At a time when an Act of Congress required a passport for
foreign travel by citizens if a state of national emergency had
been declared by the President and when the Proclamation necessary
to make the Act effective had been made, the Secretary of State,
after administrative hearings, concluded that the issuance of a
passport to petitioner "would be contrary to the national
interest," and denied him a passport. This action apparently was
based on petitioner's alleged association with various Communists
and with persons suspected of being part of the Rosenberg espionage
ring, his alleged presence at an apartment allegedly used for
microfilming material obtained for the use of a foreign government,
and upon confidential information in the possession of the
Government which was not revealed to petitioner.
Held: the Secretary was not authorized to deny the
passport for these reasons under the Act of July 3, 1926, 22 U.S.C.
§ 211a, or § 215 of the Immigration and Nationality Act of 1952, 8
U.S.C. § 1185.
Kent v. Dulles, ante, p.
357 U. S. 116. Pp.
357 U. S.
145-150.
102 U.S.App.D.C. 372, 254 F.2d 71, reversed.
Page 357 U. S. 145
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, a native-born citizen, is a physicist who has been
connected with various federal projects and who has been associated
as a teacher with several of our universities. In March, 1954, he
applied for a passport to enable him to travel to India in order to
accept a position as research physicist at the Tata Institute of
Fundamental Research, affiliated with the University of Bombay. I n
April, 1954, the Director of the Passport Office advised him that
his application was denied because the Department of State "feels
that it would be contrary to the best interest of the United States
to provide you passport facilities at this time."
Petitioner conferred with an officer of the Passport Office,
and, as a result of that conversation, executed an affidavit
[
Footnote 1] which covered the
wide range of matters inquired into, and which stated in part:
"I am not now and I have never been a member of the Communist
Party."
"With the possible exception of a casual and brief association
with the work of the Joint Anti-Fascist Refugee Committee for a few
months in 1941 and 1942 (all as related below), I am not now and
have never been a member of any of the organizations
Page 357 U. S. 146
designated on the Attorney General's list (which I have
carefully examined)."
"I am not now engaged, and I have never engaged, in any
activities which, so far as I know or at any time knew, support or
supported the Communist movement."
"I wish to go abroad for the sole purpose of engaging in
experimental research in physics at the Tata Institute of
Fundamental Research in Bombay . I am not going abroad to engage in
any activities which, so far as I know or can imagine, will in any
way advance the Communist movement."
The Director of the Passport Office wrote petitioner's lawyer in
reply that the Department had given careful consideration to the
affidavit, and added,
"in view of certain factors of Mr. Dayton's case which I am not
at liberty to discuss with him, the Department must adhere to its
previous decision that it would be contrary to the best interests
of the United States to provide Mr. Dayton with passport facilities
at this time."
Later, the Director wrote again, saying:
"In arriving at its decision to refuse passport facilities to
Mr. Dayton, the Department took into consideration his connection
with the Science for Victory Committee and his association at that
time with various communists. However, the determining factor in
the case was Mr. Dayton's association with persons suspected of
being part of the Rosenberg espionage ring and his alleged presence
at an apartment in New York which was allegedly used for
microfilming material obtained for the use of a foreign
government."
Thereupon petitioner, pursuant to the Passport Regulations of
the Secretary of State, as amended, 22 CFR § 51.1
et seq.,
filed a petition of appeal with the Board
Page 357 U. S. 147
of Passport Appeals. [
Footnote
2] He also requested, pursuant to the Regulations, [
Footnote 3] information from the Board
of particulars concerning three items: (1) petitioner's alleged
"association with various communists"; (2) his "association with
persons suspected of being part of the Rosenberg espionage ring";
and (3) his "alleged presence at an apartment in New York which was
allegedly used for microfilming material obtained for the use of a
foreign government." The Board's reply contained some, but very
little, of the information requested, and it stated:
"The file contains information indicating that the applicant was
present at 65 Morton Street, New York City, in the summer of 1949
(July or August) and at Apartment 61, 65 Morton Street, New
York
Page 357 U. S. 148
City, during the month of January, 1950. The applicant's
relationship, if any (past or present), with the following-named
persons is considered pertinent to the Board's review and
consideration of the case: Marcel Scherer, Rose Segure, Sandra
Collins, Frank Collins, Bernard Peters, Kurt Fritz, Karl Sitte,
Louis S. Weiss, Alfred Sarant, and William Perl."
