Dayton v. Dulles

PETITIONER:Dayton
RESPONDENT:Dulles
LOCATION:LaSalle Street Station

DOCKET NO.: 621
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 357 US 144 (1958)
ARGUED: Apr 10, 1958
DECIDED: Jun 16, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – April 10, 1958 in Dayton v. Dulles

Earl Warren:

Number 621, Weldon Bruce Dayton, Petitioner, versus John Foster Dulles.

Mr. Rand, you may proceed.

Harry I. Rand:

Mr. Chief Justice and may it please the Court.

This case like the preceding case involves the denial of a passport by the Secretary of State under section 51.135 of this Passport Regulations.

Unlike the previous case however, in this case, petitioner has filed an affidavit stating that he was never a member of the Communist Party.

He has exhausted all the steps in the administered proceeding in the Department of State and nevertheless, more than four years after, the application was filed, he still stands here today by his counsel deprived of a passport and therefore barred under the presently effective provisions of law from travel abroad.

The petition here, Dr. Weldon Bruce Dayton is a physicist by education and training.

He’s a native-born American citizen, born — post and just a bit more than 40 years ago.

His specialty in physics as a result of his training has been on the field of Cosmic Ray Physical Research.

The field that as I understand it, deals with researches in the elementary particles of matter and which as the record discloses without dispute, is completely non-classified, is completely without secrecy.

On March 5, 1954, petitioner filed an application with Department of State to enable him to travel to India where he had been offered an appointment of the Tata Institute of Fundamental Research in Bombay.

The Tata Institute is a well-renowned educational institution attached and affiliated with the University of Bombay.

Advised by the Director of the Passport Office that a passport would be refused to him because its issuance would be contrary to the best interest of the United States.

Petitioner immediately sought an informal conference in the Passport Office and at that conference, petitioner and I as his council attended.

Petitioner was interrogated, asked numerous questions by an official of the Passport Office, he answered all those questions.

The official then suggested that the petitioner file an affidavit in which he would embody the answers of those questions.

And so, petitioner prepared a comprehensive 22-paged, single-spaced, typewritten affidavit in which he set forth the details in which he thought the Passport Office would be interested.

That affidavit appears at pages 10-42 of the record.

And in that affidavit, at page 12 of the record, petitioner averred the record as this very large joint appendix, Your Honors.

I’m sorry, we had to impose that on you but we have not been able to print the record in this case.

At page 12 of the record, Your Honors will find the petitioner averred among other things in this affidavit as follows.

“I am not now and I’ve never been a member of the Communist Party with a 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 the 1942, I am not now and never have been a member of any of the organizations 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 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 to Communist movement.”

Notwithstanding this lengthy affidavit, the Passport Office persisted in his denial of a passport, and so petitioner, in accordance with the Passport Regulations, appealed to Board of Passport Appeals of the Department of State.

Several hearings were held before that Board.

The testimony adduced that those hearings both from petitioner and Dr. Corson, a professor of physics at Cornell University whom he called and three witnesses from the Board, called with respect to a single aspect with the charges against petitioner.

All their testimony is set forth in the record beginning with page 58 and continuing perhaps ad nauseam until page 270 of this record.

At the beginning of these hearings before the Board, it was made clear that despite the vigorous protest of petitioner, the Board would consider in making its determination and recommendation to the secretary confidential files of investigative reports which it said it had before it, reports derived from other Government agencies but which it said it would refuse to disclose to petitioner.

Harry I. Rand:

At that time, there was no summary afforded us.

At that that time however, when we requested certain particulars before the hearing, the Board advised — Board’s counsel advising us that they could not give us all the particulars we requested because of the security considerations involved, nevertheless, did afford us certain particulars.

And those particulars appear in the record at pages 48 and 49 of the record in the form of a letter addressed, “Dear Mr. Rand.”

We were never furnished with any report or recommendation from the Board of Passport Appeals.

We know that such a recommendation was made only because we were advised later that the Secretary of State had received it, so the Secretary advised us.

We were never furnished with an opportunity to appear and present our case before the Secretary of State himself.

In September of 1955, the Secretary advised the petitioner that a passport was being denied him under the provisions of Section 51.135 without specifying the particular provision or subsection of that section under which he was acting.

The provisions of Section 51.135 are set forth at page 2 of my brief, white-covered brief.

There was at that time no specification.

A complaint was filed in the District Court.

Summary judgment was granted for the secretary in the District Court and appeal was then taken to the Court of Appeals, and after hearing by a three-judge panel, the — the summary judgment granted for the Secretary was reversed and the case remanded to the Secretary for his reconsideration with the direction of the Secretary if he persisted in passport denial specify the particular subsection or subsections of 51.135 on which he was going to rely and further make specific findings with respect to petitioner.

Whereupon in October of 1956 without further hearing, the Secretary handed down the document designated decision and findings which is the document under review here and which appears at pages 275 to 278 of the record.

I shall in a moment address myself in some greater detail to the findings in that document.The — the numbers by the way are in the bottom of the page.

Felix Frankfurter:

(Voice Overlap) —

Harry I. Rand:

If — that’s right, it’s the 275, would be in the bottom of that page.

William J. Brennan, Jr.:

(Inaudible)

Harry I. Rand:

Well then, there’s a little supplement here and that at page 2 of that supplement as to page 275 of this record, I’m sorry.

Felix Frankfurter:

Mr. Rand, may I trouble you to state again.

I think you did precisely what — the directions of the Court of Appeals were on remand.

Harry I. Rand:

The direction of the Court of Appeals was that the Secretary do hear what they had directed the Secretary to do in its former Boudin case.

The Boudin case having been heard, and that was that the Secretary reconsider this matter.

And if he persisted in passport denial, that he specify the particular subsection of 51.135 or subsections on which he was relying and that he makes specific findings and that if he were going to rely on confidential information that he state whether the information was not being disclosed because of foreign relations considerations or because of internal security considerations.

Those were the directions.

Felix Frankfurter:

What — perhaps I’m anticipating — is what the Secretary did under — on the date that is correct, October 4, 1956, is what he did in conformity of what he was directed to do?

Harry I. Rand:

In complete conformity with what he was directed to do.

There’s no question about that because directions were merely as to form rather than as to substance of course.

But the incomplete conformity with the Court —

Felix Frankfurter:

As I understand you, Mr. Rand, it went back to him and on the basis of — of the record which is to inspect by them —

Harry I. Rand:

So far as —

Felix Frankfurter:

— he then complied with what the Court of Appeals told him to do.

Harry I. Rand:

That’s right.

Felix Frankfurter:

And then it goes back to the — went back to the District Court?

Harry I. Rand:

That’s right.

And the District Court —

Felix Frankfurter:

And there, you — you challenged the justification of his findings under the statute, is that correct?

Harry I. Rand:

Quite correct.

Now, the only — the only amendment I might make, Justice Frankfurter, in your statement was that we assume that the Secretary had no other information beyond what he’d had before but we don’t know that as he considered this record, but he also considered his confidential files as he concedes.

And whether he’ had gotten any additional files in the interim, I don’t know.

Felix Frankfurter:

Does — do his findings shed any light on that question whether he did or didn’t?

