Reply Brief for Appellants — Aptheker v. Secretary of State

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TES CLERK

"IN THE

aaa Court of the United State

October bc 1963 : 4G

: No. 461 C be

HERBERT APTHEKER ant ELIZABETH

GURLEY FLYNN,.

| : Appellants,

V. ” \

THE SECRETARY OF STATE.

“On Appeal From the United States District Court

for the District of Columbia

REPLY BRIEF FOR APPELLANTS: |

Joun J. Ast,’ .:

320 Broadway,

New York 7,N. Y.,

JoserpH Forer, .

711 14th Street, N. Wi, .

Washington 5, D. C., a

Attorneys for Appellants.

Ottice-Supreme Court, U.S. | 14

Amvennot™

Kent x, Dulles, 357-1 1 eo Se

TABLE OF CONTENTS \

| | +A PAGE

I. Substantive Due Process”. peeas errr tba i... 1

‘IL. The First Amendment wears A eR ED a

Citations

('ASES: vet : : Spe

Adler vy. Board of Education, 342 U.S. 485 ....... 5, 6, 7.

American Communications Association v. Douds

: : . «

<a eM I SVG a eee once oo oS al 10,

In re \nastaplo, 366 U.S: 82 .......... oveeeenes 5 Time

Barskt v. Board of Regents, S47. fp & >. SPye apenas: 6

Beilan v. Board of Public Kdueation, 357 U.S.

oe Gare Pe DOLE. Septet PEL! Bt AE ne: ee EN ER 6, 7, 8

Brieh! y, Ae 248 F. 2d MR Ol. vec c sc ca Se

Cpascav) fandon, 342 U.S S. 524 Dee ain wa wees us 9

Communist Party v. S.A.¢ ‘B. 367 U.S. 1... .3, 10,16, 17

Dennis. United States, 341°U. 8. 494 00000000... 16

Fleming’ v. Nestor, 363 U. 8.603 ...,......66.. 9

Galvan-v. Press, 047 U. 8; 520 ooo icc cee cees )

Garner v. Beard of P whlie Works, 341 U_S. 716 i i,

Gerende v. Board of Supervisors, 341 U’S.56 .. 7

Gold v. U nited States, 237 F. 2d 764; rey ‘dd on other

grids., 352: Di MOUNDS sina Ske a's xs exten rere rere 19

Hurisiades v. Shaughnessy, 342 U.S. 580 ........ 9.

Hawker v. New York, 170 \. S. 189 Be a ee ae 10

o, 4

Konigsberg v. State Bar: 366.U, S. ers Tees ©

Lerner v. C asey, Oar. Wes Ds ev cevecss eee a SH

Love}. Griffin, : - Ips S| BR cone 1d

Morrisset ev, United States, 342 U, 10

: 41

We (\,

\S. eee aL dtten

eee | POP Y peal ra

I gem VS 3

FY 2

ii ;

a Pe PAGE

Cases (Cont'd): ten

Oyama v. Calfornia, 302 US. “O58 3... i ee ie 7 9

Seales v. United States, 367 U.S. 203 oe bes 8b

Schieider v. Irvington, 808 U. S147 00.0... wo...» 15,17

Shevlin-Cerpenter Co_v. Mingesota, 218 U.S.57 10

sts : ‘ ° :

’ Takahashi v. Fish agra 994 U.8.410.....° 9

Thomas v. Collins, 323 U.S. 516 .......... Wasa aca - HW

* Travis v. United States, 269 F. OR ie tek cae

United States vs. Balint, 258 U.S. 250 0.2.0.2... 10

~ United States v. Witkovich, 353.U. Ss. IM eee SOS

Wieman v. Up eran, SEE S88 ee eamree a, 6 |

t ay }

Sisccie boy a

_f o ‘ae =

Communist Control Net o00.05..... ee es Geet wae B

Battle Ast Sy sok a rs ete sive Ha see On eee x

PERT BARTUEY BOE Goo les 4 cae Aci Ss Ebvleteees AE Dap 14, 19

MISCELLANEOUS: Ce ;

