TESTIMONY OF ABRAM CHAYES RESUMED

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until we are told otherwise, withdrawn passports under 51.136 from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.

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