United States v. Witkovich

PETITIONER:United States
RESPONDENT:Witkovich
LOCATION:Congress

DOCKET NO.: 295
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 353 US 194 (1957)
ARGUED: Feb 28, 1957
DECIDED: Apr 29, 1957

Facts of the case

Question

  • Oral Argument – February 28, 1957 (Part 1)
  • Audio Transcription for Oral Argument – February 28, 1957 (Part 1) in United States v. Witkovich

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

    — I would like to reserve it for rebuttal.

    Earl Warren:

    Ms. Hart.

    Pearl M. Hart:

    If the Court please.

    I would like to say at the threshold that it is all together likely that this case would not be before Your Honors and I would not be here this afternoon if I had advised my client to plead the Fifth Amendment in relation to the questions which were asked of him.

    But the integrity of the client and devotion to the proper administration of the law did not permit us to indulge in any subterfuges.

    And therefore, whatever answers we refuse to give, our position was that the questions were in violation of our rights under the First Amendment and also that the questions were not pertinent to any issue.

    And we feel that we have a complete right to protection for ourselves under the First Amendment just as much as we have under any other amendment to the Constitution.

    I would like to say too that briefly on the question of the right of supervision because that’s the point, I think, in which we left that the kind of supervision attempted here would be all together feudal under almost any circumstances that we can conceive.

    For instance, if this defendant, when called upon by the person in the Naturalization Service, had bared his life completely from the cradle to the present time and had told all about himself, and nevertheless said, “Yes, I still am a member of the Communist Party and I still go to meetings of the Communist Party.”

    What assistance would that had been to the Attorney General in the so-called supervision or what could the Attorney General have done having that information before him?

    On the other hand, suppose the defendant had taken the position that he refused to answer on the basis of the Fifth Amendment, how would the Attorney General have been assisted in this so-called supervision of the defendant.

    In neither event, would anything happen then, it would have been a feudal act as far as the order supervision is concerned.

    And while that should not be determinative of the entire proposition, nevertheless, on the mere argument of the supervision, it gets the Court nowhere in my opinion.

    Another matter to which I want to call your attention preliminarily is this, that there is nothing in the indictment and the indictment has to be considered, I believe, by this Court from its four corners.

    There’s nothing in the indictment which has any reference at all to Communist Party membership or engaging in Communist and activities.

    It is a general indictment which says that the defendant who is then and there and the alien against whom an order of deportation had issued and been outstanding for more than six months, which said order of deportation was then and there, a final order having become final on a certain day and who is the project from the United States under the order of deportation had not been affected with in such six-month period and who was then and there pending eventual deportation subject to supervision was required to come in and answer questions, et cetera and he refused to answer the following questions.

    Now, are we to assume, and I’m not making a great point over because I suppose you might as well meet the whole situation squarely, are we to assume from this that all of these matters in relation to Communist Party activity are pertinent to this particular kind of an indictment because there’s nothing in it.

    Now then, they proceed to give the questions which it was said he refused to answer.

    And the first question you will notice is, “Do you subscribe to the Daily Worker?”

    I would like to tell you, and that does happened to be part of the record, that the question which immediately preceeded it was, “Do you rate the Chicago Daily Tribune?”

    Well, of course, we objected to answering that under the First Amendment just the same as we objected to answering in regard to the Daily Worker.

    However, we’re not being embedded for not answering as to whether we read the Daily Tribune or not.

    All of these questions — I think there are 22 questions contained in the indictment which we —

    William J. Brennan, Jr.:

    Can I ask in part whether —

    Pearl M. Hart:

    Pardon.

    William J. Brennan, Jr.:

    Any other that you refused to answer that demand — are the substantive methods to —

    Pearl M. Hart:

    Yes, I believe there are.

    I —

    William J. Brennan, Jr.:

    They — they —

    Pearl M. Hart:

    — I can’t point them out at this moment unless I go through the entire series of questions, Your Honor.

    William J. Brennan, Jr.:

    The scope of that, are there references?

    Pearl M. Hart:

    Yes.

    It’s all in — in the record and the — all of the questions, Your Honor, we’ll find on page — beginning on page 32 of the transcript.

    William J. Brennan, Jr.:

    Thank you.

    Pearl M. Hart:

    Ninety five questions in total were asked.

    Tom C. Clark:

    And he refused to answer?

    Pearl M. Hart:

    And he refused to answer 22.

    Tom C. Clark:

    If this number amounts to more than (Inaudible)

    Pearl M. Hart:

    Yes, he refused to answer that too, Your Honor, because we saw no purpose of it as to whether or not he could translate or read several languages.

    We felt he had no pertinency at all to the proposition of this having to be deported.

    We thought there was no pertinency to a number of other questions which were asked now.

    Felix Frankfurter:

    I don’t mean to make a point of it, I just want knowledge.

    Some of them — some of the questions were answered?

    Pearl M. Hart:

    Some of the questions were answered.

    Felix Frankfurter:

    And was a line drawn then or is a line drawn now by you?

    Pearl M. Hart:

    No, the line was drawn at that time and we said at that time that certain questions we refused to answer because either they were a violation of the First Amendment or they were not pertinent to any right that the Attorney General had or to any issue which was involved.

    That was done at the time of the questioning and there is nothing new added to it at this time, Your Honor.

    Felix Frankfurter:

    If — if — I’ve heard that there was a counsel present.

    Were you the counsel present —

    Pearl M. Hart:

    I was counsel —

    Felix Frankfurter:

    — so that —

    Pearl M. Hart:

    — present at that time.

    Felix Frankfurter:

    — and I don’t think counsel will stop by anything they do to protect through their clients.

    Is it your position now that some of the questions are pertinent?

    Pearl M. Hart:

    Yes, I have no hesitancy as to that.

    And for instance, you will find that we answered about 70 questions which have to do with these matters, “Where do you live?

