Marks v. Esperdy

PETITIONER:Marks
RESPONDENT:Esperdy
LOCATION:Alabama State Capitol

DOCKET NO.: 253
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 377 US 214 (1964)
ARGUED: Apr 02, 1964
DECIDED: May 18, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – April 02, 1964 in Marks v. Esperdy

Earl Warren:

Number 253, Herman Frederick Marks, Petitioner, versus P. A. Esperdy, District Director, Immigration and Naturalization Service.

Murray A. Gordon:

Mr. Chief Justice and members of the Court.

This case is here on —

Earl Warren:

Mr. Gordon.

Murray A. Gordon:

— certiorari from the Second Circuit which had sustained a final order of deportation of the immigration service.

The case is here in connection with the habeas corpus proceeding challenging that final order of deportation.

And more particularly, the determination by the Second Circuit involved two components.

First, there was a finding that the petitioner who is a native born American had been expatriated and lost his sole American citizenship rendered stateless.

As a result of his alleged military service in the Cuban Rebel Army after January of 1959 and until May of 1960.

This expatriation was set to follow from the application of Section 349 (a) (3) of the Immigration and Nationality Act of 1952.

The Court of Appeals further found that the petitioner, having first lost his American citizenship and rendered an alien, and have been passed in this condition before he reentered the United States in July of 1960, that he was an alien at that time and therefore was required to have the requisite entry documents.

And since he did not have such documents at the time that he returned to his native country, he was an excludable alien and for this reason, the court below held that the petitioner was not only an alien but a deportable alien.

I shall be confining my discussion here today to two principal questions.

The first is the constitutionality of Section 349 (a) (3) as it was applied to the petitioner and secondly, the question of his deportability even assuming him to have been an alien.

I may say to the Court that there are many other questions which are argued in the brief, but I think this to be the key questions and I would prefer to use my time in the discussion of these two and leave the other questions so the treatment to be found in the briefs.

Since I’ve confined the questions which I shall discuss to these two principal matters, I shall confine my discussion of the facts to those of record which are relevant to these questions and those facts are largely not in controversy.

Marks was born in the United States.

He went to Cuba sometime in 1958.

While there, he joined the Castro forces in the hills and fought with the revolutionary forces against Batista.

In the course of this military activity, he rose to the rank of captain.

Now, I should make clear that no part of the disability which he now suffers, derives from his service in the revolutionary army because Section 349 (a) (3) provides that there shall be law — a loss of American nationality as a result of service in the armed forces of a foreign state, provided that there shall not first have been specific authorization by the Secretaries of Defense and State to engage in such military service.

Apparently under the statute, engaging in military activity on behalf of a revolutionary force doesn’t constitute military service on behalf of a foreign state and therefore, it does not result in expatriation.

Consequently, the critical portion of his service is a period after January 1959.

This was after Batista had fallen and the Castro forces became the provisional and subsequently, I take it, the accepted Government of Cuba.

The petitioner remained in the rebel army during this period of time.

There is a great deal of dispute in the record whether the rebel army at that time was an armed force as it is defined under the statute.

A great deal of argument in the record as to whether Marks himself, engaged in any military service during that period of time.

I shall bypass that except to mention one phase of that service because I’m just sure as I’m standing here that the — my adversary will make reference to the fact that for a period of four or five months, after January of 1959, Marks supervised execution activities on behalf of the rebel army after there had been convictions by military tribunals.

The other fact which is not serious —

Earl Warren:

When did — when did Castro takeover the — the — the Government?

Murray A. Gordon:

January 1959.

Earl Warren:

January 1959.

Murray A. Gordon:

Yes, Your Honor.

Earl Warren:

Where was the petitioner at that time?

Murray A. Gordon:

He was in the States at that time, Your Honor.

He had been wounded in the course of his military service.

He came back to the States in November of 1958 for medical treatment.

And sometime between January 2nd and January 9th, I’m not sure of the date, he returned to Cuba.

His testimony was that he returned for the sake of reunion with the man with whom he had fought and in addition, because he had been promised land and an opportunity to develop a farm of his own there, this was among the promises of agrarian reform which had been made by Castro.

And he has asserted this as the reasons for his return in January of 1959.

He remained in Cuba, if Your Honor pleases, until May of 1960.

When according to his testimony, various anti-communist activities in which he had engaged, had caused him to lose favor with the Castro regime and he said he was in fear of the Cuban secret police and fled the country on May of 1960 and subsequently arrived by way of Mexico, on July 22, 1960 in the States.

This man has Latin America background?

Murray A. Gordon:

No, Your Honor.

He’s an American citizen born in this country.

The record shows that he had made one prior visit to Cuba as a seaman, but other than that, he has no background of either residence or any other activity in Latin America.

On that racial background the — his parents Latin American?

Murray A. Gordon:

This doesn’t appear in the record but I think I can tell Your Honor that he is of German descent.

The other fact of record which I think will not be controverted is that there was never any renunciation on the part of the petitioner, of either his American citizenship or his American allegiance, quite the contrary.

So far as the record speaks to that matter, it is quite clear that he never intended to renounce his American citizenship or his American allegiance.For example, he was — because of the services to the revolutionary movement, he was eligible for Cuban citizenship if he had chosen to avail himself of that.

He never did so far as the record shows.

As a matter of fact, the immigration service and the courts below acknowledged that he is stateless as a result of the judgment of the courts below.

He never took an oath of allegiance to Cuba so far as the record shows and he denies it as part of the record.

During the period of his activities following January 1959 in the rebel army, on frequent occasion, he landed — he led A to the FBI, to the CIA, to the American consulate.

This too was not disputed in the record, nor is it disputed then in so doing, he sometimes subjected himself to personal jeopardy.

And when in February of 1960, he was handed a notice from the State Department that his military service in Cuba, resulted in his denationalization.

He promptly protested it in a press conference which was widely reported.

As I have said, he left the country, Cuba, May of 1960.

He came back to this country in July of 1960.

His experience here was uneventful until January 25th of 1961, when two officers of the immigration service came to an apartment where he was staying presumably who questioned him.

Murray A. Gordon:

Now, the exact basis for the questioning is in controversy in the record and I will not go into the details of that except to tell you that after first being interviewed at 8 o’clock in this apartment, he then went to the immigration service officers in New York at 9 o’clock.

There, he was questioned for a period of approximately five hours.

At the end of the period of questioning, a statement was prepared for him in the handwriting of one of the agents, containing a — a narrative form of statement rather than question and answer.

Much of the language in that statement was the language of the investigator rather than of Marks’ and then at least one particular, the statement was holding inaccurate.

That statement was then submitted to Marks to sign, he signed it and he was promptly then advised for the first time that he was under arrest.

He was taken to the federal detention headquarters in New York and placed a maximum security and there, he remained for a period of approximately nine months when for the first time, we were able to obtain bail upon the institution of the present habeas corpus proceeding.

There were hearings before a special inquiry officer that ended on April 6 and that inquiry officer took until the end of May to render his decision.

And throughout this period of time, Marks was detained.

An application was made for his release on habeas corpus, it was denied, pending exhaustion of administrative remedies.

Applications were made to the Attorney General of the United States for his release pending his — pending the determination of these proceedings.

That was denied.

An appeal was taken to the Board of Immigration Appeals, they affirmed the order of deportation and finally we were able to begin these proceedings.

Initially, the District Court Judge fixed bail of $10,000.

The petitioner couldn’t raise that kind of money.

It was subsequently reduced, bail was raised.

In October, he was released and he is out on bail at the present time.

The District Court found that the finding of alien — of alienate was warranted under Section 349 (a) (3), but held that he was not deportable.

The Court of Appeals reversed on the second phase, it held that not only was Marks an alien and stateless, but he is deportable.

And this therefore, represents the first instance of a case before this Court of a native born American who has never voluntarily renounced his American citizenship and never acquire the citizenship of another country, being found to be stateless and deportable to any country who is willing to accept him.

Marks —

Earl Warren:

But may I — may I ask what —

Murray A. Gordon:

Yes, Your Honor.

Earl Warren:

— what reason the District Court assigned for saying that he was not deportable after it had found that he was an alien?

Murray A. Gordon:

There were two grounds asserted for his deportability by the Immigration Service.

First, that at the time of his entry in this country in 1960, he was an alien.

The theory was that he denationalized himself automatically by this foreign military service and from that moment on, although I don’t know whether it’s the first moment of that service or the last moment of that service, whichever moment it maybe, he was then denationalized an alien.

Now, when he came into the country at that time, he had a background of a prior conviction for a crime involving moral turpitude.

So they said he was an excludable alien because of this conviction.

They also said he was an excludable alien because he did not have the requisite and pre-documents as an alien.

Now, the District Court said, that as he reads the statute, it requires a conviction not at the time that one is an — an alien but he found as this Court has found in Costello, that since the conviction took place in 1952 and he was a citizen at that time, that could not be a basis for his exclusion or his deportability.

Murray A. Gordon:

He also found with respect to the entry documents that not until there had been a judicial determination of his expatriation, could it be concluded that he was in fact an alien.

Consequently, he found that there was no requirement for entry documents as of that time.

Now, the Court of Appeals did not go into the conviction question.

I think that —

Earl Warren:

Well, when the District Court — how did the District Court decide this?

Murray A. Gordon:

Well, he decided therefore that neither of the two bases asserted for the excludability and therefore the deportability of the petitioner could be sustained under the statutes.

And for that reason, he held that Marks was not deportable.

Have I explained that to Your Honor’s satisfaction?

Earl Warren:

I think — yeah.

May I now — may I here, ask you one more question.

Murray A. Gordon:

Yes, Your Honor.

Earl Warren:

At the time he went back to Cuba in 1959, did he go back there legally so far as this country was concerned or did the — the laws — immigration laws regulations prohibit Americans from going to there.

Murray A. Gordon:

No, no, I’m aware — at that time Your Honor, —

Earl Warren:

Yes.

Murray A. Gordon:

— there were no prohibitions at that time.

Earl Warren:

No, no prohibitions.

Murray A. Gordon:

As a matter of fact, we recognized Cuba very promptly.

Earl Warren:

Yes.

Murray A. Gordon:

And Your Honor may recall the white paper issued by the State Department in April of 1961 which is in the record here, which indicated that as of that time, the administration look with favor upon the efforts made by Castro to overthrow what the State Department paper refers to as the tyranny of Batista and to institute the great social reforms which were long overdue in that country.

That was the attitude of our country at that time.

Earl Warren:

Yes.

You just question the dates in my mind.

Murray A. Gordon:

That’s correct Your Honor.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

There is — under the Neutrality Act of 1818 which was now Section 959 of Title 18, If one enlists in this country for military service abroad, that is a crime, but to enlist abroad for military service abroad is not a crime under the Criminal Code of — of this county.

And so the condition of Marks as of this moment is that after having served nine months in maximum security, he’s lost his American citizenship.

He is stateless.

He is deportable to any country which will accept him.