1 RECT RE EG igo oir cat ee, ey

Fréedom to Travel, Report of Speeial. Committee

tu Study Passport Procedures of the oe

of the Bar of the City of New York (1958)... eke 12

Macauiay, Historic “al Essays, London, 1992 . 2... . 20

Parker. The Right to Go Abroad, 40 Va. L.. Rev, 853 11

Report of the Commission on Governnrent Security

CORR 2 ohio tab taccdeas oe ToRr Oe ae 2,3, 13

Safeguarding the State Through Passport Control,

12 State Dept. Bull. 1066 (145) 22000. 3, f2

€)

‘IN: THE °

| Supreme Court of the Huited States

October Term, 1963" a

pay iota ; No. 461

2 3 4.

Hersert AprHeker and Exuiasetu Guriey Fiyxy,

Appellants. °

Tur Sreeretary oF Sate.

o-: >

On Appeai From the United States District Court

for the District of Columbia

ray

REPLY BRIEF FOR APPELLANTS

I. Substantive Due. Process.

A. Our principal brief (pp. 22-26) showed that: hoth

Congress and the executive have expressed their judgment

- that a conclusive presumption, of the sort embodied in

section 6, that ev ery member of the Communist Party “is

ipso facto a security risk is unnecessary, and that the

national security can be adequately protected by making

Party membership simply one factor to be considered in

passing on the qualifications of the individual. The govern-.

ment states «Br. 42) that ‘‘the choice between alternative

“policies is for the Congress.’’ But it is certainly persuasive

of the unreasonableness of legislation bristling with due

process difficulties that the legislative and exécutive

branches have evidenced approval of an alternative ap-

- \

» .

_ proach that avoids the most vulnerable feature of, _the

legislation in question. s- oe

Even the Report of the Commission on Government

Security (1957), on which the government relies so heavily,

found that the inflexibility of section 6 is detrimental to

the national interest. The Report stated (p. 478) :

- “It is understandable that the Seeretary of State,

in his role as director of the nation’s foreign policy,

may consider it advisable to grant a passport under

certain conditions.” For example, the Daily Worker's

correspondent was given a passport-to attend the

‘Geneva ‘summit conference’ to foresall Communist

propaganda that the established Américan, press

wquld present only the capitalist side of thé meeting.

‘‘There is also the possibility, by no means re-.

. mow, that the Government’s intelligence agencies,

for the furtherance of their objectives, may want

: the Seeretary of State to grant a passport to a.

known Communist.

‘* AS the Internal Security Act now stands, if the

appellant is within the scope of thie defined member-

ship classes, it would be vulawful for the Secretary

-of State to issue or renew such a passport. We think

this ‘is uliduly restrictive.’’

‘Accordingly, the Report. (p. 475) recommended an amend- :

ment to section 6 giving the Secretary discretion. to issue

paseports. to mpemivers of preseribed. organizations.”

: For First Amendment purposes, the existe nce'ot such an ade- .

“quate alternative is decisive of the unconstitution: ity of section 6.

Infra, P, WZ,

“* The governnient argues ¢ Br, 487 that. the Secretary alres ady -has

power to grant eXemptions fron: section 6 by aythorizing an indi-

vidual $6 travel without a passport pursuant to 22 C..F: R. 53.3(h).

But this authorization will be unavailing unless, the appropriate official.

of the country of “destination has ‘and chooses, 3 exercis® power to

- waite fs requirement naaking a passpoft a condition for entry.

+ 3 } 4 we

Aenean,

“ vi

The government urges (Br. 14-24) that the history of

the passport laws and their administration supports its con-

tention that section 6 is a reasonable regulation of foreign -

travel. An examination of this history in Kent v. Dulles,

357 U.S. 116;-421-2 M5, 127-28. led the Court to conclude that,

at least as late as 1926, the administrative practice ‘with

respect to the denial of passports had ‘‘jelled’’ around

: only two categorics of applleants—those lacking citizen-

ship or, allegiance ‘and those-engaged in erime. As the

, . Court-stated (at 128): =

~~ tm

‘One ean-find-in the pale of thir State Depart-

meni rulings of subordinates covering a-wider range

of activities than the two indicated. But as respee¢ts

« €ommunists these are seattered rulings and not ¢on-

sistently of one pattern. ¥ : ;