Harry I. Rand:

Oh yes, there’s no question that he considered confidential information —

Felix Frankfurter:

Other than what happened before and when you were before him.

Harry I. Rand:

Oh certainly, there was — we were — that information was not disclosed to us.

Felix Frankfurter:

I understand that but in addition to the record that was made out originally for all you know and did you say you do know, he considered additional matters which were not put into your disposal.

Harry I. Rand:

Oh, no.

Let me make myself clear.

When he made his first ruling which ultimately was sent — he — he was asked to reconsider, he admitted that he had considered confidential information.

Felix Frankfurter:

So when you protest against which you want to impose?

Harry I. Rand:

Against which we protested.

The — the Court of Appeals did not pass on the question as to whether the use of confidential information was appropriate.

It didn’t pass it at that time.

It sent the matter back to the Secretary.

Now, the Secretary, without hearing then made this decision on findings, and what I’m saying now is that I don’t know whether the Secretary when he had this — when he went — gave us the second go around did not reach out and get some additional confidential information.

Felix Frankfurter:

Well now —

Harry I. Rand:

I don’t know —

Felix Frankfurter:

— my question was, do his findings — his findings neutral on that problem?

Harry I. Rand:

His findings are neutral.

Now, Your Honors will note that the Secretary concludes on the basis of the findings he sets forth here and on the basis of the confidential information which he refers to here as follows.

He concludes first that petitioner is a person who comes within Section 51.135 (c) of the —

William J. Brennan, Jr.:

(Inaudible)

Harry I. Rand:

Your Honors, you — you will find this on page 278 of the record, all five of that supplement.

Harry I. Rand:

Justice Brennan, you will note that that — at the top, I have reached the conclusion on the basis of a foregoing findings together with that and so on.

In other words, he posits his passport denial here plainly on 51.135 (c), and 51.135 (c) is that provision which states that passports may be denied to persons regardless of their formal affiliation with the Communist Party who the Secretary has reason to believe are going abroad to engage in activities to advance the Communist movement purposefully and willfully to advance that movement.

And that is the conclusion which the Secretary reaches with respect to Dr. Dayton.

He further says that the issuance of a passport here would be contrary to the national interest, and those are the two grounds on which he relies here for the passport denial.

Now, what is our contention first of course that the Secretary had no authority to deny a passport and thus to bar travel to this petitioner on this political ground.

And in that respect, we adopt the arguments which have been advanced by petitioners in the previous case.

If however, notwithstanding those arguments, this Court should find that the Secretary does have such authority.

That is if the Secretary has authority under statute and a statute which is constitutional to deny passport to petitioner and to bar his travel on a political ground such as this one, we still contend that this passport denial here was invalid and could not stand.

Felix Frankfurter:

The political — the political ground being membership, well, he has denied that he is a member of a political ground.

Harry I. Rand:

That’s right.

The political ground here, I may — I may have improperly termed — termed it.

But the ground here is merely that this man — so the Secretary has a reason to believe is going abroad to engage in activities purposefully to advance the Communist movement.

Felix Frankfurter:

Because this is different from the preceding case.

Harry I. Rand:

Quite —

Felix Frankfurter:

Either there is a disavow of membership.

Harry I. Rand:

That’s right.

And there was no —

Felix Frankfurter:

(Voice Overlap) —

Harry I. Rand:

And there is no charge of membership and no finding of membership, nor is there any finding under subsection (b) that petitioner is a person who is supporting the Communist movement.

There is merely a finding that petitioner — there are conclusion that petitioner is a person bent on advancing the movement by engaging in such activities abroad.

Felix Frankfurter:

Now, are you saying that even if — if you are a — agreed, conceded that even if it were admitted.

That’s what he went for but that’s beyond (a) the grand of statutory call and (b) beyond this constitutional power or —

Harry I. Rand:

Yes.

Felix Frankfurter:

— are you urging that that finding was made without an opportunity on your part, procedure to deal with it.

Harry I. Rand:

I’m urging both and with respect to the first, I’m — the first argument, I am prepared particularly in view of the limitations of time to rest on the arguments of petitioners in the previous case, although I understand that the different shades here with respect to — to my case and petitioner’s case.

I’d like to address myself as I — if I may first, the due process argument.

Felix Frankfurter:

But you — are you saying that the Congress of the United States speaking as unequivocally as it can may not constitutionally say the Director of the Secretary of the State not to grant a passport, not to be at least to leave the country to a person who says, “I’m going to X country to promote the cause of the Communist Party.”

Are you saying that?

Harry I. Rand:

Yes, using these particular standards, I would — I would urge that as well.

Felix Frankfurter:

But what do mean by the standards?

Harry I. Rand:

That is if — if the standard which the Congress legislated —

Felix Frankfurter:

It does said — in use of term that I’ve just used roughly, in answer, you find out the fact and if you find the fact which convince you giving up to his — for hearing and arrest that John Smith wants to go to India or Pakistan or anywhere else that you well on, wherever he goes to promote the cause of the Communist Party, will not be given a passport, you would say that’s unconstitutional?

Harry I. Rand:

Yes, I would Your Honor although I don’t have to reach that here.

Felix Frankfurter:

I understand.

Harry I. Rand:

But I would say that’s unconstitutional because well, for a variety of reasons, I would urge first the First Amendment right of preassembly in association.

I would urge first to the lack of a requirement for of scienter in — in such a situation.

Felix Frankfurter:

Well I’m assuming that.

Harry I. Rand:

I would urge further that I don’t — that the — the standards set up was not precise enough.

I don’t know what promoting the Communist movement means and I — as I suggested in my reply brief, perhaps one going to Paris and stopping at Le Kiosque combined with a copy of (Inaudible) would be advancing the movement.

And if one reads the Government’s brief, I think under their concept of what the advancement of the movement means that would be an act in advancement of movement.

For those various reasons, I would urge the unconstitutionality of such a provision but I needn’t reach it.

And my first argument here is that would not be with respect to the use of secret evidence which I’d like to free from that argument on for a moment, but will be with respect to the question as to whether even assuming the truth of what the Secretary has told us in his findings and in the confidential information that he tells us, relate to those findings even assuming the truth of that and the accuracy of all that.

The question I raise is whether there is any rational nexus which due process requires between the findings the Secretary has made and the conclusions he has reached.

And it is our contention that there is no rational connection such as the due process provisions of the — requirements of the Constitution imposed.

Now, at this point if the Court please, I should like to invite the Court’s attention to the specific findings which have been made.

At page 276, the Court will find — 276 of the record, page 3 of that little supplement.

The Court will find that the first finding deals with the activity of Dr. Dayton in 1943 and 1944 while at the University of California as chairman of a — an organization known as a Science for Victory Committee and his association as such chairman with three-named persons who had been instrumental in organizing that Science for Victory Committee.

That is the finding on the open record, and then the Secretary tells us that confidential information indicates that the committee was conceived and organized by the Communist Party as a front for propaganda and espionage activities and the three-named persons were members of the party, the three-named persons here were members of the party at the time of their association with petitioner.

Then in paragraph II, we read the finding based on the open record with respect to an association for a four-year period in Ithaca, 1946 to 1950 between petitioner and one Sarant.

