LOCATION:Bellmawr, New Jersey Police Department
DOCKET NO.: 176
DECIDED BY: Warren Court (1965-1967)
CITATION: 385 US 475 (1967)
ARGUED: Nov 16, 1966
DECIDED: Jan 10, 1967
Audio Transcription for Oral Argument – November 16, 1966 in United States v. Laub
Do you proceed first —
Leonard B. Boudin:
No, I —
— in this one Mr. Boudin?
Leonard B. Boudin:
Oh, my apologies Your Honor.
I’m sorry, I’m so custom to being the appellant here.
Mr. Lewin, if — you may proceed.
Mr. Chief Justice, may it please —
Could you answer — could you respond to what Mr. McTernan just said?
So far as the stipulation is concern Mr. Chief Justice or the reference in the —
Well, you might —
— in the — both?
Take both of them.
Well, let —
Its clear there’s a — it wouldn’t depart very far from this case, wouldn’t it?
No, it wouldn’t.
Well, the stipulation would, I’d been hoping to address myself to it and I just didn’t have the time.
So far as the stipulation is concern, I think we plainly concede that the statement in the stipulation that Mr. Travis did not “bear” a valid United States passport specifically endorsed to travel to Cuba could not or just standing there alone sustain a conviction if this Court were to conclude that the only way that you could violate Section 1185 would be if you had no passport at all when you left the United States.
In other words, if Section — if this Court would conclude that Section 1185 applied only to departures with either a revoked or expired or no passport whatever.
In other words, we think that the statement in this stipulation prevents her conviction on that theory so that if we are wrong on our major argument here this Court would hold that we’re wrong then we don’t urge that her conviction could be affirmed.
We do however urge that if the Court were so to hold we should be free to retry the petitioner on that ground and we think that that’s plainly within Bryan versus United States.
Well, in other words, we think what that would be is that would be a failure, a really quite and accidental, I think failure of proof because of the construction of the — because of the ambiguity of a stipulation as to a particular element of the offense which the Government did not believe it had to establish at the time this trial was conducted.
Now, we think that’s what Bryan versus United States in 338 U.S. held when it construed 28 U.S.C. 2106 to authorize a remand for a retrial and that’s in effect what this Court did as to a substantial number of the petitioners in the Yates case in 354 U.S. so that so far as the stipulation is concern as I say, we would — we concede that her conviction could not just simply be affirmed if our major position is rejected.
On the other hand, we do think that we should be permitted to a retrial on this indictment which simply charges a violation of 1185 pretty much in its terms and to prove at such a retrial that she in fact had only a revoked passport and therefore if she did have only a revoked passport we submit she’s no better off for having travelled to Cuba then if she had gone with the revoked passport to Paris or to London or any place else.
The statute on its face plainly we think, prohibits that if it prohibits any.
And do that mean that the Government because the — of the ambiguity of a statute, I mean, interpretation of it thought that it didn’t this one necessary to be proved and didn’t undertake to do it that we should let the Government retry this person and supply that?
Yes, we think that exactly what this Court did as I say —
Well, if that — there is that ambiguity so far as the Government is concerned don’t you think that there might be like ambiguity so far as the responsibility of the defendant is concern?
Well, we think — we — definitely and that’s why we concede Mr. Chief Justice that she couldn’t be convicted on this stipulation if our principle line of argument is rejected.
And we say that if it is then the most we’re entitled to do is to go back and retry her and introduce that element of the offense which we did not as of the time the first trial believe we had to prove.
Byron R. White:
Well, if the — don’t you think there was something that didn’t deliberate on the Government’s part on trying it on this theory.
I suppose you had the opportunity if you could’ve proved it, to prove that she had no passport at all.
I’m sure —
Byron R. White:
And there would be absolutely — and you say, at least the Government claims there would be no problem at all then to convict her under the statute.
Byron R. White:
Now, if you knew and you should say that she had an unrevoked passport and you didn’t prove it, why should you get another chance to prove it?
Because we think that’s really what Bryan and what Yates say that if the Government is — has proceeded under the wrong theory of law the first time and there’s no reason to believe that it simply trying a second trial in order to introduce evidence that or in order to present it to another jury if you like.
Then fairness and justice which is what 28 U.S., the words in it, the standard incorporate in Section 2106 really entitles the Government’s fell back for a retrial.
