Tom C. Clark

“ Orders promulgated by the Passport Office periodically have required denial of passports to 'political adventurers' and 'revolutionary radicals,' the latter phrase being defined to include 'those who wish to go abroad to take part in the political or military affairs of foreign countries in ways which would be contrary to the policy or inimical to the welfare of the United States.' See, shortly after the end of World War I, Passport Office Instructions of May 4, 1921 ”

“ It is asserted that the precedents of 'war' have no relevance to 'peace.' But the critical consideration is defense against an external enemy; and communication abroad between our citizens and the enemy cannot by its nature be controlled by the usual criminal process. The facts in a particular case as to the citizen's intention are inevitably speculative: all is to be done after the bird has flown. ”

“ During was and other periods of national emergency, however, the importance of the Secretary's passport power was tremendously magnified by a succession of 'travel-control statutes' making possession of a passport a legal necessity to leaving or entering this country. The first of these was enacted in 1815 just prior to the end of the War of 1812, when it was made illegal for any citizen to 'cross the frontier' into enemy territory without a passport. ”

“ The 1918 statute, directly antecedent to presently controlling legislation, provided that in time of war and upon public proclamation by the President that the public safety required additional travel restrictions, no citizen could depart from or enter into the country without a passport. ”

“ In 1869 Attorney General Hoar advised the Secretary of State that good reason existed for the passport power being discretionary in nature, for it might sometimes be 'most inexpedient for the public interests for this country to grant a passport to a citizen of the United States.' 23 Op.Atty.Gen. ”

“ It is obviously impracticable to appeal to Congress for further legislation in each new emergency. Swift Executive action is the only effective counterstroke.
'The committee was informed by representatives of the executive departments that the need for prompt legislation of the character suggested is most pressing. There have recently been numerous suspicious departures for Cuba which it was impossible to prevent. Other individual cases of entry and departure at various points have excited the greatest anxiety. ”

“ The known facts in his case are not sufficient to warrant the institution of a criminal prosecution, and in any event the difficulty of securing legal evidence from the place of his activities in Europe may easily be imagined.
'It is essential to meet the situation that the Executive should have wide discretion and wide authority of action. No one can foresee the different means which may be adopted by hostile nations to secure military information or spread propaganda and discontent. ”

“ Shortly thereafter, President Wilson made the required proclamation of public necessity, and provided that no citizen should be granted a passport unless it affirmatively appeared that his 'departure or entry is not prejudicial to the interests of the United States.' Proc. No. 1473, 40 Stat. 1829.
The legislative history of the 1918 Act sharply indicates that Congress meant the Secretary to deny passports to those whose travel abroad would be contrary to our national security. ”

“ By its terms a war statute, the 1918 Act expired in March 1921, see 41 Stat. 1359, after which no more travel controls existed until 1941. In that year, Congress amended the 1918 Act so as to provide the same controls during the national emergency proclaimed by the President on May 27, 1941, should the President find and publicly proclaim that the interest of the United States required that such restrictions be reimposed. ”

“ Other evidence of peacetime denials for security reasons is more scattered, but nevertheless existent. Much of it centers around opposition to the Internal Security Act of 1950, for one of the stated aims of that legislation was denial of passports to Communists. The minority report of the Senate Committee on the Judiciary objected, 'But this can be done under the existing discretionary powers of the Secretary of State * * * as evidenced by the recent denial or cancellation of a passport to Paul Robeson.' S.Rep.No. ”