Confidential information as for this matter, says the Secretary, establishes that Sarant was an active member of the Communist Party that he admitted said membership in 1943 and 1944, this was before his meeting as you — as the Court will note with petitioner and that he was involved in Rosenberg espionage operators.

paragraph III deals with petitioner’s presence during 1949 and 1950 on more than one occasion, in a New York City apartment building in which Sarant was lessee of an apartment.

And the confidential information as for that, says the Secretary, indicates that Sarant’s New York City apartment was used by Rosenberg and other members of his firing for microfilming classified U.S. Government documents.

paragraph IV deals with the association in continuing relationship of which by the way petitioner testified he was proud since 1938 with one Bernard Peters, Dr. Bernard Peters who now is at Tata Institute, although at — in the next academic year as I’ve suggested that he has been invited to go to the Copenhagen Institute, the Bohr Institute for a year, his association with Dr. Bernard Peters who is responsible for petitioner’s offer of employment to Tata Institute.

And then confidential information indicates, says the Secretary that Dr. Peters has held membership in the Communist Party outside the United States, has engaged in numerous Communist activities both to this country and abroad and is suspected of being a Communist espionage agent.

This is a summon substance of the Secretary’s findings and the supposedly related confidential information which he’s never disclosed to us relating to those findings on which the Secretary bases his conclusions here.

Now, note —

Felix Frankfurter:

Does the Secretary state explicitly why he withholds disclosure of what — of the defense?

Harry I. Rand:

Yes.

That will be found, Justice Frankfurter —

Felix Frankfurter:

What is their brief?

Harry I. Rand:

On page 278 of the record.

Felix Frankfurter:

278?

Harry I. Rand:

It’s in the — the little supplement at the end.

Felix Frankfurter:

Oh, I beg your pardon?

Harry I. Rand:

I’m sorry, I thought it was bound in which is page 5 of that supplement.

Around 6.

Harry I. Rand:

V and VI, paragraphs V and VI state the — the reasons.

Now — since we’re — we’ve reached that point, may I call the Court’s attention to a dichotomy which is drawn by the Secretary here.

The confidential information of which he has — to which he has referred with respect to paragraphs I to IV, says the Secretary, that is a confidential information I’ve just talked about, can’t be disclosed because, says the Secretary, to disclose it publicly would in his judgment be detrimental to the national interest, I’m reading from VI, 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 then note, the second part of this economy.

And might — the dichotomy — and might with the respect to the information referred to in paragraph V prejudice the interest of U.S. foreign relations.

Now, the Court will note that this information referred to in paragraph V is not related to the four findings, and we have not a glimmer here in the record of what this information referred to in paragraph V may concern.

There is not the slightest hint of what this additional body of paragraph into my — five information relates to.

Now, based on all this confidential information including the paragraph V information and that the findings from the open record, the Secretary concluded as he did.

Note however what the Secretary has failed to find here, and to me, this is as significant as what he did find if not more significant.

He has not found any reason to believe anywhere in this entire record that petitioner ever knew that the Science for Victory Committee was organized by the Communist Party or for the improper purposes alleged or that the three-named persons associated with him were members of the Communist Party, or that petitioner himself and this is most significant.

There is no suggestion in this record that the Secretary has a reason to believe that petitioner himself ever engaged in Communist propaganda or espionage activities.

There is no such finding.

There is no such — such suggestion in this entire decision.

The Secretary further hasn’t found any reason to believe that Sarant’s allegedly wrongful activities were contemporaneous with petitioner’s association with him or that petitioner wasn’t the least informed of such activities.

The Secretary hasn’t found a reason to believe that petitioner’s presence in the New York City apartment building which by the way he has steadfastly denied throughout many, many years but let’s assume the presence.

The Secretary hasn’t found that his presence there was for any improper purpose or in the company of Sarant, or in the company of Rosenberg or even coincidentally calendar year with the alleged presence of Rosenberg and the other members of aspiring of such presence actually occurred in this apartment.

The Secretary hasn’t found reason to believe that petitioner has ever known of Dr. Peter’s alleged Communist activities.

To the contrary, the Court will read this record.

The Court will find testimony of petitioner undisputed in the open record that Peters, he assure was never a member of the Communist Party.

They will find testimony of petitioner that so far as he knew, the Science for Victory Committee was not Communist-dominated because he wasn’t a Communist and the policies of the Committee while he was chairman with his policies.

They will find testimony in this record that petitioner never knew Sarant to have engaged in Communist activities, so that was a fact.

In these circumstances, it seems clear to us that the — the rational connection which is necessary which due process requires between the findings and — and confidential information on the one hand even if we assume they are true.

And what the Secretary says on the other is just lacking here.

How can the Secretary reasonably find that because petitioner is innocently associated with one organization and in certain named-persons over a period of years and has been innocently present in an apartment building in the past that in 1956, he is going abroad to engage in activities to advance — purposefully to advance the Communist movement.

Harry I. Rand:

As this Court has put it another case, the connection between the fact proved and that presumed is not sufficient, reasoning doesn’t lead from one to the other.

Now, what — how does the Government answer this argument?

The Government has two answers.

The Government first says that it’s reasonable to assume or rather, they put it in the negative.

It’s not reasonable — not unreasonable to infer that petitioner’s past activities and associations weren’t the innocent ones that he’s contended, but really were linked together by some common thread of close Communist involvement.

Now, let me point out as I’ve said that the record nowhere supports such an inference.

But even if the record did, the fact is that the Secretary hasn’t made such an inference.

And we — as I understand it, are here today reviewing what the Secretary decided and what he said and what he found and not a belated gloss which the Secretary’s lawyers put on his findings, not the act of thinking as one of the justices of this Court referred to such a process the other day, not the act of thinking of Government lawyers here as to what its determination should have been.

The second answer that the Government makes is stopping in its audacity.

The second answer the Government offers is, there maybe a hiatus between the findings and the confidential information on the one hand and then conclusions the Secretary reaches on the other, but we’ve got to assume that that hiatus is filled by this paragraph V undisclosed information about which we haven’t the least hint.

And why must we assume that, says the Government?

We must assume that because in view of the fact that the Secretary tells us he can’t tell us what that information is because it would affect foreign relations, it would not be unreasonable to assume that this information related more directly to the purposes of petitioner’s travel than it did to his past activities.

Now again, I say first, that if the Secretary believes that or the Secretary should know, if this is what that information related to, then we certainly were entitled to have that in — that statement made by the Secretary and he’s not done that.

He hasn’t told us what this paragraph V information concerns.

And merely to have told us what it concerns, would not have breached any confidence but he has not made that statement and it is his lawyers who make it for the first time on this Court.

Secondly, if these are the lacunae in administrative decisions, that is the lacunae between findings and conclusions, can be filled that a bottomless well of nebulous information such as we have here in paragraph V.

If in other words, unreason are illogic in administrative decisions can always be as I put it out, chemically converted to reason by resort to a body of secret information that the Government needs never supplied to the Court or to the agreed parties, then I don’t think much is left of due process.

One can always meet substantive due process efficiencies by resorting to this vast body of — of state secrets which are state secrets solely of course on the ipse dixit of the Government officer involved.