A hearing was held [
Footnote
4] at which witnesses for petitioner and for the State
Department testified. Pursuant to the Regulations, [
Footnote 5] the Board announced, over
petitioner's protest, that it would consider "a confidential file
composed of investigative reports from Government agencies" which
petitioner would not be allowed to examine. [
Footnote 6]
Page 357 U. S. 149
Later, petitioner was advised by the Acting Secretary of State
that the Board had submitted its recommendation, and that the
Secretary, after "a review of the entire record and on the basis of
all the evidence, including that contained in confidential reports
of investigation," had denied the application. The denial was
rested specifically upon § 51.135 of the Regulations. [
Footnote 7]
Petitioner then brought suit in the District Court for
declaratory relief. The District Court entered summary judgment for
the Secretary.
146 F.
Supp. 876. The Court of Appeals reversed, 99 U.S.App.D.C. 47,
237 F.2d 43, and remanded the case to the Secretary for
reconsideration in
Page 357 U. S. 150
the light of its earlier decision in
Boudin v. Dulles,
98 U.S.App.D.C. 305, 235 F.2d 532.
On remand, the Secretary, without further hearing, denied the
application under § 51.135(c), [
Footnote 8] saying that "the issuance of a passport would
be contrary to the national interest." The Secretary at this time
filed a document called "Decision and Findings" which is reproduced
as an
357
U.S. 144app|>Appendix to this opinion.
The District Court again granted summary judgment for the
Secretary,
146 F.
Supp. 876, and the Court of Appeals affirmed by a divided vote,
102 U.S.App.D.C. 372, 254 F.2d 71. The case is here on a petition
for a writ of certiorari. 355 U.S. 911.
The question most discussed in the briefs and on oral argument
is whether the hearing accorded petitioner satisfied the
requirements of due process. A majority of the Court thinks we need
not reach that constitutional question, since, on their face, these
findings show only a denial of a passport for reasons which we have
today held to be impermissible.
Kent v. Dulles, ante, p.
357 U. S. 116.
Whether there are undisclosed grounds adequate to sustain the
Secretary's action is not here for decision.
Reversed.
[
Footnote 1]
The Passport Regulations of the Secretary of State, as amended,
22 CFR § 51.142, provide:
"At any stage of the proceedings in the Passport Division or
before the Board, if it is deemed necessary, the applicant may be
required, as a part of his application, to subscribe, under oath or
affirmation, to a statement with respect to present or past
membership in the Communist Party. If applicant states that he is a
Communist, refusal of a passport in his case will be without
further proceedings."
[
Footnote 2]
"§ 51.138. In the event of a decision adverse to the applicant,
he shall be entitled to appeal his case to the Board of Passport
Appeals provided for in § 51.139."
"§ 51.139. There is hereby established within the Department of
State a Board of Passport Appeals, hereinafter referred to as the
Board, composed of not less than three officers of the Department
to be designated by the Secretary of State. The Board shall act on
all appeals under § 51.138. The Board shall adopt and make public
its own rules of procedure, to be approved by the Secretary, which
shall provide that its duties in any case may be performed by a
panel of not less than three members acting by majority
determination. The rules shall accord applicant the right to a
hearing and to be represented by counsel, and shall accord
applicant and each witness the right to inspect the transcript of
his own testimony."
[
Footnote 3]
"§ 51.162. The purposes of the hearing is to permit applicant to
present all information relevant and material to the decision in
his case. Applicant may, at the time of filing his petition,
address a request in writing to the Board for such additional
information or explanation as may be necessary to the preparation
of his case. In conformity with the relevant laws and regulations,
the Board shall pass promptly and finally upon all such requests,
and shall advice applicant of its decision. The Board shall take
whatever action it deems necessary to insure the applicant of a
full and fair consideration of his case."
