United States v. Witkovich – Oral Argument – February 28, 1957 (Part 1)

Media for United States v. Witkovich

Audio Transcription for Oral Argument – February 28, 1957 (Part 2) in United States v. Witkovich

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Earl Warren:

Number 295, United States of America, Appellant, versus George I. Witkovich.

Mr. Davis.

John F . Davis:

Mr. Chief Justice, may it please the Court.

The issue in this case is whether with respect to an alien who has been ordered deported but whose deportation has not been accomplished, the Government may exercise supervision, not only to insure his availability for deportation but also to prevent a continuation of the type of conduct which led to the order for deportation.

In the present case, Mr. George I. Witkovich, the alien, was indicted for refusing to answer certain questions which would put to him by the Immigration Service.

He had earlier been ordered deported and attempts had been made to remove him to Yugoslavia.

However, more than six months have elapsed since the order of deportation and the deportation had not been accomplished.

Meanwhile, an order of supervision had been served on him requiring him — requiring him to report monthly to the Immigration Service, not to change his residence without giving notice and not to engage in Communist activities or to associate with Communists.

The Immigration Act provides that an alien subject to a supervisory order shall give information under oath when requested with respect to his nationality, his habits, circumstances, his associates and his activities, such of the matters as the Attorney General may deem fit and proper.

In an attempt to find out whether Mr. Witkovich was continuing his activities with the Communists, an — an investigator for the Immigration Service asked him a serious — series of questions dealing with his associations and his activities.

And these he declined to answer, not claiming — specifically, not claiming the protection of the Fifth Amendment.

Now under the Act, it is a crime to refuse to answer such questions if these were proper questions.

Mr. Witkovich was indicted.

The District Court dismissed the indictment on the ground that the statute must be construed to permit questions which deal solely with the alien’s availability for deportation.

And since the questions involved did not deal solely with this question but rather with the question of his activities and associations with the Communist Party that the indictment was dismissed.

And since this — the dismissal results from a construction of the statute, we are here on direct appeal.

Harold Burton:

But they did relate to the cause for which he was ordered deported, is that so?

John F . Davis:

That is right.

He was deported —

Felix Frankfurter:

Mr. Davis —

John F . Davis:

— for membership in the Communist Party.

Felix Frankfurter:

Would you please advise me — assume — assume we’re against you on construction.

Can we — say can we be assuming we could under the criminality of act, shouldn’t we reach constitutionality?

John F . Davis:

Yes.

Since the case is properly before this Court, there’s no question that this — this case comes up properly because it was dismissed on that ground.

Felix Frankfurter:

(Voice Overlap) — you know that.

John F . Davis:

But once it is properly — a proper direct appeal to this Court then the constitutionality of the statute would be — would be before the Court if the Court decided to — to exercise its jurisdiction.

Felix Frankfurter:

And as you’re proposing, I mean as a matter of jurisdiction.

John F . Davis:

Oh, yes.

Felix Frankfurter:

As a matter of jurisdiction.

John F . Davis:

Well, as a matter of practice too, although I can’t cite you cases, but then — then I’m sure that on this constitutionality has come up frequently in this direct appeals on — on —

Felix Frankfurter:

Well, I don’t doubt that.But this is a question that’s been wrapping around my head.

It’s (Inaudible) whether — when the court of — the court below sustained it and it didn’t reach — or rather sustained the statute on his construction and we disagree with his construction.

Should we go then reach a question which he on his construction didn’t reach?

John F . Davis:

Well —

Felix Frankfurter:

(Inaudible)

John F . Davis:

Yes, it is a different question but —

Felix Frankfurter:

— like it.

John F . Davis:

— the question would be whether the Court would feel that if the —

Felix Frankfurter:

Well, that’s — it’s a question of — hold there.

In other words, (B) my second question was, (A), could we, (B), should we, are different questions.

John F . Davis:

Yes.

Felix Frankfurter:

The answer to could we, is I should think —

John F . Davis:

Yes.

Felix Frankfurter:

— it’s clear, yes.

John F . Davis:

And whether you should —

Felix Frankfurter:

Yes.

John F . Davis:

— is whether or not you feel that it will be —

Felix Frankfurter:

I just wanted to be sure that I was correct in assuming that jurisdiction —

John F . Davis:

(Inaudible)

The statute in question is the Immigration and Nationality Act of 1952 and specifically Section 242 (d) which we have read it at pages 2 and 3 of our brief.

The pattern of the Act is that after an alien is arrested for deportation proceedings, the Attorney General may within his discretion keep him in custody for the duration of the proceedings.

This section of the Act — the Section of the Act which provides this was the section which was before this Court in Carlson against Landon a few years ago where the constitutionality of the detention was upheld and the — the statute was interpreted as giving the Attorney General authority to retain the alien in custody when it was necessary in the — for the welfare of the country.

After a final order of deportation has been handed, the Attorney General may still keep the alien in confinement for a period of six months only while he attempts to arrange the details of deportation.

When the six-month period has ended after a period of — after the final order of deportation, the Attorney General no longer has any discretion to retain the alien in custody.

But under the Section which is now before the Court, the Attorney General is authorized to place the alien under a supervisory order.

And our question is what is the nature of that supervision and is that supervision constitutional?

William J. Brennan, Jr.:

Can you tell me Mr. Davis, was there some particular reason why after the end of six months, he had to stay here?

John F . Davis:

He hadn’t been deported?

William J. Brennan, Jr.:

Yes.

John F . Davis:

It very frequently happens in these Communist cases that it’s difficult to — to get permission from the foreign country.

In this case, his country was Yugoslavia.

Application had been made to the consul in — in Chicago for the proper papers.

They’ve referred it to Yugoslavia and received no answer.

And whenever there was inquiry made as to what happened, they’d say we haven’t heard and that is the status.

Earl Warren:

Well, don’t these cases often lie in the files of the Immigration Bureau without action on them for a long, long time?

John F . Davis:

Without — without the — without the deportation being accomplished Mr. Chief Justice.

Earl Warren:

Yes.

John F . Davis:

That is true.

Earl Warren:

Without an appeal being taken or anything of that kind?