    Do you own a property?

    Where do you work?

    How many hours a day do you work?

    What do you do with your spare time?

    Pearl M. Hart:

    How many children have you, have your wife?

    We have five children, we have a wife.

    They are all born in the United States.

    One son was a member of the Armed Forces.

    All of those questions which have anything to do with the possibility of putting a hand on the individual as soon as deportation is possible were answered.

    At no time, did the Attorney General have to guess about our location or whereabouts, the place of employment, how much we earn, whether we own real estate, how much the mortgages on the real estate.

    We have no —

    Felix Frankfurter:

    All these — all these I infer from what you’ve just said, it seemed to you pertinent to the question where they feel available in case he — or whether you like it to be — likely to flee, is that right?

    Pearl M. Hart:

    That’s correct, Your Honor.

    And I had no hesitancy in advising him to answer all those questions which would properly inform the Attorney General where he was at all times, although of course, the Attorney General knows where he is anyway but I had no purpose.

    Now, when they asked this, “Do you know so and so, John Smith, William Jones, et cetera, et cetera?”

    I don’t know who those people are, but we also felt that they were not pertinent to any right which the Attorney General had.

    Why?

    Because he told what labor union he belonged to.

    He told where he worked and that he’s been working there for two years and more.

    He told where he lived, where he earned property and where his children and wife lives.

    So that there was no difficulty on the part of the Attorney General at any moment at all to locate him and we felt that that was all that was necessary.

    Now, of course, we wouldn’t have been heard if we had told him whether we can speak more than one language.

    And we wouldn’t have been heard if we had told him whether we read the Tribune or the Daily Worker.

    But on the question of principle and viewing to the line, we felt he had no right to ask those questions.

    And therefore, we refused to answer on the two grounds like the pertinency and also the First Amendment which we trust this Court.

    We’ll consider it in relation to the — the whole situation.

    Now, Your Honors, there —

    Tom C. Clark:

    Ms. Hart, is there anything in the record that shows that the next move is in accordance with their activity (Inaudible) of their activities?

    Pearl M. Hart:

    You mean his activity outside of his occupation?

    Tom C. Clark:

    I don’t mean plaintiff here.

    Do you —

    Pearl M. Hart:

    Oh, I do not know and there’s nothing in the record at all to indicate who they are.

    Tom C. Clark:

    Do you know who Leo Fisher is?

    Pearl M. Hart:

    No, I would not.

    Pearl M. Hart:

    Now, whether he knew, I’m not in position to say it.

    Tom C. Clark:

    And it’s not in the record.

    Pearl M. Hart:

    It’s not — there’s nothing in the record about that at all.

    Now, when they asked him, “Do you know the editor of so-and-so?”

    We think that’s impertinent to the issue.

    When they asked him, “What is the policy of the newspaper for which you worked as a pressman?”

    We refused to answer because that has no pertinency to anything.

    And certainly, we’re — we’re not required to know what the policy of a newspaper is for whom we work merely as a pressman.

    So all down the line, we distinguish between those things which we felt that the Attorney General had a proper right to inquire into — in those things which had no pertinency to the issue.

    And on the question of Communist Party membership, if the Court please, precisely the same thing, and as far as the First Amendment is concerned, we think we have a complete right to rely on the protection of the First Amendment in connection with that.

    But as I said a moment ago, supposed he had said that he was still a member or suppose he had taken the fifth and said, “It’s none of your business because the fifth protects me.”

    What would have availed the Attorney General in respect for that?

    Now, those are just by way of preliminary, if Your Honors please.

    And I would like, if I possibly can to go into a summary of the other matters which we relate — indicate the miscellaneous frailties in the whole situation.

    The statute itself or that Section of the statute itself, it cannot, in my humble opinion, be regarded as a constitutionally collectible because it is so vague that it’s impossible for anybody to judge what is intended by.

    And that provides at any —

    Felix Frankfurter:

    Your relevance made a judgment on seven questions out of nine.

    Pearl M. Hart:

    Pardon, sir.

    Felix Frankfurter:

    On the question of vagueness —

    Pearl M. Hart:

    Yes.

    Felix Frankfurter:

    — you eminently made a judgment of the relevance of seven questions out of nine.

    Pearl M. Hart:

    Well, even if that were so, the — my judgment as to what was irrelevant had to do with the particular questions which were asked at that time.

    But in considering the Section of the statute itself, I think, if Your Honor please, that — if I wanted to know other failing, I think, than this, and such other information whether or not related to the foregoing as the Attorney General may deem fit and proper, I think that if nothing else should cause that particular section to be struck.

    I equate this particular Section with such matters as refusal to answer questions before a congressional committee.

    That’s a similar situation.

    I also find similarity between this kind of a situation and one in where — in which a person is called to testify before a grand jury or before our court and refuses to do so.

    But in those other cases, if Your Honors please, there are protective devices placed about the individual so that he doesn’t stand alone in a vacuum and no matter what he does may result in his imprisonment.

    Felix Frankfurter:

    If — if Judge Sullivan’s construction of the statute could find favor then these difficulties do not arise, do they?

    Pearl M. Hart:

    That’s correct.

    Felix Frankfurter:

    Well, don’t we have to address ourselves first to the question whether his construction is either instinctively called for or called for by our rule if you don’t go into constitutionality if you can save it.

    Pearl M. Hart:

    Well, now I — I’ll try to limit myself for the present to that situation.

    This matter came before Judge Sullivan on two occasions on a motion to dismiss the indictment because it didn’t allege a crime.

    We took the position that mere failure to talk was not a crime unless something else attended it.

    In his first opinion, he — we also argued that the law was unconstitutional.

    In his first opinion, he said that he felt that the law was constitutional but that the questions which were asked had to be determined on the question of relevancy.

