The opinion
FAHY, Circuit Judge
(dissenting).
In the developing law growing out of litigation due to the fact that denial of a passport has the effeet at this time of depriving a person of a right to travel he otherwise would have, Shachtman v. Dulles, 96 U.S.App.D.C. 287 , 225 F.2d 938 , I think this case requires still further consideration by the Secretary. In dissenting in Briehl v. Dulles, 101 U.S.App.D.C. 275 , 248 F.2d 597 , I gave my reasons for the view that the Secretary has power to deny a passport though the applicant has the basic qualification of being a person who owes allegiance to the United States. 1 But I could find no greater power, either inherent in the Executive or delegated by the Congress, than to deny the passport when necessary “to prevent the reasonable likelihood of harm to our national defense or to the conduct of our foreign affairs.” And in all cases of denial procedural due process is required. Unless the authority is held within these bounds it seems to me the alternative is to say, as Judge Bazelon has said in his dissent in Briehl, that regulations embodying such substantive criteria as have been before us in recent passport cases lack all validity under present legislation.
I am convinced that the Congress has attempted foreign-travel control of individuals, and has not merely contemplated quarantining, as it were, certain areas. For example, 8 U.S.C.A. § 1185 (b), 2 restricts the right of any citizen to “enter” as well as to “depart from * * the United States” when “the United States is at war or during the existence of any national emergency proclaimed by the President.” This attempted control should not be judicially nullified if it can be reasonably sustained consistently with the Constitution. As I said in my Briehl dissent, I think it reasonable to construe the Congressional exertion of control, together with the Executive authority in the area of foreign affairs, to extend to such control as is exercised, consistently with procedural due process, within the criteria stated in my Briehl dissent, but no further under existing law.
In the present case the findings of the Secretary and the Regulations applied by him were not framed within those criteria. I realize the weight of Judge Prettyman’s opinion that the Secretary’s action under section 51.135(c) of the Regulations, and his reference to “the national interest,” can be construed to bring the denial within the criteria to which I have referred, but it seems to me we should not be left thus to interpret the decisional basis when the Secretary has not himself expressed it in terms of the authority he possesses. A finding that the denial is in the “national interest” is too broad when the particular national interest is not broken down to come within the governing criteria. The finding that appellant’s travel would lead to activities knowingly engaged in to advance the Communist movement is subsidiary to the basic finding framed in terms of the “national interest.” In other words, in denying this passport the issuing authority has not focused upon the question whether the grant would be likely to cause harm to national defense or to the conduct of foreign *78 affairs. This is no doubt due to the fact that under the Regulations applied to this case the Secretary has not felt limited to the criteria which I think should govern his action.
While the court should not order the passport to be issued, I think the basis for the denial now before us is not within the terms of the authority available under existing law. While my position, if it prevailed, would entail further delay this seems to me unavoidable in the process of working out legal solutions to the problems involved.
. I assumed that such an applicant also complied with the Regulations having to do with identity and other more or less formal or administrative matters.
. 66 Stat. 190 (1952).