I must say candidly Mr. Justice White, I don’t know that this was intentionally so designed.
I think probably both parties at the time the Assistant United States Attorney who drafted the stipulation, Mr. McTernan believed that the issue was where the travel to Cuba was a violation of Section 1185.
Byron R. White:
Well, was there any mystery at all about whether or not she had a passport?
No, I don’t think there was any mystery there.
Byron R. White:
I don’t know why but — oh, yes, you make it — I’m all the way up here on this case when you should — you say want to go back and retry her on the theory you should’ve had in the — at the very first instance, very simple level.
Well, that’s true but the way the case was tried and the way the stipulation was worded, it just doesn’t present that very simple case.
As for the —
I suppose also that consider couldn’t we that Mr. McTernan was interested in his one client and wanted to make a stipulation that on the facts that they were so, his client wouldn’t be convicted.
On the other hand, you want to bring this case to this Court for the purpose of establishing a principle on your theory of the Act, isn’t that right?
Well, I don’t really believe that this case was designed with the view in mind that we would bring it to this Court.
I mean, we certainly are not the moving party in this Court, it was a conviction in the District Court sustained by the Court of Appeals and —
Add you through the years then prosecuting in this manner?
Because of it — but because of —
But for great many years you had never adopted this theory and had never used it.
Because of the difficulties of proof Mr. Chief Justice that you got to prove in this kind of a statute even under our construction of it that that the traveler had the intent at the time he departed the United States.
And it’s a very difficult burden that was established in this case and in Laub, the Government had such proof.
If I — and then if I may just respond Mr. Chief Justice in Mr. McTernan’s comment that 18 U.S.C. 1544 is noble and was not cited in response to the Senate Committee’s question.
The answer at least so far as it appears in the hearings on page 59 specifically does cite 18 U.S.C. 44.
The Department of State responded that there are laws in which might well be violating the course of such travel, e.g. trading that the enemy act and treasury regulations there under, 18 U.S.C. 1544, etcetera.
So, it was specifically cited at that time and it appeared in the passports.
So, I think it’s quite clear that this other statute is not a noble creation of the Department of State just raised for purpose of this case.
Turning to the Laub case, that case is here on direct appeal pursuant to the Criminal Appeals Act from a dismissal of a one count indictment charging nine appellees with conspiring to violate Section 1185 by inducing and recruiting a group of individuals to depart the United States for Cuba without bearing passports valid for travel to that destination.
In this case, unlike Travis the status of the traveler’s passport is clear.
It was made so by the Government’s bill of particulars which alleged that all the persons referred to in the indictment, in other words those who were traveling posses during the relevant period unexpired and unrevoked United States passports which however had not been specifically validated by the Secretary of State to travel to Cuba.
So, this case does not involve the ambiguity presented in Travis.
Two of the appellees here, Laub and Luce (ph) were also named in a companion indictment which charged them and two others with having arranged an earlier similar trip to Cuba one year prior to the trip involved in this indictment in June 1963 and with having made trips to Cuba in violation of Section 215 (b).
The defendants in that case except Luce were tried in the Eastern District of New York in a non-jury trial at the conclusion of which the District judge found them all not guilty.
His opinion in that case which contains extensive factual findings and an elaborate discussion of a law was incorporated by reference since the judgment of dismissal in this case because the grounds of this — for dismissing the indictment here were identical to his grounds for entering a verdict of not guilty in that case.
The judgments in both cases rested on the District judge’s conclusion that Section 1185 (b) did not cover departures for destinations on which travel restrictions have been imposed.
The judge in the present case in other words agree with the principle contention made by the petitioner in Travis that Section 215 (b) is only a “border control statute” ends the question of statutory construction squarely presented.
Now, I find and I’d like to continue along that line in discussing what really was the major thrust of the District judge’s opinion, the District Court’s opinion in this case and of the claimed made by the petitioners which is — and this relates back to a question of Mr. Justice Harlan’s yesterday, “What the administrative practice of the Department of State was?”
Now, the District Judge here found and petitioners have argued in Travis and the appellees have found — have argued here that it was a Department of State’s continuous position up until travel restriction were posed in Cuba that the restrictions put in to the passport as to the invalidity of the passport to travel to certain destinations were civil only and contemplated no criminal sanctions.