In the event this Court should affirm the final order of the Immigration Service, the Attorney General may take him into his custody once again and keep him in custody for a period of at least six months while trying to find some country who will accept Marks as a deportee.

If he is ultimately deported, if a country is found to accept him, he cannot return to this country except with the explicit consent of the Attorney General.

Murray A. Gordon:

If on the other hand, no country accepts him as a deportee, as I read Section 242 (c) of the Nationality Act of 1952, he may certainly be kept on the perpetual or at least indefinite supervision.

And the Court is familiar with the full meaning of that after the wit of its case, I’m sure.

William J. Brennan, Jr.:

Well, that doesn’t mean incarceration?

Murray A. Gordon:

No but it isn’t clear to me Your Honor, Section 242 (c) talks as follows, that if he cannot be deported within that six-month period, the initial six-month period, the language of the statute is that he is subject to further supervision and detention pending eventual deportation.

That appears in Section 242 (c) of the Nationality Act of 1952.

William J. Brennan, Jr.:

You mean that as authority to — and find him somewhere (Voice Overlap) —

Murray A. Gordon:

That hasn’t been so treated by the courts or by the Attorney General.

I’m merely referring to the language in the statute.

It is true that under Section 244 of the Act of 1952, after a period of seven years and a showing of good moral character, assuming that Marks hasn’t been deported by that time to whatever country will accept him; he can make an application for change of status as a lawful permanent resident.

But that requires not only the consent of the Attorney General, but is subject to review by the House of Representatives and the Senate.

And I think it is not a rush guessed say that is most unlikely.

In view of the background of the petitioner, that it is most unlikely that permission will ever be granted to this man to become a lawful resident of the United States.

Now, I think that any discussion of Section 349 (a) (3) has to be preceded by a discussion of the background of how this country has treated foreign military service relative to the question of expatriation.

That type of treatment is not consistently made on either of the briefs before Your Honors and so I shall dwell upon that at some length.

Until 1868, this Court, this country did not generally recognized the right of expatriation even where the individual will be.

Incompatible with that attitude, the early cases on the subject consistently rejected the notion that military service abroad constituted the basis for expatriation.

Congress had the question before it twice, first, in 1797 and then again in 1880, both in connection with legislation dealing with privateers and enlisting to serve in foreign military service.

In both instances, the Congress rejected the concept that foreign military service would constitute a basis for expatriation.

But I think in all fairness, it should be said that that was part of the general attitude that there could be no expatriation even if the individual will be.

The first time that the concept of the voluntary right of renunciation of citizenship became a governing principle in our laws, is under the laws, the Act of 1868, following the great opinion of Attorney General Black.

And the concept was there enunciated in general language that every individual had the right to expatriate himself.

It did not undertake to enumerate what kinds of acts would constitute expatriation?

That was left to the interpretation on an ad hoc basis if you please, by the Secretary of State as the problems arose.

And I think it will be acknowledged that the consistent interpretation of the Act of 1868 was that military service abroad, where there was no oath of allegiance taken to the foreign country and whose service the individual was engaged, was no basis for expatriation.

Yes, the State Department did withhold diplomatic protection of the individual unless if there was a condition of what they characterize as inhuman treatment.

But other than that, the consistent attitude taken by the executive branch of this Government from 1868 and as we’ll be seeing down to 1952 was that if an individual engaged in military service abroad but took no oath of allegiance to the foreign power involved, he did not by such military service alone, renounced his American citizenship or — or his allegiance because it was understood that it was quite plausible to undertake to fight battles of foreign countries and still retained an allegiance to this country.

It was properly remembered that Kosciusko, that La Follette — Lafayette during the revolutionary war, fought in behalf of the American forces, revolutionary forces.

That they were a contingent of 6000 French troops who supported him and it was understood that they never lost their French citizenship.

It was probably remembered that during the Civil War, thousands of Germans came to this country and assisted the northern forces in the Civil War and not only never lost their German citizenship but were paid pensions by the United States when they returned to Germany to enjoy their German citizenship.

Now in 1907, there was the first attempt in statutory form to codify the instances of expatriation.

Murray A. Gordon:

Instead of the general language of the Act of 1868, there were a few précised instances which were now enumerated which would constitute renunciation of American citizenship, expatriation.

And when it came to the question of service abroad, the Act codified and made explicit, the line of interpretation by the State Department that only foreign service, where there had been an oath of allegiance taken to the foreign power involved, would be the basis for expatriation and that was a situation down to the enactment of the Nationality Act of 1952 because the adoption of the Nationality Act of 1940 did not truly change the line of construction which I’ve indicated.

William J. Brennan, Jr.:

Just tell me, Mr. Gordon —

Murray A. Gordon:

Yes, Your Honor.

William J. Brennan, Jr.:

— (Voice Overlap) in this record, does Marks ever took, when he became a member of the Cuban Armed Forces, any kind of oath or anything?

Murray A. Gordon:

No, he denied that Your Honor and there’s nothing in the record to indicate to the contrary.

Nothing in the record.

As a matter of fact, the finding by the Immigration Service is that he is stateless.

And from that, I assume that he took no oath of allegiance to his citizenship.

William J. Brennan, Jr.:

Well, what — what I’m — I’m wondering is that I gather on the — in our armed forces, we have to take an oath of allegiance (Voice Overlap) take that in our armed forces?

Murray A. Gordon:

Well he was — he first started — yes, I think that is true Your Honor.

William J. Brennan, Jr.:

So if there had been something like this, will I gather your argument; you would feel you’d be on weaker ground?

Murray A. Gordon:

No question.

William J. Brennan, Jr.:

Yes.

Murray A. Gordon:

No question.

William J. Brennan, Jr.:

Is this — is this generally an argument that since one must voluntarily renounce even assuming Congress has power to treat certain actions as voluntary renunciation?

Historically, joining foreign armed forces has never been treated as voluntary renunciation, therefore this may not be and may not constitutionally be by Congress, is that it?

Murray A. Gordon:

Until 1952, that was the experience.

I shall want to amplify the position on that score but I think that states it essentially.

In 1940, after five years of study by a cabinet committee appointed by then President Roosevelt, it was proposed that a certain series of acts shall be deemed as an indication of a transfer of allegiance from this country to another country.

And among the acts so-referred to, was foreign military service, this time without reference to an oath or taking on the allegiance or the citizenship of the foreign country.

It is rather interesting that in the proposal for such legislation, Mr. (Inaudible) who is the Assistant Legal Adviser of the State Department testifying in support of the proposed bill said that, it does not seem reasonable that a person should give himself up and risk his life for the good of a foreign state and remain a citizen of the United States although it maybe reasonable to provide for recovering citizenship readily in such cases.

In other words, it was still made clear that the option to be an American citizen or to lose the American citizenship was to be left with the individual.

And as a matter of fact, that’s how the Nationality Act of 1940 comes out.

Because while the House Bill provides the denationalization, irrespective of any alternative citizenship or taking an oath of allegiance to a foreign country, the Senate revised the bill and it was the Senate revision which was adopted.

That Senate revision provided that there would be loss of American citizenship for foreign military service, if the individual either had or required the citizenship of that other country.

Now that took care of two situations.

It took care of the situation of one acquiring the foreign nationality or taking an oath of allegiance to the foreign country in conjunction with entering the military service, one that took care of another problem which was concerning the Congress at that time.

It was the problem of dual nationality.

It was the problem of the individual who came to this country, became a naturalized American citizen and went abroad and when conscripted into the service of his native land, invoked American intervention on the grounds that he was an American citizen.

Murray A. Gordon:

Now to a great extent, that problem had been solved by a series of treating known as the Bancroft Treaties starting in the latter part of the 19th Century, but it was still a residual problem.

I may say that there was practically no discussion in the congressional debates at the time of the adoption of the Act of 1940, very little discussion in the reports and just a bear smattering of discussion relative to this problem at the hearings, none of which bears upon the problems we have actually.

In the adoption of the Nationality Act of 1940, it was also provided that those persons who had been in a foreign military service of an ally during World War I and subsequently this was extended to service in the armed forces of an ally in World War II, could very quickly recover their American citizenship simply by taking an oath of affirmation and repudiating any other citizenship they may have acquired.

All other forms of military service could be the basis for re-naturalization under Section 317 (c) of the Act of 1940, by the ordinary naturalization procedures except you didn’t have to wait five years.

And so, it was clear under the Nationality Act of 1940 that a man could regain his American citizenship rather expeditiously if that was his intention.

And so in that effect, of the Nationality Act of 1940 was not substantially to alter the basic concept that renunciation of American citizenship in connection with foreign military service was a voluntary matter.

The change takes place in 1952 and what I can only characterize is a piece of freak legislation in view of the substantial interest which were involved.

William J. Brennan, Jr.:

But I suppose Mr. Gordon, you’d say that even if Marks at least before we get to the 1952 statute, had to take some kind of oath of allegiance to the Cuban army.

That would not the evidence upon which that could be a conclusion of voluntary renunciation of American citizen.

Murray A. Gordon:

I would take that position although that’s not the question here.

William J. Brennan, Jr.:

I think that would (Voice Overlap) —

Murray A. Gordon:

There — there is a separate provision in the Act, however, and it seems to have been a part of the consistent pattern of administrative determination that if one takes an oath of allegiance to a foreign country, that is deemed a voluntary act of expatriation.

William J. Brennan, Jr.:

How long was that been stated?

Murray A. Gordon:

That has been so since the interpretation of the Act of 1868, however, I think that would be another question which I would be prepared to argue to this Court.

The record here, however — the record here —

William J. Brennan, Jr.:

(Voice Overlap)

Murray A. Gordon:

Quite the contrary, he denied it and there’s nothing in the record to suggest anything to the contrary.

In 1950 —

Earl Warren:

Suppose the American today was to enter the army of Castro, would your case be — would the case be any different from this one?

Murray A. Gordon:

I think it might because Your Honor, I think the facts here show that his participation in the rebel army activities, in the early part of the Castro regime, was not incompatible with an allegiance to this country because the attitude towards the Castro regime during that period of time was very different from what it is today.

Moreover, one could argue that the — the nature of the hostility between these countries as such that a much stronger argument could be made out that service in that army at the present time would be incompatible with an allegiance to this country, but that’s not the case we have at present time Your Honor.

Earl Warren:

No, I understand — I understand that.

How about the other Iran countries that we do have relationship with Russia and the Czechoslovakia and the rest of the country, would that be any different from your case?

Murray A. Gordon:

I think it would Your Honor.

Earl Warren:

And what — in what respect?

Murray A. Gordon:

I think that it could, with less forcibility be argued, then I am arguing here that that foreign service does not indicate any inconsistency between allegiance with this country and the intention to retain American citizenship.

I think service in the armed forces of a country, where there’s a potential of war between those countries, where there is a basic political hostility between those countries, makes the question a more difficult one.

I would say, Your Honor, that in the last analysis, this should be the issue of fact to be tried out in a proper proceeding.