    And that was all that was in the opinion.

    That apparently was a considerable disappointment to the Government because they came in with the petitioner asking the Court to clarify his opinion.

    Felix Frankfurter:

    May I — may I ask this because I’m puzzled.

    Suppose nothing had been done, what would have been — what — what would have followed the original memorandum or opinion of Judge Sullivan?

    Pearl M. Hart:

    If nothing more had been done?

    Felix Frankfurter:

    Yes, if the Government hadn’t come in for clarification and you hadn’t come in for dismissal of the indictment.

    What would have been the course of things?

    Pearl M. Hart:

    My course would have been precisely the same thing that I did.

    I would have gone in, in response to his opinion and asked the Court to determine from the indictment, which of these questions were relevant as the Court put it.

    And I did that, Your Honor.

    And I would have done it whether the Government had asked for a clarification.

    Felix Frankfurter:

    What — what was — I’m a little puzzled by it.

    What was the implication of his opinion?

    Did he expect the Government then to move for a trial and have the question of relevance determined at the trial?

    Pearl M. Hart:

    I can only give my personal opinion.

    I think he felt that a trial would have ensued.

    Felix Frankfurter:

    Yes, because if this is — intellectual curiosity more than anything else which directs some question.

    A very surprising thing that a judge should be asked to tell what he meant.

    Pearl M. Hart:

    Well, that’s the Government’s fault.

    I — I don’t care if that —

    Felix Frankfurter:

    I’m not blaming or — or praising us.

    It seemed to me he’d left and sort it up in the air, didn’t he?

    Pearl M. Hart:

    That’s right and that’s why I say that the Government was rather disturbed about it.

    Now, under Rule 12 where the federal rules of criminal procedure, a court has a right to determine if it’s possible or whether or not there is something to be done prior to the trial.

    On the second argument before Judge Sullivan, we went into the specific questions which were asked and Judge Sullivan, as Your Honors will note from his opinion, could not say that any of the questions, about which the indictment was brought in, were relevant to the defendant’s availability for deportation.

    Pearl M. Hart:

    And on the basis of that, he dismissed the indictment.

    I — I think the federal court was correct in that opinion because he saw all of the questions which were asked and he doubtless must have compared these specific questions which we refused to answer to those which we had answered and he must have known from those which we answered that the Attorney General had all possible available information as to where this man lived and what he did so that he could be seized at anytime that deportation was possible.

    Felix Frankfurter:

    Well, what he did the second time, am I wrong about this?

    After you — after your motion for clarification, he then ruled on the meaning of the statute, namely, the questions must relate to availability as in (Inaudible) the indictment and said not one of these questions relates to that topic and therefore, you haven’t stated out of offense and therefore, the indictment were to be dismissed.

    And I should think that followed logically from — from the scope that he gave to the statute, isn’t that right?

    Pearl M. Hart:

    That’s correct, Your Honor.

    And the indictment was dismissed and we’re from the Government, of course, appealed and I, representing the defendant, felt that since the Government had brought an appeal that this did present an opportunity to the defendant to present other issues before this Court, which I hope the Court will consider, although, I’m fully aware of the fact that the Court will not consider constitutional issues if there are other issues which are available for the adjudication of a case.

    Personally, I regret it but I’m on — on the Court.

    Now, if the Court please —

    Felix Frankfurter:

    You might not if you were on the Court.

    Pearl M. Hart:

    [Laughter]

    At least you’re right.

    The final words of Judge Sullivan were these.

    Under the statutory, the questions must be relevant to the congressional power to legislate.

    As in the instant case, they must relate to the valid power of the Attorney General, the motion to dismiss the — wait a minute, I’m sorry, I’m reading the wrong one.

    Well, at any rate, I recounted without using the language of the Court that the motion to dismiss the indictment was granted and as a result thereof, we are here.

    Now, if Your Honors please, I — I think one of the very important and difficult questions to determine here is the validity constitutionally of the Section itself.

    You have a man who cannot be deported because no country will take him.

    With reference to the Carlson case which was referred to earlier, that case is the size of — of a situation during the first six months subsequent to an order of deportation.

    And as a matter of fact, the Court held that the Court have a right to review the discretion of the Attorney General in refusing bill.

    After the six-month period is over, the deportee may not be held under bail but he has to be discharged and the practice is, in all of these cases, that his bail has returned to him and he goes home but he’s called in to sign if he will and most of the time, he won’t, a supervisory parole agreement under which these various things are set up.

    And the law provides that he has to submit to physical and psychiatric examination at the discretion of the Attorney General that he may not associate with persons who are Communist and originally the supervisory agreement even included a wife but they have made an exception since that, if the Court please.

    Then, he shall give information under oath as to his nationality, circumstances have it, associations and activities and such other information whether or not related to the foregoing as the Attorney General may deem fit and proper and to conform to such reasonable different restrictions on his convict or activities as are prescribed by the Attorney General in his case.

    And here is the crux of it.

    Any alien who shall willfully fail to comply with such regulations, or willfully failed to appear or to give information or submit to medical or psychiatric examination if required, or knowingly give false information in relation to the requirements of such regulations, or knowingly violate a reasonable restriction imposed upon his convict or activity shall account conviction be guilty of the felony.

    That has since been changed to misdemeanor and shall be fined not more than $1000 or shall be imprisoned not more than one year or both.

    To me, it seems that the terminal points of what a person may or may not do are all together undetermined in this section of the statute.

    I have to —

    William J. Brennan, Jr.:

    What you said were — were supervisory agreement, is that something that maybe within six months or —

    Pearl M. Hart:

    The supervisory agreement, Your Honor, is subsequent to the six-month period and is given to the deportee when his bail is returned to him.

    Pearl M. Hart:

    And he asked us to sign that he will refrain from doing certain things that he will not commit any offense under the Smith Act.