Now, as I try to explain in the earlier argument — in the Travis case, the real difficulty here arises out of the fact that there are two criminal statutes which might apply to travel to restricted areas.
One is the one which prohibits use of a passport in violation of its terms and conditions and which would be violated therefore if the traveler in the foreign country used the passport to enter the country, showed it or in some other way exhibited it.
That’s 18 U.S.C. 1544 and we submit that it’s quite clear from the administrative practice that the Department of State had always viewed that statute which applies both in peace time and in war time as applicable when there is proof of use.
Now, petitioner or the — and the — petitioner in Travis and the appellees here and the District judge below relied on certain statements made by the Department of State in 1919 and 1952 and in 1957.
I think those really do not support the conclusion that the Department of State was in effect disavowing criminal sanctions for violations of area restrictions and I’ll get to that in a minute.
But I would also like to call attention what is quite clear and what is not been cited out below and it was — it’s not cited and discussed in our brief either but it’s quite — what is quite clear is a press release for example issued or press release issued at the outbreak of World War II in September 1939 where the Department of State announced that passports which are therefore been issued would not be valid for use and travel from United States to any country in Europe unless it is submitted to the Department of State for validation.
Now, that announcement which appears at page 534 of Hackworth which is cited in our brief and in the volumes cited in our brief and in the briefs in Travis and Laub and by the District judge also says the same thing as the passports themselves said which is, should a person to whom a passport has been issued use it in violation of the conditions or restrictions contained therein the protection of the United States may likewise be withheld from him while he’s abroad and he will be liable for prosecution under the provisions of Section 221 of Title 22 of the U.S. Code which reads in part and then it quotes that statute.
In other words, the very press release that announced that there — restrictions would be imposed prior to World War II specifically referred to what is now 18 U.S.C. 1544.
Now, it’s true that the Department of State did not at that time refer to this statute.
The very simple reason is that this statute was not on the books.
Its predecessor was not on the books either.
This statute was enacted in 1914 to apply only in time of war.
It was reenacted in 1941 to apply in time of war and during the national emergency which have been declared by President Roosevelt in May of 1941.
It was reenacted in 1952 to apply in time of war and during any national emergency.
Well, the time that restrictions were imposed prior to World War II, Section 1185 or its predecessor which just not a viable statute.
Now, the District Court below or the petitioner in Travis and the appellees here point to really three statements, public release as issued by the Department of State.
One was the release issued in 1919 when hostilities were over and which did not refer to any criminal sanction.
Well, that’s true.
I mean it certainly didn’t refer to the predecessor of Section 1185 because 1185 apply only in time of war and it was very questionable whether it could’ve applied then.
They also rely on the press release issued in 1952 when restrictions were imposed on travel to iron curtain countries.
But 1952 was two years after President Truman had announced the — a nation — a new national emergency in 1950.
The Act passed in 1941 was no longer applicable at the time the new area restrictions were imposed.
The Act passed in 1941 applied when the United States is at war or during the national emergency announced in May of 1941.
By 1952, the United States was not technically at war and the national emergency announced in 1941 had been superseded by the national emergency announced in 1950.
So, obviously the restrictions imposed in 1952 could not have made any reference to the statute enacted in 1941 because it too was not a viable statute at that time.
A month later after the imposition to travel restrictions then, the statute involved here was enacted in that provided that it was to apply that in times of war and in times of national emergency and of course that statute was applicable thereafter.
It was not specifically cited in the — or specifically listed in the passports, the other statute was 18 U.S.C. 1544.
But the fact that the Department of State did not refer to this statute or its predecessors in the 1919 release, on the 1952 release we think doesn’t establish anything because neither or it certainly quite arguable that neither of those statutes was applicable at that time.
I’m not sure that I follow you Mr. Lewin, forgive me.
I take it that your argument is that some importance should be attached to 18 U.S.C. 1544 despite the facts that that is not a statute under which this was brought, number one, is that right?
Number two, that if — and despite the fact that 18 U.S.C. 1544 is confined to prohibition of the use of the passport in the country that has been entered and we have nothing before us here to indicate that that is what petitioner in Travis or the appellee or whatever it is here did, is that right?
But so that 1544 is somewhat remote from the particular issue; I take it that what you’re saying is that 1544 is useful to your cause because of the very fact that it indicates that with respect to predecessor action, the State Department gave warning of some kind of criminal penalty was attached to some kind of activity relating to passports which didn’t cover travel to particular countries.