It becomes plain, it seems to me, that these findings and this so-called relevant confidential information can assume significance or relevance to petitioner if they have any relevance to petitioner at all, only insofar as they reflect a judgment of guilt by association.

And as I read this case, and as I read it for many years, perhaps I’m too close to it, but as I’ve read for many years, this case is a rank case where we — a rank example of an official judgment of vicarious guilt.

No other way can one explain why this man is being denied in the constitutional right, and preceded the constitutional right on the basis of findings with respect to innocent association so far as the Secretary makes such findings, absolutely innocent associations.

Now, the Government says in answer to —

Was there any information that the Secretary asked for that your client refused to give?

Harry I. Rand:

None, whatever.

None whatever.

In fact, I have sometimes thought that I counsel might find unwisely because we gave more information than the Secretary asked for.

Charles E. Whittaker:

Why do you say that?

Harry I. Rand:

I’d say for this reason, the Secretary makes four findings from the open record here.

Three of those findings are derived solely from the information which my man gave, that is my client.

Notwithstanding that fact, because there’s a conflict in evidence with respect in testimony, with respect to one aspect of these charges was petitioner present in this apartment building at any time because there’s a conflict between petitioner’s testimony and the testimony of the three custodial employees at that building which conflict maybe due to mistaken identification which is quite common in cases of this character.

Harry I. Rand:

Because of that one conflict, the Secretary in effect, and I say this advisedly, brands Dr. Dayton, a man of doubtful credibility.

And he says he has serious doubts as to the credibility — general credibility of this witness.

Now, mind you, the only source of the testimony or the evidence for the three findings made from the open record under that — other than that one finding is the testimony of this man who says the Secretary, he has serious doubts about — with respect to its general credibility.

Felix Frankfurter:

I can’t imagine though, Mr. Rand, that you ought to feel that your client suffered because you make him out more of a candid person than he otherwise would have appeared.

Harry I. Rand:

Well, perhaps I — I — am mistaken with my feeling but often I felt that I counseled him wrongly and — and I — I — I’m glad — I’m glad to have the views of this Court that I did not.[Laughter]

How many — how many witnesses — how many live witnesses appeared against your client?

Harry I. Rand:

Three live witnesses, the — a senior — a rather elderly gentleman who was a — who had been a janitor of this building or superintendent of this building in New York at one time.

After the Sarant holding, furniture representative?

Harry I. Rand:

Yes, that’s right.

And — it’s — it’s our view that the — the testimony of these witnesses and we were permitted to cross-examine them.

I was permitted to cross-examine them.

Your man testified?

Harry I. Rand:

I’m sorry.

Your man testified?

Harry I. Rand:

Oh, yes.

My man has testified before grand juries.

He has stated to the — the FBI agents and he has stated throughout this proceeding under oath that he has never been present in this apartment building except in 1951 when — at the request of FBI agents who were then investigating the matter, he accompanied them to that address.

He has testified for — since 1950 under oath that he’s never been present.

He has never been indicted for perjury.

He’s never been charged with perjury.

He’s never been charged with doubtful credibility before the Secretary’s decision here.

These three witnesses who identified Dr. Dayton as the — as a man they saw were not called before the grand juries who were — who heard my — who heard Dr. Dayton, notwithstanding the fact that apparently they were called outside in the anteroom of the grand jury to identify people as they walked in or to look at people as they walked in.

The record shows they were not called before the grand juries.

I think their — their testimony is incredible, but whether incredible or not, this — the court knows, Professor Whitmore has said that there are more tragic miscarriages of justice in this field of identification testimony than anywhere else.

And this may well be, I don’t think there’s anything malicious about these people.

I think they have just — they think they saw Dr. Dayton there and Dr. Dayton has persisted in his statement that he’s never been there.

Now, let me pass for the other aspect of due process which I think is extremely important here and that is the use of secret information.

There’s no question here that secret information was used.

It was used excess — extensively in this proceeding and there’s no question that it painted every step of the administrative proceeding.

The Government argues and the court below erroneously assumed that the substance of this undisclosed information had been actually disclosed to petitioner.

Harry I. Rand:

And that’s because of these — these referrals with respect to each one of these four findings in the decision.

The fact is however that that substance was not disclosed to petitioner.

What do we have?

We have here at most a statement by the Secretary as to what he infers, what he infers from the confidential information that he’s apparently read.

He gives his characterizations.

He gives us conclusions but we’ve never seen the tales, sources, substance of this information.

Moreover, with respect to the paragraph V information if I may repeat what I’ve said before, we don’t even have a hint as to what that concerns and the Government in its brief now tells us that that is extremely important that that is indeed the important information which fills the gap between — in the reasoning between findings and conclusions.

There isn’t time here in the few moments I have left to consider that in detail the conflicting interest between the citizen and the Government on this issue of non-disclosure.

Now, we are aware that this is a delicate problem where — where it’s a tough problem and the decisions of this Court in other connections which have tried to solve the problem attest I think to its difficulty.

There seems to us however a little question that in a case of this kind where we’re dealing with a fundamental constitutional right that there can be no fair hearing as guaranteed by our Constitution.

When a citizen whose right has been abridged, can’t even see the information which the Government office who will abridge us to that right tells him he’s relied on and particularly where that information is as extensive as apparently it is in this proceeding.

There may be some justification for keeping secret this foreign relation’s information, if the Court please.

I don’t know.

I certainly would urge there’s none.

But the Government has admitted in its brief what is the fact here that the bulk of the information on which the Secretary relied on this case was not of that time.

The bulk of the information as the Government briefs — Government’s brief says at page 82, we must assume was derived from FBI reports.

It was the very kind of information which is predominated in all Government employee loyalty security programs.

As to such information, the Government has no real foreign affairs concern.

Its interest lie in — in nondisclosure, is merely in trying to avoid the compromise as it were, compromise there would be of its sources and — and methods of gathering together this information.

And we suggest that there can be no fairer characterization of what kind of information this is than the characterization which Mr. Justice Frankfurter applied to it in his dissenting opinion in Jay against Boyd where Justice Frankfurter said, “We can take judicial notice of the fact that in conspicuous instances not negligible in number, such confidential information has turned out to be either baseless or false.

There is no reason to believe that only these conspicuous instances illustrate the hazards inherent in taking action affecting the lives of fellowmen on the basis of such information, the probabilities under the contrary.”

And recent history, particularly other these cases in this Court I think, eloquently support this view.

The Secretary himself has no confidence in this information as his own decision may explain.

If the Court please, turn to pages 276 and 277 of the record and note what the Secretary of State, an able lawyer and draftsman does with respect to his references to confidential information.

As to finding I — I (b), the Court will note that the Secretary says that that confidential information indicates this, the — the matters he refers to.

As to finding II, he says confidential information establishes certain things.

As to finding III, confidential information indicates.

As to finding IV, confidential information indicates.

It seems plain to us that the Secretary himself has no confidence in these informers, the identity of whom he himself has admitted.

In other cases, he sometimes doesn’t know and the reliability of whom therefore he cannot vouch for.

Harry I. Rand:

Moreover, let me point to finding 4.