But if you’re asking me my off-the-cuff reaction to the differences between these situations, it is that I think that it would be less plausible to argue the retention of American allegiance and the case of service in iron curtain, military force and it was under the facts in this case.

Earl Warren:

Of course, it’s obvious that there’s a difference in degree but I — I wanted that the legal posture of your case would be different to no certain terms.

Murray A. Gordon:

Substantially not, Your Honor because ultimately, I think this comes down.

The only way Section 349 (a) (3) could be sustained in my opinion is to make relevant an inquiry into the question of intent.

That should be the issue of fact.

It is in fact suggested by Mr. Justice Black’s concurring opinion on Nishikawa case.

I think that’s the proper inquiry in these cases.

And so the basic legal proposition would be the same in both instances.

The factual consequences might well be different Your Honor.

If the statute is valid, well of course all of those situations would be — will come under it?

Murray A. Gordon:

That’s the trouble the statute Your Honor.

I think the statute is such as to bring within its scope those who never transferred their allegiance from this country as well as those who did, and that’s the problem I find with this statute.

You’re going to come to the Perez case?

Murray A. Gordon:

Yes, I certainly intend to Your Honor, but I will anticipate it to this extent.

I think that this case is much closer to Mendoza than it is to Perez, partly because of the history of this statue which I should like to complete briefly and partly because in this case, like Mendoza but unlike Perez, there is a finding which results in statelessness and that I suggest is a qualitative difference between Trapp, Mendoza and Perez.

Now in 1950, —

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

No, you cannot Your Honor.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

That is correct.

I merely said this case is closer to Mendoza.

The case is different from Mendoza.

No — no doubt about that, Your Honor.

May I ask you one question?

Murray A. Gordon:

Yes, Your Honor.

Am I correct to think that there’s no case in this Court yet that has drawn a distinction between the effects of the naturalization (Inaudible)?

Murray A. Gordon:

In the plurality opinion of Mr. Chief Justice Warren in the Trapp case, a special quality of State was this — was the basis for the plurality position, namely that that is a certain kind of punishment.

I would go further in say however, Your Honor, there is no —

(Voice Overlap) punish that the —

Murray A. Gordon:

Pardon me, Your Honor.

This is an opinion rested on the punishment, any distinction with that?

Murray A. Gordon:

Well I believe if Your Honor will bear with me on that, I think, the point is in the Trapp case, the plurality opinion that statelessness was different from ordinary deportation.

Murray A. Gordon:

And while it is true that there was a punitive intent in the legislation, another very crucial fact that — in that case, was that statelessness had a special quality which brought it within the Eight Amendment.

It is true that it was first defining that it was a penalty, but then it was a very special kind of penalty and I say it to Your Honor, that the Government here today, will be arguing to this Court that there is a qualitative difference between depriving of person of sole American nationality, of his American citizenship and a person of dual nationality, because on the Schneider case, if Your Honor pleases, the Government will be put to the proposition of explaining why it treats a naturalized citizen with dual citizenship, different from a person with sole American citizenship.

Now in 1950, the Senate Judiciary Committee then under the Chairmanship of Senator McCarran, issued a report in which he suggested that it was most unfortunate and improper that the denationalizing effect of foreign military service should be made dependent upon whether one had taken an oath of allegiance to a foreign country.

From his point of view, loss of American citizenship should be predicated upon what our laws prescribed and not upon to protrude a circumstance of what a foreign country may require as a condition for a military service.

And he, therefore, recommended that there should be denationalization in all instances of foreign military service, another word — another word in the report that this would result in statelessness, no debates on the subject, no hearings on the subject.

But in 1952, the adoption of the recommendation of the Senate Committee Report without one word, anywhere to be found that this would result in a condition of statelessness in some cases.

As a matter of fact as Your Honors will see shortly in all cases of any significance under 349 (a) (3) because after the decision of this Court in Nishikawa, which held that where a dual national is conscripted into the military service of his — of his native land, he doesn’t lose his American citizenship.

What that means then is that only in the case of a Native American, who voluntarily enters into a foreign military service.

Is there going to be a loss of American citizenship?

And so the sole practical effect where there is no voluntary renunciation of American citizenship, the sole practical effect today of Section 349 (a) (3) is to render a person who has not renounced his American citizenship, because that would cause expatriation under other sections of the Nationality Act, to render such a person statements.

This is the sole residual meaning and impact of Section 349 (a) (3).

The Act of 1952 did still another thing.

You may recall that I mention that the Act of 1940 permitted a safety valve.

A man could very quickly and easily become pre-naturalized under Section 317 (c) of the Nationality Act of 1940.

That was eliminated without as the Government says in its brief, without any discussion or justification.

There is no way to recoup American citizenship.

So far as I can tell, after this loss under Section 349 (a) (3) as it now stands.

Now, I think that it is clear from the legislative history —

Potter Stewart:

Wouldn’t such person be in the status of any alien?

Murray A. Gordon:

No, Your Honor.

Any alien would have his native citizenship.

This man is state —

Potter Stewart:

So far is if– so far as this power to acquire American citizenship.

Murray A. Gordon:

So far — yes that is correct Your Honor.

He could acquire it after five years residence and the establishment —

Potter Stewart:

Yes.

Murray A. Gordon:

— of good moral character.

He would be in the same condition from that point of view as any other alien.

Potter Stewart:

Yes.

Murray A. Gordon:

As I read the legislative history of this Act, its true lust and purpose is to say that if a man engages in foreign military service, that that is tantamount to a voluntary renunciation of his American allegiance and citizenship.

Murray A. Gordon:

That’s what this Act does, that’s what it was intended to do.

And that’s what Senator McCarran made clear when he equated the — the American citizen who takes a note of allegiance to a foreign country with an American citizen who doesn’t take such a note.

Historically, taking an oath of allegiance to a foreign power was demonstrative of a renunciation of American allegiance.

By equating these two situations, as he did explicitly in that report, he was indicating to the extent that there is any purpose on descendible — discernable purpose.

In 349 (a) (3), he was saying that foreign military service demonstrates conclusively and creates an irrebutable presumption if you please, of an intention to renounce American citizenship and American allegiance.

Any such presumption I suggest, is contrary to experience.

You cannot look at the history of the interpretation of the Act of 1868 for almost 85 years, which may precisely this distinction, which held that voluntary military service abroad where there was no oath of allegiance did not demonstrate a renunciation of American allegiance.

You cannot look to that by your experience.

You cannot look to the experience of our young people in World War I and World War II going to support the allied forces before we entered the war.

You cannot look to the experience of those members of the Jewish faith before on the side of Israel.

You cannot look to the experience of what happened during the Spanish Civil War and pleasantly say, that so long is a man engages in military service abroad or some other country, he is giving up his allegiance to this country quite in contrary.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, your — this Court has decided that question in the Kolokitha case.

You may recall that service for Japan with a slavish as Mr. Justice Clark was referred to a slavish angulation as it were of the Japanese regime.

Since he was a dual national, did not constitute a repudiation of his American allegiance had it done so, he could not have been prosecuted for treason because he wouldn’t have been an American citizen.

I think ultimately if Your Honor pleases, that this is a question of fact which cannot be foreclosed by any kind of irrebutable presumption on the part of Congress.

I didn’t go so far in this case however, because in this case, I think the facts really leave no serious doubt that there was never an intention to renounce American allegiance or American citizenship.

I think in the last analysis however, the question should be a question of fact to be tried before a jury as to whether there was a genuine intention to renounce allegiance to this country because you cannot otherwise takeaway a man’s American citizenship in my judgment, compatible with the Constitution.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

That’s correct.

I think that —

Potter Stewart:

And here, you’ve got a lot of cases against you on that haven’t you?

Murray A. Gordon:

I think not Your Honor —

Potter Stewart:

Perez, (Voice Overlap)

Murray A. Gordon:

I — I think not, Your Honor.

I think that dealing first as we do with the condition of statelessness, we have a qualitatively different situation on the cases up to now.

I think when the question is whether an individual has selected one of two nationalities by an act such as voting or marriage.

Marriage, that case of course as Your Honor knows, was a temporary abatement of American citizenship or comparable situations involving an election between one or two dual nationalities.

First of all, it falls into the context of a very special type of problem that the Congress had where there are conflicting claims of sovereignty between two countries, which I think is not at all present here.

Secondly, I think that what would be sufficient to constitute an election of one or two nationalities, poses in my judgment, a very different kind of problem from an election which results in a repudiation of American allegiance and citizenship and statelessness.

William J. Brennan, Jr.:

Do I understand Mr. Gordon you’re suggesting that it is distinguishable?

Murray A. Gordon:

On two grounds.

William J. Brennan, Jr.:

— (Voice Overlap) might describe to — might describe on your status for voting in a foreign — foreign election, a voluntary renunciation of the American citizenship but now describe that the service is — the army of that (Inaudible)?

Murray A. Gordon:

I would hope that this Court would reconsider Perez.

I should say that at the outset.

I do notice that Your Honor, in the Mendoza case, referred to some deep felt doubts that you had concerning the correctness of your position in the Perez case.

I think ultimately, Perez is indefensible as a proposition of constitutional law.

I think —

William J. Brennan, Jr.:

This because you can’t really say that mere voting in a foreign election can — to that can be attributed a voluntary renunciation —

Murray A. Gordon:

No, not for that reason Your Honor.

William J. Brennan, Jr.:

Not for that.

Murray A. Gordon:

Not for that reason.

I think Perez is indefensible not because it’s indistinguishable but because it’s indefensible as a proposition of constitutional law.

But I think in addition, the case — the case is distinguishable for two reasons, first that there is a historical context for the 340 —

William J. Brennan, Jr.:

(Voice Overlap) before you get to the distinguishable, why is it indefensible?

Murray A. Gordon:

Why is it indefensible?

Because I think that Perez ultimately depends not upon the proposition that the voting indicated a voluntary renunciation of American citizenship.

William J. Brennan, Jr.:

It certainly does not.

Murray A. Gordon:

It does not.

There’s no such discussion in that case.

William J. Brennan, Jr.:

Well then — then that does get as back to the problem.

Basically your arguments in the beginning, if I understood it for further, has been that an American — at least a native born American citizen can never lose his American citizenship except as he voluntarily renunciation.

Murray A. Gordon:

In the area of military service which is my case here today, what I am arguing is —

William J. Brennan, Jr.:

No, but isn’t your basic constitutional proposition —

Murray A. Gordon:

Yes, Your Honor.

William J. Brennan, Jr.:

— that no American citizen may lose it except that voluntarily, he gives it up?

Murray A. Gordon:

I think that’s a basic constitutional proposition but I go further in this case —

William J. Brennan, Jr.:

Well, I (Voice Overlap) —

Potter Stewart:

— if you’re right, this would mean that the Perez case, Mackenzie against Hare and the Savorgnan case are all wrong.

Murray A. Gordon:

No, I think only the Perez case would be all wrong because only the Perez case went to the question in my judgment, are the repudiation of American allegiance rather than an election of an ultimate nationality, and I think those are two very different propositions Your Honor.