[
Footnote 4]
Section 51.163 of the Regulations provides:
"The Passport file and any other pertinent Government files
shall be considered as part of the evidence in each case without
testimony or other formality as to admissibility. Such files may
not be examined by the applicant, except the applicant may examine
his application or any paper which he has submitted in connection
with his application or appeal. The applicant may appear and
testify in his own behalf, be represented by counsel subject to the
provisions of § 51.161, present witnesses, and offer other evidence
in his own behalf. The applicant and all witnesses may be
cross-examined by any member of the Board or its counsel. If any
witness whom the applicant wishes to call is unable to appear
personally, the Board may, in its discretion, accept an affidavit
by him or order evidence to be taken by deposition. Such
depositions may be taken before any person designated by the Board,
and such designee is hereby authorized to administer oaths or
affirmations for the purpose of the depositions. The Board shall
conduct the hearing proceedings in such manner as to protect from
disclosure information affecting the national security or tending
to disclose or compromise investigative sources or methods."
[
Footnote 5]
Supra, note 4
[
Footnote 6]
The Regulations in providing for that contingency state:
"§ 51.170. In determining whether there is a preponderance of
evidence supporting the denial of a passport, the Board shall
consider the entire record, including the transcript of the hearing
and such confidential information as it may have in its possession.
The Board shall take into consideration the inability of the
applicant to meet information of which he has not been advised,
specifically or in detail, or to attack the credibility of
confidential informants."
[
Footnote 7]
That section provides:
"In order to promote the national interest by assuring that
persons who support the world Communist movement, of which the
Communist Party is an integral unit, may not, through use of United
States passports, further the purposes of that movement, no
passport, except one limited for direct and immediate return to the
United States, shall be issued to:"
"(a) Persons who are members of the Communist Party or who have
recently terminated such membership under such circumstances as to
warrant the conclusion -- not otherwise rebutted by the evidence --
that they continue to act in furtherance of the interests and under
the discipline of the Communist Party;"
"(b) Persons, regardless of the formal state of their
affiliation with the Communist Party, who engage in activities
which support the Communist movement under such circumstances as to
warrant the conclusion -- not otherwise rebutted by the evidence --
that they have engaged in such activities as a result of direction,
domination, or control exercised over them by the Communist
movement;"
"(c) Persons, regardless of the formal state of their
affiliation with the Communist Party, as to whom there is reason to
believe, on the balance of all the evidence, that they are going
abroad to engage in activities which will advance the Communist
movement for the purpose knowingly and wilfully of advancing that
movement."
[
Footnote 8]
Supra, note 7
|
357
U.S. 144app|
APPENDIX TO OPINION OF THE COURT
DECISION AND FINDINGS OF THE SECRETARY OF STATE
I
N THE CASE OF WELDON BRUCE DAYTON
I have examined the files of the Department of State concerning
the passport application of Weldon Bruce Dayton, including the
proceedings in the Passport Office and before the Board of Passport
Appeals, including confidential security information, and have
found and concluded as follows:
Page 357 U. S. 151
I
a. I find that applicant was active in the Science for Victory
Committee while at the University of California during 1943-44,
serving as Chairman of the organization during much of that period.
As Chairman, he associated with Frank and Sandra Collins, and Rose
Segure, who had been instrumental in organizing the said
organization. This finding is based on information contained in the
open record, including applicant's own statements.
b. Confidential information contained in the files of the
Department of State, constituting a part of the record considered
by the Passport Office, the Board of Passport Appeals, and myself,
indicates that the above-named organization was conceived and
organized by Communist Party officials as a front for propaganda
and espionage activities, and that Frank and Sandra Collins and
Rose Segure were members of the Communist Party at the time of
their association with applicant and the Science for Victory
Committee.
II
a. I find that, during the period 1946-1950 at Ithaca, New York,
applicant maintained a close association and relationship with one
Alfred Sarant. At applicant's invitation, Sarant and his wife lived
in applicant's home for a period of eight months in 1947-1948,
pending the completion of the Sarant home next door to applicant's
home. Thereafter, Dayton and Sarant were neighbors until July,
1950. On approximately July 18, 1950, Sarant became the subject of
intensive interrogation by the Federal Bureau of Investigation.