    William J. Brennan, Jr.:

    Is that the ordinary part of this that they will not part?

    Pearl M. Hart:

    Yes.

    We take the position, if Your Honor please, that the statute does not provide, that it has to be signed by the deportee and therefore, the deportee does not sign it.

    And it is read to him.

    A copy is handed to him so in that way he has notice of it, but he — he does not agree to it by signing it as the questions do.

    Earl Warren:

    Are there any such conditions in his release on bail during that six months period, Ms. Hart?

    Pearl M. Hart:

    I don’t want to be held to this, Your Honor, but I think the only condition on his release on bail is that he shall present himself for deportation when called for.

    Now, there may be other situations where they incorporate other conditions.

    I — I cannot say it.

    The one I have in mind, the one that I recall seeing just requires him to be there when he’s called for deportation.

    Now, under the supervisory agreement, Your Honors, we always respond, we always come in.

    The immigration officer says, “Be at this office at 10 o’clock”, and next Wednesday, we’re there.

    We don’t refuse to come in.

    We don’t refuse to do a solitary thing that they want us to do, although, we feel we have a right to.

    But when we’re questioned, we feel we have a right not to answer certain questions.

    Now, we come in because maybe the Attorney General has a passport.

    Well, if he has, we’ve got to submit to him.

    And we’re told to report once a month while we’re on parole.

    We report once a month.

    We do absolutely nothing —

    John M. Harlan:

    Excuse me, you — you used the word parole.

    Pearl M. Hart:

    They used the word parole, Your Honor.

    They call it supervisory parole.

    Now, I — I know parole relates to a former imprisonment and one is released on parole but the Attorney General called it supervisory parole.

    It’s incorrect.

    John M. Harlan:

    Were you questioned more than once?

    Pearl M. Hart:

    They may question everytime we come in but they ordinarily set aside two occasions during a period of a year.

    Every six months if you’re called in, you’re asked similar questions all over again.

    And then most of the time, we answer most of the questions if we believe that they are pertinent to the issue, if they believe — if we believe that the purpose of the question is to know where the party can be found, et cetera, when they are to be deported.

    Pearl M. Hart:

    Now, another provision in this so-called supervisory parole agreement is that the person shall not travel beyond 50 miles from Chicago.

    It’s an absurd limitation in our opinion but we just don’t do it without getting permission as a matter of fact.

    Felix Frankfurter:

    Are these — may I ask, are these conditions standardized or are they individualized?

    In other words —

    Pearl M. Hart:

    They are pretty well standardized within a particular district.

    Now I —

    Felix Frankfurter:

    No, I mean are the – are the conditions which are imposed the same in every case that comes up in routine?

    Pearl M. Hart:

    Yes, yes, I can say that they’re practically the same for everyone.

    William O. Douglas:

    Do they ask him questions about his religion or his church coalitions?

    Pearl M. Hart:

    I’ve never had a situation where they asked him what his religion was but they have asked, “Do you go to church?

    “Or words to that effect just like here, “Do you go to movies at a particular place?

    “And always, “What you do with your spare time?

    How you knew yourself or whom you meet?

    Where you go?

    And “What you read very frequently?”

    Now all of those matters, we say, are protected by the First Amendment.

    Nobody has the right to inquire and that’s why we don’t feel that we should answer.

    Now, when the Attorney General is given the right to say to us that we maybe indicted and maybe penalized with the year out of our lives in $1000 for a refusal to give information as to nationality, circumstances, habits, associations and activities and such other information whether or not related to the foregoing as the Attorney General may deem fit and proper.

    What is the test to which we’re entitled in order to determine in advance whether or not we are subject to $1000 penalty?

    There’s no test of any kind here.

    It’s a situation where the section of the statute determines it and not the indictment itself.

    And if the statute or the section of the statute is so vague as not to give proper notice, then the statute and everything else in relation to it must fall.

    There just isn’t any question about it, the Lanzetta case which this Court decided, the Cardiff case which this Court decided fairly recently a number of other cases together.

    That of course, is so elementary that I don’t want to take the court’s time about it.

    But how are we to determine anything?

    Now, I should say through Your Honors too that in St. Louis, the Zedner case is gradually coming up this way.

    The Zedner case was a civil proceeding in which it was attempted to enjoin the Attorney General from restricting people as to their movements from requiring them to report at certain times, et cetera.

    And the Court, it was a three-judge Court, ruled as to several of these restrictions that they were improper.

    And the Government has appealed from that and Mrs. Zedner herself has also entered a cross-appeal in relation to it.

    But in that situation, there isn’t so very much danger.

    Pearl M. Hart:

    Why?

    Because it’s just a civil proceeding and it may be determined favorably to the petitioner or may not but at least there’s no question about the person’s liberty being lost to him.

    Here, we have a working man who earns $72 or $82 a week with a family of five, who has to put up a $4000 bond on this indictment, who had to engage counsel to represent him and counsels here and it has been placed through all of these expense and great insecurity and great inconvenience because of a statute which, on its face to me at least, is strangely vague and strangely lacking insufficient notice to the defendant for him to know what is required of him.

    It’s a new crime which Congress tried to create.

    Nothing like this has ever been before this Court before because the law was only enacted in 1950, I believe, and it’s a case of first impression, I — I make them as far as this Court is concerned.

    Now, I have briefly covered what I feel is relevant under the First Amendment.

    What we read, whom we see, where we go, what we talk about are things which may not be revealed under circumstances such as this.

    Take a situation where a person is asked or is requested to testify either before a grand jury or before a court and refuses for some reasons.

    He may be held in contempt, but most of the time, he is given an opportunity to purge himself of that contempt by saying that he will testify and by so testifying.

    In this situation, we have nothing, no opening left to the defendant at all.

    He says he will not testify.

    There is no possibility of review.