Murray A. Gordon:

I would say, Mr. Justice Brennan that Perez was not argued or treated in the historical context which is present here.

I think that we can understand that Section 349 (a) (3) in terms of its historical background, was based upon a rather clear congressional purpose to announce that service abroad is tantamount to a renunciation of American allegiance.

There was no such showing of a legislative history or intention in the case of Perez and the reason why that is most significant in my judgment is because if this legislation is an attempt to make a determination by the Congress that foreign military service without more creates the irrebutable presumption of a renunciation of American allegiance and that is the meaning of 349 (a) (3) when understood in its historical context and this was never discussed in Perez nor in the other cases referred to by Mr. Justice Stewart.

If that is so, then the legislative history here indicates that the Congress was undertaken to delineate an irrebutable presumption which is contrary to experience and for that reason as unconstitutional.

Now, if the Congress was saying, however, not that all instances of foreign military service are demonstrative of a renunciation of American allegiance, but that many are and therefore, they can be nationalized for all instances of foreign military service, then this case does come within Mendoza, Mr. Justice Goldberg, and squarely, because it is quite difficult of criminal penal legislation to say, “We’re not going to undertake to determine whether every kind of proscribed act is or is not socially harmful.”

We will punish all action of a defined character so as to deter all such action whether potentially or actually, socially undesirable, we punish it be — for purposes of deterrence.

If the purpose here, therefore, was to expatriate because many instances of foreign military service were demonstrative of a foreign allegiance and this was one way of deterring such activity, then this comes within Mendoza.

And as a matter of fact, this is precisely the way the United Nations has construed legislation of this sort.

In 1949, the Secretary of the UN published a study called “A Study of Statelessness.”

Since I don’t refer to what my brief, I should like to read it very briefly to Your Honor.

At pages 140 — page 140 of that study, after making a study of this subject throughout the world, they have a caption, “The deprivation of nationality as a penalty.”

Cases of individual forfeiture of nationality as a penalty are frequent and vary from country-to-country.

In such cases, the State accuses one of its nationals of committing an act or adopting an attitude contrary to its interests.

The main grounds for the deprivation of nationality as a penalty are ascertained to be following, (a) Entry into the service of a foreign government more particularly enrolment in the armed forces of a foreign country, a penalty.

Now, it is argued, however, that this case comes within Perez because this is not a penalty.

Statelessness, perpetual risk of deportation, indefinite detention, this is not a penalty.

Now, I suggest to the Court that quite apart from the purpose served by 349 (a) (3), the mere imposition of such a condition is a penalty.

Potter Stewart:

Do you think in every case, any involuntary denationalization is if something (Voice Overlap) —

Murray A. Gordon:

Where it results in statelessness —

Potter Stewart:

— in some factual penalty?

Murray A. Gordon:

Where it results in statelessness, yes, Your Honor.

I say that that is very much like the hard labor case and the Wong Wing case in this Court.

In Wong Wing, you had a statute which provided that persons unlawfully in this country could be arrested, detained and subjected to hard labor.

This Court sustained the arrest, sustained the detention, but said that hard labor was an infamous punishment which could be imposed on — upon an alien only after a judicial trial.

I cannot see how the performance of hard labor is anymore of a punishment as this Court squarely held in Wong Wing, in the condition in that which Marks finds himself today.

It makes no difference that this serves any of the functions of the foreign affairs of this Government.

The assassination of a citizen embarrassing us would solve the problem too.

Earl Warren:

We’ll recess now, Mr. Gordon.

Murray A. Gordon:

I think it has come time to talk of many things including Perez.

If I correctly understand the ruling in Perez, it is that the foundation for this type of expatriating legislation can be found in the foreign affairs powers of the Congress.

Murray A. Gordon:

And basically, what I understand from Perez is that where individual conduct has the effect of potentially involving the United States in some embroilment or embarrassment with foreign countries, that in those circumstances, there is the power to denationalize.

According to Mr. Justice Frankfurter, the problem is terminated by terminating the citizenship.

Now, whatever such justification could have been found in the factual situation in Perez, it is not present here.

I see only two possible bases for the exercise of the foreign affairs powers in this legislation.

The first is in those instances where an American serves in a foreign army and then invokes American intervention to get him out.

Now of course, that’s not the problem in these cases.

Because in Nishikawa, he was conscripted, in the first place he’s denationalized.

Consequently, this particular function can exist only where the man has voluntarily entered the foreign military service.

And in those circumstances, the potential that he may after voluntarily entering the foreign military service invoke American assistance to get him out, I think is minimal.

The second and the more substantial problem derives from the proposition that if American engages in military service on behalf of a foreign government, his individual action may be associated with the foreign policy of this nation that we will in some matter of fashion, be identified with the aspirations, with the motivations of the particular individual.

Now, this I think to be, wholly at odds with the legislative history here.

I challenge my friend to point to a one word in any of the debates, any of the reports, anything in the history of disarray of the comparable legislation, to indicate that the Congress had any concern for that problem, whatsoever.

There is none.

And that’s not an oversight.

The reason for that is that Congress found that the problem had been solved by other means.

And what do I mean by that?

Historically, we have taken the position that when a man serves in the foreign military force, we disclaim any diplomatic responsibility for him.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

No question, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

No question, no question.

But more simply than that Your Honor, what we have done in the past and the reason why I submit that Congress has not acted further on this subject is that when an American is on a foreign military service, the problem is solved simply by saying, “We’ll assume no diplomatic responsibility for him.

We disclaim any identification with the policy” and that’s how we’ve solved the problem.

That’s why Congress never referred itself to that problem in the enactment of Section 349 (a) (3).

And as a matter of fact, because of the availability of this technique which is proven so successful historically, I think, the only fair thing to say is that when the Congress undertakes the use of cannon to demolish a mosquito, you have to suspect that they’re really after the wall on which the mosquito has lodged.

What has really happened here is that the disparity between the alleged problem, to which Congress never addressed itself, as distinct would may have been the case in Perez, that this so-called foreign affairs problem just never existed.

And if it did, and if that Congress undertook to treat it by these means, liquidating a man’s nationality if not his personality, then we would have to say that to use such gross means, to mean such a municipal problem, is characteristic of penal legislation once again.

Now, I had hoped Your Honor to treat the question of deportability of Marks even assuming him to be an alien.

I would ask Your Honors’ permission to file a replied brief to treat that subject more fully since my time is close to expiration.

Interesting as I think that problem is.

Murray A. Gordon:

May I have the Court’s permission to file a report?

Earl Warren:

You have five days to — to — that — that will be enough for you.

Murray A. Gordon:

Fine, thank you, Your Honor.

Now, I would like to conclude by making one point clear Your Honor.

Mr. Justice Brennan has asked in effect, whether my position in this case is necessarily incompatible with the decision in Perez.

I think there are points of distinction I have argued them.

But I will say at all candid, that I am before this Court because I devoutly believe that the Chief Justice’s position in the Perez case is the only correct one compatible with this society at least.

I understand that position ultimately to mean that to its expatriates someone for non-renunciatory action, action which doesn’t renounce American allegiance, jeopardizes the basis of a democratic society.

Now, that’s a large statement.

We don’t make such statements generally these days.

But I’m firmly convinced of it because I believe that in a democracy, a part from a naturalization powers, it is the citizenry who chooses the Government and not the Government who chooses the citizenry.

As a matter of fact, we stand unique among the great democracies of the world in this type of legislation.

I’ve studied the Nationality Acts of all the countries cited at page 60 of my opponent’s brief.

And I say to this Court that with the exception of such countries — not such, with exception of Afghanistan, Austria, Cuba, Indonesia, Panama and Turkey, with the exception of those countries, there is not another country in the world which denationalizes under the circumstances which are present here.

In many, when there is foreign military service, the Government notifies the individual that if he persists in the foreign military service, he would be deprived of his citizenship and he has given a choice whether he’s to keep his citizenship or continue in that service.

With the exception of the countries I have noted, none others make denationalization automatic.

I ask for a reversal if the Court please.

Earl Warren:

Mr. Gordon.

Murray A. Gordon:

Mr. Chief Justice, may it please the Court.

This is a deportation case in which the principal issue was whether the individual involved, Mr. Marks, had lost his American citizenship.

That too is the chief issue in these habeas corpus proceedings.

In 1958, Marks went to Cuba and joined the — the Castro forces seeking to overthrow Batista.

He served in the rebel army of Castro and was wounded late back here and went back to the United States for medical treatment.

Castro was victorious that took over power in Cuba on January 1, 1959.

Within a few days, petitioner returned to Cuba, rejoined the rebel army which now is the dominant military force in Cuba, was restored to his rank of captain and was assigned important security responsibilities, chief of which was the execution of war criminals, so-called, war criminals, who were condemned by military courts.

He achieved considerable notorieties throughout the world as Castro’s executioner.

In February 1960, he was served with a notice by the Department of State in Cuba that he had lost his American citizenship by service in Cuba’s army.

He continued to serve in the Cuban rebel army until May 1960 when he deserted, left Cuba and eventually through Mexico, came back to the United States.

He reentered to the United States on July 22nd, 1960 at El Paso, Texas then claiming to be an American citizen.

Now in December 1960, an article by petitioner appeared in a magazine known as Cavalier Magazine.

Murray A. Gordon:

The title of the article was, “I Was Castro’s Killer.”

And within the month, immigration officers being apprised apparently that he was in this country, called it his home, questioned him and then the questioning was continued at immigration headquarters to which he voluntarily went.

Upon the conclusion of the questioning, the immigration officers placed him under arrest and commenced deportation proceedings against him.

Extensive hearings were conducted on nine separate days over a period of a couple of months.

Petitioner was represented by counsel.After the hearings were completed, a deportation order was entered against him by the special inquiry officer.

The Board of Immigration Appeals affirmed.During the pendency of the deportation proceedings, petitioner brought habeas corpus proceedings challenging his detention.

That habeas corpus writ was heard before District Judge Levet.

Judge Levet ruled that the challenge to the merits was premature and that the insofar as the detention by the immigration officers was concerned, the record demonstrated that the detention was based on adequate ground.

Therefore, he dismissed writ of habeas — habeas corpus.

When the deportation hearings were completed and the order became final through the action of the Board of Immigration Appeals, petitioner started a new habeas corpus proceeding.

This was heard before District Judge Cashin.

Now at the hearing before Judge Cashin, both parties stipulated that the record of the proceedings before the special inquiry officer was to be received an evidence and considered de novo by the trial court.

This was done.

The trial court considered the evidence de novo and after his consideration, Judge Cashin ruled that the petitioner lost his citizenship whose service in the military forces of Cuba but the statute was constitutional and as the discussion is developed, the judge ruled further that petitioner was not deportable.

Because at the time he entered the United States in July 1960, according to the court he had not yet lost his citizenship because he could lose only if a court determine that he had lost citizenship.

The effect of that decision would have been to allow him to stay in this country but not as a citizen?