John F . Davis:

Well, the — the alien frequently doesn’t challenge the appropriateness of the deportation order until the deportation is imminent because he gains additional time if he — if while they’re arranging for the deportation he doesn’t do — he doesn’t challenge it.

He can bring it up on habeas corpus when the time comes to actually deport him.

So, if there are difficulties in arranging for the deportation, he gets the additional time in this country if he doesn’t pass the validity of the order until the actual time for deportation comes.

But when you say that they lie dormant in the services’ files, I think that — that shouldn’t be — we shouldn’t be — I shouldn’t be construed as — as saying that the services in attempting to process this file isn’t attempting to deport these people.

It’s a difficult problem and — and they haven’t finished the — completed the deportation, but they have been attempting to.

Earl Warren:

Well, the reason I ask you this, sir, in the state service, we used to get communications from the Bureau of Immigration saying that so and so was ordered deported on a certain day.

It may have been a couple of years before.

And it appears that he’s been convicted of a crime in your State.

If he is relieved, if the Governor will grant a pardon or he’s relieved of it in any way, it will not be necessary to deport him.

And sometimes we get letters over — over a long period of time and it — it wouldn’t hardly consist that we’ve an appeal from the — from the order of deportation and they just appear to me that there are lot of those cases that — that just were in limbo and — and —

John F . Davis:

Well, that — that kind of inquiry should come to all promptly.

It may be that there are other steps.

Maybe there’d been applications for discretionary relief to let him stay.

Maybe he didn’t — maybe they waited until the time it became imminent before they asked it.

I — I —

Earl Warren:

Yes.

John F . Davis:

— don’t know but that kind of query I should think should come soon after the order of the deportation.

I see no excuse for it being —

Earl Warren:

Yes, sir.

John F . Davis:

That very much explain it.

William J. Brennan, Jr.:

Well, is the practice Mr. Davis, ordinarily to — to deport him as quickly as possible (Voice Overlap) —

John F . Davis:

As possible.

Yes, sir.

William J. Brennan, Jr.:

The six months, in other words, is set aside to let him wind up his personal affairs.

John F . Davis:

Well, that — well, they don’t — there’s no necessity of waiting six months.

He has no right to remain in this country for six months.

William J. Brennan, Jr.:

No, I mean I’m — but the statute does provide for — well —

John F . Davis:

I mean the amount really —

William J. Brennan, Jr.:

(Voice Overlap) — but if it — if — but he may have up to six months to wind up his personal affairs, may he not?

John F . Davis:

Not — not his right.

The — the statute provides — the Attorney General may keep him in confinement for a period of six months while he’s making arrangements to deport him.

But there is no — there is no right on the alien to remain for six months as soon as the order becomes final.

Then there is the — the legal right to deport.

I — I’m not suggesting that the service acts precipitantly in these matters.

I think that — I’m — I have no information about it.

William J. Brennan, Jr.:

Well, I’m still not quite clear what the six months is for.

John F . Davis:

The six months is a period when if the Attorney General feels it’s necessary to protect the country from a continuation of the activity leading to deportations.

He can protect the country by holding the alien in confinement.

William J. Brennan, Jr.:

I see.

It’s not — it’s not for the benefit of the alien himself.

John F . Davis:

It’s not for the benefit of the alien and the six months limitation was put on it because there was a feeling in Congress that there would be constitutional difficulties in holding a man indefinitely if — when he hasn’t been —

William J. Brennan, Jr.:

So then in effect, he’s released but then somewhat like parole —

John F . Davis:

Yes.

William J. Brennan, Jr.:

— who are under supervision.

John F . Davis:

That is right.

William J. Brennan, Jr.:

Until he’s finally deported.

John F . Davis:

That is right.

The background of this provision on supervision is that under the 1917 Act, in cases where aliens had been ordered deported, there was just — and we — they haven’t been able to accomplish deportation.

There was no control over them or whatsoever.

They — no one knew where they were and what they were doing.

John F . Davis:

And meanwhile, there were certain Eastern European countries and some countries in the Far East who were refusing to take back aliens which had been ordered deported from the United States.

As a matter of fact, by 1950, there were some 4000 aliens who have been ordered deported and that the — the Government was unable to accomplish the deportations.

William J. Brennan, Jr.:

Well, now tell me, are there instances in which the — the Attorney General does not confine him but lets him —

John F . Davis:

Oh, yes.

In this case, the — this — Mr. Witkovich was — was — well, he was released on bail.

A bail was provided and he couldn’t make the bail, so before the proceedings, he was actually confined.

After the order, however, he was released on bail.

The — the Attorney General has the authority in that six months period to confine or to release on such bond as he believes appropriate and the —

William J. Brennan, Jr.:

But in either case after the six months.

John F . Davis:

After the six months, he may not —

William J. Brennan, Jr.:

(Inaudible)

John F . Davis:

— as supervisory on him.

Felix Frankfurter:

What was that last statement?

John F . Davis:

After the six months, he has authority to place and make him subject to a supervisory order, this type of order which we have before us now.

Felix Frankfurter:

It would seem you said something he may not, what may not?

Well, I misheard.

John F . Davis:

Oh, I think that what I’ve said to Mr. Justice Brennan was that during the six months period, he may not and very frequently — most frequently does not retain the alien in custody but releases him on bond during that six months period and Mr. Witkovich himself was released (Voice Overlap) —

Felix Frankfurter:

After six months, he must.

John F . Davis:

And after the six months, he must.

Felix Frankfurter:

He must.

John F . Davis:

He must.

Felix Frankfurter:

No doubt about that.

John F . Davis:

That is right.

He has no authority to keep him confined after the six months period.

Felix Frankfurter:

No matter what the alien does.

John F . Davis:

Unless, —

Felix Frankfurter:

I mean I don’t —

John F . Davis:

— he’s convicted of a crime or something.

Felix Frankfurter:

No, (Inaudible)

That’s true of people (Inaudible)

Felix Frankfurter:

But — but that’s I think that’s rather crucial a bit but not crucial but it’s — that the heart of the —

John F . Davis:

That is right.