As the paioeteee ‘s brief shows, this lack of ‘consist-

-eney.continued after 1926. Thus, commencing in 1948, the

Siege. State Department adopted the practice of granting or deny-

- ing passports to individual Communists on the basis of its

determination of the purpose of the applicant’ s proposed

travel (Br. 24). In 1950, the Department instituted the

practice of denying passports; to all Communists, regard-

less of the purpose of their travel or their personal fitness

: and reliability (ibid. ). This change was not occasioned by

uny inadequacy of the 1948 practice as a security measure

but out of deference to what was thought to be the. policy

of Congress expressed in section 6. Kent v. DulleSsupra,

at 140 {dissenting opinion). As the Report of the Commiis-

sion on resis ease Security ( (1957) stated ia 470) :°

* The government states (Br. 23. 34) that’ passport. were denied

to all Communists from the berinning-of World. War Tf_until 1948,

No authority is cited for this statement, which appears to be ing réct.

vn authoritative review of passport controls during World War I]

- does not mention any Such gractice. Safeguarding the State, Through

Passport Control, 12 Staté Dept. Bull. 1066 (1945). And as noted

*. | in.our pringipal brief (p. 32, n. 35), the-Koard found in the Party

case that Miss Flynn, a well-known Communist in, 1945, travelled

- to Europe in that yearg See also R. 24.

o TK o <*> = j

. . €

‘In retrospect, the Internal: Security Act of 1950

“can be viewed as eerystallizing foree that terminated

_fluetuations in State Department passport policies

“and procedures: prevalerit for years.

Obviously, “an administrative practice that was patterned :

‘after and adopted -bacause of section 6 (and which the Court

has held to be unauthorized) annot support the reasonabic

tess of the legislation which i inspire “dit.

The government also argues (Br. 36) that section 6 ‘ii

support in the practice of denving passports during the

“Civil War andWorld War |. The Court answered a sintlar

argument in Kent by stating (at T2s): **We are not com

pelled to equate"this present problem of statutory construc

tion with problems that may arise-under the war pawer."’

No more mag the duo: process problem which this case pre

sents be regolved by reference to the war power,

Bb. The government argues (Br. 48-49) that seetion, 6—

satisfies due process because the classptication of all Cony

“MULAN as security risks is a-reasonable. one, cat least for

the purpose of disqualifyi ing them for foreign travel, The

government states (Br. 40) that “Congress aetéd rea.

sonably iti treqting all members of Communist-action or

ganizations alike.’’ a

As our principal briéf showed (pp. 16-19), a dimquatit

‘ation based solely on membership in the Conumunist P arty

is unreasonable because the conclusive presumption it es-

tablishes.is not credible, is contrary-to experience, and is

UnneCeemeAy to meet the alleged evil: As we.further showed

(Br. 19.22), the Court has applied to. Communists the prin

ciple that t individuals may not be classified as security risk-

solely on the basis of their’ organizational membership.

Starting from the fundamental-proposition that ‘*guilt hy

association’’ violates due process, the cases hold that Com-

munist Party membership standing alone cannot support

the imposition of criminal liability or civil disabilities: The

membership must be accompanied by certain personal fac-

’

? tee perme

i .

tors, including culpable knowledge, and the member must

tag oe permitted to .rebut any presumption of disqualification

; arising from his knowing membership.

Phe government states (Br. 51). that “this Court has

upheld numerous federal and statéatatutes, whickzhad the

effect of limiting the liberty of members of the Communist

Party as a class without differentiating among them.’’ This

assertion is based on a review, of the authorities which is

factitious ‘when it is not ‘merely sea toning

ae principay briet showed, ( (pp. 19-22) that ‘Scaies_y:

United States, 367 U, S. 203; ddle rg. Bodrd of Education,

.. $42.0. S. 485; and Wiemair v. Updearaff, 344 U.S. 153,

cee stand for the propesition that a member of the-C ommunist

Party may. not be denied liberty or even be disqualified

for public employment solely because of his membership.