And that about all it amounts to, —
Oh, I think —
— have I missed something?
Oh, I think it’s a little bit more than that.
I think what it does is it rebuts the claim that the Department of State has always which is very basic to what the District judge here found and what the thing argued in this case in the prior case that the Department of State had always viewed these restrictions as being civil only and not (Voice Overlap) —
Well, that these restrictions so that’s where your — that’s where one of the (Voice Overlap) —
Area of restrictions.
— because the question is whether these restrictions means the use of the passport, means the area restriction in respect to the use of the passport or the area restriction in terms of travel to the restricted area.
Well, we think that definitely a difference there but it — we think that what it does show is that the legend on the passport that says not valid for travel to particular countries.
It was always supposed by the Department of State to be enforceable by criminal sanction and that if the passport indeed had not cited any statute at all but had merely said these restrictions are enforceable by criminal sanctions.
In other words, it left it quite ambiguous as to what the criminal sanctions were or what could permissibly be done then I think they — would certainly be no basis for the argument that petitioners are making or the — petitioner makes in Travis to the appellees here that they weren’t put on notice that there was any criminal sanction attached to area restrictions.
We’re saying in other words, that Congress really armed the Department of State or the executive in the enforcement of these kinds of restrictions with two strings to the bow that because most instances of area restrictions, first of all, area restrictions in peace time and area restrictions as to countries with whom we did have diplomatic relations and a substantial number of area restriction that go — did involve countries with whom we had diplomatic relations and where a passport would be used.
So because the substantial number of violations of those would probably be covered by 18 U.S.C. 1544 the Department of State focused its attention on that statute but there was really another string which Congress have provided and we just don’t think that the executive should be prohibited from using the second string simply because it’s been given an addition to the first and its mainly when it provided warnings in the passports which referred to the first.
What would you — what do you think of the press in Eisenhower, a special message to the Congress to requesting that clear statutory authority to prevent Americans from using passports for travel to areas where there’s no means of protecting them or where they’re presence would conflict with our foreign policy objectives are being amicable both to the security of the United States should be passed.
That’s — that was after Kent versus Dulles and that — and the Congress didn’t pass any such laws nor have they since?
Now, what do you think of that so far as understanding of the effect of this?
I think that it certainly demonstrates two things I think Mr. Chief Justice.
It demonstrates that a proposition which we have never contested which is that the present law has substantial loopholes.
An individual who leaves the United States without the intent to go to Cuba and let’s say who then goes to Cuba having informed that intent somewhere else is — violates no statute because he doesn’t use his passport, he doesn’t depart with the intent of going to Cuba and therefore he’s violated no statute.
And I think a mandatory legislation is necessary for that reason.
But I think it also —
But the President — did the president point that out?
I don’t think he pointed that out specifically but I think that the testimony —
Did the Department of State point out to the Congress that that’s what they wanted to —
— wanted to do —
I think testimony —
— flood those loopholes?
I think to testimony yes, before the hearings at that time and to hearings continuing to this very day on similar kinds of legislations is repeatedly pointed out these loopholes.
Is that in your brief?
No, we have not cited it in our brief.
Well, we — I gather — at the time we wrote the brief I suppose we just — either just overlooked it or didn’t put it in but we could provide the — provide that additional (Voice Overlap) —
Won’t you think it was rather important if you relied on it?
Well, we think — we’re Mr.– really Mr. Chief Justice what it goes to is it — it’s a sort of a surrebuttal, it’s an answer to the claim that the executive must have thought that this legislation didn’t cover it because he proposed other statutes and we submit that we — well, for one thing we agree that there were loopholes and that other statutes are necessary and I was going to say a second thing in answer to your question which was that we don’t doubt and I don’t want to be mistaken today.
I’m thinking — we admit that the statute is not as clear as the Department of State would like to see it or as the Department of Justice would like to see it.
We think that it’s important and I think the testimony before these committees has also focused on that.
It’s important to have statute which would say in just precisely so many words that any citizen who enters an area to which travel has been restricted commits a crime.
It would help, wouldn’t it?
It would help, yes.
Don’t you —
We agree with that.
Don’t you think that the President when he sent this message to Congress was speaking the minds of the State Department?