Approximately a week after the interrogation had begun, Sarant
departed from Ithaca and subsequently entered Mexico with
applicant's wife. This finding is based on information contained in
the open record, including applicant's own statements.
Page 357 U. S. 152
b. Confidential information contained in the files of the
Department of State, constituting a part of the record considered
by the Passport Office, the Board of Passport Appeals, and myself,
establishes with respect to Alfred Sarant that he was an active
member of the Communist Party; that he admitted said membership
during the years 1943 and 1944; and that he was involved in the
espionage apparatus of Julius Rosenberg.
III
a. I find that the applicant was present during 1949 and 1950,
on more than one occasion, in the apartment building at 65 Morton
Street, New York City, in which Alfred Sarant was lessee of
apartment 6-I. This finding is based on information contained in
the open record.
b. Confidential information contained in the files of the
Department of State, constituting a part of the record considered
by the Passport Office, the Board of Passport Appeals, and myself,
indicates that Sarant's apartment at 65 Morton Street, New York
City, was used by Julius Rosenberg and other members of his spy
ring for the microfilming of classified United States Government
documents which were ultimately transferred to a foreign power.
IV
a. I find that, since 1938, the applicant, an experienced
physicist, has maintained a close association and relationship with
one Bernard Peters; that Peters was responsible for the applicant's
offer of employment at the Tata Institute of Fundamental Research,
Bombay, India; and that one of the primary stated purposes of the
applicant's proposed travel abroad is to work in close
collaboration with Peters at the Tata Institute. This finding is
based on information contained in the open record, including
applicant's own statements.
Page 357 U. S. 153
b. Confidential information contained in the files of the
Department of State, constituting a part of the record considered
by the Passport Office, the Board of Passport Appeals, and myself,
indicates that Bernard Peters, who recently renounced his American
citizenship, has held membership in the Communist Party outside of
the United States; has engaged in numerous Communist activities
both in this country and abroad; and is suspected of being a
Communist espionage agent.
V
I have reason to believe, on the balance of all the evidence,
that the applicant is going abroad to engage in activities which
will advance the Communist movement for the purpose, knowingly and
wilfully of advancing that movement. I have reached this conclusion
on the basis of the foregoing findings, together with the
confidential information relating thereto, as well as other
confidential information contained in the files of the Department
of State, the disclosure of which might prejudice the conduct of
United States foreign relations. I have also taken into
consideration the serious doubts as to applicant's general
credibility raised by the applicant's denial in the face of
convincing contrary evidence, including the oral testimony of three
apparently disinterested witnesses of ever having been present at
65 Morton Street. The passport application of Weldon Bruce Dayton
is therefore denied under Section 51.135(c) of the Passport
Regulations (22 CFR § 51.135(c)), and because the issuance of a
passport would be contrary to the national interest.
VI
The confidential information referred to in paragraphs I(b),
II(b), III(b) and IV(b) above relates to the internal security of
the United States. The substance
Page 357 U. S. 154
of this confidential information was disclosed to the applicant
during the consideration of his passport application. To disclose
publicly the sources and details of this information would, in my
judgment, be detrimental to our national interest by compromising
investigative sources and methods and seriously interfering with
the ability of this Department and the Executive Branch to obtain
reliable information affecting our internal security. Moreover, it
would have an adverse effect upon our ability to obtain and utilize
information from sources abroad and interfere with our established
relationships in the security and intelligence area, and might,
with respect to information referred to in paragraph V, prejudice
the interest of United States foreign relations.
Date: October 4, 1956.
MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON, MR. JUSTICE
HARLAN and MR. JUSTICE WHITTAKER concur, dissenting.
On the grounds stated in my dissent to
Kent v. Dulles,
ante, p.
357 U. S. 130,
also decided this day, I think the Secretary of State is authorized
to deny a passport to an applicant who is going abroad with the
purpose of engaging in activities that would advance the Communist
cause. Because the majority does not consider any of the
constitutional issues raised by petitioner, it would be
inappropriate for me, as a dissenter, to consider them at this
time.
Cf. Peters v. Hobby, 349 U.
S. 331,
349 U. S.
353-357 (1955). Accordingly, I would affirm on the
question of authority without reaching any constitutional
issue.