Mr. CHAYES. And I think there should.
Representative FORD. He would then be given his passport again despite
the new regulation.
Mr. CHAYES. But if the investigation turned up no more than what was in
the file with respect to his purposes for travel abroad, if we didn't
have some hard factual evidence to support a finding that his travel
would fall within one of these three categories in 51.136, then the
passport would be issued. We have to start from the proposition that
the Supreme Court has said that the right to travel is a part of the
liberty protected by the fifth amendment, and that the Secretary cannot
withhold a passport arbitrarily. Now we have taken the position, I
think properly so, that in order to justify withholding under one of
these three subsections of 51.136, there has to be a real and concrete
showing that the travel either would violate the laws of the United
States, be prejudicial to the orderly conduct of foreign relations, or
otherwise be prejudicial to the interests of the United States.
Add to that that you can't make that finding on the basis of, let's
say, political activity abroad. Suppose we could show, for example,
that Oswald was going to the Soviet Union to make a speech before the
Supreme Soviet telling how terrible things were in the United States
and how bad the U.S. policies toward Cuba were, for example.
Representative FORD. Would that preclude him from getting a passport?
Mr. CHAYES. No. We have people abroad who are doing that all the time.
We have got Malcolm X traveling across Africa making one speech after
the other about how terrible our policies on the race question are.
And it is perfectly clear to me on the basis of the cases--although we
might get a little more information in the next couple of weeks, we
have a case before the Chief Justice now--but it is clear to me on the
basis of the cases so far that if what is involved is speech, no matter
how hostile it is to our policies or our objectives, you can't deny a
passport for that.
Representative FORD. What about Oswald's statements to either Mr.
Snyder or Mr. McVickar that he as a former Marine was going to
give information he had acquired as a former Marine to the Soviet
authorities.
Mr. CHAYES. That is, of course, a more difficult one. Of course we know
he didn't have very much information.
Representative FORD. No, but he was a Marine and he had been trained
as an electronics radar specialist. He said he was going to give this
information.
Mr. CHAYES. But the second point is that on the whole these criteria
look to the future. They look to the purpose of this travel. Now if he
had committed an offense against the espionage laws or whatever it was
abroad on his past performance----
Representative FORD. This isn't a question of freedom of speech.
Mr. CHAYES. No; I understand.
Representative FORD. This is a question of giving away Government
secrets.
Mr. CHAYES. No, no; I don't equate the two at all. But that kind of
thing I think would have been the subject of investigation under our
new procedures, and might have turned up something. I think if you
could have found, for example, that he did in the past give information
of this kind, you might be in a different position.
Representative FORD. Was any investigation of that aspect made at the
time?
Mr. CHAYES. Yes.
Representative FORD. When he came back and asked for the renewal of his
passport?
Mr. CHAYES. No; but what happened was when he returned to the United
States--first of all the FBI was kept constantly informed, and as you
know kept looking into the Oswald situation periodically from the time
he came back.
Mr. COLEMAN. And those reports were in the passport file.
Mr. CHAYES. They were in the passport file, and immediately after he
came back, he was interviewed very fully by the FBI, and I think as
I recall the file--I haven't reviewed it recently--I think he was
questioned on this very point by the FBI, and he said he hadn't given
any and they weren't very much interested in it. And the FBI apparently
was satisfied with that. They made no further move against him on that
basis.
So that we did have whatever information there was.
As I say, although this regulation looks to the purpose of the
forthcoming travel and not to the past travel, nonetheless I think it
is perfectly appropriate to make inferences on the basis of what he
did before. We refused to issue a passport to Worthy when he would not
give us assurances that he would observe the restrictions, because on
the basis of his past conduct, we were prepared to infer that in the
absence of such assurances, he might well disobey the restrictions.
Mr. Ehrlich points out to me that on May 16, 1962--this is one of
several such memorandums--our security office sent to the FBI with
copies to the other security agencies a memorandum on the subject of
American defectors, and their status in the U.S.S.R., and there is a
summary of that which covers Oswald. This was just before he came home,
I guess.
Mr. COLEMAN. Will you indicate what file that is by the number?
Mr. CHAYES. This is the folder II in the numbering that we gave you,
and it is document No. II-6(4), in our number system.
Mr. DULLES. Could you read or indicate what that says about Oswald?
Mr. CHAYES. Oh, yes; it just summarizes his status as of that date and
it says:
"Lee Oswald: It has been determined that Oswald the ex-Marine is still
an American citizen. Both he and his Soviet wife now have exit permits
and the Department has given approval for their travel with their
infant child to the U.S.A. There is a problem with his wife, however,
in that SOV in the Department is trying to get a waiver of 243(g),
which requires that Oswald's wife pick up her visa for entry into the
U.S.A. in Western Europe. As soon as this question has been settled,
they will be free to travel."
Mr. DULLES. May I clarify one other point?
Mr. COLEMAN. May I ask him a question about that? In that file Mr.
Chayes isn't there also another FBI report dated August 30, 1962, which
indicates that Lee Harvey Oswald was reinterviewed by the Bureau agents
on August 16, 1962, with respect to contacts he had made at the Soviet
Embassy in Washington?
Mr. CHAYES. I would have to review the file itself, for the specific
details as to dates and so on. I do remember that the FBI in its
subsequent inquiries talked to him about his contacts with the Soviet
Embassy. He had some, of course, in connection with his wife. They
asked him whether he had had any other contacts with the Soviets and so
on.
Mr. COLEMAN. Mr. Dulles, you had a question.
Mr. DULLES. This apparently just went to the Bureau, did it not? Did it
go to the other agencies?