Note that the Secretary says that confidential information indicates that Dr. Peters, not is — is an espionage agent but is a suspected espionage agent.

That indeed is surmised hit on suspicion.

Now, this vice that follows from the use of secret information is particularly vicious in a case of this kind where we have no congressional authorization for the procedures which have been followed here.

Perhaps the Congress does permit the establishment of political standards.

We urge it does not.

But one thing is clear and the Government cannot — certainly will not urge the — the contrary.

The Congress nowhere has stated in any statute unequivocally and unambiguously that the traditional modes of justice and due process can be departed from in a case of this kind.

And this Court’s prior decisions as I read them where it may have sanctioned to some extent the use of confidential information, certainly have not dealt with cases of fundamental constitutional rights abridged through the use of such information.

Surely, we have decisions where this Court has recognized that the President in the — in — in the true foreign relations here involving negotiations with Government et cetera, may rely on secret information.

We did not disclose that.

In the alien cases, we’re dealing with a question of privilege as it were of race rather than right.

And similarly, in Jay against Boyd, we were dealing with matter of grace.

In the Nugent case dealing with the consciences objectors, the Court will remember that that case was decided on the very basic consideration as this Court later stated in its Simmons decision, that the confidential information there was used only incidental to an advisory opinion of the — of the Department of Justice and not in connection with the final determination affecting rights.

So I do not see that there can be any question that any prior decisions of this Court compel a result here sanctioning the use of confidential information.

Now, one furthermore matter and then I’d like to reserve a few minutes which I may have for rebuttal.

Let me point to the vagueness of grounds which — of the grounds used by the Secretary here, relied on by the Secretary which I’ve already averted.

We have sought for four years now in State Department and the Courts to find out just what it is the Secretary fears that petitioner will do.

We’ve asked for some specification.

What is it you fear this petitioner will do?

Perhaps if we found out what it was, the Secretary was worried about, the petitioner might give him some assurance that he wouldn’t engage in the activities that the Secretary was worried about.

The Secretary has persistently and consistently refused to specify what he has in mind.

And so on these grounds, these very vague grounds here, the fact is that petitioner for a lifetime assuming the emergency continues for a lifetime, can never hope to expurgate himself from this (Inaudible) like web that has been woven about him by these very ambiguous standards.

He cannot of course turn the clock back and disassociate himself from the people he’s associated with in the past.

He cannot know what to do with respect to his overseas activities because he doesn’t know what the Secretary fears he may do.

And he said, “All I want to do is do search at Tata Institute.”

For these various reasons and for the others stated in our brief, we think that there can be no question here that even assume authority in the Secretary to control travel on the basis of these standards, there has been a very drastic and unjust violation of due process in this case.

And I’d like to reserve —

Assuming you — assuming one was to disregard the — and it was based on the confidential information, what’s left?

Harry I. Rand:

Nothing but the findings which we referred to in subparagraphs A of each one of the — of paragraphs I through IV.

Harry I. Rand:

Those are the only findings which would be left, in other words, his associations.

Felix Frankfurter:

May I — may I ask you — excuse me.

May I ask you what is implied by Judge Fay position in case here prevail among his brethrens in the court and the case was sent back as he wanted it sent back finding inadequacy both in the regulations and in the confidential.

Harry I. Rand:

Not — not as to the latter, Your Honor.

Felix Frankfurter:

I am not — that’s the reason why I’m asking, I’m not clear.

Would you define, stating what you understand to be what one would do if one agreed with Judge Fay’s conclusions?

Harry I. Rand:

If one agreed with Judge Fay in his conclusion, the Secretary would take this case back and then on consideration of the record including the confidential information so far as I know because Judge Fay, he did not suggest the use of that was improper, would then be required to determine whether the denial of a passport to Dr. Dayton would be likely to cause harm to National Defense or to the conduct of foreign affairs.

In other words, what Judge Fay was saying as I understood it was that the grounds in subsection C of 51.135 were too vague and too — too nebulous and that the — the use of the — the framework national interest was too nebulous.

And Judge Fay, he wanted to be assured that before the Secretary denied a passport, he would make a finding that the grant of it would be likely to cause harm to National Defense or to the conduct of the foreign affairs.

That’s as I read his opinion.

Felix Frankfurter:

He doesn’t say that he bought confidential —

Harry I. Rand:

He doesn’t express to someone that.

Felix Frankfurter:

— information but I was wondering whether it is an implied anything that he finds both the finding unsatisfactory and the regulations —

Harry I. Rand:

By the —

Felix Frankfurter:

— not sufficiently commanding or to giving too much scope to the Secretary because — did I or didn’t I understand you that the Secretary doesn’t even state on convincing as it can be convincing to grounds why he doesn’t want to withhold it except in the most general terms.

You did say that, didn’t you?

Harry I. Rand:

That’s right.

That the full statement of the Secretary appears in five and six of the specific.

Felix Frankfurter:

Yes, but — but you say that he doesn’t — here didn’t — I think — it think hear you say that he doesn’t even indicate why — what — what embarrassment would come (Voice Overlap) —

Harry I. Rand:

Oh, that’s right.

Felix Frankfurter:

Pardon me?

Harry I. Rand:

Other — other than what embarrassment would come from disclosure.

Felix Frankfurter:

Yes.

Harry I. Rand:

Other than of course what he says here that it would compromise —

Felix Frankfurter:

(Voice Overlap) —

Harry I. Rand:

— investigative sources —

Felix Frankfurter:

Yes.

Harry I. Rand:

— that might affect foreign relations.

Felix Frankfurter:

I understood you to say that voguish thought.

Harry I. Rand:

Well, I may — I may have said it, I don’t recall.

Felix Frankfurter:

I don’t mean those words but that’s what —

Harry I. Rand:

Yes.

Felix Frankfurter:

— you indicated?

Harry I. Rand:

That’s right.

And moreover, I do not understand that Judge Fay, he — when he spoke of the two findings had in mind the findings as I referred to them.

When he used the term findings, I think Judge Fay, he meant the two conclusions.

That is the one based on 51.135 (c) and the national interest conclusion.

Felix Frankfurter:

(Inaudible)

Harry I. Rand:

I — I think that’s what he has in mind.

Thank you.

Earl Warren:

You may have about three or four minutes, three minutes of the Court to — to conclude your argument.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

The problems in this case are obviously more difficult than the other two for the Government.

We believe that this case, the Court will have to reach the merits of the action taken concerning the petitioner if it gets beyond the problem of whether the statutes authorize the action of the Secretary if his regulations were proper and so forth.

I think that in view of the fact that the Secretary placed the reliance that he did upon the three witnesses as to the activities of the petitioner in 65 Morton Street where the espionage activities of Rosenberg took place.

It’s important to examine that factor of this case and what bearing it might have on the findings in decision of the Secretary.

Hugo L. Black:

Did the Secretary (Inaudible)

J. Lee Rankin:

The record does not show that he did and I assume that he did not.

I — I think it was done on examining this record as a cold record before him.

The Board of Passport Appeals had the hearing at which they went especially to New York as I understand and took this testimony of these three witnesses and it —

William J. Brennan, Jr.:

(Inaudible) the Secretary to allege the petitioner’s testimony alongside of the three witnesses and reach the conclusion that the petitioner must be the one who felt the credibility?