Murray A. Gordon:

That is right sir.

It would have found him to be a citizen only as of the time that a court determined to — him to be a citizen.

Since was not an alien according to the court, he would continue to remain here.

He had not committed any act which would have made him deport.

On appeal, the Court of Appeals reversed.

It agreed with Judge Cashin that expatriation had occurred and that the statute was constitutional.

It disagreed with him on the question of whether the petitioner was deportable and found that expatriation had occurred automatically when the act of expatriation had been committed.

Now, the Court sustained the deportation order on a single ground, the ground that when petitioner entered the United States in July of 1960, he was an alien as the Court found.

He did not comply with the documentary requirements which are prescribed for all aliens seeking (Inaudible) of the United States.

Therefore, he had entered illegally and was subject to deportation.

Now, my opponent has not dwelt too much on petitioner’s military service and I think, in order to inform the court, I — I just would like to spend a few of my precious moments in discussing the nature of this military service.

It is not disputed that petitioner, if you’re involved a relevant times from January of 1959 through May of 1960, served as a captain in the rebel army of Cuba, which was Castro’s army that had taken over control of the country.

That he was charged with the important military duties, that he received pay and identification card as a captain in the ray — in the rebel army.

William J. Brennan, Jr.:

Does that mean, Mr. Gordon that if he has not come back on January of 1959, his service with Castro before that date would not have brought him within this time?

Murray A. Gordon:

No relevance sir.

He was not in the service in the armed forces of a foreign state.

That he deals only with service in the armed forces of the foreign country.

William J. Brennan, Jr.:

Well, he said he would — when he went back after 1959, I thought, I heard you say that it was for service with the rebel army?

Murray A. Gordon:

This was the name of the army.

It continued to be called the rebel army but the revolution had succeeded.

William J. Brennan, Jr.:

Well, was the — it was the — it was the army of the then Government of Cuba was it?

Murray A. Gordon:

Definitely, called the rebel army.

It was the — and they call it the army of the revolution or some such name today.

It is the army of Cuba for this —

Tom C. Clark:

When did the United States (Inaudible)?

Murray A. Gordon:

Within a week after Castro took off.

It’s the first week of January of 1959.

Tom C. Clark:

That is about the time he was (Inaudible) Castro?

Murray A. Gordon:

Just about the time we don’t have the exact date when he went back, just about that time.

Tom C. Clark:

It was in the army of the recognized the State of Cuba that he served?

Murray A. Gordon:

That is right sir.

Recognized by our Government and for a period of 17 months, he served in the recognized and dominant military force of Cuba.

William J. Brennan, Jr.:

Would — would — if we had it recognized as the — as the Government of Cuba, would it make any difference?

Murray A. Gordon:

I — I don’t think so but I think we’ll confront with that problem.

It was the dominant military force.

He was the force in which operated the military establishments, was responsible for security and so forth.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

One of the purposes.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, Your Honor in my view, this is a judgment for Congress to make.

There maybe many things that are embarrassing to the United States.

Congress has selected this which Congress has deemed embarrassing.

I think that the judgment is reasonable as I show — show when I get to that point of the argument unless you want to discuss it now.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, it could be embarrassing in both instances.

I think that Congress has not been confronted with difficulties in the other cases apparently and has been confronted with difficulties in this type of cases.

Now, I think one more point should be mentioned in connection with the military service, and I think probably is significant in connection with the consideration of this case.

Petitioner contends that his military service was involuntary and he hasn’t found time to discuss that today.

I — I shall take a few moments to discuss this.

I think the record the — demonstrates overwhelmingly that this was voluntary military service.

When petitioner went back he says, “I went back for a reunion.

I had no intention of serving the military forces.”

Che Guevara, the big man in Cuba said, “You take over as captain, shoot these people who condemned by the military court.”

He sounds afraid to refuse.

Now, the District Court characterized this story as incredible as absurd as frivolous and I think those conclusions are abundantly demonstrated by the record.

Now, petitioner has a number of pre-hearing documents which are attributed — attributable to him and which are in records.

These are the interview with the Havana Times in February 1960, the Cavalier Magazine article which appeared under his name in December 1960 and the statement he made to immigration officers in January 1961.

Not the slightest suggestion of coercion appears in any of these pre-hearing documents.

Indeed, the first time there was any mention of coercion was when petitioner appeared for his hearing.

Now, the Cavalier Magazine article I think is quite significant and I’d like to take a moment to read what he said, one passage in this article about his service.

William J. Brennan, Jr.:

Does he admit he wrote that?

Murray A. Gordon:

Yes, he admits and he certifies that it’s true.

William J. Brennan, Jr.:

But does he admit he wrote it, was (Voice Overlap) —

Murray A. Gordon:

No, no, he didn’t write it sir.

It was written for him.

He adopts it and — and certifies that is true.

What page?

Murray A. Gordon:

Page 316 (b) of the record.

Here’s what he says, for five months in Havana while he was serving as Castro’s executioner, “For five months in Havana, I had no difficulties and the world looked pretty bright.

I was content in my work and left pretty much alone.”

Now, this is not the picture of a man who is serving involuntarily.

This is the man who is — whose world is very bright.

He’s happy in his work.

He’s doing exactly what he wants to do.

Murray A. Gordon:

I want to point out further that the fact of — that his service was voluntary had showed moreover by the nature of this service.

In the Cavalier magazine article, he justifies the executions.

He says, “Castro was justified in killing off these people because they would of course, the most, start the trouble.”

Moreover, we have the testimony of a witness named (Inaudible) who was the public defender in Cuba and was charged with defense of those who were condemned or accused in the military court.

(Inaudible) says he saw petitioner at La Cabana Military fortress where he was the security officer.

Everyday, for a period of months, dressed in his uniform and insignia of a captain in the rebel army, he saw him commanding the firing squads.

He saw him finishing off the prisoners after the firing squads were — were finished.

He — (Inaudible) testified that petitioner mocked and terrorized the prisoners who called him the Death Bird.

He testifies that on one occasion when the firing squad refused to execute a Major Capote, petitioner himself picked up a machinegun and killed not only Capote but seven of the people who were then awaiting execution.

This is not the conduct of a person who is serving involuntarily.

It is the person of a — of a — it is the service of a person who as he says, whose world look bright, who was very happy in his work.

William J. Brennan, Jr.:

You said he deserted Mr. Gordon in the (Inaudible)?

Murray A. Gordon:

He — he says he deserted because the — the Government was after him.

William J. Brennan, Jr.:

You accept that?

Murray A. Gordon:

I don’t accept it sir.

This is the only statement in the record, but this is what he says.

He says, “I was anti-communist.”

He stayed for a period of 17 months.

He didn’t make any effort to desert him at that time.

Travel between the Unites States and Cuba was relatively free at that time.

Other people are going on vacation trips, yet petitioner stayed for 17 months.

And when he deserted, he said the reason for my desertion is because people were after me not because my service was involuntary because I had fallen into this favor.

Or I submit that this claim of involuntariness is in the language of the District Court absurd, frivolous and unbelievable.

Now, I — I want to get to one point before I — I deal with the constitutional issues and that’s been suggested in the argument of the petitioner.

The claim is made that this statute in order to avoid constitutional difficulties should be construed as — so as to require a positive — a positive intent to give up citizenship.

Now of course, such a claim cannot be based on the statute itself.

As I read the statute, I believe this is a reasonable and inescapable reading.

The statute definitely contemplates that overt actions prescribed in the statute shall cause loss of citizenship.

Thus the introductory language of Section 349 (a) (3), the general statute dealing with expatriation says, “A person who performs one of the following specified actions shall lose his nationality.”

Now, Section 349 (a) (3) in the construction which the petitioner suggests would depend on the unlikely contingency that the person involved would say, “I did intend to give up citizenship.”

Murray A. Gordon:

There isn’t anything in that statute to justify.

And if that construction is accepted, it would in effect nullify the other statutory provisions dealing with the subject, dealing with voting, with naturalization in the foreign state, with taking an oath of allegiance to a foreign state, with residence in a foreign state, with taking a — an office or employment in the employee of a foreign state.

When Congress wished to prescribe a — an affirmative intent, Congress had no difficulty in doing this as in the provisions for renunciation.

Congress said that if a person wants to renounce citizenship voluntarily, that’s a way for him to do it.

It failed to do that in 349 (a) (3) and it seems to me, it was up to be — obviously not intended.

Moreover, of course if, the construction that petitioner suggest is adopted, there wouldn’t be any need for 349 (a) (3).

A person who wished to renounce citizenship could do so under 349 (a) (6), under the specific provisions for renunciation.

Now, petitioner cites no cases to support this possible construction.

And of course, it is directly opposed to the decisions of this Court in Mackenzie against Hare, in Savorgnan against the United States, in Perez against Brownell.

Each of those cases and each of them, the citizen said, “I had no desire to cast off citizenship.”

Yet in each case, this Court held that citizenship, the loss of citizenship depends not on the individual’s objective intended, but rather on the voluntary performance of certain actions which Congress designates as ground for expatriation.

Now, I believe it’s not possible to construe this statute in the way which petitioner suggest.

And therefore, we come to the question of whether Congress had power to prescribe such consequence.

Now, I think the main thrust of petitioner’s argument is his contention that this statute is penal in its form and purpose and its application.

From this claim, he next proceed to another step.

He says, “Since I find that this statute is punitive then, it is subject to the Eighth Amendment’s bar against cruel and unusual punishments and also subject to the procedural restrictions of the Fifth and Sixth Amendments.”

None of the legislative materials cited in petitioner’s brief and none of the materials that we’ve been able to find has even the slightest suggestion of any punitive aim on the part of Congress.

Indeed, the legislative materials and we cite them in our brief at pages 44 and 45.

The legislative materials show that Congress was concerned with a condition which — which prejudiced our foreign relations and that Congress wished to regulate these conditions.

The aim of the legislation insofar as the legislative report is concerned, reveals no suggestion of — of punishment.

It merely shows that Congress intended to regulate.

Just one — one word from the Committee Report on the 1940 Act, in those reports, the Cabinet Committee which drafted that statute, had this to say about the foreign military service.

They said that an American who served in the military forces of a foreign army and thereby offered his all in support of that stage, should be deemed to have transferred his allegiance to it.

Mr. Richard Foronjy whose testimony, my colleague has quoted, expressed substantially the same foot in his testimony.

Now, there’s nothing to suggest the punitive aim in any of these materials.

There’s nothing to suggest a punitive aim in the statute itself.

And I suggest that in the absence of this indicia of punishment, it isn’t possible to ascribe to Congress a motive to punish.

As this Court said in the Nestor case, Fleming against Nestor, punishment can be found only upon the clearest showing that punishment was intended.

Now, petitioner goes on and relies on the decision of this Court in Mendoza-Martinez and the plurality opinion in Trop against Dulles.

I suggest that petitioner misconceives those decisions and opinions.