Yes, we think he was, definitely.
And we think the State Department feels it would help to have him a clear statute then the statute which is now on the books.
I think the only difference really is that we think the statute now on the books does and that’s our position in this case does cover the states as well.
Tom C. Clark:
Mr. Lewin, did the City Bar Association report ever get to — officially before the Congress or the Foreign Relations Committee or before the State Department?
I’ve never seen any official recognition of it but I’m sure it’s — it is a —
Tom C. Clark:
You would probably (Voice Overlap) —
I pretty don’t know a pretty well-known report and — I’m sure that those who were involved with the problem have perhaps seen it and have read it.
And it — indeed Mr. Chief Justice I think that also bears on the reasons why the mandatory legislation may very well consort that if a committee such as that thought that the Department of State in effect conceded that there were no criminal sanctions the Department of State then felt it was obligatory to seek a legislation and we could make that clear.
Now, I would just like to go to one final point which is a point that the District judge here rely on and he said, “Well, why Congress really intended to make it a crime to violate area restrictions, why was that not specifically spelled out in the statute.”
And I think that there are really two possible — we really have two answers to that.
First of all, specifically spelling out in this statute that area restrictions will cover and that would be a violation of this statute to travel in violation of an area restriction would by the rule of construction of exclusio unius exclusio alterius possibly lead to a court’s ruling that any other restriction on the validity of a passport might not apply.
And as I’ve tried to demonstrate the Secretary of State finds it necessary to impose other restrictions on validity such as the restriction in the official passport to its being restricted to official use only or even the restriction that a passport is not valid until it is signed, that its not valid if it’s mutilated.
Well, that drafting problem has been solved in our history, isn’t it Mr. Lewin?
Oh, it has.
But the — but I think that that’s just one possibility.
I think Congress may have thought — it wanted to give broad powers without presenting these problems.
I think another problem really was that as of that time it may very well have been dubious as to whether Congress could constitutionally enact the statute that would make criminal a conduct which is engaged in totally without the jurisdiction of the territorial jurisdiction of the United States.
It wasn’t until 1922 when United States versus Bowman in 260 U.S. that this Court first — not even in a square holding met that contention had said that it would be permissible and it wasn’t until 1932 in the contempt case of Blockburger versus United States in 284 U.S. that that was squarely decided by this Court.
So, I think there have may very well have been substantial doubts even back in the 1918 as to whether a statute could be enacted that said, if you travel the country “X” in violation of the Secretary of States — in violation to Secretary of State’s restrictions in his passport, in your passport, you’ve committed a crime because then just the mere act a crossing that boundary would’ve been the crime.
We think that the Congress in 1918 which had the problem before it for the first time and which later Congress has adopted really knew of the Department of State’s policy of restrictive endorsements as of war time and when they enacted a war time statute but they intended at that time to say was that such restrictions of the Secretary explicitly imposes in his passport are restrictions which if a traveler departs in violation of them with the intent to violate them, he is violating the criminal law.
Leonard B. Boudin:
Mr. Chief Justice and may it please the Court.
Before I begin my brief argument in chief, I do want to make reference to what counsel has just said.
It appears here that a good part of his case depends upon the construction of Section 1544 with which none of us here have been prosecuted.
And it appears also that the persons who have the greatest knowledge of the meaning of the statute presumably a correct knowledge that the statute is not applicable could avoid prosecution and that those who like the defendants in these cases who don’t have the expertise as counsel has suggested should be subject to prosecution.
The fact is that everybody in authority in the State Department and I mean everybody that our briefs will show has agreed that Section 215 is not applicable to area restrictions.
Leonard B. Boudin:
And that the area restriction provision comes under a different heading of the State Department’s power, the power of the Foreign Relation.
And that this view which has been expressed by chiefs of the legal division of the passport office and we have cited by the Directors of the Bureau of Security and Consular Affairs whom we have cited is uniform.
And I may say has been subscribed to by another great Solicitor General, one who argued Kent against Dulles who said in talking about passport restrictions, and I’m from reading his brief which we have cited that this restriction, the power to impose area restrictions would carry no sanctions, I repeat, no sanctions.
Since the statute referring to Section 215 or 1188 makes it unlawful only to depart or enter the country without a lawful passport.