The gov -ermment argues (Br. 03) that the limiting construc.

tion which Scales gave the. membe ‘rship clause 6f the S Nth

‘Act was constitutionally necessary only beeanse, thi

statute, unlike section 6, directly prohibits membershijs ib

/ ® nroseribed organizations. But. the principle which Scaled

. | reeognized was applied by Adler and Wienan to eivil

OS statutes which did not impesie® ste a direst prohibition.

The “goyerniie at repre senis (By 524) that Wiremai

_paetate: t only fo past membership at a titne when the me raise

Was without knowlege or notice that the organization wus

_ofticialiv condemned. “This is plainly . untrue.) “The ‘oath

Anvolyed in Wiema + contained diserete chithes, one dis.

claiming present. the other past, ine mbership in any or

ranizatien which was on the Attorney General's list at the

tine eo statiite prescribing the oath. was passed. *See

Bs U.S. at- 184-860 Yet the court made no distinetion be.

a “tween the two clauses, but Gnvalidated both because of

se “their failure to require knowledge of the. ee s

bad charaeter, Wiemun. therefore, squarely held that .

person may not be disqualified for public employment

_. merely because of present membership ivf an organization.

. : ‘ -

: 0

‘which has been officially condemned.” Wie man has always

been so inte rpreted. See, e.g., Lerner v. ¢ asy ry, aod U.S.

468, 474,477; Beilan v. Board of Edycation, 397 U.S. 3994,

414-15 (dissenting: opinion) ; Barsky v. Board of Re gents,

: 347 U. S..442, 47 3 (dissenting opinion).

Wieman also contradicts the governmént’s thesis (Br.

47,53 “O4) that the scienter requirement is satisfied because

appellants know that ‘the Communist Party was found to

be a Communist-aetion organization. As the Wireman opin-

ion plainly shows, the requisite scienter is knowledge that -

° . ° . ‘ * ” Jus

the organization is bad, not*merely that it has been ofh-

cially found to be bad.” Due process does not permit an

_- iftdividual to be condemned ame because hejdisagrees

with a government verdict.‘ -

The government tsenaidaes that the statute upheld jn.

Adler, unlike section 6, created only a prima favie presump-

tion of disqualifieation because of knowing membership in

a proscribed organization.’ The government diyserts” (Br.

54) that Adler did not hold that the statutory opportunity

to rebut. the. presumption was constitutionally required,

In fact, howeve ‘ry, Adlvr answered the due process attack

on the s@iuie by stating (at 496, emphasis. supplied) :

ae “Where, as here, the relatian between the, f fact

found and the presumption is clear and direet and

is not cone lusir e, the requirements: of glue process are.

satisfied.’ ee

And see our srinicipal brief, p. 21. “The government also

seems to distinguish Ad/er on the theory that disqualifica-

4 Nor can guilty. knowledge be inferred from an: individ tal’s°

. 8 P o.« % 7) ? ’ , \ 4 a . ~

leadership position in the organization... Nowak v. United States, 336

5 ae 3 00, 066, It only on that account, there is no merit to the

government's inyitation to the Court (Br, 48-49) to hold section 6

vahid as applied to appellants, while maree open the validity of Its

nepicaticn to “lesser members.” ,

5 In this respect the statute was similar’ nh the f chore! gov ernment.

employees’ security program. | See our princh val Uxief ~s

——

ber ‘ship.

‘tion for. foreign travel ‘tis a considerably milder disabil-

ity’? than a disqualification for public employment (Br.

54). For: due process purposes, however, the interest of -

an individual in ‘holding: public employment is not eptitled

to the protection which must be accorded. his constitutional’

right fo travel. i Bee our pr inecipal briet, pp ;:22, n. 18; 47.