Felix Frankfurter:

— of case from a part of Judge Sullivan’s position, isn’t it?

John F . Davis:

That is right.

William O. Douglas:

What is the relevancy of the question like you used to describe to the daily worker?

John F . Davis:

Well —

William O. Douglas:

It must be a lot of libraries in —

John F . Davis:

Yes.

I — I —

William O. Douglas:

— people (Voice Overlap) —

John F . Davis:

— I would hate to have to defend this case on the basis of that question.

I think the pertinence of it is that in the Communist Party, the — the members are encouraged, perhaps required to read the Communist literature.

However, I would — I would be reluctant to have to defend this case on — on the basis of that particular question because I think you have a very real First Amendment question.

People have the right to print the daily worker.

People have a right to print it.

We shouldn’t be — they shouldn’t be prevented from reading it.

Felix Frankfurter:

But the case that —

John F . Davis:

But I don’t think we do rest upon that question.

Felix Frankfurter:

(Inaudible)

William O. Douglas:

But you must rest upon some question.

John F . Davis:

Yes.

I’d rest upon the question as to associations and activities.

The question, are you a member of the Communist Party that you associate with so and so, did you associate with so and so?

The questions accept —

William O. Douglas:

That the grounds for his deportation — or that he is a member?

John F . Davis:

— that — that he had been a member between certain days, yes.

Not that he — he may be a member.

There’s no indication whether he is or not.

That’s what the — that’s what the —

William O. Douglas:

What are the — what’s the relevancy of — of maybe kind of any movies in the Cinema Annex?

John F . Davis:

I’m sorry I don’t know what — on the pertinency of that question is.

William O. Douglas:

Have you attended any lectures at people’s auditorium?

John F . Davis:

No, I have no idea what the — what the significance of that question is.

William O. Douglas:

Did he address any (Inaudible)

John F . Davis:

And I don’t know that either.

I presume that if the case had gone on for trial, it would have had to be the judgment would have to set aside as to the pertinency of any questions that were asked.

You recognized apparently then there are some limits to the — despite the broad — to determine (Inaudible) the statute.

There are several limits to what the Attorney General can ask under his judgment.

John F . Davis:

I think that’s right.

Well, what are those limits?

John F . Davis:

I think they must be consistent with the — with the object of the — of the supervision.

The — well, specifically let’s put it —

It was simply to deport him, isn’t it?

John F . Davis:

What?

Is to deport him?

John F . Davis:

No, no.

Well, I think that the supervision is not only to deport him but our argument here is that Congress intended the Attorney General to have power to inhibit these activities which led to the deportation.

Now, in this case, he was deported because it would prove that he had been a voluntary member of the Communist Party from at least 1940 to 1949 and the object of these questions, some of which the pertinence of which I — I have no idea, but the presumed object of this was to find out whether he was continuing activities in connection with the Communist Party.

The order of supervision had ordered that he should cease to —

William O. Douglas:

Would that make him anymore deportable than he already had been found to be?

John F . Davis:

No, it didn’t make him anymore deportable.

He was ordered to be deported and could be deported at any time that the arrangements could be made.

This — the — the real question in here is that whether — in order to prevent — well, in the first place, the — does the — does the Government have a right to prevent this kind of activities by aliens who were deported?

If so, is it appropriate to do it by confining them as is done for the six months period or — or could have been longer by statute.

Or is it appropriate to inhibit this type of activity which Congress believes is improper?

Is it proper to inhibit — inhibited by this type of parole arrangement and requiring reports from the alien?

Felix Frankfurter:

I take it that your — that you were here where you conceive the case to be this.

There’s an outstanding deportation order.

The validity of that is not in question now and cannot be considered that the order was not executed for six months for good and sufficient reasons presumably.

And then came into operation the provision of the statute that at the end of six months, he must be allowed freedom subject to conditions upon his movement.

Felix Frankfurter:

I’m not now saying how limited they may be.

But the Attorney General may impose conditions from letting him in and —

John F . Davis:

Well —

Felix Frankfurter:

— (Inaudible) will that at the end of six months, it would be your own t to detain him.

The conditions aren’t here.

The legality of the specific conditions aren’t here in question, are they?

John F . Davis:

Well, the —

Felix Frankfurter:

So are they?

John F . Davis:

I think they may be.

I think that it —

Felix Frankfurter:

Well, let me — let me go step by step.

Suppose we first say that assuming the conditions are relevant to the — the Act of Congress making the provision of what you have at the end of six months, but then the question is not whether a particular question but assuming questions that there be such in this roster of questions.

Assuming any question relevant to ascertaining obedience or disobedience to the conditions imposed may the Attorney General ask those questions and failure to answer them be followed by the consequence, isn’t that the problem?

John F . Davis:

That is — that’s — that’s exactly the problem.

William J. Brennan, Jr.:

Well, Mr. Davis, let’s get back to these six months.

What’s the purpose of allowing the Attorney General to confine for six months?

John F . Davis:

Well, there’s a strong feeling in certain congressmen or senators that the way to protect the country from these deportable aliens who had been ordered deported was to confine, keep them in concentration camps or — or somewhere else to keep them under control.

William J. Brennan, Jr.:

In other words, if I may interrupt you just a moment.

Now, basically, the idea was until we can work out the details of getting them out of here, let’s keep our eyes on them, have them somewhere where we can keep our eyes of them, is that it?

John F . Davis:

That is right.

William J. Brennan, Jr.:

Well, now, I take it the obligation at the end of six months to release on the supervisory order, that doesn’t change that purpose on it, does it?

John F . Davis:

That doesn’t change the purpose, that’s right.

William J. Brennan, Jr.:

So that I gather your position is we have to focus our attention on what was done here inclusive of the questions that were asked in light of the purpose to do the same thing that confinement initially for six months —

John F . Davis:

That is right.

William J. Brennan, Jr.:

— was in fact —

John F . Davis:

That is right.

That is right, Your Honor.

And that question — the question would be the same.

Is confinement solely for the purpose of making the alien available at the dock at the time you want him to go or is the confinement intended also for the purpose of preventing this kind of activity by which he is being before this?

William J. Brennan, Jr.:

Well, let me ask this.