    There’s nobody in the immigration service who has a right to review this situation, merely because some subordinate, sometimes unjustified, I believe, in calling him an under length.

    Some person asks some questions which cannot, by any stretch of the imagination, be regarded as pertinent.

    We are immediately subject to indictment.

    That of itself, I think, ought to be a sufficient consideration for a court in relation to the right of the Attorney General to require a person to testify under those circumstances.

    I’ve already shown in relation to other situations.

    May I call the attention to the fact of testifying before congressional committee?

    There you have the protection by the law itself which says we are required to testify to those things which are pertinent to the matter which the Committee is investigating.

    Here, there is nothing at all, not only is they have nothing to say it’s pertinent, but the breadth given to the Attorney General is absolutely without any scope at all.

    He can go as far as he likes and the only way you can test it is to have yourself indicted.

    One of the questions which I think is of serious import here is the manner of the procedure or the method — matter of procedure.

    The question was raised somewhat in the case of the United States versus Spector.

    There — there was involved, if the Court please, the question of proceeding on an indictment without proof of the tax leading up to the situation except that of an administrative order of the immigration service.

    In that particular case, it was said that if that question had been raised, it might have been considered but it wasn’t raised there.

    And therefore, we are asking to have a right to raise it here and that does constitute a constitutional issue or one of the constitutional issues, what have we here.

    On — an order of deportation entered by an administrative agency without really the protections of the Administrative Procedures Act, even though there is a review by the Board of Immigration Appeals, an order of deportation so entered becomes the basis for a criminal proceeding.

    It’s contrary in my opinion to the constitutional guarantee to have a right to face your witnesses.

    You have a right to cross-examine your witnesses.

    You have a right to subpoena them.

    Pearl M. Hart:

    Under this proposal, a mere order of an administrative agency without more forms the basis of a criminal proceeding.

    Now, I’m aware of the Yakus case and I’m aware of the Cox case and some of the other selective servicemen’s cases which say that I’m an order of a draft court, a criminal indictment can be brought here, all you have to do is to introduce the order of the draft court to justify such a proceeding.

    But, Your Honors, there’s a great distinction again because take, for instance, the Yakus case, that had to do with rates during the war emergency.

    It was a strong opinion written by the majority with a strong dissent as well.

    But in that particular situation, the defendants, are those who were indicted, did not avail themselves of the right of review under the emergency Court of Appeals and that was one of the reasons before the fact that the Court held that under such a situation an indictment could be proceeded upon.

    Now, the selective service cases are so totally different from this sort of a situation because there, every possible protective device by way of review is thrown about a candidate for the draft, so that he has an opportunity at various stages of the proceedings to show why he should not be drafted if he wants to or to have his situation reviewed so that he doesn’t come into a court in this kind of a situation totally liking of and totally naked as to any protection to which he might be entitled to.

    A person is indicted for robbery, for any crime at all and everybody who is a witness or who can be a witness must come in to testify.

    In this sort of a proceeding, all of the facts leading up to the order of deportation of which are gathered together in really a quite informal way are reduced to an order and that order that mere slip of paper constitutes the witnesses to the right of the Government to deport.

    And on the basis of that mere slip of paper, the Government may proceed on this kind of indictment.

    I think that’s definitely contrary to any kind of Anglo-Saxon criminal jurisprudence because it definitely deprives a person of the right to face his accusers.

    And there’s nothing we can do about it.

    That matter has not been disposed of by this Honorable Court and I sincerely hope that it might have consideration because it — it’s permissible in this kind of a situation.

    Other situations will develop where it will also be permissible.

    And on that way by gradual process, those rights which we consider as belonging to us under the constitutional authority are gradually be eliminated.

    I have touched briefly on the right of an individual not to have his right of locomotion interfered with as it is in this kind of a situation under this kind of a parole agreement.

    And I think freedom to which a person is entitled to and an alien has the same rights under the Constitution as a native and that too is elementary and I shouldn’t take time to say it under that kind of a situation, an alien who is resident here now merely because the Attorney General can’t find the place to send him.

    He should not be restricted in any way at all in his convict except to report for deportation when it is necessary or when it becomes possible to deport him.

    To do anything else is to punish him for being an alien because we don’t punish other people who are not aliens in relation to this kind of a situation.

    And there’s authority, I think, for the position I take and the authority that’s cited in the brief.

    Another matter which occurs to me in connection with that situation is whether or not the Attorney General has a right to any of this at all under the Tenth Amendment because out of the Tenth Amendment, a department of the Government or an official of the Government only has those rights which are proper and necessary to carry out whatever other rights he has.

    Now, what right has the Attorney General here other than to deport this individual?

    He has none at all.

    Supervision, if you call it that, only consists, in my humble opinion, of knowing where he is, so he may be deported.

    But on the question of supervision and making him behave in doing the right things after his ordered deported, you have the laws of 48 countries, the 48 states which determined what his conduct should be.

    You have the laws of the Federal Government which determine what his conduct should be.

    It’s not a crime to go to a meeting, unless it’d be a conspiratorial meeting.

    It’s not a time to read or to do any of the other things mentioned here or to go through moving pictures.

    William J. Brennan, Jr.:

    Ms. Hart, why was he deported?

    Pearl M. Hart:

    The — it is not part of the record essentially but he was ordered deported because at one time and not presently, it was said at a hearing, where he was not represented by a counsel, that he had been a member of the Communist Party.

    William J. Brennan, Jr.:

    Was that a crime at that time?

    Pearl M. Hart:

    It was not a crime at that time.

    I don’t know if it’s a crime now, Your Honor.

    Now —

    John M. Harlan:

    Now, before you conclude your argument, well you deal with the Carlson case and how you distinguish that?

    Pearl M. Hart:

    Yes.

