one category
here that does not appear in the list that we have attached to the
letter, although it is explained in a paragraph, the third paragraph
of the letter, and that is in fact the category that Oswald himself
was in, in 1961, when he wanted to come back. That is where there is
a person abroad who is in some kind of trouble at the time, or who is
anxious to leave where he is and come right back to the United States,
as Oswald did.
We issue a passport as the regulation says, for direct and immediate
return to the United States. And that action is taken under section
136. But since it is taken abroad, heretofore there has been no central
list of the actions of that kind in the Department's files. As a result
of the Commission's inquiry a list is being maintained from here on
out, but it is not possible without going through a million passport
files, to find when action of that kind was taken in the past. I know
of a number of cases of my own knowledge where this happened.
For example, one or two, a man and his wife, of the students who went
to Cuba last year went on to Morocco, and got into trouble with the
Moroccan police and so on, and we marked their passport for immediate
return. I am told that the names of those two students are listed under
category (a), in 1963 on the list. Their passports were withdrawn
because they had violated the travel restrictions, but also, for
most of the students we didn't do anything about the passports until
they got back to the United States when we withdrew them, but in
their particular case, because they got in trouble with the Moroccan
authorities and were pretty obstreperous about it, we marked their
passport good only for direct and immediate return.
Another case that I remember, in my own experience, was a case of
a notorious gun runner in the Congo, who was running guns to the
Katangese rebels during the Congo operation, and he was apprehended
by the Congolese authorities. We didn't want him to be tried, and the
Congolese didn't want to try him if we didn't want him to be tried. On
the other hand they didn't want him around there either.
So we marked his passport good for direct and immediate return. In
other words, those cases are cases where you can find either some form
of trouble which makes the applicant, the passport holder want to go
directly home, and us want to make him go directly home, or some very
immediate and direct relation to our relations with that particular
country. And as I said yesterday, we have taken the view that it can
never be done solely, because of political activities or political
associations or the exercise of speech. It has to be something beyond
that.
Mr. COLEMAN. I take it that judgment is effected in part by the holding
of the Supreme Court in the _Kent_ v. _Dulles_ case.
Mr. CHAYES. Yes; it derives from that. The Kent case said that the
Secretary was not entitled without statutory authorization, at least
as we have read the case, was not entitled in the absence of statute,
to withhold a passport on grounds related to political association and
beliefs.
Mr. COLEMAN. Yesterday you testified that you had reviewed all of the
State Department files dealing with Oswald, and you paid attention
to those files as they existed as of June 1963, and that it was your
judgment that the Passport Office could not have refused to issue a
passport to Oswald in June 1963.
Mr. CHAYES. It is my judgment that the passport was properly issued in
June of 1963; yes, sir.
Mr. COLEMAN. You know that in October 1963, the Passport Office
received information that Mr. Oswald had been at the Russian Embassy in
Mexico. Would that information have changed the result at all, in your
judgment?
Mr. CHAYES. No, sir; that information by itself could not have affected
the result. As a matter of fact, as you know, the passport application
itself indicated that Oswald wanted to travel to Russia, and the mere
fact that he had gone to the Russian Embassy in Mexico, would not of
itself have been a disqualifying event.
Representative FORD. Even despite the past history?
Mr. CHAYES. I think that is correct. In other words, by itself it
doesn't disqualify the applicant because there is no suggestion here
that even--first of all could I review the message that came in on
October 16, to the Department. I think I may have it in my own document
here.
(Discussion off the record.)
Mr. CHAYES. All that is suggested here is that he was in the Embassy
and he contacted the Soviet Embassy about a telegram which had been
sent. Now, there is nothing from that, I don't think, that adds
anything or permits us to infer in any way that his travel abroad would
be inimical to the foreign policy of the United States or otherwise
harmful to the national interest, or that he was going abroad to
violate U.S. law.
I think this can be said, and I don't think it should be said in
criticism of the people who made the decision at the time, because I
think the decision at the time and on the basis of our procedures and
on the basis of our experience was proper.