At egos point, the government misrepresents’ Adler

hy stating (B® 39) that the case ‘‘determined that a New

York statute dvhich makes aay tneinber of an organization

advocating the overthrow of the,government by force and

violence ineligible, for-employment it the publie schodls,

Was constitutional.*’ This statement-omits the very fea- «

~. tures of the statute which caused the Court to sustain ft,

_namely, those requiring scienter and affording the accused

teacher ‘an opporturity te introduce evidence of fitness to

overeome the presumption arising from his knowing mem-_

The government (Br. 39). cites Suainle v. Byard | of

Supervisors, 341 U.S, 56; Garney v. Board of Public Works,

by U. S. 716; Beilan 2 Board of Public Education, 357

U. S. 399; Lerner v. Casey, 357 U.S. 468; Konigsberg v.

State Bur, 366 U.S. 36; and In-re Anastaplo, 366 U. S. 82,

for the proposition that the Court has ‘‘upheld ‘State laws

imposing far more sexete restrictions upon members of the

Communist Party’? than those contained in section. 6.

Nonesof these decisions gives the-skghtest support to: this

description. tasty “ae ;

Gerende is cited. (Br. 39) as upholding a Maryland re-

quirement that every candidate. for public. office swear

‘that he is not engaged in an attempt té overthrow the:

- government by violence. To “the contrary, this portion of

the oath, which concerned the candidate’s personal inno-

cence of crime, was not attacked by Gerende. And, of-

course, this part of the oath has nothing to do.with the

disqualification of section 6, which is imposed without

.regard to personal innocence. ..The* portion of the oath

~ . . - , Ree

which wes at issue in Gerende diselaimed membership in an

organization engaged in an attempt at-violent overthrow.

‘The Court sustained this part of the oath only because

Maryland: construed it to relate to membership with

-knowledge of the organization’s criminal activity. The

‘sanction of section 6, in contrast, is imposed on persons

who ‘havé -no knowledge that the Communist: Party. is in

fact. a Commiunist-action organization as the Board found

it to be, let alone that it is, or-eyen has been found to be,

engaged in criminal activity.

Garner involved two separate and distinct question» |

Oné concerned the validity of an oath requiring public "

employees to diselaim ménbership in organizations which

‘advocate violent overthrow. As in ‘Gerende; supra, the

Court sustained the oath (at 7 23-24) by construing it to

apply only to membership with knowledge that: the or-

ganization im: fact engages. in the proscribed advocacy.

The.government misrepresents this portion of the decision

(Br. 39) by omitting the knowledge requirement, that tlic

Court read into the oath. The second question decided by

Garner was that nembership of a person in tlie Communist

Party is relevant to his qualifications for public employ-

ment, and ‘hence that-he, may constitutionally be required

to disclose his member ship. The Court stated, however (at.

720),.‘¢Not before us is the question whether the city may °

determine that ‘an employee’s. disclosure of such political

affiliation justifies his. discharge."’ . Accordingly, nothings

in Garner supports,the government’s s contention that a fper 1%

son may be disqualified: from public employment heeausy

‘of his nientbership i in the Communist Party.

Beilan Vv. Board of Public Education, Lerner v. Casts 4,

Konigsberg vy. State Bar, and In re Anastaplo. all supra”

simply réiterate the ruling of Garner that public employees

- and pplicants ‘for admission to the bar may be required | j

to disclose membership in the Commuinst Party..: Not at

issue was whether such membership, standing alone, was

Te ee Lerner v. Casey states (at 474-75) : :

“Fin the claim tliat the statute offends due

process because dismissal of an employee may be.

based on mere present membership in the Communist

‘Party, without regard to the cha¥acter of such mem-

- bership, cf. Wieman v. Updegraff, 344 U. S. 183,

Fe must also fail. Apart from the fact that the statute

simply makes membership in an organization found - -

to be subversive one of the elements which may enter

_into the ultimate determination as to ‘doubtful trust:

“and -reliability,’ appellant * * * was not discharged

‘ "on grounds that he was a party member.’ :

The government’s reliance (Br. 38-39) on Harisiades

ghee wari 342. U. S. 580; Galvan v. Press, 347 U,’S.

22, and Carlson v. Landon, 342 U. S. 524, is likewise mis-

placed: These decisions, themselves dubious, rested on

“the broad power of Congress over the admission and de-

portation of aliens, uninhibited by requirements of sul,

stantive due process. See Harisiades* at 597 (concurring .