William J. Brennan, Jr.:

The — does it make any difference in the exercise by the Attorney General whether or not to confine for six months what the reason was that the alien is being deported?

For example, as I understand it, there might be a deportable alien.

We had a case argued here just a couple of weeks ago as I recall it that involved someone, a neutral alien who had sought —

John F . Davis:

Suggested (Voice Overlap) —

William J. Brennan, Jr.:

— exemption from the draft.

John F . Davis:

It — it’d make a very great difference what — what the — what the reason for deportation was.

This — this question, Mr. Justice Brennan, of — of when and how the Attorney General should exercise his authority was taken up rather exhaustively in this Court and in Carlson against Landon, the statute which says that the Attorney General was given authority to detain the alien during the proceeding and the question was raised there.

Is the purpose of the detention in order to make him available or is it a broader purpose?

And I may say that both the majority and a dissent and there’s a strong dissent from the case.

Both the majority and the dissent referred to the element of safeguarding the security of United States from his activities, not being sure that if he’s here he’s here too much, but safeguarding the United States from his activities.

And that was considered by this Court to be a proper element in the — in retaining him in custody.

And if I may say so, it’s the — it’s really the strongest part of my argument this morning that if it is a proper element in considering whether or not to — to keep the man confined, it seems to me that this element of security of preventing him from carrying on these activities is a proper element of the —

William J. Brennan, Jr.:

Well, now, in this case however, I think you said he was out on bail.

John F . Davis:

He was out on bail.

William J. Brennan, Jr.:

How long at — at all during the six months period was he confined?

John F . Davis:

I don’t think he was confined at any time during the six months.

William J. Brennan, Jr.:

Well, now what supervision was he put under while he was on bail?

John F . Davis:

That — I don’t know what the conditions of the bond were.

They’re not on the record and I do not know them.

He was released on a — on a $5000 bond and I don’t know —

William J. Brennan, Jr.:

Well, my point is that he was allowed to roam free without any supervisions for six months on a $5000 bond.

It seems a little inconsistent to put him under a stringent supervision —

John F . Davis:

But — well, that may be so.

I — I — it — although the Attorney General was given authority in these cases to — to change his position to release the man without bond and then to put him on — under bond it’s that he’s not — the Attorney General waives no — no authority in this matter by not imposing a condition in the first place.

It may — it may raise a question and in our minds as to whether the — the condition is necessary.

But it’s not a question of — of authority.

Earl Warren:

Well, Mr. Davis, under the law, does the Court have the right in — in admitting a man to bail to subjecting to — to all these conditions that — that Attorney General subjects into after the six months?

Would it be — would it be a valid release on bail if they put those restrictions on him?

John F . Davis:

I — I think it must depend on — on the particular statute involved, generally speaking.

Earl Warren:

Well, take this one.

John F . Davis:

Well, in this —

Earl Warren:

In this (Voice Overlap) —

John F . Davis:

Yes, in this — in this case, the — the bond is I think these would be proper conditions for the — for the bond on the release during the six months.

Earl Warren:

You do think it is?

John F . Davis:

Oh, yes.

Earl Warren:

That’s — that’s what I think.

John F . Davis:

Yes, I think that this would be and I think the terms of the bond would — would receive contempt from this later supervisor — supervisory order, the provision for the supervisory order.

Earl Warren:

As the matter of the words, it’s your position that the Court did say in the first instance when he’s ordered deported, I’ll admit you to bail with the sum of $5000 provided you — you submit yourself to the Attorney General and answer all questions —

John F . Davis:

Well —

Earl Warren:

— and do all things that — that the statute requires that you can — you must do after the six months period.

John F . Davis:

This bond with one — with one amendment, that this bond is provided by the Attorney General not by the Court I mean in this period.

Earl Warren:

Well — well, can he — can the Attorney General provide such a bond?

John F . Davis:

And that’s — and my answer was the Attorney General could but I think he should in these circumstances.

Earl Warren:

Does —

John F . Davis:

In fact, Mr. Brennan’s question would indicate that it — we’ve done it against it — against the supervisory order if he didn’t.

Earl Warren:

Well does — does the Attorney General issue bond releases of that kind?

John F . Davis:

Generally speaking, yes.

They —

Earl Warren:

They could.

John F . Davis:

— I mean I can’t say that they have these precise terms in them but that is the practice to condition and have the bond conditioned on — on similar terms.

William J. Brennan, Jr.:

On — on what the man reads?

John F . Davis:

Well, I — I do not know that it does — the supervisory order in this case didn’t have anything to do with reading.

And a investigator for the immigration service asked whether he had read it and I’m willing to concede for the purpose of this argument that he could that — to refuse to answer that question.

Hugo L. Black:

Well, could he?

The statute says whether or not related —

John F . Davis:

Well, I think —

Hugo L. Black:

(Inaudible) as the Attorney General deem fit and proper.

John F . Davis:

Well, I think it was an improper question and he could then refuse to answer it because it infringed on his rights under the First Amendment just as he could have refused possibly on some of the other questions on the Fifth Amendment.

Hugo L. Black:

That’s the constitutional ground, not the statutory.

John F . Davis:

That’s right.

John F . Davis:

Well, statutorily that may be a real pertinence in asking him whether he’s read — whether he reads the Daily Worker, Your Honor.

Hugo L. Black:

Well, let’s say the —

John F . Davis:

Constitutionally, I’m not sure that the — that relevancy should be called.

William J. Brennan, Jr.:

Well, I — I have some trouble following that at least for the six months period.

Suppose these very questions were imposed that in connection with the conditions imposed that he had to report to the Attorney General if he was to remain on bail.

And the question were put to him, do you read The Daily Worker?

And he said, “I won’t answer it.”

And they said, “All right, that’s your bail bond.

In fact, you go to prison.”

Would he have any —

John F . Davis:

I think he’d have the right in habeas corpus.

William J. Brennan, Jr.:

You think he would?

John F . Davis:

I would think so.

I would think it was an impassive — that if you read the question back into the bonds, I don’t think it is a proper question.