    The Carlson case is distinguished by me in only this way that the burden of that case is what rights the Attorney General has in relation to a deportee or prospective deportee for a period of six months subsequent to the order of deportation and not beyond that.

    Now, the Carlson case arose because a person was denied bail by the Court and by the Attorney General during that six-month period.

    The case holds that the Attorney General has not an untrammeled right to hold without that that his discretion is subject to review.

    And that particular feature of the Carlson case is also reviewed by Mr. Justice Clark in the Mezei case where he says that when they hold that the Attorney General may hold for a short period of time for the purpose of affecting deportation but it doesn’t go any further than that.

    Now, the law at the present time is this that if he cannot affect deportation within six months, he’s got to release the deportee.

    And he has to return his bail to him.

    Now, is the man a better man after six months?

    Is he a worst man after six months?

    It’s simply the question of what is — of what the law provides and what is reasonable under the law.

    The Carlson case, I say, relates only to the first six months subsequent to the order of deportation.

    And thereafter, it has no bearing except that it says the Attorney General has certain rights which are reviewable.

    John M. Harlan:

    Well, the language in the Carlson case that the Government relies on, as I understand it, is that in fixing bail during that preview for — or the pre-six month period, they can — the judge can take into account among other things the fact during the national security which would seem to have no relationship to the availability of the man as a deportee.

    And it’s that language that I would suppose that you – you wanted to deal with.

    Pearl M. Hart:

    I think, if Your Honor please, that that is the proximity of the language of the Court in that particular case.

    But I think you have to view it as limited by the six-month period.

    William O. Douglas:

    And it doesn’t have it after the six months?

    Pearl M. Hart:

    I would say he does not have it after the six months because he cannot hold without bail after the six months.

    And to — pardon?

    Harold Burton:

    You would say then you couldn’t supervise to the same extent that include before, although we can’t with the — he can’t go to jail but can he supervise?

    Pearl M. Hart:

    I would say that he can only do those things which are necessary and proper under the law to carry out his right.

    And what is his right, just to deport and nothing else.

    And he has no right to supervise his conduct.

    He has no right to say where he — what meetings he may attend, whether he may make public speeches, whether he may do anything else at all which is a lawful effort on his part, any more than the Attorney General can tell anybody else, a citizen, a national of whether he may do those things.

    William O. Douglas:

    And during the six months, the — the responsibility empowering the Attorney General to supervise availability and security, but after the six month, just availability, is that your position?

    Pearl M. Hart:

    If that is the position I take, if the Court please.

    Pearl M. Hart:

    And I think it’s a reasonable position because he has been denied the right to physically supervise him after the six-month period.

    Certainly, if you’re going to talk about supervision holding in custody is perhaps the most secured kind of security, the most secured kind of supervision.

    But he is denied that right after that.

    Now, what right has he after the six months?

    It has been taken away from him the right to hold in prison.

    But you have not taken away from him the right to deport.

    That is the only right, that’s the naked right, that is left and he has a right to know where the person can be found.

    Harold Burton:

    And the Government interest and the public interest is precisely the same — at the same month, this isn’t after six months, isn’t it?

    Pearl M. Hart:

    I could say in answer to that that the Government’s interest might be the same but the Government’s interest may not be so expressed or they may not be able to exercise.

    In other words, I mean that this, if the Court please, the mere fact that Congress has said that we’re worried about the situation and that we’re going to do something about it doesn’t give Congress the right to do it.

    They may only legislate in relation to those things about which they have been given a right.

    Now, if they haven’t been given the right to legislate here as they seem to indicate, the mere intention that they had or the mere desire that they had to do certain things is not justified by the law no matter how much they write it, no matter how much they declare it in the law.

    That doesn’t give them the right to do it.

    That’s why I say, they only have a right to do that which is necessarily improper to carry out the right to deport.

    John M. Harlan:

    You think that — you — you accept Carlson for the preposition that even though the Attorney General says, “I find there is no security risk in this manner.

    No danger of you not showing up in the deportation, and nevertheless, in the interest of national security, I’m going to lock them up.

    Do you accept Carlson for that?

    Pearl M. Hart:

    If the Court please, I regretfully say I do not accept Carlson.

    I accepted as a lawyer because that’s the law today.

    John M. Harlan:

    Well, if you accept him for that, then you got some trouble in this case I think, but —

    Pearl M. Hart:

    That maybe — nevertheless, if the Court please, this Court has acted according through its lights and we’ll continue to do so.

    And since Carlson, I’d say, only relates to the first six-month period and since I also say that the other things that the Attorney General endeavoring to do, he is not authorized to do, I personally, if you don’t know inconsistency there.For instance, another thing that the Carlson case said was that they had a right to hold without bail.

    Now, it’s my personal notion that under our kind of law, you had no right to hold without bail except under certain specific situations, but the Court disagrees with me and I accept it as an officer of the Court.

    Hugo L. Black:

    Did you say Carlson stands for the proposition that the Attorney General can supervise a person on a ground that he might be a (Inaudible)

    Pearl M. Hart:

    If the Court please, the Carlson case says that they may hold that the Attorney General may hold without bail —

    Hugo L. Black:

    That’s right.

    Pearl M. Hart:

    — for six months.

    Hugo L. Black:

    Where does it follow?

    Pearl M. Hart:

    Our proposition that —

    Hugo L. Black:

    Suppose that is true, does it follow that because he can hold a man further without bail, he refused to accept this case that he could turn him loose later under an order if he say he had to be out and then he could then do anything you please to him and connects him with supervision.

    Hugo L. Black:

    If he is out, the basis of this was, as I understand what you say that he could hold him in jail on the ground that he might be — name this person, he might infiltrate something.

    But here, it’s been held that the statute provides that he is let out.

    Why does Carlson left?

    Why does it follow Carlson that having been decided that he’s going to be let out that he used to be under the — supervision and have to report everyday at two or three or four and that’s all the question there is.