Murray A. Gordon:

Mendoza-Martinez involved, as Mr. Justice Goldberg pointed out earlier, involved evasion of selective service obligations under a statute which, upon examination of an extensive leg — legislative history was found to intend punishment for the crime of draft avoidance.

Now, Trop similarly found on the basis of the statute itself and also an extensive examination of the legislative history, that’s the statute — I believe the language of the Chief Justice was that the evident purpose of the statute was to impose an additional punishment for the crime of desertion.

And the Chief Justice went on to say, “There is no other possible purpose that this statute can be taken to serve.”

Now, this statute has no punitive overtones.

There was no showing that punishment was intended and therefore, these decisions have no relevance.

Petitioner’s major thesis is that because the statute results in statelessness, then it must necessarily be punitive and therefore, it must subject him to cruel and unusual punishment.

Now, I think in making this argument, the petitioner again misunderstands the plurality opinion in Trop against Dulles.

The Chief Justice there found, first, on the basis of this extensive review of the legislative history that the statute imposed punishment.

Then the Chief Justice went on to say that, “Such punishment resulting in statelessness was cruel and unusual.”

Here, there’s no punishment of any kind.

Therefore, the question of whether the punishment is cruel and unusual cannot come into play.

But the argument that statelessness necessarily entails punishment, in my view, cannot be supported.

Unless, for example, a person can become stateless in many ways, through his own voluntary choice, he can renounce his citizenship and become stateless.

He can take an oath of allegiance to a foreign government and become stateless.

Does that punish him?

I believe that — that the fact that the person is stateless is not an evidence of punishment.

This is a consequence which an individual has suffered as a result of his voluntary action.

Hugo L. Black:

Doesn’t that defend to some extent on whether the Government does it or whether he chooses to do it for himself?

Murray A. Gordon:

Well, his argument sir is that the condition of statelessness which results from a statute necessarily is a cruel and unusual punishment.

If the statute imposes no punishment, I submit, there is no issue as to whether the Government nor he imposed it.

If it — the argument depends on whether statelessness — alone results in punishment, I say that this can’t be sustained.

Hugo L. Black:

Well, I don’t think anybody has argued that.

I thought they were arguing as punishment because of — of — by the — the expatriation by the Government because of something a man has done against the citizen’s will, then that’s punishment.

Murray A. Gordon:

Well, in other words, the argument would — would lead us to the result that all expatriation without the consent of the individual is punishment.

Hugo L. Black:

When the Government moves against because as I understand in the argument’s view, when the Government moves against somebody, do something to them on account of something they have done.

This — there’s something this time being the expiator and make them stateless such in common, pragmatic, everyday term that just simply means that he’s punished.

Murray A. Gordon:

Well —

Hugo L. Black:

— and their citizenship is worth nothing.

Murray A. Gordon:

Your Honor, I — I — I must disagree.

I think punishment can’t be found because an individual is unhappy with certain consequences.

Murray A. Gordon:

Punishment depends on certain criteria which this Court has spelled out and as Mr. Justice Goldberg said his opinion in Mendoza-Martinez and it isn’t very often — often isn’t very easy to isolate what was behind the decision.

But the primary consideration which must exist is that Congress intended to punish and here, there’s no such showing.

There must be the clearest showing that Congress intended to impose a punishment.

Hugo L. Black:

To do what it did.

I would suppose that if Congress decided to expatriate (Inaudible) speech up here, that you’d consider that punishment, wouldn’t you?

Murray A. Gordon:

Well, that’d be another story sir.

Hugo L. Black:

(Voice Overlap)

Murray A. Gordon:

That be a punishment — that be — because it’s myself, perhaps what will be another story because Congress is imposing a consequence as we — a punishment for certain specific conduct.

This is not punishment for any —

Hugo L. Black:

Would — wouldn’t this for conduct?

Murray A. Gordon:

No, this is — this is a — a whole field of activity, not this individual’s conduct.

His conduct is not what is involved.

It is —

Hugo L. Black:

Well, I’m — I’m — I’m sure that a lot of the few talks about it’s not what’s involved.

Certainly, conduct of his in going down and serving in the army is involved.

Murray A. Gordon:

The Congress didn’t take into account the specific facts as to what Mr. Marks did.

They took into account the entire policy for question —

Hugo L. Black:

He didn’t take into account what he did and —

Murray A. Gordon:

What he himself did.

Hugo L. Black:

— serving to the other army?

Murray A. Gordon:

Not what he — he wasn’t being punished for anything himself.

He was —

Hugo L. Black:

Well, who were they punishing?

It’s not him by expatriating him?

Murray A. Gordon:

Congress did not direct any statute against him Your Honor.

Congress dealt with a problem, a problem which concerns hundreds and thousands of people.

The problem is whether these individuals by their activities in a foreign state, can subject the Government of the United States to embroilments and embarrassments.

It wasn’t seeking to punish these people.

It was seeking to cope with the problem which endangered the United States.

Now, one further word on the question of the severity of the consequence was he — argues the argument has made and because this is of a severe consequence, it must be punishment.

Murray A. Gordon:

Now, under our laws, people are citizens and aliens, unsubjected to many severe consequences.

These include of course, deportation, denaturalization, the uses — limitation on the use and enjoinment of property, liability to selective service obligations.

None of these is deemed punishment at least under the decisions of this Court, in the constitutional sense unless there is a specific legislative design to punish.

Now, I’d submit that the — the statute, Section 349 (a) (3), cannot be demolished on petitioner’s unsupported assertion that the statute was punitive.

And I want to borrow again from the language of the Chief Justice, Chief Justice said in his plurality opinion in Trop, “A statute cannot be interpreted by pasting a label on it,” I think that’s a very felicitous phrase and I think it applies here.

This statute cannot be denounced by merely taking a label and putting on a statute and say, “This is punishment.

There has to be some glue to make it stick.”

And the glue consists of a showing.

The clearest showing in the language of Nestor that punishment was intended.

Only in that way can this statute be characterized as punitive.

Now, I want to get to the question, in my mind the only question on constitutionality and that is whether this statute fulfills a legislative purpose where that reasonably effectuates a power of Congress.

To me, this is the only issue in the case on the question of constitutionality.

Now here, the controlling principles are enunciated in this Court’s decision in Perez.

Perez found it proper for Congress to prescribe expatriation for the involvement by an American citizen in the political affairs of a foreign state, their voting and underlying that decision, were two basic premises.

The first of these is that it was proper for Congress to deal with such conduct, which potentially or actually could involve this Government in embroilments and embarrassments in its relations with foreign governments.

And the second consideration was that it was not unreasonable for Congress to deem that the citizens’ participation in the political affairs of a foreign nation was to some extent, an indication of his attachment to the foreign nation and to some extent, inconsistent with allegiance to the United States.

Now, I submit that both of these considerations are present here and that their impact is even more potent than in Perez.

Military service is a more positive act of commitment to a foreign state, more positive involvement in the affairs of a foreign state than voting.

It may conflict with national policies of neutrality as it has in the past.

It may lead this nation down the road of danger and embarrassment which can’t be perilous to this country and to its citizens.

And the second consideration mentioned in Perez, the possibility of impaired allegiance is, I believe, equally present here.

For military service, the person who serves in the army of a foreign state has committed himself to that State, has subjected himself to the mandates and the orders of that State to a degree which indicates some commitment to that State and some degree of lessened allegiance to the United States.

In any event, using the criterion of Perez, it seems to me that it was reasonable for Congress to conclude that these events could occur and did occur.

Now, the statute Section 349 (a) (3) thus, on its face, seems to represent a reasonable effort to deal with the twin problems of embroilments, passive embroilments and impaired allegiance.

Now, we are at left the conjecture about this because the legislative history demonstrates a very sharp awareness on the part of Congress to these problems and a desire to deal with them.

We deal with the legislative history extensively at pages 54 to 58 of our brief.

Now, I want to summarize it very briefly.

Military service by American citizens and the armed forces of foreign nation — foreign nations, has been a matter of deep concern to this nation from its very inception.

As a matter of fact, one of the earliest Supreme Court cases talked of the possibility of such embarrassment to our nation.

In the three basic statutes in this field, dealing with expatriations, those of 1907, 1940 and 1952, Congress showed its awareness with these problems.

Murray A. Gordon:

Now in the 1907 statute, the Committee, the Administrative Committee and the State Department which granted that statute, spoke of the actions of citizens in foreign states which were causing increasing embarrassment to our Government.

In the 1940 Nationality Act, the Cabinet Committee which drafted that statute spoke of the desire on the part of that Committee to deal with such problems.

And then specifically, in relation to military service, the Committee pointed out that in their view, a person as I quoted before, a person who gives his all, offers his all to a country thereby should be deemed to have shown some allegiance to their country.

And then in 1952, Congress, when they re-codified the statutes through the Judiciary — Senate Judiciary Committee which was responsible for the 1952 Act, Congress said that, “We’re revising this law so that the determination of whether a person loses nationality shall not depend upon the determination of a foreign government and shall be uniformed.”

Moreover, the Committee and Congress in turn which adopted the Committee’s recommendations, recognize the close identity between military service and the conduct of foreign affairs by the provision which is now found in Section 349 (a) (3) that such service would expatiate unless it was approved in writing by the Secretary of State and the Secretary of Defense.

The officers charged primarily with activities in the field, a foreign relation.

The legislative design to tie this power to expatriate to the conduct of foreign affairs thus emerges quietly clearly.

The only remaining question is whether the means chosen to effectuate that policy are reasonable.

This is the rational nexus concept of Perez or the reasonable relationship, and other — other language has been used.

Whether there’s a rational nexus between the — the means — the — the end that Congress sought to achieve and the means that if you —

Hugo L. Black:

(Voice Overlap) understand the rational nexus to mean?

Murray A. Gordon:

A connection, whether having in mind a particular power, whether the means chosen has a reasonable relationship or a relevant connection as others have said in executing that power.

Now, the same issue of course was confronted in Perez against Brownell.

And there, the Court said that it is the citizenship of the individual which causes the difficulty, the fact that the citizen is involved in political activities in foreign countries, the fact that he’s a citizen of the United States is what causes the difficulty.

And the Court said, “The termination of the citizenship terminates the problem.”

Now, the same thought is expressed by Mr. Justice Brennan’s concurring opinion in Trop against Dulles and I quote, it’s at page 59 of our brief.

Mr. Justice Brennan said, “Congress might reasonably believe — believe that in these circumstances, there is no acceptable alternative to expatriation as a means of avoiding possible embarrassments to our relations with foreign countries.”

Now, these considerations obviously are relevant here.

Since the military service by an American in the army of a foreign country, has in it, the potentiality of involving our country in embarrassments, in embroilments and his citizenship is a thing that causes the trouble.

In the language of Perez, the termination of his citizenship terminates the problem.

And in the language of Mr. Justice Brennan, it was reasonable for Congress to conclude that there is no acceptable alternative to expatriation as a means of dealing with this problem and borrowing further from Mr. Justice Brennan, the Mendoza-Martinez.