J. Lee Rankin:

That’s my interpretation of the record and I — I — looking at the cold record, I do not think it’s difficult to come to that conclusion.

It’s the showing of three people who, after three hours of cross examination by the petitioner’s counsel.

They’re unable to shake as to the solid merits of their testimony about having seen the petitioner at this particular place during the times described.

And there was no motivation of any kind shown that these people would have for claiming that they’ve seen this man at that point as they did, so that it’s just a clear cut denial on the one side and a definitive description of the petitioner’s presence and the very close observation by these three people at several different times to this important place.

Earl Warren:

How long before the hearing —

J. Lee Rankin:

Did this occur?

Earl Warren:

— did it occur?

J. Lee Rankin:

It occurred five years before this hearing.

Earl Warren:

Five years.

J. Lee Rankin:

But they had reported it to the FBI and had identified a photograph of the petitioner within a period of six or seven months and had pointed — had been taken to the New York Airport and identified him specifically there within a period of six to eight months after the event.

So this was a reaffirmation of observation of — and statements that they’d made before that.

William O. Douglas:

Have any of these suspicious characters (Inaudible) prosecuted for criminal activities or convicted?

J. Lee Rankin:

I think the Rosenberg is not — is related to the building, but not to the petitioner in any way.

William O. Douglas:

That’s the way I read it.

J. Lee Rankin:

Yes, and the other people as I know, as far as I know, have not been prosecuted.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

Within three or four days or a week of the time that he was being asked about his activities.

This Mr. Sarant fled to Mexico and as far as the record show, has been there since.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

She went with — according to the testimony.

And the problem — I think that it is clear in the record what the Secretary had to consider about credibility here, the further factors.

William J. Brennan, Jr.:

(Inaudible)

J. Lee Rankin:

The petitioners.

William J. Brennan, Jr.:

Dr. Dayton.

J. Lee Rankin:

Yes.

The fact that Sarant live next door at Ithaca to the petitioner and they built houses adjacent — adjacent to each other and it was a very close relationship in that regard because the petitioner was — apparently had done some building before and knew how to build houses and Sarant consulted with him over a considerable period over a year and a half about various building problems he had.

And it’s apparent from that testimony in the record that there was a very close relationship and back and forth.

Then, you have the additional factor that Sarant and his wife lived with the petitioner in their home for a period of eight months together during the time that a lot of the activities in 65 Morton Street were supposed to be going on according to the Rosenberg case.

Now, it’s the question of what inferences a person who were judging facts would ordinarily draw from those relationships, and the fact that Sarant was supposed to have been going down to this place, 65 Morton Street, during this period of time.

And what he might have been able to know and probably knew that he claimed he knew nothing about this place was never there and these people identified him.

So, it’s — that difference in the testimony and once had, categorical denial, it could have been a mistaken identity, nobody can disapprove otherwise.

But the whole situation was such that apparently, the finder in this situation consistently held against the petitioner in regard to it and it has the definite bearing on everything else that he testified to in regard to his claims about his activities.

Felix Frankfurter:

May I trouble you to — I want to know — I want to know.

This Board of Appeal in the Department, is that standing board or an ad hoc, that is this Board constituted with reference to particular cases or is that a permanent administrative appeal board within the State Department?

J. Lee Rankin:

I’m advised that it is now a standing board, but has in the past been ad hoc.

Charles E. Whittaker:

(Inaudible)

J. Lee Rankin:

That is in this case and that is the — the Bernard Peters.

That is alleged to be a Communist according to this confidential information.

That is the man in — at the Tata Institute in India that this petitioner is going to see and participate in his research with and that is another factor in the apparent judgment of the Secretary that there might be a serious damage to the United States in regard to possibility of espionage and subversive activity.

J. Lee Rankin:

Now, this — there’s no question in this record that this petitioner is a skilled man in the field of physics, nuclear physics and so forth.

He has great knowledge of it.

Bernard Peters is one of the leading authorities on cosmic ray.

It’s also unquestioned that there’s a close relationship between the information in the field of cosmic ray and the general nuclear physics field.

I don’t — the record is clear according to the testimony that the cosmic ray information is generally not a confidential or classified information.

But it’s quite apparent from the testimony of another physicist that it’s readily transferable from one field to the other as far as use is concerned.

Is it your view (Inaudible) —

J. Lee Rankin:

In the Government’s view, the Secretary could properly base his — in his judgment entirely on the — the confidential information and he’d have to follow the regulations about the application and the information to furnish for that character because asked — having asked for according to holdings of this Court, he would have to follow it through on, but he could decide that he didn’t believe that if there was a basis in the record for his non-belief and could then address himself to the confidential information.

Now, when I say that confidential information in that regard, I would say that it’s easier to come to that conclusion as to confidential information in the field of foreign affairs where I think that the privilege of withholding that information has to be absolute in accordance with our history because I think if you start trying to tell what might be involved in regard to Peters or other things that you could imagine that a responsible person, I think were entitled to assume that the Secretary was acting responsibly here, would have that he would consider would seriously affect our foreign affairs.

William J. Brennan, Jr.:

Would that mean, Mr. Solicitor that as far as the Government is concerned, this whole case can stand on finding V?

J. Lee Rankin:

I think that you have other problems and that they’re beyond that.

I think the Government does.

I think that we are or have before the Court —

William J. Brennan, Jr.:

Well as I understand it though, finding 5, his basics entirely on the disclosure which might put this to conduct with United States foreign relations.

And we’re told nothing apparently other than that — based upon it.

And the Secretary was satisfied that the fact they was denying him abroad to engage in activities advancing the Communist movement?

J. Lee Rankin:

That’s — that is true.

William J. Brennan, Jr.:

You don’t — you don’t suggest that independently as any other findings, the secretary’s decision can rest on that?

J. Lee Rankin:

Well, it seems to me that you also have the problem of his picking out the other parts of his decision in which he said he did not rely on that, that he relied on other confidential information which was — we conceived was the FBI reports.

William J. Brennan, Jr.:

No, I — I gather in this case, but I thought your suggestion to Mr. Justice Harlan was that where reliance is upon confidential information because of its relation of the conduct to foreign affairs that this action might be taken without any disclosure at all?

J. Lee Rankin:

Well I think that you have to take into account the other findings to the extent that they’re not connected with it.

William J. Brennan, Jr.:

In this — in this case.

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

But let’s — let’s suppose that was the only planning we had in this case.

J. Lee Rankin:

Then I think I still have to have the caveat that if there were other things in the application, they would have to be taken —

William J. Brennan, Jr.:

Well I’d like to — I’d like to pin it down —

J. Lee Rankin:

Take that out —

William J. Brennan, Jr.:

— and nothing whatever except what’s involved.

J. Lee Rankin:

Then I think that if the Secretary of State in United States said that in the interest of protecting the Foreign Affairs of the United States, that it would been damaging and tell as much as he could but if he couldn’t tell anymore than that that the interest of the country or such that the individual right have to give away to that extent.

William J. Brennan, Jr.:

Even though in this instance, I gather the Government concedes, we are dealing with a constitutionally protected individual right to travel.