    Where —

    Pearl M. Hart:

    When I say —

    Hugo L. Black:

    — does it follow?

    Pearl M. Hart:

    On the Carlson.

    What I say, Mr. Justice Black, is that I personally cannot accept Carlson as being correct.

    Hugo L. Black:

    Well, suppose you accept it as correct, does it follow that —

    Pearl M. Hart:

    No, it does not.

    Hugo L. Black:

    — it doesn’t have anything to do with this period after the six months —

    Pearl M. Hart:

    Certainly not.

    Hugo L. Black:

    — when the Congress has said, he can be turned down.

    He must be turned down.

    Pearl M. Hart:

    It — it should not be applicable to this kind of a situation.

    That’s where I draw attention to the fact that it’s only applicable during the six-month period and not beyond that.

    Felix Frankfurter:

    Well, let’s judge — this is a good thing that Judge Sullivan like.

    Pearl M. Hart:

    No, that is — what I’m saying is in relation to the Carlson case itself.

    Felix Frankfurter:

    I’m not talking about the Carlson case but that’s the heart of Judge Sullivan added to, namely, since this statute, that’s the (Inaudible) since he cannot be detained after six month but he is still deportable, that warrant is still outstanding, the inquiries must be directed towards securing the enforceability of what is still an outstanding legal order.

    Pearl M. Hart:

    That’s right.

    I think in effect that’s what Judge Sullivan said.

    And therefore, he says, “If questions are to be asked, they have to relate to the man’s availability for deportation.”

    Felix Frankfurter:

    And — and that’s the line you took in answering 70 and not over 20 roughly speaking.

    I don’t mean to stop you or anything, but I mean that’s — you acted on that distinction.

    Is that right?

    Pearl M. Hart:

    I acted not precisely on that.

    I acted on this but I knew that I could take the Fifth as far as he was concerned.

    I didn’t feel that —

    Felix Frankfurter:

    It’s like a medicine now because they have to take the Fifth.

    Pearl M. Hart:

    That’s right.

    That’s how they talk about it, Your Honor.

    Felix Frankfurter:

    I know they talk about that and why we must talk about it that way.

    Pearl M. Hart:

    All right.

    I could have advised him to plead the Fifth Amendment.

    Personally, I doubt if he would have taken my advice because as a man of integrity, he felt that he have to answer some questions.

    He was not required to answer other questions and he didn’t want to indulge in any subterfuge at all.

    And therefore, we drew the line as to that which is pertinent.

    I’ve always called it pertinency, Judge Sullivan has called it relevancy —

    Hugo L. Black:

    Well —

    Pearl M. Hart:

    — and I don’t think they are much the same thing and that’s right.

    And I’ve also taken the further proposition that there are certain issues which the Attorney General had no right to go into and therefore, they were not pertinent to it.

    Now, if Your Honors, I think I have practically exhausted my time and I could use more but I — I don’t want to tire the Court.

    It — it seems to me that there are situations where a court can constructively and properly take the view that a government or rather a legislature does go beyond the powers which it has and it seems to me very — when I ran across Thomas Jefferson’s letter to James Madison in which he refers to the tyranny of legislatures as being the formidable dread at present and it will be for many years.

    I found it just about at the time I was writing this brief and I think it is —

    Felix Frankfurter:

    If he had learned on that subject, didn’t he?

    He thought this Court was the great tyranny.

    Pearl M. Hart:

    Well, I don’t know but I feel this that certainly Judge Sullivan’s opinion, I think, there is great justification in accepting in the situation.

    I think there’s logic there and I think there is reason and I think there is everything else which requires an affirmation there.

    Some of us who are so greatly interested in matters of the constitutional law would be very grateful if the Court found it possible to consider other phases which I have called your attention.

    Thank you so much.

    Earl Warren:

    Mr. Davis.

    Mr. Chief Justice and the Court please.

    One matter of clarification, Ms. Hart spoke of a —

    Earl Warren:

    Yes.

    — supervision agreement.

    I think what she has in mind is that at the time a supervisory order is issued, it is presented to the alien for him to acknowledge that he has read and understood it and that he understands what failure to comply with the terms of the order will — will result here.

    As a matter of fact on page 31 of the record at the end of this supervisory order, there is the place for the signature of the alien to show that he has received and served with the copy of this supervisory order.

    In this case, the alien refused to sign it and so there was a note that it was read to him instead of his having agreed that he had read it.

    William J. Brennan, Jr.:

    Mr. Davis, the most two important, I’m just curious, do you have any idea why they dropped out that question on the Chicago Tribune?

    Why they dropped it out of the indictment?

    William J. Brennan, Jr.:

    Yes.

    It seems to be the argument —

    I think that —

    William J. Brennan, Jr.:

    (Voice Overlap) —

    — it may well confront that it wasn’t immaterial to the — that the question wasn’t immaterial.

    I don’t know.

    Felix Frankfurter:

    First Amendment probably.

    Pardon?

    Felix Frankfurter:

    First Amendment probably.

    It may have been so.

    Felix Frankfurter:

    Our deference to Chicago Tribune, its great sponsorship of that Amendment.

    I — I have no information why they dropped it.

    I — I’m glad they did drop it.

    I — I wouldn’t like it.

    William J. Brennan, Jr.:

    I should think the vast of the United States Attorney who prosecuted this indictment if he ever has to the trial, I’d be glad they drop it too.

    I think the basic question on constitutionality on this question is whether or not this type of supervision is considered by the Court to be a reasonable — a reasonable device to meet the situation which existed.

    There’s no question that there was a trouble in situation with 4000 aliens who had been — who would had been ordered deported and couldn’t be deported and we’re under no restrictions or whatsoever as to that conduct.

    Felix Frankfurter:

    Is that the total under the six months rule as dictated?