And I may say that — some urge we cease the controversy, allow the controversy between the defendant and the Government is really a basic controversy between the State Department and the Internal Security Division of the Department of Justice because the State Department knowing of the 600 old law cases over the years has never suggested so far as the record show a single prosecution and it was only until the Cuba problem arose that a prosecution was decided upon.
Now, we are here for the third time in eight years arguing the meaning of 1185.
And the only difference between this case and the others is that we’re here confronted with a criminal proceeding which the problems are the construction of a statute, a so much serious and so much more obvious.
Although what Mr. Justice Douglas said in Kent against Dulles cast — light upon this because he recognized the nature of the statute as one involving an impairment of civil liberties and also the fact that it was a criminal statute.
Now, bearing in mind that this is a criminal statute, how does the Government which has the burden of showing that this statute not 1544 is applicable to these clients.
How does the Government treat this important problem?
It says with respect to the statute upon which it relies in this case, 215 (b), that’s 1188 does not in so many words, I thought words were what governed that is not in so many words prohibit violations of area restrictions.
And it says in another place in his brief, I won’t take the time to give the pages up since they’re all in my brief and in the Government’s brief.
Section 215 (b) was not as explicit in prohibiting violations of area restrictions as it might be.
It’s not a diplomatic problem.
This is not a letter of introduction.
This is a criminal statute we have here.
Well, let us suppose that the statute is not clear and let us assume although I think its not proper in a criminal statute that the Government can turn to legislative history thus rely upon it.
How does it describe the legislative history which is voluminous I may say?
It describes it at his brief at page 20 as amici.
Well, perhaps legislative history is missing, can the Government show a different purpose from other evidence.
No, the Government says, the debates do not show and I quote, “Any awareness of the problem, the problem of area restrictions”, has it ever occurred to the Government that the debates don’t show any awareness because this is not the problem with which Congress was concerned in 1918 and in 1941 when this whole matter was debated fully.
Well, let us assume that all these tests are wrong and we must turn to the administrative interpretation of the statute though I would not of course agree that absent, legislative support, even the State Department could admit it to the statute in a way contrary to law.
As to Section 215 (b), what does the Government say?
It says 215 (b), it says the Department has not called this application, this criminal application they’re talking about, to public attention as much as it might have.
And State Department officials have occasionally, I say uniformly, have occasionally suggested that no criminal sanctions lie behind the Secretary’s area restrictions.
And as to the press release of May 1952 which the Chief Justice adverted upon which the Bar Association made a comment and I may say that the Bar Association had a committee, had as a member Mr. Adrian Fisher who was legal adviser previously to the State Department and is a well-known scholar in this field.
After this press release issued by the Department of State, the Government describes it as quote, “somewhat ambiguous”.
And by the way counsel is wrong when that press release was issued in 1952, there were in effect still the Act of 9 — the provisions of the Act was 1941 as continued by Congress until the Immigration Act could be passed.
And as to the testimony which we have referred to in our brief of all of the Department officials testifying on the subject of area restrictions, what does the Department of Justice say about the Departmental officials from the State Department who were authorized to enforce and to implement and to administer this passport law plainly unsound.
Now, we don’t have to rely —
What was that last –?
Leonard B. Boudin:
That plainly unsound at page 36 is what the Department of Justice says in its brief as to the Department of State’s view that area restrictions are not enforceable criminally.
And of course it is the Department of State that is supposed to administer passport laws and to put valid or not valid or restricted stance in passports.
I suppose and since it’s a criminal case I could rest upon what the admission, about the admissions made by the Government but the admissions are made because there is voluminous evidence to support us in this statute.
There is a language of the statute, a statute that talks about departing and entering, referring to the borders of the United States, not the borders of Cuba or China.
There is the fact that the Congress has always been able to write a clear statute when they wanted to prevent people from going to particular areas and we have referred to a number of instances in our brief which I will burden the Court with now which when Congress said, “We don’t want you to go to Indian territory, it said Indian territory”, when it said, “We don’t want you to go into enemy territory”, it said enemy territory.
We don’t have to look to the past to find the ability of Congress which is perfectly obvious to meet the problem if there is a problem.
The bills which have been proposed since 1957 beginning with the bill proposed by the commission on Government’s security with Congress and Walter was a member.
The proposals made by the President, President Eisenhower and by Secretary of State Dulles, the proposals which were made as recently as a few months ago by the Department itself from the Hayes Bill to which had — the attention of the Court was called yesterday by Mr. McTernan.