I think that’s the trouble with it but if you read it back into the bond and then he had a right to refuse to answer and there was an improper condition then he could be released on habeas corpus.

William J. Brennan, Jr.:

Suppose he had — suppose he had after he’d been ordered deported joined in the Communist Party, would he have committed a crime?

John F . Davis:

I don’t think so.

William O. Douglas:

And what can you inquire about —

John F . Davis:

Well, this might — our basic argument in this case, Your Honor is that this isn’t — this isn’t a punishment.

We’re not punishing the — the alien by putting him under this restraint.

He is — he is a — a person who Congress has said is conducting himself in such a way that he should be deported that this activity is what we do not want aliens to do.

Now, Congress doesn’t say that it’s a crime that alien — aliens do these things.

They just say that if people are going to stay on this country and retain that foreign citizenship, there are certain things that if they do them, we feel they should leave the country.

One of those things that they feel aliens should not do is to associate — did join the Communist Party and associate with the Communist, you know that Congress whose intention on this is perfectly clear in the Internal Security Act and in the Immigration and Nationality Act.

But it really comes is out of this that you say that Congress as respects to deport an alien, to subject him to restrictions in the interest of national security that it could not from the statutes subject to a citizenship.

John F . Davis:

I — I think that is probably so.

William O. Douglas:

But then why do you make an exception in case of the First Amendment?

John F . Davis:

Well, there — there is no question that aliens here are entitled to the protection of the Fifth Amendment and the First Amendment.

And — and I don’t know what other constitutional rights, the right to trial by jury you can’t take an alien and fine for murder without a jury.

They’re entitled to the protection of the Constitution as anybody else is.

John F . Davis:

The question is whether this is an unreasonable restraint on this man’s liberty that to require him to report, to require him to answer questions under these circumstances.

And our point is basically this.

That if it is — if it is a legal thing, it’s a constitutional thing to say this is so bad that the man shall be sent out of the country.

If this is the kind of thing which is the kind of thing that this Court has said, he can be retained in custody while you — while you — confined, while you’re — while you’re deciding it.

It certainly is the kind of thing where it is not unreasonable to say that we shall have this kind of a supervision, this general supervision with respect to his activities.

Harold Burton:

And it is your position that during the first six months, he must have bail to get out within that six months.

He doesn’t have to have bail but it’s situation in relation to questions that is obtained in both (Inaudible)

John F . Davis:

That is right.

Although I may say that specifically that question with respect to questions during the six months is not before the Court but that’s — I mean except there’s a — is it relevant in our — our — in our logic on it.

But I think that that is so.

Felix Frankfurter:

Mr. Davis, I — I recognized you had temptations for this constitution experience, but why didn’t you first dispose of the statutory question?

John F . Davis:

Well, I — I was about — I was about to go into the statutory question because the courts below found that this Act — this Act gave authority to the Attorney General only to ask questions with respect to the alien’s availability, availability for deportation.

And these questions obviously have nothing to do or are only collaterally relevant to whether he will be present when the time comes.

Felix Frankfurter:

May I — may I ask in order to search — in order to understand what Judge Sullivan ruled.

Do I understand that if the questions were solely directed to and relevant be limited to inquiries, whether he hasn’t changed his — his habitat was such was frequently and leaving no address behind at each change of residence or habitations whether you infer or have we tried to infer Judge Sullivan would say, “That’s all right.”

John F . Davis:

I’m sure he would say, “That’s all right.”

Earl Warren:

Mr. Davis, as I understand you to say that the inquiry of the Attorney General should be limited to the reasons for the man’s deportation that is it —

John F . Davis:

It was.

Earl Warren:

— must be in that field?

John F . Davis:

Well, let me say.I think they ought to be related to the order of supervision and — and the supervision must order — a supervision must be a — a reasonable one.

There must be some basis for it.

It is possible that an alien would be — would have been deported for — of some crimes, sexual misbehavior or something and he also may have a record of being associated with — with the Communist Party.

And I think it would be entirely appropriate even though he was being deported for some other crimes if he has a record of association with the Communist Party that the supervisory order take that into consideration.

But it’s not present in this case because in this case, he was ordered deported for — for associate — for the communist activity.

Earl Warren:

Well, let’s take two — two situations.

One man is deported because of — of his association with the Communist Party.

John F . Davis:

Yes.

Earl Warren:

Another man is deported because he — he has a conviction of narcotics.

Now, would you say that the — the man who was convicted of narcotics and who was deported for that conduct could not be under surveillance of the Attorney General for subversive activities while he is awaiting it or — or — and that the Attorney General would be limited to surveilling his conduct in relation to the narcotic traffic.

John F . Davis:

Under — as a supervisory order, I think that is — is that’s right.

John F . Davis:

I that — this have to have some relations to the man’s background that would have to deal with narcotics.

Earl Warren:

So the — the narcotic violator could become subversive and the — and the subversive could become a narcotic.

John F . Davis:

Well, if it —

Earl Warren:

Therefore, without — without interfering with the —

John F . Davis:

It’s a matter of reasonable cause.

If the Attorney General had any reason to believe, these orders should have some reference to the — as that the Court said in Carlson against Landon, you couldn’t look at the — the case to find out what is necessary in order to protect the — the welfare of the United States with respect to these aliens.

Now, if the man is convicted of narcotics and there’s no reason to believe that he’s engaged in — in Communist activities, it’s not reasonable to put him under restrictions at that time with respect to membership in the Communist Party.

There’s just no — no reason to — to restrict his liberty.

However, if there is reasonable cause to believe that that’s his activities will extend in that direction I should think it was well within the authority of the Attorney General to — to issue a supervisory order and that with — with that respect.

Earl Warren:

Well, let’s — let’s say that the narcotics violator had no background of — of communism at all.

But when he was under the surveillance of the Attorney General in this deportation proceeding, it was ascertained that he read The Daily Worker, that he went to this — this place that — to meetings.

He associated with some known Communist and was — was suspected of — of being a Communist at that time.

Will the Attorney General then have the right to say, “Now, I’m going to — I’m going to keep you under surveillance as to your communistic activities and I’m going to require you to report to me on all your associations in that field.”

John F . Davis:

That is right.