-opjnion) ; Galvan at 530-32. Moreover, Carlson, which sus-

tained preventive detention of alien Communists-awaiting

deportation, has been undermined by United States v. Wit-

kovieh, 353 U.S. 194, discussed in our principal brief, Pp. ,

- 28- 29.' .

* The goveftthent also relies (Br. 52) on decisions sustaining

sate_lexilaign tat disqualified - ‘aliens from certain occupations or

Nesehip of land or the enjoyment of its fruits. To the

extent that these. decisions may ge continuing validity (see, Taku-

hasht v. Fish Commission, 334 U.S. 410, and Oyama v. California, :

332 VU. S. 633, 646,.649, 672), they | rest on such considerations as the

hicsbeicalls limited nature of the rights of aliens, the deference ac-

corded the judgment of a state legislature i in a matter of iocal concern,

or the lack of importance att hed to'the: -interest affected. Similarly,

the result in Flemming v- Nestor, 363 U. S. 603, 611-12 (Gov. Br

39) turned on petitioner's status as a deported alien and on what the

Court considered the ephemeral nature of his ‘1 intere3t in “a non-

contractual benefit under a public welfare bs aes-maaan of

‘ ‘

» 3 j

“a @

ie a

10,

U nited. States vy, Balint, 258° Uz S. 250 and ci

penter "Cox ve Minnesota, 3. 57, also relied om-by the

government -{Br. 47), are not. remotely relevant. These

decisions stand for the proposition tHat the legislature need.

not require a mens rea for the punishment of harmful con-

‘ duet falling within, the category of ‘‘public welfare of-

fenses.’* See Morrissette v. United States, 842 U. S. 246,

252-56. ‘Section 6, however, deprives persons. of their lib-

erty without proof that\they. have engaged in harmful

conduct, but upon the mere suspicion that they may do so.

. The issue which section .6 presents is whether; at a miini-

a mum; this» suspicion | must not. have a more substantial

of guilty knowledge and intent.

Hawker v. New ¥ orks 170 U. S. 189, cited by the govern-

ment. (Br. 52), is likewi ise wide of the mark, since the dis-"S,

qualification ‘it sustained gvas for personal misconduct evi--

deneed by. a felony eahviction, not for anticipated future

misconduct. presumed from nothing ‘but association. .

| The.guv yeynment ~ only rem4ining authority is American

i &: vmmueric ations Association v. Douds, 339 U. S$. 382, to

whieh its brief refers repeatedly. but: without attempting to

answer the demonstration of yur principal brief (pp. —

'. that ‘the case, UXcorree y decided, is inapplicable:

C 1 Ul tle stories told’ by Communist defectors in

” their’ books; and’ their outpourings before Congressioual |

—Comphittees are fully credited, they establish, in the words °

of the “gave rnment's sunimary (Br. 56-57), that, ‘‘travel, by .

Communist, Party metabers provides. opportunity for com-

municati@n of information: hetween components of the world

. Conjmunist movement, ‘for. training, for espionage and .

as propaganda °activities; and’ for transmittal of American

passports which may. be. used by Soviet agents.’’. °

» It should first: be vohounven that ‘for thie- past | 28 years

‘America: Communists have made no yse of the opportu-

nitiés thus afforded them. As the Board fouttd in the Party

‘ : & ;

case, American Comntaaniits — not gone abroad for- any

of these purposes | since 1936. See our principal brief, -p. Sey

32. Nothing in. the poverninen s review of what it calls — jah

- thie evidence’*’ (Brs 25-35 d). is s at variance with t the. ‘Board's ator ae

findings. soe pom . 5 ae es - = a

I ; . ‘Mereover, as “the gov ernment. recognizes (Br. 46), t the ; .

| foreign training and ‘‘ propaganda activities” of Américan_ :

Communists,’ and their interchange of— information with

foreign. Communists, are not unlawful and are protected -

by the First Amendment) _ ee

- There remains the argument that section 6 is justified

» by the ‘sdanger’’ that foreign travel gives American Com-

ies munists an: opportunity forte @spicnage or to turn their'pass-

| sorts over to Soviet spies, eas giv eee

The gove n ‘does not and cannot cite a single casé

ENTE of. espionage involv r fopeiz el by an- American. .