All of these bills state very clearly in two —
Leonard B. Boudin:
The substance of the 66 bill as proposed by the Department of State introduced by Mr. Hayes is that the Secretary of State with the approval of the President can make it unlawful, can declare certain areas out of bounds.
And that a violation of those restrictions is then criminal.
That is proposed by a revision of the passport laws which is consistent with the Department’s theory that area restrictions don’t involve national security but involve foreign affairs, political matters and so forth.
In contrast, there is an equally explicit bill, Mr. Justice Harlan which goes to another line of authority and that is an amendment of Section 215, that is an amendment of the very statute we’re talking about which would make explicit a violation of area restriction and this is the proposal that from 1957 to date has been made by a large number of Congressmen so that — sorry.
Are those bills referred to in your brief?
Leonard B. Boudin:
Those bills are referred to in Mr. McTernan’s brief and in my brief.
Now, we have set forth the legislative history of Section 1188 and the predecessor bills in our brief.
I cannot take the short time I have to develop but let me say that I owe again a great debt to the Solicitor General, Mr. Rankin who developed this whole legislative history fully intent against Dulles in his brief.
We have again put it in out brief here and it’s in the brief in Zemel.
And what it shows essentially is that the United States Government upon the suggestion of President Wilson in 1917 was concerned not about what might happen in terms of American citizen being injured abroad, a conflagration there.
The stuff that is now talked about these modern days when we try to rewrite a statute what President Wilson was concerned about and that Congress misspoke of 1918 and 1941 was to seal the borders of the United States against aliens, neutral aliens who may suspected by — be crossing to commit sabotage and espionage and against American citizens.
And repeatedly in this meager legislative history as it was referred to we have references to espionage, subversive activity, ingress and egress not a word it said about area restrictions.
Not a word and this is again an example of a tail — wagging the dog it was referred to but in another sentence by Mr. Justice Black yesterday when the Government refers to the instance of Canada as a sort of area restriction because another country has been named, it assumes as an area restriction, that was not a restriction.
That was for the purpose of being sure that Canada could be treated that it was part of the United States, a non-restriction so that American could go across the border without having any passport not with having passport validated for travel for Canada, without having any passport at all.
Now, I’ve indicated in our brief, the absurd results that was followed from the Government’s attempt to change this statute into an area control statute.
One example is this, a man leaves the United States intending to go to Cuba.
He commits the crime when he passes the border of the United States if you adopt their construction of the statute.
The man however doesn’t want to go to Cuba but he goes to France and while on France he decides to cause his great conflagration by going to Cuba himself and giving the Secretary of State all these problems.
He goes to Cuba.
Leonard B. Boudin:
No problem at all.
Well, its — this is only a little example of how absurd the whole situation is because you are attempting to take a statute intended for one purpose and put it into another.
This whole question of the needing of term valid of course no matter what they — we say or they say about what valid means we have to consider valid as to what.
Now a — that a passport is valid within the extreme of cases going under 211 (a) or 22 U.S.C. valid in the sense that it is a letter of introductions then discussed.
It was the old conception of the passport.
It’s not dead, happens not to be practically as important as the exit and entry one.
And from that point of view a passport is valid or invalid.
But when we are talking about a valid passport within the meaning of a departure and entry statute we mean valid for the purpose of crossing the American border, that’s what valid means.
And as a matter of fact it is the construction given by the Department itself in the passport handbook which we have cited in our brief and which says that validity — I’m paraphrasing, refers to the duration of the passport.
And Your Honors will recall that when before the Senate Committee on Security and Consular affairs, passport officials were asked what the meaning of the term “valid” was, what was their answer?
Said the Chief-of-the-legal division as he then was, “Well, in effect that says this Government is not sponsoring the entry of the individual into those countries and does not response to the entry of the individual into those countries and does not give him permission to go in there under the protection of the United States”.
Not a word about criminal prosecutions that I must that the line that has been read here really does not represent in my view ascriptions as the departmental official, a fair reading.
I can find nothing in this volume or anything else supporting the Government’s construction because it was not the construction of the State Department and never has been.
And as the present acting Bureau later Bureau Director of the Bureau of Security and Consular Affairs pointed out from his point of view, we’ve cited it, it’s in our brief, passport validity and restrictions all relate to this subject of Foreign Affairs under the 211 (a) problem not under the departing and entering concept.