I would think that —

Earl Warren:

That — that’s —

John F . Davis:

— that would be my position.

Earl Warren:

— that’s your position.

John F . Davis:

That is right.

Earl Warren:

So then the words that Justice Black read from the — from the Act do become very forceful, don’t they?

And in that anything that the Attorney General desires to inquire probably he has a right to do.

John F . Davis:

He has the right to inquire about them, yes, but if you’re going to convict the man of crime who’s not answering, if there was no reason — if the question was an unreasonable question or if it violated his constitutional rights, he has the right to refuse to answer.

Earl Warren:

Well, he might even — he might even have been guilty of conduct —

John F . Davis:

I think in fact —

Earl Warren:

— it would — it would be of a suspicious character that — that under those circumstances, the — the Attorney General would not be limited to any field.

He could — he could — keeping him under surveillance for his entire time.

John F . Davis:

Anytime that which he had reasonable cause to believe would — would interfere — would impinge on the safety of the — of the nation.

Hugo L. Black:

Does the statute contain any limitations at that time?

John F . Davis:

No, it says — it says any other — any other matters whether related to the foregoing or not which the Attorney General deems fit and proper.

And may I say that I read that limitation into the statute in the same way that this Court read the limitation and into the confinement provisions in Carlson against Landon where the Court said that the confinement must be read with reference to the objects of the Act.

John F . Davis:

And so we build these questions, these — the supervision and the questions must be related to the objects of the Act.

Hugo L. Black:

Well, how — how do you get the objects of the Act limited to that?

If it’s to mean like object to Act is except that you give some subordinate to the Attorney General.

This is done by a subordinate, wasn’t it?

John F . Davis:

Yes, it was done.

The questioning was —

Hugo L. Black:

(Voice Overlap) —

John F . Davis:

— done by —

Hugo L. Black:

Now, what if you call people in and ask them when you get right here about anything if they want to ask him.

That’s part of the statute concerned kind of a paternalistic protection (Inaudible) so that you can have these people who were brought in.

John F . Davis:

Well —

Hugo L. Black:

Which may be all right but that’s what it seems to me it did.

Felix Frankfurter:

Well, the statute has a purpose, doesn’t it?

John F . Davis:

The —

Felix Frankfurter:

And the deportation order is directed towards the ground for deportation.

Hugo L. Black:

The deportation order is over.

That’s — we — that’s not challenged, is it?

John F . Davis:

No, but its (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap) —

Hugo L. Black:

The only question here now is this, isn’t it?

This man’s got to be deported.

He can’t be deported yet.

For some reason, he can’t get him in, can he?

John F . Davis:

That’s right.

Hugo L. Black:

And he’s here.

The statute says that during this time says the Attorney General as (Inaudible) but whoever he designates people work here can call him in and have him report on his nationality, circumstances, address, association or no activities and such other information whether or not related to foregoing (Inaudible)

John F . Davis:

That’s right.

Hugo L. Black:

So, where do you find anything that indicates there that the deportation order which is over and ready to be executed has anything to do with the objects of what we need to ask him?

John F . Davis:

You’re quite right, Your Honor, that there is no limitation in — in the words of the statute as to what questions can be asked.

If one reads to this the — this — this language in — in the light of the entire statute, one must assume he’s going to ask questions which are in accordance with the — the purpose of the statute just as in the Carlson —

Hugo L. Black:

(Voice Overlap) —

John F . Davis:

— against Landon case.

Hugo L. Black:

But I don’t see where the — the question — the — the basis for the deportation has anything to do with it.

I don’t — I don’t see it.

John F . Davis:

Well —

Hugo L. Black:

Maybe it had.

John F . Davis:

Well the history of the — of the purpose of — of supervising is that aliens who had been ordered deported because of activities which were considered improper for aliens, they’ve been ordered sent out of this country were still here, 4000 doing, presumably free to do precisely the same things that they’ve been ordered sent out of the country for.

Now, Congress said, “How are we going to deal with this?

Shall we prevent these aliens from — from doing this conduct which we believe antisocial shall we prevent it by — by keeping them in — in confinement or shall we somehow try and keep an eye on them, something more elastic?

Let them live with their families.

Let them continue —

Hugo L. Black:

(Voice Overlap) —

John F . Davis:

— within their work (Inaudible) but keep an eye on them —

Hugo L. Black:

(Inaudible) than he is.

John F . Davis:

No.

But —

Hugo L. Black:

And what — what do you have here is a man, then ordered deported, that’s finished.

John F . Davis:

But —

Hugo L. Black:

And I would judge if what they’re after is to have a constant fatherly supervision over these people in order to find out what they’re doing and whether they go to the movies and — and things of that kind.

John F . Davis:

To prevent them from doing —

Hugo L. Black:

I don’t suppose this man could have declined to answer the — whether he’s going to the movies in order to have — might incriminate him.

And this, certainly, all the questions you’re talking about if he hadn’t been an alien and subject to deportation, I would say that it’ll be a little different to make (Inaudible)

John F . Davis:

I don’t — I don’t know what the movie in question was and I don’t know what the evidence would have been that the Court —

Hugo L. Black:

You just ask about movies.

John F . Davis:

— had wanted to have.

Hugo L. Black:

And have you been to any movies though I’m not asking question.

John F . Davis:

I would — I would support if it — if — if pressed.

I would support this case particularly on the questions which deal with are you a member of the Communist Party and —

Hugo L. Black:

Well, suppose he hadn’t been an alien ordered deported and they call him up trying to make him tell under oath, “What would do to the Blau case about that?”

John F . Davis:

Well, if he — if this man had claimed the privilege against incrimination as it was done in the Blau case, then you would have the question of whether he had the constitutional right of protection of the Fifth Amendment and I’m —

Hugo L. Black:

Did he —

John F . Davis:

— did well anticipate what the Court would do with the question.

Hugo L. Black:

Well —

John F . Davis:

But specifically, he did not claim the protection of the Fifth Amendment.

Hugo L. Black:

Now, these examinations were held publicly or in secret?

John F . Davis:

In these — these are held publicly and counsel was present.