Congress could conclude that this was a proper device for — to cope with actions which could dangerously prejudice our diplo — diplomacy.

Mr. Justice Brennan quoted a uniquely potent corrector for such actions.

Now, without this power, Congress would be powerless to deal with actions of citizens in foreign countries, so long as they remained in foreign countries, the actions which prejudiced our nation, prejudiced its diplomacy, involve our Government in dangers which could affect every citizen.

Now, petitioner also makes one argument with which I’d like to give.

He says that Section 349 (a) (3) is not confined to embarrassing service.

It could reach non-embarrassing service in the army of a friendly nation.

Now the answer, as this Court pointed out in Perez, is that in dealing with a problem as complex and as vital as the power to conduct foreign affairs, Congress must be free to legislate in the language of Perez on more than an ad hoc basis.

In dealing with such a complex power, Congress should have the authority, the scope to establish reasonable general classifications so that the problem can — can be dealt with as it arises.

Potter Stewart:

Where does this power come from?

Murray A. Gordon:

Well, Your Honor, there’s nothing specifically in the Constitution as Your Honor knows that says Congress shall have the power to deal with foreign affairs.

However, in Perez and Mendoza Martinez, the Court said that this is under the necessary and proper power.

Indeed, it is my view and implied our Government.

No Government worth its name could exist unless it had power to conduct relations with foreign nations.

This is I think, one — probably one of the reasons for the failure of the Articles of Confederation and the need for adopting the Constitution.

Part of the business of governments, of any government, is in conducting the — the affairs of a nation with other nations.

Hugo L. Black:

Would you extend that statement, no government have — whatever you said to exist, recall, except the government if they didn’t have a right to expatriate people?

Murray A. Gordon:

Well, Your Honor, I think —

Hugo L. Black:

(Inaudible)

Murray A. Gordon:

Well, all — it all depends on how effective Your Honor conceives the power to conduct foreign affairs to be.

If Congress is —

Hugo L. Black:

I’m just asking you, is that you made the statement with reference to the Government power to have a foreign affairs.

And you made it on the premise I assume, that it necessarily follows that it had just as much necessity to do that if it does expatriate people as it does to deal with foreign affairs or against their will, that was your premise or is it not?

Is that the reasons you may (Voice Overlap) —

Murray A. Gordon:

That — that is — that is true, sir.

Hugo L. Black:

So you say no nation is whether to exist into that power to expatriate these people, so they do something it didn’t like — didn’t like.

Murray A. Gordon:

I didn’t say that sir.

I said that in conducting the power to deal with other nations, the power of foreign affairs, Congress can take reasonable action, can use reasonable devices to effectuate that power and the device to terminate the citizenship of a person who is prejudicing are the — diplomacy is as Mr. Justice Brennan said a uniquely potent corrective.

This is part of the power to conduct foreign affairs.

If there weren’t power to expatriate then our foreign relations, our conduct to foreign affairs could be dangerously prejudiced.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, Your Honors, I — I said earlier, Congress can determine between all prejudices.

We don’t have to deal with every possible situation.

Congress could have said, “We don’t deem this dangerous.

The Congress or the Legislature Parliament of Great Britain can say they don’t deem it dangerous.

In a field as — as complex as this, the choice of alternatives in my view is for Congress.

There are alternatives.

There are dangers.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

I call it a recognition Your Honor rather than a grant.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, then I don’t agree with that either, sir.

I —

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

No, I think that everybody who was born in United States prior to 1868, subject to the jurisdiction thereof, as a citizen of the United States.

The Constitution recognizes these citizens.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, Your Honor, the Dred Scott case had many things.

This was a very lengthy in the discourse of opinion.

And some of the things that were said in that case which didn’t have any relevance to the case, have been — not been followed.

That was incorrect, Your Honor.

In my opinion, the power of — of the Government to recognize citizenship was not dependent on the Fourteenth Amendment.

The Constitution itself said, “Only certain types of citizens shall be eligible for precedent.

Only certain types of citizens shall be eligible to be represented in the Senate.”

There were citizens before the Eighth — the Fourteenth Amendment.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Has chosen —

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, I don’t think we have to have a — a vote among other the nations to determine what’s proper in our foreign policy.

We determine our own foreign policy with other nations for reasons of — of their own, maybe the reasons of empire whatever they may be.

Beside, they don’t’ want to exercise such power.

This is not a question of — of upholding the different nations, to see what they think is reasonable.

It’s a question of whether under our constitutional form of Government and under the — the views adopted by our Congress, such a power is reasonably exercised.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

I — I think it’s all a question of reasonableness Your Honor.

Is — is it — yes, this — the determination — I’m not talking about the specific case Your Honor imposes, but any attempt of Congress to exercise this power has to be judged under the doctrine of Perez of course, on the basis of whether under the circumstances considered by Congress, it would be reasonable to — for Congress to determine that expatriation is the only acceptable alternative to deal with this problem.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Well, Your Honor —

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Your Honor, I can conceive of situations where Congress could make such a judgment.

Murray A. Gordon:

The people, in an organized body, went across to other countries and attempt to promote trouble for the United States, I think Congress could deal with those problems and the fact that they were making speeches wouldn’t be the decisive criterion.

But I don’t think we’re dealing with such a problem here.

We’re dealing with an act which on its face can cause trouble for the United States, which on its face has caused trouble for the United States.

And it seems to me that in the exercise of its very broad power to conduct foreign affairs, Congress reasonably can be deal with such a problem.

Earl Warren:

Well, Mr. Gordon, let’s talk about this particular case for — for a moment bearing on the question of the reasonableness or the great desirability of this as you have — have stated does in fact that only Panama and Cuba and Indonesia and Turkey.

Out of all civilized countries of the world, deprived their citizenship of a — of their citizenship for a conduct to this kind bear on the question at all.

Murray A. Gordon:

Well, Your Honor the — the statement you referred to — from our brief on page 60, says that there many other countries, a total of 16 that deal with the problem of military service.

Eight of those countries have statues which are quite similar to Section 349 (a) (3).

Now, answering your specific question, Your Honor, as I said in relation to Mr. Justice Goldberg’s question, it seems to me, we’re not conducting a poll of what other countries do here.

These are only questions of interest.

Earl Warren:

No, but you’ve been arguing the reasonableness in world affairs and so forth.

I wonder if — I just wondered if you consider that that bore on the subject at all.

Murray A. Gordon:

It has some bearings sir, but I don’t —

Earl Warren:

I’m sure that if — I’m sure that if all the other countries except ours, though including ourselves had such a law, you would have cited that as a — in connection with the reasonableness of it, wouldn’t you?

Murray A. Gordon:

I — I hope so.

Earl Warren:

Well — well then — then would — then would the fact that most, practically all of the civilized countries of the world do not treat their citizens in that manner have any bearing the other way?

Murray A. Gordon:

No, I — I agree Your Honor that it some bearing.

But let — let me point out one — one additional thing.

Hugo L. Black:

Can I ask you what page that was on?

Murray A. Gordon:

60 —

Hugo L. Black:

60.

Murray A. Gordon:

And a footnote, sir.

Page 60, note 39.

Is it 39?

Earl Warren:

Of — of your brief?

Murray A. Gordon:

Our brief.

Earl Warren:

Page 60, I don’t see any footnote on.

Murray A. Gordon:

You may have the wrong brief sir.

Earl Warren:

Oh — oh yes, I — I do, I’m very sorry, I got the next case.

Murray A. Gordon:

Please, please you leave — we have enough trouble in this case, Your Honor.

Earl Warren:

Not that I’m ahead of you but I — I don’t think the —

Murray A. Gordon:

Let me make the answer that I start to make — when you get page 60, Your Honor.

I think the — the position of Turkey and whatever the other nations are, it’s not the position of the United States, United States is a unique power.

It’s a will power.

It has obligations and responsibilities and interests and policies to promote throughout the world.

A single action of a citizen in a foreign country may cause difficulty and embarrassment for the United States where it might not in Turkey.

A person who goes to —

Earl Warren:

Turkey has the same law.

Murray A. Gordon:

Yes, but in might — yes, turkey.

Let’s take a country that doesn’t have the law.

Earl Warren:

Those type written (Voice Overlap) —

Murray A. Gordon:

Great Britain, as — as Mr. Justice —

Earl Warren:

Those countries that to do have it had been the little ones that don’t have anywhere a policy (Voice Overlap) —

Murray A. Gordon:

Well to me — to me this is not decisive, sir.

I think the problems of the United State are unique to the United States.

It can be dealt with by our Congress in a reasonable way.

Earl Warren:

Oh, I don’t (Inaudible)

Murray A. Gordon:

And one more thing let me complete my thought.

United States I said has a unique position.

A single action of its citizen could dangerously prejudice.

We had an incident like that sometime ago, a young lady was a member of the Peace Corps and she sent a postcard to some friend of hers and because of his postcard, worldwide embarrassment resulted to the United States.

Arthur J. Goldberg:

(Inaudible)

Murray A. Gordon:

Your Honor, this is not the type of embarrassment which I had in mind.

But I — I was merely posing it as an example of what the United States is confronted with in managing its affairs throughout the world.

Now, I want to point out one further thing this question of embarrassment.

Now, it’s true of course that an individual case, the activities of a citizen may not be embarrassing to the United States.

But the individual citizen in my opinion cannot be permitted to make this judgment for our country, nor can a foreign nation do this as Congress said in the 1952 Legislation.

The statute recognizes the possibility that there will be cases where the service would not be embarrassing, and it deals with that situation by expressly permitting approval of the service by the Secretary of State and the Secretary of Defense.

In my view, this places the responsibility for assessing the interest of the United States where it belongs in the foreign affairs agencies of our Government.

Now, in couple minutes I have left, I’d like to deal with the question of the validity of the deportation order which the Court had some question about.

Murray A. Gordon:

This case originated of course, as a deportation case.

If the petitioner loses on his claim that he’s a citizen, then will have to determine whether the deportation order is valid since this is habeas corpus.

A deportation is premised on Section 241 (a) (1) of the statute which provides that a — the Congress can — that the Attorney General can deport an alien who entered the United States in violation of law — in violation of law which had existed at the time of his entry.

The Court of Appeals, the — the administrative authorities relied on two grounds.

First, that petitioner in 19 — 1960 — July 1960, when he entered at El Paso, Texas, did not possess the requisite document, an immigrant visa, he was an alien, he didn’t have an immigrant visa.

And second, that prior to that entry, he had been convicted of a crime involving moral turpitude.

Now, the Court of Appeals sustained the first ground and found it unnecessary to writ the second.

We think both grounds are supported, however like the Court of Appeals, I should like to emphasize the first.

I think that in itself is a valid ground for the deportation.

Hugo L. Black:

May I ask you with reference incurred I — I brought back in the dates.

At the time of that entry, had any court held that he had spoken to a citizen?

Murray A. Gordon:

No sir, no court had held that.

It —

Hugo L. Black:

Who had dealt it?

Murray A. Gordon:

It had occurred automatically under the operation of the statute.