3 ‘* Spies and traitors aot usually travel abroad—Rather,

thiey retfiain inconspicuously at home, as recéiit outa tae

cases have demoustrated.’. Parker, The Right: to Go ~~

Abroad, 40 Va. L. Rev. $53, 873: The ‘government’ argues . |

SS (Br. 49). that appellants - are_leaders. ot thy Communist’

SS Party and therefore ‘tare exactly.the kind ‘of Party mem-

—S bers whom Congress could. ‘reasonably believe ‘should bé

ise travel.’’ But it is absurd to:suppose that-such

’ ‘Tar figures would be selected for an espionage mission

, ; in lving foreign travel, even if {Cwere believed that = fh

| would accept oné, ~~

ite: kOe *

_ The lae any genuine relation betwe een “soetion 4 quad .

_° ,. the danger of espionage also appears from the. soar —

‘coverage of the section-Would a genuine anti-esphinage ,

‘ law prohibit, suspects from travelling to Monte C arlo but

eles to perform their mission be prevented from doi by a

..°... prohibition that is effective only so long’ as, they 1 remain

She nt oa ‘members of the Communist Party? Can the prevehtion of

>". _ faee to face contact abroad be of any value for security

—-

Peal

‘

rC.)

& :

purposes while alternative means of communication remain.

.open?? The text of the statute is itself sufficient to demon-

‘strate that the alleged danger of espionage is a pretext.

The notion that section 6 will be useful in preserving the

integrity of United States passports is similarly insub-

‘stantial. First, it assumes that a nation presently engaged

‘

‘in racing us to the moon is incapable of counterfeiting our. .

passports if disposed to do so. Second, even if the assump-

tion were warranted, it would tet justify burning the house

to, roast the pig. The danger could be met, as it was in

World War, II, by requiring eitizens to surrender their

passports upon reentering the United States rather than by

prohibiting them from travelling.- Safeguarding the State

Through Passport Control, 12'State Dept. Bull: 1066, 1068.

“The word ‘Communist’ is not an incantation subvert.

ing at a stroke our Constitution and all our cherished liber-

‘ ties” Brigh! v. Dulles, 248 F.2d 561, 584 (Bazelon, J.,

dissenting). The government’s argument, like the statute it |

defends, disregards this injunction. In contrast is the 1958 .

'y report of the Special Committee to. Study Passport Pro-

~* . skould be an evidenti

cedures of the Association of, the Bar of the City of New

York. yg report, entitled Freedom to T rere, utates (pp.

42-43) )

‘* Neither, membership in, nor support. of, any

organization, short of: violation of the Smith Act, is

_ punishable in.the. Uv nited States, arid these should not

serve as criteria fo

itatjon of travel. -If travel is

to be restrained, al

ometimes it -must be, there

y shdwing that the ‘travel of

‘the particular applicant will constitute a definable

‘ - danger to the national sectirity of The United States..

It is anticipated action rather. than contemplated

—_— whieh should serve as the basis for restricting

¥s ‘Conspiritots coul “still use the mails, sahdes. telephones, radios

and, not least, foreign ssies and consulates in the United States.”

Brie. v. Dulles, 248-F> 2d 561, 586 ( Bazelon, J. , dissenting

- seeh an impertant freedom es that of travel abroad. —

: | “In so stating, thé Committee is aware that there

es are disadvantages, and even_risks, in issuing pass-

’ -perts to some supporters of the Communist Party.

However, the Commission believes that the sorhewhat.

‘conjectural danger that might be invelved’ in the

adoption of a policy to issue passports to such indi-

viduals .is far outweighed -by the affirmative advan-

tages to be achieved from close adherence to tlie high ,._

- rariking value represented by the ideal of free travel.

, Travel of an individual should be restrained only |

ep upon''a clear showing of real danger to the nation

' which would follow from the travel of the particular

‘applicant. The generalized taint which properly

attaches ‘to the C ommunist arty as an organization®

should not be carried over to restrain the travel of.an .

individual without evidence which specifically links

the individual to dangerous activity abroad.’