Hugo L. Black:

Does the — does the Attorney General have authority to hold him secret?

John F . Davis:

I don’t — I don’t know whether he does not or not.

Felix Frankfurter:

Should we imply that in order to have it declared unconstitutional?

John F . Davis:

I don’t believe so.

In this particular case, the evidence is perfectly clear that the counsel was present in representing (Inaudible)

Hugo L. Black:

I’m delighted to have your views that we don’t have to apply that I’m sure it’s very relevant.

Felix Frankfurter:

Could we eventually get to the statute, Mr. Davis, that construction brought the case here?

John F . Davis:

The first place to look for the meaning of the statute I think is the word statute itself.

And my first argument therefore would be that it isn’t reasonable to read these words that the — he must give information under oath with respect to his habits, associations and activities as words which would be designed to show whether or not he was — would be available on the dock for deportation.

They’ve sound to — they sound like words that you would ask an alien to find out what he was doing rather than whether or not he was going to be available to be deported.

William O. Douglas:

Suppose his wife was a Communist, could he get into that?

John F . Davis:

Under the supervisory —

William O. Douglas:

Was he the —

John F . Davis:

— order, he is given — he is given authority to associate with his wife and his counsel even though they may be Communists.

It’s accepted from the — from the supervisory order.

The second — the second clue we have to the meaning of this language is its — its location in the statute.

It — it follows — this section follows immediately after the section dealing with retaining an alien in custody.

And as I mentioned before, that section was before this Court in Carlson against Landon 342 U.S.524.

And presumably that the purposes of the strict custody of — of retaining a man in confinement and the elastic custody that can be called out of — of the supervisory order are — are related.

And this Court — this Court, both the majority and the minority, specifically interpreted the custody provisions as in — as authorizing the Attorney General to keep the man in confinement if he had reason to believe that it was necessary for the security of the United States.

And the third way to find out the meaning of this statute I suppose is the legislative history and we speak with it at some length in our brief.

The truth of the matter is that from 1939 and 1950, Representative Holmes pressed for legislation to protect the country from deportable aliens, not only submissives, but other aliens guilty of other — of other offenses to protect the country from — of their presence here when they’ve been ordered deported and couldn’t be deported.

And when he was finally able to — to get this enacted into law was when the Internal Security Act was passed.

This provision was originally a section of the Internal Security Act and it this was well known, the prime object of that Act was to protect this country against communist activities.

John F . Davis:

Now, in the legislative history, we have a presidential message.

We have a recommendation from the Department of Justice.

We have reports from the judiciary committees of both Houses.

We have statements by Representative Holmes on — on from the floor.

And they all, without exception, tie the supervision of these aliens in with the question of their continued antisocial activity rather than with their availability for deportation.

And if there were — if there were further need for — for interpreting the statute, I might point out that this provision was reenacted by Congress in 1952.

It originally passed as part of the Internal Security Act in 1950.

After that, this Court construed the custody provisions in Carlson against Landon.

And after that, the Court reenacted — the Congress reenacted the section in 1952 so that we have here a case of reenactment of — of this provision after interpretation by the Court.

It seems — it seems clear to me that the court below must have reached its interpretation because it felt that unless it limited the statute to availability for deportation, it would have grave constitutional questions as to whether that was a power under the Constitution to — to hold the — to hold the alien.

But I think it’s of somewhat doubtful humanity to mutilate a statute by cutting off two arms and a leg in order to uphold the remnant.

If we are right, the Congress clearly intended the Attorney General to have power — supervisory power over activity, by then the Court was stepping into the legislative field when it interpreted the statute as it did.

And it seems — it seems clear to us that the statute as written is constitutional.

Hugo L. Black:

You mean as interpreted like you said.

John F . Davis:

Yes, as — as written and as — as interpreted by the Court in Carlson against Landon which I translate to this case.

The basic constitutional issue is — and the appellee restates it in — in many guises, but the basic constitutional issue is whether the exercise of supervisory restraints over these aliens deprives them of liberty without due process of law.

The argument is that they have not been found guilty of any crime and indeed this alien hasn’t been found guilty — guilty of any crime.

And that therefore, any attempt to restrict his activity is a punishment which is imposed upon him without indictment, jury trial or the other safeguards of the criminal law.

And if these were a punishment, if the aim and — and the result of this kind of a supervisory order were a punishment, I believe the statute would be unconstitutional.

In similar situation, the — the — this Court upset a — a Immigration Act way back in 1896 in Wong Wing against United States which was a case of imprisoning Chinese without jury trial, without any trial in administrative imprisonment.

And the Court had no difficulty in saying that that was a punishment and that it should — that the — and was unconstitutional.

But the — this type of restraint which we have in this case is not imposed as — as a punishment.

It is imposed because there is some necessity of — of preventing aliens which have been found engaged in antisocial activities and ordered deported from continuing to perform the same activities in the interim before they can finally be removed.

Felix Frankfurter:

Mr. Davis, I’m a little puzzled by your mode of arguments here.

We haven’t this before us restraint, any restraint, any confinement.

We have before us a basis of — of criminal charge derived from the claim of the Government, of the right of the Attorney General to ask questions.

Surely they have subordinate asking.

The Attorney General is given enough power and I at — myself oh, I would restrict that to certain cases.

So that if the question here is restraint the — the narrow question as I see it is whether he — the Congress may authorize him to ask questions and if he has the right — if Congress may so authorize him to ask question then making disobedience of such a lawful order, for purposes of the question an offense I think that the latter isn’t troublesome if the Congress of the United States can give that authority to the Attorney General then disobedience of such an authority may within the restrictions of the — call them unusual punishment, these followed by legal consequences.

So, I don’t know why you’re talking about restraint.

John F . Davis:

Well —

Felix Frankfurter:

And the whole point about that Judge Sullivan’s opinion is that in as much as he can’t do anything or Congress hasn’t provided for the doing anything in case of disobedience of his restrictions except to make him talk, what?

John F . Davis:

No, that’s not quite so.

I mean —

Felix Frankfurter:

So, what — I — I asked you a little while ago.

What can he do that — that —

John F . Davis:

Well —

Felix Frankfurter:

— Sullivan says no matter what happened he can’t do anything about it.