J. Lee Rankin:

That’s right.

Thank you.

Earl Warren:

Now, General I’m — I’m sure you’ve answered already but I just want to be positive in my mind.

You — it is your position or is it your position that the Secretary of State can deny a passport to an American citizen solely on the grounds of confidential information?

J. Lee Rankin:

Well, I’d like to single out in my answer that he can solely on the grounds of confidential information relating to foreign affairs.

Earl Warren:

Well, if he doesn’t have to disclose it, why couldn’t it be domestic affairs or — or economic affairs or — or for any other reason.

Who is going to review whether it is foreign affairs beyond what he says?

J. Lee Rankin:

Well, I think the Court’s could require that he say whether he related to foreign affairs because I think they’re different problems for the courts in regard to the confidential material if it is regarding — properly regarding foreign affairs than if it’s in — in other areas.

Earl Warren:

You would say then that the — that the Court is entitled to — to have him produce the — the confidential information that he has?

J. Lee Rankin:

No, I don’t think that he would — traditionally, you never do that.

Earl Warren:

How would you do it?

J. Lee Rankin:

Because — well, I think you have to assume that responsible officers of that level in the Government act responsibly.

Earl Warren:

Well, then that — that’s what I mean.

He can — your position is that he can do — he can do it.

He can deny a passport to an American citizen as he says based on — on confidential information which convinces him that it would be against the best interest of our country to permit this travel and do that without any review whatsoever.

J. Lee Rankin:

Yes, without review.

I was just trying to make the distinction that you would have the right to know that it was related to foreign affairs where the conflict —

Felix Frankfurter:

He — he must testify explicitly on that ground is what you’re saying?

J. Lee Rankin:

That’s what I’m trying to say that —

Earl Warren:

But all he has to do is just say it is on that ground.

J. Lee Rankin:

Yes.

And that in his opinion, it would injure — seriously injure the foreign relation of the United States.

Now, he is the person that under our system of Government, we give the responsibility to conduct the foreign affairs.

And we trust him with much more than that everyday in handling our various problems on behalf of all of us in regard to foreign affairs, not only this petitioner but the whole country.

And I think that this Court in the past has respected the action of the present — or the Secretary of State when they were acting in that area and gave that as the reason.

And I would assume that you had the right to expect that the Secretary of State would never do that unless he was certain that it was something that was serious in relation to this important right that was being at least reduced and possibly taken away the cause.

Earl Warren:

Even though that — even though that is to deprive an American citizen of a constitutionally protected right.

J. Lee Rankin:

Yes, because in many areas, you permit — this Court is permitted constitutionally protected rights to be limited to such — to some extent as compared with balancing the interest.

Earl Warren:

That’s true but do — have we — in what other field if we ever permitted them to do it on the un-reviewable word of any officer, I’m talking about the peacetime, not — not war.

J. Lee Rankin:

I —

Earl Warren:

But where or have we ever done that before?

J. Lee Rankin:

I don’t recall anything except in the area of foreign affairs where it’s been a traditional, most — from Washington’s time on.

And as I recall where he did not disclose certain information to the Senate in connection with some foreign affairs matters because he didn’t think that it was in the best interest of the country.

Earl Warren:

Well, isn’t it — isn’t it one thing for the President to refuse to disclose information that he considers confidential when somebody else wants it to review his action?

And is — isn’t it another thing when — when a person whom he deprives of a constitutionally protected right wants to know what the information is in order that he may prepare his defense?

J. Lee Rankin:

Well, only in this regard that — that sometimes, the individual asked — right has to give way to the interest of the whole community if it’s important enough that he have — has to give a way.

And in the form of — various field, it’s possible that information that he might have might precipitate us into war.

Now, I’m not saying that’s true in this particular case but it could be.

In history — history reveals cases for various serious matters of — have been caused by revealing something that shouldn’t have been disclosed.

But Congress constitutionally passed the statute (Inaudible)

J. Lee Rankin:

I wouldn’t think so.

I think that this — this problem has on it the gloss of the interest of the whole United States to have foreign affairs properly conducted and not have matters revealed that are going to hurt us all.

And that if it should injure this very important right of an individual to a constitutionally protected right, nevertheless, that for the interest of us all, that right has to give a way if it’s’ necessary to protect the whole country.

Earl Warren:

Did I understand you to say that you thought Congress could not pass such a law?

J. Lee Rankin:

Not one that would provide for just absolute discretion without regard to confidential information of foreign affairs.

Earl Warren:

All right.

Now, may I add to what Justice Harlan asked you just the — the phrase or the clause when — whenever in his judgment it will adversely affect our foreign relations.

J. Lee Rankin:

Well, I think I’d have to say yes, they could pass that.

Earl Warren:

So it’s a lot to their position but —

J. Lee Rankin:

Yes.

Earl Warren:

I can’t see the — I can’t see the difference.

J. Lee Rankin:

Well, let me try to make it plain that — what I think is the difference.

I think that for the Secretary to have an absolute discretion that regardless of what he happens to think about anything, he can take my constitutional right away, is something that Congress cannot empower him to do.

But if in the exercise of his judgment as the top official under the President in foreign affairs, he thinks that to reveal something would injure the welfare of the United States in Foreign Affairs to such an extent that he can’t reveal it.

And I’d say that my rights got to give way in order to protect the interest of all of us.

Earl Warren:

You’re right.

You’re right to get the information has to give way but does your right to — to be a free American and travel have to give way if he won’t to do it?

J. Lee Rankin:

Well, I think that —

Earl Warren:

I wasn’t — is there a difference there?

J. Lee Rankin:

Well, I think that follows to the extent that you have to have that information to do it.

J. Lee Rankin:

Now, there may be many other factors that might contribute in the ordinary case to whether you could get your passport anyway.

But if you finally get down to the point that you either get that information or you lose your right to get your passport and travel, then I think that in the balance of the interest of all the people of the country as against the interest of one person who wants the right to travel, it has to give way.

I think we do that.

The courts so declared in good many different areas about war power and other things that we — we just happen to give way in the interest of the whole community.

Earl Warren:

But we can hardly treat it in the light of just one person, because if he could do it to one, he could do it to all.

J. Lee Rankin:

Well, I — I appreciate that, that it’s something that — it’s just not this petitioner and I respect — mean to respect this petitioner’s rights too.

It is denial to Americans generally if they have to give way in order to protect the interest of the whole country.

William J. Brennan, Jr.:

Well, Mr. Solicitor, if that — and let’s assume your premise is sound, relates to foreign relation.

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

Does that extend to the point of not telling him how when he says he has found that Dr.Dayton is going abroad to engage in activities which will advance the movement?

J. Lee Rankin:

Well, I think that’s very difficult too that you —

William J. Brennan, Jr.:

That’s a little different, isn’t it?

J. Lee Rankin:

That’s right, I concede that.

But if you still — how — I’m in a difficult position that I don’t know what the Secretary has either —

William J. Brennan, Jr.:

I say —

J. Lee Rankin:

— and I don’t —

William J. Brennan, Jr.:

You better please not to (Inaudible)

J. Lee Rankin:

Well, I don’t think I — [Laughter] I have any more right to find out than anybody else if it — if it would hurt the country.