Hugo L. Black:

And who had the right to declare that it had occurred automatically?

Murray A. Gordon:

Any — any — any agency or any court with whom —

Hugo L. Black:

Any of the Government sub-agencies.

Murray A. Gordon:

Any — any agency who had to determine whether a person was a citizen.

They wouldn’t take it away from him.

In the exercise of their authority, they had to determine whether the individual was a citizen.

Hugo L. Black:

And from that time on until he could get some court to do something although born in this country, he was not a citizen to this country.

Murray A. Gordon:

Well, Your Honor, there’s no —

Hugo L. Black:

Is that your argument?

Murray A. Gordon:

There’s no difficulty in getting a court to do something.

That person in that situation has many remedies, if he’s —

Hugo L. Black:

Or he’s chosen the Government.

The Government could decide on proceedings, can declare that he was not a citizen.

Murray A. Gordon:

Well, Your Honor, if — wanted — if you want to address yourself for that point, I think we can — we can say something about it.

Whether the — the first issue of course, would be whether the statute itself requires the Court to do this and I think that is —

Hugo L. Black:

Not be a question or whether Constitution requires it.

Murray A. Gordon:

That’s the second question.

First question is whether the statute requires it.

And I think that on the face of the statute, there is no such requirement.

The statute provides for no court proceedings or administrative proceedings.

It determines that loss of nationality shall occur upon the prescribed events.

And then it has a specific provision, Section 356 which is set forth in our brief.

It’s a very brief section.

It says that loss of nationality shall — shall occur upon the performance — the loss of nationality under this chapter shall result solely from the performance by a national, of the acts or fulfillment of the condition specified in the chapter.

That’s page 62 of our brief.

Now, coming to the question of power, I think there’s no question that Congress intended that these laws should be automatic, coming to the question of power.

Is there power on the part of Congress to say that loss of nationality shall be automatic even though a court hasn’t determined?

Well, I point out, sir, that every decision of this Court starting from the very earliest days of our republic, has either held or recognized that loss of citizenship when it did occur, occurred automatically upon the commission or the performance of an act of expatriation.

Hugo L. Black:

You mean when he voluntarily decided he’s going to expatriate the service —

Murray A. Gordon:

No, when —

Hugo L. Black:

— in the old cases?

Murray A. Gordon:

Well, the old cases —

Hugo L. Black:

What — what do you — what all cases are then if — in which the Congress had attempted to take away the citizenship foreign automatically?

Murray A. Gordon:

There weren’t any — any provisions in the statute for expatriation —

Hugo L. Black:

When did that — when did that first come to be in?

Murray A. Gordon:

1907, that’s the first statute which — which prescribed us expatriation.

But the old cases dealt with the problem of expatriation.

Most of the other cases were people who shift down our privateers and started to involve themselves in military expeditions.

The question was whether they’d lost their citizenship.

Now in each of those cases, the Court found that because of the circumstances, citizenship had not been lost.

But in each of those cases, this Court recognized that citizenship could have been lost if there had been an act of expatriation.

They used that language.

The modern cases of course were even more specific.

Perez against Brownell, depended specifically on a finding that the virtue of the expatriation device, the value of it in implementing the foreign affairs function resulted chiefly from the fact that it operated automatically.

Mendoza-Martinez, the Court found their language is very explicit that the expatriation statute and I quote from the language of the Court, “automatically, without prior court or administrative proceedings imposed forfeiture of citizenship.”

Murray A. Gordon:

Now, the Court found that the statute in that case, since it inflicted punishment required under the procedural guarantees of the Fifth and Sixth Amendment, a — a criminal — a trial in the nature of a criminal trail.

But there’s no punishment here and there — therefore, there is no such requirement in this case.

Now, what would happen if there was such a requirement?

How would the Government implement its foreign affairs function?

Suppose a citizen of the United States continued to be in a foreign country, what kind of an act — what kind of a remedy could the Government adopt and pursue against him?

Actually, I know of no such remedy, so the result would be that the individual whose conduct is dangerous to the United States could continue to be in a foreign country or foreign countries and to pursue conduct which is dangerous to our diplomacy, perilous to our nation and the Government of the United States wouldn’t be able to do anything about it.

Hugo L. Black:

We have the same situation that exists if he was there and they tried — and they expatriate them over here, he’d still be over there wouldn’t he?

Murray A. Gordon:

But expatriation would — would terminate the problem in the language of Perez.

Hugo L. Black:

(Voice Overlap) wouldn’t punish him or anything (Inaudible).

Murray A. Gordon:

Well, we’re dealing — we’re discussing sir, the question of whether Congress can deal with the problem of possible embarrassment, possible involvement of the United States in international difficulty.

And the only way Congress thought this could be done, the only acceptable alternative to use the language of Mr. Justice Brennan, was to impose the consequence of expatriation.

In the language of Perez, the termination of citizenship terminates this problem of actual or potential embarrassment to the United States.

Now, if petitioner’s theory were accepted that a person in petitioner’s situation would be able to continue to stay in foreign countries while he multiplied embarrassments and dangers to the United States.

Indeed, as was suggested I believe by the Chief Justice at an early point of the argument, if petitioner had stayed in Cuba and stayed in their armed forces or if he served in the armed forces of Soviet Russia or Communist China, the acceptance of this — of the petitioner’s theory would deprive the Government of any opportunity to do anything about it.

Now, if I may for a couple moments to get back to the — the question of the petitioner’s deportability.

William J. Brennan, Jr.:

Just one question Mr. Gordon.

I think doesn’t he say that if he spent back to Cuba and Castro would like that unless execute him.

Murray A. Gordon:

Your Honor.

William J. Brennan, Jr.:

Are you going to deport him back?

Murray A. Gordon:

Definitely not, sir.

The statute has a provision as Your Honor knows that a person who would be subject to physical persecution will not be deported.

William J. Brennan, Jr.:

Well, what are you going to do with him?

Murray A. Gordon:

Well, Your Honor, we’re not going to send them anywhere apparently, but we didn’t know this at the time of the dictation.

William J. Brennan, Jr.:

Nobody else had wanted him, I gather.

Murray A. Gordon:

We — we have found out and candidly I can tell Your Honor.

We have made inquiries of Cuba through Switzerland.

We have made inquiries of Mexico.

William J. Brennan, Jr.:

Cuba wants him.

Murray A. Gordon:

No, Cuba doesn’t want him.

They say they — they want no part of it.

Murray A. Gordon:

Mexico, we have inquired of Mexico, Mexico will take him.

So it may be that the petitioner will continue to remain in this country.

William J. Brennan, Jr.:

Are you not going to put him on a boat and just let (Voice Overlap) —

Murray A. Gordon:

Oh we definitely, we can’t.

We have to send them —

William J. Brennan, Jr.:

But you did that to one fellow?

Murray A. Gordon:

I can’t hear you sir.

William J. Brennan, Jr.:

You did that to one shot (Inaudible).

Murray A. Gordon:

Well, Your Honor, we didn’t put him on a boat.

We let him come in to this country eventually.

William J. Brennan, Jr.:

Finally.

He was on — on afloat for a long time, was he not?

Murray A. Gordon:

No, sir.

No, we kept him in detention, we didn’t put him afloat.

We kept him in detention also.

Tom C. Clark:

You turned him loose.

Murray A. Gordon:

We turned him loose.

Hugo L. Black:

Are you talking about the man (Inaudible)

Murray A. Gordon:

Mezei —

Hugo L. Black:

(Inaudible)

Murray A. Gordon:

M-E-Z-E-I.

Hugo L. Black:

(Inaudible)

Murray A. Gordon:

I didn’t catch Your Honor’s question.

Hugo L. Black:

You thought that — I understood, you’re talking about that man sent backwards (Inaudible) Europe.

Murray A. Gordon:

If Your Honor’s referring to the Mezei case, he was sent to certain countries which wouldn’t accept him, then he came back and we kept in detention for a while.

This Court upheld that detention.

Eventually, we decided there was nothing we can do about him and we turned him lose under some restrictions.

Tom C. Clark:

He’s still in the United States?

Murray A. Gordon:

He’s still in the United States.

There’s nothing we could do.

Murray A. Gordon:

We — there are many situations Your Honor in which people who are under an order of deportation can’t be sent anywhere.

There —

Hugo L. Black:

As I recall it, he was sent away because it was thought he was so subversive.He might destroy the country.

Murray A. Gordon:

He was.

He was found to be subversive.

Hugo L. Black:

Does he still here?

Murray A. Gordon:

He’s still in the United States.

William J. Brennan, Jr.:

And the nation still stands?

Murray A. Gordon:

The nation stands.

Of course, we’re not sending Mr. Marks at any place.

The fact is that he’s under an order of deportation.

If he remains in this country, he’ll enjoy the protections of the Constitution.

He’ll be able to stay here.

Hugo L. Black:

(Voice Overlap)

Murray A. Gordon:

Protection that is applicable to everybody except the question of deportation.

Hugo L. Black:

Everybody?

Murray A. Gordon:

Well, nobody can put him in jail without a trial.

Hugo L. Black:

Those are — those are the exceptions useful for aliens.

Murray A. Gordon:

Well, there are certain exceptional situations, the power to deport as Your Honor knows, the power to exclude in which the power of Congress to decree the ground and so forth has been found to be very light.

William J. Brennan, Jr.:

But, they can’t vote and they can’t serve in the jury and a matter of other things.

Murray A. Gordon:

Well, he should’ve thought of that before he went to Cuba.

William J. Brennan, Jr.:

I know, but there are other– other things that happened to (Inaudible).

Murray A. Gordon:

If Your Honor pleases, when — when this petitioner went to Cuba, I think he was fully aware of the consequences.

William J. Brennan, Jr.:

We’re not arguing that further Mr. Gordon.

There are other things, consequences —

Murray A. Gordon:

Oh yes, oh, he — he will be at completely happy situation, he can’t leave the United States, he can’t become a citizen until he regularizes his status as he might — may in some future time.

Hugo L. Black:

How can he do that?

Murray A. Gordon:

Your Honor, there are possibilities and if I may —

Hugo L. Black:

He was born Milwaukee, wasn’t he?

Murray A. Gordon:

He was born in Milwaukee.

William J. Brennan, Jr.:

But he may be coming now, a naturalized citizen?

Murray A. Gordon:

No, no, no.

He — he could re — regain his citizenship as a naturalized citizen but only if he becomes a lawful resident of the United States.

Now, there is a remedy known as suspension of deportation.

William J. Brennan, Jr.:

Now, when he gets the citizenship back, what is it, naturalized?

Murray A. Gordon:

Naturalized, naturalized.

He couldn’t regain —

William J. Brennan, Jr.:

Native born American becomes a naturalized citizen?

Murray A. Gordon:

Well, this — this happens to anybody who has lost his citizenship.

The only way he can enter the country is as an alien.

The only way he can regain his citizenship unless Congress decrees otherwise, is as a naturalized citizen.

Thank you, Your Honor.