John F . Davis:

But —

Felix Frankfurter:

What he can do?

John F . Davis:

That the supervisory order orders the alien not to engage in Communist activities and not to associate with Communists.

Felix Frankfurter:

Yes.

John F . Davis:

And if he does associate with Communists, if he does participate in Communist activity, he violates the supervisory order which is also a crime and he can go to jail for one year.

Felix Frankfurter:

Well, but that isn’t question here —

John F . Davis:

It isn’t in question here —

Felix Frankfurter:

— what is violated, that all I’m saying is that the —

John F . Davis:

But —

Felix Frankfurter:

— the proceedings — the proceedings relating to the inquiry doesn’t authorize the Attorney General to do anything if he disobeys —

John F . Davis:

Oh —

Felix Frankfurter:

— except that he subjects him to criminal prosecution.

John F . Davis:

On — on the query, on the question?

Felix Frankfurter:

Yes.

John F . Davis:

That’s — that’s right.

He can.

Felix Frankfurter:

So that — we haven’t before us a case of — of allegedly unlawful restraint.

We have before us a challenge to the authority to ask question, disobedience to which these are made an offense and therefore we are drawn back out of the question whether Congress may impose such a duty upon a deportable alien.

John F . Davis:

Well —

Felix Frankfurter:

And that’s all the question is, isn’t it?

And that (Voice Overlap) —

John F . Davis:

Well, it depends where you’ve kept — where you’ve kept the question off.

John F . Davis:

I — I have approached the — the questions as part of the general supervisory scheme because I think they are an inherent part of it.

Felix Frankfurter:

True.

John F . Davis:

They gain strength from it then it gains strength from them that they’re almost indivisible.

But —

Felix Frankfurter:

Do I have to decide in this case — in passing on the construction– on passing on this, the judgment of Judge Sullivan, the question whether Congress could make disobedience of the conditions which the Attorney General imposed at the end of six months an offense.

Is that also in the Court?

John F . Davis:

I — I think you’re right, Your Honor.

I think the narrow question before us is simply the question of —

Felix Frankfurter:

And then why do we go all over these to me, rather difficult.

I hope they are to others difficult constitutional questions.

John F . Davis:

Well, the reason that I —

Felix Frankfurter:

At least until we get through knowing what the statute means.

John F . Davis:

Unless — unless —

Felix Frankfurter:

Unless Judge Sullivan is right as an end of the matter, isn’t there.

John F . Davis:

But — but unless these questions — I may be arguing slightly against myself but unless these questions have some relevance to a supervisory order which is proper, by then, it would seem that the Attorney General had no — there were no restrictions on his right to ask questions.

And so I find —

Felix Frankfurter:

But they must — certainly, they must — certainly, the questions must be made relevant to what Congress has authorized and this Court has already sustained the power of the Attorney General to say at the end of six — not the power — the power of Congress —

John F . Davis:

Yes.

Felix Frankfurter:

— to say at the end of six months, you’re out.

John F . Davis:

That’s right.

Felix Frankfurter:

But we’re going to keep an eye on you because we want to deport if Yugoslavia opens up.

John F . Davis:

And then is it proper to ask a man questions.

That’s — that’s the narrower question before this Court.

Felix Frankfurter:

Well, then — I had supposed, I don’t know.

This may be just be a simple —

John F . Davis:

Well, that is right.

Felix Frankfurter:

— narrowness of mind that we ought to stick to —

John F . Davis:

Well —

Felix Frankfurter:

— such narrow questions.

John F . Davis:

That — that is the narrowest ground on which this can be sustained.

John F . Davis:

I would — I would —

Felix Frankfurter:

Or not sustained.

John F . Davis:

Or not sustained.

I — I’m arguing on this private offense.

Felix Frankfurter:

Well, I — I understand that but —

John F . Davis:

Make right.

Hugo L. Black:

But it’s not — but if it’s not yet whether if it’s not sustained, where do we go then?

John F . Davis:

If it’s not — if these questions are not sustained —

Hugo L. Black:

If — if Judge Sullivan’s interpretation is not accepted, where do we go then?

John F . Davis:

Well, in that case since the indictment is dismissed then I suppose then it’s a question of —

Hugo L. Black:

Or in his — in his — suppose his interpretation is not accepted, we do not agree that — that what he said that —

John F . Davis:

(Inaudible)

Hugo L. Black:

— all you can ask him about is questions concerning his availability.

John F . Davis:

If — if it is — if it were — certainly, if — if this Court should uphold Judge Sullivan on the ground that only questions with respect to availability were — were properly asked, I would assume that was an interpretation by this Court if that was the purpose of supervision and that the entire supervision would be —

Felix Frankfurter:

(Inaudible)

John F . Davis:

— limited to availability.

Felix Frankfurter:

But Justice Black assumes that we disagree with Judge —

Hugo L. Black:

Suppose we do agree with him.

Felix Frankfurter:

— Judge Sullivan and you’ve already answered that.

John F . Davis:

And it’s also unconstitutional to ask these questions.

Hugo L. Black:

No, I said suppose we disagree with Judge Sullivan.

I’d like to have your judgment not mine or anybody else.

I’d like to have your judgment as to what then we have to then we have to (Inaudible) something.

John F . Davis:

Then you have to pass upon the constitutionality of asking — of requiring of —

Felix Frankfurter:

We’ve already said that we don’t have to.

John F . Davis:

I — I said that you’ve had — excuse me Your Honor.

I was about to say that you’d have to pass upon the constitutionality of giving the Attorney General the authority to ask these questions and make the answer of crime.

And that’s the narrow question that you would be —

Felix Frankfurter:

Well but you’ve said where is — I put to you question.

It’s very obvious.

Felix Frankfurter:

Assume we disagree with Judge Sullivan, maybe (A) maybe raise questions of the constitutionality.

Secondly, should we?

And it’s not for you to say whether we should —

John F . Davis:

You are quite right.

Felix Frankfurter:

— it’s for us to say.

John F . Davis:

My — my mind didn’t advert to the — the question of whether you would return it to the lower court.