Now, we come to the administrative implementation of a statute and as to that as we show Your Honors never under the Immigration and Nationality Act or its predecessor statutes of 1918 and 1941 was there ever a proclamation, an executive order, a State Departmental regulation referring to area restrictions authorizing area restrictions that of course we know taking the other side of the coin never when area restrictions were imposed by the Secretary of State where they impose except under the heading of an alleged injuring power or a passport act where there was a — an Act of 1926 or a prior Act.
These are the two lines which have to be kept into consideration in analyzing what we’re talking about.
Now, I pass over the various statements that have been made by the Department.
I call the Court’s attention to the fact that even in Zemel in the District Court as the record at — record 63 will show Your Honors, the Government’s position, the Department of Justice’s position was that the area restrictions were under 211 (a) and not under 1185, the statute involved in this case.
With respect to the need for a legislation let me say a word, of course a proposal that has been made by a governmental department doesn’t prove, it doesn’t have the power.
But what shall say here when there has been this avalanche of proposals made by the Department of State and by Congressmen, sympathetic with it or not sympathetic with it to give the Department of State this particular kind of power.
I don’t understand the explanation as been given that perhaps somebody thought the Department had the power or perhaps they disagreed with the extent of the power that the Department wanted because the bills were sufficiently varied to take into consideration every possible contingency.
The fact is and this is one of the interesting facts of life that despite the foreboding of the Department of Justice in Kent against Dulles, the Department never, the — was able to get the authority to turn Kent against Dulles back although clearly the Department doesn’t have the power to deny passports, the people on political grounds.
And so here, the Department has not been able to persuade Congress to give it this power now sought for nine years.
We think that what Mr. Justice Frankfurter said in the (Inaudible) case is applicable.
This practical construction of the Act by those entrusted with its administration is reinforced by the administration.
I’m paraphrasing one word, unsuccessful attempt to secure from Congress an expressed grant of authority.
And that explains not inadequacy in writing a brief, that explains why we have the Government’s brief in this case Mr. Chief Justice because this is all there is.
The Government is unable candidly to find anything in this statute which would justify its application and I think even in the civil statute talking about 1185.
Now, this construction the Government seeks is of course also, one, which would pose directly the questions put by Mr. Justice Black namely, “Is the statute a clear statute and where are the legislative standards?”
I take from my authority if Your Honors who have seen throughout this argument the Department of State and I think that what Mr. Philip Heymann, the present Acting Director of the Bureau of Security and Consular Affairs and a well-known scholar said very candidly that the Department isn’t interested in problems of litigation but in getting things done and in stating the problems fairly to the Congress.
Leonard B. Boudin:
What Mr. Heymann said in the hearings we have cited in our brief is we agree with the need to provide clear statutory authority for the imposition of necessary area restrictions and appropriate enforcement provisions.
And he said, in the present view held either before or after that.
In other words, right now we have broadly worded authority to do whatever we want and very sloppy statutory authority to enforce what we do.
Well, I think it has been demonstrated by all of counsel here that the authority is so broadly worded as to be meaningless if we are to interpret 1185 as the Government suggest and Mr. Heymann never suggested 1185 to be used here and obviously to say that there are sloppy statutory authorities to enforce what we want here is equally appropriate.
And Mr. Heymann then addressed himself to the second problem that was discussed here by Mr. McTernan, the questions of standards because we are dealing here, if the Court pleases with an Act as I think Mr. Justice Black pointed out by an Undersecretary of State for Administration and I may say the new regulations that came down a short while ago that we referred yesterday by a deputy, Undersecretary of State for Administration.
So we’re moving down the ladder now as we regulate the conduct of citizens suppose to affect their criminal status.
Mr. Heymann said on the subject, as you know the Secretary’s authority to restrict travel has until now been exercised without any legislative enacted standards and required procedures.
One of the important purposes of the proposed State Department bill is to provide congressional standards for the restriction of travel.
Well, I suggest that until we have carried out Mr. Heymann’s proposal and have a statute that is precise and had one that has standards and until we have had a statute that is clear and there has some legislative history behind it to support the Government rather than this multiplicity of evidence against it that the prosecutions could wait.
Thank you Your Honor.