    Oh, no, that was the total at the time of the enactment.

    It’s about the same day though.

    This figure of aliens who are subject to supervision today is 4356.

    Felix Frankfurter:

    And — and these are all under the six months rule, is that it?

    That was, of all — the supervisory orders cannot be issued.

    That’s right.

    That’s — this isn’t under any bond.

    This is under the —

    Felix Frankfurter:

    No, I understand it.

    — six-month rule.

    Felix Frankfurter:

    And on the — what I meant the six months rule because they belong to countries that we find it difficult to get them.

    They haven’t been — for one reason or another, they had not been able to deport them.

    Felix Frankfurter:

    Including state, but isn’t the chief reasoned that they belong to?

    I think that is right.

    Felix Frankfurter:

    And then the stateless ones, they are good many or some stateless ones —

    That is right.

    Felix Frankfurter:

    — aren’t they?

    There are many — there are many problems out in this case.

    It’s find from certain that we would kind of to find that the — the immigration service can’t find a place to deport him to because they’re just delays.

    They get — no, he has indicated, the first place is the place that the alien indicates and he has indicated Yugoslavia.

    And all that has happened is on the record because they can’t get any answer from Yugoslavia whether they have taken him or not.

    When they get an answer, by then the statute provides for alternative places to deport him but this is — this is the cause of the delay.

    William J. Brennan, Jr.:

    Well, didn’t — didn’t he testify to that he came from the old Austro-Hungarian Empire and where he came from that wasn’t clear.

    Yugoslavia recognized that he was now a Yugoslavian.

    That is right.

    He has, however, the right to choose the first place that they deport an alien to —

    William J. Brennan, Jr.:

    Yes.

    — is the place that he chooses.

    William J. Brennan, Jr.:

    Well, I’m just wondering if this has sustained what was done here and they — no one takes them, I take that he is subject to this kind of supervision for the rest of his life, isn’t it?

    No because there are alternative places to deport him.

    William J. Brennan, Jr.:

    And suppose no one takes him.

    Well, if no one takes him, why didn’t he —

    William J. Brennan, Jr.:

    He goes through this the rest of his life.

    That is — that is so if it was impossible to deport him to any place.

    Felix Frankfurter:

    There are these — these none takings, take Yugoslavia, am I right that — I don’t know how many but I suspect there could be instances, have nothing to do either in determining whether he was or wasn’t a part of what it is now Yugoslavia, what it is now Hungary.

    But it also is part of the general foothold of international relations having nothing to do with the individual, but being — for reasons of the foreign office notions of different countries saying, “We just do nothing about this but these are that reasons.”

    Isn’t that a considerable fashion?

    That is very true but the present — and the present Immigration Act, the — the Immigration Nationality Act of 1952 put steps to remedy to this situation to give the Attorney General authority to broaden the countries that he could — that he could use as a place to — of haven for this people so that we can hope that the administration under the new Act will cut down on — on the (Voice Overlap) —

    Felix Frankfurter:

    (Voice Overlap) but if — if an alien — these are his countries of first choice to get his first choice.

    Then, the Government tries to get him and admitted there and that may rely under this that the foreign office in Belgrade for reason of having nothing to do with this.

    Yes.

    But in — in reasonable time, I’m sure the Government can take that as a denial and go on to the next — for the next country.

    Hugo L. Black:

    Mr. Davis, what support does the statute get from the fact that there’s been a deportation offer?

    Why is that necessary?

    I have gathered from your argument that it’s the danger of security division to give authority and that’s based on the fact that he used to be incompetent.

    Why do you need the deportation orders for the statute of that kind?

    Well, I am not certain that a deportation order would be essential to asking questions.

    We all — we have an alien registration law which — which then authorizes the service to ask many questions of all aliens here whether they are deported or not.

    I — my argument, however, was that the supervisory — the supervisory order on these questions received content from the fact that there has been an order of deportation and the basis for that order.

    Hugo L. Black:

    If aliens who have — they have been ordered deported and be subject to the supervision of government agents, why cannot other aliens?

    At the present time, the alien registration law provides for registration of all aliens in this country.

    It provides the annual report by all aliens in this country.

    Hugo L. Black:

    Does it provide for supervision, the power of the Attorney General —

    Following that question, no.

    Hugo L. Black:

    (Voice Overlap) asking questions —

    No, except as the annual report form or whatever the annual report form may be.

    Hugo L. Black:

    I can’t myself get to see that is — but maybe — maybe others can whether there’s any much constitutional support added to the statute by —

    Well, no —

    Hugo L. Black:

    — neither because of the deportation —

    No, my argument —

    Hugo L. Black:

    (Voice Overlap) —

    — my argument was that the deportation order gave reasonable content to the supervisory order that since this is supplementary to the deportation that there are some reasonable restrictions on the Attorney General as to the nature of this —

    Hugo L. Black:

    Yes, but I think that they brought an offer to this supported by the statute itself.

    And my basis for saying that is that in Carlson against Landon, then the — the thought of the — the nature of the deportation proceeding had a relation to the Attorney General’s authority to — to confine the aliens.

    Felix Frankfurter:

    Well, it doesn’t follow that we have to decide now what — how a supervision one have over aliens which the policy of this country allows whom the policy of his country allows to remain here, I suppose we still have what, two or three million aliens?

    Well, yes.

    Felix Frankfurter:

    More than that?

    I wasn’t suggesting this Court to pass upon the constitutionality of the Alien Registration Act.

    Felix Frankfurter:

    Aren’t they still about being in the Navy?

    I — I don’t know the numbers.

    Felix Frankfurter:

    And again, these people who are ready to be deported and legislation is completely related to that group of people.

    The — the special legislation with respect to aliens during the war — under the war power, there are certain circumstances where different regulations seemed to be appropriate.

    Felix Frankfurter:

    Always not though.