So, I could imagine various things that would — the mere telling how would tell the whole story and cause an international list.

William J. Brennan, Jr.:

Well, he hasn’t said of course, at least he doesn’t relate.

He’s not telling how to foreign relations as I read this conclusion.

And perhaps that’s intended, I don’t know.

It doesn’t seem to read that way.

It seems to make the — the general conclusion, and that’s all, and relate only the confidential information in the field of foreign relation.

There was reason why he’s not disclosing what the information is.

J. Lee Rankin:

Yes.

Now, if it was a — I would not see that there was anything wrong with the Court saying, “Well, how?”

And he come back, but I do think that you — the door should be closed if he would come back and say for me to say that would be —

William J. Brennan, Jr.:

Well I think that —

J. Lee Rankin:

— seriously —

William J. Brennan, Jr.:

— I would suppose — I would suppose you’re right.

If you’re right in your major premise, you would be right as to that.

J. Lee Rankin:

But I don’t find that he — he has answered that question.

The Court might proceed that, require him to do so.

I think the problem in regard to confidential information of the FBI as I’ve indicated is a different problem, and a more difficult problem for the Government.

It’s a question of protecting the sources of information and the conduct of intelligence.

Now, those persons who examine the question are responsible people, it seems to me.

The committee on the security and the Government had made their report in which they indicate that there should be as much disclosure as possible.

And Professor Jaffe has indicated that its probably a ground for withholding an order to protect the intelligence system of a country so it can be able to carry on and get the necessary information that it has to.

And there are other responsible groups, Association of Bar of The City of New York examining to this question carefully and they came up with the same suggestion that if the disclosure should go as far as it — it can be made.

But there — there’s probably an area that has to be withheld in order to protect the greater interest.

And I think that’s the matter which we discussed at some length in our brief and I’ll leave it there except with the suggestion that Parker against Lester, that’s referred to by counsel, is quite a different case than this case.

And that here, the substance of the various matters involved the confidential information except to form theories was made known to the petitioner and the record shows that he had addressed himself to all of that material and he tried to — to answer if — and he frankly admitted some parts of the information that was available and tried to explain in a way.

So everything that was involved in that type of information, we think he was not damaged by no further disclosure and that he had chance to cross-examine in regard to these others.

But in Parker against Lester if you recall, they —

William O. Douglas:

That’s the Ninth Circuit case?

J. Lee Rankin:

Yes, Mr. Justice.

They — they took away the license of the seaman to continue in their — their occupation by which they made their livelihood without any hearing of any kind and then proceeded to — in using this confidential information.

And that’s quite different from the elaborate proceedings that have been held in this case and making a substance of the information available and what we think is as much as could be and still protect the source of information in the intelligence system.

Earl Warren:

Mr. Rand, your time has expired but we took so much time with questions.

You may have five minutes to —

J. Lee Rankin:

Thank you Chief Justice.

Earl Warren:

— to close.

Harry I. Rand:

I — I just have a few things to say if I may.

First, with respect to the reference that has been made to the renunciation of American citizenship by Dr. Peters.

I have always — always since the decision came down but unable to understand the relevance of that reference which the Secretary makes.

I’d always assume as this Court only recently affirmed the other day that the right of expatriation, the right of voluntary renunciation of citizenship had always been a valued right of an American and that one should not therefore suggest any inference as the Secretary apparently does here that when a person renounces his citizenship, he is to be suspected.

Particularly so in the case of Dr. Peters who was a German citizen and who came here to escape Nazi persecution, became a naturalized American citizen.

And naturally after the war resumed as I understand it, West German citizenship, so that he could again — as it were assumed, the citizenship of his native land.

Reference was made to the question of Sarant’s running off with petitioner’s wife, unfortunately that is true.

Harry I. Rand:

The petitioner has suffered there as well as from the Secretary of State.

I don’t know however — I don’t know however, if any other case where a person has been branded for associating, perhaps he should be, for associating with the person who runs off with his wife.

I again do not quite understand the reference which the Secretary makes there as perhaps suggesting an inference that petitioner had something as engaged in wrongful activities with Sarant.

I should think petitioner’s wife did rather than petitioner.

Third, as to the January 1950, as to the presence of the apartment building, now, the Solicitor General has stated here that we have here merely a testimony of one as against another, a no as against a yes.

Well, there is something more than that in this record as the Court will note if the Court examines the record.

When petitioner was first charged with presence of the apartment building, the FBI agents who suggested as to whom also suggested the month of January 1950 as being the date when he was present — present there.

And, if the Court will note that at page 167 to page 169 or 170 of the record, petitioner documents practically everyday in the month of January 1950 when fortunately he could document everyday because he was busy practically everyday and sometimes during the nights working at the cyclotron at Cornell University with a view toward completing his PhD thesis.

So he was able to put himself at Ithaca practically everyday of that month.

Well, as the proceeding went on, the — the dates began to shift, and if Your Honors will examine the — the lengthy footnote I have set forth on pages 56 and 58 of my brief, the petitioner’s brief analyzing the testimony of these three custodial employees, Your Honors will note how in their testimony as they testify on the one day, their dates keep shifting around like quicksand.

And we’ve often wondered, petitioner certainly has, just when — when this — this merry-go-round stops.

He has documented January 1950, a suggestion was made as to July or August of 1949 and he sought to document that, sought to testify as to that and the dates change.

Indeed, Your Honors will note —

William J. Brennan, Jr.:

(Inaudible)

Harry I. Rand:

I don’t know.

They — they fixed on different dates.

Each one of these witnesses had some different date as Your — as the Court will note from the analysis of their — their testimony.

And the Secretary doesn’t set a date.

The Secretary says on more than one occasion in 1949 and 1950, there is no specification of date.

Indeed the Secretary does not find the petitioner was present as charged in the Sarant apartment.

William J. Brennan, Jr.:

(Inaudible)

Harry I. Rand:

Yes, January 1950 and July or August of 1949.

We know those two — those two dates and we sought to meet them at the hearing but they’ve shifted, continually shifted.

Some reference has been made, fact that the Solicitor General no more than myself knows just what the Secretary has considered.

And perhaps therefore, we’re not qualified to say whether there is any justification in keeping secret confidential information.

But there is one man who I think is qualified and that is our former Secretary of State, Dean Acheson, who — who promulgated these regulations we have attacked here and who undoubtedly had some familiarity with the proceedings under them.

And as I have quoted at page 33 of our brief, Mr. Dean Acheson, now a private citizen, writing in his volume of democrat looks at his party, characterizes these regulations, these very procedure is a grave mistake and a failure to force the consequences which were inevitable.

And he characterizes the practice of secret evidence and secret informants which the regulation has sanctioned as alien to our conception of justice and the rights of the citizen.

Now, I think the former Secretary of State should know a little about how these procedures worked because as this Court knows, knows as well as myself, we’re not dealing with a monolithic structure called the Secretary of State.

I too have worked in the Government, and when we speak of the Secretary of State, we realize that there are numerous subordinates who enter into these decisions and he’s not merely the one responsible individual who reads this record carefully from beginning to end.

Harry I. Rand:

Thank you very much.